McHenry County State's Attorney files brief in lawsuit challenging stay-at-home order

McHenry County State’s Attorney Patrick Kenneally has filed a brief supporting his opinion on a federal lawsuit challenging Gov. JB Pritzker’s stay-at-home order.

State Rep. John Cabello, R-Machesney Park, was the second of the state's lawmakers to file a legal challenge to the governor's executive order. Last month a Clay County judge granted State Rep. Darren Bailey, R-Xenia's request for a restraining order against the state. While Bailey was granted a temporary restraining order that applied only to him, Cabello's suit aims to lift the stay-at-home order for all Illinois residents.

In his 14-page brief, Kenneally explained that although he’s not opposed to some form of the governor’s standing order, its current state is walks a thin line, teetering on violating residents’ First and 14th Amendment rights, he said.

Specifically, Kenneally took issue with the Illinois Attorney General Office's interpretation and support of Prtizker's orders. He also alleged the governor's executive powers should be limited to one 30-day disaster proclamation, rather than the successive manner in which the governor has announced restrictions so far.

“Even if the governor is authorized to issue successive disaster proclamations, he is without statutory authority to order residents to ‘stay-at-home or place of residence’ or require ‘non-essential businesses to cease business and operations,” Kenneally wrote.

A more constitutional order, Kenneally said, would consistently ban all activities likely to draw 10 or more people. More realistically yet, Pritzker could afford residents more freedoms, on the condition that they self-monitor for recommendations including social distancing, Kenneally said.

In the separate lawsuit filed by Bailey, the Xenia Republican claimed Pritzker misused the Illinois Emergency Management Act by continuing to issue a disaster proclamation beyond the 30-day limit.

Illinois Attorney General Kwame Raoul filed a brief in the matter and issued a statement bolstering Pritzker's emergency declarations. According to the attorney general's office, Pritzker's orders weren't a misuse of authority. The governor also responded to Bailey's lawsuit at the time, calling it "a cheap political stunt," that put Illinois residents at risk.

Kenneally, who said he appreciates the governor's efforts to protect residents, also questioned why some services have been deemed essential, while others were forced to close.

“The Attorney General’s argument that stores like Menards and Walmart are truly ‘essential’ in the ordinary, as opposed to legal, sense because they provide the ‘day-to- day infrastructural needs of a society...purchase food to eat, supplies to maintain their residences, and pharmaceuticals to stay healthy’ betrays a hidden undervaluation of religion, human interaction, and speech,” Kenneally said.

The state’s attorney also argued that churchgoers have been unreasonably restricted under the “haphazard and intentionally inconsistent exceptions” to Pritzker’s orders.

A better version of the governor’s order might allow churchgoers to attend services while requiring them to wear masks, social, and leave directly after the service,” Kenneally said.

“The Attorney General here is on dangerous ground. Many devoted practitioners of religion would certainly bristle at the suggestion that the pharmacy is more important to their health than communing with or receiving at a church service the God who they are convinced sustains their every breath.”

Overall, Kenneally said he doesn’t take issue with Pritzker’s attempts to thwart the spread of COVID-19, which, as of Wednesday, had infected 1,236 people in McHenry County and was responsible for 62 deaths. Instead, the state’s attorney said he worries that Pritzker’s interpretation of the IEMA and the attorney general’s subsequent approval, sets a dangerous precedent.

“The Attorney General’s position is fraught with an inherent susceptibility to abuse and potential to unnecessarily prolong emergency periods, which are times posing the greatest risk that our human rights and civil liberties will be trenched upon,” Kenneally said.