Bailey asks judge’s permission to add fifth argument to lawsuit

Bailey asks judge’s permission to add fifth argument to lawsuit

Representative seeks to ensure any further COVID-19 disaster proclamations do not affect Clay County

Capitol News Illinois

SPRINGFIELD — Republican state Rep. Darren Bailey asked a judge Wednesday for permission to lodge a fifth complaint in his lawsuit against Gov. JB Pritzker: Any further disaster proclamations should not affect Clay County.

The Xenia representative should be allowed to amend his case, he argued in a court document, because it is still pending and “additional facts and science continues to accrue.”

According to the Illinois Department of Public Health, there have been nine confirmed cases of COVID-19 and zero deaths resulting from the virus in Clay County as of Wednesday. Just less than 1,500 tests had been conducted in the county of about 14,000 residents.

Those statistics indicate the novel coronavirus does not meet the definition of a public health emergency as defined by the statute Pritzker cites as granting him authority to utilize emergency powers, Bailey argued in the new filing.

The representative conceded that the first part of the definition of a disaster was met — the illness “is believed to be caused by...the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin.”

But, Bailey’s attorney Thomas DeVore wrote, Clay County’s data does not support the second part of the criteria. There is not a “high probability” that COVID-19 will lead to “a large number of deaths” or “a large number of serious or long-term disabilities” for county residents.

It is also unlikely that there will be “widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people” in Clay County, DeVore wrote.

Therefore, if Pritzker issues another disaster proclamation on July 26, as Bailey argued in the court document the governor likely will, it would not be valid because “the facts presently do not satisfy the (Illinois Emergency Management Agency Act)’s definition of a public health emergency.”

This potential new allegation is asking Clay County Circuit Court Judge Michael McHaney to prevent any of Pritzker’s further orders from affecting residents in that area. It also asks the judge to agree the governor does not have any valid emergency powers in the county and his June 26 declaration is not enforceable.

Bailey is also asking the state to reimburse him for “costs incurred in this matter.”

McHaney will have to decide whether to allow this argument to be included in the representative’s lawsuit. A hearing date has not yet been set.

DeVore also filed a document responding to the state’s request that the judge throw out the last active issue — whether the COVID-19 pandemic met the definition of a disaster in Pritzker’s April 30 state of emergency.

The attorney general’s office previously argued in a court document that because McHaney ruled in Bailey’s favor on two of the four original arguments, that last matter is “moot.”

“Such a proposition could not be further from the truth,” DeVore wrote in a document, also filed Wednesday. The effects of the judge’s previous ruling do not directly address the requests made in relation to the remaining issue.

“Bailey’s response and his effort to amend his complaint are legal nonsense that demonstrate his only goal is to avoid an appeal in this case,” Pritzker’s general counsel Ann Spillane said in an email.

Until all matters are resolved, officials with the attorney general’s office cannot ask a higher court to review McHaney’s ruling.


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.


Rebecca AnzelRebecca Anzel

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