Southern Illinois state lawmaker Darren Bailey has renewed his court fight against Gov. JB Pritzker over the governor’s use of emergency powers, now pointing out the Illinois Attorney General ignored his own office’s prior opinion on limits on the governor’s powers while now claiming the duration of the governor’s emergency powers are limited only by his own determinations.
On May 13, attorneys for State Rep. Bailey (R-Xenia) filed an amended complaint in Clay County Circuit Court.
That filing comes weeks after Bailey opted to walk away from a temporary restraining order a Clay County judge had awarded to him, essentially blocking the governor from enforcing his stay at home order against Bailey, individually.
Pritzker and Illinois Attorney General Kwame Raoul had appealed that order from Judge Michael McHaney to the Fifth District Appellate Court in Mt. Vernon. They had also petitioned the Illinois Supreme Court to step in and cut short Bailey’s case and nearly all other legal challenges now pending in state court against the governor’s use of emergency powers.
Pritzker has asserted the mounting numbers of lawsuits challenging his powers has detracted from his ability to combat the spread of a highly infectious and lethal virus, and has imperiled the lives of tens of thousands of Illinois residents.
After the governor appealed, Bailey requested and received permission to voluntarily vacate the restraining order. He said he did so to prevent his case from being decided on the narrow issues at stake in the restraining order proceedings. He also said he had obtained “new information” to buttress his case.
The Illinois Supreme Court then denied Pritzker’s request for a supervisory order, which would have declared the court agreed Pritzker had unquestionable authority under Illinois state law to essentially redeclare an emergency every 30 days, and continue to govern the state by executive orders.
Bailey and others have asserted in legal filings that the governor must seek approval from the state legislature to continue emergency powers, once his initial emergency declaration expires after 30 days.
The governor, through the attorney general, had argued there is no such limit.
However, in the amended complaint, Bailey points to a 2001 opinion, written by then-Senior Assistant Attorney General Michael J. Luke, under former Attorney General Jim Ryan, that the governor’s powers under the Illinois Emergency Management Act are, in fact, limited to 30 days, just as Bailey asserts.
In that memo, written to former Illinois Environmental Protection Agency Director Michael Chamness, Luke indicated it was the opinion of the Attorney General’s office that Illinois state law does not allow a governor to simply extend his use of emergency powers for as long as the governor believes is necessary.
The Illinois Emergency Management Act “clearly authorizes the Governor to exercise emergency powers for up to 30 days,” Luke wrote in the memo.
However, to allow an Illinois governor to simply continue to extend those emergency provisions, at whim, “would render the limitation clause meaningless,” Luke wrote.
“A more reasonable construction, taking into consideration the other provisions of the (IEMA law), is that the Governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.”
In the new court filing, Bailey asserts Pritzker and Raoul had an obligation to disclose the existence of this opinion, but have not.
“This Attorney General opinion lays bare the overreach of the executive branch being perpetrated by this gamesmanship,” Bailey asserts.
Bailey’s new filing further asserts the governor has violated state law in extending his emergency powers. He said the sole authority to close businesses and impose stay at home orders rests with the Illinois Department of Public Health, and that business owners and Illinois residents have due process rights to challenge those orders, and force the state Health Department or county health departments to obtain court orders forcing them to close or restrict their movements.
Bailey said the governor has exercised authority that doesn’t belong to him under state law, and has violated Illinoisans’ rights.
He is seeking a court injunction barring Pritzker from enforcing the stay at home order and other COVID-19-related executive orders.
Bailey is represented in the action by attorneys Tom DeVore and Erik Hyam, of the DeVore Law Offices LLC, of Greenville.