The Law Q&A | Emergency orders invalid — but only in Clay County

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Three months ago, we discussed in this column the Illinois Department of Public Health Act (Health Act) and the Illinois Emergency Management Authorization Act (Emergency Act) when Gov. J.B. Pritzker began issuing decrees in response to the coronavirus pandemic.

The Emergency Act gives the governor power to declare emergencies in certain situations and to issue short-term orders in coordination with state agencies to deal with the declared emergency.

A lawsuit filed in Clay County by Republican Illinois House member Darren Bailey challenged the lawfulness of the governor’s decrees after the first 30 days. The Emergency Act does state that the governor has authority to issue emergency orders for 30 days. The first orders went into effect March 9.

What has been happening is Pritzker would redeclare the pandemic as another emergency and so issue new decrees for the succeeding 30 days after the previous 30-day limit expired. His orders closed certain businesses and public facilities, and even restricted movement of individuals outside their residences, and barred suits for certain evictions.

The Clay County judge ruled on July 2 that Pritzker’s authority to issue any emergency order expired 30 days after March 9. In the judge’s view, Pritzker could not skirt the 30-day limit by declaring a new emergency when the problem at hand (an infectious disease to which humanity does not yet have immunity) was the exact same emergency when first declared.

The judge noted that the ability to issue orders restricting activities of any sort or manner in the state, without time constraints, was already given by the legislature to the Illinois Department of Public Health under the Health Act.

The 30-day limit in the Emergency Act is a tad vague. It does not say that a governor cannot redeclare an emergency arising from the same situation as the first declaration. On the other hand, there plainly is a 30-day limit on the governor’s powers. And the Department of Public Health is fully vested with power to decree all the things Pritzker has been doing.

Suits have been filed in several venues challenging Pritzker’s authority to restrict activities by its citizens. Challenges by churches brought in federal court claiming federal First Amendment violations have not been successful.

Indeed, Pritzker tried to transfer Bailey’s suit to federal court hoping for such judicial sympathy. But the federal judge kicked it back to Clay County because Bailey’s legal claim did not create a basis for federal jurisdiction to hear it.

Now we wait for the possible appeal. The ruling by the Clay County judge — who found the governor’s extended orders are invalid not just to Bailey but to all citizens throughout the state — has no binding effect on any court outside of Clay County. Only a court of appeals could have such effect.

Ultimately, if an appeal reaches the Illinois Supreme Court, its ruling would be binding statewide.

Why the Illinois Department of Public Health did not step in after the first 30 days is a puzzlement.

Why the general assembly has not stepped in to clarify by statutory amendment the governor’s ability to renew an emergency under the Emergency Act may not be so puzzling.

Don’t pass the hot potato, please. I think I just dropped my political spine under the table somewhere.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

26-Delivered

via The News-Gazette

July 12, 2020 at 10:00AM

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