Attorneys for a southern Illinois lawmaker are fighting an attempt by Illinois Gov. JB Pritzker to centralize the state law challenges to his emergency powers in Springfield courts.
On May 15, attorney Tom DeVore, of Greenville, filed objections to a motion from the Illinois Attorney General’s Office, on behalf of Pritzker, to transfer the lawsuit filed by State Rep. Darren Bailey (R-Xenia) from Clay County court near Bailey’s home to Sangamon County court in Springfield.
In the objection, Bailey and DeVore assert the governor is merely using the motion to “forum shop,” or find a judge who will agree with the governor’s arguments that he is allowed to extend his emergency powers for as long as he believes an emergency exists.
Bailey asserts that interpretation conflicts with the text of the Illinois Emergency Management Act, which expressly limits the governor to a 30-day period following a declaration of a disaster, in which the governor is authorized to execute broad, sweeping powers to immediately address an emergency.
Bailey and DeVore said the governor’s attempt to send the case to Springfield comes in an attempt to avoid further hearings before Clay County Judge Michael McHaney, who had already granted Bailey a temporary restraining order, blocking the governor from enforcing his stay at home order against Bailey, individually. The judge had also expressed deep doubts over the constitutionality and legality of the governor’s orders.
“Under the facts and circumstances present, it would seem this request is for all intents and purposes Pritzker’s motion for substitution of judge cloaked as a forum change for ‘convenience,’” DeVore wrote in the objection. “One might only presume Pritzker is seemingly displeased with this Court’s prior rulings in the instant case, as evidenced by his public tirade following this Court’s April 27, 2020 ruling, and his subsequent plea to our Supreme Court to take this matter away from this Court.”
On May 13, Pritzker filed his motion for transfer, citing the reason as “forums non conveniens,” or non-convenient forum. Essentially, Pritzker and Illinois Attorney General Kwame Raoul, a fellow Democrat and Pritzker political ally, argued the case is best heard in Sangamon County because it is “an official residence” of Pritzker, as governor, and because the issues at play in the case affect all Illinoisans. Therefore, they said, the courts in the state capitol represent the best place to hear the case.
They pointed to a decision from a judge in Peoria County to transfer a similar challenge to Pritzker’s emergency powers to Sangamon County, using the same rationale presented by the Attorney General to Judge McHaney.
Pritzker filed his motion to transfer after Bailey renewed his legal action against the governor, asserting the governor violated state law in extending his emergency powers. In an amended complaint, Bailey assert Raoul and Pritzker misled the court by not disclosing the existence of a 2001 opinion from the Attorney General’s Office indicating a belief the Illinois Emergence Management Act does not allow the governor to simply extend emergency powers so long as he determines a disaster exists to justify them.
Bailey had initially sued Pritzker in late April, after the governor had indicated his intent to extend his stay at home order through the end of May.
While Bailey won a restraining order from Judge McHaney, Pritzker appealed and also petitioned the Illinois Supreme Court for a so-called supervisory order to cut short all lawsuits centered on Bailey’s claims of executive overreach.
Bailey, however, voluntarily vacated the restraining order, saying he didn’t wish for the case to be argued on the narrow issues presented by the order. The Illinois Supreme Court ultimately denied Pritzker’s request for a supervisory order, allowing Bailey’s litigation and other legal challenges to Pritzker’s use of executive emergency powers to continue.
In responding to Pritzker’s transfer request, Bailey and DeVore said a transfer is not appropriate in this case.
They noted Pritzker does not live in Springfield, and has remained in Chicago ever since declaring a statewide emergency in response to the outbreak of COVID-19 in March.
“Unless the Thompson Center (in downtown Chicago) has somehow been moved to Sangamon County, given it seems to be the location of Pritzker’s daily press briefings, it would seem readily apparent he is actually residing in Cook County,” DeVore wrote.
They said Pritzker’s appeals to convenience completely overlook the fact that Bailey lives in Clay County, and a court in Clay County is still an Illinois state court, just as Sangamon County. They said Pritzker’s motion provides the judge “with nothing but conclusory assertions” that a Sangamon County court is better equipped to handle the “public and private interests at issue” in the case.
They said Supreme Court rules dictate the choice of where to hear the case should almost always be left to the plaintiff.
“Certainly, the relief sought by Bailey spans all of Illinois but that is only because a ‘one size fits all’ executive order promulgated by Pritzker has paralyzed the entire state,” DeVore wrote. “Whether a county is the ‘central place’ … is not a relevant factor to be considered.”
Clay County court, they said, “is an entirely convenient and appropriate forum for disposition of Bailey’s claims.”
Pritzker’s transfer motion follows similar moves to transfer other lawsuits challenging his power out of the courts in which they were filed. For instance, Pritzker and Raoul transferred to federal court several lawsuits against his authority, including an action filed by State Rep. John Cabello (R-Machesney Park) in Winnebago County Circuit Court in Rockford.