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Bailey files new lawsuit based on informal 2001 AG opinion

Thursday, May 14, 2020 - Posted by Rich Miller

* From the governor’s media briefing yesterday afternoon

Amy Jacobson from WIND asks if the Illinois attorney general has a written legal opinion that dates back to 2001 that essentially said that you are acting illegally. You did not have the power to issue the stay at home order beyond the initial 30 days according to this legal opinion.

* Tribune last night

Republican state Rep. Darren Bailey has filed an amended lawsuit in a downstate court challenging Gov. J.B. Pritzker’s stay-at-home order, contending that a 2001 Illinois attorney general document contradicts the state’s position on why the order could be extended beyond the initial 30 days.

The 2001 letter from then-Attorney General Jim Ryan to the state Emergency Management Agency director appears to respond to questions about foot-and-mouth disease and whether the governor could “exercise emergency powers in excess of 30 days after the declaration of a disaster.”

According to the letter, which is among the documents filed with Bailey’s lawsuit, Ryan wrote that he would “comment informally upon the questions you have raised.”

The act “clearly authorizes the governor to exercise emergency powers for up to 30 days,” Ryan wrote in the 2001 letter cited in the lawsuit. “A construction of its provisions to allow the governor to extend the 30-day period would render the limitation clause meaningless. A more reasonable construction, taking into consideration the other provisions of the act, is that the governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.”

* I reached out to the attorney general’s office for some clarification. This was an informal opinion and, contrary to the Tribune report, was not written by Attorney General Ryan

I will comment informally on the questions you have raised.

The AG’s offices told me the informal opinion was not about a human health risk, making it different than the current circumstances. And, despite the informal opinion from 2001, Attorney General Kwame Raoul has successfully argued the 30-day issue twice now. Once with a federal judge and also with a Cook County judge

Mahwikizi’s suit also asked the court to issue a declaratory judgment that Pritzker’s emergency powers under the Illinois Emergency Management Act expired April 8, or 30 days after he issued his March 9 disaster proclamation.

Gamrath rejected that argument, holding the IEMA Act gives Pritzker authority to extend his power beyond an initial 30-day period without approval from the legislature.

The 30-day limit, Gamrath wrote, only applies more strictly to a “discrete event — one that stops and starts in a relatively short amount of time.”

The COVID-19 pandemic, she wrote, “is not a discrete or isolated disaster. It is a dynamic pandemic, still ongoing.”

“This continuing disaster poses a threat that is underway and has not abated as quickly as a more typical natural disaster like an earthquake or tornado,” Gamrath wrote. ”When an emergency epidemic of disease occurs and a pandemic ensues, the [g]overnor has authority under the [a]ct to utilize emergency powers beyond a single 30-day period to protect the community and residents of the [s]tate.”

So, give Bailey credit for finding that informal opinion, but we’ll see if the move works.


  1. - Just Me 2 - Thursday, May 14, 20 @ 9:38 am:

    The Governor didn’t extend his order, he is issued a new one with different restrictions.

  2. - Oswego Willy - Thursday, May 14, 20 @ 9:38 am:

    So Amy Jacobson asked the question… Bailey uses the opinion…

    Interesting turn of events.

  3. - Esq - Thursday, May 14, 20 @ 9:41 am:

    AG opinions are not binding on the courts, so I am not sure a 2001 opinion letter is all that important.

  4. - Norseman - Thursday, May 14, 20 @ 9:50 am:

    The Wisconsin GOP now owns COVID-19 in their state. Does the IL GOP want to follow their lead?

    Silly me, IL has principled leadership that will respond as needed for the sake of all the citizens despite the politics being played by the GOP.

  5. - Bigtwich - Thursday, May 14, 20 @ 9:50 am:

    Attorney General opinions have some precedential value that ranks below court opinions. Such opinions are formalized and published.

    This letter is not there and can not be accurately called an Attorney General Opnion.

  6. - Jibba - Thursday, May 14, 20 @ 9:54 am:

    I’m not necessarily against limiting EOs to 30 days without additional legislative actions. I think JB is doing well, but I can foresee a more nefarious politician abusing this power. Maybe the GA needs to take this issue up after it gets clarified by the ILSC.

  7. - Oswego Willy - Thursday, May 14, 20 @ 9:55 am:

    - Norseman - is all over this.

    The Wisco GOP, i feel, politically, went too far, to put themselves now as an arbiter in this pandemic.

    First you had the embarrassingly ridiculous Wisco Speaker in essentially a HazMat suit asking folks to vote, a horrible look… now they prevailed to stop a chance to help keep Wisconsinites safe.

    Welp… they won.

  8. - Elliott Ness - Thursday, May 14, 20 @ 9:57 am:

    This is not foot and mouth disease, trying to use this letter is typical Bailey, grasping for straws after two straight home court losses. He does not seem to care about consequences beyond his self righteous, ego driven power trip. Glad his is not nor ever will be in charge of much of anything. I think he is using a post by the Edgar County Watchdogs as his research? Hate squared. Yep, give him credit…for being a clown.

  9. - Practical Politics - Thursday, May 14, 20 @ 9:57 am:


    Nope. What the Wisconsin Supreme Court did was to reject one size fits all extended executive orders issued without consulting the legislature. Localities and counties are still free to set restrictions in conformity with public health agencies (Dane County and the City of Milwaukee remain closed).

    This is where Pritzker may be tripped up. Situations are not identical in all 102 Illinois counties.

  10. - Precinct Captain - Thursday, May 14, 20 @ 9:59 am:

    Ryan’s note is also about a single confirmed case. We have lot more than a single case of COVID-19.

    If Darren Bailey hates Illinois so much he should move to Wisconsin.

  11. - Shytown - Thursday, May 14, 20 @ 9:59 am:

    I give Bailey credit for keeping his name in the news and credit to Amy J for attempts at relevancy.

  12. - Morty - Thursday, May 14, 20 @ 10:02 am:

    Pretty sure that letter found its way to Rep. Bailey via some Dan Proftiness. Amy certainly doesn’t have the journalistic chops to get that sort of thing on her own and her inability to recognize it wasn’t actually written by Ryan supports that, imo.

  13. - Annonin - Thursday, May 14, 20 @ 10:04 am:

    Gotta remember anything that passed through the JIMryan mill doesn’t really count since no one can tell you how FastEddie V got into the tobacco settlement windfall.

  14. - Riverside - Thursday, May 14, 20 @ 10:06 am:

    Although it addresses a completely different issue, AG Madigan issued an opinion which discusses the the Governor’s limited authority in relation to executive orders.

  15. - njt - Thursday, May 14, 20 @ 10:06 am:

    OW, luckily Dane County and Madison were ready and moved quickly to implement the guidelines at the local level:

  16. - Oswego Willy - Thursday, May 14, 20 @ 10:09 am:

    ===luckily Dane County and Madison were ready and moved quickly to implement the guidelines at the local level:===

    That is good. This is not directed towards you, so you know… this virus doesn’t recognize municipal, county, state, or country borders…

    But the Wisco GOP… they feel “they know“…

    Good on Dade and Madison.

  17. - Scott Cross for President - Thursday, May 14, 20 @ 10:11 am:

    Rich, thanks for linking to Judge Gamrath’s opinion. I hadn’t seen it and its an easy-to-read explanation and application of the law here.

  18. - Jocko - Thursday, May 14, 20 @ 10:16 am:

    ==The Wisconsin GOP now owns COVID-19 in their state.==

    It’s a good thing Covid only infects meatpackers…not the regular folks. /S

  19. - We'll See - Thursday, May 14, 20 @ 10:21 am:

    Does anyone else find irony in Jacobson and Bailey citing an opinion about foot and mouth disease?

  20. - Cubs in '16 - Thursday, May 14, 20 @ 10:29 am:

    ===…the governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.”===

    How would this even be possible when the legislature is unable to meet/vote in person?

  21. - OOO - Thursday, May 14, 20 @ 10:32 am:

    Setting aside the politics and whose side you’re on regarding the pandemic and the shutdown, can’t we all agree that a 30-day limit in a law has to mean something? I understand why legislators may not want to take any responsibility, but I argue that they need to get back in session and either endorse or reject the Governor’s decisions, by action or inaction. Let’s see what happens next week.

  22. - Rich Miller - Thursday, May 14, 20 @ 10:32 am:

    We’ll See, thanks for the coffee-spitting moment. lol

  23. - Hamlet's Ghost - Thursday, May 14, 20 @ 10:33 am:

    == How would this even be possible when the legislature is unable to meet/vote in person? ==

    This is water under the dam, now.

    The legislature is meeting next week. Pass a legislative solution that will replace the EOs and amend the law to close the potential loophole for future emergencies.

  24. - Oswego Willy - Thursday, May 14, 20 @ 10:39 am:

    === What the Wisconsin Supreme Court did was to reject one size fits all extended executive orders issued without consulting the legislature.===

    Now the Wisco GOP will own the infections of worse.

    Good. They can now go after the locals for family and friends catching the virus.

    They overplayed a hand to owning the virus response now.

    Better get more HazMat suits, Speaker.

  25. - Pundent - Thursday, May 14, 20 @ 10:40 am:

    =Situations are not identical in all 102 Illinois counties.=

    Illinois is not Wuhan province either. Your argument is premised on the notion that this has been or can be contained. It cannot. What started in Wuhan has now killed over 80K people across the country in cities and counties of all shapes and sizes. In fact some of those arguing for relaxed requirements are in counties with the highest per capita rates of disease. Do you really think that people like Darren Bailey are consulting with scientists and public health officials?

  26. - RNUG - Thursday, May 14, 20 @ 10:51 am:

    Copying my post from the bar association thread since it is applicable here also …

    So many unanswered questions.

    The various bar associations are coming at this as if it were legislation passed by the General Assembly and signed by the Governor; those laws are considered valid and constitutional … until they are proven not in court. So I get where the bar is going from.

    But do the Executive Orders issued by the Governor have the same presumption of law and constitutionality? I think we can say they have some presumption of legality because the GA did delegate power to the Governor in an emergency. And, so far, the GA has not exercised their power to override his EO’s, which implies the GA’s concurrence.

    That just gives an assumption of validity. It doesn’t resolve any constitutional issue. And it doesn’t resolve the question the Governor’s stated 30 days of power; the GA’s silence in the statute and during this crisis doesn’t clarify things.

    So we are left with a presumption of legality … but with a unclear basis for said presumption.

    I realize it is on the agenda for the upcoming GA session; the GA’s intention really does need to be made clear.

  27. - Rich Miller - Thursday, May 14, 20 @ 10:56 am:

    ===amend the law to close the potential loophole for future emergencies===

    You gonna get 60-30-1 for that?

  28. - Cassie - Thursday, May 14, 20 @ 11:11 am:

    I honestly don’t get the uproar about this. It seems absolutely reasonable that, if an emergency exists, a governor can declare an emergency for 30 days. That’s what he’s done. It’s what other governors have done and can do.

    If you are worried about abuse, there does need to be an underlying, demonstrable emergency which the emergency order actually goes some distance toward addressing. That seems relatively difficult to manufacture, but perhaps I’m just not thinking creatively enough?

  29. - Cassie - Thursday, May 14, 20 @ 11:13 am:

    That seems *quite* difficult to manufacture, I should say.

  30. - Norseman - Thursday, May 14, 20 @ 11:58 am:

    === it doesn’t resolve the question the Governor’s stated 30 days of power ===

    It’s legal until the Supreme Court says it’s not. The statute doesn’t prevent the governor from issuing subsequent executive orders.

    Given how the GOP has responded to this emergency with bombast and lawsuits, one can only accept the conclusion that their interests have been political and not the health and wellbeing of the citizens.

  31. - cover - Thursday, May 14, 20 @ 12:01 pm:

    ===amend the law to close the potential loophole for future emergencies===
    = You gonna get 60-30-1 for that? =

    Just think if something like this had happened with Rauner or (maybe worse) Blago in office. That alone might convince the GA to put some safeguards into the law while clarifying its intent.

  32. - Norseman - Thursday, May 14, 20 @ 12:05 pm:

    Practical, I’m not going to argue the decision since I don’t know WI law or the opinion and have know desire to waste my time reading it. But to couch this as some great win for the response is wrong. If a disease is focused in a locality or county, response goes from the local outward. When the disease is pervasive and spread quickly a larger regional and statewide approach is required. Having a piecemeal approach is horrible public health response policy. But the GOP is not concerned about public health response. It’s the economy silly, and the vulnerable who die will be considered warrior sacrifices on behalf of the GOP campaign message.

  33. - Pundent - Thursday, May 14, 20 @ 12:17 pm:

    =When the disease is pervasive and spread quickly a larger regional and statewide approach is required.=

    A disease that started in China only a few months ago and has now claimed over 80K lives. Given the history of this disease how anyone can argue that it’s not a problem everywhere is beyond me particularly when we can only test a fraction of the people who are walking around with it.

  34. - M - Thursday, May 14, 20 @ 12:20 pm:

    Who is funding all of Rep. Darren Bailey’s lawsuits? Rauner?

  35. - M - Thursday, May 14, 20 @ 12:31 pm:

    RUNG: “the GA’s intention really does need to be made clear.”

    We all know the GA votes will be divided between the Republicans and the Democrats. The Republicans want the showdown so they can blame the Democrats running against them. The whole Republican showdown appears to be a political one.

  36. - Eloy - Thursday, May 14, 20 @ 12:56 pm:

    Bailey didn’t find it as much as the Edgar County guys did, so credit where it’s due. Had everyone’s new superstar downstate plaintiff’s attorney actually did some legal research and located it, maybe Bailey wouldn’t have had to now file two different lawsuits.

  37. - Elliott Ness - Thursday, May 14, 20 @ 12:57 pm:

    Who is funding Bailey’s lawsuits? You are, he takes lots of government farm subsidies he doesn’t want folks to know about, hundreds of thousands….he has this figured out while he rails against prison guard, teacher and public union pensions

  38. - {Sigh} - Thursday, May 14, 20 @ 1:29 pm:

    = Who is funding Bailey’s lawsuits=
    Maybe Bailey Family Farms is selling some land? Heard land in that area has a nice dollar value.

Sorry, comments for this post are now closed.

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