U.S. attorney says governor’s order may have overreached emergency powers

Bailey gains U.S. AG’s office as an ally

Federal attorneys urged court to knock lawsuit back to Clay County or rule in favor of Bailey

By REBECCA ANZEL
Capitol News Illinois
ranzel@capitolnewsillinois.com

SPRINGFIELD — A Republican representative gained an ally in his lawsuit challenging Illinois Gov. JB Pritzker’s authority to issue successive disaster proclamations.

The U.S. attorney general’s office asked a federal court to undo the state’s Thursday venue change in Xenia Rep. Darren Bailey’s case from downstate Clay County to the federal district courthouse in East St. Louis. Or, if the court declines to do that, federal authorities urged it to rule in favor of Bailey.

Hours before the attorneys were due to respond to Bailey’s request for Clay County Circuit Court Judge Michael McHaney to rule on his case, and one day before a hearing was set, the Illinois attorney general’s office moved the case.

Thomas Verticchio, senior attorney general, wrote in the office’s notice that Bailey alleged Pritzker’s stay-at-home and disaster proclamations violated his rights to religion, due process, interstate travel and “a Republican form of government” which are guaranteed by the U.S. Constitution.

Bailey’s attorneys called that action an effort to “judge shop.”

Five U.S. lawyers wrote in a 21-page filing Friday that the federal government does not “typically” get involved in cases challenging abuse of state law. But Bailey’s representatives, they continued, argued “a strong case” that Pritzker’s COVID-19 executive orders overstepped the emergency powers granted to him by the Illinois Emergency Management Agency Act.

“The orders at issue are not only of critical importance to the people of Illinois, they implicate a broader national issue about constitutional rights in the time of a pandemic,” they wrote in the document.

That overtone is not enough to warrant a federal court weighing in on Bailey’s case, though, the U.S. attorneys wrote. While the state “may conceive” of arguments that Pritzker’s actions violated the U.S. constitution, the lawsuit does not make any such allegations, they added, and Bailey “seems surprised to learn he might be implying” that.

Thomas DeVore, the representative’s lawyer, long alleged the IEMA Act defines a disaster as existing only if there is a threat that requires emergency action to avoid. According to multiple court filings, the law does not allow a governor to issue successful 30-day disaster proclamations.

The U.S. attorneys agreed, adding in their statement of interest that “it is not clear from the face of the act from where the governor derived his authority” to do so.

“The (U.S.) Constitution does not hobble states from taking necessary, temporary measures to meet a genuine emergency,” they wrote in the document. “…A pandemic does not excuse a state from following its own law governing procedures to protect the public health.”

If a court — federal or county — finds that Pritzker overstepped his authority, “real questions” must be asked “about whether the people of Illinois have been deprived of their liberties with (a) constitutionally adequate process,” the lawyers asserted in the document.

Any claims the governor violated the U.S. Constitution “likely” would be filed in a new lawsuit, not included in Bailey’s current case, they added.

A spokesperson for the Illinois attorney general’s office did not return a request for comment.

Bailey, in a text message, said he is “very pleased” the U.S. attorney general’s office took an interest in his case. He added, “justice is coming.”

In a two-page memo issued in late April, U.S. Attorney General William Barr instructed federal prosecutors across the country to investigate whether governors’ efforts to combat the novel coronavirus illegally encroached on Americans’ civil rights.

The document penned in support of Bailey’s lawsuit is likely following that directive. It was signed by Assistant Attorney General Eric Dreiband, Deputy Assistant Attorney General Alexander Maugeri, Special Counsel Eric Treene, Assistant U.S. Attorney James Cutchin, Assistant U.S. Attorney Peter Reed and the Southern District’s U.S. Attorney Steven Weinhoeft.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.

U.S. attorney for Southern District says governor may have overreached in emergency authority

Following is a press release issued by the Department of Justice on Friday.

The Department of Justice on Friday filed a statement of interest in an Illinois federal court in support of a lawsuit filed by Illinois state representative Darren Bailey challenging certain actions of Governor J.B. Pritzker in response to the COVID-19 pandemic.

The Statement of Interest is part of Attorney General William P. Barr’s April 27, 2020 initiative directing Assistant Attorney General Eric Dreiband for the Civil Rights Division, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic.

In response to the COVID-19 pandemic, the Governor of Illinois has, over the past two months, sought to rely on authority under the Illinois Emergency Management Agency Act to impose sweeping limitations on nearly all aspects of life for citizens of Illinois, significantly impairing in some instances their ability to maintain their economic livelihoods.  According to the lawsuit, the Governor’s actions are not authorized by state law, as they extend beyond the 30-day time period imposed by the Illinois legislature for the Governor’s exercise of emergency powers granted under the Act.

Representative Bailey brought his case in Illinois state court and elected only to assert state law claims.  On May 15, the presiding state court judge ordered Bailey to file his motion for summary judgment by May 18 and instructed the Governor to respond to it by May 21.  A hearing on the motion for summary judgment was scheduled to take place in state court today. Yesterday, however, instead of responding to Bailey’s motion for summary judgment, the Governor removed the case to federal district court.

“The Governor of Illinois owes it to the people of Illinois to allow his state’s courts to adjudicate the question of whether Illinois law authorizes orders he issued to respond to COVID-19,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division.  “The United States Constitution and state constitutions established a system of divided and limited governmental power, and they did so to secure the blessings of liberty to all people in our country.  Under our system, all public officials, including governors, must comply with the law, especially during times of crisis.  The Department of Justice remains committed to defending  the rule of law and the American people at all times, especially during this difficult time as we deal with COVID-19 pandemic.”

“However well-intentioned they may be, the executive orders appear to reach far beyond the scope of the 30-day emergency authority granted to the Governor under Illinois law,” said Steven D. Weinhoeft, the U.S. Attorney for the Southern District of Illinois.  “Even during times of crisis, executive actions undertaken in the name of public safety must be lawful.  And while the people of Illinois must be physically protected from the effects of this public health crisis, including by complying with CDC guidelines their constitutionally guaranteed rights and liberties must be safeguarded as well.”

In its statement of interest, the United States explains that this dispute belongs in Illinois state court, and that Representative Bailey has raised substantial questions as to whether the Governor’s current response to COVID-19 is lawful.  Although the complaint does not raise any federal constitutional claims, the statement explains, “It is up to the Illinois courts to rule on Plaintiff’s claims, which, because of the sweeping nature of the Orders, may affect millions of lives and raise significant constitutional concerns in other litigation.”  Even in the face of a pandemic, states must comply with their own laws in making these sensitive policy choices in a manner responsive to the people and, in doing so, both respect and serve the goals of our broader federal structure, including the guarantee of due process in the U.S. Constitution.

The federal case is Bailey v. Pritzker, No. 3:20-cv-474.