* The attorney general has filed a motion with the Illinois Supreme Court to transfer all of attorney Tom DeVore’s latest round of cases to Sangamon County…

In short, although filed in five different counties, the five above- captioned cases were filed on the same day by the same attorney and seek the same declaratory and injunctive relief against the same defendant, the Governor. And that attorney (DeVore) has indicated that he “is ready to file lawsuits in other counties across the state.”

* Some back story…

This is the most recent series of lawsuits filed by DeVore in multiple jurisdictions that challenge the Governor’s actions to address the COVID-19 pandemic. Six weeks after the Governor first declared an emergency, on April 23, 2020, DeVore filed Bailey v. Pritzker, No. 2020CH6 (Ill. 4th Jud. Cir. Ct.). In that lawsuit, DeVore argued that the Governor’s proclamations and executive orders exceeded his authority because they extended more than 30 days beyond March 9, the date on which the Governor first declared the COVID-19 pandemic a disaster. DeVore subsequently raised the same argument in three other lawsuits. But this argument—that the Governor’s ability to take action to address the pandemic expired 30 days after March 9—has been rejected by every court to have addressed it, save one: the Circuit Court of Clay County, where DeVore filed Bailey and Mainer. In Clay County, attorney DeVore twice obtained a temporary restraining order (“TRO”) against the Governor’s executive orders from the same judge, and both times, after the Governor appealed those TROs under Illinois Supreme Court Rule 307(d), DeVore withdrew his request for a TRO. By doing that, DeVore evaded appellate review of these outlier rulings.

In another recent series of cases, DeVore filed lawsuits in multiple counties on behalf of plaintiffs challenging the face covering requirement as applied to teachers and students. And in yet another, DeVore filed a number of cases arguing that the Governor lacks authority under the Act to suspend nonessential business operations. When the Governor removed three of those actions to federal court, DeVore’s law firm voluntarily dismissed those cases, thus evading review of these claims by the federal judiciary.

* On-point footnote…

As another indication that these actions have sown confusion and uncertainty and have inhibited a clear resolution of the dispute over the Governor’s authority, DeVore has described the July 2, 2020 summary judgment ruling in the Bailey case as giving every Illinoisan the right to do as they please. If the July 2 ruling had that legal effect—which the Governor disputes—then there would be no legal reason to file new lawsuits to challenge whether the Governor had the authority to declare a statewide disaster. Consolidating the new cases will serve to avoid confusion and uncertainty, and may expedite appellate review and a final resolution of this dispute.

* Aside from the plaintiffs’ names, there is only one other factual difference between DeVore’s new set of cases…

The theoretical possibility that the court could answer the threshold legal question in favor of the plaintiffs does not alter this analysis. The complaints present many common factual allegations.And the few factual differences among the complaints are limited to the number of residents who have tested positive or who have died from COVID-19, as well as a calculation of the infection rates based on county population. These facts are easily ascertainable matters of public record, allowing for streamlined factual development in a consolidated case without witness testimony. But in any event, focusing on these facts ignores that the key inquiry here is the statewide occurrence and threat of sickness resulting from COVID-19, rather than the number of cases and deaths in any given county at any discrete point in time.

Critically, allowing one court to resolve the threshold question will avoid the expenditure of resources before multiple courts, as well as the risk of conflicting rulings and ensuing public confusion. The prospect of public confusion and wasted resources is particularly detrimental in the present context of a global pandemic, where statewide consistency on public safety directives is critical.

* The governor’s legal argument…

These cases thus present a threshold question of statutory interpretation and involve a common issue of law: whether the declaration of a disaster in a county based on the existence of a public health emergency requires evidence of illness to a specific number of people in that county. According to plaintiffs, the definition of “public health emergency” cannot be satisfied without such a showing. The Governor disagrees with plaintiffs’ position as a matter of law. The plain text of the statute authorizes the Governor to declare a disaster due to a public health emergency based on evidence of “an occurrence or imminent threat of an illness or health condition” caused by a novel infectious agent that poses a high probability of widespread exposure. 20 ILCS 3305/4. Indeed, the Act confers authority on the Governor to issue disaster proclamations, 20 ILCS 3305/7, when there is “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” or “public health emergencies” […]

Merits aside, however, these cases are appropriate for transfer and consolidation because answering the common question of law they present will not require any factual development, making the question amenable to resolution through consolidated pre-trial proceedings such as a motion to dismiss (which the Governor intends to file). If the court concludes that the Governor has the authority to declare a statewide disaster in light of COVID-19, then that will end the analysis without consideration of the facts in each individual county concerning the number of residents who have tested positive for COVID-19. As such, it would make sense and conserve judicial resources for one court to answer that predominant question of law.

* But the AG may need to file an amended motion. Here’s Mike Miletich…

DeVore filed lawsuits for clients in Clinton, Edgar, Richland, and Sangamon counties using this argument last week. He also presented his own case against the governor in Bond County. The number of cases grew Monday with cases filed in Montgomery, Kendall, Winnebago, Grundy, and White counties.

* Mike also interviewed DeVore…

“If there’s no disaster in Clay County, I can assure you I’m gonna have a client that’s going to go to the Clay County school districts and say ‘Let our kids in. You can’t keep us in remote learning because it’s not allowed.’ There’s no disaster,” DeVore exclaimed.

DeVore believes judges should have their own decision on if there is a disaster locally.

“Then you can’t have emergency power being wielded in that county. You can’t have school districts engaging in remote learning in that county,” DeVore said during a virtual interview Monday. “You can’t be doing all this stuff because there is not a disaster.”

…Adding… DeVore is also searching for a plaintiff in Macoupin County. From Facebook…

Hello, citizens and friends of Macoupin County. I had a great talk with State Representative Darren Bailey and Constitutional Attorney Thomas DeVore this morning.

Here’s the deal. We (Macoupin County) just need one person (a resident of Macoupin County) to step up and file a lawsuit against His Royal Highness King Jay Bob. The lawsuit would be over the fact that there is currently NO state of emergency here in Macoupin County. [We aren’t disputing that a true state of Emergency may indeed exist in Chicago as well as in certain parts of the 618.]

Warning: There will be some fame attached to stepping up and filing a lawsuit against Pritzker, and probably just as much unwanted hatred from his brownshirt loyalists as well.