James P. Fieweger
James P. Fieweger

Gov. J.B. Pritzker’s efforts to combat the spread of the coronavirus haven’t been spared by legal challenges.

The latest strike comes from the state’s bowling alley owners.

The Illinois State Bowling Proprietors Association’s 37-page complaint, filed in Lee County Circuit Court, alleges the 50-person cap outlined in Executive Order 2020-43 places a disproportionate financial burden on its 180 members, who operate more than 4,200 alleys across the state.

“ISBPA’s members cannot begin to guess what legitimate purpose the 50-person cap serves, and they consistently point to the cap as the thing that will imminently doom their family-owned businesses,” the suit states.

The four-count complaint asks for an injunction preventing Pritzker from enforcing the order and all other orders and emergency declarations issued after March 9.

It also seeks a declaratory judgment that Pritzker does not have authority under the IEMA Act to issue successive executive orders or successive disaster proclamations beyond 30 days, and that Section 7 of the IEMA Act violates the separation of powers clause in Article 2, Section 1 of the Illinois Constitution.

“By granting the Governor vast and perpetual emergency powers as enumerated in Section 7 of the [I]EMA Act, the [I]EMA Act improperly delegates legislative power to the executive branch, thus empowering the executive to exercise powers properly belonging to the legislative branch,” the suit argues.

The suit further contends Pritzker’s order denies bowling business owners’ right to equal protection under Article 1, Section 2 of the Illinois Constitution because it allows “numerous commercial activities that are either less safe or not demonstrably safer than bowling to operate without a 50-person cap and instead with a 50% capacity cap.”

Under Phase 4 of Pritzker’s “Restore Illinois” reopening plan, retail shops and restaurants, gyms, tattoo parlors, hair salons and other businesses can operate at a 50% capacity.

Asked about the suit on Tuesday at an unrelated news conference, Pritzker said decisions about reopening businesses are directed by science.

“And what we’re trying to do is to measure what things are less dangerous, that we can allow more capacity for, and what things are more dangerous,” Pritzker said. “And again, I leave that to the scientists and the doctors to make decisions about, there’s nothing political about, you know, focus on one industry or another. It’s just all about, can we maintain safety and health guidance in these kind of settings.”

Pritzker, an attorney, also pointed to state and federal judges largely finding his orders constitutional when faced with similar challenges. Only one judge — 4th Judicial Circuit Judge Michael D. McHaney in southern Illinois — has ruled that Pritzker lacked authority under the Illinois Constitution and the IEMA Act to issue his orders.

“In every other situation the courts have sided with us because we are in a national emergency, we are in a disaster declaration within the state of Illinois,” Pritzker said. “We have, as everybody can see, a deadly pandemic that is among us. And so we have to act accordingly.”

The ISBPA is represented by James P. Fieweger, a partner at Michael Best & Friedrich LLP. He said he thinks his clients will have a greater success than other challenges to Pritzker’s orders because of their equal protection claim.

“Our clients are not being treated like other businesses,” Fieweger said. “If the purpose behind the guidelines implemented by the executive order are to prevent the spread of COVID-19, why do we have a 50-person cap when potentially riskier businesses can operate at a 50 percent capacity?”

Fieweger added that the 50-person limit is nowhere close to a 50% operating capacity, meaning bowling businesses can’t host as many customers or pull in as much revenue as other businesses allowed to gradually reopen under Pritzker’s orders.

”My clients aren’t trying to vindicate some abstract theory, they’re trying to keep their doors open and feed their families,” Fieweger said.

This case in Illinois’ 15th Judicial Circuit is Illinois State Bowling Proprietors Association, Inc. v. J.B. Pritzker, 20 CH 18.