* Filed by the attorney general in Clay County late yesterday…
It has been more than a month since Plaintiff Darren Bailey received precisely what his pleadings sought—a declaration by this Court that the Governor’s authority to respond to the Covid-19 pandemic under the Illinois Emergency Management Agency Act, 20 ILCS 3305 et seq. (“Emergency Management Act”) ceased to exist as of April 8. Order ¶ 3 (July 2, 2020) (“July 2 Order”). But even as Bailey championed this lawsuit as “freeing business and the people of Illinois” from “one-person rule” and a “tyrannical government,” in the real world nothing changed. The Court’s nonfinal, interlocutory order granting Bailey’s request for declaratory relief does not prevent the Governor from continuing to exercise his powers under the Emergency Management Act to protect the people of this State from the Covid-19 pandemic.
Public rhetoric notwithstanding, Bailey has made every effort to prevent this Court from issuing either an injunction that would bar the Governor from exercising Emergency Management Act powers, July 2 Order ¶ 5 (granting motion to withdraw request for injunction), or a final judgment that would resolve the parties’ dispute in this Court once and for all, Response to Defendants [sic] Motion to Dismiss ¶¶ 3–11 (July 22, 2020) (“July 22 Response”). The July 2 Order is neither final nor enforceable because it involves fewer than all issues and does not include “a finding that there is no just reason for delaying enforcement or appeal.” Reed v. City of Belleville, 13 Ill. App. 3d 1093, 1094 (5th Dist. 1973).
For his latest effort to keep this case in this Court and abuse the judicial process for political gain, Bailey now moves to add an additional count disputing whether a disaster currently exists in Clay County within the meaning of the Emergency Management Act. There is no reason why the Court should entertain the matter. This Court already determined that the Governor’s authority under the Emergency Management Act is limited to 30 days per disaster— regardless of whether a Covid-19 disaster continues to exist in Clay County (or anywhere else in the State). Bailey’s current motion to add a new count is just another maneuver to thwart appellate review of the Court’s ruling. The proposed additional count is also defective as a matter of law and fails to plead sufficient facts to state a cause of action. The motion to add it should be denied.
The Court should deny Bailey’s motion to add an additional count for four independent reasons:
First, Bailey’s proposed additional count fails to state a cause of action because the Emergency Management Act does not require the Governor to make disaster determinations on a county-by-county basis.
Second, Bailey’s proposed additional count fails to state a cause of action because he does not plead facts sufficient to show that there is currently no “public health emergency” in Clay County.
Third, Bailey lacks standing to pursue his proposed additional count because a decision in his favor will not redress his claimed injury. This is because Bailey fails to challenge an independent basis for the Governor’s authority to exercise emergency powers—the existence of an “epidemic” in Clay County.
Fourth, Bailey’s proposed additional count is untimely and, in the context of his many other gambits designed to delay the conclusion of these proceedings, reflects an ongoing bad-faith effort to abuse the judicial process for political gain.
According to Bailey, the fact that no one has yet to die in Clay County from Covid-19, and only 9 people to date have contracted it, means there is, in his opinion, no “high probability” that “a large number of deaths” will occur—and likewise no “high probability” of “widespread exposure” to a virus “that poses a significant risk of future harm to a large number of people.”
Bailey’s argument reduces to the proposition that an event has no probability of occurring until it has occurred. Or to put it another way, a highly contagious and deadly virus has no probability of causing widespread harm until it does. This reasoning is stunningly illogical, and the Court should not accept it. […]
Ordinarily, a litigant who had convinced a court to rule in his favor on the merits of his case would take immediate action to effectuate that result. Here, Bailey did the opposite. He resisted every effort to dismiss his one outstanding count and transform the Court’s interlocutory order into a final judgment. July 22 Response ¶¶ 3–11. To this day, the July 2 Order binds no one and has no legal effect because Bailey apparently prefers it to remain a meaningless piece of paper—in stark distinction to the far-reaching consequences he ascribes to it in the public eye.
Bailey’s proposed additional count is designed to further his strategy to drag out this case without an appealable order. Bailey intends for this Court not to resolve his dispute but rather to amplify it. This is an abuse of the judicial process.
…Adding… Rep. Darren Bailey speaking live on Facebook yesterday…
Its no surprise that our numbers even as the governor suggested yesterday in southern Illinois are increasing you know per capita, per our population. I personally still do not feel threatened by those numbers and statistics. When we see we’re testing, tests are up and so obviously so are potential positive results. What is good is that I am hearing, I have heard so far nothing but success – trying to get some doctors online eventually – regarding the use of hydroxychloroquine and the z pack process. Several area hospitals, doctors, are prescribing that and its working. I have friends who have tested positive. I have people who I have known whose family members are in the hospital. I’ve talked anyone I can get in contact with and that I can talk to locally and just kind of understand and hear and so far the people that I’ve talked to would not have changed anything. The one gentleman the we’re praying for, that is in the hospital, an older man, he had the choice to make whether or not to be in and out. And he just simply didn’t want to live as restricted because we don’t know when this is going to end if it is ever going to end. […]
But regarding the older gentleman that’s in St. Louis in ICU, the family, it just, it is what it is.