The Illinois Supreme Court has refused to grant Illinois Gov. JB Pritzker the quick win he wanted, to preemptively end many of the mounting lawsuits challenging his persistent use of emergency powers to govern the state amid the COVID-19 pandemic.
That decision from the state’s high court came just days after the governor scored another win in court in the legal battle over his questioned authority.
On May 11, the Illinois Supreme Court denied Pritzker his request for a so-called supervisory order. That order would have essentially signaled to judges throughout the state that the Supreme Court agreed completely with the governor’s assertion of his right under state law to continue to issue emergency executive orders for as long as he determines an emergency exists.
Illinois State Rep. Darren Bailey, R-Xenia
| repbailey.com
The Supreme Court order denying the supervisory order, however, did not address any of the legal claims at the heart of the issue.
Pritzker had petitioned the state Supreme Court for that order in the days after a southern Illinois judge in Clay County had granted a temporary restraining order to State Rep. Darren Bailey (R-Xenia.)
Bailey had sued Pritzker in late April after the governor had announced his intent to extend his stay at home order until the end of May.
Pritzker had issued the order first in March, and then extended it to April 30. The order called on Illinois residents to stay home, except to leave on essential business. The order also shut down businesses throughout the state, as it divided businesses and activities into two categories: essential and “non-essential.”
Pritzker said the order and its extension until May 30 was needed to “save lives” and tamp down the spread and severity of COVID-19. Pritzker has since released a 5-phase plan to relieve restrictions and “restore Illinois.” However, the governor has said the final phase of the plan, which would allow nearly all activities to resume without restrictions, could not happen until the virus is essentially “eradicated” from the state.
In the wake of his shut down order extension announcement, Bailey sued Pritzker in Clay County court, arguing Pritzker had overstepped his authority. The state lawmaker argued the governor was limited by the Illinois Emergency Management Act to a 30-day disaster declaration. To use his broad emergency powers beyond that point, Bailey said, Pritzker needed to secure permission from the Illinois General Assembly. The state legislature, however, has not convened since the governor declared his emergency in early March and Democratic leaders have shown no willingness to do so.
On the first day in court, Clay County Judge Michael McHaney granted Bailey a restraining order, blocking the governor from enforcing his executive orders against Bailey, individually.
The governor and Illinois Attorney General Kwame Raoul, a fellow Democrat and political ally of Pritzker, then appealed to both the Illinois Fifth District Appellate Court and sought a direct appeal to the Illinois Supreme Court.
They argued the matter was urgent, and the appellate courts needed to act quickly to shut down legal challenges to the governor’s exercise of authority. They argued the governor has the authority under the IEMA law to declare emergencies for as long as he wishes, provided he can demonstrate an emergency exists and reevaluates the situation every 30 days.
Bailey then petitioned the courts to allow him to voluntarily vacate the restraining order. In a Facebook video, Bailey said he did not wish his case to get bogged down over technical legal questions surrounding the restraining order.
The appeals court granted Bailey’s request and vacated the restraining order.
Pritzker, however, refused to back down, and pressed the Supreme Court for the supervisory order.
They renewed that request as recently as May 11, as they pointed the state high court to other legal challenges to Pritzker’s use of emergency powers brewing and pending.
COOK COUNTY COURT WIN FOR PRITZKER
On May 8, Judge Gamrath had denied a temporary restraining order to plaintiff Justin Mahwikizi, who had sued Pritzker over Pritzker’s executive order requiring him and his passengers to wear masks.
In her ruling, Judge Gamrath said she believed Mahwikizi could not demonstrate any harm from being ordered to wear a mask.
Further, the judge said she agreed that the governor’s powers can extend beyond 30 days, with or without state lawmakers’ approval. In her opinion, she said the 30-day limit expressed in the Illinois Emergency Management Act applies more strictly to a “discrete event – one that stops and starts in a relatively short amount of time.”
She said that differs from a pandemic, which “is not a discrete or isolated disaster.”
COVID-19 “is a dynamic pandemic, still ongoing. This continuing disaster poses a threat that is underway and has not abated as quickly as a more typical natural disaster like an earthquake or tornado.”
“When an emergency epidemic of disease occurs and a pandemic ensues, the Governor has the authority under the Act to utilize emergency powers beyond a single 30-day period to protect the community and residents of the State,” Gamrath wrote.
The Cook County judge said her decision and reading of the law was “persuaded” by the similar findings expressed by federal District Judge John Z. Lee. Judge Lee had rejected the same arguments against Pritzker’s exercise of emergency powers in a lawsuit brought by a northwest Illinois church over the governor’s prohibition of in-person church services and religious gatherings.
“Sometimes individual rights have to give way to the health safety (sic) and protection of the public at large,” Judge Gamrath wrote, calling Pritzker’s sustained use of emergency powers “neither unreasonable nor arbitrarily imposed.”
At the state Supreme Court, Rep. Bailey’s lawyers, led by attorney Tom DeVore, of Greenville, had urged the state Supreme Court to stay out of the matter, for now. They argued the court’s supervisory order authority should be only used in extraordinary circumstances in which the law is absolutely clear.
In this case, they said Pritzker was only seeking the statewide order from the state high court because he was “frustrated” by Judge McHaney’s ruling on his restraining order request.
The high court’s ruling means other court challenges to Pritzker’s authority can continue in Illinois state courts.
In Winnebago County, State Rep. John Cabello (R-Machesney Park) has sought a statewide order barring Pritzker from enforcing his orders.
In the federal courts, The Beloved Church, of Lena, has appealed Judge Lee’s denial of their injunction request.
And in Chicago federal court, two other churches, including one in Chicago and on in Niles, have also sued Pritzker, arguing his closure of churches is unconstitutional.