A southern Illinois lawyer who has spearheaded many of the lawsuits challenging the authority of Gov. JB Pritzker to govern by emergency executive order amid the COVID-19 pandemic has filed a flurry of further legal challenges in downstate counties, this time asserting the COVID-19 pandemic does not fit the criteria under state law as a public health emergency.
The lawsuits were filed against Pritzker by attorney Tom DeVore, of Greenville, in courts in Sangamon County, Bond County, Richland County, Edgar County and Clinton County.
Named plaintiffs in those actions include DeVore, himself, in Bond County; Steve and Angela Gorazd, in Clinton County; Daniel English, in Richland County; Kirk Allen and John Kraft in Edgar County; and Riley Craig, Keith Ayre and Chris Schmulbach, in Sangamon County.
The lawsuits are all essentially identical to a new count added to the first and still one of the most prominent suits mounted against Pritzker’s COVID-19-related authority, a lawsuit filed in Clay County in far southeastern Illinois by State Rep. Darren Bailey (R-Xenia.)
In that new count and the five new lawsuits, Bailey and the other plaintiffs now assert Pritzker has based his assertion of emergency powers on a pandemic that has, to date, produced relatively few health problems in the downstate counties the governor has declared to be disaster areas.
The complaints cite raw statistics, which show that fewer than 1% of all residents in those counties have been confirmed to have been infected by the novel coronavirus that causes COVID-19, and far fewer even have died from COVID-19 in those counties.
The complaints, for instance, note that 0.363% of the population in Sangamon County, which includes the city of Springfield, had tested positive for COVID-19, and 0.017% of the county’s population had died of the disease, as of July 22.
In Clinton County, about 35 miles east of St. Louis, the complaint said 0.736% of the population had tested positive for COVID-19, and 0.045% had died of the disease;
In Bond County, just north of Clinton County, 0.163% of the population had tested positive, and 0.006% had died;
In Richland County, 0.055% had tested positive, and no one had died of COVID-19;
In Edgar County, 0.097% had tested positive, and no one had died of COVID-19; and
In Clay County, 0.065% had tested positive, and no one had died of COVID-19, according to the court documents.
The new complaints and additional count in Bailey’s lawsuit assert the governor has improperly declared disasters and employed his emergency powers statewide, when there are many counties in which no true public health emergency now exists.
The complaints point to language in the Illinois Emergency Management Agency Act which states the governor is allowed to declare a disaster in a region in which a public health emergency exists. And in the IEMA Act, such an emergency can be defined as “the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin” and “an illness or health condition that … poses a high probability of … a large number of deaths in the affected population; a large number of serious or long-term disabilities in the affected population; or widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population.”
The complaints concede that COVID-19 qualifies as “an appearance of a novel infectious agent.”
However, the complaints argue the pandemic has not been accompanied in those counties by a “high probability of a large number of deaths … a large number of serious or long-term disabilities … (or) a widespread exposure to COVID-19.”
“… Given the present (Illinois Department of Public Health) data, any subsequent disaster proclamations … would fail to meet the definition of a public health emergency,” the complaints said.
The complaints ask the judges in those courts to issue orders prohibiting Pritzker from issuing any further disaster declarations in those five counties, if he does so using the criteria spelled out in the IEMA Act and the data supplied by IDPH.
In earlier court actions launched by DeVore challenging Pritzker’s authority, he, Bailey and others have argued Pritzker overstepped his authority under a different provision within the IEMA Act. In those other actions, they point to language in the IEMA law which states the governor is limited to a 30-day window following the issuance of a disaster declaration to use emergency powers to respond to the pandemic.
After that 30-day period, they said, the governor must secure permission from the Illinois General Assembly to continue using his emergency powers.
Pritzker and Illinois Attorney General Kwame Raoul, however, has said the law should be interpreted to allow the governor to use emergency disaster powers for 30 days following any disaster declaration. This means the governor could redeclare a disaster every 30 days, and use emergency powers, for as long as he deems the condition that caused the initial disaster remains in place. They assert there is otherwise no time limit on Pritzker’s ability to govern by executive order during the COVID-19 pandemic.
While most judges that have handled that question have ruled the governor’s interpretation is correct, a judge in Clay County ruled earlier this month that Bailey is correct.
However, Pritzker has yet to appeal. Raoul has filed a motion for further rulings from the judge that the attorney general and governor believe are needed to allow the case to be appealed.
In the meantime, Pritzker has asserted the judge’s ruling changed nothing about his ability to continue governing under emergency executive orders statewide to address the COVID-19 pandemic.
Pritzker is expected to issue another COVID-19-related disaster declaration on July 26, when his current 30-day declaration is set to expire.
According to the most recent numbers posted by the IDPH, 166,925 Illinoisans have been confirmed to have tested positive for COVID-19 since March, and 7,367 people have died from the illness statewide. The state has conducted more than 2.38 million tests, the IDPH said.
Recently, a legal challenge mounted against Pritzker by the owners of a biker bar and grill in Savanna in northwest Illinois was voluntarily withdrawn, according to documents filed in federal court in Chicago. The owners of Poopy's Pub & Grub had asserted Pritzker's power to close down their establishment and others in response to COVID-19 was illegal. They, too, initially had been represented by DeVore.
A lawsuit filed by State Rep. John Cabello (R-Machesney Park), essentially similar to the challenge launched by Bailey, was also voluntarily withdrawn on July 22, federal court records show. Cabello had also been represented by DeVore.