The showdown over Gov. J.B. Pritzker's emergency authority and that of the Illinois State Legislature will likely be decided by a federal judge.
Shortly after Clay County Judge Michael McHaney ruled that Pritzker exceeded his authority by extending the state’s stay-at-home order, the state announced it might seek to have the appeal heard in federal court. But before it does, the governor’s office says the downstate judge must “clean up” his ruling.
Earlier this month, Illinois Attorney General Kwame Raoul filed a motion in the Southern Illinois county asking that McHaney dismiss the sole remaining unresolved count from the legal challenge filed against the governor by State Rep. Darren Bailey.
“There is no final judgment from which the governor can appeal,” the motion declares.
Bailey, a first-term Republican from downstate Xenia, sued Pritzker in May, shortly after the governor issued executive orders extending his so-called stay-at-home order from April 30 to the end of May. Some of those restrictions are still in effect as the state continues to move through its five-phased reopening plan.
The governor says he can do that because state law and the Illinois Emergency Management Agency Act give him the power to do so. Pritzker and Raoul claim the governor is entitled to continue using emergency powers over the state for as long as the governor believes a disaster situation remains in place as long as they re-declare the disaster every 30 days.
Bailey and his attorney, Tom DeVore, argued state law only gives the Illinois Department of Public Health authority to close businesses in response to a health threat. County health departments, they say, should also play a role. Businesses, Bailey and DeVore assert, should then have the ability to challenge those closure orders in court.
However, while Bailey and his attorney initially sought a court injunction seeking to limit the governor’s powers, they later withdrew that request.
At the time, Pritzker spokeswoman Emily Bittner downplayed the significance of the judge’s ruling saying, “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.”
Pritzker also addressed the decision Wednesday, saying in an unrelated press conference that "multiple courts have issued rulings."
"This applies to one person, this ruling that has taken place," Pritzker said. "By the way it hasn't even been entered as a final order because the judge held on one of the three items he needed to rule on and then went on vacation. So I know there may be a ruling in the next few days, but suffice to say that even with the final ruling it only applies to one plaintiff that was represented there."