One of the major news items hereabouts is a recent state court decision. The Chicago Tribune reports:
A southern Illinois judge on Thursday declared void Gov. J.B. Pritzker’s orders aimed at slowing the spread of the new coronavirus, saying state law doesn’t allow governors to extend disaster proclamations beyond 30 days or restrict the activities of residents and businesses by executive order.
Pritzker first declared a statewide disaster because of COVID-19 on March 9 and has issued extensions every 30 days. Those proclamations have been the legal basis for the governor’s stay-at-home order and restrictions in each phase of his “Restore Illinois†reopening plan.
The immediate implications of Clay County Circuit Judge Michael McHaney’s order, which stemmed from a lawsuit filed by state Rep. Darren Bailey, were not clear.
The state is in the fourth phase of Pritzker’s reopening plan, which includes a number of restrictions, such as a limit on crowd sizes and stricter regulations on businesses.
“That’s gone as we stand here right now,†said Bailey’s attorney, Thomas DeVore.
The Illinois attorney general’s office, which is expected to appeal, had no immediate comment.
The mystery in this is that the governor hasn’t appealed to the state legislature to amend the law that grants him 30 day emergency authority. I’ve cited it here before and it could hardly be clearer. There’s really no ambiguity. 30 days and that’s it.
But the Illinois legislature, both houses of which have Democratic majorities, would undoubtedly grant the governor just about any powers he request to deal with COVID-19. Why they haven’t acted is a mystery to me.
IIRC the legislature privately discussed taking action to support the emergency order, but none was taken. The Governor’s emergency rule providing for penalties for businesses violating his emergency orders was withdrawn, suggesting bipartisan opposition (a two-thirds vote of a committee evenly divided btw/ Republicans and Democrats were needed to veto the rule).
I think timing is an issue — the legislature didn’t meet until May. The emergency orders were more politically fraught by then, and the process of opening up was expected shortly.
These are the key findings from the court’s order:
a) The Court declares Defendant had no Illinois constitutional authority as Governor to restrict a citizen’s movement or activities and/or forcibly close business premises in EO 32;
b) The Court declares that none of the cited provisions of the IEMAA. in EO 32 delegated Defendant any authority to restrict a citizen’s movement or activities and/or forcibly close business premises;
c) The Court declares the proper authority to restrict a citizen’s movement or activities and/or forcibly close their business due to any public health risks has been expressly delegated to the Department of Health under the Illinois Department of Public Health Act and the County Code;
. . .
6) Plaintiff oral request that his Amended Complaint be a representative action and apply to all citizens of the State of Illinois is granted
Could be but refraining from timely action has become the Illinois legislature’s core competency.
Seems to be some confusion about the impact of the ruling, and I don’t see any commentators mentioning collateral estoppel.
Under the doctrine of collateral estoppel, a party is precluded from re-litigating an issue previously decided by prior final judgment. If the State tries to enforce the emergency order that has been invalidated, any defendant will present the Judge’s order as binding against the State in the new proceeding. That’s why the State needs to file an appeal, asking for a stay of judgment while the Appellate Court reviews the decision.
The analogous lawsuit against Lightfoot/Chicago would not be impacted because the City wasn’t a party, nor are the issues identical. Nor does the ruling have any precedential effect because it was not made by an appellate court.
I also don’t see any basis to believe that the ruling only applies to one county. The ruling was made by a circuit judge, in which the Illinois Constitution vests original jurisdiction in all maters. So long as the State was properly within the jurisdiction of the Circuit Court, the State was obligated by its rulings.
Maybe there is some exception or wrinkle I don’t see, but these are basic procedural issues that I suspect the academia doesn’t often dwell. I think the State needs to stop sending out whatever cease and desist letters its been sending to avoid more lawsuits which have attorney fee reimbursement opportunities.