AG asks Clay County judge to rule on last issue in Bailey’s lawsuit

SPRINGFIELD — The Illinois attorney general’s office on Tuesday night asked a downstate judge to address the one outstanding issue in Rep. Darren Bailey’s lawsuit challenging Gov. JB Pritzker’s executive orders related to the COVID-19 pandemic.

Until Clay County Circuit Court Judge Michael McHaney decides whether Pritzker’s April 30 emergency declaration correctly defines COVID-19 as a disaster, the state is procedurally barred from asking a higher court to reconsider the Xenia Republican representative’s lawsuit.

On July 2, the judge sided with Bailey on two of the four arguments he presented in his case, nullifying all of the governor’s executive orders related to the novel coronavirus pandemic since April 8. His ruling also declared that the Illinois Department of Public Health has the “supreme authority” to close businesses and restrict residents’ activities in a public health crisis.

Bailey, Pritzker’s office and legal experts disagree on the scope of the order — some assert it applies statewide while others maintain it affects only Clay County.

In a court document filed around 10:30 p.m. Tuesday, the attorney general’s office also raised a question about whether McHaney had authority to rule in the case. The federal court that denied the state’s request to take over the lawsuit did not formally hand the case back to the Clay County circuit court until July 6, four days after McHaney handed down his order.

The one active issue in Bailey’s lawsuit is “moot” and should be dismissed, the attorney general’s office argued, because any ruling “would not have any practical effect.”

The points raised in the representative’s arguments were “incorporated” into the two issues he won, and the judge’s order effectively rendered the April 30 disaster proclamation void, the attorney general’s office wrote.

McHaney denied Bailey’s request to issue a ruling without a trial that COVID-19 did not meet the definition of a disaster, but the judge never formally ruled on that matter. This last issue could result in a full legal proceeding, depending on what the judge decides.

With McHaney having “expressed (his) views on the merits of this case,” the attorney general’s office wrote, the governor requests a quick ruling so the state has a chance to make a prompt appeal.

A hearing is set for July 17 to address the state’s request.

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