Southern Illinois lawmaker Darren Bailey, who challenged the authority of Gov. JB Pritzker to govern Illinois by executive order during the COVID-19 pandemic, has pushed back on the governor’s attempt to persuade the Illinois Supreme Court to thwart Bailey’s and other court challenges against Pritzker’s emergency powers.
On May 8, Bailey’s attorneys with the DeVore Law Offices, of Greenville, filed a motion with the Illinois Supreme Court, objecting to Pritzker’s move to secure a so-called supervisory order from the state high court to effectively end all legal challenges surrounding Pritzker’s claims he can continue to rule by executive order for as long as he deems the COVID-19 emergency to continue.
Bailey’s attorneys argued there is no precedent for the Illinois Supreme Court to step into the matter at this point in the proceedings, as Pritzker and the Illinois Attorney General are seeking, and to do so would violate longstanding legal principles in Illinois.
The dispute centers around a decision delivered nearly two weeks ago by Clay County Judge Michael McHaney in the lawsuit filed by Bailey, a Republican state representative from Xenia, against Pritzker.
In that action, Bailey asserted that Pritzker’s action to extend his statewide stay at home order was illegal and unconstitutional. Specifically, Bailey argued Pritzker had overstepped his authority under the Illinois Emergency Management Act. Under that law, Bailey argued, Pritzker was only granted 30 days following the declaration of an emergency to assume near complete power over the state. After that 30 days, Bailey asserted, Pritzker must secure approval from the Illinois General Assembly to continue governing by executive orders.
However, as the General Assembly has not convened since Pritzker declared a statewide disaster in response to the COVID-19 outbreak, Pritzker’s authority should have ended in early April, Bailey argued.
Judge McHaney then granted a temporary restraining order to Bailey, effectively barring the governor from enforcing his orders against Bailey, individually, and finding Bailey may have a strong chance of success in his lawsuit.
Pritzker appealed to the Illinois Fifth District Appellate Court in Mt. Vernon. He also petitioned the Illinois Supreme Court for a supervisory order, effectively declaring the governor’s interpretation of the Illinois Emergency Management Act correct – that the governor could continuously declare emergencies and rule by executive order, provided he make a redetermination every 30 days that the emergency still exists.
In response, Bailey petitioned to voluntarily vacate the restraining order. The appeals court granted the request.
In a Facebook video, Bailey said he did not wish his case to get bogged down or prematurely ended in a dispute over the restraining order.
However, Pritzker refused to let the matter die, urging the Supreme Court to still issue a supervisory order. On May 1, the governor filed a motion saying a Supreme Court order is needed as he faces other suits, and could face still more, centered on the same question. He argued those lawsuits are interfering with his ability to govern the state during the pandemic and are emboldening critics to defy his orders.
A week later, Bailey responded with a formal objection. Bailey said the governor is asking the Supreme Court to step on merely because Pritzker is frustrated with Judge McHaney’s ruling. Bailey’s lawyers assert there is no precedent to support such a move by the state high court, as neither Bailey nor McHaney did anything legally improper.
“In the instant case, there is no hint Respondent (Judge McHaney) abused his discretion or employed a procedure inimical to or in violation of applicable statutes or precedents,” Bailey wrote in May 8 motion. “The only articulated basis for the instant motion is Defendant’s (Pritzker’s) strenuous disagreement with the circuit court’s construction of applicable provisions of the Illinois Emergency Management Act.
“There is absolutely nothing in this Court’s decisions so much as hinting that an allegedly erroneous construction of a statute is a basis for the extraordinary relief” in a supervisory order.
Bailey pointed to Supreme Court precedent indicating the state high court has steadfastly refused to intervene with a supervisory order “simply because one party disagrees with a decision” from a county judge.
Bailey argued those principles should hold true even in the face of a pandemic.
“It is undeniable this situation is unique and presents challenges to governments, businesses and individuals, the likes of which they have never seen,” Bailey wrote. “Nonetheless, those situations, horrific and daunting as they may be, do not justify a departure from established principles and precedent.”