A southern Illinois state lawmaker who has stood at the forefront of the legal effort challenging Gov. JB Pritzker’s emergency powers to address the COVID-19 pandemic has asked a southern Illinois judge to hold Pritzker in contempt of court for continuing to issue COVID-related executive orders even after the judge ruled Illinois law does not allow him to do so.
On Aug. 5, State Rep. Darren Bailey (R-Xenia) and his attorney, Tom DeVore, filed a petition in Clay County Circuit Court in southeastern Illinois, requesting the court hold Pritzker in indirect civil contempt of court, for allegedly continuing to govern as if the judge’s ruling had never happened.
The filing stems from the judgment issued on July 2 by Clay County Judge Michael McHaney. In that ruling, Judge McHaney determined Pritzker overstepped the bounds of his authority under the state constitution and state law in using emergency powers to issue statewide orders, in the name of fighting the COVID-19 pandemic.
Illinois Gov. JB Pritzker
“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” through his executive orders, Judge McHaney wrote in the order.
The ruling came months after Bailey became the first in Illinois to file suit challenging Pritzker’s power under the Illinois Emergency Management Agency Act and state constitution to govern using executive orders and impose statewide lockdowns in response to COVID-19.
Bailey’s legal challenge has largely focused on the legal premise that the IEMA Act required Pritzker to obtain permission from the Illinois General Assembly to continue governing using executive orders more than 30 days after he first declared a statewide disaster caused by the COVID-19 outbreak.
Pritzker and Illinois Attorney General Kwame Raoul, however, have argued the governor has the power under Illinois state law to continue governing using emergency powers for as long as the emergency situation – in this case, the COVID-19 pandemic – continues, so long as Pritzker re-declares the disaster every 30 days.
Despite McHaney’s ruling on July 2, Pritzker again issued COVID-19-related executive orders on July 27, and has threatened to reinstitute lockdown measures, particularly in southern Illinois. According to the Illinois Department of Public Health, downstate Illinois now accounts for about 40% of all COVID-19 cases in the state, and southern Illinois counties and those near St. Louis are battling the highest COVID-19 “positivity rates” in the state.
To this point, McHaney’s ruling has stood alone on the question of Pritzker’s powers. Judges in both federal and state courts have routinely upheld Pritzker’s position, ruling he has the ability to violate constitutional rights and close down businesses, so long as he claims such actions are necessary to slow the spread of COVID-19.
Other courts have also declined to place any limits on the duration of the governor’s emergency powers.
Pritzker has not yet appealed McHaney’s ruling. In court filings, Pritzker and Raoul have asserted the judge’s July 2 ruling is not yet a “final judgment from which the Governor can appeal.” They argued there are procedural issues the Clay County court needs to address to allow them to appeal.
In a petition for civil contempt, the parties essentially seek a judge’s order directing those accused to take certain actions as “punishment.”
In this case, Bailey is asking the court to order Pritzker to “purge himself” of contempt by rescinding the executive orders issued July 27.
“In complete disregard of this Court’s July 2, 2020 order, on July 27, Pritzker issued executive order 50 regarding COVID-19 and cites as authority his enumerated powers” under the IEMA Act, the petition said.
“These willful actions of the Defendant, Jay Robert Pritzker, constitute prima facie evidence of contemptuous acts which are calculated to embarrass, hinder, or obstruct this Honorable Court in its administration of justice, and are expressly calculated to derogate from its authority or dignity,” the petition said.
A spokesperson for Pritzker did not reply to a request for comment.
A spokesperson for Raoul declined comment.