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Judge Weighing Dismissal Of COVID-19 Lawsuits

Rep. Darren Bailey (left), R-Xenia, and his attorney, Thomas DeVore, speak to reporters July 2 outside the Clay County Courthouse in Louisville. Their case has been moved to Sangamon County, where a judge is considering a motion from the state to dismiss the case and others like it.

SPRINGFIELD — A circuit court judge in Springfield is now weighing whether to dismiss lawsuits by Republican Rep. Darren Bailey and others challenging Gov. JB Pritzker’s use of emergency powers during the COVID-19 pandemic.

Bailey, from Xenia, originally filed his lawsuit in April in Clay County Circuit Court, in southern Illinois, arguing that Pritzker overstepped his authority by issuing successive 30-day disaster declarations and then using the emergency powers granted him under the state’s Emergency Management Act to order the closure of certain businesses, schools and public gatherings.

He also argued that Pritzker overstepped his bounds by issuing a statewide disaster declaration when the severity of the pandemic varies widely in different parts of the state.

Bailey’s case was one of several cases filed around the state, all by Greenville attorney Thomas DeVore. Those cases were eventually consolidated into one case in Sangamon County Circuit Court.

During a hearing Wednesday, Assistant Attorney General Darren Kinkead argued that all of the cases should be dismissed because, in the case of public health emergencies, the state’s Emergency Management Act gives the governor broad authority to act proactively in order to prevent the spread of a disease.

Specifically, the law allows for the declaration of a public health emergency whenever there is “widespread exposure to an infectious or other toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population.”

Kinkead argued that it was “legally irrelevant” whether or not there have been a large number of cases or deaths in a particular county because the statute requires only the existence of widespread exposure and a risk of substantial future harm.

And even if the plaintiffs could get past that hurdle, Kinkead argued, the cases should still be dismissed because the plaintiffs had not provided evidence that there is no public health emergency in their county.

He pointed specifically to Bailey’s hometown in Clay County, which last week was put on a list of counties at the warning level for a surge in COVID-19 cases. As of Sunday, according to the Illinois Department of Public Health, there were 51 new confirmed cases of the disease in the county over a seven-day period and the average test positivity rate during that time stood at 14.8 percent.

DeVore, however, argued that the lawsuits should be allowed to proceed because that’s the only way the plaintiffs can conduct depositions and gather the evidence necessary to prove their case. He said it wasn’t necessary for the plaintiffs to demonstrate all the evidence needed to win their case in their initial pleadings.

As the hearing ended, Judge Raylene D. Grischow said she intends to rule within the next two or three weeks. She gave attorneys on both sides until Oct. 23 to submit proposed orders. She said she will use one of the proposals as the basis for the final order.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.

Capitol News Illinois

Capitol News Illinois

Capitol News Illinois is a nonprofit news service operated by the Illinois Press Foundation that provides coverage of state government to newspapers throughout Illinois. It is funded by donations from the Illinois Press Foundation and the Robert R. McCormick Foundation. The mission of Capitol News Illinois is to provide credible and unbiased coverage of state government. Capitol News Illinois provides year-round, daily coverage of the Legislature, including committee hearings; state agencies and issues; state office holders; and the Illinois Supreme Court and legal matters.

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