THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT CLAY COUNTY, ILLINOIS DARREN BAILEY, Plaintiff, v& GOVERNOR J.B. PRITZKER, in his official Capacity, Defendant . REPORT OF PROCEEDINGS of the hearing held before the Honorable MICHAEL D. MCHANEY on the 27th day of April, 2020 . APPEARANCES: MR. THOMAS DEVORE MR. ERIK HYAM On behalf of the Plaintiff MR. THOMAS VERTICCHIO on behalf of the Defendant PREPARED BY: LORI SIMS Certified shorthand Reporter NO. 084*003424 1 THE COURT: All right. We've got some 2 preliminary matters before we begin. 3 the public is in this courtroom. 4 that could be viewed as contravention of our 5 Administrative Order governing the Fourth Circuit or a 6 violation of the Governor's stay-at-home order, I and I 7 alone take full responsibility for any ramifications for 8 either of those. 9 First, obviously To the extent that The public has an absolute right to access to 10 the courts and transparency. 11 more unjust than to deprive the citizens the right to 12 view the process in which this court is asked to 13 drastically potentially alter their lives. 14 you're here. 15 sheriff of Clay County, who has done a phenomenal job 16 preparing for this with respect to social distancing and 17 our Fourth Circuit Administrative Order. 18 Sheriff. 19 I cannot imagine anything Therefore, However, you are here as directed by the Thank you, In that vein, while you're here, there will be 20 no public outbursts, no displays. 21 this proceeding will be removed immediately, and, at the 22 conclusion of this hearing, you will leave as directed 23 by the Clay County Sheriff. 24 25 Anybody disrupting I'm now going to call 20-CH-6, Bailey versus Pritzker. Would the parties please identify themselves 2 1 for the court reporter and record. 2 MR. DeVORE: Your Honor, Plaintiff appears, 3 Darren Bailey, by his counsel, Erik Hyam and Thomas 4 DeVore of DeVore Law Office, sir. 5 6 MR. VERTICCHIO: Tom Verticchio for Governor Pritzker. 7 8 9 Good afternoon, Your Honor. THE COURT: Very well. Thank you. You may be seated. MR. VERTICCHIO: 10 THE COURT: 11 MR. VERTICCHIO: Your Honor, may I? Yes. I know we had a preliminary 12 matter that I became aware of this morning. 13 Motion for leave to file an Amicus. 14 is in the courtroom, and I thought the court might want 15 to address that. 16 17 THE COURT: MR. WURL: 19 THE COURT: 21 I know that counsel Let's do that. What have you got, the Hospital Association? 18 20 Yeah. There was a Yes, Your Honor. Would you please identify yourself for the record. MR. WURL: My name is Dan Wurl of Heyl Royster 22 Law Firm in Champaign, Illinois, and we are serving as 23 local counsel for the Illinois Health and Hospital 24 Association. 25 MR. OURTH: I'm Joe Ourth, Saul, Ewing, Arnstein 3 1 & Lehr, on behalf of the Illinois Health and Hospital 2 Association and on behalf of the 200 members of the 3 hospitals who are members of the Hospital Association. 4 5 THE COURT: an Amicus brief; is that correct? 6 MR. WURL: 7 THE COURT: 8 That's correct, Your Honor. Both parties received a copy of that? 9 MR. VERTICCHIO: 10 11 And, for the record, you have filed MR. DeVORE: Yes, Judge. THE COURT: 13 MR. VERTICCHIO: 15 I got it on the way down here, sir. 12 14 Yes, Judge. Any objection? None from the Governor, Your Honor. MR. DeVORE: Judge, we would have an objection 16 at this point, especially at the proceeding of a 17 temporary restraining order. 18 looking at their document, it appears to be, and, again, 19 reading it as we were driving down here, me not driving, 20 of course, sir, some kind of balancing of the equities 21 or some, something of the nature that if the court would 22 find that the Governor's Order is beyond his authority, 23 that that would cause some undue harm within the 24 hospitals. 25 From what I understand of To me, at this stage of the proceeding, that 4 1 issue is not in front of the court. 2 cloud what otherwise is a temporary restraining order 3 hearing on the pleadings of the parties. 4 the court gets into this and sees some of the 5 documentation, that it will find, that even if this 6 court would find that the Order exceeded his authority, 7 that there are measures already in place. 8 9 I believe it will I believe once So, to the extent that that would overcomplicate what otherwise is a statutory construction 10 and a constitutional issue, I don't believe that the 11 Amicus brief provides any helpful insight at this time 12 to the court. Thank you. 13 MR. VERTICCHIO: 14 THE COURT: 15 MR. VERTICCHIO: May I, Your Honor? Yeah. On behalf of the Governor, 16 we're here on a TRO and, as you know from the briefing, 17 Your Honor, one of the issues that the court will 18 consider, provided that the plaintiff meets his original 19 four requirements, is the balancing of the harms and the 20 hardship due upon the public in the event that the Order 21 is entered and relief granted. 22 there could be no more relevant, sadly, there could be 23 no more relevant viewpoint for the court to consider on 24 the balancing of the harms and damage to the public than 25 the view of the Amicus hospital, Health and Hospital It appears to me that 5 1 2 Association. I briefly looked at the brief and declaration 3 attached and it bears directly upon the issue of 4 balancing the harms and the hardship upon the public. 5 We respectfully request that the Motion be granted. 6 THE COURT: I will allow the filing of the 7 Amicus brief, although you're not parties but you, of 8 course, may observe. 9 MR. WURL: Thank you, Your Honor. 10 MR. VERTICCHIO: 11 THE COURT: 12 MR. VERTICCHIO: Thank you, Judge. All right. Then procedurally, Your Honor, 13 I don't know how the court wants to proceed in terms of 14 the order. We have filed a 2-615 Motion to Dismiss the 15 Complaint. Granted it, by and large, goes to the 16 likelihood of success on the merits. 17 THE COURT: It does. 18 MR. VERTICCHIO: They're intertwined. Maybe for that reason it makes 19 sense for Mr. DeVore to present his Motion with the 20 understanding that I will then present my 2-615 in 21 response to the Motion for temporary restraining order 22 if that makes sense for the court. 23 THE COURT: 24 MR. DeVORE: 25 Makes sense to me. Your Honor, I would ask the court -- I agree with my colleague that the arguments 6 1 raised in the, you know, not as much the Motion to 2 Dismiss but in their opposition brief I will call it, it 3 does take on the issue of likelihood of success on the 4 merits as it relates to the temporary restraining order. 5 If they are successful in that argument, the TRO doesn't 6 issue, but as to the issue of the Motion -- 7 THE COURT: Anybody that's got a cell phone, if 8 that goes off again, the sheriff is going to confiscate 9 it and you're out of here. 10 MR. DeVORE: Go ahead. Thank you, Your Honor. Your Honor, 11 the Motion to Dismiss was filed and the Notice of 12 Hearing on that Motion to Dismiss was received by our 13 office roughly an hour ago. 14 Notice of Hearing has to be presented to the opposing 15 party no later than the second court date preceding the 16 hearing. 17 the likelihood of success on the merits issue as it 18 relates to the TRO and then, regardless of whether the 19 court grants or denies, I believe the governor's Motion 20 to Dismiss could be taken up at a later date where we 21 can address those issues fully. 22 MR. VERTICCHIO: Local Rule 501(d) says that So I would ask the court merely to entertain Your Honor, this is an 23 emergency proceeding. The Motion was -- the Complaint 24 was filed on Friday. We were served with it on Friday, 25 the Motion to Dismiss filed Monday morning. We are on 7 1 the fast track as we all know. 2 received a supplemental brief last night from 3 plaintiff's counsel, don't hold me to the precise time, 4 but I think it was 1:05 a.m. Monday morning. 5 lot going on. 6 As a matter of fact, I There's a It seems to me that the Motion to Dismiss is 7 directly tied to the likelihood of success. 8 same arguments on the legal issues -- 9 THE COURT: Yeah. It's the Basically the same argument. 10 All right. 11 the same time. 12 whole giant argument and we'll sort it out later. 13 may proceed, Petitioner. 14 I'm going to find I can walk and chew gum at I'm going to consider them both and the MR. DeVORE: Understood, sir. You Your Honor, my 15 client brought this cause of action under declaratory 16 judgment and request for preliminary injunction and 17 temporary restraining order. 18 order request is verified and it was filed in this 19 court. 20 The temporary restraining As the court is aware and my colleague is aware, 21 there's four elements that are required in order for a 22 temporary restraining order to issue. 23 in need of protection, they are irreparable injury, they 24 are no adequate remedy at law, and likelihood of success 25 on the merits. They are a right I would like to address each one of 8 1 those individually for the court. 2 likelihood of success on the merits for last because, as 3 the court is aware, that is one of the most complicated 4 ones. 5 I'm going to leave As to the issue of right in need of protection, 6 as was brought up briefly on, which is now in the record 7 of the court on their request for a continuance, the 8 right in need of protection is a liberty interest. 9 is a liberty interest as pled in this case of my client It 10 but it's also the same liberty interest of every citizen 11 of this state. 12 interest of him being ordered by the executive branch of 13 this state to stay in his home unless he is engaged in 14 an essential activity that the Governor's office has 15 also defined what's essential with someone, we don't 16 know who, and, if he does that, if he doesn't follow 17 that order, he could be subject to some prosecution, 18 persecution, whatever we want to call it, we don't 19 really know, we haven't seen that yet, but ultimately 20 some mechanism by which my client could be sanctioned 21 for not staying at home unless it's an essential task or 22 work or food, it's been defined by the same executive 23 branch. 24 which I'm not sure there could be a greater right in 25 need of protection for this court to consider. But as to Mr. Bailey, the liberty That is a right in need of protection, one of 9 1 Now, there's been some -- I want to throw this 2 in just briefly. There's been some response by the 3 Governor's office that says, well, Mr. Bailey hasn't 4 adhered to that so he's really not subject to this stay- 5 at-home order. 6 home not for an essential task, he has, at least as we 7 sit right now in the state of the executive order, 8 potentially subjecting himself to punishment. 9 the right in need of protection here, Judge, not whether If my client has chosen to leave his That's 10 you choose to peacefully disobey, which I would call 11 that, the fact that the order has been issued that says 12 if you do this, you could be subject to violation of 13 this order. 14 the court to find that that, there's really no contest 15 that my client has raised a right in need of protection. 16 That's the right, Judge, and we would ask The issue of irreparable injury is next, which 17 is kind of coupled with that, is what injury, should 18 this court not enter a temporary retraining order, would 19 Mr. Bailey suffer? 20 in the motion to continue by the state, by the 21 Governor's office was that there is no prejudice. 22 day that goes by that this Executive Order has been in 23 effect is irreparable to my client. 24 executive branch of this state that if he does not stay 25 in his house, unless you leave it for a reason I say you Again, briefly argued to this court Every To be told by the 10 1 can leave, every day that goes by, that is an 2 irreplaceable violation of his liberty interest. 3 can't get that back. 4 You Maybe my client chose to want to go peacefully 5 go to his neighbor's house and see how his friend's 6 doing. 7 he does for entertainment, but that's a violation, 8 Judge, and it's irreparable. 9 So I would ask the court to find that there's really no 10 11 I don't know what he does for a living, or what You cannot get that back. contest as to that one. Adequate remedy at law. That's where we're at 12 right now. 13 they've said in their response that they filed with this 14 court, that the Governor has the constitutional power to 15 use the police power any way he sees fit. 16 here today, and I'm saddened on behalf of my client and 17 the rest of the people of this state, that the 18 legislature has not done a thing. 19 since May (sic) 5th. 20 The executive branch has said, and I think And as we sit They haven't met The first proclamation of disaster was entered 21 on March 9th. Four days before that was the last day 22 they convened. 23 asked my representatives, Mr. Bailey should probably ask 24 his, why are you not convening? 25 there a remedy in the legislature? They have not convened since. We don't know. I've But is I don't think we 11 1 need to look to it for that, but I would just point out 2 to the court that if, in fact, my client's case is found 3 to have merit by this court, part of that merit is the 4 fact that the legislature has sat by idly and watched 5 the executive branch usurp its authority and has not 6 done anything. 7 So my client's only adequate remedy at law is to 8 come to the third branch of government, which is this 9 court, and ask them for redress. 10 That's the only choice he has. 11 THE COURT: But the attorney general is going to 12 argue he does have an adequate remedy of law. 13 already passed. 14 disaster proclamations every 30 days or beyond. 15 16 That's what he's going to argue. Yeah. THE COURT: You've got an adequate remedy right there. 19 20 The Governor can pass these continuing MR. DeVORE: 17 18 It's MR. DeVORE: The remedy being the executive branch? 21 THE COURT: 22 MR. DeVORE: Yeah. That's what he's going to do. He's going to try, I'm sure. So as 23 to the adequate remedy at law, my client's position is 24 for a court to find that the Governor's orders that he 25 is issuing exceed his authority. 12 1 THE COURT: 2 MR. DeVORE: 3 THE COURT: Let's just get down to it. Yes. What's your arguing is the Governor 4 can do what he did for 30 days and that's it absent 5 further legislative approval. 6 saying? 7 MR. DeVORE: Isn't that what you're Under the Illinois Emergency 8 Management Act, yes. 9 Health Act, I would say it's different. 10 THE COURT: Under the Department of Public Yeah. It's vastly different there 11 because there, Attorney General, you get a lawyer. 12 get judicial review. 13 than 48 hours until you go to court. 14 15 MR. DeVORE: You You can't do this stuff longer That's what we're getting to. Yes, sir. 16 THE COURT: 17 MR. DEVORE: Anyway. Yes, sir. I agree with the court. 18 So, again, after the adequate remedy at law, again, 19 there is a law that we're getting to on the likelihood 20 of success on the merits. 21 this court today, not that he can succeed on the merits, 22 which is why I would ask the court, at least for the 23 record, to find I still have an objection to hearing the 24 Motion to Dismiss because my burden on the TRO today is 25 merely likelihood of success, which is different than My client has to prove to 13 1 the Motion to Dismiss for stated claim, but I just want 2 that noted, Judge. 3 Likelihood of success on the merit, has my 4 client put forth enough information in front of this 5 court to say, yes, there is a chance here of some merit 6 that he is going succeed, at what? 7 Governor exceeded his authority to force him, through an 8 Executive Order, to stay in his house. Succeed that the 9 Now, what I think is interesting about this, 10 Judge, is, in their response, the Governor takes the 11 position that -- because we cite the Illinois Department 12 of Public Health rules and regulations and the act that 13 talks about isolation and quarantine. 14 takes the position in this court that, well, telling 15 someone to stay at home but they can leave for these 16 reasons I said they can leave is not tantamount to a 17 quarantine. 18 Judge, and I would ask the court not to entertain that. 19 Telling someone that they can't leave their house except 20 for these reasons is tantamount to a quarantine. 21 get to that. 22 The Governor That's some interesting mental gymnastics, I'll Illinois Emergency Management Agency Act, 20 23 ILCS 3305/2, the court has it, the court has read it. 24 The language of it is not ambiguous. 25 behalf of the Governor would say, he believes there's As my colleague on 14 1 ambiguity so I would like to go to the statute, and I 2 have it in front of me, and the statute, by our 3 legislature, in Section 2, subsection (a)(2), it does 4 intend to confer upon the Governor and upon the 5 principal executive officer the powers provided herein. 6 So something herein the legislature intended to grant 7 that power to the Governor. 8 legislative authority to the executive branch, and we 9 have to look at see what those are. 10 It was a delegation of some Before -- I'm going to go through the statute as 11 it reads, Judge. 12 are triggered, as the court has read and the attorneys 13 here know, we have to have a disaster. 14 disaster? 15 and I'm going to parse the language because, as we all 16 know, it's written by lawyers and there's a lot of 17 words, but I've parsed it out, a disaster means an 18 occurrence. 19 20 The first thing before certain powers What is a The statute helps us with that. THE COURT: A disaster, Aren't you conceding there's a disaster? 21 MR. DeVORE: Yes. Yes, but there's a point to make, 22 Judge. A disaster means an occurrence, which it 23 could include loss of life from any natural cause 24 requiring emergency action to avert is what the language 25 says, a public health emergency. So if the Governor 15 1 chooses to issue a disaster proclamation under COVID-19, 2 that's what he would look at, and he did that on 3 March 9th. 4 My client is not contesting that in this court today. 5 That was issued on March 9th, Your Honor. It's not been contested that I'm aware of. 6 If I flip to Section 6, it talks about certain 7 powers that the Governor has about preparing plans and 8 doing things to help keep people, you know, with other 9 agencies, and that's not really in front of the court 10 today, but Section 7 is where we get to, Your Honor. 11 THE COURT: 12 MR. DeVORE: That's 30 days. Emergency powers of the governor, 13 and I want to parse this really close if I may, sir. 14 And just for the court's clarification, the government 15 has taken the position that this language is ambiguous 16 somehow. In the event -- 17 THE COURT: Are you? 18 MR. VERTICCHIO: 19 THE COURT: Not at all, Your Honor. I didn't think he was either. I 20 thought he said -- he's saying it's clear that the 21 Governor can just issue these 30-day proclamations as 22 long as he wants. 23 24 25 MR. DeVORE: interpretation. True, which would be an I'm sorry, sir. MR. VERTICCHIO: Go ahead. As long as it's declared a 16 1 disaster. 2 THE COURT: 3 MR. DeVORE: All right. Fair enough. Let's talk about 4 that, Judge. 5 Section 4, which we just went through, and I think -- I 6 don't believe there's a dispute in this court, and I'm 7 asking the court not to find there's a dispute, that 8 that disaster proclamation on March 9th was COVID-19. 9 Okay. 10 In the event of a disaster as defined in So, in the event that disaster was proclaimed, 11 the Governor declared a disaster exists. 12 proclamation is the language, the Governor shall have 13 and may exercise for a period not to exceed 30 days the 14 following emergency powers. 15 lower part of the statute before I come back to the 30, 16 Judge, because when we're talking about whether they can 17 be, and I use the language on behalf of my client, re- 18 energized with a new proclamation, et cetera, provided, 19 however, that the lapse of the emergency powers shall 20 not, as regard to any act committed within the 30 days, 21 deprive any person of any rights they may have. 22 Upon such I'm going to go on in a So what that was saying and what the legislature 23 is saying is, upon lapse, you still have certain rights 24 as people. 25 the legislature obviously recognized that after 30 days So I would ask the court to consider that 17 1 there would be a lapse in the power at least as it 2 relates to the disaster that was promulgated at the 3 onset. 4 The Governor, when he -- and, again, going 5 through these powers, Judge, we have the power that, it 6 seems fair to say, the Governor is trying to invoke 7 here, to control ingress and egress to and from a 8 disaster area, the movement of persons within the area, 9 and the occupancy of premises therein. The Governor, 10 again, has interpreted that language, that that means he 11 can tell every person within the whole state to stay at 12 home, not arguing -- I'm asking the court just to 13 consider that in its totality. 14 today arguing that that Executive Order exceeded that 15 language. 16 because I wanted to point that out to the court that 17 there has been an interpretation that that language says 18 you can make people stay at home. 19 We're certainly not here We're arguing that it exceeded the 30 days, Now here's the clever part, Judge, of the 20 March 19th order that I would ask the court to look at. 21 The disaster proclamation of March 9th said that 22 COVID-19, and I have it here in front of me, 23 proclamation, the proclamation of March 9th, Your Honor, 24 I just had to go to it, where it has all of the 25 whereases that the court can see, based on the 18 1 foregoing, the circumstances surrounding COVID-19 2 constitute a public health emergency under Section 4. 3 Then you flip to the -- he does the Executive 4 Order, and the Executive Order refers to, and I want to 5 point this out because my colleague, I believe from his 6 brief, is going to come to a constitutional argument, 7 therefore, under the Executive Order of March 20th that 8 we're arguing about, by the powers vested in me as 9 Governor of the State of Illinois, and pursuant to 10 Sections 7(1), 7(2), 7(8), 7(10) and 7(12) of the 11 Illinois Emergency Management Agency Act, 20 ILCS 3305, 12 so that's where he cites the Emergency Management Act, 13 and -- this is going to get a little bit interesting 14 later, Your Honor -- and consistent with the powers in 15 public health laws. 16 So the Governor, in this Executive Order 17 restraining my client in his home, says I'm doing that 18 under the Emergency Management Act and within the powers 19 of public health laws. 20 stay-at-home order in that March 20th Executive Order. 21 That March 20th Executive Order, Your Honor, was by, on 22 its face, I'm going to flip back to it, on its face I 23 believe was set to expire on the 7th of April. 24 to make sure that I provide that paragraph to the court. 25 Here it is, Judge, under first page, March 21st at 5:00 And then he goes on to issue the I want 19 1 for the remainder of the duration of the Gubernatorial 2 Disaster Proclamation, which currently and through 3 April 7, 2020. 4 April 7th. 5 6 7 So this order was set to expire on Now the Governor, when he issued the first proclamation of a disaster -MR. VERTICCHIO: Your Honor, I'm sorry, but if 8 the record is going to reflect that counsel is quoting 9 from the order, it doesn't say and, it says extend. 10 11 12 13 14 15 MR. DeVORE: Could you clarify that, counsel? Where at? MR. VERTICCHIO: You just read it, counsel. Which currently extends through April 7th. MR. DeVORE: Okay. Currently extends through April 7th. 16 MR. VERTICCHIO: 17 MR. DeVORE: Thank you. Now the proclamation that was 18 entered on March 9th, interestingly enough, Your Honor, 19 had a 30-day time frame in the disaster proclamation. 20 There's nothing in the statute that says disaster 21 proclamations have a 30-day limitation. 22 you can issue a disaster proclamation. 23 Governor put in a 30-day limitation on that 24 proclamation. 25 he entered ordering stay in place of my client through It just says Nonetheless, the And, again, this order of March 20th that 20 1 the Emergency Management Act, and presumably consistent 2 with the powers in the public health laws, extended 3 through April 7th. 4 Absent some argument that this order, before 5 April 1st when we have the new proclamation ordering my 6 client to stay at home, would not be through the 7 Emergency Management Act as we're here today but it 8 could be through the public health laws because the 9 Governor cites that as authority. 10 Now, getting to the April 1st proclamation, 11 Judge, is where the power being exerted by the Governor 12 through the Emergency Management Act becomes a lot more 13 precarious and I believe can no way be reconciled with 14 the plain language of the statute. 15 The Governor, in this he calls the proclamation 16 of the COVID-19 virus a continuing disaster. He doesn't 17 call it a new disaster. 18 migrated in one way or another. 19 continuing disaster, which I believe this court can say 20 and I believe makes sense with just interpreting of 21 language, it was the same disaster, it just was still 22 ongoing at that point in time. 23 to, again, put 30 days on the first disaster and have it 24 and that proclamation and then have a new proclamation 25 that just says, oh, yeah, it's continuing, I don't know He doesn't say the disaster has He calls it a Why the Governor chose 21 1 2 why he added the temporary restraining order change. THE COURT: 3 had a 30-day limit? 4 MR. DeVORE: How about because he knew he only I'm going to present that to the 5 court as probably why but, again, I'm not going to 6 speculate on the good intentions of the Governor. 7 So when this new proclamation gets entered on 8 April 1st, Your Honor, saying we have a continuing 9 disaster, a new one, we all know it's the same disaster, 10 the Governor obviously contemporaneously with that 11 issues another Executive Order pushing his emergency 12 powers down another 30 days to the end of April. 13 Now, statutory construction, I would ask the 14 court to consider this: If the legislature of the state 15 of Illinois intended to let the Governor have some sort 16 of emergency power, whether that power includes making 17 you stay at home or not, let's set that aside for a 18 second, if you were going to let the Governor have 19 emergency powers that extended for the duration of a 20 disaster, they could have written that. 21 written in there that these emergency powers will last 22 so long as the COVID-19 disaster is still a public 23 health emergency. 24 Now whether or not that exceeded their delegation of 25 authority from a constitutional perspective, we're not They could have That would have been pretty easy. 22 1 at that today. 2 All we're saying is they clearly, when they 3 wrote this statute, didn't intend in any way to allow a 4 Governor, the office of Governor, I'm not even using our 5 current Governor's name, an office of Governor to 6 exercise these emergency powers into perpetuity by 7 merely bootstrapping new proclamations every 30 days for 8 the same disaster. 9 and that's what the Governor, in his Emergency Manage- 10 I mean the disaster is the disaster, ment Act proclamations, is doing. 11 THE COURT: While we're on that subject, 12 Attorney General, the speaker of the house, Illinois 13 house, could propose an amendment to this Emergency 14 Management Act and grant the authority the Governor 15 seeks in perpetuity or as long as the Governor deems 16 there to be a disaster and he could pass that in a New 17 York minute, couldn't he? 18 19 MR. VERTICCHIO: Well, I think the speaker of the house could bring that to the floor and -- 20 THE COURT: Exactly, for which then there could 21 be debate and an up or down vote and transparency so the 22 citizens could see who was voting for this and who 23 isn't. 24 25 That could be done. MR. VERTICCHIO: Sure. And, Your Honor, we're here today to talk about what was done. What did the 23 1 legislature do. 2 THE COURT: I get that. 3 MR. VERTICCHIO: 4 THE COURT: Not what they might do. I'm just saying that in response to 5 something in your brief that says if I dissolve this, or 6 if I grant this TRO, we're going to kill millions of 7 people. 8 9 Okay. Go ahead. MR. DeVORE: Thank you very much, Your Honor. What the court just suggested -- and I understand my 10 colleague's response that what we're here for today is 11 what happened and not what could happen, but what could 12 happen -- I still think the court can use that analysis 13 of its significant time of experience to say I know what 14 was meant by this statute and those were the things that 15 can happen. 16 Now, granted, if the legislature would do what 17 the court is talking about and grant that authority in 18 public on the floor, people see how they vote, citizens 19 still could seek reprieve in a court saying that was an 20 excessive delegation of legislative authority. 21 THE COURT: 22 MR. DeVORE: That argument is for another day. Absolutely, sir. So as it relates 23 to the Illinois Emergency Management Act, again, Your 24 Honor, once the order of April 1st, the Executive Order 25 which then re-energized the 30 days of power under the 24 1 Emergency Management Act according to the Governor by 2 his actions, I would ask the Court to find there's a 3 likelihood of success on the merits that there's no 4 language in the act as it's written that supports that 5 proposition and, as a matter of fact, as the court's 6 aware from statutory construction, if we, as jurists in 7 courts, interpret language of the statute that vitiates 8 completely one of its provisions, that's not something 9 we should do. 10 So if the court chose and decides to say, yes, 11 there is a proper -- again, I'm calling them serial 12 proclamations -- they could arguably give the Governor 13 the authority to use these emergency powers until COVID 14 is over. 15 that's a good or bad idea, whether or not that best 16 serves the people. 17 act can't be read to suggest that because, if it does, 18 the words of lapse and the words that they shall not, 19 you know, exceed 30 days, those are rendered meaning- 20 less. 21 emergency powers could continue forever. 22 I'm not even here suggesting to the court That's all a different issue. The They don't mean anything anymore and the So as to the Emergency Management Act, that is 23 where we believe we have presented a likelihood of 24 success on the merits that the Governor exceeded the 25 delegated authority granted him under the Illinois 25 1 2 Emergency Management Act. The supplemental brief that we provided to the 3 court tells, and some of the cases my colleague provided 4 the court in response gives some history and some 5 authority to this court that, when I read it -- I'm a 6 50-year-old person, Judge, and I thought, man, this is a 7 new issue. 8 identical issue existed in the halls of our courts 9 100 years ago as to people being ordered to stay at home I've got to figure this out. This almost 10 and whether or not that was a proper exercise of 11 authority. 12 me is the Department of Public Health Act. 13 Your Honor, and this is a significant issue that I hope 14 I do service, Your Honor. 15 some of the case law, again, that my colleague cited on 16 behalf of the Governor. 17 The law now has -- what I have in front of Let me grab, This act, Your Honor, is in This Department of Public Health Act must go 18 back, again, at least as early as 1922 when our Supreme 19 Court rendered an opinion that is significant. 20 have the, and I've provided it to the court, 20 ILCS 21 2305, Department of Public Health Act, and it has some 22 language within it that I think the court should 23 consider and it also has the Pandemic Influenza 24 Preparedness and Response Plan. 25 information, along with the cites that have been given So I Those pieces of 26 1 in these cases, I believe the court will find, when this 2 is over today and I'm done presenting it, that not only 3 did the Governor exceed his authority under the Illinois 4 Emergency Management Act, regardless of that and 5 independent of that, he never had any authority in the 6 first place as it relates to quarantine and isolation. 7 He didn't have any. 8 through and get my documents here and I'm going to 9 provide that to the court. I would like to -- again, let me go 20 ILCS 2305, Powers. The 10 State Department of Public Health has general 11 supervision of the interests of the health and lives of 12 the people of the State. 13 Department of Public Health, has supreme authority in 14 matters of quarantine and isolation, and may declare and 15 enforce quarantine and isolation when none exists. 16 Next sentence, Judge. It, the The legislature, the police making the laws, you 17 know, police laws that they made gave that authority, 18 not to the Governor. 19 the court is considering. 20 in the Emergency Management Act. 21 delegation of quarantine in the Emergency Management 22 Act. 23 people within a disaster area. 24 court that's probably not quarantine. 25 I mean we have two statutes here One I've argued he exceeded There is no specific It talks about how he can control the movement of I would suggest to the Our legislature, exercising its police powers, 27 1 which they have, gave that to a completely independent 2 body. 3 I get done presenting this to the court, I'm interested 4 to see how this gets responded to by the Governor. 5 Now they're under the Governor's office, but when Attached to the document that we've given you, 6 Judge, with the statute is a copy of, and it's required 7 by the statute, and I want to provide this to the court 8 and pray I do it justice, to the concerns of the people 9 of the state, maybe people in this room, that if this 10 court finds this order to be excess of his authority 11 that people's lives are at risk. 12 and I would tell the court they're not because this 13 issue has been reduced to a 120-page plan by the State 14 Department of Public Health Pandemic Influenza 15 Preparedness and Response Plan. 16 court to see. 17 cite. 18 under the statute, and what I think the court will find 19 interesting is that seven days before our Governor 20 issued his first proclamation of disaster, they made 21 some ministerial changes to this document, nothing 22 significant. 23 to it. 24 the COVID-19 was an issue for our country and right 25 before the proclamation. They're not, Judge, It's right here for the I've got some pages of it that I want to It refers to the statute and it's promulgated They added our new director, Miss Ezike, This document was being circulated through when 28 1 The court has it there. I'm going to start 2 where the issues that I think are relevant to the court 3 start on about page 66. 4 which are grounded in the authority granted the 5 Department of Public Health by our legislature who holds 6 the police powers of this state, Restriction of Movement 7 or Activities to Control Disease Spread. 8 whole section in here about that that the Department of 9 Public Health has, and it talks about quarantines and it In these rules, again, Judge, There's a 10 talks about the different types of quarantines. 11 Quarantine is not effective in controlling multiple 12 influenza outbreaks in large, and it goes on to talk 13 about, even if quarantine on a grand scale might be 14 effective in controlling influenza in large populations, 15 it would damage the economy by reducing the work force. 16 That's in their own plan. 17 The issue of how do they enforce this. 18 THE COURT: Are you arguing that we don't need 19 the Executive Order to save millions of lives? 20 just follow that, we're all going to be just fine. 21 that what you're saying? 22 MR. DeVORE: If we Is I'm saying that that's what this 23 document was prepared for this issue, and I have two 24 Supreme Court cases that took this issue on 60 and a 25 hundred years ago that said the legislative branch and 29 1 the Department of Public Health controls isolation and 2 quarantine and they are better served -- I want to read 3 some of this on the record if I could -- they are better 4 served as a board to legislate through the delegation by 5 the legislature to do that than one person. 6 Court a hundred years ago, Judge, and I want to get to 7 that, says that one person making these decisions is not 8 what this country is all about and I will get to that, 9 but what I'm saying is, yes, sir, I'm saying this 120- Our Supreme 10 page document -- and you know what it says, Your Honor? 11 It says in here that these decisions, and I called on 12 county health departments, but the decisions of 13 quarantine and isolation, and you know what else, 14 closure of businesses is controlled through the 15 legislature through the Illinois Department of Public 16 Health down to every county health department within the 17 102 counties that we have. 18 That's what the law says, and it's in here and 19 they've had it and they were inside of it making 20 ministerial changes seven days before the proclamation 21 was entered. 22 23 24 25 THE COURT: That document, that provides right to counsel, judicial review and all of that, correct? MR. DeVORE: The plan cites the statute and the statute says, here's what it says, it says if the, and I 30 1 can tell you, I had to go ask, communicable, that's a 2 big word, disease nurse, Bond County is where I live, 3 sir. 4 want to say her name, if you were believed to have any 5 contagious disease ever, not just COVID-19, she has the 6 ability to go to our administrator and our administrator 7 will then send a letter to that person, the notice. 8 know what, the statute requires a notice to that person 9 that says we have determined you have this disease and There's a communicable disease nurse, and I don't You 10 we need you to either voluntarily quarantine or not and, 11 if you don't, the board can go to our state's attorney, 12 whose name is Dora Mann, and it says they can get an 13 order from the judge saying you have to quarantine and 14 giving them 48 hours to appear with counsel to be heard. 15 That's in place, Judge. 16 THE COURT: That's always been in place. I get that. What if, instead of 17 COVID-19, what if this was a mutation of Ebola with a 18 hundred percent kill rate? 19 Emergency Management Act is designed to prevent and what 20 these Executive Orders are designed? 21 under that act to do what you're saying. 22 time. 23 place down or everybody is going to die. 24 25 Isn't that what this There's no time There's no You've got to socially isolate and shut this MR. DeVORE: I agree with you 100 percent, and you know what this plan says, Judge? It says that 31 1 decision, the legislative branch of our state has 2 delegated that decision making to the Illinois 3 Department of Public Health, not to the executive branch 4 of Governor. 5 6 THE COURT: Manage- ment Act. 7 8 9 10 But they did in the Emergency MR. DeVORE: did. Correct. They're trying to say that they Yeah. THE COURT: MR. DeVORE: All right. And -- well, I'm going to point 11 that out, too, Judge, because I'm interested to hear 12 what my colleague says, is that they have now in their 13 response said that their authority was grounded in not 14 only the Illinois Emergency Management Act but it's 15 grounded in the constitution. 16 looked to make sure I didn't miss anything, and in the 17 proclamations and orders that were entered, it 18 specifically says we have issued these orders pursuant 19 to these sections of the Illinois Emergency Management 20 Act and it's consistent with public health laws. 21 not consistent with this public health law, Judge. 22 Now, I went back and It completely contradicts it. It's Not only does it 23 contradict it and usurp it, it strips the fundamental 24 due process rights away from every citizen, including 25 Mr. Bailey. For those reasons, Judge, we believe that 32 1 the mechanisms that are in place, they've been in place, 2 and I want to end this -- I have one case that my 3 colleague cited, Judge, that I would like to hand the 4 court and I would like the record to reflect -- I want 5 the court to appreciate -- may I, sir? 6 THE COURT: 7 MR. DeVORE: Yeah. That this issue -- this was a 8 typhoid issue of 1922 I believe is when the case was 9 issued, Judge, but this was a writ of habeas corpus to 10 where a citizen of our state said that they were being 11 held against their will for all intents and purposes. 12 This was, and I'm on page 4 of 13, this lady's name was 13 Jennie Barmore, and she filed in the court an 14 application for writ of habeas corpus, in English that 15 means I'm being held against my will, stating that she 16 was unlawfully restrained of her liberty at her home in 17 Chicago by the commissioner of health. 18 talks about the health of the people is unquestionably 19 an economic asset and social blessing and the science of 20 public health is of great importance. 21 It goes on and Now here when I get to page 6 is where this case 22 law that I would ask the court to consider, the 23 preservation of the public health is one of the duties 24 devolving upon a state as a sovereign power will not be 25 questioned. It is. The health of the people in our 33 1 state is, it is important. Among the objects sought to 2 be secured by governmental laws, none is more important 3 than the preservation of the public health. 4 preserve the public health finds ample support in the 5 police power, which this is the part of the case I 6 believe my, the Governor cites, which is inherent in the 7 state, and which the state cannot surrender. 8 true, too. 9 and enforce quarantine, health and inspection laws, The duty to That's Every state has acknowledged power to pass 10 quarantine, health and inspection laws to prevent the 11 introduction of disease, et cetera, and such laws must 12 be submitted to by individuals. 13 So what that says, Your Honor, is that under 14 these circumstances through the powers given to certain 15 departments by the legislature, is that we, as citizens, 16 sometimes may have to yield. 17 think my client understands that. 18 what laws or regulations are necessary to protect public 19 health and secure public comfort is a legislative 20 question, and appropriate measures intended and 21 calculated to accomplish these ends are not subject to 22 judicial review, and what that goes on to say is that 23 when someone eventually makes it to your court saying 24 that they've been held in violation of their rights, 25 this court would apply an arbitrary and capricious We understand that and I Generally speaking, 34 1 standard of whether or not they have been restrained. 2 Next paragraph, Judge. The legislature may, in 3 the exercise of the police power of the state, create 4 ministerial boards, Illinois Department of Public 5 Health, with power to prescribe rules and impose 6 penalties for their violation and provide for the 7 collection of such penalties. 8 9 So there's been a lot of conversation that the court may have heard, well, how does a governor enforce 10 this? That's a good question. Here's how the Illinois 11 Department of Public Health enforces it and it's right 12 here, the exercise of the police power is a matter 13 resting in the discretion of the legislature or the 14 board or tribunal to which the power is delegated and 15 the courts will not interfere with this exercise unless 16 it's arbitrary or capricious. 17 Judge, and I'm going to come to the end of something 18 that this case says, that this court said. 19 legislature has granted the power to appoint a board of 20 health and to prescribe its duties and powers. 21 of health must necessarily consist of more than one 22 person and powers. 23 administration of public health should be vested in an 24 individual, and that that individual may be trained in 25 the science of public health. This is a 1922 case, The A board Many authorities contend that the This contention is based 35 1 on the ground that this form of administration of the 2 health laws is productive and efficient. 3 Please bear with me, Judge. This is so 4 important. The same argument might have been made in 5 favor of an absolute monarchy, but the experience of the 6 world has been that other forms of government, perhaps 7 more cumbersome and less efficient, insure to the people 8 a more reasonable and less arbitrary administration of 9 the laws. Whatever may be best, legislature of Illinois 10 has said that the public health shall be regulated and 11 guarded by the board of health. 12 grants to cities, this was a city case, the power, they 13 must contend with the board of health. 14 case said, Judge, a hundred years ago, and that's what 15 I'm asking this court to say today. 16 Until the legislature That's what this We have an Emergency Management Act. Does it or 17 does it not give the Governor the power at all to 18 quarantine people? 19 act for the Department of Public Health is clear. 20 says we are the supreme power. 21 times I may have seen you have the supreme power. 22 the court is looking at these two statutes, I think it's 23 clear to say the Department of Public Health statute is 24 more specific. 25 I would say it's in -- I think the It I don't know how many If Coming back to the Illinois Emergency Manage- 36 1 ment Act, did it grant the Governor the power to 2 quarantine, not just save people from going into a 3 disaster area? 4 Governor saying who can go in there and who can't go in 5 there, that's important movement of people, but to take 6 it to the point of moving a people, being quarantining 7 the whole state, I think if the court looks at the plan 8 that we have here, it actually says that those aren't 9 really good ideas because it's hard to enforce and would If we had a nuclear disaster, the 10 damage the economy. 11 actions of the Governor. 12 Their own plan, Judge, vitiates the So I'm asking the court to say Illinois 13 Department of Public Health Act, the legislature who 14 holds the ultimate police power, has given that to the 15 Board of Health. 16 120-page Pandemic Influenza Response. 17 our state has something in place right now. 18 protection that our legislature has set up to handle 19 these matters. 20 clearly gave the Governor the ability to enter some kind 21 of orders within 30 days. 22 proclamation to try to do that. 23 be required, or allowed by the statute itself, and, even 24 if the court might get that far, which I'm asking it not 25 to, that interpretation should not exceed the express We have a mechanism in place through a Every county in That's the The Illinois Emergency Management Act He has now used a serial That doesn't appear to 37 1 and clear legislative mandate of the Illinois Department 2 of Public Health. Thank you very much, sir. 3 THE COURT: What say you, Mr. Attorney General? 4 MR. VERTICCHIO: Thank you, Your Honor. Your 5 Honor, the Illinois General Assembly passed the 6 Emergency Management Agency Act and, when it did, in the 7 introduction, here's what it said as to why the act was 8 passed, quote, to insure the state will be prepared to 9 and will adequately deal with any disasters, preserve 10 the lives and property of the people of this state and 11 protect the public peace, health and safety in the event 12 of a disaster. 13 Section (2)(a), the Act also grants the Governor 14 the authority to declare by proclamation that a disaster 15 exists and to exercise emergency powers pursuant to that 16 disaster proclamation. 17 18 THE COURT: That preamble there just said to protect property, is that right? 19 MR. VERTICCHIO: 20 Lives, property, peace, health. 21 THE COURT: That's one of the things. This Executive Order is absolutely 22 destroying people's property. 23 keeping them from working, making a living. 24 preserving property? 25 MR. VERTICCHIO: It's killing them. It is How is that Well, it's a judgment to be 38 1 made, Your Honor, and it's a judgment that's being made 2 not only in Illinois but across the country, indeed, the 3 world and lives -- 4 THE COURT: Well, with respect to that, how 5 about the couple of states who never shut down in the 6 first place? 7 opening? 8 9 How about the states right now who are MR. VERTICCHIO: And that's the judgment that the governors of those states made within their 10 executive power. 11 different judgment. 12 right to make under the act, and what's interesting 13 about the act and the proclamation and, in fact, the 14 30-day successive, multiple orders is that since the 15 decades that the act was passed, Governors Rauner, 16 Quinn, Pritzker, have passed successive and multiple, 17 made successive and multiple proclamations and then, on 18 that proclamation, issued executive orders regarding the 19 declaration of a disaster. 20 THE COURT: 21 MR. VERTICCHIO: 22 In Illinois, Governor Pritzker made a He made a judgment that he had the Aren't you talking about flooding? Several of them were flooding, Your Honor. 23 THE COURT: There is -- 24 MR. VERTICCHIO: 25 THE COURT: One of them was H1N1. There is a vast difference between 39 1 being allowed to ask the federal government for disaster 2 loans for farmers in a flood and an executive order that 3 shuts down my right, my constitutional right to work, to 4 travel, to exist, isn't there? 5 MR. VERTICCHIO: Well, excepting, Your Honor, 6 the issue that the plaintiff brings is under this 7 statute, does the Governor have the right to make 8 multiple or successive declarations of a disaster and, 9 therefore, upon that proclamation, trigger emergency 10 powers for a period of 30 days, and the history of this 11 act with multiple governors is yes, and now -- 12 THE COURT: Does the Governor -- does the 13 Governor have the right to shred the constitution for 14 longer than 30 days? 15 16 That's the issue, isn't it? MR. VERTICCHIO: Well, the legislature promulgated the act and gave the Governor vast powers. 17 THE COURT: They certainly are vast. 18 MR. VERTICCHIO: They are. They are, and I 19 think the key section is the one that counsel pointed 20 out. 21 today. 22 It's Section 7. THE COURT: That's what we're here about I'm glad you brought that up. 23 Section 7 says, and I'm reading it here, let me find 24 this here, the Governor shall have and may exercise for 25 a period not to exceed 30 days. It doesn't say you can 40 1 do multiple declarations. 2 whatever you want, even if it shreds the constitution 3 but, after that, party over. 4 5 MR. VERTICCHIO: It says you got 30 days to do Respectfully, Your Honor, that's not what it says. 6 THE COURT: Please tell me what it does say. 7 MR. VERTICCHIO: I'm going to read Section 7. 8 Quote, Emergency Powers of the Governor. In the event 9 of a disaster, as defined in Section 4, and we have no 10 dispute that there is a disaster here, the Governor may, 11 by proclamation declare that a disaster exists. 12 Continuing, upon such proclamation, what proclamation? 13 The proclamation that a disaster exists, upon such 14 proclamation, the Governor shall have and may exercise 15 for a period not to exceed 30 days the following 16 emergency powers. 17 So what triggers the 30 days? The proclamation. 18 Upon such proclamation. When the Governor, under the 19 clear reading of the act, it's the language they use, 20 when the Governor, present tense, declares a disaster 21 through proclamation, which he did in this case on 22 March 9th and then again on April 1st, that declaration, 23 through proclamation, triggers the next clause or 24 sentence. 25 have and may exercise for a period not to exceed 30 days Upon such proclamation, the Governor shall 41 1 2 the following emergency powers. It's a clear sentence. So the triggering event is the proclamation and 3 then the 30 days. 4 there's another trigger, and, if there's another 5 proclamation, then there's another trigger. 6 guardrail? 7 on forever? 8 required under the act to declare a disaster. 9 10 11 If there's another proclamation, then What's the What's the guardrail because this can't go Well, the guardrail is that the Governor is THE COURT: What's to stop him from keeping on declaring a disaster for the next five years? MR. VERTICCHIO: Cases like this, Your Honor. 12 Cases like this. 13 his declaration of disaster was not taken in good faith, 14 and that's the standard. 15 16 17 THE COURT: Mr. Bailey could bring a case and say I'm sure we'll get to that in the next lawsuit. MR. VERTICCHIO: Well, we may, but what we've 18 heard today is we're not disputing there's a disaster 19 and how could we? 20 for today, Your Honor, said that there's been almost 21 42,000 cases of COVID-19 in Illinois and 1,843 deaths. 22 I realized coming down here this morning my notes were 23 wrong because I heard on the radio that there were 59 24 deaths yesterday. 25 THE COURT: How could we dispute that? My notes There's a disaster. And zero in Clay County and zero in 42 1 numerous other downstate counties. 2 MR. VERTICCHIO: That's an interesting point, 3 Your Honor, because in Jasper County right next door 4 there's 42 cases. 5 THE COURT: In a nursing home. 6 MR. VERTICCHIO: In a nursing home. In Marion 7 County, I looked last night, I think there were 8 26 cases. 9 Illinois only problem because in southern counties, too, So this is not -- this is not a Northern 10 the issue exists. 11 10,000 residents in the county. 12 one of the highest per capita infection rates in 13 Illinois. 14 Jasper County, 42 cases, less than As a result, it suffers Its rates are doubling every three days. Jefferson County is one of the few to exceed 15 Jasper. 16 Randolph County, one of the fastest doubling rates in 17 the state. 18 a disaster. 19 Its rates double every two and a half days. The point is we can't really dispute it was It is a disaster. THE COURT: With respect to these statistics 20 you're throwing out here and all of that, isn't it true 21 that if I die in a car wreck and I happen to test 22 positive for COVID-19, my cause of death for purposes of 23 what this Governor is doing is COVID-19? 24 25 MR. VERTICCHIO: I don't know. I don't know how that particular method is, Your Honor. 43 1 THE COURT: All right. 2 MR. VERTICCHIO: So, under the act, that 3 sentence is clear, and it's interesting to note that 4 counsel goes on in Section 7 to read that, well, wait a 5 minute, provided, however, that the lapse of emergency 6 powers shall not and, therefore, the conclusion is, 7 well, it must contemplate a lapse, but you have to read 8 the rest of the section. 9 it very clear that that clause concerns payment, The rest of the sentence makes 10 reimbursement and compensation of people who contracted 11 to provide services doing the 30-day period. 12 has nothing to do with whether the Governor has the 13 ability to then proclaim a disaster again and then, upon 14 such proclamation, another 30 days triggers. 15 It simply In our case, March 9th came and Governor 16 Pritzker declared a disaster existed. 17 first Executive Order exercised the emergency powers 18 that were to extend through April 7th as we learned, 19 30 days from the original. 20 tense, declared a disaster existed thereby, upon that 21 proclamation, was able to exercise his emergency powers 22 through the same day Executive Order on April the 1st 23 through April the 30th. 24 25 March 20 the Then on April 1st, present There are no limitations in the act with regard to his ability or any governor's ability to declare 44 1 multiple and successive proclamations, and that's what 2 he did on March 9 and that's what he did on April 1. 3 The act is clear and unambiguous on that issue. 4 THE COURT: There's also nothing in the act that 5 says you get to keep doing this every 30 days whenever 6 you want. 7 That ain't in there either, is it? MR. VERTICCHIO: Well, what the legislature 8 said, the general assembly said is that, if you declare 9 a disaster, then upon that proclamation, you've got 10 30 days, and the guardrails again are was it a good 11 faith exercise of the declaration of a disaster, and 12 maybe some day there will be that case, but for today's 13 purposes, I don't think anybody can dispute that we have 14 a disaster and, more importantly, nobody is disputing 15 it. 16 Where Mr. Bailey, the plaintiff's construction 17 gets confused is that he triggers and links the 30-day 18 period of emergency powers to a particular disaster, but 19 the 30-day limitation isn't linked to a particular 20 disaster. 21 it's linked to the proclamation of a present tense 22 disaster. 23 Under the clear language of the legislature, So it's pretty clear, Your Honor, that given the 24 sequence of events, Governor Pritzker conducted the 25 proclamation and the executive orders specifically 45 1 within the language of the statute. 2 the declaration, 30 days emergency power. 3 statute's looked at as a whole, it's apparent that that 4 plain language means exactly what it was intended to 5 mean, because when you look at the limitations section 6 of the statute, Section 3, it has no limitations on the 7 Governor on this issue. 8 the Governor in Section 3 is that the act shall not be 9 construed to constrain the Governor's ability to, quote, 10 proclaim martial law or exercise any other powers vested 11 in the Governor under the constitution, statutes, or 12 common law of this state. 13 this 30-day issue. 14 Declare, then upon And when the In fact, the only mention of There are no limitations on So you look further in the statute. Well, did 15 the legislature, the general assembly put limitations on 16 somebody else regarding this issue, this timing issue 17 about declaring a disaster? 18 Section 11, the general assembly dealt with the issue of 19 a local disaster, local disaster, and it gave local 20 political bodies the ability and, in particular, the 21 executive of a local subdivision, the ability to declare 22 a disaster, but here's what it said in that regard. 23 That the local disaster declaration, quote, this is 24 Section 11, quote, shall not be continued or renewed for 25 a period in excess of seven days except by or with the And the answer is yes. In 46 1 consent of the governing board of the political 2 subdivision. 3 In that instance, same statute, same issue, the 4 general assembly determined we're going to confine the 5 local subdivision to seven days unless it gets consent 6 of the governing body of the subdivision. 7 same issue with regard to the Governor, that limitation 8 is not there. 9 wanted to put a limitation on this ability to declare a The precise In other words, when the legislature 10 disaster in terms of timing, it did. 11 didn't place that restriction on the Governor. 12 exists. 13 THE COURT: Fair inference, it None Well, I get that, and for 30 days -- 14 the legislature, aren't they saying, look, we get it. 15 You can't spend all of this time -- you've got 30 days 16 to make this state safe and do what you've got to do, 17 but, after that, there's that pesky little thing called 18 the constitution that's going to have to be dealt with. 19 MR. VERTICCHIO: Well, Your Honor, there's a 20 couple things on that. That construction, and that's 21 certainly Mr. Bailey's construction, that construction 22 presumes that every disaster will either be over in 23 30 days or the legislature is going to do something, but 24 when passing the act, the general assembly determined 25 that that's not the guardrail we're going to put on the 47 1 Governor. We're not saying in this act you can only do 2 it for 30 days and then we're going to do something. 3 That's not what the ACT says. 4 when passing the ACT, said, Governor, if you declare a 5 disaster, the law says he has to do it in good faith, 6 but if you declare a disaster by proclamation, upon that 7 proclamation, you have emergency powers for 30 days. 8 That's all it said. 9 thereafter, the legislature will convene. The general assembly, It could have gone on to say and, It doesn't 10 say that. 11 Bailey's construction of the statute, the 30 days 12 triggers a stop. 13 30 days, it's void, it's invalid, it's illegal he'll 14 tell you. 15 It doesn't say that at all, but under Mr. Stop. But then what? If you do something past What if the general assembly 16 isn't in a position to convene? Sometimes that could be 17 the case. 18 determination of the general assembly was the guard- 19 rails would be the declaration of a disaster. 20 event, if there is a present-tense disaster, the 21 Governor declares, proclaims 30 days and, yes, it was 22 floods, although Governor Rauner's I believe was also 23 H1N1, multiple successive orders under the act. Some would argue it's the case now. 24 THE COURT: 25 MR. VERTICCHIO: The In that H1N1 is the flu, also, right? Certainly a virus. 48 1 THE COURT: And that governor certainly didn't 2 shut down the state and destroy people's lives and 3 property for H1N1. 4 MR. VERTICCHIO: No question about it. H1N1 is 5 nothing -- I can't say it's nothing. 6 significant, but, compared to COVID-19, it's not, it's a 7 different world. 8 9 10 MR. DeVORE: Judge, I just want to put on the record for clarification that counsel is not giving medical professional advice. 11 THE COURT: 12 MR. DeVORE: 13 MR. VERTICCHIO: 14 It clearly was I get that. Thank you. I will stipulate to that, Your Honor. 15 MR. DeVORE: Thank you, sir. 16 MR. VERTICCHIO: But there's legal consequence 17 to the history of three different governors, successive, 18 multiple executive orders, proclamations of disaster, 19 30 days continued, another 30, another 30, and there's 20 legal consequence of the legislature not coming in and 21 saying, time out, you can't do that. 22 Why do I say there's legal consequence? 23 You can't do that. Well, we cited the case, Your Honor. It was the 24 Pielet Brothers case. Here's what the court said: 25 reasonable interpretation of a statute by an agency A 49 1 charged with enforcement of that statute is entitled to 2 great weight. 3 persuasive if consistent, long-continued, and in 4 conjunction with legislative acquiescence on the 5 subject. 6 legislature, presumably aware of the administrative 7 interpretation in question, has amended other sections 8 of the act since that interpretation but left untouched 9 the sections subject to the administrative Such a construction is even more Such acquiescence appears where the 10 interpretation, and that is precisely the situation we 11 have here. 12 We have multiple governors under Section 7 of 13 the ACT making multiple or successive proclamations and, 14 upon such proclamation, exercising emergency powers for 15 the 30-day period. 16 assembly, during these several decades, on 11 separate 17 occasions amended the act and not once did anyone in the 18 general assembly even suggest, wait a minute, those 19 successive and multiple declarations and proclamations, 20 he can't do that. 21 clear. 22 We have the legislature, the general We need to amend the act to make this The Pielet court tells us that's very persuasive 23 evidence of acquiescence and validates the 24 interpretation given by the Governor in this case. 25 of that the plaintiff ignores, disregards the plain All 50 1 language, the plain language of Section 7, adds 2 restrictions where none exists. 3 restriction there. 4 restriction on this issue is in Section 11, and the 5 general assembly was very clear there, and ignores those 6 clear limitations that were placed upon the 7 subdivisions. 8 9 There are -- there's no The one place where there is a Mr. Bailey says, well, by permitting successive and multiple disaster proclamations, you rendered the 10 30-day limitation meaningless. 11 limitation triggers upon the declaration of the disaster 12 and then a subsequent proclamation. 13 because the Governor has to, at the end of the 30 days 14 or before the 30 days, if he is under the judgment that 15 another proclamation is in order and another declaration 16 is required, he's under the good faith obligation to 17 make a declaration of disaster and renew the emergency 18 powers and that's exactly what happened here. 19 THE COURT: 20 good faith? 21 judge that? 22 Hold on. Not true. The 30-day It has meaning Who governs whether it's Where does the petitioner get to go to MR. VERTICCHIO: Right here, and that's a 23 situation, Your Honor, better left in the hands of 24 people like you. 25 determination, but that's where it's left. Not to suggest that it's an easy 51 1 THE COURT: For the record, I'm bound to follow 2 the law and the law requires me to give deference to the 3 executive branch and the legislative branch and I so do. 4 Go ahead. 5 MR. VERTICCHIO: Thank you, Your Honor. 6 Finally, Your Honor, on the issue of the statutory 7 interpretation, the interpretation pressed by the 8 plaintiff would lead to absurd and, frankly, in this 9 case, dangerous results because, as a result of a 10 finding that the Governor, despite the clear language of 11 the act, does not have the authority under the act to 12 issue successive and multiple proclamations triggering 13 the emergency powers, the requested relief says, 14 therefore, after April 7th, everything that the Governor 15 implemented through the Executive Order of April 1st is 16 void. 17 orders are cited in the exhibits to the plaintiff's 18 complaint. 19 protective equipment. 20 protecting state government operations, home evictions, 21 Department of Corrections regulations, health workers, 22 county jails, Illinois schools, repossession of 23 vehicles, regulation of bars and restaurants, 24 unemployment insurance, open meetings act issues, 25 federal funds, social distancing, protection of health, There's the -- and we've -- most of the executive Procurement of medical supplies, personal There's executive orders 52 1 all of those executive orders, every one of them, 2 according to Mr. Bailey, are void and invalid as of 3 April 7th. 4 THE COURT: They already happened. 5 horse left the barn, didn't it? 6 MR. VERTICCHIO: I mean that But what happens to the work 7 that's being done pursuant to all of those? 8 now free to do what they want. 9 no longer protected. Everyone is Health care workers are The Amicus brief comes to mind, 10 Your Honor. 11 by the Governor under the specific authority of the act 12 to protect the health and safety of citizens, of the 13 citizens of Illinois. 14 They're all void, and they were all taken MR. DeVORE: Judge, could counsel clarify 15 whether he's referring to Section 6 or 7 as to these 16 measures? 17 MR. VERTICCHIO: Section 7 is the trigger. As I 18 said, Your Honor, these restrictions have been in place 19 now, first on March 20 then renewed based upon a new 20 declaration on April 1st and, even with the 21 restrictions, 42,000 cases, now almost 1900 deaths. 22 If they are removed, if the court determines 23 they're invalid, they're removed, things are going to 24 get worse, things are going to get worse, and the 25 general assembly's determination that this act was to 53 1 protect the health and safety of the people of the state 2 of Illinois will be frustrated. 3 THE COURT: All they've got to do is convene and 4 make a motion to amend this Emergency Management Act to 5 give the Governor, not 30 days, 60, 90, 120. 6 MR. VERTICCHIO: There's no question, Your 7 Honor, but we're here to determine what did they already 8 do? 9 determination. The legislature has already made that 10 THE COURT: I get you. 11 MR. VERTICCHIO: So for all of those reasons, 12 the clear construction of the act, the statutory 13 construction rules, they all clearly land on 30 days as 14 triggered by the proclamation, the declaration of the 15 disaster. 16 the proclamations, and specifically the April 1 17 proclamation, that went afoul of the specific language 18 of the legislature. 19 There was nothing, nothing about either of And, beyond that, there's the constitutional 20 issue. Counsel said to the court, well, there's no 21 evidence in the orders that they were done pursuant to 22 some constitutional authority in addition to the act, 23 but I'm looking, for example, at, it's Exhibit 2 to the 24 plaintiff's complaint, the therefore clause that counsel 25 read part of. Therefore, quote, by the power vested in 54 1 me as Governor of the State of Illinois and, now I'm 2 paraphrasing, pursuant to the act and health laws, I'm 3 invoking these emergency powers. 4 that it was pursuant to the act and pursuant to the 5 powers as Governor of the State of Illinois. 6 those are his constitutional powers. 7 So it's pretty clear Well, When you consider that he has the constitutional 8 powers in the situation at hand, it's clear that he, he 9 being Governor Pritzker, properly exercised those powers 10 here for three very simple reasons. 11 the state's police powers. 12 constitution to protect public health and safety. 13 That's a truism. 14 done nothing, nothing to restrict the Governor in the 15 exercise of his constitutional authority to protect 16 health and safety. 17 in the Emergency Management Act, the general assembly 18 specifically said the constitutional authority of the 19 Governor is preserved. 20 any way and, finally, three, also undeniable, COVID-19 21 presents a situation of urgent circumstances that 22 requires prompt action, and that gets to the point that 23 you made. 24 25 We've heard about They exist under the Secondly, the general assembly has As a matter of fact, we now actually We don't seek to limit that in You said it a couple of times. There's no time. There's no time. There's no time to go to the health 55 1 department. 2 everyone in this county, everyone in this state to get 3 right to counsel, have a hearing, determine whether some 4 kind of stay at home is required. 5 There's no time for everyone in this room, There's no time. And I know Your Honor commented upon the line in 6 the brief about millions dying, and I think, I think I 7 heard a snicker from the back, but it's no joke. 8 I'm driving down this morning from my home, 59 people in 9 Illinois died yesterday. Again, This is no joke. 10 The constitutional -- 11 THE COURT: Counsel, I couldn't agree with you 12 more that it's no joke and, while we're on that subject 13 since you brought it up, at a recent press conference, 14 this Governor was asked by a reporter what about easing 15 restrictions in counties in Illinois that don't have 16 COVID or don't need it, and his response was, wait for 17 it, laughter. 18 I agree. MR. VERTICCHIO: It ain't funny. Go ahead. Couldn't agree more, Your 19 Honor. So the constitutional authority is also clear, 20 and counsel read the probative language, the relevant 21 language from the Barmore court case, among all, quote, 22 among all of the objects sought to be secured by 23 governmental laws, none is more important than the 24 preservation of public health. 25 public health finds ample support in the police power, The duty to preserve the 56 1 which is inherent in the state. 2 denied and the circumstances could not be more grave and 3 the circumstances require prompt action. 4 Your Honor, there's no time. 5 The power can't be As you said, The Governor issued the executive orders. 6 They're tailored to the situation, and there's nothing 7 inconsistent in them under the statute and they are 8 within his constitutional power. 9 THE COURT: Hold on. When you say tailored to 10 the situation, that's a whole different argument and a 11 whole different standard, is it not? 12 13 14 15 16 17 18 MR. VERTICCHIO: Well, the executive orders are certainly broad in terms of coverage. THE COURT: Broad? You could drive a Mack truck through this thing. MR. VERTICCHIO: They're broad. They're broad given the situation. THE COURT: Tailored to the situation? How in 19 the world does me not being allowed to fish at Forbes 20 Lake promote COVID-19 but panic buying at Walmart 21 doesn't? 22 That ain't tailored to nothing. MR. VERTICCHIO: If, by the question, Your 23 Honor, you're wondering out loud whether someone will 24 bring that lawsuit to question whether it was a good 25 faith exercise in the finding of a disaster, I don't 57 1 know. 2 facts that are alleged in the Complaint, the statutory 3 action was proper, legal within the terms of the 4 statute. 5 the constitutional authority of the Governor. 6 I don't know, but under the law and under the The constitutional action was proper within For that reason, and, again, this goes to the 7 likelihood of success requirement, but it also goes to 8 the 2-615 Motion. 9 know them, given the facts that are already pled, that There's no way, given the facts as we 10 Mr. Bailey can amend the Complaint in any way to cure 11 the situation. 12 Complaint should be dismissed with prejudice on the 13 2-615 Motion, and the Motion for Temporary Restraining 14 Order, in any event, should be denied because there's 15 virtually no likelihood of success. 16 likelihood of success. 17 the defendant in a 2-615 Motion, everything he says is 18 accepted as true and he simply doesn't state a claim, 19 and the TRO Motion fails for other reasons, too. 20 The statute says what it says. The There is no Given the burden undertaken by Mr. Bailey was obligated, in the TRO Motion, to 21 make a showing of irreparable harm and the showing had 22 to be supported by facts. 23 said, Your Honor, as quoted in our brief, quote, a TRO 24 is an extraordinary remedy and the party seeking it must 25 meet the high burden of demonstrating, through well-pled Here's what the Capstone case 58 1 facts, that he is entitled to the relief sought. 2 Continuing quote, to be considered well-pleaded, a 3 party's factual allegations must be supported by 4 allegations of specific facts. 5 On the injury, not only injury, but the 6 irreparable injury, what do we know? Not much. We 7 don't know -- we don't know where Mr. Bailey wants to go 8 that he's not allowed to go. 9 well, we haven't seen it yet. Counsel made a statement, Well, respectfully, 10 plaintiff has an obligation to plead the facts. 11 haven't seen it yet doesn't cut it. 12 nothing about an injury to Mr. Bailey because all we 13 have in the pleading, and that's all we can have on a 14 TRO Motion, is his conclusion. 15 16 17 THE COURT: We We know virtually Are you seriously trying to argue that this Executive Order has not caused serious injury? MR. VERTICCHIO: I'm seriously trying to argue 18 that, with regard to Darren Bailey, who, as a result of 19 him being an elected public official, is specifically 20 exempt from the Executive Order. 21 THE COURT: He didn't sue as a public official. 22 He sued as a private citizen. 23 running a non-essential business, which also, for all I 24 know, is now bankrupt because of this Executive Order. 25 MR. VERTICCHIO: For all I know, he's That's the point, Your Honor. 59 1 You said it. For all I know. 2 know. 3 knows. 4 It's not in the Motion. 5 anywhere. 6 know. 7 the question on a Motion for Temporary Restraining Order 8 on the harm issue is, we cited you the cases, why does 9 this order need to issue today? I don't know. Why not? We don't know. You don't No one looking at this record Because it's not in the Complaint. It's not in this record Maybe he was irreparably harmed. You don't know. I don't It's not in the pleadings, and What is your 10 irreparable harm now? 11 case just proceed at a pace that every other case? 12 Pursuant to the rules of civil procedure, the case will 13 go on. 14 issued today that so irreparably harms the plaintiff? 15 And you said it. 16 that it was his burden to carry. 17 And the flip side, why can't this If not, what about it requires the order be THE COURT: We don't know. That's a requirement He didn't carry it. What we do know is that every second 18 this Executive Order is in existence, the Illinois 19 Constitution, numerous sections of it are being violated 20 and the Bill of Rights is being shredded. 21 irreparable harm. 22 23 24 25 MR. VERTICCHIO: political questions. THE COURT: That is We're here, Your Honor, not on We're here on -- That's got nothing to do with politics. 60 1 MR. VERTICCHIO: I mean political question in 2 the legal sense, Your Honor, not politics. 3 on whether Mr. Bailey has carried his burden and he 4 hasn't and, even if he did somehow convince the court 5 that there was irreparable harm, the court then must 6 look at the balancing of hardships and, when you look at 7 the balancing of hardships, what damage to the public, 8 it's laid out in our brief, Your Honor. 9 We are here The Executive Orders with the safeguards, the 10 situation hopefully is getting under control, you take 11 them all off and things are going to get worse. 12 public is going to be damaged. 13 The The Amicus brief, I looked at the declaration of 14 Dr. Michael Wahl, W-a-h-l. 15 the damage to public health care workers, hospital 16 workers if the regulations are deemed to be void, to use 17 the plaintiff's terminology. 18 harms isn't even close. 19 have what Dr. Wahl talks about and everything that's in 20 our brief. 21 the damage to Mr. Bailey. 22 don't know. 23 He lays out in great detail And so the balance of On one side of the ledger, you On the other side of the ledger, you have And as to that damage, we Finally, Your Honor, just a word about the 24 supplemental brief and the health care issue, the 25 Department of Public Health and the Public Health Act. 61 1 The supplemental brief raises not only a legal theory 2 that is not in the temporary restraining order papers, a 3 legal theory that was raised at one o'clock this 4 morning, but, more importantly, I think, it raises facts 5 that are no where in the Complaint or, for that matter, 6 anywhere in this record. 7 because I think there can't be, that Mr. Bailey is 8 subject to a quarantine, a quarantine. 9 There's simply no evidence, So for that reason alone, the shifting of gears, 10 let's talk about the health act now. It doesn't work 11 because the pleading means something, the allegations 12 mean something. 13 when you're asking a court to issue emergency injunctive 14 relief, the pleadings mean something. 15 quarantine authority to the Department of Public Health 16 is, as the act itself says, it's in our response to the 17 supplement, Your Honor, supplements the Governor's 18 authority under the Emergency Management Act. 19 Section 2. 20 there's simply no time. 21 alleged that kind of at least put him within the scope 22 of the act, there's no time to deal with every person, 23 every case in the event of a COVID-19 pandemic. 24 to deal with it is the Emergency Management Act. 25 what the Governor did. They are not so nimble, particularly Beyond that, the It's in It doesn't limit it and, as you said, Even if we had facts that were The way That's 62 1 And, finally, on this point, and it's also in 2 the supplemental response, Your Honor, the construction 3 Mr. Bailey wants to put upon the act trounces again upon 4 the Governor's constitutional authority. 5 supplemental argument raised early this morning, wrong 6 on the facts and wrong on the law. 7 So this Your Honor, I was talking with one of the 8 sheriff's deputies before the hearing downstairs and I 9 mentioned, we were just chatting, and I mentioned that 10 these are strange times. 11 but they're also sad. 12 this world and this state that's sad as a result of 13 COVID-19. 14 an Executive Order like the Governor issued? 15 it sad that people are getting the virus? 16 sad that people are dying? 17 by the Governor, consistent with the statutory 18 authority, consistent with the constitution, and at the 19 end of the day, Mr. Bailey didn't carry his burden on 20 the TRO. 21 I was right. They're strange There's just a lot going on in Is it sad that people have to be subject to Yes. Yes. Yes. Is it But the action taken The Governor respectfully requests, Your Honor, 22 that the Complaint be dismissed with prejudice under 23 2-615 and, in any event, the Motion for Temporary 24 Restraining Order be denied. 25 Is THE COURT: Thank you. Thank you for your excellent 63 1 argument. 2 else to add other than your argument that this is too 3 much power in an individual, it's tyrannical, and the 4 last time this happened a bunch of guys got on a boat 5 and threw tea in the Boston Harbor? 6 7 MR. DeVORE: Petitioner, do you have anything That's exactly what I'm saying, Your Honor. 8 9 All right. THE COURT: All right. This court has considered all of the pleadings that have been filed, 10 and I read everything that's been filed, including the 11 Amicus brief. 12 The court is guided by, among other things, the 13 following: 14 fundamental liberties the constitution safeguards. 15 Indeed, individual rights secured by the constitution do 16 not disappear during a public health crisis. 17 Re: 18 1685929. 19 There is no pandemic exception to the That's In Abbott, A-b-b-o-t-t, Federal 3d, 2020 West Law That's a Fifth Circuit appellate opinion. These individual rights, including the 20 protections in the Bill of Rights made applicable to the 21 states through the Fourteenth Amendment, are always in 22 force and restrain government action. 23 the constitution does not hobble government from taking 24 necessary temporary measures to meet a genuine 25 emergency. At the same time, According to our United States Supreme 64 1 Court, in every well-ordered society charged with the 2 duty of preserving, conserving the safety its members, 3 the rights of the individual in respect of his liberty 4 may, at times, under the pressure of great dangers, be 5 subjected to such restraint, to be enforced by 6 reasonable regulations, as the safety of the general 7 public may demand, and that is the Jacobson case which 8 was also cited by the Attorney General. 9 The settled rule from Jacobson, the Fifth 10 Circuit recently explained, allows the state to 11 restrict, for example, one's right to peaceably 12 assemble, to publicly worship, to travel, and even to 13 leave one's home. 14 government actions, particularly when exercised by 15 states and localities under their police powers during a 16 bona fide emergency. 17 Courts owe substantial deference to The Supreme Court also has instructed courts to 18 intervene if a statute purporting to have been enacted 19 to protect the public health or the public safety has no 20 real or substantial relation to those objects, or is, 21 beyond all question, a plain, palpable invasion of 22 rights secured by the fundamental law. 23 quote from Jacobson. That is also a 24 Courts reviewing a challenge to a measure 25 responding to the society-threatening epidemic of 65 1 COVID-19 should be vigilant to protect against clear 2 invasions of constitutional rights while ensuring they 3 do not second-guess the wisdom or efficacy of the 4 measures enacted by the democratic branches of 5 government, on the advice of public health experts. 6 Fifth Amendment of the United States 7 Constitution states no person shall be deprived of life, 8 liberty or property without due process of law. 9 Illinois Constitution states in Section 2 no person Our 10 shall be deprived of life, liberty or property without 11 due process of law. 12 The issue before me now, in essence, is not 13 whether the legislature can authorize the Governor to 14 ignore the Illinois and United States Constitutions. 15 They did it in the Emergency Management Act. 16 before me now is whether the Governor can ignore the 17 Illinois and United States Constitutions for more than 18 30 days. 19 question is a resounding no. 20 petitioner's request for a TRO is granted. 21 to Dismiss under Section 2-615 is denied. 22 The issue This court rules that the answer to that Accordingly, the The Motion Now, Petitioner, you submitted a proposed order. 23 In that proposed order you state TRO extends for ten 24 days. 25 You asked for this. That's the part about your argument I disagree. You issued this. You did this with 66 1 notice, not without notice. Therefore, the ten-day rule 2 doesn't apply. 3 extends for a lengthy period of time, in essence becomes 4 a preliminary injunction and this ain't no preliminary 5 injunction yet. 6 days but not beyond 30, otherwise, I'm entering a 7 preliminary injunction without procedural process rights 8 required for a preliminary injunction. 9 while we're here with Madam Clerk for a hearing on a However, that said, this TRO that Therefore, I'll let you go beyond ten 10 preliminary injunction. 11 MR. VERTICCHIO: 12 THE COURT: 13 MR. VERTICCHIO: So pick a date Can I address the court? Yes. Your Honor, given your ruling, 14 this dovetails into the preliminary injunction issue, 15 the Governor requests that the ruling be stayed. 16 17 18 19 20 THE COURT: I will absolutely deny that request. This ruling takes effect right this second. MR. VERTICCHIO: Can I raise the issue of bond, Your Honor? THE COURT: There is no requirement for bond. 21 Statute doesn't mandate it. 22 There's no money that's going to be required to be 23 refunded or returned. 24 whatsoever. 25 MR. VERTICCHIO: There's no reason for one. I don't see any reason for bond Well, the case law provides 67 1 that the plaintiff is obligated to make a showing as to 2 why the court properly exercises its discretion in 3 issuing no bond. 4 THE COURT: 5 MR. DeVORE: Want to make that showing? What showing would the court 6 require for bond sufficient for my client to be able to 7 continue with his constitutional rights, Your Honor? 8 9 10 THE COURT: Well, I'm not sure either. going to require bond. MR. VERTICCHIO: I'm not Anything else, AG? No, Your Honor. In terms of 11 scheduling, can Tom and I just talk a little bit off the 12 record and let you know? 13 THE COURT: 14 MR. VERTICCHIO: 15 hearing for a week from today? 16 17 18 THE COURT: Absolutely. Yes. Can I suggest maybe a status Whatever -- however you want to proceed is fine with me. MR. VERTICCHIO: Why don't we confer with one 19 another, then we'll let you know within a matter of 20 minutes. 21 THE COURT: Would you rather do it that way? 22 You two can get, discuss the matter between yourselves 23 and you with the clerk can come up with a new date. 24 that agreeable? 25 MR. VERTICCHIO: Is That's agreeable. 68 1 MR. DeVORE: Yes, sir. 2 MR. VERTICCHIO: Your Honor, am I to understand 3 that the order being entered, save for the ten-day 4 issue, is the one that was submitted? 5 6 THE COURT: It is. MR. DeVORE: 8 MR. VERTICCHIO: 10 11 I've got it, but I want you to cross out that ten-day deal. 7 9 Have you got that? Yes, sir. I would like to take the order if the court is going to enter it today if that's possible. THE COURT: Yes. I think you should. Take out 12 that ten-day deal and put for the future date to be 13 determined by counsel after consultation with the 14 circuit clerk. 15 MR. DeVORE: 16 THE COURT: 17 MR. DeVORE: 18 THE COURT: 19 Not to exceed 30 days? Yes. Got it. I will enter that right now after you make that amendment. 20 MR. DeVORE: 21 MR. VERTICCHIO: 22 Thank you, sir. Yes, sir. I'm sure we'll be able to work a date out, but, if not, we'll get your guidance. 23 THE COURT: Yeah. 24 MR. DeVORE: 25 MR. VERTICCHIO: If you can't, let me know. Yes, sir. May I approach, Judge? Can I see it, Tom? Your Honor, 69 1 I mentioned the other day on the phone the plaintiff's 2 Motion was captioned as both TRO and preliminary 3 injunction. 4 be proceeding on that Motion? Is it fair to assume, counsel, that we'll 5 MR. DeVORE: On the prelim? 6 MR. VERTICCHIO: In other words, there's not 7 going to be another filing. 8 MR. DeVORE: 9 THE COURT: 10 Yes, sir. Correct. Anything further on behalf of either party? 11 MR. DeVORE: 12 THE COURT: No, sir. Thank you, Judge. All right. Ladies and gentlemen, I 13 would direct you to exit the courtroom and/or building 14 as directed by the sheriff. We're adjourned. 15 16 17 18 19 20 21 22 23 24 25 70 1 2 CERTIFIED SHORTHAND REPORTER'S CERTIFICATION I, LORI SIMS, Certified Shorthand Reporter for 3 the Circuit Court of Clay County, Fourth Judicial 4 Circuit of Illinois, do hereby certify that I reported 5 in machine shorthand the proceedings had on the hearing 6 in the above entitled cause; that I thereafter caused 7 the foregoing to be transcribed into typewriting, which 8 I hereby certify to be a true and accurate transcript of 9 the proceedings had before the Honorable MICHAEL D. 10 11 McHANEY, Judge of said Court. Dated this th day of April, 2020. 12 13 14 15 _____________________________ Lori Sims Official Court Reporter CSR #084-003424 16 17 18 19 20 21 22 23 24 25 71