Saying the governor is all but attempting to rewrite his lawsuit, a southern Illinois state lawmaker has pushed back on Gov. JB Pritzker’s efforts to block a southern Illinois county judge who the governor has publicly criticized from ruling on the question of whether Pritzker exceeded his authority in shutting down much of the Illinois economy in response to COVID-19.
On June 10, attorneys for State Rep. Darren Bailey (R-Xenia) filed a brief in East St. Louis federal court, amid the ongoing legal tussle over whether Bailey’s challenge to the governor’s emergency executive authority properly belongs in federal court, or before Clay County Judge Michael McHaney at this stage in the proceedings.
In the filing, Bailey said his lawsuit “seeks a determination that Defendant’s (Pritzker’s) actions are invalid, not because they infringe on fundamental rights guaranteed under federal law, but instead, because they exceed Defendant’s authority under Illinois law.
State Rep. Darren Bailey, R-Xenia
“What (Pritzker) wants is the ability to amend (Bailey’s) pleadings and insert claims (Bailey) has not yet asserted,” Bailey wrote in the filing.
Lawyers for Bailey and the Illinois Attorney General’s office, on behalf of Pritzker, have been sparring in court since early May, when Pritzker extended his so-called stay at home order until the end of the month.
The order had been first issued in mid-March, as the centerpiece of the governor’s response to the COVID-19 pandemic in Illinois. The order divided activities and organizations in Illinois into the categories of “essential” and “non-essential.” The order barred Illinoisans from pursuing “non-essential” activities, while also closing “non-essential” businesses and institutions.
Pritzker claimed he had the authority to issue such an order under the Illinois Emergency Management Act. The law gave the governor broad, sweeping powers to regulate activity and business throughout the state in response to a disaster caused by infectious disease.
Pritzker had declared the state a disaster area in early March.
However, after Pritzker moved to extend his order in May, Bailey challenged that authority. He pointed to language in the law itself, which limits the governor to a 30-day period in which he can exercise that power.
Pritzker has argued the law does not limit his use of emergency powers, but rather allows him to continue governing the state by executive order for as long as he believes the event that caused the disaster continues. The governor said the law merely requires him to re-declare a disaster every 30 days.
Bailey has pointed to opinions expressed by prior Illinois attorney generals which dispute that interpretation of the law, and back his assertion that the governor’s powers are limited to 30 days. Beyond that, Bailey has argued, the governor must secure permission from the Illinois General Assembly.
Since it was filed, Bailey’s case has bounced in and out of Clay County Circuit Court, and specifically the courtroom of Judge McHaney.
McHaney granted Bailey’s request for a temporary restraining order, blocking the governor from enforcing the order against him personally. Pritzker appealed that order, and then petitioned the Illinois Supreme Court to shut down Bailey’s case and other similar legal challenges to his emergency powers elsewhere in the state.
In response, Bailey surrendered the restraining order, resulting in the case returning to McHaney’s courtroom. The state Supreme Court also refused Pritzker's request to step in.
Bailey then moved for summary judgment, which would have granted him a win without going to trial.
The day before McHaney was to rule on that motion, Pritzker and Illinois Attorney General Kwame Raoul removed the case to the U.S. District Court for the Southern District of Illinois. In doing so, they argued Bailey’s case actually belongs in federal court, because Bailey’s lawsuit centers on claims Pritzker’s orders violated his constitutional rights.
Bailey responded with a request to send the matter back to state court. He argued Pritzker is merely trying to “forum shop” to find a judge who will rule in his favor.
At that point, the U.S. Justice Department joined the fray, filing an amicus, or “friend of the court” brief, backing Bailey’s position. In the filing, the U.S. Attorney for the Southern District of Illinois Steven Weinhoeft said Bailey’s lawsuit belongs in state court, because the state lawmaker never raises any constitutional claims of his own. Rather, the lawsuit is entirely focused on whether Pritzker exceeded his authority under state law.
Further, Weinhoeft said the Justice Department believes Pritzker violated the Emergency Management Act.
Pritzker has replied in turn, reasserting his claims that the case should be in federal court.
Bailey then responded on June 10, claiming Pritzker’s attempts to keep the case in federal court fall short.
Bailey again asserted he raises no claims against Pritzker, at this point, for violating the constitutional rights of Illinois residents by issuing or extending the stay at home order.
Pritzker has been sued separately by three churches, in two lawsuits, for allegedly violating the religious freedom rights of churches and churchgoers in issuing executive orders restricting in-person church services. The same day he was required to answer for those restrictions in a filing to the U.S. Supreme Court, Pritzker instead lifted those restrictions, and replaced them with public health “guidance” for worship services.
But Bailey said his lawsuit rests on one question: Whether Pritzker exceeded his authority under state law by extending the emergency declaration and related executive orders beyond 30 days, without permission from Illinois state lawmakers.
“Much as he did with his asserted authority under Illinois law, Defendant (Pritzker) goes to great lengths to contrive federal claims and causes of action in Plaintiff’s Complaint…,” Bailey wrote. “Does Plaintiff (Bailey) claim that (Pritzker’s) orders, proclamations and declaration have the effect of restricting his ability to travel, ability to associate with others, and practice his faith? He absolutely makes those allegations.
“However, the crux of Plaintiffs’ causes of action is Defendant’s lack of statutory authority.”
Further, Bailey argued, if Pritzker is allowed to kick the case to federal court, it would set a bad legal precedent, essentially allowing any dispute over any action taken by a government official to avoid a date in state court, at the whim of the official.
“Would an action challenging a mayor’s authority under a city’s ordinances to close a street, if it impaired a person’s ability to travel or attend a religious service, be removable if the state actor did not like his or her chances in a state court?” Bailey wrote. “Of course not.”
Bailey again repeated his assertions that Pritzker is merely trying to keep the case out of McHaney’s courtroom.
He noted Pritzker has tried and failed to persuade the Illinois Supreme Court to shut the lawsuit down; tried and failed to transfer the case to Sangamon County court in Springfield; and now has tried to put the case in federal court.
“At the end of the day, Defendant (Pritzker) is forum shopping,” Bailey wrote.
Bailey is represented in the action by attorneys Steven M. Wallace and Tom DeVore, of Silver Lake Group Ltd., of Glen Carbon.