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Read the AG’s appeal of the Bailey case

Thursday, Apr 30, 2020

* 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.]

- Posted by Rich Miller        

53 Comments
  1. - Watching - Thursday, Apr 30, 20 @ 9:27 am:

    I hope the IL Supreme Court can hear the arguments and put this to bed quickly. If the legislature doesn’t like the law or thinks the executive did or may violate the law they can take up changes when they are back in session.


  2. - Pundent - Thursday, Apr 30, 20 @ 9:29 am:

    It would seem that the intent of the language is to limit the duration of the proclamation which would make sense. Otherwise the governor could issue an indefinite proclamation regardless of the circumstances. The only other interpretation is that the 30 day period was intended to limit the duration of the disaster. But that would be nonsensical as disasters don’t adhere to any particular calendar as this one is showing us.


  3. - 47th Ward - Thursday, Apr 30, 20 @ 9:46 am:

    I was expecting more swearing in this appeal, but apparently the AG is showing a little restraint.


  4. - Demoralized - Thursday, Apr 30, 20 @ 9:48 am:

    It’s nice to see actual legal arguments being made instead of the judge’s unreasoned, personal opinion diatribe decision.


  5. - Norseman - Thursday, Apr 30, 20 @ 9:50 am:

    === “The most reliable indicator of legislative intent is the statutory language.” ===

    Statutory interpretation 101. On the money. I will be dumbfounded if Bailey’s meritless suit gets by the Supreme Court.

    As for the legislative reaction, we’ve seen that the GOP sadly wants to play politics with this crisis. That game will be played out when the G.A. does reconvene.


  6. - Nagidam - Thursday, Apr 30, 20 @ 9:51 am:

    Wow…I think the AG just used the “Because MADIGAN” attack. The legislature could have changed the enabling legislation the past few weeks but didn’t and furthermore cancelled previously scheduled session days.

    I think the AG wins on the merits but we are in some interesting times when the AG, a product of the legislature, throws the legislature under the bus in a filing.


  7. - Jocko - Thursday, Apr 30, 20 @ 9:52 am:

    I’m disappointed the AG didn’t toss in the fact that fishing is NOT a constitutional right. /S


  8. - Practical Politics - Thursday, Apr 30, 20 @ 9:58 am:

    A meritless suit is supposed to get tossed quickly. TROs are not that easy to obtain.


  9. - Donnie Elgin - Thursday, Apr 30, 20 @ 10:00 am:

    “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”

    They were not in session so no matter could be considered by the GA


  10. - Huh? - Thursday, Apr 30, 20 @ 10:02 am:

    The TRO ought to be tossed for this reason alone - “… When the Governor acted weeks ago, no one challenged it. In fact, numerous elected officials have publicly commended the Governor’s actions. … And, as noted, the legislature—acknowledging the reality of the emergency situation—has canceled previously scheduled sessions. …”


  11. - Arock - Thursday, Apr 30, 20 @ 10:04 am:

    Unless the Illinois GA is a nonessential government body they should meet and then act upon the appropriate technological format to allow them to meet and make decisions going forward. Unless the Governor was lying about Fair Maps during his campaign he should insist that they should meet for this very important item to be placed on the ballot for the voters to decide on in November. If we can make drastic changes to how we will hold an election in November then we can make drastic changes to make sure the GA is involved in the decision making during this pandemic. We see that the Executive portion of government has been active and now we know the Judicial portion is active it is time for the Legislative portion of he government to get active as well if they are indeed essential to our Democracy.


  12. - Skeptic - Thursday, Apr 30, 20 @ 10:04 am:

    “the AG just used the “Because MADIGAN” attack.” Are there any proposals from the Republicans or from the Senate (Republican or Democratic)?


  13. - Rasselas - Thursday, Apr 30, 20 @ 10:06 am:

    Nadigam - the AG’s arguments are standard for statutory construction and have nothing to do with ‘throwing the legislature under the bus.’ When the executive consistently interprets a statute in a particular way and the legislature makes no effort to change the statute, the inference can be made that the executive’s actions are consistent with the executive’s actions. Has nothing to do with ‘because Madigan.’


  14. - Oswego Willy - Thursday, Apr 30, 20 @ 10:07 am:

    ===Fair Maps during his campaign he should insist that they should meet for this very important item to be placed on the ballot for the voters to decide on in November.===

    Show me your 71 and 36.

    Thanks.


  15. - Nagidam - Thursday, Apr 30, 20 @ 10:08 am:

    ===Are there any proposals from the Republicans or from the Senate (Republican or Democratic)===

    That’s the point. There isn’t and they had/have the ability to act. I believe the AG makes a great argument. I just find it ironic he is using it.


  16. - Oswego Willy - Thursday, Apr 30, 20 @ 10:10 am:

    To the Post,

    “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.”

    We’ll see how the spiral plays out, given the initial ruling.


  17. - Nagidam - Thursday, Apr 30, 20 @ 10:11 am:

    ===Has nothing to do with ‘because Madigan.’===

    Actually has everything to do with Madigan and Harmon. They could have called the legislature back to act. They didn’t so the AG can use that as an argument.


  18. - Anon y mouse - Thursday, Apr 30, 20 @ 10:12 am:

    Pretty darn weak brief, but given the fact that the emergency powers statute at issue is clear and unambiguous by its plain language, I guess it’s the best the AG could offer. The argument that any Governor could/would only use such extraordinary powers benevolently is unpersuasive and exactly contrary to the AG’s point- such powers are to be specific and not open to subjective “interpretation.” The legislature could provide for extensions or, gasp, vote on the lockdowns, expenditures & other actions as the co-equal governing branch set forth in that unmentioned document- IL’s Constitution.

    I wonder if AG Raoul advised the Governor to simply issue a new 30-day order, thereby effectively rescinding his baseless extensions? That said, I think the AG wins not on the law, but on the politics. The IL Supreme Court will create a “reasonable right to extend” (not in perpetuity) out of whole cloth, I predict.


  19. - The Way I See It - Thursday, Apr 30, 20 @ 10:16 am:

    What I really, really want see … are Bailey, Cabello and friends’ ideas for handling this.

    Just kidding - nothing to see.


  20. - MakePoliticsCoolAgain - Thursday, Apr 30, 20 @ 10:17 am:

    Tin foil is strong this morning.


  21. - Joe Bidenopolous - Thursday, Apr 30, 20 @ 10:17 am:

    ==Unless the Governor was lying about Fair Maps during his campaign he should insist that they should meet for this very important item to be placed on the ballot==

    That ship, I believe, has sailed. The GA has to approve Constitutional Amendments at least 6 months before the General Election. That date would be May 3. The Amendment has to be read on three separate days in each chamber. Assuming they use one that’s been read once already, they’d still need 4-5 days. They couldn’t do it before May 3rd if they started today.


  22. - Rabid - Thursday, Apr 30, 20 @ 10:33 am:

    Shouldn’t this lawsuit be on madigan for not letting him express his constitutional rights


  23. - @misterjayem - Thursday, Apr 30, 20 @ 10:44 am:

    “I think the AG wins not on the law, but on the politics”

    Perhaps the ruling of the seven members of the states’ highest court will be based solely on partisan politics.

    Maybe. We’ll see.

    But what we know today is that the initial decision by Clay County’s Judge Fishinhole certainly was.

    – MrJM


  24. - Demoralized - Thursday, Apr 30, 20 @ 10:49 am:

    ==but given the fact that the emergency powers statute at issue is clear and unambiguous by its plain language==

    Really? Because I don’t think it is. It is completely silent on whether more than one 30 day disaster can be declared. If you have evidence to the contrary then by all means offer it up.

    ==rescinding his baseless extensions==

    That’s your opinion. Again, if you have proof that the intent was for a 30 day declaration only then offer it up.


  25. - Token Conservative - Thursday, Apr 30, 20 @ 10:52 am:

    I’m a pro-business, small government, anti-Pritzket conservative and this appeal is a friggin’ slam dunk.


  26. - RNUG - Thursday, Apr 30, 20 @ 10:54 am:

    == The IL Supreme Court will create a “reasonable right to extend” (not in perpetuity) out of whole cloth, I predict. ==

    It won’t be out of whole cloth.

    The GA wrote the vague language but included the right to review and revoke any Executive Order. The GA has the exclusive right revoke EO’s. In the past, the GA has been silent on extensions. In the current situation, the GA had continued to be silent.

    I think a court could reasonably conclude that the GA’s failure to revoke the EO is approval, or at least concurrence, with the Governor’s actions.


  27. - Anon y mouse - Thursday, Apr 30, 20 @ 10:54 am:

    **** “But what we know today is that the initial decision by Clay County’s Judge Fishinhole certainly was.” ****

    Exactly how so? Because extraneous commentary notwithstanding, the Judge’s ruling was, at its core, the 30-day language in the emergency statute is just that … 30-days. And that’s the issue on appeal. No more.


  28. - RNUG - Thursday, Apr 30, 20 @ 10:57 am:

    == That ship, I believe, has sailed. ==

    They could fudge it by using a shell bill ready for 3rd reading, and see if anyone is willing to challenge it in court.


  29. - Nick Name - Thursday, Apr 30, 20 @ 11:01 am:

    ===the AG, a product of the legislature, throws the legislature under the bus===

    He’s not in the GA any more.


  30. - Anon y mouse - Thursday, Apr 30, 20 @ 11:01 am:

    **** “The GA wrote the vague language but included the right to review and revoke any Executive Order. The GA has the exclusive right revoke EO’s. In the past, the GA has been silent on extensions. In the current situation, the GA had continued to be silent.

    I think a court could reasonably conclude that the GA’s failure to revoke the EO is approval, or at least concurrence, with the Governor’s actions.”

    Hmm. So what is the vague language you mention … exactly? Because unless statutory language is truly subject to more than one interpretation, it is to be afforded its plain meaning. Period. What the GA could have meant or done is utterly irrelevant.


  31. - Demoralized - Thursday, Apr 30, 20 @ 11:04 am:

    == So what is the vague language you mention==

    Um, the fact that the statute does not specifically prohibit the issuance of more than one 30 day declaration. You seem to be pretty sure of yourself when you are doing nothing but offering up your opinion.


  32. - zatoichi - Thursday, Apr 30, 20 @ 11:11 am:

    So if May 5 comes and Ro jumps to 1.45, will Bailey claim the Governor cannot declare another disaster because he already played that card? I do not think COVID-19 cares as long as another set of lungs are available. Easy appeal.


  33. - Hamlet's Ghost - Thursday, Apr 30, 20 @ 11:12 am:

    Perhaps the GA could adopt a resolution saying that a majority of legislators concur with rhe AG’s interpretation of the statute.


  34. - Flapdoodle - Thursday, Apr 30, 20 @ 11:14 am:

    I rather enjoyed this in the full brief: “In fact, in May 2019, when Governor Pritzker issued a second flooding disaster declaration, extending his emergency authority by 30 days, his efforts were celebrated by Bailey himself. SR235-37.”

    Bailey’s hypocrisy and self-centeredness are so transparent and earn the mockery they’re receiving.


  35. - Joe Bidenopolous - Thursday, Apr 30, 20 @ 11:21 am:

    =They could fudge it by using a shell bill ready for 3rd reading, and see if anyone is willing to challenge it in court.=

    If they did by statute, sure, they could do it pretty much anytime, but the comment I was replying to was a CA, which would be either a SJRCA or HJRCA, and that opportunity is gone.


  36. - Skeptic - Thursday, Apr 30, 20 @ 11:28 am:

    Ooops, edited for banned punctuation…
    “It is completely silent on whether more than one 30 day disaster can be declared.”

    The argument I hear you making is akin to a parent telling their kid “You can have one cookie” with the intent of limiting the child to one (and only one) cookie. The child, being a smart alec says, “Ok, I’ll take one cookie, and one cookie, and one cookie,…” clearly violating the parent’s intent. I’m no lawyer, but I don’t think the law works that way.


  37. - JS Mill - Thursday, Apr 30, 20 @ 11:30 am:

    =Clay County’s Judge Fishinhole=

    Priceless

    =Exactly how so? Because extraneous commentary notwithstanding, =

    Willfully ignoring the Judges totally unnecessary commentary and, like Trump, personalizing the case.


  38. - Jibba - Thursday, Apr 30, 20 @ 11:31 am:

    ===doing nothing but offering up your opinion===

    You’re forgetting about past practice in disaster proclamations. More evidence that JB is correct.


  39. - Michael Westen - Thursday, Apr 30, 20 @ 11:31 am:

    “In fact, in May 2019, when Governor Pritzker issued a second flooding disaster declaration, extending his emergency authority by 30 days, his efforts were celebrated by Bailey himself. SR235-37.”
    Bailey’s hypocrisy and self-centeredness are so transparent and earn the mockery they’re receiving.

    Did the Governor’s declaration or its extension in 2019 wipe out 100,000 or more businesses? If you think the 2019 “emergency” declaration is the same as this one you might be on Pritzker’s payroll.

    I support the Governor’s declaration. I also support following the law. So I support the court making a ruling on this. One can support all three at the same time.


  40. - Norseman - Thursday, Apr 30, 20 @ 11:33 am:

    === The GA wrote the vague language but included the right to review and revoke any Executive Order. The GA has the exclusive right revoke EO’s. In the past, the GA has been silent on extensions. In the current situation, the GA had continued to be silent. ===

    RNUG, where do you see this? I can’t find it in Sec. 7 nor could I find anything in the rest of the statute.


  41. - King Louis XVI - Thursday, Apr 30, 20 @ 11:35 am:

    == So what is the vague language you mention==

    – Um, the fact that the statute does not specifically prohibit the issuance of more than one 30 day declaration. You seem to be pretty sure of yourself when you are doing nothing but offering up your opinion. –

    What is not prohibited is permitted - Nulla poena sine lege ¬– is an actual legal principle.


  42. - TheInvisibleMan - Thursday, Apr 30, 20 @ 11:40 am:

    ===I rather enjoyed this in the full brief===

    The Cabello suit has something similar.

    In January of 2019 Cabello was asking for a continuing declaration from the state for flooding in Winnebago county. As well as asking for an order to restrict non residents from being in the area.

    He wasn’t amused when someone asked him on his social media page if it would be ok for me to setup a block party hosted in the area being flooded the next time there is a disaster in his community.

    We either have the rights he claims, or we don’t.


  43. - Flapdoodle - Thursday, Apr 30, 20 @ 12:15 pm:

    “Pretty darn weak brief, but given the fact that the emergency powers statute at issue is clear and unambiguous by its plain language, I guess it’s the best the AG could offer.”

    This has to be among the silliest comments so far, saying in effect “I’m absolutely determined to slam the AG, but unfortunately he’s totally right, so the best I got is to slam him for being weakly totally right.”

    But wait, there’s more. I’m also determined to complain about the sitting GA (Madigan and all, you know) even though this is irrelevant to the AG’s weak but totally right brief because the brief involves the GA as a branch of government, not the action/inaction of the currently sitting GA.

    Focus.


  44. - PrairieChicken - Thursday, Apr 30, 20 @ 12:36 pm:

    The only question here is if ANY of the GOP Supremes will vote to uphold this nonsense decision.


  45. - Elliott Ness - Thursday, Apr 30, 20 @ 12:41 pm:

    Prairie Chicken- the Supremes should not have to do the job of the General Assembly - they can punt it back to the body that created the statute easily enuf


  46. - Oswego Willy - Thursday, Apr 30, 20 @ 12:43 pm:

    === the Supremes should not have to do the job of the General Assembly===

    What job is that?

    It’s like you’re choosing which of the two branches should be forced to do something by the third?


  47. - Elliott Ness - Thursday, Apr 30, 20 @ 12:52 pm:

    The court is not there to legislate, OW, co-equal requires the GA to legislate clearly and they could do their job and legislate


  48. - Elliott Ness - Thursday, Apr 30, 20 @ 12:53 pm:

    They wanna be co-equal then act like it


  49. - Hamlet's Ghost - Thursday, Apr 30, 20 @ 12:57 pm:

    @Elliott Ness

    The language seems clear enough to me to say JB’s right.

    I kinda like the idea of a GA resolution that says: “Yup. the IL Atty General is right. That’s what we meant all along and we think that what the words actually did say, all along…”

    How would you vote on that resolution collar county GOP representatives?


  50. - Oswego Willy - Thursday, Apr 30, 20 @ 12:57 pm:

    === They wanna be co-equal then act like it===

    You think the 177 want to, on the record, in a session day, weigh in on the stay at home order?

    Read Leader Durkin’s own response to Mr. Bailey’s lawsuit.

    The only thing that would transpire would be the politics to the order, not the science.

    It’s one thing to complain they want to be involved, it’s another to be held accountable for the words and actions.

    With respect.


  51. - Elliott Ness - Thursday, Apr 30, 20 @ 1:48 pm:

    Respectfully, I truly believe the 177 should do their job, didn’t say they wanted to…politically this is tough, easier to file lawsuit, lob bombs from afar, etc
    ,
    but they should do their job and legislate…what in my opinion would transpire is science, reason and bipartisanship, the GOP would be forced to participate somewhere other than Court. They wanna be co-equal? Careful what you wish for!


  52. - Last Bull Moose - Thursday, Apr 30, 20 @ 2:02 pm:

    I would prefer that the legislature extend the EO. They have the time and ability to do so.

    If they can end the EO by majority vote, OK.

    If ending the EO requires a bill that can be vetoed, that is a problem. We went through this with Trump switching funding to the Wall. He vetoed the bill stopping the switch.


  53. - Oswego Willy - Thursday, Apr 30, 20 @ 5:08 pm:

    === didn’t say they wanted to…politically this is tough, easier to file lawsuit, lob bombs from afar, etc, but they should do their job and legislate…what in my opinion would transpire is science, reason and bipartisanship, the GOP would be forced to participate somewhere other than Court. ===

    The legislature can go into session anytime they choose, and here’s the thing; the clamoring to do what you are asking isn’t there, the want isn’t there.

    If you’d like to hold the Raunerites accountable, sign me up too


Sorry, comments for this post are now closed.


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