Editor's note: This article has been revised from an earlier version to reflect Gov. Pritzker's motion for direct appeal to the Illinois Supreme Court, which was posted online by the Supreme Court following publication of the initial version of this article.
Illinois Gov. JB Pritzker has asked the Illinois Supreme Court to step in to undo Monday’s ruling from a Clay County judge, blocking the governor’s stay at home order from applying to at least one Southern Illinois state lawmaker, and declaring the governor likely exceeded his authority under state law.
That petition, filed by Illinois Attorney General Kwame Raoul on behalf of Pritzker, followed the governor's appeal to a downstate appellate court.
Illinois State Rep. Darren Bailey, R-Xenia
| repbailey.com
"... The public interest requires an expeditious and definitive determination of this appeal by this Court," Raoul wrote in the emergency motion for direct appeal.
In the motion for direct appeal, Pritzker and Raoul ask the state Supreme Court to use its supervisory power to "summarily reverse" the temporary restraining order issued by Clay County Judge Michael McHaney.
The reasoning in the emergency motion to the state Supreme Court echoes both the language of the brief filed April 29 by the Attorney General in the Mt. Vernon-based Illinois Fifth District Appellate Court. It also echoed Pritzker's public statements, repeated nearly every day at daily press briefings, that, without the exercise of his emergency powers, "the death toll will skyrocket, and Illinois hospitals will be overrun."
In their arguments, Pritzker and Raoul claim the governor is empowered by the law to continue to assume broad emergency powers for as long as he believes the emergency exists, so long as he makes a “periodic determination” every 30 days that the situation that caused the emergency still “exists.”
In this instance, Raoul argued, if the governor’s emergency powers were to be limited by the courts, the result would be “exponential spread” of COVID-19 and an “inevitable loss of many lives.”
“That cannot be the result the General Assembly intended,” Raoul wrote.
The filing came two days after Clay County Circuit Judge Michael McHaney granted a temporary restraining order requested by Illinois State Rep. Darren Bailey (R-Xenia).
In that lawsuit, Bailey argued a plain reading of the language of the Illinois Emergency Management Act – a law repeatedly cited by Pritzker to justify his continued statewide executive orders in response to COVID-19 – reveals Pritzker has exceeded his authority.
The relevant portion of the IEMA statute says: “In the event of a disaster… the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days” a number of sweeping emergency powers.
Bailey argued the text of the law limits the governor to one 30-day emergency declaration. Beyond that, Bailey said, the governor must secure permission from the Illinois state legislature, known as the General Assembly, to continue ruling by emergency executive orders.
The Democrat-dominated General Assembly, however, has cancelled all of its previously scheduled legislative sessions since Pritzker declared a statewide disaster in response to the COVID-19 pandemic in early March.
However, after Pritzker announced his intention last week to extend a stay at home order again, this time to late May, calls have increased from Republican members of the General Assembly to convene the legislature to address the governor’s actions, and, at a minimum, ratify them by a vote.
Democratic leaders, including Illinois House Speaker Michael Madigan, have indicated no public willingness to convene at all, particularly since the governor issued a stay at home order in mid-March.
Almost immediately following Pritzker’s announcement related to the May stay at home extension, Bailey filed suit in Clay County Circuit Court, reflecting concerns among many that the governor had overreached. It also arrived a few days after an Illinois appellate prosecutor had indicated Pritzker's legal authority may not be as rock solid as the governor has asserted.
It set up Monday’s hearing and Pritzker’s immediate appeal
“The comments by Judge McHaney make it clear in my opinion that the governor or the legislative leaders could have called us back into session to debate and clarify the emergency powers, but they have not done so,” Bailey said in a statement released on April 28. “The U.S. Congress has met using common sense distancing and even local city councils and county boards have been meeting with the use of technology like Zoom.
“The only other option at this point to ensure the checks and balances of power in Illinois are through the courts,” Bailey said.
In the meantime, however, others have petitioned for similar restraining orders. And on Wednesday, State Rep. John Cabello (R-Machesney Park) filed a similar lawsuit to Bailey’s, but this time to include not just one state representative, but everyone in Illinois.
In the appeal, Raoul argues the court must act quickly to snuff out such legal challenges, and affirm Pritzker’s open-ended emergency powers, or risk allowing the coronavirus that causes COVID-19 to spread more quickly throughout the state and claim many more lives.
In the appeal, Raoul asserts other governors, including former governors Pat Quinn and Bruce Rauner, have extended disaster declarations to claim emergency executive powers in smaller or more limited disasters, including in response to the H1N1 influenza outbreak in 2009 and river flooding in more recent years.
While these emergency powers were never challenged in court, Raoul said it demonstrates the intent of the law to allow governors to continuously redeclare emergencies in 30-day increments for as long as they deem necessary, without any input from the General Assembly or the courts.
Raoul noted the law does not specifically limit the number of times a governor can declare a 30-day emergency, nor specify each emergency declaration must apply to a new, distinct emergency.
Raoul also argued Pritzker has authority separate from the IEMA law, under the state constitution, to take actions as the “supreme executive power” in the state, to “protect the public in a health crisis.”
Raoul noted the General Assembly’s disinterest in even attempting to convene also demonstrates their agreement with the governor’s sustained exercise of emergency powers.
“Illinoisans have been working together to prevent the sickness and death of our families, friends, and neighbors, our health care workers and emergency responders, and the vulnerable among us,” Raoul wrote. “The (Clay County) circuit court’s TRO (temporary restraining order) threatens our collective efforts and puts the lives of our fellow Illinoisans at great risk.”
Bailey's legal team has not yet responded to the filings. However, in a Facebook message posted on the morning of April 30, Bailey acknowledged the appeal, and said the Supreme Court had "agreed to hear" the matter.
"There are going to be some legal games in the day ahead," Bailey said.
He encouraged his supporters to "be patient and let God guide us through this."
Bailey did not directly comment on the claims expressed by the Attorney General in the appellate filings.
However, Mark Glennon, executive editor of public policy analysis site, Wirepoints, responded to Raoul's brief. In a tweet, Glennon described the brief simply as "AWFUL."