As the state waits on the next stage of Gov. JB Pritzker's legal fight over his ability to issue statewide COVID-19 shutdown orders, the governor says a southern Illinois judge must first clean up his ruling to allow Pritzker to appeal.
On July 8, Illinois Attorney General Kwame Raoul, on behalf of Pritzker, filed a motion in Clay County Circuit Court in far southeastern Illinois, asking Clay County Judge Michael McHaney to dismiss the sole remaining unresolved count from the legal challenge filed against the governor by State Rep. Darren Bailey.
“… There is no final judgment from which the Governor can appeal,” the motion declares.
Observers throughout Illinois have waited for nearly a week to see what Pritzker’s response would be to McHaney’s July 2 ruling, in which the judge declared he believed Bailey has been correct in asserting Pritzker overstepped the bounds of his authority under a state disaster response law and improperly extended his use of emergency powers in response to the COVID-19 pandemic.
“The Court declares Defendant (Pritzker) had no Illinois constitutional authority as Governor to restrict a citizen’s movement or activities and/or forcibly close business premises” in his executive orders, Judge McHaney wrote in his July 2 order.
Bailey, a freshman Republican state representative from downstate Xenia, had sued Pritzker in May, shortly after Pritzker issued executive orders extending his so-called stay at home order, from April 30 to the end of May. Pritzker has continued to govern through executive orders through the summer, as well.
The governor has asserted he is empowered to do so under state law, and particularly the Illinois Emergency Management Agency Act. Pritzker and Raoul have claimed the governor is entitled to continue using sweeping emergency powers over the state for as long as the governor believes a disaster situation remains in place. Pritzker and Raoul have said the governor need only re-declare the disaster every 30 days.
Bailey’s lawsuit, and other similar actions, have challenged that assertion, saying they believe the law limits the governor to a single 30-day disaster declaration. After that, they said, the law should be read to require the governor to secure approval from the Illinois General Assembly to continue using emergency powers and governing by executive orders.
Bailey and his attorney, Tom DeVore, argued state law only gives authority to close businesses in response to a health threat to the Illinois Department of Public Health and county health departments. Businesses should then have the ability to challenge those closure orders in court, Bailey and DeVore asserted.
Instead, they said, Pritzker has issued blanket closure orders across wide swaths of businesses statewide, leaving no opportunity for those orders to be challenged.
In his complaint, Bailey laid out four counts against Pritzker.
In Count 1, Bailey sought an order declaring void the governor’s April 30 extension of his stay at home order;
In Count 2, a declaration that the governor had no authority under the IEMA Act to continue governing by executive order beyond April 8;
In Count 3, a declaration that the IDPH alone had the power to close businesses; and
In Count 4, an injunction against the governor’s powers statewide.
When the case at last landed before Judge McHaney on July 2 on a request by Bailey for summary judgment, the judge granted Bailey summary judgment on Counts 2 and 3.
Bailey and DeVore, however, withdrew their request for an injunction.
And McHaney denied summary judgment on Count 1.
Following the ruling, Pritzker’s spokespeople announced the governor would appeal the ruling.
However, the appeal has been slow in coming.
In the motion filed July 8, Raoul said the appeal needs to wait on resolution of Count 1. That count should be considered moot, Raoul argued, “because Bailey seeks relief in that count that was already granted to him in Counts 2 and 3.”
“Now that the Court has expressed its views on the merits of this case, the Governor asks for expedited ruling on his motion to dismiss in order to take prompt appeal,” Raoul wrote.