* The attorney general’s appeal of the TRO preventing the state from enforcing the governor’s executive order on Rep. Darren Bailey was filed yesterday. Part of the appeal focuses on whether the TRO itself is legally valid. Here’s some of the rest…
The primary objective of statutory interpretation “is to ascertain and give effect to the legislature’s intent.” Whitaker v. Wedbush Secs., Inc., 2020 IL 124792 ¶ 16 (citations omitted). “The most reliable indicator of legislative intent is the statutory language.” Id. Section 7 grants the Governor the authority to declare that a “disaster exists” in certain circumstances, including during a public health emergency or epidemic. 20 ILCS 3305/7. If the Governor determines that a disaster exists and issues a disaster proclamation, he may exercise “emergency powers” for a 30-day period thereafter; specifically: “[u]pon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers[.]” Id. The plain text of section 7 contains no limitation on the number of proclamations the Governor may issue to address a particular disaster. On the contrary, section 7 establishes a single criterion necessary: that a disaster “exists.”
Here, the Governor concluded that a disaster existed on March 9, and issued his first proclamation. On April 1, in issuing a second proclamation, the Governor concluded that a disaster still existed. By issuing proclamations on those dates, the Governor properly exercised the “emergency powers” conferred by section 7 for “a period not to exceed 30 days” after each issuance.
Nonetheless, Bailey argued—and the circuit court agreed—that the Governor has acted unlawfully because the 30-day period is triggered by the disaster’s initial date. That is belied by the Act’s plain text, which ties the period to the issuance of a proclamation (not the disaster). Nor does allowing successive disaster proclamations “render the 30-day limitation meaningless.” The 30-day limitation requires the Governor to make the periodic determination that a “disaster” still in fact “exists.” The Governor has not purported to exercise emergency powers indefinitely; he has issued disaster proclamations for 30- day periods. But if the factual circumstances change—as every Illinoisan hopes they will—the Governor may no longer be able to reasonably conclude that a disaster still exists. At that point, the Governor’s emergency powers would expire 30 days after issuance of the most recent disaster proclamation.
* More on legislative intent…
The theory that the Governor is permitted only a single, 30-day proclamation per disaster, if applied more broadly, threatens to nullify the emergency actions the Governor has taken since April 8. Accepting Bailey’s argument means COVID-19 would once again begin its exponential spread throughout the State, resulting in the inevitable loss of many lives. That cannot be the result the General Assembly intended.
Finally, although the General Assembly has amended the Act at least 11 times—most recently in 2018—it has not added any language to stop Illinois governors from maintaining their practice of issuing multiple or successive disaster proclamations when the disaster continues to exist. Nor has the General Assembly convened in recent weeks to pass legislation indicating that the Governor has acted outside of his lawful authority. On the contrary, as a result of the COVID-19 crisis, the General Assembly has cancelled its previously cancelled sessions. […]
Critically, the General Assembly did not prohibit the Governor from taking the actions that Bailey challenged. Bailey argued that the authority given to the Governor by section 7 of the Act lapsed on April 8, not that the Act affirmatively prohibits the Governor from taking action apart from that 30-day grant of authority. [Emphasis added.]