SANGAMON COUNTY, ILLINOIS DeC2 12 gy IN RE: COVID-19 LITIGATION ‘Case No: 2020-MR-589 Grae Honorable Raylene D. Grischow OPINION AND ORDER ON MOTION TO RECONSIDER Governor JB Pritzker (“Governor”) is the defendant in Clay County Case No: 20-CH-6 filed by State Representative Darren Bailey (“Bailey”) and consolidated inthis matter by order of the Illinois Supreme Court, The cause is now before the Court on the Governor's motion to reconsider the July 2, 2020 summary judgment order granting summary judgment on Counts IT and IIL Bailey elected to forego a written response tothe motion o reconsider. The parties agreed to waive orl arguments that were scheduled for December 21, 2020 and requested the Court rule based on the Governor's written submissions For the reasons set forth below, the Court, having considered the record, including all filed pleadings, memoranda, exhibits, ransripts of proceedings, and facts of which the Court may take judicial notice, grants the Governor's motion to reconsider. PROCEDURAL HISTORY ‘On April 23,2020, Bailey filed this action in is personal capacity against the Governor inthe Fourth Judicial Cireuit in Clay Count. The case was assigned to Judge Michael MeHlaney. The complaint challenged the Governor's authority to issue disaster proclamations and executive orders to combat the COVID-19 pandemic, Judge McHaney granted the requested ‘Temporary Restraining Order on April 27,2020. Aer the Governor appealed, Bailey agreed to vacate the TRO. a(Case No: In Re: COVID-19 Litigation 20.MR-S89 (On May 15,2020, Bailey was allowed to file an amended complaint which consisted of four counts: Count I, declaratory judgment thatthe April 30, 2020 proclamation did not satisfy the definition of disaster in the IEMA/ unt I, declaratory judgment tat dhe Governor's emergency authority lapsed 30 days after the inital disaster proclamation on March 9, 2020; Count I, declaratory judgment that the Department of Public Health Act, 20 ILCS 2305/2, controls the State's response tothe COVID-19 pandemic rater than the llnois Emergency Management Agency Act; and Count IV, injunctive relief: On that same dat, the Governor's motion to transfer pursuant to forum non conveniens was argued and denied. Judge Metlaney ten ordered Bailey to file @ motion for summary judgment on or before May 18, 2020, nd required the Governor to file a writen response ono before May 21,2020 (On May 18, 2020, Bailey filed a mation for summary judgment on the tree declaratory juigment counts, but not on Count IV, which sought injunctive relief, The Clay County Local Rules provide that a motion for summary judgment will not be heard before ten (10) days after service ofthe notice of motion unde Supreme Court Rule 11, The court scheduled a hearing date four days ater on May 22, 2020.' instead of filing response to Bailey's motion for surumary Judgment, counsel forthe Governor filed a Notice of Removal in Federal Court ‘Afer the removal issue was resolved withthe Federal Cour, the matter was emanded to Clay County on une 28,2020. On June 30,2020, Bailey fled a noice of hearing scheduling the ‘motion for summary judgment for orl argutnents on July 2, 2020 On July 2, 2020, arguments were heard onthe maton for summary judgment and counsel forthe Governor argued the Clay County Court didnot have jurisdiction because a cetified copy cis ot known wheter his hearing date was objected toby counsel forthe Governor. The dacket shee shows it vas objected ob counsel or the Governor athe July 2, 2020 hearing Page2 of 1(Case No: In Re: COVID-19 Litigation 20-MR-589 ofthe remand order had not been filed with the circuit clerk Judge Metlaney decided Jurisdiction was proper and proceeded with the hearing. At the conclusion of the hearing, Judge MeHlaney orally denied Bailey's motion for summary judgment as to Count I, granted Bailey”s ‘oral motion to dismiss Count IV seeking injunctive relief with prejudice, and granted Bailey’s ‘motion for summary judgment on Counts If and II, Judge McHaney stated that the basis For his ruling was thatthe Governor's exercise of his emergency powers was “absolute power and it is, unconstitutional" Later inthe day Judge MeHaney issued a writen order. As the Order pertained to Count If, the judge declared that the Governor's emergency powers under Section 7 ‘of the illinois Emergeney Management Agency Act lapsed on April 8, 2020 and that any ‘executive orders in effect ater April 8, 2020 relating to COVID-19 “are void ab initio.” Regarding Count Il, te judge declared the “proper authority to restrict a citizen's movement or activities andlor forcibly close ther business premises due to any public health risks has been expressly delegated tothe Department of Health.” The judge granted Bailey's request to dismiss Count IV with prejudice and granted Bailey's oral request that his amended complaint be a representative action and apply to all citizens ofthe State of lino The Order didnot include any injunctive relief against the Governor, nor didi include any Rule 304) findings making the Ode a final, enforceable and appeatabe oder. ‘On August 5, 2020, Bailey filed a petition asking Judge McHlaney to enter an orde to show cause why the Governor should not be judged in contempt of court, which was granted on ‘August 7, 2020. The illinois Supreme Cour, on its own motion pursuant o Rule 384, removed this action from Clay County and transferred it to Sangamon County. 2 Te jrsdetional issue has aeady been deve by tis Court. Sethe Onder dadOetober 19,2020, Se ly 2, 2020 transept, p. 7, Lins 89. See aso Judge McHaney's Orde of uly 2, 2020.2 Page 3 of(Case No: In Re: COVID-19 Litigation 20.MR-389 On October 22,2020, Bailey filed a Verified Petition for Adjudication of Indirect Civil Contempt. On November 2,2020, the Govemor filed a Motion to Reconsider July 2, 2020 Summary Judgment Order. On that same dat, this Court entered an Amended Brieling Onder seiting forth deadlines as it pertained tthe State's Motion to Reconsider the July 2,2020 summary judgment order. Despite the deadlines outined in the Amended Briefing Onder, Bailey chose not to file any writen pleadings with this Cour. LEGAL STANDARD The intended purpose of a motion to reconsider is to bring tothe cour’ attention newly discovered evidence, changes in the la, o erots in the court's previous application of existing, law, Landeras v. Equity Prop. & Dev.,321 Il. App. 3d 57, 65, 747 N.E.24 391, 399 (2001)(citing Gardner v. Navistar Intern Transport Corp.,213 HILApp.3d 242, 248, 157 lL Dee. 88, $71 N.£.2d 1107 (4" Dist 2008)), Asa general rule a motion to reconsider is addressed to the tral courts sound discretion. However, a motion o reconsider an order granting summary judgment raises the question of whether the judge erred in his previous application of existing law. Sacramento Crushing Corp. v. CorreeW/All Sewer, In., 318 Il. App. 34 571, 577, 742 N.E.2d 829, 835 (I* Dist 2000)(citing Koroghoun v. Chicago Title & Trust Co.,213 INLApp.3d (622, 627, 157 II_Dev, 690, $72 N.E.2d 1154 (1* Dist. 1991)). The Governor has asked this ‘Court to reconsider and vacate Judge Mctlaney's July 2, 2020 order granting summary judgment in favor of Bailey on Counts I and III and vacate the Order applying ito all citizens of the State of tlinois. sort‘Case No: In Re: COVID-19 Litigation 20.MR-589 ANALY: Motion for Summary Judgment - Count If Judge McHlaney's Onder declared that the Governor's emergency powers under Section 7 of the IEMAA lapsed on April 8, 2029 and that ny executive orders relating to COVID-19 were “void ab init.” tn entering this Onde, the Clay County cour erred in its application of the law. ‘The Govemors not limited to one disaster declaration. There sno limitation in Section 7, or lsewhere in the statute, onthe numberof proclamations the Govemor may issue regarding @ particular disaster, The assertion that section 7 of the emergency powers wer slatutory permitted {or only one single 30-day period afer the inital declaration proclamation i contrary tothe plain reading of the IEMAA. “When interpreting a statute, cour’ primary objective isto ascertain the legislative intent. Landis Mare Realy, .1.C., 235 I.24 1,6 (2009). The bes indicator of the lepsatve intent he statute's language, given it plain and ordinary mooning. kt Where & statue is unambiguous, a court should apply the statute as written, without the use of extrinsic sid. 1d. The fundamental principles of statutory construction are that words and phrases should not be construed in isolation, but interpreted in light of other relevant provisions ofthe statute. Van Dyke». White, 2019 11. 12452 939. Section 7 ofthe IEMAA permits the Governor to exercise his emergency powers for “a period not to exceed 30 days” following the issuance ofa disaster proclamation, The Governoe's ‘emergency powers are triggered by a declaration by the Governor that there is a disaster, not by the date upon which the disaster initially arose. Seetion permits the Governor to continue izing his emergency powers for 30 days ia disaster stil exists following a new disaster proclamation.‘ * Sethi Co’ Opinion nd Orrin Running Centra, Prteer, No 2020-CH-105, slip op. (7 ud Cit. Cx. Sangamon Cry. May 21, 2020 at JL Props Grp. B LLC Pricher, No, 20-CH-601 I >". Ci Ce Wil Cy ay 3, 2020, Memorandum Opinion and Order a 10-12; Edwardsville Glen Carbon Chamber of Page Sof 11(Case No: In Re: COVID-19 Litigation 20-MR-589 Juudge Metlaney’s interpretation ofthe statute failed to consider the statute as whole. Limitations are speifcally outlined in Section 3 ofthe statute, However, no there are no limitations that restrict the Governor from making more than one disaster proclamation pee Alisaster. Sections 6 and 9 specify tha the General Assembly must be involved in certain unrelated aspects of an emergency. Seeton 11(8) permits «politcal subivision to declare a “ocal disaster” but pecially limits that declaration toa period of seven days, except by or withthe consent of the governing board ofthe political subdivision, As this Court has previously tated, had the General Assembly intended to limit the Governor in a similar fashion, it would have done so, Judge Metfaney’s reading of the statute produces unjust and harm results that are contrary to EMAA. The express purpose ofthe IEMA isto ensure that the State willbe prepared and eapable of dealing with disasters, to preserve the ives of Ilinois itizens and protect their property. Bailey's theory is contrary to the legislative intent and strips the Governor otis emergeney powers forthe rest ofthe pandemic, Had the legislature intended such an absurd rest it could have convened and amended the statute, The General Assembly has ‘amended the IMEAA at east 1 mes in he last 40 yeas, but has never limited the Govemor to ‘only one disaster proclamation? ‘The legislature convened in May of 2020, and again it dd not mend the IEMAA to limit the Governor's authority to only one proclamation. ‘The legistature 4d, however, recognize the Governor's authority to issue sucessve disaster proclamations ‘hen they amended the Unemployment Insurance Act, the Sexual Assault Provider Emergency Commerce. Prickr, No, 20-MR-550 (I, 3 Ju Ci Ct, Madison Cty. June 52020) 6-8; Mali Pricker, No, 0-Cl-42089 (Cook Cy- Ce Cx. May 8, 020) a $4.21-27 and Cassell. Spd, 2020 WL 2112374 (XD. lL May 3, 202) Memorandu Opinion nd Order a *13-14 5 See A. $8606, PA. 92-73; P.A. 94-733; PA, 98465; PA, 98156, PA. 9936; PA, 100508; PA. 100-88; A 100387; A. 100863; PA. 100-179. * Adding $20 1.C5405/500(0-5) which zefrences “any subsequent Gubemtarial Disaster Proclamation a response 6 COVID- 192 Page 6 of(Case No: In Re: COVID-19 Litigation 20-MR589 ‘Treatment Act” and the Township Code.* Bailey, a member ofthe General Assembly, voted in favor ofall thre bills which recognized the Governor's authority to issue successive disaster proclamations ‘This Cout’s analysis is consistent with the Second District Appellate Couet’s recent Aecision in Fax Fire Tavern, LLC v, Priteker, 2020 IL App (24) 200623 and is further support that Judge MeHaney’s order granting summary judgment cannot stand. The Appellate Court expressly found thatthe IEMAA authorizes the Governor to issue successive disaster proclamations stemming from one ongoing disaster. The Appellate Court found nothing inthe statutory “language the precluded the Governor from issuing multiple disaster proclamations — cach with its own 30-day grant of emergency powers ~ arising from one ongoing disaster.” Id. 6. Motion for Summary Judgment - Count 111 Judge McHaney said the Govemor has no constitutional authority as Governor under the cited provisions ofthe IEMAA to restict a citizen's movement or activities and to forebly close businesses because any such authority was restricted to the Department of Health. This Court hha previously held that the State's police powers authorize measures tobe implemented ta protec its citizens when confronted with contagious diseases and other threats to public health and safety. Again, this Court reiterates that the state's police powers are outlined in both the state and federal constitution and supports the Governor's actions in combating this pandemic ‘Without such authority the state would be paralyzed to act when needed. The linois constitution provides the Governor with supreme executive authority, (I. Const, 1970, at. V, ‘Adding 410 1.65 702-1(5) and 410 ILCS 702.05-1((6, bth of which reference a sucesiveprolanation regating the same isater™ adding 60 ILCS 1/30 5d), wbich ferences wben “a subsequent dss is declared unde Section 7 ofthe IEMAA. Page 7of 11(Caso No: In Re: COVID-19 Litigation 20-MR-589) see. 8). This grant of authority includes providing for the health, safety and welfare ofthe people under a rational basis standard Judge Metianey’s declaration that the Governor has no authority to promulgate the emergency executive orders is also misguided. The genera assembly used broad language When it conferred the emergency powers that are oulined in sections 71) through 7(14). These powers include the authority to “utilize ll available resources of the State government as reasonably necessary to cope witha disaster” and to “wanser the direction, personnel or functions of State departments and agencies o units thereof forthe purpose of performing or fucittation disaster response and recovery programs.” 20 ILCS 3305/7(2)(3). Also outlined in TEMAA isthe Governors authority to contol ingress & egress from disaster areas and regulate the sale, distribution of food, fuel, clothing or other commodities as well as perform and exercise any other fictions, powers, nl dies 8 may he necessary to promote and secure the safety and protection ofthe civilian population, 3305/7(12). The State's police powers require ito implement preventative measures when cononted witha situations that pose a teat to the public health and COVID-19 falls squarely within this statutory scheme, If this broad autority ‘were not authorized, the State would nat be able to act when an unanticipated threat othe safety and well-being ofits citizens arose, As the llinois Constitution specially states, providing for the “health, sfety and welfare” is othe highest necessity. Ill, Const. 1970, preamble. Department of Public Health As to Judge MeHlaney's opinion tha the Governor's actions are unlawful because such powers have been expressly delegated to the department of public health hiss also improper: ‘The Public Health Act places no restrictions on the Governor's emergeney powers that exist Page 8 of HL(Case No: In Re: COVID-19 Litigation 20.MR-S89 under the IEMAA, Section 2(m) ofthe Public Health Act specifically states that “nothing inthis section shall supersede the procedures st forth inthe IEMAA. Alain reading tothe two statutes makes it clear that the Public Health Act isa supplement to IEMAA. Judge Bradley Waller stated it well in is opinion where he wrote, “The IEMA is rally the umbrella over which all the other statues are subservient to. The Govemor has the authority for purposes of preserving the public health, safety and welfare under rational basis standard In addition, the executive orders do not concer “quarantine o isolation” orders from the Department of Public Health which would trigger the department to act. The Governor's ‘executive authority was not altered by the General Assembly when it enacted the Public Health ‘Act. Thus, an unconstitutional outcome would result if this Court were to uphold Judge Mettanoy's Order and strip the Governor of his exscutive authority to protest te vitizeus of Minos [No legal basis to bind all Ih ens Judge Metlane’s ruling specifies that his order applies tall Minos citizen. In order to be bound by a judgment, enerally, the individual must be a party to the lawsuit. In this ase, ‘only Bailey andthe Governor were parties on July 2, 2020. This Court di not find any motion requesting clas cerificaton, nor did the Cour find any pleaded facts to bring the matter within the statutory prerequisites fora classaction, This portion ofthe Judge McHaney’s Order has no basis in law. ° Transit of Ocaber 9, 2020 proceedings, Fay et al Priskr, a, Case No, 20-CH-6 (I 23 Ja, Ci CL Dekalb uy. 2020, Page9 of UtCase No: In Re: COVID-19 Litigation 20-MR-589 Bailey was required to plead and prove facts sufficient to show that a propose class ‘ction would satsty the four statutory prerequisites set forth nthe statute See 735 ILCS 5/2- 801. Specially, any motion should plead 1) The proposed clas isso numerous that joinder ofall members is impracticable; 2) There are questions of factor Law common tothe class; 3) The representative partes wil fuel & adequately protec the interests of the cass and 4) A classaction isan appropriate method fra fir and efficient adjudication ofthe controversy Before a cour can certify a classaction, it must specifically find that each ofthese four cements have been met based on evidence presented by the movant. Weiss v Waterhouse Sec, In. 708 124 439,451 (2004), Tis was not done ‘A review of Bitey’s amended compleint reveals that it doesnot allege or prove any fats necessary to maintain a classaction. The amended complaint doesnot reveal any intention to form a class nor does it ask for clas certification, Likewise, thee is nothing in the eecord in support of @ motion for class certification, nor did the Court read any arguments in any transcript in favor of class certification. Atomey DeVore requested that the cout invalidate the executive ‘orders and “apply [i] across the stat." In ight ofthese reasons long withthe fact hat Judge Metlaney filed to enter any findings eating tothe four statutory prerequisites required fora clas certification language binding all llinoisans, the order cannot stand ly 2, 2020 wanserp p76 tins 1722, Page 10. 11‘Case No: In Re: COVID-19 Litigation 20.MR-589 “Moreover Judge Metlaney’s flue to follow the procedures to certify a classaction Violates the due proces rights of persons who are subsequently bound by his decision, The Court found nowhere inthe record were Judge MeHlaney considered whether Bailey might be seeking relief that could potentially be antagonistic tothe members ofthe purposed class. For all ofthe reasons outlined above, this Court is vacating the July 2, 2020 Order that ‘ranted summary judgment on counts If end Il of Bailey’s amended complaint. Tis court is also vacating the order wherein Judge Mctlaney applied ito “all citizens ofthe stat of llinois.” IT IS SO ORDERED. Date: December 21, 2020 BI i: Rayigye D. Grischow, Cireul Conrt Judge ss Page 1 of