[I’m bumping this up from Sunday for visibility and opening comments ahead of today’s hearing.]

* Let’s circle back to Friday…

State Rep. Darren Bailey filed a lawsuit today (April 23) against Governor J.B. Pritzker for a violation of civil rights.

“My lawsuit asks the court to find that Gov. Pritzker overextended his power by issuing additional ‘stay at home’ orders after his original disaster proclamation, which expired on April 9th, 2020,” said Bailey

State statute allows a governor to declare a disaster for 30 days. That is undisputed, even by Bailey. The law is silent, however, on whether the governor has the power to issue another declaration.

* It turns out, declaring more than one disaster is common practice. From May 8, 2019…

Governor JB Pritzker has issued a state disaster proclamation for 34 counties along the Mississippi and Illinois rivers. The declaration will ensure state support to communities that are battling floods caused by weeks of elevated river levels and recent heavy rains.

From May 31, 2019…

Governor JB Pritzker has issued a second state disaster proclamation for 34 counties along the Mississippi and Illinois rivers.

What Rep. Bailey is essentially saying here is that the governor has to either give up and not issue subsequent proclamations during massive flooding, or involve the General Assembly, which, theoretically, could be under water at the time (and actually is under that theoretical “water” right now).

* OK, let’s take a look at Section 7 of the statute…

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

Again, the act is completely silent on what happens after 30 days. There is no specific prohibition against declaring another disaster.

And there are more than just hints in the full statute that the General Assembly actually intended to remain silent on this particular 30-day renewal point.

For example, Section 6 of the statute requires the GA or a bicameral committee to approve any “reciprocal mutual aid agreements or compacts with other states.”

And this is from Section 9…

It is the intent of the Legislature and declared to be the policy of the State that funds to meet disasters shall always be available.

That’s basically a continuing appropriation.

The section goes on to say that if the governor determines that state and other resources are insufficient, he has to request an appropriation from the General Assembly. However, if the House Speaker and Senate President certify that the legislature is not in session…

the Governor is authorized to carry out those decisions, by depositing transfers or loan proceeds into and making expenditures from the Disaster Response and Recovery Fund, until such time as a quorum of the General Assembly can convene in a regular or extraordinary session.

So, the General Assembly envisioned a limited role for itself in those two sections, but allowed the governor to act without it on funding and, it appears, deliberately avoided mentioning any sort of legislative role in carrying out or approving a second disaster declaration in the same statute.

You never know what a local county judge will do, particularly in Rep. Bailey’s part of the world, but that looks to me like a slam dunk.

* Let’s now move on to another point. From a press release…

Rep. Bailey said a story which first appeared publicly on the Edgar County Watchdogs website, which offered up an internal memo of the State’s Attorney Appellate Prosecutor’ Office, indicates there are serious doubts inside that judicial agency as to the legality of Pritzker’s Executive Orders.

This judicial agency provides training and support for local state’s attorneys on “constitutional, statutory and case law issues. The internal memo, written by David J. Robinson, who holds the position of Chief Deputy Director of the State’s Attorney Appellate Prosecutor’s Office, states:

“My research leaves me less than confident that a reviewing court will hold that the Governor has the authority close businesses, bar attendance at church services and assemblies in excess of ten citizens (particularly if they are assembling to redress grievances)”.

* Let’s look at that the memo. The Director of the Appellate Prosecutor’s Office, Patrick Delfino, tasked a member of his senior staff with this research…

(Y)ou asked that I prepare a memorandum outlining potential arguments that may confront Illinois State’s Attorneys as part of future civil and criminal litigation with regard to the Governor’s Executive Orders in the wake of the COVID-19 pandemic.

Robinson was essentially gaming out what arguments could be coming at local state’s attorneys if local governments use civil or criminal penalties to shut down a business or church or whatever. His footnote says that this memo is “designed solely to assist you in informing and advising Illinois State’s Attorneys.” This happens a lot. You always want to figure out what the other side will do to you.

However, the administration has never said that it would definitely prosecute people. The governor himself has repeatedly said he’s asked state and local police to use persuasion, and if that doesn’t work then they should ask for involvement by local and/or state public health officials.

* Let’s go back to the statute…

Sec. 7. Emergency Powers of the Governor. […]

(6) To recommend the evacuation of all or part of the population from any stricken or threatened area within the State if the Governor deems this action necessary. […]

(8) To control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.

Since the entire state is a disaster area, the statute gives him some pretty extraordinary powers.

* But are those powers constitutional? Not in some instances. From the Robinson memo…

It also appears that the Governor is taking no position on the enforcement of his EO, except to say that it is up to local law enforcement, which is an indication that he is presuming it would be enforced in a constitutional way, if at all (”we are asking people to do the right thing”).

That is exactly right. Statutory law cannot exceed the Constitution and neither, obviously, can an EO.

* From the Robinson memo’s conclusion…

Accordingly, given what the Governor has said publically, a reasonable view is that he has taken executive action to combat the COVID-19 pandemic by issuing EOs with the understanding that local officials will enforce those orders in compliance with the Illinois Constitution and the Constitution of the United States. [Emphasis in original.]

That’s basically the defense strategy. The EO is protected because the governor wants only constitutional enforcement, through civil or criminal means.

* So, if a cop walks into a church during a service with more than 10 people present and starts making mass arrests, that likely wouldn’t hold up in court. Instead, what the state has been trying to do is use the carrot of persuasion by explaining to pastors, business owners, etc. what could happen with mass gatherings, along with the threat of a local or state public health legal action to prosecute violations of the EO. From ILCS 2305/8.1…

Whoever violates or refuses to obey any rule or regulation of the Department of Public Health shall be deemed guilty of a Class A misdemeanor.

But it doesn’t appear that the state will use that statute in at least certain targeted cases. The state hasn’t, for instance, broken up any protests against the stay at home order, even though they may have been in violation of the EO’s crowd limits. It also hasn’t arrested any pastors or church-goers.

* The statute is clear that the Department of Public Health can order a closure…

The Department may, however, order a person or a group of persons to be quarantined or isolated or may order a place to be closed and made off limits to the public on an immediate basis without prior consent or court order if, in the reasonable judgment of the Department, immediate action is required to protect the public from a dangerously contagious or infectious disease.

But there is almost immediate due process written into statute for those hit by a closure order…

In the event of an immediate order issued without prior consent or court order, the Department shall, as soon as practical, within 48 hours after issuing the order, obtain the consent of the person or owner or file a petition requesting a court order authorizing the isolation or quarantine or closure. When exigent circumstances exist that cause the court system to be unavailable or that make it impossible to obtain consent or file a petition within 48 hours after issuance of an immediate order, the Department must obtain consent or file a petition requesting a court order as soon as reasonably possible.

And then it goes on to explain what is required to prevail in those court cases.

And, as the Robinson memo points out, the governor is not encouraging or carrying out unconstitutional arrests or civil penalties. There may be a standing issue here for Rep. Bailey.

…Adding… Sorry that I didn’t post this earlier…

House Republican Darren Bailey enters the courthouse with his legal team to applause from local supporters. This is his hometown. pic.twitter.com/ViDDxkUMZA

— Mark Maxwell (@MarkMaxwellTV) April 27, 2020