Illinois Attorney General asks Supreme Court to weigh in on Bailey’s lawsuit

By REBECCA ANZEL
Capitol News Illinois
ranzel@capitolnewsillinois.com

SPRINGFIELD — The Illinois attorney general’s office asked the state’s highest court to consider arguments in a state representative’s case challenging the governor’s authority to oversee the COVID-19 pandemic.

If the Illinois Supreme Court agrees, it would take over from the fifth appellate district, which has not yet held a hearing in Xenia Republican Rep. Darren Bailey’s lawsuit.

Of the 203 similar requests made to the highest court since 1995, only 22 were allowed by the justices, according to a spokesperson for the court.

In a document filed with the court Wednesday, the attorney general’s office argued Clay County Circuit Court Judge Michael McHaney’s ruling that Bailey is no longer subject to Gov. JB Pritzker’s stay-at-home order was grounded on an “erroneous conclusion.”

Bailey alleges Pritzker does not have the power to issue successive 30-day disaster proclamations for the same disaster — COVID-19, in this case. The state disagrees.

“Because COVID-19 has killed over 2,000 Illinois residents and continues to infect more, and because the circuit court’s ruling threatens the governor’s authority to protect the public from the virus, the public interest requires an expeditious and definitive determination of this appeal by this court,” the state argued in the court filing.

The state is asking the Supreme Court to either order Bailey’s attorney Thomas DeVore to respond by Friday or halt McHaney’s ruling from taking effect until arguments can be held.

DeVore did not immediately return a request for comment Thursday.

At issue in this case is whether the Illinois Emergency Management Agency Act prevents a governor from declaring more than one state of emergency per disaster.

Governors historically have issued successive proclamations, according to the state. Democratic Gov. Pat Quinn did so in 2009 in response to the H1N1 virus and after flooding in 2011. Republican Gov. Bruce Rauner and Pritzker also responded to severe flooding in 2017 and 2019 respectively with successive proclamations.

In the court document, the state maintains this is legal.

The act does not specifically prevent a governor from doing so, according to the attorney general’s office, although it does not specifically permit it either.

Its only requirement is for a disaster to exist, the filing continued, so when the COVID-19 emergency concludes, Pritzker will be unable to continue using the extraordinary powers.

Without those disaster proclamations, the state argues, Illinois would be unable to quickly purchase gloves, gowns, masks and other personal protective equipment; prevent price gouging; establish alternative health care facilities such as the one at McCormick Place in Chicago; or deploy the National Guard.

Pritzker issued those proclamations — on March 9 and April 1 — because the novel coronavirus still qualifies as a disaster, the attorney general’s office continued.

And he ordered residents to stay at home due to internal data showing that action would prevent a spike in virus-related deaths, according to the court document.

Bailey, as a government employee, is already exempt from its provisions, the state added.

“While the circuit court order on its face pertains specifically to Bailey, the implications extend far beyond Bailey and jeopardize the health of Illinois residents throughout the state in several ways,” the office wrote.

McHaney’s ruling “threatens the legitimacy of the governor’s actions” as well as any further actions he deems necessary, according to the filing. And if the ruling is allowed to stand, the General Assembly would need to meet to determine what further steps are needed. That would be “risking the health of its members and staff,” the office argued.

The state also wrote that because Bailey’s win at the circuit court level inspired other residents to file related cases, this will cause a “patchwork of conflicting orders” from courts across Illinois.

“In light of these significant, time-sensitive, life-or-death public health concerns, and the potential restraint on the governor’s necessary authority to manage them given the circuit court’s (order),” it is important the Supreme Court take over this case, the attorney general’s office argued.

McHaney’s ruling “harms (Pritzker’s) ability to protect the other branches of Illinois government who have been relying on his emergency authority, the residents of Illinois who have been staying at home in order to protect themselves and each other during this crisis and the Illinois residents, including medical providers and other essential workers, who cannot stay home,” the state wrote in the court document.

“…While it may be stressful and frustrating to remain mostly at home, the modest harm to Bailey is shared by many, fully justified in the circumstances, and pales in comparison to the dire public consequences that (McHaney’s ruling) carries,” it added.