Downstate judge denies AG request to move lawmaker’s case to Sangamon County

By Rebecca Anzel Capitol News Illinois

Rep. Darren Bailey, R-Xenia, has amended his lawsuit challenging Gov. J.B. Pritzker’s authority to issue consecutive states of emergency and stay-at-home orders in response to the COVID-19 pandemic. In a revised lawsuit filed Wednesday, May 13, Bailey cites a 19-year-old memo from the office of then-Attorney General Jim Ryan that says the Illinois Emergency Management Agency Act allows a governor to wield expanded authority only “for up to 30 days.” ( photo)

SPRINGFIELD — A downstate judge on Friday, May 15, denied the attorney general office’s request to move to Sangamon County a Republican representative’s lawsuit challenging Gov. J.B. Pritzker’s authority to issue successive disaster proclamations.

Rep. Darren Bailey, of Xenia, filed his case on April 23 alleging the governor overstepped his power by declaring more than one state of emergency to address the COVID-19 pandemic.

Since then, Clay County Circuit Court Judge Michael McHaney ordered that Bailey should temporarily not be subject to Pritzker’s stay-at-home order, but an appeals court undid that ruling at Bailey’s request.

The attorney general’s office also unsuccessfully petitioned the Supreme Court to weigh in on the lawmaker’s allegations.

Now, McHaney has rejected that office’s petition to transfer Bailey’s case to Sangamon County.

The state argued the move was warranted because the county is the seat of Illinois government, the case has statewide implications and relevant witnesses are located in the county.

Thomas DeVore, Bailey’s attorney, argued in a court document that the state’s request reflects its “motion for substitution of judge cloaked as a forum change for ‘convenience.’”

Devore wrote that the appeal for venue change is being used as a “vehicle for Pritzker to forum shop for a favorable ear,” when such a request would properly be used as “a device to remedy a situation in which the existing forum is truly inconvenient for all parties.”

The shift from Clay County to Sangamon County would be “proper,” the state wrote in its motion, because Pritzker has an “official residence” in Springfield and the executive orders and disaster proclamations Bailey’s lawsuit disputes were officially issued there.

According to statute, the passage of laws and other official state actions must occur in Springfield. Even though Pritzker was last in the state capital to update residents about the government’s response to COVID-19 on March 16 and physically signed the documents in Chicago, they were entered into the state’s record in Springfield with the secretary of state’s office.

“Governor Pritzker maintains his official residence in Sangamon County, and does not reside in Clay County. The orders Governor Pritzker issued for the purpose of combating COVID-19 were issued in Sangamon County, not Clay County,” the attorney general’s office argued in its court filing. “… All of the documents, and the actions they memorialize, are intrinsically connected with Sangamon County.”

DeVore characterized the attorney general’s office referencing Pritzker’s official residence in Springfield as an “obfuscation at its best,” and alleged where the governor lives is not important for determining where Bailey’s lawsuit should be litigated.

“It should not escape this court that Pritzker does not allege he actually lives in Sangamon County,” he wrote in the court document. “Unless the Thompson Center has somehow moved to Sangamon County, given it seems to be the location of Pritzker’s daily press briefings, it would seem readily apparent he is actually residing in Cook County.”

The “relevant documents” mentioned by the attorney general’s office “can easily be printed,” DeVore argued. He added the office offered no information about who the “many unidentified witnesses” are, where they work and live or what knowledge they could offer the judge.

In its filing, the attorney general’s office wrote it was asking McHaney to rule the same way a Peoria County judge did in a case “advancing an identical legal theory to this one.”

Judge Derek Asbury ordered that because that lawsuit sought to declare Pritzker’s executive order “promulgated and issued from Sangamon County” unconstitutional, it made sense to move the case to that county.

On April 23, Bailey first alleged the governor overstepped his power by declaring more than one state of emergency to address the COVID-19 pandemic.

Now, in amended arguments, Bailey cites a memo from the office of Republican Attorney General Jim Ryan in 2001 that says the Illinois Emergency Management Agency Act allows a governor to wield expanded authority only “for up to 30 days.”

Pritzker first issued a disaster proclamation on March 9. Since then, he has extended that proclamation twice, most recently through May 30.

In the 19-year-old memo, senior assistant attorney general Michael Luke wrote that expanding those emergency powers to last more than 30 days “would render the limitation clause meaningless.” Taking into account the rest of the law, he added, a governor would need permission from the General Assembly for any extension.

“This Attorney General opinion lays bare the overreach of the executive branch being perpetrated by this gamesmanship,” Thomas DeVore, Bailey’s attorney, wrote in the revised lawsuit filed Wednesday.

While that document is not legally binding, DeVore said the “optics” of its existence “will be horrific for the governor’s office,” especially because the attorney general’s office did not disclose the memo to a judge sooner.

Pritkzer, during his daily COVID-19 update May 13 in Chicago, said current Democratic Attorney General Kwame Raoul “has not issued that (memo) to us,” and pointed out that the office is representing him in this case.

The disaster financing section of the act further supports that argument, Bailey alleges in the lawsuit. A governor is allowed to spend a certain pot of state money on a disaster, and, if the General Assembly is not in session, to transfer funds from other accounts as needed only “until such a time” as the Legislature “can convene in regular or extraordinary session.”

Raoul’s office previously argued that if Pritzker’s disaster proclamation was allowed to lapse on April 8, or 30 days after the first one was issued, it “would lead to absurd, unjust, and profoundly harmful results to a degree rarely, if ever, contemplated by an Illinois court.”

The law does not specify a governor cannot declare more than one disaster, the office argued in a court filing.

In each of Pritzker’s proclamations, he cites COVID-19 as a continuing public health disaster.

According to the IEMA Act, a disaster is a wide breadth of circumstances “requiring emergency action to avert danger or damage, epidemic … (or) public health emergencies. …”

DeVore, in an interview, said that is key. He does not contest Pritzker was legally permitted to issue the first proclamation, but said the following two were not allowed. A disaster exists, he said, only if there is a threat that requires emergency action to avoid.

And he argued the governor’s legal team is practicing legal gymnastics by building a 30-day deadline into each proclamation.