Illinois’ highest court on Tuesday moved Rep. Darren Bailey’s ongoing lawsuit to Sangamon County, effectively ending a Clay County court's role in the case regarding the limits of Gov. JB Pritzker's authority to respond to the novel coronavirus pandemic.
Bailey, a Republican from Xenia, asked Circuit Court Judge Michael McHaney to hold the governor in jail until he repealed orders allowing K-12 schools to hold in-person classes, permitting the Department of Corrections to accept inmate transfers from county jails and reinstating almost 30 previously announced decrees.
A hearing that was scheduled for Friday, Aug. 14, in Clay County would have required Pritzker to appear in court with representatives from the attorney general’s office as well as Bailey’s lawyer.
In an order issued Tuesday morning, the Supreme Court effectively halted that hearing when it ruled no further proceedings could be held in Bailey’s lawsuit until it decided whether to take control of the case. Hours later, the court also ordered the lawsuit be moved to a circuit court in Sangamon County to be combined with related cases that are pending there.
The justices’ decision only partially fulfilled a request the attorney general’s office made Monday. The state wanted the Supreme Court to halt the contempt hearing in Clay County and take over the case from McHaney.
“As stated in our emergency motion for supervisory relief, there is no legal basis for the governor to be held in contempt for his efforts to combat the COVID-19 pandemic,” a spokesperson for the attorney general’s office said in an email. “We are pleased the Supreme Court granted our request to stay that issue so that it does not continue to serve as an unnecessary distraction from the important matter at hand.”
Thomas DeVore, Bailey’s attorney, is arguing five other civil cases consolidated by the Supreme Court on Wednesday, all challenging aspects of Pritzker’s authority to manage the novel coronavirus pandemic.
Bailey’s lawsuit now joins cases originally based in Edgar, Clinton, Richland and Sangamon counties, all alleging a disaster as defined by statute did not exist there and the governor’s orders should not apply. Another filed by DeVore on behalf of his children argued high school sports should continue despite Pritzker’s restrictions.
McHaney, on July 2, nullified all of Pritzker’s executive orders related to the novel coronavirus pandemic made after April 8 — the date his first disaster proclamation expired. The judge also decided that the Illinois Department of Public Health, not the governor, has the “supreme authority” to close businesses and restrict residents’ activities in a public health emergency.
DeVore argued that by issuing additional decrees after that order, Pritzker performed “contemptuous acts which are calculated to embarrass, hinder, or obstruct this honorable court in its administration of justice, and are expressly calculated to derogate from its authority or dignity.”
The attorney general’s office asserted in a document that McHaney’s ruling is not legally binding — “an unenforceable order cannot serve as the basis for contempt.” The judge never compelled Pritzker to do or avoid any actions, it added.
Officials additionally characterized Bailey’s request to force the governor to rescind his executive orders as “obviously frivolous.”
In its memo asking the Supreme Court to get involved, the state also suggested that due to McHaney’s “prior statements and actions” while presiding over the representative’s lawsuit, he was likely to handle Friday’s hearing “with the same willingness to violate critical procedural safeguards” and “will not afford the governor all of the protections to which he is entitled.”
The document contains several criticisms of the judge’s actions. In one paragraph, the attorney general’s office wrote McHaney has “shown an open hostility to the governor, his emergency actions, and the existence of the COVID-19 pandemic itself.”
It quotes the judge as portraying Pritzker’s actions to manage the public health crisis as “tyrannical” — “the last time this happened a bunch of guys got on a boat and threw tea in Boston Harbor,” McHaney said at a court hearing.
Officials also accuse the judge of purposely not ruling on one of the last issues in the case in order to prevent the state from appealing his decision. They wrote his July 2 order is based on an argument “riddled with procedural and substantive defects” and asserted he failed to announce “any [written or oral] reasoning to justify his decision.”
The Supreme Court should get involved in this case, the state argued in the document, “to resolve this dispute and put an end to the public confusion wrought by...tactics” used by both McHaney and Bailey. Instead of doing so, the justices moved the case into a new judge’s courtroom.
“We appreciate the court’s decision to transfer and consolidate this case with nearly identical cases currently pending in Sangamon County, where we will continue to defend the governor’s authority to protect Illinois residents,” a spokesperson for the attorney general’s office said.
AG’s office maintains Pritzker acted within the scope of his authority; Bailey disagrees
Pritzker had authority to issue successive 30-day disaster proclamations because the Emergency Management Agency Act, which the governor cites as the source of his emergency powers, does not cap the number of proclamations a governor can issue for the same disaster, the attorney general’s office argued.
It cites instances when former Govs. Patrick Quinn and Bruce Rauner issued multiple orders reacting to the H1N1 virus and flooding, respectively. A governor’s ability to do so allows them “to protect the health and lives of Illinoisans,” according to a court document.
DeVore, in written arguments and interviews with Capitol News Illinois, has said the IEMA Act does not expressly permit the state’s top executive to issue more than one proclamation to manage a disaster. That would be an unconstitutional delegation of power from one branch of government to another, he has argued.
McHaney, in July, characterized that as something that would occur “in Russia or China or Cuba or Argentina or some banana republic where, after disarming the general population, the person who usually winds up being in charge is the one with the most guns and the least humanity,” according to a court document.
The state pointed out the Clay County judge appears to be the only one in Illinois who holds that position. In almost all of more than ten other cases also brought by DeVore, as well as in other lawsuits, judges upheld Pritzker’s response to the novel coronavirus as legal.
In those other instances, DeVore argued, judges only ruled whether a temporary action was necessary while the merits of the case were decided. Therefore, they did not rule on the underlying question of whether Pritzker exceeded his statutory and constitutional authority.
The governor was, and remains, able to file a petition for a higher court to review McHaney’s ruling on some of the issues in the lawsuit, DeVore added. In email conversations with the attorney general’s office, he was informed the state would be doing so by Aug. 7. It never did.
“Mr. Pritzker wants to blame me for him not being able to appeal the judge’s order,” DeVore said. “He made a tactical decision not to ask for that. To blame anybody but himself for never being able to appeal for the better part of six weeks is 100 percent the governor’s doing.”
The governor’s spokesperson, in an email, rebutted that.
“Anything Mr. DeVore might say about how this case could be appealed is completely disingenuous given his repeated — and ongoing — tactics to prevent an appeal,” the governor’s spokesperson said.
“Mr. DeVore has taken every step to avoid an appeal. Those efforts speak volumes,” she added. “Publicly, DeVore insists that he is right. Behind the scenes, he is clearly deeply afraid of an appellate court ruling.”
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