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* The attorney general has filed a motion with the Illinois Supreme Court to transfer all of attorney Tom DeVore’s latest round of cases to Sangamon County…
In short, although filed in five different counties, the five above- captioned cases were filed on the same day by the same attorney and seek the same declaratory and injunctive relief against the same defendant, the Governor. And that attorney (DeVore) has indicated that he “is ready to file lawsuits in other counties across the state.”
* Some back story…
This is the most recent series of lawsuits filed by DeVore in multiple jurisdictions that challenge the Governor’s actions to address the COVID-19 pandemic. Six weeks after the Governor first declared an emergency, on April 23, 2020, DeVore filed Bailey v. Pritzker, No. 2020CH6 (Ill. 4th Jud. Cir. Ct.). In that lawsuit, DeVore argued that the Governor’s proclamations and executive orders exceeded his authority because they extended more than 30 days beyond March 9, the date on which the Governor first declared the COVID-19 pandemic a disaster. DeVore subsequently raised the same argument in three other lawsuits. But this argument—that the Governor’s ability to take action to address the pandemic expired 30 days after March 9—has been rejected by every court to have addressed it, save one: the Circuit Court of Clay County, where DeVore filed Bailey and Mainer. In Clay County, attorney DeVore twice obtained a temporary restraining order (“TRO”) against the Governor’s executive orders from the same judge, and both times, after the Governor appealed those TROs under Illinois Supreme Court Rule 307(d), DeVore withdrew his request for a TRO. By doing that, DeVore evaded appellate review of these outlier rulings.
In another recent series of cases, DeVore filed lawsuits in multiple counties on behalf of plaintiffs challenging the face covering requirement as applied to teachers and students. And in yet another, DeVore filed a number of cases arguing that the Governor lacks authority under the Act to suspend nonessential business operations. When the Governor removed three of those actions to federal court, DeVore’s law firm voluntarily dismissed those cases, thus evading review of these claims by the federal judiciary.
* On-point footnote…
As another indication that these actions have sown confusion and uncertainty and have inhibited a clear resolution of the dispute over the Governor’s authority, DeVore has described the July 2, 2020 summary judgment ruling in the Bailey case as giving every Illinoisan the right to do as they please. If the July 2 ruling had that legal effect—which the Governor disputes—then there would be no legal reason to file new lawsuits to challenge whether the Governor had the authority to declare a statewide disaster. Consolidating the new cases will serve to avoid confusion and uncertainty, and may expedite appellate review and a final resolution of this dispute.
* Aside from the plaintiffs’ names, there is only one other factual difference between DeVore’s new set of cases…
The theoretical possibility that the court could answer the threshold legal question in favor of the plaintiffs does not alter this analysis. The complaints present many common factual allegations.And the few factual differences among the complaints are limited to the number of residents who have tested positive or who have died from COVID-19, as well as a calculation of the infection rates based on county population. These facts are easily ascertainable matters of public record, allowing for streamlined factual development in a consolidated case without witness testimony. But in any event, focusing on these facts ignores that the key inquiry here is the statewide occurrence and threat of sickness resulting from COVID-19, rather than the number of cases and deaths in any given county at any discrete point in time.
Critically, allowing one court to resolve the threshold question will avoid the expenditure of resources before multiple courts, as well as the risk of conflicting rulings and ensuing public confusion. The prospect of public confusion and wasted resources is particularly detrimental in the present context of a global pandemic, where statewide consistency on public safety directives is critical.
* The governor’s legal argument…
These cases thus present a threshold question of statutory interpretation and involve a common issue of law: whether the declaration of a disaster in a county based on the existence of a public health emergency requires evidence of illness to a specific number of people in that county. According to plaintiffs, the definition of “public health emergency” cannot be satisfied without such a showing. The Governor disagrees with plaintiffs’ position as a matter of law. The plain text of the statute authorizes the Governor to declare a disaster due to a public health emergency based on evidence of “an occurrence or imminent threat of an illness or health condition” caused by a novel infectious agent that poses a high probability of widespread exposure. 20 ILCS 3305/4. Indeed, the Act confers authority on the Governor to issue disaster proclamations, 20 ILCS 3305/7, when there is “an occurrence or threat of widespread or severe damage, injury or loss of life or property . . . resulting from any natural or technological cause,” including an “epidemic” or “public health emergencies” […]
Merits aside, however, these cases are appropriate for transfer and consolidation because answering the common question of law they present will not require any factual development, making the question amenable to resolution through consolidated pre-trial proceedings such as a motion to dismiss (which the Governor intends to file). If the court concludes that the Governor has the authority to declare a statewide disaster in light of COVID-19, then that will end the analysis without consideration of the facts in each individual county concerning the number of residents who have tested positive for COVID-19. As such, it would make sense and conserve judicial resources for one court to answer that predominant question of law.
* But the AG may need to file an amended motion. Here’s Mike Miletich…
DeVore filed lawsuits for clients in Clinton, Edgar, Richland, and Sangamon counties using this argument last week. He also presented his own case against the governor in Bond County. The number of cases grew Monday with cases filed in Montgomery, Kendall, Winnebago, Grundy, and White counties.
* Mike also interviewed DeVore…
“If there’s no disaster in Clay County, I can assure you I’m gonna have a client that’s going to go to the Clay County school districts and say ‘Let our kids in. You can’t keep us in remote learning because it’s not allowed.’ There’s no disaster,” DeVore exclaimed.
DeVore believes judges should have their own decision on if there is a disaster locally.
“Then you can’t have emergency power being wielded in that county. You can’t have school districts engaging in remote learning in that county,” DeVore said during a virtual interview Monday. “You can’t be doing all this stuff because there is not a disaster.”
…Adding… DeVore is also searching for a plaintiff in Macoupin County. From Facebook…
Hello, citizens and friends of Macoupin County. I had a great talk with State Representative Darren Bailey and Constitutional Attorney Thomas DeVore this morning.
Here’s the deal. We (Macoupin County) just need one person (a resident of Macoupin County) to step up and file a lawsuit against His Royal Highness King Jay Bob. The lawsuit would be over the fact that there is currently NO state of emergency here in Macoupin County. [We aren’t disputing that a true state of Emergency may indeed exist in Chicago as well as in certain parts of the 618.]
Warning: There will be some fame attached to stepping up and filing a lawsuit against Pritzker, and probably just as much unwanted hatred from his brownshirt loyalists as well.
posted by Rich Miller
Tuesday, Jul 28, 20 @ 10:05 am
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Logical step by the State.
I really wish the GA had addressed the Emergency Declaration issue during the Spring session. That could have stopped a lot of this.
Comment by RNUG Tuesday, Jul 28, 20 @ 10:12 am
Brownshirt loyalist. Nice touch /s
Comment by DuPage Saint Tuesday, Jul 28, 20 @ 10:25 am
The Supremes should step up and stop this circus happening in their courts.
Comment by the Edge Tuesday, Jul 28, 20 @ 10:28 am
Sheesh. What we need is for a major political party to stand up and repudiate trial lawyers and frivolous lawsuits that don’t benefit anyone but the lawyer. We used to have one of those, if I remember correctly, but it was a long time ago….
Comment by Lester Holt’s Mustache Tuesday, Jul 28, 20 @ 10:29 am
Why doesn’t Cletus Spukler just file it hisself?
Comment by West Side the Best Side Tuesday, Jul 28, 20 @ 10:34 am
So did he really post that help wanted on Facebook for Macoupin County? I hope he’s telling these people they have to pay their own way into the circus cause it’s not free. Well at least the Sangamon County circus wasn’t.
DeVore will be over the top upset if all this gets moved to Sangamon County. His Statewide tour will be cut short.
Comment by Tell Me He Didn’t Post That Tuesday, Jul 28, 20 @ 10:35 am
I too wish the GA had dealt with this before, and wish the Supremes would step in now. Otherwise we have to wait for Mr. DeVore to run into the wrong judge on one of his multitude of cases.
Comment by Ron Burgundy Tuesday, Jul 28, 20 @ 10:44 am
I don’t know who wrote that FB post.
But I sure seem to feel an anti-Semitic vibe in it.
Comment by Lynn S. Tuesday, Jul 28, 20 @ 10:48 am
Will it be in bad taste to ROFL when he catches the virus ?? Can I at least chuckle ?
Comment by Anotheretiree Tuesday, Jul 28, 20 @ 10:53 am
Oh, please leave a seat on the party bus for Thomas DeVore. What a maroon.
Comment by Rudy’s teeth Tuesday, Jul 28, 20 @ 10:59 am
When did DeVore hire John Kass as his publicist?
Comment by SAP Tuesday, Jul 28, 20 @ 11:00 am
=== leave a seat on the party bus for Thomas DeVore===
There is actually a FB post of DeVore having a party on one of those buses in June. It’s quite something https://www.facebook.com/thomas.devore.92/videos/3482852281729060
Comment by Rich Miller Tuesday, Jul 28, 20 @ 11:04 am
Here is where it all falls a part…
=DeVore believes judges should have their own decision on if there is a disaster locally.=
Sounds like a “Posse Comitatus” argument
Comment by H-W Tuesday, Jul 28, 20 @ 11:11 am
-DeVore believes judges should have their own decision on if there is a disaster locally.-
Good to know he clearly doesn’t understand the differences between the Executive and Judicial branches. Hopefully the judges do.
Comment by Ron Burgundy Tuesday, Jul 28, 20 @ 11:19 am
Rich, thanks for sharing the FB link for DeVore’s party bus. Could be Exhibit A.
Comment by Rudy’s teeth Tuesday, Jul 28, 20 @ 11:27 am
“Warning: There will be some fame attached to stepping up and filing a lawsuit against Pritzker, and probably just as much unwanted hatred from his brownshirt loyalists as well.”
tl;dr- We need a kook.
– MrJM
Comment by @misterjayem Tuesday, Jul 28, 20 @ 11:33 am
=“If there’s no disaster in Clay County, I can assure you I’m gonna have a client that’s going to go to the Clay County school districts and say ‘Let our kids in. You can’t keep us in remote learning because it’s not allowed.’ There’s no disaster,” DeVore exclaimed.=
Ummm…yes we can. We don’t even need a state disaster to go fully remote if our local school board chooses to do so. What a moron.
Comment by JS Mill Tuesday, Jul 28, 20 @ 12:26 pm
The “reaction formation” of Republicans is so rich. Unbelievable
“Brownshirts”? Really?
Yeah, I remember those Liberals protesting outside courthouses and Government buildings with AR-15’s and tactical gear. s/
Fine, I will see your “brownshirts”
and raise you a “useful idiots”
Comment by Honeybear Tuesday, Jul 28, 20 @ 12:45 pm
If this keeps up, I’m going to have to buy a brown shirt.
Comment by CEA Tuesday, Jul 28, 20 @ 1:30 pm
“And how much do we pay judges to waste their time and taxpayer monies to deal with all this balony’?
Comment by The Old Man Tuesday, Jul 28, 20 @ 1:46 pm
Judges need to be a lot more aggressive about sanctioning attorneys who file clearly frivolous lawsuits. Up to and including disbarment. Not only is this a waste of court time and taxpayer money, but he’s delaying justice for people who actually NEED it, by tying up the machinery of the judiciary in his publicity stunt.
Comment by Suburban Mom Tuesday, Jul 28, 20 @ 9:18 pm