On the same day the Illinois General Assembly scheduled to reconvene next week in Springfield, a downstate lawmaker amended his lawsuit that accuses the governor of usurping emergency-management powers that are reserved for the legislature.
House and Senate leaders called a special session on May 20 to 22 to discuss budget and COVID-19 related issues.
Lawmakers could try to resolve some of the issues raised in Rep. Darren Bailey’s amended complaint if they vote to clarify Gov. J.B. Pritzker’s authority under the Illinois Emergency Management Agency Act, which Pritzker has invoked in his executive orders.
While some of the arguments are similar to his initial complaint filed in Clay County, the amended complaint refers to a 2001 informal opinion prepared by the chief of then-attorney general James E. Ryan’s opinions bureau during an outbreak of foot-and-mouth livestock disease in Europe.
In the letter to the state Emergency Management Agency’s director, then-senior assistant attorney general Michael J. Luke wrote that he interpreted the governor’s emergency powers under IEMAA to be limited to 30 days.
“A construction of [IEMAA section 7(a)(1) to allow the governor to extend the 30-day period would render the limitation clause meaningless,” Ryan wrote. “A more reasonable construction, taking into consideration the other provisions of the [a]ct, is that the governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.”
Bailey’s attorney Thomas G. DeVore said in an email that the legislature’s decision to reconvene has “[z]ero effect” on his amended lawsuit.
“They can’t fix it retroactively. If they try, it exposes the state to huge liability potentially. And they can’t get around the definition of disaster,” DeVore wrote.
In his amended complaint, Bailey argues Pritzker lacks authority under the IEMA Act to declare successive disaster proclamations that cite the same underlying disaster. He also argues the authority to quarantine and restrict citizens’ movements is afforded to the Illinois Department of Public Health and local health departments.
A spokeswoman for Illinois Attorney General Kwame Y. Raoul stood by the office's position that the governor's orders are enforceable and brushed off the 2001 memo presented to the court by Bailey.
"The informal opinion, which courts have no obligation to follow or consider, was issued by a member of Attorney General Ryan’s administration 20 years ago to address specific questions posed at that time that were related to foot-and-mouth disease impacting livestock," Annie Thompson wrote. "That informal opinion has no bearing on the current COVID-19 pandemic that has claimed the lives of nearly 4,000 Illinois residents, or any of the matters being litigated at this time."
The amended complaint in the 4th Judicial Circuit is Darren Bailey v. Jay Robert Pritzker, 20 CH 6.
Related stay-at-home suits removed to federal court
Bailey’s attorney DeVore, with the Silver Lake Group Ltd. in Greenville, also represents four clients in separate suits against the state, including three business owners and another state representative.
On Monday, the state filed to remove all four lawsuits to federal court, as they involve questions of federally protected due process rights.
The state’s motions cite 28 U.S. Code 1331, which grants “federal original jurisdiction of all civil actions arising under the [c]onstitution, laws, or treaties of the United States.”