The U.S. Department of Justice has stepped into the court fight between a southern Illinois state lawmaker and Illinois Gov. JB Pritzker, over Pritzker’s continued use of emergency powers to respond to the COVID-19 pandemic.
On May 22, Steven D. Weinhoeft, U.S. Attorney for the Southern District of Illinois, filed a brief in federal court, urging a southern Illinois federal judge to reject Pritzker’s attempt to sidestep a court hearing before a Clay County judge the governor has previously criticized, by taking the lawsuit brought by State Rep. Darren Bailey to federal court.
In the filing, which was also signed by three senior members of the U.S. Attorney General's office, Weinhoeft said Pritzker’s move to federal court was improper. The federal prosecutor noted Bailey’s lawsuit deals exclusively with how to interpret state law, and presents no direct federal claims.
U.S. Attorney Steven Weinhoeft
| https://www.justice.gov/usao-sdil
While Pritzker’s continued use of questionable executive powers touch on federal due process rights, Weinhoeft said potential federal implications from a lawsuit does not automatically make it a claim under federal law.
The lawsuit, Weinhoeft said, belongs in Clay County Circuit Court – not federal court, in the opinion of the Justice Department.
“Even in the face of a pandemic – indeed, one might say especially in the face of a pandemic – States must follow the legal processes they have established to protect their people’s health, while also protecting their people’s rights,” Weinhoeft said. “Such legal processes enable the States to make sensitive policy choices in a manner responsive to the people and, in doing so, both respect and serve the goals of our broader federal structure, including the guarantee of due process in the U.S. Constitution.”
Sending the case back to Clay County court would “likewise respect our federal structure and allow those processes to unfold,” Weinhoeft said.
Weinhoeft further said the Justice Department believes Bailey is correct, and Pritzker is wrong, on the limits of Pritzker's emergency powers.
The filing comes the same day Clay County Judge Michael McHaney had been scheduled to hear a motion from Bailey for summary judgment in the case.
Bailey’s lawsuit has bounced around the court system since it was first filed in late April, after Pritzker announced he was going to extend his so-called stay at home order.
That order, the centerpiece of Pritzker’s response so far to the outbreak of COVID-19 in Illinois, has resulted in the closure of a wide swath of Illinois’ businesses, which the governor deemed “non-essential.”
Pritzker’s actions, delivered so far through the use of executive orders, rather than legislation, has drawn a rising tide of opposition from many throughout Illinois. That opposition has been expressed through protests, lawsuits and a flood of messages and calls to lawmakers, asking them to intervene.
Bailey was the first to directly challenge Pritzker’s powers, asserting the state law on which Pritzker has largely relied, known as the Illinois Emergency Management Agency Act, does not give him the ability to simply redeclare a statewide disaster to continue to use his sweeping emergency powers.
Pritzker has asserted he can continue to declare disasters and use emergency powers every 30 days, until he deems the emergency that caused the disaster has ended.
Bailey and others have argued the law should be read to require Pritzker to get approval from the Illinois General Assembly to continue using those emergency powers beyond the first 30 day period after a disaster has been declared.
Judge McHaney had initially granted Bailey a temporary restraining order, blocking Pritzker’s orders from applying to Bailey, individually. Following that ruling, Pritzker publicly criticized the judge.
Pritzker then appealed and petitioned the Illinois Supreme Court to intervene in his favor, and essentially shut down all legal challenges to his authority under state law.
The state high court declined, and Bailey voluntarily vacated the restraining order. The case was assigned back to Judge McHaney.
Bailey then filed an amended complaint, buttressing his lawsuit with further documentation and claims, including an opinion filed in 2001 by then-Illinois Attorney General Jim Ryan, which indicated a belief that Bailey’s interpretation of the state law is correct.
Bailey moved for summary judgment in his favor, which would end the matter at the county court level and set up further appeals in the Illinois state court system.
A day before that hearing, however, and without ever replying to Bailey’s summary judgment filings, Illinois Attorney General Kwame Raoul, on behalf of Pritzker, removed the case to federal court. Raoul asserted Bailey’s lawsuit should be considered a federal claim, because he is asserting Pritzker’s orders violate U.S. constitutional rights.
Bailey’s lawyer, Tom DeVore, responded with a motion, requesting the case be immediately sent back to Clay County. Bailey and DeVore argued Pritzker is merely delaying and continuing his “forum shopping,” or seeking a judge who would rule in his favor.
As the federal judge considers whether the case belongs in federal court or not, the Justice Department entered the fray.
Weinhoeft concedes some of Bailey’s claims could implicate constitutional violations.
“If Bailey is correct that these executive orders are wholly without authorization under Illinois law, then the Orders’ imposition of broad and intrusive restrictions on the people of Illinois and could raise real questions about whether the people of Illinois have been deprived of their liberties without constitutionally adequate process,” Weinhoeft said. “And these claims will likely be raised in other litigation.”
But the federal attorney said Bailey’s claims still rest entirely on differences of interpretation of a state law, not the U.S. Constitution or federal law.
Weinhoeft’s filing indicated he and the Justice Department also agree with Bailey on the proper interpretation of that state law.
“… Nowhere in the (IEMA) Act does it say that the Governor can extend a proclamation for the same disaster,” Weinhoeft wrote.
He also questioned Pritkzer and Raoul’s assertions that the Illinois state constitution empowers the governor to rule by executive order, even during a pandemic emergency.
Even should a federal judge determine the case was properly transferred to federal court, “then it should find that the Governor exceeded his authority when issuing the executive orders,” Weinhoeft wrote.
According to his online biography, Weinhoeft was judicially appointed to the office of U.S. Attorney for the Southern District of Illinois in 2018. He has served in the Justice Department since 2008, and had served in Springfield as First Assistant State’s Attorney in Sangamon County before that.