Since its filing on April 23, 2020, Bailey v. Pritzker, No. 20 CH 6, the bellwether case challenging the Illinois governor’s authority to extend his Stay-at-Home Order has had more twists than a corkscrew. First, on April 27, 2020, Clay County Circuit Court Judge Michael McHaney issued a temporary restraining order enjoining the enforcement of the governor’s March 20, 2020, Stay-at-Home Order (and any similar orders) against Illinois Rep. Darren Bailey (R-Xenia), the individual plaintiff in the lawsuit. Wasting no time, Illinois Attorney General Kwame Raoul (attorney general) filed a notice of appeal that evening to the Fifth District Appellate Court. The attorney general chased the notice of appeal with an emergency motion for direct appeal with the Illinois Supreme Court, arguing the public interest required Illinois’ highest court to decide the case. On May 1, 2020, before the appellate court could rule, Rep. Bailey agreed to vacate the temporary restraining order, thereby mooting any appeal.

Unshaken, the attorney general filed a supplemental emergency motion with the Illinois Supreme Court asking the high court to issue a “supervisory order” and to stay the circuit court proceedings until it rendered its decision, arguing the underlying question of the governor’s authority to extend his order is not moot, and, in any event, the case falls within the “public interest exception” to the mootness doctrine. On May 11, 2020, the Illinois Supreme Court denied the State’s request for a supervisory order.

In his daily press conference, Gov. Pritzker indicated that the Illinois Supreme Court’s decision turned on the question of ripeness:

“I think it was the right thing to do for the AG to seek the Supreme Court’s intervention. But the Supreme Court is not saying that it’s not going to rule on this ever. They’re just saying that they just don’t want to skip over the appellate court, is my understanding.”

On May 13, 2020, Rep. Bailey amended his complaint in the Clay County Circuit Court.  Distilled to its essence, the amended complaint alleges not only that Gov. Pritzker exceeded his authority under the Illinois Emergency Management Agency Act by declaring successive 30-day disaster proclamations (as stated in his original complaint), but also that the governor violated the Illinois Department of Public Health Act by requiring Illinois citizens to “quarantine” and “isolate” without obtaining their consent or an emergency court order as required by the Illinois Department of Public Health’s procedures. Moreover, the amended complaint mixes new evidence in the form of a 2001 opinion, written by then-Senior Assistant Attorney General Michael Luke, under former Attorney General Jim Ryan, to former Illinois Environmental Protection Agency Director Michael Chamness. According to the amended complaint, the 2001 opinion states that the governor’s exercise of emergency powers under the Illinois Emergency Management Act are limited to 30 days, and that any extension thereof requires legislative approval.

The attorney general has since responded that the 2001 advisory opinion as well as an April 2020 memorandum authored by David Robinson, Chief Deputy Director for the Illinois Appellate Prosecutor, which suggested that the governor’s extended order appeared to exceed the 30-day limit of the Illinois Emergency Management Agency Act; have no legal legs and are furthermore contradicted by relevant court rulings.

On May 15, 2020, Judge McHaney denied the attorney general’s motion to transfer the lawsuit from Clay County to Sangamon County. The attorney general argued that transfer was appropriate because the Office of the Governor, relevant documents, and potential witnesses, are all housed in Springfield, Ill., which is located in Sangamon County, and, moreover, Peoria County Circuit Court Judge Derek Asbury had just three days earlier transferred a nearly identical case to Sangamon County on the same grounds. See Running Central, Inc. v. Pritzker.

Never afraid to go against the grain, Judge McHaney did not water down his sentiments, as he addressed the State:

“Now, I’m not accusing you, defense, of judge-shopping, but if it walks like a duck and quacks like a duck … Judge Asbury may be the greatest judge who walked the earth, but he ain’t got no authority over me.”

On May 18, 2020, Rep. Bailey moved for summary judgment on his claims. On May 21, 2020, one day before Judge McHaney was scheduled to rule on the merits of the case, the attorney general removed the litigation to federal court asserting that the amended complaint alleged deprivations of Rep. Bailey’s “federal constitutional rights” purportedly caused by “actions taken under color of state law.” Judge McHaney may have anticipated the attorney general’s move when he noted during the parties’ prior hearing that other lawsuits challenging the governor’s executive order are “whisked to federal court” when they invoke issues of federally protected due process. Rep. Bailey’s counsel must also have expected the removal as they promptly filed a motion to remand the case back to state court, arguing that the claims “are grounded exclusively in and predicated on the construction of Illinois statutes,” and the pleadings do not “make any references to the United States Constitution or Acts of Congress.” In another surprise twist, the U.S. Attorney for the Southern District of Illinois, Steven Weinhoeft, filed papers supporting Rep. Bailey’s request for remand, stating “[m]ere federal implications from resolution of a state law claim have never been sufficient to justify removal to a federal court.”

In the meantime, Rep. Bailey’s case was not the only thing that was removed. On May 20, 2020, in his first time back to Springfield since the pandemic, Rep. Bailey himself was bounced from the House of Representatives’ special session for refusing to wear a face mask, in violation of a House rule passed that day.

Rep. Bailey’s case, which is now pending in the Southern District of Illinois, No. 20 C 474, will be heard on his request to remand the action back to Clay County Circuit Court. If it stays, the federal forum may not not bode well for Rep. Bailey as at least one other federal judge in the Northern District of Illinois previously upheld the Governor’s order, rejecting the same legal arguments proffered by Rep. Bailey. See The Beloved Church v. Pritzker. On the other hand, if remanded back home to Clay County, the outcome is also likely predetermined.

On May 22, 2020, Judge McHaney granted another temporary restraining order enjoining enforcement of the governor’s order, this time in favor of a Clay City tanning salon and its owner. See Mainer v. Pritzker. Judge McHaney dispensed his ruling with the following strong words:

“Make no mistake, these executive orders are not laws. They are royal decrees. Illinois citizens are not being governed, they are being ruled. The last time I checked, Illinois citizens are also Americans and Americans don’t get ruled. The last time a monarch tried to rule Americans, a shot was fired that was heard around the world. That day led to the birth of a nation consensually governed based upon a document, which ensures that on this day in this American courtroom tyrannical despotism will always lose and liberty, freedom, and the constitution will always win.”

No doubt partisan spirits will continue to ferment as this legal controversy finally comes to a head.

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