Ill. Republican Party v. Pritzker

• Citation: 470 F.Supp.3d 813
• Decision Date: 02 July 2020
• Docket Number: No. 20 C 3489,20 C 3489
• Parties: ILLINOIS REPUBLICAN PARTY, Will County Republican Central Committee, Schaumburg Township Republican Organization, and Northwest Side GOP Club, Plaintiffs, v. JB PRITZKER, in his official capacity as Governor of the State of Illinois, Defendant.
• Court: U.S. District Court — Northern District of Illinois

470 F.Supp.3d 813

ILLINOIS REPUBLICAN PARTY, Will County Republican Central Committee, Schaumburg Township Republican Organization, and Northwest Side GOP Club, Plaintiffs,

v.JB PRITZKER, in his official capacity as Governor of the State of Illinois, Defendant.

No. 20 C 3489

United States District Court, N.D. Illinois, Eastern Division.

Signed July 2, 2020

Jeffrey M. Schwab, Liberty Justice Center, Chicago, IL, Daniel Robert Suhr, Liberty Justice Center, Chicago, WI, for Plaintiffs.

Jeffrey J. Vandam, Hal Dworkin, Office of the Attorney General of Illinois, Chicago, IL, for Defendant.

OPINION AND ORDER

SARA L. ELLIS, United States District Judge

In response to the ongoing COVID-19 pandemic, Defendant JB Pritzker, Governor of Illinois, has issued a series of executive orders including Executive Order 2020-43 ("Order"), at issue here.¹ The Order prohibits gatherings greater than fifty people but exempts the free exercise of religion from this limit. Doc. 12 at 3, 6.² Plaintiffs Illinois Republican Party, Will County Republican Central Committee, Schaumburg Township Republican Organization, and Northwest Side GOP Club challenge this exemption as violating their rights under the First and Fourteenth Amendments. Plaintiffs allege that by exempting the free exercise of religion from the general gathering limit, the Governor has created an unconstitutional content-based restriction on speech. Plaintiffs also claim that by not enforcing the Order against protestors following the death of George Floyd, the Governor has created another exception. Plaintiffs filed a complaint and a motion for a temporary restraining order ("TRO") and preliminary injunction in this Court on June 15, 2020 [3] because they want to hold political party events larger than fifty people, including a picnic on July 4th. Plaintiffs seek a declaration stating that treating political party gatherings differently than religious gatherings violates the First and Fourteenth Amendments. Plaintiffs also ask the Court to enjoin the Governor from enforcing the Order against political parties. Because Plaintiffs’ likelihood of success on the merits is less than negligible and the balance of harms weighs heavily against Plaintiffs, the Court denies their motion [3].

BACKGROUND

The world is currently facing a major global pandemic – one of the most significant challenges our society has faced in a century. There is no cure, vaccine, or effective treatment for COVID-19. As of June 30, more than 126,739 Americans have died due to the virus,³ including approximately 6,923 Illinois residents.⁴ In Illinois, there are more than 143,185 confirmed cases.⁵ Despite efforts to slow the spread of COVID-19, many states are experiencing a rise in new cases. Medical experts agree that to stop the spread of COVID-19, people should practice social distancing and wear face coverings when near other people outside their homes. Federal, state, and local governments have enacted measures to reduce the spread of this highly contagious and easily transferable virus while remaining sensitive to economic concerns and citizens’ desire to resume certain activities.

In Illinois, following stay-at-home orders, the Governor developed a multi-stage plan to "safely and conscientiously resume activities that were paused as COVID-19 cases rose exponentially and threatened to overwhelm [the] healthcare system." Doc. 10-1 at 5. On May 29, 2020, the Governor issued an Order related to this plan. The Order provides that "[a]ny gathering of more than ten people is prohibited unless exempted by this Executive Order." Id. at 6. The Order exempts free exercise of religion, emergency functions, and governmental functions. Relevant here, with respect to free exercise of religion, the Order states that it:

[D]oes not limit the free exercise of religion. To protect the health and safety of faith leaders, staff, congregants and visitors, religious organizations and houses of worship are encouraged to consult and follow the recommended practices and guidelines from the Illinois Department of Public Health. As set forth in the IDPH guidelines, the safest practices for religious organizations at this time are to provide services online, in a drive-in format, or outdoors (and consistent with social distancing requirements and guidance regarding wearing face coverings), and to limit indoor services to 10 people. Religious organizations are encouraged to take steps to ensure social distancing, the use of face coverings, and implementation of other public health measures.

Id. at 9. The Governor issued the most recent executive order, EO 2020-43, on June 26, 2020. That order increases the gathering limit to fifty people but retains the exemption for free exercise of religion. See Doc. 12 at 3, 6.

Plaintiffs allege that by merely "encourag[ing]" religious organizations and houses of worship to consult the IDPH guidelines, the Order treats religious speech differently. Plaintiffs contend that the Illinois Republican Party and its local and regional affiliates typically gather in groups greater than ten people for formal business meetings, informal strategy meetings, and other events. Plaintiffs believe there is particular time pressure to conduct meetings and events in the five months leading up to the 2020 general election. Plaintiffs allege that their "effectiveness is substantially hampered by [the Party's] inability to gather in person." Doc. 1 ¶ 14. According to Plaintiffs, "[p]olitics is a people business" that is "most effective when people can connect in person." Id. Plaintiffs hope to resume all gatherings greater than ten people, including gatherings amongst "staff, leaders, consultants, members, donors, volunteers, activists, and supporters." Id. In their motion for preliminary relief, Plaintiffs specifically reference an outdoor picnic that they hope to have on July 4, 2020, as well as a rally and indoor convention at some point.

Plaintiffs also criticize the Governor's enforcement of the Order. Plaintiffs allege that the Governor has declined to enforce his executive order against protestors following the death of George Floyd. Id. ¶ 17. According to Plaintiffs, the Governor has characterized these protestors as "exercising their First Amendment rights" and has engaged in one such protest himself. Plaintiffs allege that the Governor has discriminated in favor of certain speakers based on the content of their speech; "in this case religious speech versus political speech, or protest speech versus Republican speech." Id. ¶ 21.

Additionally, Plaintiffs challenge the authority on which the Order rests. Plaintiffs contend that the Illinois Emergency Management Agency Act ("Act") permits the Governor to issue a disaster declaration for up to thirty days in response to a public health emergency. Plaintiffs allege that the Office of the Attorney General of Illinois "has concluded that the text of the Act does not permit successive declarations based on the same disaster." Id. ¶ 28. Therefore, according to Plaintiffs, the Governor only has authority to issue one thirty-day disaster declaration, rendering any further COVID-19 declaration ultra vires. Consequently, the Order is also ultra vires because it relies on the Governor's authority under the fifth declaration. Plaintiffs’ motion for preliminary relief does not address this aspect of their complaint.

LEGAL STANDARD

Temporary restraining orders and preliminary injunctions are extraordinary and drastic remedies that "should not be granted unless the movant, by a clear showing , carries the burden of persuasion." Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (citation omitted). The party seeking such relief must show: (1) it has some likelihood of success on the merits; (2) there is no adequate remedy at law; and (3) it will suffer irreparable harm if the relief is not granted. Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of Health , 896 F.3d 809, 816 (7th Cir. 2018).⁶ If the moving party meets this threshold showing, the Court "must weigh the harm that the plaintiff will suffer absent an injunction against the harm to the defendant from an injunction." GEFT Outdoors, LLC v. City of Westfield , 922 F.3d 357, 364 (7th Cir. 2019) (quoting Planned Parenthood , 896 F.3d at 816 ). "Specifically, the court weighs the irreparable harm that the moving party would endure without the protection of the preliminary injunction against any irreparable harm the nonmoving party would suffer if the court were to grant the requested relief." Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S.A., Inc. , 549 F.3d 1079, 1086 (7th Cir. 2008) (citing Abbott Labs. v Mead Johnson & Co. , 971 F.2d 6, 11–12 (7th Cir. 1992) ). The Seventh Circuit has described this balancing test as a "sliding scale": "if a plaintiff is more likely to win, the balance of harms can weigh less heavily in its favor, but the less likely a plaintiff is to win the more that balance would need to weigh in its favor." GEFT Outdoors , 922 F.3d at 364 (citing Planned Parenthood , 896 F.3d at 816 ). Finally, the Court considers whether the injunction is in the public interest, which includes taking into account any effects on non-parties. Courthouse News Serv. v. Brown , 908 F.3d 1063, 1068 (7th Cir. 2018).

ANALYSIS

In First Amendment cases, the likelihood of success on the merits "is usually the decisive factor." Wis. Right To Life, Inc. v. Barland , 751 F.3d 804, 830 (7th Cir. 2014). "The loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not adequate, and injunctions protecting First Amendment freedoms are always in the public interest." Christian Legal Soc'y v. Walker , 453 F.3d 853, 859 (7th Cir. 2006) (citation omitted); see also Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time,...