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01
No. __________ E-FILED
8/10/2020 1:04 PM
Carolyn Taft Grosboll
IN THE SUPREME COURT CLERK
SUPREME COURT OF ILLINOIS

DARREN BAILEY, ) On Motion for Supervisory Order

) under Illinois Supreme Court
Plaintiff-Respondent, ) Rule 383,
)
and ) From the Circuit Court for the
) Fourth Judicial Circuit, Clay
THE HONORABLE JUDGE ) County, Illinois, No. 2020 CH 6,
MICHAEL D. McHANEY, )
) The Honorable
Respondent, ) MICHAEL D. McHANEY,
) Judge Presiding.
v. )
)
GOVERNOR JAY ROBERT )
PRITZKER, in his official capacity, )
)
Defendant-Petitioner. )

EMERGENCY MOTION FOR SUPERVISORY ORDER

UNDER ILLINOIS SUPREME COURT RULE 383

On July 2, 2020, the Circuit Court of Clay County entered an unenforceable

and nonappealable partial summary judgment order against Defendant-Petitioner

J.B. Pritzker in his official capacity as Governor of the State of Illinois. On August

7, 2020, that court ordered the Governor to appear in the Clay County Courthouse

on Friday, August 14 and show cause why he should not be held in indirect civil

contempt for his purported disregard of the July 2 order. The Governor requests

that this Court exercise its supervisory authority under Illinois Supreme Court Rule

383 on an emergency basis to immediately stay the contempt hearing set for

August 14, 2020, pending the resolution of this motion. Additionally, the

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Governor asks this Court to exercise its supervisory authority to answer the

underlying legal question raised by this case, which is whether the Governor acted

within the scope of his authority under the Illinois Emergency Management Agency

Act (“Act” or “IEMAA”), 20 ILCS 3305/1 et seq., and Illinois Constitution in issuing

disaster proclamations and executive orders in response to the Covid-19 pandemic.

INTRODUCTION

The world is in the throes of an “extraordinary public health emergency”

brought on by Covid-19, “a novel severe acute respiratory illness,” S. Bay United

Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J.,

concurring), that has infected more than five million Americans and killed more

than 160,000. In such circumstances, “[o]ur Constitution principally entrusts the

safety and the health of the people to the politically accountable officials of the

States to guard and protect.” Id. (cleaned up).

In Illinois, the People and their elected representatives have placed that

responsibility in the Office of the Governor by granting him the constitutional and

statutory authority to declare and respond to public health emergencies. In

particular, the IEMAA authorizes the Governor to respond to public health

emergencies by issuing statewide disaster proclamations and exercising emergency

powers for 30 days thereafter. The Governor first declared the Covid-19 pandemic a

disaster on March 9, 2020, and then again on April 1, April 30, May 29, June 26,

and July 24. These multiple and successive proclamations are consistent with the

IEMAA because the Governor has exercised emergency authority for no more than

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30 days following each proclamation and because the proclamations were issued

during a public health emergency.

The Governor’s emergency proclamations and orders have prompted a series

of civil lawsuits by Illinois residents and businesses, including the instant action

brought by Respondent Darren Bailey. The vast majority of these cases have been

overseen by the courts in accordance with proper procedures and have resulted in

reasoned decisions adjudicating the rights of the parties to the action.

Unfortunately, the same has not been true for the ongoing proceedings in this case.

From the outset, the circuit court has departed from ordinary procedures and

shown an open hostility to the Governor, his emergency actions, and the existence of

the Covid-19 pandemic itself. The court has made rulings without jurisdiction,

failed to allow the Governor time to file a written response to summary judgment in

contravention of local rules, insulated orders from appellate review, and granted

class certification without briefing and based solely on an oral request presented in

an unrelated hearing. It has also described the Governor’s response to the Covid-19

pandemic as “tyrannical,” SR391, doubted that the State’s Covid-19 data was

legitimate, SR1187, and opined that “the last time this happened a bunch of guys

got on a boat and threw tea in Boston Harbor,” SR391. Given the significance of the

public health emergency at hand and the interest in the proper administration of

justice, supervisory relief would be warranted based on these actions alone.

But on August 7, the circuit court issued a Rule to Show Cause that ordered

the Governor himself to appear for a hearing on Friday, August 14, and show why

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he should not be held in indirect civil contempt (and jailed) for his purportedly

willful disregard of the circuit court’s July 2 partial summary judgment order. The

Rule to Show Cause, however, is based on a petition riddled with procedural and

substantive defects. Perhaps most importantly, the petition seeks to enforce an

order that is, by its terms, unenforceable because it resolves only two of four counts

in the operative complaint. The partial summary judgment order, moreover, does

not enjoin the Governor or otherwise order him to do anything. On the contrary,

the order is limited to a declaration that the Governor’s disaster proclamations and

executive orders issued on and after April 8, 2020—which are designed to stop the

spread of Covid-19 in Illinois and secure necessary funding and lifesaving materials

for the State, among other purposes—are void based on the circuit court’s flawed

reading of the IEMAA.

Since the circuit court entered its July 2 partial summary judgment order,

the Governor has sought to obtain an appealable judgment, by, among other things,

requesting that the court rule on all counts in the operative complaint and moving

to dismiss the remaining count, so that the issues presented by this case may be

resolved by a reviewing court. These efforts, however, have been delayed by the

actions of Bailey and the circuit court, resulting in public confusion over the validity

of the Governor’s actions during a pandemic. The confusion resulting from the

delay is compounded by the partial summary judgment order being both wrong as a

matter of law and creating a conflict with five other state and federal courts, all of

which have held that the IEMAA confers authority on the Governor to issue

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multiple and successive disaster proclamations. This, too, would be reason enough

for this Court to exercise its supervisory authority. In short, given the significance

of this legal issue to the public health and safety of all Illinoisans, the Governor

requests that this Court exercise its supervisory authority to resolve this dispute

and put an end to the public confusion wrought by these tactics.

Specifically, the Governor asks this Court to immediately stay the contempt

hearing scheduled for August 14, 2020, pending the resolution of this motion.

Additionally, the Governor requests that this Court answer the underlying legal

question raised by this case, which is whether the Governor has acted within the

scope of his authority under the Act and Illinois Constitution in issuing disaster

proclamations and executive orders in response to the Covid-19 pandemic. In the

course of definitively answering that important question, this Court should stay all

proceedings below, expedite the response to this motion, and ultimately reverse the

circuit court’s July 2, 2020 order.

In support of this request, the Governor provides a four-volume supporting

record (“SR__”) and states the following.

BACKGROUND

A. The Covid-19 pandemic and the Governor’s response

1. Covid-19 is a novel acute respiratory illness that continues to infect

and claim the lives of individuals in Illinois and across the globe.1 As of August 9,

1 Illinois Department of Public Health, https://www.dph.illinois.gov/topics-

services/diseases-and-conditions/diseases-a-z-list/coronavirus/faq. This Court may

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2020, more than 194,000 individuals in Illinois have tested positive for the virus

and 7,636 have died.2 Although Illinois has achieved relative progress in recent

months, cases across the United States continue to rise.3 Indeed, even Illinois is

now experiencing an uptick in new cases, including in rural counties throughout the

State,4 and there is presently no vaccine or approved treatment,5 or evidence that

those recovered are immune to additional infections.6

2. On March 9, 2020, the Governor proclaimed the Covid-19 pandemic a

disaster in Illinois based on the IEMAA and Illinois Constitution. Because the

pandemic persisted, on April 1, April 30, May 29, June 26, and July 24, the

Governor issued subsequent disaster proclamations.7 In addition to the disaster

proclamations, the Governor has issued executive orders responding to various

take judicial notice of information on Covid-19 from mainstream internet sources,

including data from government websites. See Kopnick v. JL Woode Mgmt. Co.,
2017 IL App (1st) 152024, ¶ 26 (collecting cases). All websites were last visited on
August 7, 2020.
2 Illinois Department of Public Health, https://www.dph.illinois.gov/covid19.
3 David Begnaud & Janet Shamlian, U.S. breaks record for new coronavirus cases
with over 77,000 in one day, CBS News (July 17, 2020),
https://www.cbsnews.com/news/coronavirus-usa-record-cases-77000/.
4 Illinois Department of Health, 11 Illinois Counties at Warning Level for
Coronavirus Disease (July 31, 2020), https://www.dph.illinois.gov/news/11-illinois-
counties-warning-level-coronavirus-disease.
5 Centers for Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html;
https://www.cdc.gov/coronavirus/2019-ncov/hcp/therapeutic-options.html
6 World Health Organization, https://www.who.int/news-
room/commentaries/detail/immunity-passports-in-the-context-of-covid-
19?gclid=EAIaIQobChMIlrTdgcqF6wIVBIbICh0eRwBoEAAYASAAEgKao_D_BwE.
7 All disaster proclamations and executive orders are available at
https://coronavirus.illinois.gov/s/.

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aspects of the ongoing public health emergency, including: providing health and

safety guidelines to schools, waiving liability for health care workers and

volunteers, ceasing evictions for residential and nonresidential properties, adding to

telehealth access, and altering notary and witness guidelines to allow critical life

decisions to be finalized in a time of social distancing.

3. In the July 24 proclamation, as in all of the preceding ones, the

Governor found that a disaster exists in the State and declared all counties within

Illinois as a disaster area.8 As support for this proclamation, the Governor cited the

increasing number of Covid-19 cases, warnings from public health experts about an

anticipated “second wave” of infection, and the fact that 34 “counties around the

State . . . have reported more than 75 cases per 100,000 people over the past 7

days.”9 The Governor explained that “without precautions Covid-19 can spread

exponentially, even in less populous areas,” as evidenced by the fact that, as of July

24, “the four counties that the Illinois Department of Public Health has identified as

exhibiting warning signs of increased Covid-19 risk (Adams, LaSalle, Peoria, and

Randolph) are located in all parts of the State,” and by the experiences of other

States that “resisted taking public health precautions or that lifted those

precautions earlier.”10

8 State of Illinois, Coronavirus (Covid-19) Response, Disaster Proclamation (July

24, 2020), https://www2.illinois.gov/sites/gov/Documents/CoronavirusDisasterProc-
7-24-2020.pdf.
9 Id.
10 Id.

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B. The Governor’s authority under the IEMAA

4. The purpose of the IEMAA is to “insure that this State will be

prepared to and will adequately deal with any disasters, preserve the lives and

property of the people of this State and protect the public peace, health, and safety

in the event of a disaster.” 20 ILCS 3305/2(a). The Act defines a “disaster” as “an

occurrence or threat of widespread or severe damage, injury or loss of life or

property resulting from any natural or technological cause,” including an “epidemic”

and “public health emergencies.” Id. 3305/4. Under section 7 of the Act, the

Governor may proclaim that such a disaster exists and then exercise his emergency

powers for a period of 30 days. Id. 3305/7. These powers include the authority to

use “all available resources of the State government” and its political subdivisions,

and to “control ingress and egress to and from a disaster area, the movement of

persons within the area, and the occupancy of premises therein.” Id.

5. The Act does not limit the number of proclamations that the Governor

may issue for a single disaster. In fact, pursuant to the Act, Illinois governors have

issued multiple and often successive proclamations regarding the same disaster. In

the last eleven years, Governors Quinn, Rauner, and Pritzker have issued such

disaster proclamations: in 2009 to address the H1N1 virus; and in 2011, 2017, and

2019 to respond to flooding. SR135-54. Moreover, in May 2019, when Governor

Pritzker issued a second flooding disaster proclamation, extending his emergency

authority by 30 days, Bailey himself celebrated the effort. SR156-61.

6. The Governor’s authority to proclaim successive disasters, as many

Illinois governors have done before him, has enabled him to protect the health and

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lives of Illinoisans as the pandemic persists. For example, by proclaiming a disaster

and then executing an emergency plan, the State was able to apply for and receive

billions of dollars of federal funds, see C.F.R. § 206.35(c)(1), which will be at risk if

Illinois is no longer under a disaster proclamation. Similarly, the disaster

proclamations have allowed the State to access the Disaster Response and Recovery

Fund. See 15 ILCS 30/3 (2018). In addition, the proclamations have enabled the

Governor to suspend provisions of the Illinois Procurement Code that, if in place,

would put the State at a significant competitive disadvantage to other States when

purchasing lifesaving materials (e.g., ventilators, personal protective equipment for

healthcare workers, and testing supplies). And the proclamations have allowed the

Governor to “prohibit increases in the prices of goods and services,” 20 ILCS

3305/7(14), build overflow capacity for more hospital beds, id. 3305/7(4), and rely on

the Illinois National Guard for assistance, id. 3305/7(13).

C. The circuit court proceedings in this case

7. Bailey is a resident of Clay County, Illinois, and an elected member of

the Illinois House of Representatives for the 109th District. Bailey is represented in

this case by attorney Thomas DeVore.

8. On April 23, 2020, Bailey filed the underlying action in his personal

capacity against the Governor in the Circuit Court of Clay County. SR7-35. He

sought a declaration that the Governor’s emergency powers under the IEMAA

lapsed as of April 8, 2020, 30 days after the initial disaster proclamation of March 9,

2020, and an injunction preventing the Governor from enforcing then-existing stay-

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at-home order against him. Id. He also moved for a TRO and preliminary

injunction. SR1-4.

9. On April 27, 2020, the circuit court entered a TRO enjoining the

Governor from enforcing or entering any executive order against Bailey “forcing him

to isolate and quarantine in his home.” SR78-81. The circuit court rested the order

on the erroneous legal conclusion that the Governor’s emergency powers lapsed 30

days after the first disaster proclamation was issued. The circuit court also

indicated that the Governor’s actions were “tyrannical,” and opined that “the last

time this happened a bunch of guys got on a boat and threw tea in the Boston

Harbor.” SR391.

10. That day, the Governor appealed the TRO to the appellate court under

Rule 307(d) and filed an emergency motion with this Court for a direct appeal under

Rule 302(b) and supervisory relief under Rule 383. SR84-89. In response to the

Governor’s Rule 307(d) petition, Bailey consented to vacate the TRO. SR424. The

appellate court dismissed the petition without reaching the merits of the circuit

court’s TRO, id., and this Court denied the Governor’s motion for supervisory relief,

SR1102.

11. On remand, Bailey filed an amended complaint, which consisted of four

“counts” seeking the following relief: (1) declaratory judgment that the April 30

proclamation did not satisfy the definition of a disaster in the IEMAA,

(2) declaratory judgment that the Governor’s emergency authority lapsed 30 days

after the initial disaster proclamation on March 9, (3) declaratory judgment that the

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Department of Public Health Act (“Public Health Act”), 20 ILCS 2305/2, controls the

State’s response to the Covid-19 pandemic, rather than the IEMAA, and

(4) “injunctive relief.” SR427-605. Shortly thereafter, Bailey moved for summary

judgment on the three declaratory judgment counts, but not on his injunctive relief

“count” in Count IV. SR839-57. On May 21, the Governor removed this action to

federal court, but it was ultimately remanded. See Order, Bailey v. Pritzker, No.

3:20-cv-474-GCS (S.D. Ill. June 29, 2020).

12. Following the remand from federal court, on June 30, 2020, Bailey filed

a notice seeking a hearing on his summary judgment motion, SR1109, and

attaching a memorandum in support of his summary judgment motion that he had

not previously filed, SR839-57. That same day, Bailey also filed a motion seeking to

bar the Governor from filing a response to the summary judgment motion. SR1106-

08.

13. Two days later, the circuit court held a hearing on the summary

judgment motion. SR1111-92. At the outset of the hearing, counsel for the

Governor noted that jurisdiction had not yet vested in the circuit court because the

certified order of remand from the federal district court had not been entered in the

circuit court as required under 28 U.S.C. § 1447(c). SR1115-27. Counsel also

requested an opportunity to respond in writing to the summary judgment motion.

SR1118-27. The court concluded that it had jurisdiction, denied the Governor leave

to file a response brief, and proceeded to hear argument on the summary judgment

motion. SR1127-92.

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14. After the parties completed their argument, the court stated that it

had “taken judicial notice of all prior arguments in prior cases on related, exact

same issues in essence, exact same arguments.” SR1186. Then, unprompted by

either party, the court recalled that DeVore, in a “prior hearing” in a different case

had “asked this court to not restrict this ruling to the plaintiff but you cited that

appellate court opinion asking the court to find it’s, what, common, everybody

commonly situated and I invited you to supplement that if you wanted to.” Id. The

court then asked DeVore whether he was “still making that request,” and DeVore

answered in the affirmative, id., although he had never made such a request in

Bailey’s case. At the conclusion of the hearing, the court indicated that it would

grant Bailey’s motion as to Counts II and III and that his ruling was not restricted

to Bailey. SR1190.

15. When explaining its reasoning for that ruling, the court determined

that the facts put forth by the Governor during these proceedings were not credible:

“The defendant insists that his executive orders are driven by data, research and

experts. What data? What research? Which experts? How and by whom was this

data and research generated? . . . What is their bias?” SR1187. The court also

suggested that the Governor’s position in this case was akin to one that would exist

“in Russia or China or Cuba or Argentina or some banana republic where, after

disarming the general population, the person who usually winds up being in charge

is the one with the most guns and the least humanity.” SR1188. In sum, the court

concluded, the Governor’s issuance of multiple and successive executive orders is

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“absolute power and it is unconstitutional.” SR1189.

16. Later that day, the circuit court entered a written order granting

summary judgment on Bailey’s request for declaratory relief in Counts II and III

based on statutory (not constitutional) grounds. On Count II, the court declared

that the Governor’s emergency powers under Section 7 of the IEMAA “lapsed on

April 8, 2020” and that “any executive orders in effect after April 8, 2020 relating to

Covid-19 . . . are void ab initio.” SR1193-95. On Count III, the court declared the

“proper authority to restrict a citizen’s movement or activities and/or forcibly close

their business due to any public health risks has been expressly delegated to the

Department of Health.” SR1194. At Bailey’s request, the court also dismissed

Count IV (“injunctive relief”) with prejudice and granted Bailey’s “oral request that

his Amended Complaint be a representative action.” Id.

17. As for Count I, the court denied Bailey’s motion for summary judgment

(again without reasoning) and refused to entertain the Governor’s cross-motion.

SR1193. The court did this notwithstanding the repeated observation by the

Governor’s counsel that a decision on Count I was necessary to create a final and

appealable order: “The point is let’s move forward and, oftentimes when I say

things, there’s laughter in this courtroom but these are serious matters and the

appellate court should have the opportunity to hear from which one of these parties

lose and the only way we’re going to get there is if we have finality.” SR1151-52. As

a result, the circuit court’s July 2 partial summary judgment order is neither

enforceable nor appealable. See Ill. Sup. Ct. R. 304(a) (“any judgment that

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adjudicates all the claims or the rights and liabilities of fewer than all the parties is

not enforceable or appealable”). To address the finality issue, the Governor

subsequently moved to dismiss the single remaining claim, Count I, and asked “for

expedited ruling on his motion to dismiss in order to take prompt appeal.” SR1230-

1316. In response, Bailey opposed dismissal, SR1693-96, and moved to amend his

complaint to add an additional count (Count V)—seeking an advisory declaratory

judgment that a public health emergency as defined by Section 4 of the IEMAA did

not exist in Clay County on June 26, 2020, the date of the then-most recent disaster

proclamation, SR1651-92.

18. Even though the July 2 partial summary judgment order is not

presently enforceable, and neither ordered nor restrained conduct of the Governor,

on August 5, Bailey filed a verified petition for adjudication of indirect civil

contempt against the Governor. SR1733-45. According to the petition, the

Governor acted in “complete disregard” of the declaratory relief in the July 2 order

when he issued Executive Orders 47, 48, and 50 on July 24. SR1733-34. These

“willful actions,” Bailey argues, “constitute prima facie evidence of contemptuous

acts which are calculated to embarrass, hinder, or obstruct this Honorable Court in

its administration of justice, and are expressly calculated to derogate from its

authority or dignity.” SR1734. Accordingly, Bailey requested that the circuit court

enter an order adjudging the Governor to be in indirect civil contempt and to be

required to show cause why he should not “be held in contempt of this Court and

punished.” Id. Bailey further requested, among other things, that the Governor “be

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ordered to purge himself by rescinding the above-mentioned executive orders

instanter; and should he refuse, he be placed in temporary custody within the Clay

County Jail.” Id. Bailey did not notice his contempt petition for hearing.

19. On August 7, the circuit court directed the Governor himself to appear

at the Clay County Courthouse on Friday, August 14, “to show cause why he should

not be held in indirect civil contempt and sanctioned for his willful disregard” of the

July 2 order. SR1746-47.

D. Related Covid-19 litigation

20. This case is not the only lawsuit filed on behalf of an Illinois resident

or business represented by attorney DeVore challenging the Governor’s actions to

address the Covid-19 pandemic. Besides this case, DeVore has been counsel in

three other lawsuits claiming that the Governor’s proclamations and executive

orders exceeded his authority under the IEMAA because they extended more than

30 days beyond March 9.11 But this claim has been rejected by every court to have

addressed it, save one: the Circuit Court of Clay County, where DeVore filed this

action on behalf of Bailey and filed a similar action (Mainer v. Pritzker, No. 2020-

CH-10 (Clay Cty. Cir. Ct., Ill. May 22, 2020)).12 And in Mainer, just like in this

11See Cabello v. Pritzker, No. 3:20-cv-50169 (N.D. Ill.); Edwardsville/Glen Carbon

Chamber of Commerce v. Pritzker, No. 2020-MR-550 (Madison Cty. Cir. Ct., Ill.);
Mainer v. Pritzker, No. 2020-CH-10 (Clay Cty. Cir. Ct., Ill.).
12 See JL Properties Group B LLC v. Pritzker, No. 20-CH-601, slip op. at 12 (Will
Cty. Cir. Ct., Ill. July 31, 2020); Edwardsville/Glen Carbon Chamber of Commerce
v. Pritzker, 2020-MR-550, slip op. at 6-8 (Madison Cty. Cir. Ct., Ill. June 5, 2020);
Running Central, Inc. v. Pritzker, No. 2020 CH 105, slip op. at 4-5 (Sangamon Cty.
Cir. Ct., Ill. May 21, 2020); Mahwikizi v. Pritzker, No. 20 C 04089, slip op. ¶¶ 21-27

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case, DeVore withdrew his request for a TRO after the Governor appealed the TRO

entered by the circuit court under Rule 307(d).

21. In another set of cases, plaintiffs represented by DeVore (and, in one

instance, DeVore as an attorney proceeding pro se) in multiple counties have

challenged the Governor’s executive orders regarding face coverings as applied to

teachers and students.13 And DeVore is counsel in another series of cases arguing

that the Governor lacks authority under the IEMAA to suspended nonessential

business operations.14 When the Governor removed three of these actions to federal

court, DeVore’s law firm voluntarily dismissed them,15 thus evading review of these

claims by the federal judiciary. And recently, plaintiffs represented by DeVore filed

four actions in various counties challenging the Governor’s authority to issue

(Ill. Cook Cty. Cir. Ct. May 8, 2020); Cassell v. Snyders, No. 20-C-50153, 2020 WL
2112374, at **13-14 (N.D. Ill. May 3, 2020). But see Order, Mainer v. Pritzker, No.
2020-CH-10 (Clay Cty. Cir. Ct., Ill. May 22, 2020).
13See Mainer v. IDPH, No. 2020-CH-13 (Clay Cty. Cir. Ct., Ill.); DeVore v. Ill. High
Sch. Assoc. Bd. of Dirs., No. 2020-MR-98 (Montgomery Cty. Cir. Ct., Ill.); Quinn v.
Quincy Pub. Sch. Bd. of Educ., No. 2020-MR-166 (Adams Cty. Cir. Ct., Ill.).
14See, e.g., Dookie Set, Inc. v. Pritzker, No. 3:20-cv-00437 (S.D. Ill.); Harrison v.
Pritzker, No. 3:20-cv-00438 (S.D. Ill.); Promenschenkel v. Pritzker, No. 3:20-cv-50166
(N.D. Ill.).
15 See Notice of Voluntary Dismissal, Promenschenkel v. Pritzker, No. 3:20-cv-50166
(N.D. Ill. July 22, 2020); Notice of Voluntary Dismissal, Dookie Set, Inc. v. Pritzker,
No. 3:20-cv-00437 (S.D. Ill. June 10, 2020; Notice of Voluntary Dismissal, Harrison
v. Pritzker, No. 3:20-cv-00438-RJD (S.D. Ill. June 10, 2020); see also Notice of
Voluntary Dismissal, Cabello v. Pritzker, No. 3:20-cv-50169 (N.D. Ill. July 22, 2020)
(voluntarily dismissing case challenging Governor’s authority to issue disaster
proclamations after initial 30-day period lapsed).

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statewide disaster proclamations.16 This Court subsequently allowed the

Governor’s motion to consolidate those actions (along with a fifth action in which

DeVore is representing himself pro se), which were filed on the same day and raised

the same legal question.

DISCUSSION

22. This Court should exercise its supervisory authority under Illinois

Supreme Court Rule 383 to decide the important and recurring question presented

by this case regarding the Governor’s ongoing ability to address the Covid-19

pandemic. The circuit court’s July 2 partial summary judgment order—which is

incorrect as a matter of law—has created significant public confusion, which was

sown further by Bailey and DeVore, e.g., infra pp. 26-27, regarding the Governor’s

authority to protect health and safety during the pandemic. However, that order

has been insulated from judicial review. Indeed, the Governor has sought to bring

this critical issue to the appellate court on more than one occasion, but has been

prevented from doing so. And now, Bailey seeks to use this unenforceable and

nonappealable decision to hold the Governor in contempt and incarcerate him.

23. Under the Illinois Constitution, this Court has “[g]eneral

administrative and supervisory authority over all courts” in Illinois. Ill. Const. art.

VI, § 16. And the Court’s supervisory authority is “unlimited in extent and

16 See Craig v. Pritzker, No. 2020-MR-589 (Sangamon Cty. Cir. Ct., Ill.); Allen v.
Pritzker, No. 2020-MR-45 (Edgar Cty. Cir. Ct., Ill.); DeVore v. Pritzker, No. 2020-
MR-32 (Bond Cty. Cir. Ct., Ill.); Gorazd v. Pritzker, No. 2020-MR-79 (Clinton Cty.
Cir. Ct., Ill.); English v. Pritzker, No. 2020-MR-48 (Richland Cty. Cir. Ct., Ill.).

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hampered by no specific rules.” Vasquez Gonzalez v. Union Health Servs., Inc., 2018

IL 123025, ¶ 16. In fact, the Court has exercised its supervisory authority in cases

where the parties did not seek its review of the judgment below. See, e.g., In re

Estate of Funk, 221 Ill. 2d 30, 98 (2006) (“Pursuant to our supervisory authority, we

have jurisdiction to evaluate judgments of the lower courts even where the litigants

themselves may have raised no challenge.”); City of Urbana v. Andrew N.B., 211 Ill.

2d 456, 470 (2004) (exercising supervisory authority to address issue not raised by

parties because of “grave concerns about the procedures employed in these cases”

that “warrant correction”); McDunn v. Williams, 156 Ill. 2d 288, 300-03 (1993)

(importance of issue merited supervisory authority to guide lower courts even

though no party appealed). As examples, the Court has granted supervisory relief

when the dispute between the parties involves a matter of importance to the

administration of justice, the normal appellate process will not afford adequate

relief, and intervention is necessary to keep an inferior tribunal from acting beyond

the scope of its authority. See Vasquez, 2018 IL 123025, ¶ 17. All of these

circumstances are present here, making exercise of the Court’s supervisory

authority appropriate.

A. This case addresses a matter of critical importance.

24. First, this dispute involves a matter of critical importance to the

administration of justice. This Court has long observed that measures taken to

manage a public health emergency, especially one involving the “spread of

dangerous communicable diseases,” present questions of “supreme importance not

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only to the individuals involved, but to the citizens of the State of Illinois and to the

State itself.” People ex rel. Baker v. Strautz, 386 Ill. 360, 363-64 (1944); see People

ex rel. Barmore v. Robertson, 302 Ill. 422, 427 (1922) (“Among all the objects sought

to be secured by governmental laws none is more important than the preservation

of public health.”). This case, which involves the Governor’s efforts to manage the

ongoing spread of an unprecedented, deadly, and easily transmitted virus, presents

such a question of importance and thus calls out for this Court’s guidance. And

given that the question here has been recurring over the last several months,

leading to confusion over the Governor’s authority to manage the public health

emergency in Illinois, the need for a definitive and binding decision on the scope of

the Governor’s authority has become critical.

25. This confusion is due in large part to the outlier rulings entered by the

circuit court, which hold that the Governor lacks authority to issue multiple and

successive disaster proclamations under the IEMAA. Although this conclusion has

been rejected by every other court to have addressed the question, the inconsistency

in decisions contributes to public confusion over the Governor’s authority to issue

orders to protect the public health and safety, especially because the circuit court

purported to make the ruling apply to all Illinois residents. Specifically, the circuit

court’s July 2, 2020 partial summary judgment ruling—the most recent decision it

entered to this effect—was premised on an erroneous reading of the IEMAA. As a

matter of statutory construction, the Act’s plain language authorizes the Governor

to issue multiple proclamations for a continuing disaster. The Governor also has

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independent constitutional authority to issue these proclamations and exercise this

emergency authority.

26. The primary objective of statutory construction is to ascertain and give

effect to the intent of the Illinois General Assembly. Whitaker v. Wedbush Secs.,

Inc., 2020 IL 124792, ¶ 16. The most reliable indicator of legislative intent is the

plain language of the statute at issue. Id. The Court may not “depart from the

plain language of a statute by reading in exceptions, limitations, or conditions

conflicting with the expressed legislative intent.” Id. As detailed below, the

IEMAA’s plain text authorizes the Governor to issue a disaster proclamation

whenever a disaster “exists,” and it contains no limitation on the number of such

proclamations. The contrary view of the statute, urged by Bailey, reads a

requirement into the Act that does not exist and therefore ignores the plain

legislative intent.

27. Section 4 of the IEMAA expressly defines a disaster as the “occurrence

or threat of widespread or severe damage, injury or loss of life or property resulting

from any natural or technological cause,” such as an “epidemic” or a “public health

emergenc[y].” 20 ILCS 3305/4. In turn, section 7 states that “[i]n the event of a

disaster, as defined in Section 4, the Governor may, by proclamation declare that a

disaster exists.” Id. 3305/7. “Upon such proclamation, the Governor shall have and

may exercise for a period not to exceed 30 days the following emergency powers.”

Id.

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28. As noted, then, the IEMAA’s plain text contains no limitation on the

number of proclamations that the Governor may issue. It unambiguously creates

one requirement for a disaster proclamation: that a disaster “exists.” And if the

Governor proclaims that a disaster exists, he may exercise his authority under the

Act for a period of 30 days. A disaster existed in Illinois when the Governor issued

disaster proclamations on March 9, April 1, April 30, May 29, June 26, and July 24,

given that Covid-19 has continued to infect and kill individuals across the world

and throughout this State on those dates. The Governor thus complied with the

sole requirement of section 7 of the IEMAA in issuing each disaster proclamation

thus far, which in turn triggered his emergency powers for 30 days following each

proclamation.

29. Reading the IEMAA as a whole, other sections of the Act confirm this

plain reading of section 7. For example, the Act’s “Limitations” section contains no

limit on the Governor’s authority to issue more than one proclamation per disaster.

See id. 3305/3. Furthermore, the General Assembly limited a political subdivision’s

ability to “continue[ ] or renew[ ]” local disaster declarations, id. 3305/11(a), but

chose not to similarly limit the Governor’s ability to continue or renew

proclamations. And the legislature has not amended this Act even though, as

indicated, several Governors have issued multiple disaster proclamations for a

single disaster. See People ex rel. Birkett v. City of Chi., 202 Ill. 2d 36, 53 (2002)

(“That the statute has remained unaltered through successive sessions of the

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General Assembly . . . indicates legislative acquiescence in the contemporary and

continuous administrative interpretation.”) (internal quotations omitted).

30. Consistent with this understanding, during its special session this

spring, the General Assembly unanimously passed three bills referencing the

Governor’s emergency authority. Bailey voted for all three measures. The first,

which amended the Township Code to allow for postponement of annual township

meetings due to a disaster declaration, included instructions for situations where “a

subsequent disaster is declared under Section 7 of the [Act] prior to . . . the

expiration of the disaster declaration[.]”17 The second amended the Sexual Assault

Survivors Emergency Treatment Act to allow health centers to provide medical

forensic services relating to injuries or trauma resulting from a sexual assault for

“the duration, and 90 days thereafter, of a proclamation issued by the Governor

declaring a disaster, or a successive proclamation regarding the same disaster, in

all 102 counties due to a public health emergency.”18 The third modified the

Unemployment Insurance Act to include the “disaster period established by the

Gubernatorial Disaster Proclamation in response to Covid-19, dated March 9, 2020,

and any subsequent Gubernatorial Disaster Proclamation in response to Covid-19”

as one of several references for determining a person’s eligibility under certain

17 101st Ill. Gen. Assem., House Bill 2096, 2020 Sess. (adding 60 ILCS 1/30-5(d);
Bill Status of HB2096, http://ilga.gov/legislation/billstatus.asp?DocNum=2096&
GAID=15&GA=101&DocTypeID=HB&LegID=117721&SessionID=109&SpecSess=.
18 101st Ill. Gen. Assem., Senate Bill 557, 2020 Sess. (creating 410 ILCS 70/2-1);
Bill Status of SB557, www.ilga.gov/legislation/BillStatus.asp?DocNum=
557&GAID=15&DocTypeID=SB&LegId=116494&SessionID=108&GA=101.

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circumstances.19

31. And, in fact, based on the plain language and structure of the IEMAA,

every court to have addressed Bailey’s argument here—that the Governor’s ability

to take action to address the Covid-19 pandemic expired 30 days after March 9—has

rejected it save one: the Clay County Circuit Court. See JL Properties Group B

LLC v. Pritzker, No. 20-CH-601, slip op. at 12 (Ill. 12th Jud. Cir. Ct. July 31, 2020)

(“Textually, contextually, and historically, it is evident that the [I]EMAA permits

successive disaster proclamations.”); Edwardsville/Glen Carbon Chamber of

Commerce v. Pritzker, No. 20-MR-550, slip op. at 8 (Ill. 3d Jud. Cir. Ct. June 5,

2020) (“Plaintiff’s claim that the Governor cannot proclaim successive disasters over

Covid-19 finds no support in the plain reading of the statute.”); Running Central,

Inc. v. Pritzker, No. 2020-CH-105, slip op. at 4-5 (Ill. 7th Jud. Cir. Ct. May 21, 2020)

(“[Plaintiff’s] assertion that Section 7 emergency powers were statutorily permitted

for only one single 30-day period after the initial March 9, 2020 disaster

proclamation is, thus, contrary to the plain reading of the Act.”); Mahwikizi v.

Pritzker, No. 20-C-04089, slip op. ¶ 21 (Ill. Cook Cty. Cir. Ct. May 8, 2020) (“[T]he

Act grants Governor Pritzker the authority to extend his power beyond an initial

30-day period where, as here, the disaster is ongoing and has not abated.”); Cassell

19101st Ill. Gen. Assem., House Bill 2455, 2020 Sess. (adding 820 ILCS 405/500(D-
5); Bill Status of HB2455, http://www.ilga.gov/legislation/fulltext.asp?DocName=
10100HB2455enr&GA=101&SessionId=108&DocTypeId=HB&LegID=118463&Doc
Num=2455&GAID=15&Session=.

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v. Snyders, No. 20-C-50153, 2020 WL 2112374, at *13 (N.D. Ill. May 3, 2020) (“text

and structure of the Act” support Governor’s interpretation).

32. Most recently, the Circuit Court of Will County described “[t]he Clay

County rulings” at issue here as “bereft of meaningful legal analysis” and “wholly

unpersuasive,” and stated that it was “persuaded . . . by the thorough analyses of

the numerous judges in Illinois who reached a contrary finding.” JL Properties, No.

20-CH-601, slip op. at 9. Indeed, the circuit judge below has never issued a written

ruling that provides any reasoning to justify his decision, and his oral

pronouncements have been equally lacking. As one example, his July 2 partial

summary judgment ruling suggests a completely different basis for his ruling than

the accompanying order—that the Governor does have statutory authority to

exercise emergency powers for more than 30 days but violated the constitutional

guarantee of due process in his exercise of those powers:

This is absolute power and it is unconstitutional. The defendant does

not—it’s not 30 days and you’re done. He’s got more than 30 days. The
point is, if he goes beyond 30 days, Illinois citizens get due process rights
before their business is shut down, before they’re told they can’t leave
their house or engage in any other activities or have to be subjected to
restrictions, which we won’t even get into at this point.

SR1189. The judge also speculated, citing no evidence, that Covid-19 is overblown:

“How many of these positive tests are false? How much of this data is being

manipulated for whatever reason, for whatever agenda that the public is denied

from discovering under your argument?” SR1173.

33. In addition to misreading the plain text of the IEMAA, the circuit court

incorrectly concluded that the “proper authority to restrict a citizen’s movement or

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activities and/or forcibly close their business due to any public health risks has been

expressly delegated to [IDPH] under the Illinois Department of Public Health Act

and the County Code.” SR1194. Section 2 of the Public Health Act establishes

procedures by which IDPH “may order a person or group of persons to be

quarantined or isolated or may order a place to be closed and made off limits to the

public to prevent the probable spread of a dangerously contagious or infectious

disease.” 20 ILCS 2305/2(b). Because none of actions taken by the Governor—

including issuing the stay-at-home orders—are isolation, quarantine, or business

closure orders, section 2 does not apply.

34. And it is of little moment that section 2(a) of the Public Health Act

states that IDPH “has supreme authority in matters of quarantine and isolation.”

Id. 2305/2(a). When read in context, this statement is referring to IDPH’s supreme

authority in its supervision of local health departments. Although the Public

Health Act authorizes IDPH to direct local health departments in matters of

quarantine and isolation, it does not confine the authority of the Governor—who

appoints the Director of IDPH—to exercise his own authority to protect the public

health. Indeed, section 2 of the Public Health Act specifically provides that

“[n]othing in this Section shall supersede . . . procedures established pursuant to

IEMA statutes.” Id. 2305/2(m).

35. In short, the circuit court’s July 2 partial summary judgment ruling

was premised on a wholesale misreading of the Governor’s authority under the

IEMAA and is conflict with every other court that has addressed the issue. But no

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appellate court has had an opportunity to decide the question presented by this

case, due in large part to the withdrawal by Bailey’s counsel, DeVore, of the two

TROs he obtained from the same judge after the Governor filed appeals. As a

result, the July 2 ruling has sown confusion and uncertainty, including because

DeVore has publicly described it as giving all Illinoisans the right to ignore the

Governor’s executive orders.20 As a result, the Clay County ruling should, in the

interests of justice, be reviewed by this Court now.

36. In addition, this Court may exercise its supervisory authority to

address the alternative basis for the Governor’s authority: the Illinois Constitution.

The IEMAA recognizes that it does not “[l]imit, modify, or abridge the authority of

the Governor to . . . exercise any other powers vested in the Governor under the

constitution.” 20 ILCS 3305/3(d). That independent constitutional authority

authorized the Governor to issue the disaster proclamations on and after April 8,

and related executive orders, to protect the public health during the pandemic.

37. The State has long possessed police power “to preserve the public

health,” which includes the power “to pass and enforce quarantine, health, and

inspection laws to prevent the introduction of disease.” Robertson, 302 Ill. at 427;

see People v. Adams, 149 Ill. 2d 331, 339 (1992). And Illinois courts have refrained

from interfering with this power “except where the regulations adopted for the

protection of the public health are arbitrary, oppressive and unreasonable.”

20See, e.g., Jim Roberts, Judge: Pritzker doesn’t have authority to restrict freedoms,
WGEM (July 2, 2020), https://wgem.com/2020/07/02/judge-pritzker-doesnt-have-
authority-to-restrict-freedoms.

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Robertson, 302 Ill. at 427. The Governor plays a crucial role in exercising the

State’s police power; the Illinois Constitution provides that the Governor “shall have

the supreme executive power, and shall be responsible for the faithful execution of

the laws.” Ill. Const. art. V, § 8. This grant of authority is to be interpreted in

accordance with the purposes for which the Illinois Constitution was adopted, see

Wolfson v. Avery, 6 Ill. 2d 78, 88-89 (1955), chief among which is “to provide for the

health, safety, and welfare of the people,” Ill. Const., preamble.

38. As discussed, the Covid-19 crisis presents a public health emergency in

Illinois requiring immediate and comprehensive governmental action. In this

circumstance, the Governor’s actions are legally valid and an essential exercise of

the State’s police power. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

637 (1952) (Jackson, J., concurring) (validity of executive exercise of police power “is

likely to depend on the imperatives of events and contemporary imponderables

rather than on abstract theories of law”).

B. In these circumstances, the normal appellate process will not

afford adequate relief.

39. Because this dispute involves a matter of critical importance to the

administration of justice, this Court should exercise its supervisory authority to

resolve the important and recurring question presented. Moreover, supervisory

relief is warranted for the additional reason that the normal appellate process will

not afford adequate relief. As explained, Bailey’s counsel, DeVore, twice (including

once in this case) obtained a TRO against the Governor’s executive orders from the

same Clay County judge, on the theory that the Governor’s authority to address the

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Covid-19 pandemic expired 30 days after March 9. Both times, after the Governor

appealed those TROs under Illinois Supreme Court Rule 307(d), DeVore withdrew

the TRO. By doing that, Bailey and DeVore evaded appellate review of these outlier

rulings.21 And now, because one count of Bailey’s operative complaint remains

pending, no appealable judgment has been entered.

40. In addition, there is an urgent need for a definitive resolution to the

dispute regarding the Governor’s authority under the IEMAA and the Illinois

Constitution to issue executive orders to protect Illinois residents and businesses

during the Covid-19 pandemic. The dispute raises foundational questions regarding

the legitimacy of a broad swath of public health measures critical to fighting a

deadly disease. Resolving the dispute through the ordinary appellate process would

allow this case to remain pending for months or even years, which would further

undermine public confidence in state government and its institutions at a time

when collective action is required to address the pandemic.

C. The circuit court has acted, and if this Court declines to

intervene may continue to act, beyond the scope of its
authority.

41. Third, and finally, this motion should be granted because the circuit

court has acted, and may continue to act, beyond the scope of its authority,

repeatedly engaging an abuse of process that rises to the level of “exceptional

21 And in other cases, when preliminary relief has been denied in the circuit court,
DeVore has not sought appellate review. See, e.g., Order, Edwardsville/Glen
Carbon Chamber of Commerce v. Pritzker, No. 20-MR-550 (Ill. 3d Jud. Cir. Ct. June
5, 2020); Order, Running Central, Inc. v. Pritzker, No. 2020-CH-105, slip op. at 4-5
(Ill. 7th Jud. Cir. Ct. May 21, 2020).

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circumstances” warranting supervisory relief. See City of Urbana, 211 Ill. 2d at

470 (2004) (exercising supervisory authority to address “grave concerns about the

procedures employed in these cases” that “warrant correction”).

42. The most glaring examples of this occurred at the July 2 hearing on

Bailey’s motion for summary judgment. As explained, supra p. 11, the circuit court

went forward with the summary judgment hearing after being advised by the

Governor’s counsel that the court lacked jurisdiction because the certified order of

remand from the federal district court had not been entered in the circuit court, as

required under 28 U.S.C. § 1447(c). SR1115-27; see also Hartlein v. Illinois Power

Co., 151 Ill. 2d 142, 154 (1992) (after a removal petition is filed, “the State court

loses jurisdiction to proceed further until the case is remanded”). Furthermore, the

circuit court proceeded to hear argument on the summary judgment motion only

two days after it was noticed, depriving the Governor of the opportunity to file a

response brief, in violation of its local rules, which permit a summary judgment

hearing no sooner than 10 days from a properly served notice of hearing. SR1111-

92; see also Rules of Practice, Circuit Court of Illinois, Fourth Judicial Circuit, Rule

5-1(3).

43. Then, based on Bailey’s oral request at the summary judgment

hearing, and again without affording the Governor an opportunity to respond, the

circuit court purported to grant class-wide relief. But to maintain a class action,

Bailey was required to plead and prove facts sufficient to show that a proposed class

action would satisfy the four statutory prerequisites set forth in 735 ILCS 5/2-801—

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that is, that (1) the proposed class is so numerous that joinder of all members is

impracticable; (2) there are questions of fact or law common to the class, which

common questions predominate over any questions affecting only individual

members; (3) the representative parties will fairly and adequately protect the

interest of the class; and (4) a class action is an appropriate method for the fair and

efficient adjudication of the controversy. See Weiss v. Waterhouse Securities, Inc.,

208 Ill. 2d 439, 453 (2004) (“The showing that Weiss must make in seeking class

certification is correspondingly higher than the showing he must make to withstand

a motion to strike class allegations. Unlike the class action prerequisites at

certification, here they are not a matter of proof, but of pleading.”). The circuit

court did not pretend to hold Bailey to this burden.

44. Indeed, not only did Bailey fail to plead, much less prove, facts

sufficient to bring his complaint within the statutory prerequisites, he did not file a

motion for class certification, which would have afforded the Governor an

opportunity to challenge the sufficiency of Bailey’s class claims. Yet the circuit

court purported to grant class certification. By proceeding this way, the circuit

court not only ignored settled precedent, it violated the due process rights of absent

class members, by binding them to counsel, a class representative, and a legal

position potentially adverse to their interests, in violation of due process. See

Barliant v. Follett Corp., 74 Ill. 2d 226, 235-36 (1978) (“Due Process requires that

the representatives be adequate before absent class members will be bound by the

results of the suit.”).

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45. In short, throughout these proceedings, the circuit court has time and

again been willing to take shortcuts and ignore procedural protections to the

detriment of the Governor. In addition, the court has made numerous statements

on the record indicating open hostility toward the Governor and his actions to

protect the health and safety of Illinoisans during the Covid-19 crisis. See supra pp.

3, 10. As just two examples, the court suggested that Covid-19 is a hoax and has

also deemed the Governor’s actions “tyrannical.” SR391, 1187.

46. Given the circuit court’s prior statements and actions, it may approach

the pending contempt petition with the same willingness to violate critical

procedural safeguards if this Court does not exercise its supervisory authority. In

fact, the manner in which the circuit court has handled Bailey’s contempt petition

thus far suggests that it will not afford the Governor all of the protections to which

he is entitled.

47. At the threshold, the court has not made clear whether it is construing

the petition as civil or criminal in nature. Although Bailey styled his petition as

seeking a finding of “indirect civil contempt,” his request that the Governor be

“punished” (including by being jailed), SR1733-35; see also supra p. 14, suggests

that he may be seeking criminal contempt, see Felzak v. Hruby, 226 Ill. 2d 382, 391

(2007) (“Civil contempt is a coercive sanction rather than a punishment for past

contumacious conduct.”); People v. Warren, 173 Ill. 2d 348, 368 (1996) (Unlike civil

contempt, “criminal contempt . . . is punitive in nature and instituted to punish.”).

If Bailey is seeking criminal contempt, then the Governor would be “entitled to

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constitutional protections that are afforded to any other criminal defendant,” People

v. Lindsey, 199 Ill. 2d 460, 471 (2002), including, inter alia, the right to a change of

judge, the right to a jury trial (when incarceration exceeds six months or any fine

exceeds $500), the right to present evidence, subpoena witnesses, and confront and

cross-examine witnesses, and the right to be presumed innocent and against self-

incrimination, see In re Marriage of Pavlovich, 2019 IL App (1st) 172859, ¶ 31; In re

Marriage of Betts, 200 Ill. App. 3d 26, 58 (4th Dist. 1990). But the hearing the

circuit court scheduled for August 14, directing the Governor to “show cause” why

he should not be held in contempt, affords none of these protections; thus, if the

hearing is, in fact, to address criminal contempt, this method of proceeding will

violate the Governor’s due process rights. See People v. Covington, 395 Ill. App. 3d

996, 1008 (4th Dist. 2009) (in criminal contempt proceedings, “a defendant cannot

be required to ‘show cause’ why he should not be held in contempt, because it

amounts to an impermissible shifting of the burden of proof”).

48. Worse still, whether civil or criminal, the circuit court intends to

proceed with this hearing notwithstanding that Bailey’s contempt petition is

obviously frivolous.

49. To begin, the July 2 order is not enforceable because it did not resolve

all claims against all parties. See Ill. Sup. Ct. R. 304(a) (“any judgment that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all

the parties is not enforceable or appealable”); accord John G. Phillips & Assocs. v.

Brown, 197 Ill. 2d 337, 345 (2001). An unenforceable order cannot serve as the

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basis for contempt. See In re Marriage of Santa Cruz, 179 Ill. App. 3d 611, 620 (2d

Dist. 1989).22

50. Additionally, while the July 2 order granted Bailey declaratory relief,

it included no injunction barring the Governor from taking, or requiring the

Governor to take, any action. Indeed, had the order included injunctive relief, the

Governor could, and would, have promptly appealed pursuant to Illinois Supreme

Court Rule 307(a). Because “[p]unishment for contempt” is “a drastic remedy,” “it is

required that the mandate of the court must be clear before disobedience can

subject a person to punishment.” O’Leary v. Allphin, 64 Ill. 2d 500, 514 (1976). An

order, like the July 2 order, that does not direct the defendant to act, or refrain from

acting, does not qualify. Indeed, for this reason, the United States Supreme Court

long ago settled that noncompliance with a declaratory judgment “is not contempt.”

Steffel v. Thompson, 415 U.S. 452, 471 (1974) (cleaned up).

51. Notwithstanding that the contempt petition is baseless for numerous

reasons, the circuit court promptly scheduled a hearing requiring the Governor to

“show cause” why he should not be held in contempt. The court’s decision to take

the petition to a hearing under these circumstances, in conjunction with the court’s

prior actions and statements on the record, suggests that it might act on the

22 Moreover, the circuit court lacked jurisdiction when it issued the July 2 order.
The federal district court’s certified order of remand was not filed on the circuit
court’s docket until July 6. SR1229. Thus, on July 2, jurisdiction had not re-vested
in the circuit court. See Hartlein, 151 Ill. 2d at 154. And because the circuit court
lacked jurisdiction, its order is void, see In re Marriage of Mitchell, 181 Ill. 2d 169,
174 (1998), and cannot be a basis for contempt, see In re R.R., 92 Ill. 2d 423, 426
(1982).

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petition in excess of the scope of its authority. The possibility that this could occur,

especially in the midst of a global pandemic, warrants this Court’s intervention.

CONCLUSION

Defendant-Petitioner J.B. Pritzker, in his official capacity as Governor of the

State of Illinois, requests that under Illinois Supreme Court Rule 383, this court

immediately stay the contempt hearing scheduled for August 14, 2020, in this case

pending the resolution of this motion. Additionally, the Governor requests that this

Court answer the underlying legal question raised by this case, which is whether

the Governor has acted within the scope of his authority under the Act and Illinois

Constitution in issuing disaster proclamations and executive orders in response to

the Covid-19 pandemic. In the course of definitively answering that important

question, this Court should stay the proceedings below, expedite the response to

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this motion, and ultimately reverse the circuit court’s July 2, 2020 order.

Respectfully submitted,

KWAME RAOUL
Illinois Attorney General

JANE ELINOR NOTZ

Solicitor General

By: /s/ Sarah A. Hunger

SARAH A. HUNGER
Deputy Solicitor General
NADINE J. WICHERN
Assistant Attorney General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-5202
Primary service:
CivilAppeals@atg.state.il.us
Secondary service:
shunger@atg.state.il.us

Attorneys for Defendant-Petitioner

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No. __________

IN THE
SUPREME COURT OF ILLINOIS

DARREN BAILEY, ) On Motion for Supervisory Order

) under Illinois Supreme Court
Plaintiff-Respondent, ) Rule 383,
)
and ) From the Circuit Court for the
) Fourth Judicial Circuit, Clay
THE HONORABLE JUDGE ) County, Illinois, No. 2020 CH 6,
MICHAEL D. McHANEY, )
) The Honorable
Respondent, ) MICHAEL D. McHANEY,
) Judge Presiding.
v. )
)
GOVERNOR JAY ROBERT )
PRITZKER, in his official capacity, )
)
Defendant-Petitioner. )

ORDER

THIS CAUSE COMING TO BE HEARD on motion of Defendant-Petitioner

for supervisory relief under Illinois Supreme Court Rule 383; due notice having
been given; and the Court being fully advised,

IT IS HEREBY ORDERED that the motion for this Court to exercise

emergency supervisory authority to stay the circuit court’s proceedings
on Plaintiff-Respondent’s contempt motion, which is currently scheduled
for a hearing on Friday, August 14, 2020, is GRANTED / DENIED.

In addition, IT IS HEREBY ORDERED that the motion for this Court to

exercise supervisory authority to stay the entirety of the circuit court’s
proceedings in this case pending its ruling on the merits of the circuit
court’s July 2, 2020 order is GRANTED / DENIED;

and it is ORDERED that the motion for this Court to exercise supervisory
authority to reverse the circuit court’s July 2, 2020 order on the merits is
GRANTED / DENIED.

SUBMITTED - 10049269 - Nadine Wichern - 8/10/2020 1:04 PM

 126261

ENTER: ______________________________
JUSTICE
DATED: ______________

SARAH HUNGER
Deputy Solicitor General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-5202
Primary e-service:
CivilAppeals@atg.state.il.us
Secondary e-service:
shunger@atg.state.il.us

SUBMITTED - 10049269 - Nadine Wichern - 8/10/2020 1:04 PM

 126261

CERTIFICATE OF FILING AND SERVICE

I certify that on August 10, 2020, I electronically filed the foregoing

Emergency Motion for Supervisory Order Under Illinois Supreme Court Rule 383
with the Clerk of the Illinois Supreme Court by using the Odyssey eFileIL system.

I further certify that another participant in this matter, named below, was
served on August 10, 2020, by transmitting a copy from my e-mail address to all
primary and secondary e-mail addresses of record.

Thomas G. DeVore
tom@silverlakelaw.com

I also certify that the other participant in this matter, named below, is not
a registered service contact on Odyssey eFileIL system, and thus that participant
was served by placing a copy of said emergency motion in an envelope bearing
proper prepaid postage and directed to the address indicated below, and depositing
the envelope in the United States mail at 500 S. Second Street, Springfield, Illinois
62701, before 5:00 p.m. on August 10, 2020.

The Honorable Michael D. McHaney

Clay County Courthouse
111 Chestnut
Louisville, IL 62858

Under penalties, as provided by law pursuant to section 1-109 of the Illinois

Code of Civil Procedure, I certify that the statements set forth in this instrument
are true and correct to the best of my knowledge, information, and belief.

/s/ Nadine J. Wichern

NADINE J. WICHERN
Assistant Attorney General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-1497
Primary e-service:
CivilAppeals@atg.state.il.us
Secondary e-service:
nwichern@atg.state.il.us

SUBMITTED - 10049269 - Nadine Wichern - 8/10/2020 1:04 PM