Downstate judge rules Pritzker's COVID-19 orders are void

SPRINGFIELD - All of Gov. J.B. Pritzker's executive orders since April 8 pertaining to the coronavirus pandemic are void because he exceeded his authority when he used his emergency powers for more than 30 days, a Clay County judge ruled Thursday.

The Illinois Department of Public Health instead has "supreme authority" to close businesses and restrict residents' activities in a public health crisis, Circuit Court Judge Michael McHaney added.

His decision, which he expanded to apply to all Illinoisans, is the latest ruling in Xenia Republican Rep. Darren Bailey's lawsuit. He argued in his April 23 filing that the governor could not issue successive disaster proclamations to manage COVID-19.

The attorney general's office is likely to ask a higher court to reconsider the order. Thomas DeVore, Bailey's attorney, said business occupancy limitations and other restrictions can no longer be enforced.

A spokeswoman in the governor's office, though, said the judge's ruling is one "contradicted by multiple other" judges. She added "it is not a final judgement and has no injunction." Phase 4 of the reopening plan is in effect, she said.

McHaney did not agree with all of the points Bailey alleged, however. He rejected the argument that COVID-19 did not satisfy the definition of a "disaster," as outlined in the law Pritzker cited in his executive orders.

"One problem with the governor's approach was that he acted as if he knew better how people should behave," Bailey said in a statement. "Instead of presenting facts and calling on people to respond in a collaborative way, hard and fast rules were imposed."

Bailey entered the court Thursday afternoon and walked out to applause from a group of supporters who, the representative said, came from across Illinois. Several were wearing gray shirts that said, "My governor is an idiot."

The ruling in his lawsuit, he told reporters after the hearing, is beneficial for all Americans - governors' COVID-19 responses should not be unilateral. Instead, he suggested, local departments of health should make determinations "county by county."

"Every other court - both state and federal - that has considered these exact issues has agreed with the administration that executive orders protecting Illinoisans' health and safety are well within the governor's constitutional authority," a Pritzker representative said in an email.

"While this one county circuit court has gone a different direction from all of the other cases, the administration will ultimately seek to appeal this ruling, and the governor will continue to urge the people of Illinois to exercise constant vigilance and keep doing what has worked: wash your hands, watch your distance and wear your face covering."

DeVore said the attorney general's office, which represented Pritzker in this case, could have asked the judge to suspend enforcement of his order but did not. Unless a higher court overturns McHaney's order, it will stand, he said.

A representative for Attorney General Kwame Raoul said officials are "reviewing" McHaney's order and "evaluating our options."

DeVore said the attorney general is "supposed to be representing the people of Illinois," and he is "disappointed" that Raoul has been "fighting 13 million people that he's supposed to have a duty to protect."

Bailey's case was in Clay County court because a federal judge returned it there Monday, denying a request by the attorney general's office for it to be heard in federal court.

Accepting jurisdiction of the lawsuit would amount to "judicial overreach," U.S. Magistrate Judge Gilbert Sison wrote.

He noted in his 16-page ruling he was analyzing only whether Bailey alleged his U.S. constitutional rights were violated and therefore his case could be decided by a federal judge, not whether "the enormity of the issues raised" in the case had merit.

"The stakes are high on both sides of this litigation," the judge wrote. "There is no easy balance between protecting the public from a silent, fast-spreading, novel virus and preventing great social upheaval and the heavy strain of economic and financial uncertainty."

When the attorney general's office moved Bailey's case from Clay County to a federal court, it argued the representative claimed his freedoms of religion, due process, interstate travel and "a Republican form of government" were violated by Pritzker's successive disaster proclamations.

Bailey's attorney responded in a court document that the venue shift was a "delay tactic" that was not supported by the lawsuit's facts.

Sison, in his opinion, wrote that while "at first blush" the representative did not explicitly cite the U.S. Constitution in his case, the state's lawyers could infer that "to a certain degree."

He also admonished Bailey's attorney for writing an ambiguous argument. The representative seems to "acknowledge" Pritzker's actions violated his constitutionally-protected rights, but did not specify whether he was referring to the U.S. or Illinois constitutions.

Bailey's "argument that this is a case that clearly raises no federal claims is too confidently stated," the judge wrote.

Ultimately, Sison decided that the "crux" of the representative's lawsuit "clearly ... is the scope of the governor's power under the statutory scheme established by the Illinois legislature."

He also denied Bailey's request that the state pay "reasonable fees and costs" associated with its venue shift.

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