Editor's note: This article has been revised and updated from an earlier version, to reflect the additional action taken by the Illinois Supreme Court on the governor's request for a supervisory order. That order was obtained by the Cook County Record after the initial article was published.
Illinois Gov. JB Pritzker will not be required to appear in a southeastern Illinois courtroom to answer possible contempt of court charges for continuing to issue COVID-19-related executive orders, after the Illinois Supreme Court slapped a hold on those proceedings at the governor’s request.
And the state high court has also acted to remove the legal challenge entirely from the southern Illinois judge who the governor has ridiculed and called "hostile," transferring the case to a court in Springfield.
On Aug. 11, the state high court issued an order imposing a stay on the contempt hearing set for Aug. 14 in Clay County Circuit Court before Judge Michael McHaney.
The justices then later in the day issued another order, transferring the case to Sangamon County Circuit Court in Springfield, where it was consolidated with another case also challenging Pritzker's authority.
The justices did not provide any further explanation for their orders.
The orders came in response to a request from Pritzker for a broader decree, known as a supervisory order, on the legal questions underlying many of the legal challenges brought against the governor’s use of emergency authority by state Rep. Darren Bailey and others.
That request for a supervisory order was denied, and instead replaced with the court's decision to transfer the case to a different circuit court judge in Springfield.
Without the orders from the state high court, Pritzker had been scheduled to appear before Judge McHaney in a Clay County court room on Friday, Aug. 14, to argue against a petition presented by Bailey and his attorney, Tom DeVore, in which they had asked Judge McHaney to hold Pritzker in contempt for continuing to issue COVID-related executive orders, even though McHaney had ruled the governor lacked the authority to continue to do so under Illinois state law.
Bailey and DeVore had presented their petition about a month after McHaney had ruled Pritzker overstepped the bounds of his authority in using emergency powers to issue orders statewide, in the name of fighting the COVID-19 pandemic.
McHaney had 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.
Pritzker and the Illinois Attorney General’s office have argued Illinois’ emergency management law gives Pritzker the power to continue to issue executive orders for as long as the governor believes COVID-19 has made Illinois a statewide “disaster” area, so long as he renews the original disaster declaration every 30 days.
These orders have included general prohibitions on large groups and assemblies, though the state has no taken no action against regular public demonstrations often numbering in the thousands; a statewide stay at home order, which was imposed from March to June, and resulted in the statewide shuttering of thousands of businesses and contributed to an unprecedented spike in unemployment; and a statewide order requiring those in Illinois to wear face masks when in public, among many others.
McHaney sided with Bailey on the question of the limits of Pritzker’s authority. Bailey had argued the governor must secure permission from the Illinois General Assembly if he wished to continue exercising his emergency powers more than 30 days beyond the original disaster declaration.
To this point, McHaney’s ruling has had no practical effect on limiting the governor’s power throughout the state. Judges in every other court to hear challenges to Pritzker’s authority have ruled in Pritzker’s favor.
In late July, Pritzker issued further executive orders, triggering Bailey and DeVore to petition McHaney to hold Pritzker in contempt.
In response, Pritzker petitioned the Illinois Supreme Court to slap a hold on the contempt proceedings.
The Illinois Attorney General’s office, on Pritzker’s behalf, argued the contempt proceeding is, at best, premature. They assert Judge McHaney has yet to fully resolve the issues at play in the lawsuit, preventing them from appealing. Therefore, they said, McHaney’s order is essentially unenforceable, particularly with regard to the contempt proceedings.
“In short, throughout these proceedings, the circuit court (McHaney) has time and again been willing to take shortcuts and ignore procedural protections to the detriment of the Governor,” the Attorney General wrote in the petition to the Illinois Supreme Court, filed on Aug. 10.
The Attorney General further again asked the Illinois Supreme Court for a supervisory order addressing the questions about Pritzker’s authority that were raised in Bailey’s lawsuit and in a number of other legal challenges raising similar legal questions. The Illinois Supreme Court had denied such a request for a supervisory order several weeks ago.
“The dispute raises foundational questions regarding the legitimacy of a broad swath of public health measures critical to fighting a deadly disease,” the Attorney General wrote. “Resolving the dispute through the ordinary appellate process would allow this case to remain pending for months or even years, which would further undermine public confidence in state government and its institutions at a time when collective action is required to address the pandemic.”