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Downstate judge might still have a say on stay-at-home order as Memorial Day weekend looms

It’s the kind of legal gamesmanship that leaves unclear where things could stand by Friday evening, with Illinois headed into a holiday weekend.

CHICAGO, IL - MARCH 20: Illinois Democratic candidate for Governor J.B. Pritzker speaks during his primary election night victory on March 20, 2018 in Chicago, Illinois. Pritzker won the democratic primary against challengers Chris Kennedy and Daniel Bliss in the governor’s race. (Photo by Joshua Lott/Getty Images) ORG XMIT: 775144211
Governor J.B. Pritzker.
Getty

Despite a move by Gov. J.B. Pritzker on Thursday to thwart a serious legal threat to his stay-at-home order, a skeptical downstate judge who has said “the Bill of Rights is being shredded” by Pritzker still might have his say as Memorial Day weekend looms.

Thursday began with Pritzker seeming to scuttle a Friday afternoon hearing before Clay County Judge Michael McHaney, who had been poised to issue a final ruling in a challenge to Pritzker’s order from Republican state Rep. Darren Bailey. But the day ended with the setting of a new hearing — for a new case — in front of the same judge.

It’s the kind of legal gamesmanship that leaves unclear where things could stand by Friday evening, with Illinois headed into a holiday weekend. As of Thursday afternoon, court records showed McHaney was set to preside over a 1 p.m. hearing Friday in a newly filed lawsuit. In that case, James Mainer and HCL Deluxe Tan LLC are seeking a temporary restraining order as they challenge Pritzker’s coronavirus restrictions.

The lawsuit was filed on behalf of all citizens and businesses “similarly situated.” Downstate attorney Tom DeVore represents Mainer, HCL Deluxe and Bailey in the separate lawsuits.

Any order designed to undo Pritzker’s stay-at-home order would surely be met with immediate challenges in higher courts.

Through a state lawyer, Pritzker filed paperwork Thursday to move Bailey’s lawsuit away from McHaney and into federal court in East St. Louis. The governor made the move on the grounds that Bailey alleged a violation of his federal constitutional rights. DeVore denied that Bailey had raised such a claim.

Another Bailey lawyer, Steven Wallace, later asked the federal court to send the matter back to state court on an emergency basis. Wallace argued that Pritzker’s move was “perhaps the most outrageous invocation of federal jurisdiction imaginable” and insisted the federal court “should not countenance such an egregious attempt to neuter a state court.”

Attorney General Kwame Raoul’s office represents Pritzker in court. Annie Thompson, Raoul’s senior press secretary, said in a statement, “The law gives a defendant the right to remove a case to federal court when a plaintiff files a complaint in state court alleging a violation of rights that are enshrined (in) the U.S. Constitution, and we have done so in several other cases challenging the governor’s executive orders.”

Pritzker’s stay-at-home order has survived a series of religious challenges in federal court. The 7th U.S. Circuit Court of Appeals found Saturday that the stay-at-home order “does not discriminate against religious activities.” Another church made a bid Wednesday in federal court in Urbana for a temporary restraining order to allow outdoor religious services.

A state court judge in Sangamon County on Tuesday also denied a request for a temporary restraining order from a running store. The judge disagreed with an argument that Pritzker’s emergency powers during a disaster are limited to 30 days, following the lead of a federal judge who also recently dismissed that argument.

Still, in Clay County, McHaney had made his opposition to Pritzker’s stay-at-home order clear. He previously granted a temporary restraining order that freed Bailey — but no one else — from Pritzker’s edicts. That temporary restraining order has since been lifted, at Bailey’s request.

Last week, Bailey filed a revised complaint. At a hearing, McHaney said, “This case needs to be heard. I mean now.” The judge then set the hearing Friday — the one now unlikely to go forward — to hear a motion from DeVore for summary judgment.

“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,” McHaney said. “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 complained about the very tactic the governor employed Thursday — moving cases from state court to federal court. He told a 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.”