Editor's note: This article has been revised and updated from an earlier version to reference and cite additional documents filed by the Illinois Attorney General's Office in the litigation referenced in the article. The Cook County Record obtained those documents following the initial publication of the earlier version of this article. A request for documents was submitted prior to the initial publication of the article.
A southern Illinois judge has ordered Gov. JB Pritzker to appear in court to answer the petition by a state lawmaker seeking to hold him in contempt of court for continuing to issue emergency orders in the name of fighting COVID-19, even though that judge declared the governor lacked the authority to do so.
On Aug. 7, Clay County Judge Michael McHaney issued an order directing Pritzker to appear in his courtroom on Aug. 14 to “show cause” why the governor shouldn’t be held in contempt and possibly jailed until he rescinds the COVID-19 disaster-related orders he has issued since May.
State Rep. Darren Bailey, R-Xenia
The order directing the governor to appear comes two days after State Rep. Darren Bailey, R-Xenia, and his attorney, Tom DeVore, filed the contempt petition before Judge McHaney.
That, in turn, came about a month since McHaney had ruled Pritzker overstepped the bounds of his authority under the state constitution and state law in using emergency powers to issue orders statewide, which Pritzker has said are needed to slow the spread of the COVID-19 pandemic.
McHaney declared Pritzker “had no constitutional authority as Governor to restrict a citizen’s movement or activities and/or forcibly close business premises” through his executive orders.
Asked about Bailey's contempt motion and the judge's order to show cause, a spokesperson for the Illinois Attorney General's Office declined comment, but pointed the Cook County Record to briefs filed late Thursday evening in Clay County court in Bailey's litigation.
The filings were made in response to a motion by Bailey to add an additional count to his litigation. In that motion, Bailey seeks to argue the governor's disaster declaration should be invalidated in Clay County because no disaster caused by COVID-19 exists in Clay County.
The Attorney General also sought again to persuade McHaney to correct his prior ruling, to make it a "final judgment" and allow the governor to appeal.
The judge's refusal to do so to this point, means the governor is essentially caught in a legal loop in which a judge has declared he lacks power to take emergency actions, yet declines to let him appeal the ruling to a higher court for review.
That, the Attorney General argues, has allowed Bailey and DeVore to engage in what the state calls "an untimely attempt to abuse the judicial process for political gain rather than a serious, good-faith effort to resolve a dispute" with Pritzker.
"Bailey’s proposed additional count is designed to further his strategy to drag out this case without an appealable order. Bailey intends for this Court not to resolve his dispute but rather to amplify it," the Attorney General said. "This is an abuse of the judicial process."
The Attorney General further argued it is irrelevant under the law as to whether a COVID-19 disaster "exists" in any particular county, because the governor is granted power by the law to declare disasters anywhere in Illinois.
To this point, McHaney’s ruling has had no practical effect on limiting the governor’s power, at least outside of Clay County.
Judges in every other court to hear challenges to Pritzker’s authority have ruled in Pritzker’s favor.
A judge in Will County, for instance, declared last week that McHaney’s ruling was not binding, as the ruling was “bereft of meaningful legal analysis” and was “wholly unpersuasive for that reason.” In that ruling, Judge John C. Anderson rejected the contention raised by a group of landlords that Pritzker did not have the authority under state law to prohibit evictions while the COVID-19 pandemic continued.
Anderson also ruled Pritzker had the authority to continue to issue COVID disaster orders so long as he continued to re-declare a statewide disaster every 30 days, as Pritzker believes he is allowed to do under the state’s emergency management law.
Bailey has steadfastly contested that point in court since he became the first in Illinois to file suit challenging the governor’s use of emergency power amid the pandemic. He has asserted state law limits the governor to a 30-day window in which to use broad emergency powers to mitigate against a disaster.
Those powers included the authority to order businesses closed, regulate church worship services and restrict other activities across the state.
Bailey has asserted the governor must obtain permission from the Illinois General Assembly to continue issuing such emergency executive orders beyond that initial 30-day period.
McHaney agreed with Bailey.
However, in late July, Pritzker issued new executive orders and further public health “guidance” related to COVID-19, triggering Bailey’s contempt petition.