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[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
posted by Rich Miller
Monday, Apr 27, 20 @ 11:47 am
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At what point does the media stop covering Bailey and his ilk? They’ve already admitted that they only do this for attention. We need to stop giving them the oxygen that they want.
Comment by Highland IL Monday, Apr 27, 20 @ 11:57 am
But beyond being wrong about the facts and the law, Bailey’s argument is basically flawless.
– MrJM
Comment by @misterjayem Monday, Apr 27, 20 @ 12:00 pm
As Rich said, there is quite a bit of ambiguity in the Emergency Powers Act … maybe a bit too much. The one redeeming part is that the Legislature basically said they could (would?) intervene if/when necessary. That could lead a court to believe the GA really did intend for the Governor to have almost unlimited power … within Constitutional limits.
I’ll give 60/40 or thereabouts odds on the State prevailing on the Governor’s ability to extend the declaration.
The enforcement is a different issue. Some of it may be an overreach. Likely anything the police do beyond writing either a generic Disturbing the Peace or Reckless Endangerment charge will be overturned or dismissed. You might even get those 2 charges dismissed, but they seem the most likely ones to stick.
Comment by RNUG Monday, Apr 27, 20 @ 12:18 pm
===At what point does the media stop covering===
A judicial hearing is newsworthy. Period.
Comment by Rich Miller Monday, Apr 27, 20 @ 12:21 pm
” Governor to have almost unlimited power … within Constitutional limits.”
JB has a compliant GA with a supermajority - so yep. Divided government has an upside.
Comment by Donnie Elgin Monday, Apr 27, 20 @ 12:23 pm
Mr. JM, you know the quote: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”
Bailey is doing a great job of pursuing the third option.
Comment by Soccermom Monday, Apr 27, 20 @ 12:25 pm
As a lawyer from Chicago, after seeing the photo of the court room in the other post, and reading that the local judge denied a request for continuance, I have to say I do not envy the Asst AG who will argue this motion. In the past I have walked in to court rooms like this expecting the worst and getting it. If I were the AAG I would surely be having that feeling right now. I would also have a Notice of Appeal and Motion to Stay prepared.
Comment by DEE Monday, Apr 27, 20 @ 12:39 pm
Yes multiple disaster declarations have been used in the past without being challenged. This one, however, unlike those in the past, universally and unilaterally infringes the constitutional rights of every Illinoisan. So some extra scrutiny is called for here. Judicial scrutiny.
Comment by Captain Obvious Monday, Apr 27, 20 @ 12:47 pm
Not that it would happen, but a perfectly ironic situation in the real definition of the word, would be removing the ability to declare successive disasters right at the start of the spring flooding season.
I’m also a big fan of the War Prayer by Mark Twain. Especially the Peter Coyote read animated version.
Eventually, if this mindset is not adjusted, Bailey and his type will make a fatal error that backfires on them immensely.
Comment by TheInvisibleMan Monday, Apr 27, 20 @ 12:49 pm
“There may be a standing issue here for Rep. Bailey.”
More of a grandstanding issue, methinks.
Comment by Northsider Monday, Apr 27, 20 @ 1:01 pm
Once again, as I posted earlier, this is a solid summary by Rich Miller.
I wish that the statute was crafted with better precision and less ambiguity, but that’s our legislature. The law libraries are filled with appellate level opinions where the courts had to engage its statutory construction to explain the precise meaning of poorly written laws.
As Rich suggested, this case could easily go either way.
Comment by Practical Politics Monday, Apr 27, 20 @ 2:02 pm
Two questions for the legal eagles here:
1) Let’s say the local Public Health department had issued an order stating that all local businesses other than those providing essential goods/services were to remain closed until further notice. If someone goes ahead and opens their restaurant or their hairdressers’ salon, can they be prosecuted for violation of a Health Department order? Would they escape a Class A Misdemeanor charge here?
2) Let’s say that a whole (southern Illinois, e.g.) town decides to re-open more or less unilaterally. Three weeks later there’s a new outbreak in the town which requires massive state intervention at a cost of x-million $$. Does anyone have grounds to bring an action against the town? Does the state? Do relatives of those who died in nursing homes, for example, as a result of new community spread?
Keeping in mind here that just as there are “donor” and “recipient” states, there are “donor” and “recipient” counties in each state …
Is there any way to argue force majeure in such cases?
Comment by dbk Monday, Apr 27, 20 @ 2:06 pm
I get that we are all a bit worn down. I also get that we really have been fortunate to have such a reasonable and good person leading our state. (Not perfect). With that all said, Rep Bailey is just a word that Rich would ban. To disregard the public safety and attempt to stretch/distort the law for his own political gain is wrong. I hope that our fellow Illinois residents in his district begin to see that a change in leadership there is needed. It is one thing to be conservative; quite another to be Rep Bailey.
Comment by Tired Teacher Monday, Apr 27, 20 @ 3:00 pm
“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.”
Dang Mister Rich, were real stoopid down here in south Illinoise, we just though maybe we could go noodle some catfish without warin a mask with our huney this weekend without gitten bugged by guberner.
Comment by 96Illini Monday, Apr 27, 20 @ 4:41 pm
Did Pritzker issue multiple emergency proclamations or did he just say his old order is being extended? Sometimes in a court of law these minor details matter.
“Upon such proclamation, the Governor shall have and may exercise for a period NOT TO EXCEED 30 days the following emergency powers”
Was Bailey arguing Pritzker can’t do multiple orders or that Pritzker can’t extend an order? Which one was Pritzker arguing he has the right to do?
Comment by Correcting Monday, Apr 27, 20 @ 6:51 pm