A hearing Friday in a lawsuit state Rep. Darren Bailey filed to challenge Gov. J.B. Pritzker's executive orders could lead to a full-blown appeal.
Clay County Judge Michael McHaney sided with Bailey, R-Xenia, on two counts regarding the governor’s orders just before the Independence Day Holiday weekend. The judge ruled July 2 that any COVID-19 executive order beyond April 8 is invalid. McHaney didn't rule on the first count, which deals with the definition of an emergency and if the COVID-19 meets that definition.
A filing late Tuesday from Illinois Attorney General Kwame Raoul, who is representing Pritzker and the state, calls for the Clay County Court to find Count I moot.
Scott Szala, an adjunct professor at the University of Illinois with a focus on Illinois constitutional law, said the state's move was the first step to an appeal.
“There’s no finality to Count I,” Szala said. “It’s still theoretically pending absent adjudication on behalf of the government. It may seem counterintuitive the way the process worked out, but the government is attempting to take the process upstairs.”
In discussions about other cases in the July 2 hearing, and whether arguments in favor of the governor’s orders apply to other challenges, Senior Attorney General Tom Verticchio said: “the executive orders have changed over time.”
“The entire factual landscape has changed over time,” he said.
“These executive orders change every week,” McHaney said.
“They change approximately every 30 days, the ones that we're dealing with,” Verticchio said. “And I know the courtroom thinks that's funny, but they change about every 30 days.”
“And they're getting ready to change again because now we have a new spike. Don't we?” the judge said.
Verticchio discussed the need for finality to the case so it can move forward.
“Oftentimes when I say things, there's laughter in this courtroom, but these are serious matters and the appellate court should have the opportunity to hear from which one of these parties lose and the only way we're going to get there is if we have finality,” he said.
Verticchio then went on to defend the governor’s orders as necessary to combat the spread of COVID-19, which he said has not gone away. He argued such powers were necessary because of the emergency from the pandemic. He said a different example is a “terrorism attack where there was a nuclear event.”
“Are you comparing thermal nuclear war to the flu?” McHaney said. “When I was referencing what if this was an Ebola virus with a mortality rate approaching 90 to 100 percent, that’s what I was referring to. Not COVID-19 with a mortality rate, a survival rate of 98 plus percent, if not 99 percent plus survival rate.”
The judge then went on to question other statistics around COVID-19.
“How many of these positive tests are false? How much of this data is being manipulated for whatever reason, for whatever agenda that the public is denied from discovering under your argument?” he asked.
He then ruled against the governor on two counts.
“Illinois citizens cannot be mandated to cede their constitutional rights to some alleged expert,” he said. “How is the defendant qualified to tell Illinois citizens what, whether they can play a sport, stay at home, or operate a business?”
McHaney said the governor was exercising “absolute power and it is unconstitutional.”
Szala cautioned taking the Clay County ruling as a sign the governor’s orders are void.
“It is confusing and a circuit court judge does have the power to have an effective order that is carried out in other counties,” Szala said, but he notes other jurisdictions have ruled against temporary restraining orders against the governor’s powers.
Bailey’s attorney, Thomas DeVore, argues the circuit court’s ruling is good for the entire state because it’s a summary judgment, not a ruling on a temporary restraining order. DeVore has said McHaney’s ruling the governor’s orders are void is in effect until there’s action at the appellate court reversing the lower court decision.
Szlala said there are other judges in other jurisdictions who may differ.
“I just think that the best advice that one would take is to take a cautious approach to that decision until an appellate court ruling comes down,” he said.
A circuit court hearing to bring finality to the case is scheduled for July 17. It’s then expected to be filed to the appellate court.