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Showdown looming over Pritzker’s stay-at-home order before skeptical downstate judge

A Clay County judge, who is clearly opposed to the order, told lawyers the controversy “begs to be resolved. It’s got to be resolved in this court, and it’s going to be and it’s going to be resolved Friday.”

Gov. J.B. Pritzker announces an extension of the stay at home order for Illinois as well as a mandatory face covering order at his daily Illinois coronavirus update at the Thompson Center, Thursday, April 23, 2020, in Chicago. (Tyler LaRiviere/Chicago Sun-Times via AP) ORG XMIT: ILCHS700
Gov. J.B. Pritzker announces an extension of the stay-at-home order for Illinois as well as a mandatory face covering order at his daily Illinois coronavirus update last month at the Thompson Center in Chicago.
Tyler LaRiviere/Sun-Times

The stage appears to be set for a downstate judge, who already has said “the Bill of Rights is being shredded” by Gov. J.B. Pritzker’s stay-at-home order, to try to knock it down at a hearing set for Friday afternoon.

The potential showdown comes as the governor faces rising pushback against his edicts. Though his stay-at-home order has so far survived tests in federal court, Clay County Judge Michael McHaney has made his opposition to it clear.

“This issue needs resolved,” McHaney said at a court hearing last week, according to a transcript obtained by the Chicago Sun-Times. “It begs to be resolved. It’s got to be resolved in this court, and it’s going to be, and it’s going to be resolved Friday.”

Any attempt to undo the stay-at-home order surely would be met with attempts at quick appeals by Pritzker and Attorney General Kwame Raoul.

“We will continue to defend the governor’s statutory and constitutional authority to protect the health and safety of Illinois residents, and we are evaluating our options,” said Annie Thompson, Raoul’s press secretary.

McHaney is the same judge who, last month, entered a temporary restraining order that freed state Rep. Darren Bailey — but no one else — from Pritzker’s stay-at-home order. That temporary restraining order has since been lifted, at Bailey’s request.

Bailey last week filed a revised complaint in the case. During a court hearing Friday, state lawyer Thomas Verticchio tried to convince McHaney the case should be moved to Sangamon County, arguing Bailey’s new complaint is drafted so that it potentially affects “every citizen in this state.”

“Mr. Bailey could have crafted this complaint to impact him, only him,” Verticchio argued. “He chose not to do that. He went far reaching, far reaching. His relief touches every citizen of the state.”

McHaney shot Verticchio down. He said any lawsuit against Pritzker’s stay-at-home order “that even mentions the word ‘constitutional,’ ‘United States Constitution,’ is immediately whisked to federal court,” where Pritzker’s stay-at-home order has survived a series of religious challenges.

The judge told the state lawyer, “I’m not accusing you ... of judge shopping.” But then he added, “If it walks like a duck and quacks like a duck.”

Finally, McHaney said, “this case needs to be heard. I mean now.” Bailey attorney Tom DeVore told the judge he would file a summary judgment motion Monday, and the judge set a hearing for Friday.

The judge told the lawyers, “I don’t need to hear two days of testimony from a medical expert that if these executive orders aren’t continued the world is going to end. I don’t need to hear that. This is a legal issue, a legal argument on whether this governor had the authority to issue this executive order under Illinois law and pursuant to the Illinois Constitution. Period. That ain’t hard.”

The judge also overruled complaints from Verticchio that the state wouldn’t have time to prepare for the hearing by Friday, insisting that, “It’s not asking too much pursuant to the citizens of this state that every hour that goes by they’re being deprived of the right to leave their house or make a living.”