FILED

Clay Co. Circuit Court

4th Judicial Circuit
Date: 8/6/2020 10:18 PM
Crystal Ballard

IN THE CIRCUIT COURT

FOR THE FOURTH JUDICIAL CIRCUIT
CLAY COUNTY, ILLINOIS

DARREN BAILEY,

Plaintiff,
Case No. 2020 CH 6
v.
Judge Michael McHaney
GOVERNOR JB PRITZKER, in his
official capacity,

Defendant.

GOVERNOR’S OPPOSITION TO BAILEY’S MOTION FOR

LEAVE TO FILE AMENDED PLEADING TO ADD COUNT V

It has been more than a month since Plaintiff Darren Bailey received precisely what his

pleadings sought—a declaration by this Court that the Governor’s authority to respond to the

Covid-19 pandemic under the Illinois Emergency Management Agency Act, 20 ILCS 3305 et

seq. (“Emergency Management Act”) ceased to exist as of April 8. Order ¶ 3 (July 2, 2020)

(“July 2 Order”). But even as Bailey championed this lawsuit as “freeing business and the people

of Illinois” from “one-person rule” and a “tyrannical government,” 1 in the real world nothing

changed. The Court’s nonfinal, interlocutory order granting Bailey’s request for declaratory

relief does not prevent the Governor from continuing to exercise his powers under the

Emergency Management Act to protect the people of this State from the Covid-19 pandemic.

Public rhetoric notwithstanding, Bailey has made every effort to prevent this Court from

issuing either an injunction that would bar the Governor from exercising Emergency

Management Act powers, July 2 Order ¶ 5 (granting motion to withdraw request for injunction),

1
Greg Bishop, Clay County judge rules against Pritzker's extended orders, THE CENTER SQUARE (July 2,
2020), https://www.thecentersquare.com/illinois/clay-county-judge-rules-against-pritzkers-extended-
orders/article_0d5b65d6-bca3-11ea-a794-272d94a426c2.html.
1
or a final judgment that would resolve the parties’ dispute in this Court once and for all,

Response to Defendants [sic] Motion to Dismiss ¶¶ 3–11 (July 22, 2020) (“July 22 Response”).

The July 2 Order is neither final nor enforceable because it involves fewer than all issues and

does not include “a finding that there is no just reason for delaying enforcement or appeal.” Reed

v. City of Belleville, 13 Ill. App. 3d 1093, 1094 (5th Dist. 1973).

For his latest effort to keep this case in this Court and abuse the judicial process for

political gain, Bailey now moves to add an additional count disputing whether a disaster

currently exists in Clay County within the meaning of the Emergency Management Act. There is

no reason why the Court should entertain the matter. This Court already determined that the

Governor’s authority under the Emergency Management Act is limited to 30 days per disaster—

regardless of whether a Covid-19 disaster continues to exist in Clay County (or anywhere else in

the State). Bailey’s current motion to add a new count is just another maneuver to thwart

appellate review of the Court’s ruling.2 The proposed additional count is also defective as a

matter of law and fails to plead sufficient facts to state a cause of action. The motion to add it

should be denied.

LEGAL STANDARD

Bailey moves to add an additional count pursuant to 735 ILCS 5/2-616. “[A] party’s right

to amend is not absolute and unlimited.” Lee v. Chi. Transit Auth., 152 Ill. 2d 432, 467 (1992). A

court should deny a motion as futile if the new count would not “provide [plaintiff] with a viable

theory.” Ill. Non-Profit Risk Mgmt. Ass’n v. Human Serv. Ctr. of S. Metro-E., 378 Ill. App. 3d

2
The Court’s ruling conflicts with the other court decisions that have considered the matter. JL Props.
Grp. B LLC v. Pritzker, No. 20-CH-601 (Ill. 12th Jud. Cir. Ct. July 31, 2020), attached as Exhibit 1;
Edwardsville / Glen Carbon Chamber of Commerce v. Pritzker, No. 20-MR-550 (Ill. 3d Jud. Cir. Ct. June
5, 2020); Running Central, Inc. v. Pritzker, No. 2020 CH 105 (Ill. 7th Jud. Cir. Ct. May 21, 2020);
Mahwikizi v. Pritzker, No. 20 C 04089 (Ill. Cook Cty. Cir. Ct. May 8, 2020); Cassell v. Snyders, No 20 C
50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020).
2
713, 726 (4th Dist. 2008). “[W]hen ruling on a motion to amend, the court may consider the

ultimate efficacy of a claim as stated in a proposed amended pleading and it is not necessary for

the plaintiff to file an amended complaint and the defendant to test the sufficiency of that

complaint through a motion to dismiss.” I.C.S. Ill., Inc. v. Waste Mgmt. of Ill., Inc., 403

Ill. App. 3d 211, 220 (1st Dist. 2010). It is appropriate to deny leave to amend “where . . .

amendment would be futile.” Nelson v. Quarles & Brady, LLP, 2013 IL App (1st) 123122 ¶ 69.

In addition, a trial court must consider “(1) whether the proposed amendment would cure

the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of

the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether

previous opportunities to amend the pleading could be identified.” Loyola Acad. v. S & S Roof

Maint., Inc., 146 Ill. 2d 263, 273 (1992). A “plaintiff must meet all four factors.” In re Marriage

of Lyman, 2015 IL App (1st) 132832 ¶ 51. A court should deny leave to amend “where there has

been undue delay, bad faith, prejudice to the opponent, [or] dilatory motive on part of movant.”

Nelson, 2013 IL App (1st) 123122 ¶ 69.

ARGUMENT

The Court should deny Bailey’s motion to add an additional count for four independent

reasons:

First, Bailey’s proposed additional count fails to state a cause of action because the

Emergency Management Act does not require the Governor to make disaster determinations on a

county-by-county basis.

Second, Bailey’s proposed additional count fails to state a cause of action because he

does not plead facts sufficient to show that there is currently no “public health emergency” in

Clay County.

3
 Third, Bailey lacks standing to pursue his proposed additional count because a decision in

his favor will not redress his claimed injury. This is because Bailey fails to challenge an

independent basis for the Governor’s authority to exercise emergency powers—the existence of

an “epidemic” in Clay County.

Fourth, Bailey’s proposed additional count is untimely and, in the context of his many

other gambits designed to delay the conclusion of these proceedings, reflects an ongoing bad-

faith effort to abuse the judicial process for political gain.

I. Bailey’s Proposed Additional Count Fails to State a Cause of Action.

In reviewing whether Bailey’s proposed additional count states a cause of action, the

Court should apply the same standard of review as it would on a motion to dismiss pursuant to

735 ILCS 5/2-615. “In ruling on such a motion, only those facts apparent from the face of the

pleadings, matters of which the court can take judicial notice, and judicial admissions in the

record may be considered.” Mount Zion State Bank & Trust v. Consol. Commc’ns, Inc., 169

Ill. 2d 110, 115 (1995). In reviewing plaintiff’s pleading, the court must disregard any

“conclusions of law or factual conclusions that are unsupported by allegations of specific facts.”

Phelps v. Land of Lincoln Legal Assistance Found., Inc., 2016 IL App (5th) 150380 ¶ 11.

A. The Emergency Management Act Does Not Require the Governor to Make
County-Specific Disaster Determinations.

Bailey’s proposed additional count fails to state a cause of action because it is premised

on an error of law. It is irrelevant whether a “disaster” exists within the meaning of the

Emergency Management Act in Clay County—or, for that matter, in Louisville Township, or in

the Village of Louisville, or within the village block formed by Chestnut, Main, Broadway, and

Church streets. The Emergency Management Act does not require the Governor to make disaster

findings with this degree of geographic specificity prior to exercising his defined powers.

4
 Section 7 sets forth the only precondition imposed by the General Assembly on the

Governor’s exercise of emergency powers: “In the event of a disaster, as defined in Section 4,

the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the

Governor shall have and may exercise for a period not to exceed 30 days the following

emergency powers . . . .” Section 4, in turn, defines “disaster” to be “an occurrence or threat of

widespread or severe damage, injury or loss of life or property resulting from any natural or

technological cause, including but not limited to” an “epidemic” and “public health

emergencies.” Neither Section 7’s process for triggering the Governor’s emergency powers, nor

Section 4’s definition of a “disaster,” depends on a showing of a significant, current impact in a

specific Illinois county.

The plain language of the statute thus belies Bailey’s allegation that the Governor “may

declare a disaster exists in” Clay County only if a disaster “as defined under the [Emergency

Management Act] exists in Clay County.” Additional Count V ¶ 12 (July 22, 2020); see

Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408 (1996) (plaintiff may not defend against 2-615

motion by relying on “mere conclusions of law”). Bailey’s allegation adds a requirement that a

disaster exist in a particular county; the General Assembly said no such thing. The text of the

Emergency Management Act contemplates the Governor may make disaster determinations, and

issue proclamations, on a statewide basis.

It was sensible for the General Assembly to conceive of disasters—and the Governor’s

exercise of emergency powers—on a statewide basis, rather than on the fragmented county-by-

county basis Bailey proposes (or the even more fragmented township-by-township or block-by-

block bases that logically follow). The intent of the Emergency Management Act is “to insure

that this State will be prepared to and will adequately deal with any disasters, preserve the lives

5
and property of the people of this State and protect the public peace, health, and safety in the

event of a disaster.” 20 ILCS 3305/2(a). The specific disasters enumerated in the statute—like

earthquakes, epidemics, and air contamination, to name a few, id. § 4—do not respect county

boundaries or other lines drawn by political cartographers. Because the General Assembly

wanted to ensure the State would be prepared to deal with disasters and the people of this State

would be protected from disastrous consequences, and because disasters do not inherently

confine themselves to particular counties or other political subdivisions, the Emergency

Management Act merely requires the Governor to determine that a disaster exists in the State

before issuing a proclamation and exercising defined powers.

Bailey would modify the Emergency Management Act to provide: “In the event of a

disaster, as defined in Section 4, within a county, the Governor may, by proclamation declare

that a disaster exists within that county.” But the Court is forbidden to “rewrite a statute to add

provisions or limitations the legislature did not include.” Zahn v. N. Am. Power & Gas, LLC,

2016 IL 120526 ¶ 15. It is immaterial whether the Court or Bailey believes such a limitation

would be good policy. The Court’s role in interpreting the Emergency Management Act “is not

to decide what the legislative design should be. The judicial function in construing a statute is to

give effect to the intention of the legislature.” In re Griffin, 92 Ill. 2d 48, 52 (1982).

When it comes to the Emergency Management Act, the General Assembly’s intention is

clear. Section 7 authorizes the Governor to issue a disaster proclamation—and upon doing so

exercise defined powers—if (1) a disaster that satisfies the statutory definition (2) exists in the

State. Nothing more is necessary. Indeed, as one court recently reasoned: “Absent arbitrariness

or a clear abuse of the Governor’s authority (neither of which are apparent here), it would take

an act of extraordinary judicial activism for a court to substitute its judgment for that of the

6
Governor as to whether there is a ‘public health emergency.’ . . . Further, it would be folly to

suggest otherwise anyway; it is painfully obvious that we are in the midst of a state-wide public

health emergency.” JL Props., slip op. at 20–21 (emphasis added), attached as Exhibit 1. Bailey

fails to allege these two requirements—the actual requirements imposed by the Emergency

Management Act—are lacking. He therefore fails to state a cause of action.

On top of this, Bailey has pleaded himself out of Court because he previously conceded

these requirements are satisfied. In his amended verified complaint, Bailey acknowledged that

“[f]or purposes of this action, Bailey does not dispute that on March 09, 2020 when Pritzker

issued [his first disaster proclamation] an occurrence or threat of a widespread natural cause

which could cause loss of life existed and as such there was a requirement of emergency

action to avert a public health emergency.” Bailey’s First Amended Verified Complaint for

Declaratory Judgment and Injunctive Relief ¶ 54 (May 13, 2020) (emphasis added). Bailey

cannot now disclaim these admissions—“[a] party’s admissions contained in an original verified

pleading are ‘judicial admissions’ that bind the pleader even after the filing of an amended

pleading that supercedes the original; any admissions that are not the product of mistake or

inadvertence bind the pleader throughout the litigation.” Konstant Prods., Inc. v. Liberty Mut.

Fire Ins. Co., 401 Ill. App. 3d 83, 87 (1st Dist. 2010). Similarly, in seeking summary judgment,

Bailey represented to this Court that he “readily recognizes COVID-19 is a serious public health

matter which has required a concerted effort to combat and protect our state’s public health interest.”

Bailey’s Legal Brief in Support of Darren Bailey’s Motion for Summary Judgment ¶ 1 (May 19,

2020). Bailey’s binding admissions are an additional reason why his proposed additional count

fails to state a cause of action.

7
 B. Bailey Fails to Plead Facts Showing the Absence of a Disaster in Clay
County.

In the alternative, Bailey’s proposed additional count fails to state a cause of action

because he does not plead facts sufficient to establish the absence of a statutorily defined disaster

in Clay County. Bailey focuses his attention solely on the question whether the Covid-19

pandemic constitutes a “public health emergency” in Clay County. Section 4 of the Emergency

Management Act defines that term as follows:

an occurrence or imminent threat of an illness or health condition that:

(a) is believed to be caused by any of the following:

(i) bioterrorism;

(ii) the appearance of a novel or previously controlled or

eradicated infectious agent or biological toxin;

(iii) a natural disaster;

(iv) a chemical attack or accidental release; or

(v) a nuclear attack or accident; and

(b) poses a high probability of any of the following harms:

(i) a large number of deaths in the affected population;

(ii) a large number of serious or long-term disabilities in the

affected population; or

(iii) widespread exposure to an infectious or toxic agent that

poses a significant risk of substantial future harm to a large
number of people in the affected population.

According to Bailey, the fact that no one has yet to die in Clay County from Covid-19, and only

9 people to date have contracted it, means there is, in his opinion, no “high probability” that “a

large number of deaths” will occur—and likewise no “high probability” of “widespread

exposure” to a virus “that poses a significant risk of future harm to a large number of people.”

8
 Bailey’s argument reduces to the proposition that an event has no probability of occurring

until it has occurred. Or to put it another way, a highly contagious and deadly virus has no

probability of causing widespread harm until it does. This reasoning is stunningly illogical, and

the Court should not accept it. E.g., Burton v. Airborne Express, Inc., 367 Ill. App. 3d 1026,

1033–34 (5th Dist. 2006) (Section 2-615 motion does not admit “conclusions of fact not

supported by allegations of specific fact”). Whether or not Covid-19 poses a future threat to Clay

County cannot be determined by looking solely at the number of people currently affected.

Bailey pleads no additional facts to support his conclusions that “there is no high probability of a

large number of deaths in Clay County as a result of COVID#19 [sic],” Additional Count V ¶ 25,

and likewise “no high probability of a widespread exposure to COVID#19 [sic] in Clay County

that poses a significant risk of substantial future harm to its population,” id. ¶ 27. For this reason

alone, Bailey’s proposed additional count fails to state a cause of action. E.g., Iseberg v. Gross,

227 Ill. 2d 78, 86 (2007) (“[B]ecause Illinois is a fact-pleading jurisdiction, plaintiffs must allege

facts, not mere conclusions, to establish their claim as a viable cause of action.”).

On top of this, a closer examination of Bailey’s proposed additional count reveals he has

pleaded himself out of court. As relevant here, under the Emergency Management Act’s

definition, a “public health emergency” exists in Clay County if Covid-19 satisfies the following

three conditions: (1) an occurrence of an illness that (2) is believed to be caused by the

appearance of a novel infectious agent and (3) poses a high probability of widespread exposure

to an infectious or toxic agent that poses a significant risk of substantial future harm to a large

number of people in the affected population. Bailey concedes Covid-19 is an illness that has

occurred in Clay County. Additional Count V ¶ 16. He also concedes this occurrence of Covid-

19 is believed to be caused by the appearance in Clay County of a novel infectious agent

9
(specifically SARS-CoV-2, the virus that causes Covid-19). Id. ¶ 24. So that leaves just one

issue: does Covid-19 pose a high probability of widespread exposure to an infectious or toxic

agent that poses a significant risk of substantial future harm to a large number of people in Clay

County?

Bailey pleads no facts that speak to the question, but the Court can take judicial notice of

numerous, uncontestable sources that show the answer is clearly “yes.” See K. Miller Constr. Co.

v. McGinnis, 238 Ill. 2d 284, 291 (2010) (court may consider “matters of which the court can

take judicial notice” in evaluating 2-615 motion to dismiss); ILL. R. EVID. 201(b)(2) (court may

take judicial notice of facts “capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned”). First, the CDC cautions “[t]he virus that

causes COVID-19 is spreading very easily and sustainably between people”—primarily

“[b]etween people who are in close contact with one another” “[t]hrough respiratory droplets

produced when an infected person coughs, sneezes, or talks” that “can land in the mouths or

noses of people who are nearby or possibly be inhaled into the lungs.” 3 Indeed, the CDC believes

the infection rate is ten times higher than documented.4 The Clay County Health Department

confirmed two new cases this week and warned it “is noticing an increase in community

transmission associated with events and locations where crowds are congregating and not

wearing face coverings or social distancing” (community transmission occurs by people who are

not aware they are infected).5 Given these uncontestable facts from authoritative sources, the

3
CDC, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-
covid-spreads.html.
4
CDC, Transcript for the CDC Telebriefing Update on COVID-19 (June 25, 2020), https://
www.cdc.gov/media/releases/2020/t0625-COVID-19-update.html.
5
Clay County Health Department, August 4, 2020 - Clay County Health Department Reports 2 New
Cases of COVID-19, https://www.healthdept.org/, attached as Exhibit 2.
10
Court must take judicial notice that the presence of Covid-19 in Clay County—which Bailey

concedes—by its nature poses a high probability of residents’ widespread exposure to an

infectious agent.

These same sources leave no doubt that Clay County residents’ widespread exposure to

the virus that causes Covid-19 poses a significant risk of substantial future harm to a large

number of people. There is no vaccine to prevent Covid-19. 6 The CDC cautions: “Everyone is at

risk for getting COVID-19 if they are exposed to the virus. Some people are more likely than

others to become severely ill, which means that they may require hospitalization, intensive care,

or a ventilator to help them breathe, or they may even die.” 7 Older adults are particularly prone

to developing a severe illness or dying because of exposure to Covid-19. 8 So are residents “of

any age with certain underlying medical conditions,” including diabetes, heart disease, and

obesity.9 The CDC also warns of relatively high risk for rural areas like Clay County: “Long-

standing systemic health and social inequities have put some rural residents at increased risk of

getting COVID-19 or having severe illness. In general, rural Americans tend to have higher rates

of cigarette smoking, high blood pressure, and obesity as well as less access to healthcare which

can negatively affect health outcomes. They are also less likely to have health insurance.” 10 Just

this week, Dr. Deborah Birx, the White House coronavirus task force coordinator, warned

6
CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/prevention.html.
7
CDC, People Who Are at Increased Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/people-at-increased-risk.html.
8
CDC, Older Adults, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-
adults.html.
9
CDC, People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-
extra-precautions/people-with-medical-conditions.html.
10
CDC, Rural Communities, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/other-
at-risk-populations/rural-communities.html.
11
Covid-19 “is extraordinarily widespread” in rural areas: “To everybody who lives in a rural area,

you are not immune or protected from this virus.” 11

Covid-19 already has had a significant impact on Illinois’s rural counties in every region

of the State—and the threat has only worsened in recent weeks. Last Friday, the Department of

Public Health declared numerous counties across the State to be at warning level for Covid-19

following “outbreaks associated with business operations and activities posing higher risk for

disease spread, including school graduation ceremonies, a rise in cases among [people in their]

late teens and 20s, parties and social gatherings, people going to bars, long-term care outbreaks,

clusters of cases associated with restaurants and churches, and big sports events including soccer,

golf, and softball tournaments.”12 Just to the south of Clay County, “local officials are pleading

with the residents of Saline, Gallatin and White counties to follow health guidelines in attempts

to help mitigate the spread of the COVID-19 virus within their community as numbers and

hospitalizations have quickly started to rise.” 13 A medical provider at the Gallatin County

Medical Center urged residents to “follow[ ] the health guidelines put in place by medical

professionals. ‘When you decrease risks, you decrease the number of people who get (the virus)

and the number of people who die from this — it’s that simple,’ [the medical provider] said,

while asking the community [to] also stop the politicization of the virus. ‘The politicization of

this virus is literally killing people,’ she said. ‘Let’s stop the nonsense.’” Indeed, area leaders

11
Veronica Stracqualursi, Birx warns US is ‘in a new phase’ of coronavirus pandemic with more
widespread cases, CNN (Aug. 2, 2020), https://www.cnn.com/2020/08/02/politics/birx-coronavirus-new-
phase-cnntv/index.html.
12
Illinois Department of Health, 11 Illinois Counties at Warning Level for Coronavirus Disease (July 31,
2020), https://www.dph.illinois.gov/news/11-illinois-counties-warning-level-coronavirus-disease.
13
Brian Munoz, 'Please wear a mask': Egyptian Health Department, officials want residents to 'operate
out of common sense,' THE SOUTHERN ILLINOISAN (Aug. 5, 2020), https://thesouthern.com/news/local/
please-wear-a-mask-egyptian-health-department-officials-want-residents-to-operate-out-of-common/
article_27dddcc1-dfb1-56c1-a707-fc14bec96f0c.html.
12
recognize the serious threat Covid-19 poses to all areas of Illinois: “Early on there was a push to

regionalize the COVID-19 response while some claimed the virus wasn’t present in Southern

Illinois but now it is, [Senator Dale] Fowler said, while adding ‘it’s getting worse each and every

day.’”14

It is uncontestable that Covid-19 has caused death and serious health consequences in

every corner of the world. As of today, it has infected almost 19 million people worldwide and

killed more than 710,000.15 It has infected more than 4.8 million people in the United States and

killed more than 157,000.16 And in Illinois, it has infected more than 188,000 and killed more

than 7,500.17 Even those who have survived the disease are not out of the woods. “For some

individuals with COVID-19, recovering from the acute phase of the infection is only the

beginning. Worrying reports now indicate that the virus may be capable of inflicting long-lasting

damage to the lungs, heart and nervous system, and researchers are closely watching to see if the

kidneys, liver and gastrointestinal tract may be susceptible to persistent damage as well.” 18

Indeed, the risks presented by Covid-19 are likely understated. Scientists are still

“learn[ing] about the many ways in which COVID-19 can wreak devastation on the human

body,” including “the formation of blood clots that can lead to strokes and other life-threatening

14
Brian Munoz, 'Please wear a mask': Egyptian Health Department, officials want residents to 'operate
out of common sense,' THE SOUTHERN ILLINOISAN (Aug. 5, 2020), https://thesouthern.com/news/local/
please-wear-a-mask-egyptian-health-department-officials-want-residents-to-operate-out-of-common/
article_27dddcc1-dfb1-56c1-a707-fc14bec96f0c.html.
15
Johns Hopkins University & Medicine, Coronavirus Resource Center, https://coronavirus.jhu.edu/.
16
CDC, Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
17
Illinois Department of Public Health, COVID-19 Statistics, https://www.dph.illinois.gov/covid19/
covid19-statistics.
18
UC Berkeley, From lung scarring to heart damage, COVID-19 may leave lingering marks,
https://news.berkeley.edu/2020/07/08/from-lung-scarring-to-heart-damage-covid-19-may-leave-lingering-
marks/.
13
complications, even in younger people.”19 Research suggests that although “caused by a

respiratory virus, COVID-19 manifests as a vascular disease that leads to severe injuries to blood

vessels throughout the lungs.”20 These additional and extremely harmful features of the disease

may explain why the magnitude of Covid-19 deaths is truly unprecedented. A leading expert

who studies the incidence and prevalence of disease concludes that “by any comparison, the

COVID-19 death rate is significantly higher than the seasonal influenza death rate.” 21 In just a

few months, Covid-19 has catapulted to “the sixth leading cause of death in the United States.” 22

And already, more Americans have died “from COVID-19 than all the combat-related deaths in

all the wars since the Korean War”; the number of American Covid-19 deaths is about half of the

total number of American combat deaths in World War II. 23

Because Covid-19 is already present in Clay County, because Covid-19 spreads so easily,

and because there is no vaccine or cure for Covid-19, everyone in Clay County is at risk of

infection. And because so many people are at risk for severe illness and even death, and because

the disease can carry devastating consequences even for survivors, there is a significant risk of

substantial future harm to a large number of Clay County residents. No reasonable person could

19
National Institutes of Health, Searching for Ways to Prevent Life-Threatening Blood Clots in COVID-
19, https://directorsblog.nih.gov/2020/06/11/searching-for-ways-to-prevent-life-threatening-blood-clots-
in-covid-19/.
20
Harvard Medical School, Distinctive Features, https://hms.harvard.edu/news/distinctive-features.
21
Ronald D. Fricker, Jr., How deadly is COVID-19? A biostatistician explores the question, THE
CONVERSATION (July 10, 2020), https://theconversation.com/how-deadly-is-covid-19-a-biostatistician-
explores-the-question-142253.
22
Ronald D. Fricker, Jr., How deadly is COVID-19? A biostatistician explores the question, THE
CONVERSATION (July 10, 2020), https://theconversation.com/how-deadly-is-covid-19-a-biostatistician-
explores-the-question-142253.
23
Ronald D. Fricker, Jr., How deadly is COVID-19? A biostatistician explores the question, THE
CONVERSATION (July 10, 2020), https://theconversation.com/how-deadly-is-covid-19-a-biostatistician-
explores-the-question-142253.
14
study the evidence and conclude otherwise. The concessions Bailey makes in his proposed

additional count combined with facts susceptible to judicial notice leave no doubt: Covid-19 is a

“public health emergency” within the meaning of the Emergency Management Act that currently

exists in Clay County.

II. Bailey Lacks Standing to Pursue His Proposed Additional Count Because His Injury
Is Not Substantially Likely to Be Redressed by the Grant of Relief.

Even if Bailey’s proposed additional count stated a cause of action (it does not), the Court

should still deny his motion to add it because he lacks standing to maintain it. “To have standing,

a plaintiff seeking declaratory relief must present an actual controversy between adverse parties,

as to which controversy the plaintiff is not merely curious or concerned about the outcome but

possesses some personal claim, status, or right, a distinct and palpable injury to which is fairly

traceable to the defendant’s conduct and substantially likely to be prevented or redressed by the

grant of such relief.” Kluk v. Lang, 125 Ill. 2d 306, 314 (1988) (emphasis added). The problem

for Bailey is his purported injury (being subjected to the Governor’s emergency powers,

Additional Count V ¶ 29) will not be redressed by a declaration that there is currently no “public

health emergency” in Clay County. The Governor invoked an independent basis for his exercise

of emergency powers—the existence of an “epidemic”—which Bailey’s proposed additional

count does not challenge. Because Bailey’s additional count does not challenge this independent

basis for the Governor’s disaster declaration, a ruling on his proposed additional count will not

redress Bailey’s claimed injury.

Section 4 of the Emergency Management Act defines a “disaster” to be “an occurrence or

threat of widespread or severe damage, injury or loss of life or property resulting from” a series

of events including an “epidemic” and “public health emergencies.” The Governor’s July 24

proclamation (like his prior proclamations) declares the existence of statewide disasters resulting

15
from both an “epidemic” and a “public health emergency.” 24 But Bailey’s barebones pleading

overlooks the numerous factual circumstances relevant here that could give rise to a “disaster”

under the Emergency Management Act’s complex definition:

(1) (a) occurrence or

(b) threat of

(2) (a) widespread or

(b) severe

(3) (a) damage,

(b) injury or

(c) loss of life or

(d) loss of property resulting from

(4) (a) an epidemic or

(b) a public health emergency.

In short, a “disaster” could comprise an occurrence of widespread loss of life resulting from an

epidemic. Or it could comprise a threat of severe injury resulting from an imminent threat of an

illness believed to be caused by a novel infectious agent that poses a high probability of

widespread exposure and significant risk of substantial harm to a large number of people in the

affected population. Or any other of the permutations possible under the several disjunctive

categories set forth in the General Assembly’s definition.

Bailey’s proposed additional count focuses solely on whether there is a public health

emergency in Clay County, ignoring altogether the Governor’s proclamation that an epidemic

24
Gubernatorial Disaster Proclamation (July 24, 2020), https://www2.illinois.gov/sites/gov/Documents/
CoronavirusDisasterProc-7-24-2020.pdf.
16
also exists. So even if Bailey were correct that there is no public health emergency in Clay

County, and the Court were to enter a declaratory judgment to this effect, the Governor still

would be able to exercise defined powers under the Emergency Management Act. The existence

of an epidemic is an independent basis for the Governor to exercise those powers. Thus, the

“injury” Bailey claims to have suffered would not be redressed by the Court’s entry of a

declaratory judgment in Bailey’s favor. See, e.g., Vill. of Itasca v. Vill. of Lisle, 352 Ill. App. 3d

847, 851 (2d Dist. 2004) (“The two issues are entirely separate, and a ruling in favor of plaintiff

on one would not necessitate a ruling in favor of plaintiff on the other. Thus, we find that

plaintiff lacks standing to pursue its declaratory judgment claim [on only one of the issues].”).

For that reason, Bailey lacks standing to pursue his proposed additional count.

III. Bailey’s Proposed Additional Count Is an Untimely Attempt to Abuse the Judicial
Process.

Every motion pursuant to 735 ILCS 5/2-616 must satisfy a four-factor inquiry:

“(1) whether the proposed amendment would cure the defective pleading; (2) whether other

parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the

proposed amendment is timely; and (4) whether previous opportunities to amend the pleading

could be identified.” Loyola Acad., 146 Ill. 2d at 273. Here, the first factor is not satisfied

because Bailey’s proposed additional count itself fails to state a cause of action for the reasons

explained above. In addition, Bailey’s motion flunks the second, third, and fourth factors because

it represents an untimely attempt to abuse the judicial process for political gain rather than a

serious, good-faith effort to resolve a dispute with the Governor.

To understand this, the Court need look no further than the order Bailey obtained from

this Court on July 2 announcing “the 30 days of emergency powers provided under Section 7 of

the [Emergency Management Act] provided to the [Governor] to address the COVID-19 [sic],

17
lapsed on April 08, 2020,” July 2 Order ¶ 3(b), and therefore “any executive orders in effect after

April 08, 2020 relating to COVID-19, and finding [sic] their authority under the emergency

powers of Section 7 of the [Emergency Management Act] are void ab initio,” id. ¶ 3(c). In other

words, the Court ruled the Governor’s authority under the Emergency Management Act to

respond to the Covid-19 pandemic lapsed on April 8 regardless of whether the Covid-19

pandemic is currently a “disaster” within any portion of the State. Bailey promptly tweeted

“Illinois is Open!”25 and “Phase 4 is out the door!”26

Ordinarily, a litigant who had convinced a court to rule in his favor on the merits of his

case would take immediate action to effectuate that result. Here, Bailey did the opposite. He

resisted every effort to dismiss his one outstanding count and transform the Court’s interlocutory

order into a final judgment. July 22 Response ¶¶ 3–11. To this day, the July 2 Order binds no one

and has no legal effect because Bailey apparently prefers it to remain a meaningless piece of

paper—in stark distinction to the far-reaching consequences he ascribes to it in the public eye.

Bailey’s proposed additional count is designed to further his strategy to drag out this case

without an appealable order. Bailey intends for this Court not to resolve his dispute but rather to

amplify it. This is an abuse of the judicial process.

If Bailey had a sincere interest in pressing his “no disaster in Clay County” theory, he

would have done so when he lodged his original complaint on April 23 or his amended

complaint on May 13. Neither his legal theory nor supporting facts hinges on subsequent

developments. But at this late hour, Bailey does not need the Court to determine whether there is

currently a “disaster” in Clay County. He already has in hand the July 2 Order that says it does

25
https://twitter.com/DarrenBaileyIL/status/1278798200019746817.
26
https://twitter.com/DarrenBaileyIL/status/1278861382608453632.
18
not matter. To forge ahead with Bailey’s alternative theory would violate the principle that once

a “plaintiff[ has] obtained all the relief that [he] seek[s], any comment on [his] other claims

would be advisory and in conflict with traditional principles of judicial restraint.” Kanerva v.

Weems, 2014 IL 115811 ¶ 58. And in the context of Bailey’s other efforts to prolong these

proceedings—like declining to defend the Court’s temporary restraining order on appeal, Bailey

v. Pritzker, 2020 IL App (5th) 200148-U—his last-minute motion to add an additional count is

evidence that he is seeking to evade appellate review.

Bailey’s proposed additional count is untimely. See Loyola Acad., 146 Ill. 2d at 273 (third

factor). He failed to seize the opportunity to assert this theory when he submitted his amended

complaint back in May. See id. (fourth factor). And the very purpose of the proposed additional

count is to prejudice the Governor’s ability to obtain appellate review of the Court’s July 2

Order. See id. (second factor). Because Bailey’s proposed additional count also fails to state a

cause of action, see id. (first factor), his 2-616 motion does not satisfy any of the required Loyola

Academy considerations. The Court should deny it. See Nelson, 2013 IL App (1st) 123122 ¶ 69.

CONCLUSION

The Emergency Management Act does not require the Governor to make disaster

determinations on a county-by-county basis. Bailey does not—and cannot—plead facts sufficient

to show the absence of a public health emergency in Clay County. He also lacks standing to

pursue his proposed additional count. And finally, his motion is simply a vexatious effort to

delay these proceedings. For all (or any one of) these reasons, the Court should deny Bailey’s

motion.

19
Dated: August 6, 2020
KWAME RAOUL
Attorney General of Illinois
R. Douglas Rees, #6201825
Christopher G. Wells, #6304265
Darren Kinkead, #6304847
Isaac Freilich Jones, #6323915
Office of the Illinois Attorney General
100 West Randolph Street
Chicago, Illinois 60601
20
Respectfully Submitted,
/s/ Thomas J. Verticchio
Thomas J. Verticchio, #6190501
Assistant Chief Deputy Attorney General
Office of the Illinois Attorney General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 814-3000
tverticchio@atg.state.il.us
 IN THE CIRCUIT COURT
FOR THE FOURTH JUDICIAL CIRCUIT
CLAY COUNTY, ILLINOIS

DARREN BAILEY,

Plaintiff,
Case No. 2020 CH 6
v.
Judge Michael McHaney
GOVERNOR JB PRITZKER, in his
official capacity,

Defendant.

CERTIFICATE OF SERVICE

Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the undersigned hereby
certifies the statements set forth in this certificate of service are true and correct and that he has
caused a copy of the foregoing to be served upon:

Thomas G. DeVore
Erik Hyam
DEVORE LAW OFFICES, LLC
118 N. 2nd Street
Greenville, IL 62246
tom@silverlakelaw.com
erik@silverlakelaw.com

via email at the addresses noted above on August 6, 2020.

By: /s/ Thomas J. Verticchio

Thomas J. Verticchio
Assistant Chief Deputy Attorney General

21
 Exhibit 1

JL Props. Grp. B LLC v. Pritzker, No. 20-CH-601

(Ill. 12th Jud. Cir. Ct. July 31, 2020)
 Exhibit 2

Home Page of Clay County Health Department’s Website