Clay County Judge Michael McHaney has declared Governor J.B. Pritzker’s Executive Orders void after the first order was issued back in March, and his executive power lapsed on April 8th. In a summary judgement, McHaney says that any executive orders that took effect after April 8th relating to COVID-19 are void citing Section 7 under the Illinois Emergency Management Authority Act in the state constitution.
The lawsuit was originally filed by Republican State Representative Darren Bailey of Xenia in late April, who filed an injunction to stop Pritzker’s executive orders from taking effect any further. The case had been remanded back to Clay County court earlier this week by a federal judge.
The court also declared in its decision today that the governor had no constitutional authority to “restrict a citizen’s movement or activities and/or forcibly close business premises” under the executive orders. The judgment does say that the authority to restrict movements and close businesses had been expressly delegated to the Department of Public Health under the IDPH Act and county code authority.
Bailey’s lawyer, Thomas Devore’s amended complaint was also accepted by the court. The amended complaint allows the court’s decision to be a representative action for all citizens of the state, rather than just the citizens of Clay County. McHaney declined to issue a declaratory judgement in the case.
Devore is also working a lawsuit in Clay County of two parents who have sued the state for requiring their children to wear face masks at schools when instruction resumes in the Fall. Devore removed his temporary restraining order in the court today on that case. It is set to proceed later next week.
In the face mask lawsuit, which was filed Tuesday, the couple alleges that the IDPH and ISBE “have promulgated unlawful, arbitrary and capricious mandates” that place an “unreasonable burden” on the family’s three children.
The family’s suit says that they have “protectable rights and interests at stake to be free from unlawful, arbitrary and capricious rule making,” and that the rules that state officials have formulated are “unlawful,” since they are only aimed at preventing the spread of coronavirus.
Emily Bittner of the Governor’s Office told Capitol Fax that Pritzker’s legal team will pursue appeal in Bailey’s case: “Every other court – both state and federal – that has considered these exact issues has agreed with the administration that executive orders protecting Illinoisans’ health and safety are well within the governor’s constitutional authority. This includes a federal court decision earlier today. Governor Pritzker will continue to prioritize Illinoisans’ health and safety first, and the people of Illinois have taken extraordinary care to follow health experts’ advice, which is why our state has the lowest positivity rate in the Midwest. While this one county circuit court has gone a different direction from all of the other cases, the administration will ultimately seek to appeal this ruling, and the Governor will continue to urge the people of Illinois to exercise constant vigilance and keep doing what has worked: wash your hands, watch your distance and wear your face covering.”
The Illinois Attorney General’s Office has not issued a statement about its timeline to appeal the decision on Bailey’s case.