Bailey v. Pritzker: A Summary of the Arguments Made Under the Illinois Emergency Management Act and the Department of Public Health Act

Post Authored by Alexandra M. Verven

On April 27, 2020, the Circuit Court of Clay County heard oral arguments in the Darren Bailey v. J.B. Pritzker, 2020 IL App (5th) 200148-U matter, and ruled in favor of Plaintiff, Representative Darren Bailey of the 109th District of (Southern) Illinois. The ruling granted Plaintiff’s request for a temporary restraining order enjoining Defendant Governor J. B. Pritzker from enforcing the stay-at-home order against Plaintiff and from further entering any similar orders against Plaintiff. That same day, Governor Pritzker filed an interlocutory appeal. Though no longer before the 5th District Appellate Court (since Plaintiff moved to vacate the TRO and it was remanded back to the circuit court), it is worth looking at the arguments made on both sides under the relevant statutes as there may be more litigation on these same issues in the near future.

The arguments made in the Bailey matter come under the Illinois Emergency Management Act (“IEMA”) (20 ILCS 3305) and the Department of Public Health Act (“DPHA”) (20 ILCS 2305). The IEMA permits the Governor to proclaim a disaster (epidemic included) triggering his or her emergency powers for a period of 30 days. 20 ILCS 3305/7. These powers include controlling: ingress/egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein. 20 ILCS 3305/7(8). Under the DPHA, the Illinois legislature granted the IDPH with the “supreme authority in matters involving of quarantine and isolation” allowing it to “declare and enforce [said] when none exists,” and to “modify or relax quarantine or isolation when it has been established.” 20 ILCS 2305/2.

Plaintiff relied on the plain language of these statutes to support the argument that the Governor did not have the authority to implement a stay at home order (i.e. quarantine and isolation) as this was the exclusive job of the DPH but also exceeded his authority by extending the shelter order for more than 30 days in violation of the IEMA. Plaintiff highlighted the fact that the IEMA makes no mention of quarantine or isolation with respect to the emergency powers of the Governor. Rather, the Act discusses restriction of movement within the disaster area, which arguably differs from that of the authority to implement a quarantine and isolation plan and is the job of the DPA to declare, enforce, modify or relax. Of further concern for the Plaintiff was the fact that Governor Pritzker extended the stay at home order, past his 30-day authority to do so. Plaintiff argued that the IEMA does not clothe the Governor with the unlimited authority to declare “serial proclamations” of disaster. If the legislature intended for the Governor to have emergency powers extended for the duration of the disaster, the Act would have said so instead of providing a 30-day limit.

Conversely, Defendant pointed out that the IEMA was passed for the purpose of preserving the lives and property of the people in the State and protecting the public peace, health, and safety in the event of a disaster, and therefore gave the Governor the power to act in accordance with these purposes. 20 ILCS 3305/2(a). Defendant acknowledged the existence of the DPHA but explained that under the current circumstances of COVID-19, there is not enough time to go through those procedures, wherein counsel is appointed, a hearing is held, and then a determination is made as to whether a stay at home order is required. Defendant argued that because COVID-19 presents a situation of urgent circumstances requiring prompt action, the best solution for the pandemic is to go through IEMA, just as Governor Pritzker did. In analyzing the language of Section 7 of IEMA, Defendant elaborated that so long as the Governor declares a disaster through proclamation (as he did on March 9th and April 1st), his ability to exercise his emergency powers is triggered for 30 days, each time. The guardrail being that the Governor is required to declare a disaster, in good faith, or else it will be challenged just as in the present case. Nowhere in Section 7 of IEMA are there any limitations regarding the Governor’s ability to declare multiple successive proclamations, unlike in Section 11 (local disaster declarations) where it specifically says a local disaster declaration “shall not be continued or renewed for a period in excess of 7 days except by or with the consent of the governing board of the political subdivision.” 20 ILCS 3305/11. Without any such language, the Governor is allowed to declare (in good faith) continual states of disaster through proclamation and exercise his emergency powers, which arguably includes implementing a shelter order in an effort to protect the public at large.

Although Representative Bailey moved to vacate the TRO which granted him exemption from Governor Pritzker’s executive orders, it will be interesting to see if any other individuals or groups file similar complaints if the shelter order is extended again or limitations on the public are further implemented.

About the Author:

Alexandra VervenAlexandra Verven is an associate attorney with the law firm of Barker, Castro, Kuban & Steinback LLC. Alexandra has concentrated her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. Her medical malpractice defense work involves pre-litigation investigation and counseling, as well as guidance and recommendations to her clients in various risk management strategies. She also handles a wide variety of civil defense litigation where she represents not-for-profit organizations and health care facilities in cases involving premises liability and personal injury. Prior to joining Barker, Castro, Kuban & Steinback LLC, Alexandra worked as a law clerk at one of Chicago’s prevalent plaintiff litigation firms, where she gained invaluable experience she uses to defend her current clients.

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