In March of 2020, the start of the COVID-19 pandemic, Governor JB Pritzker issued a series of emergency orders. Executive Order 2020-04, issued on March 13, 2020, was the governor’s first time seizing emergency power. Under the Illinois Emergency Management Agency Act, the governor can issue a state of emergency declaring a disaster within the state, giving himself 30 days of emergency power. The governor, in a state of emergency, has complete control over all state institutions and public health. Although the measure intends to streamline governmental response in times of disaster, Governor Pritzker exploited a loophole in the law and reissued the executive order 22 times.

The governor reissued the executive order on October 15th extending his emergency powers until November 13th. At the time of the most recent order, the state had been in a continuous state of emergency for 581 days. As of October 20th, Pritzker has issued 91 executive orders, many of which have no connection to COVID. The legislature is not meeting to address this issue, and our representatives are prevented from fulfilling their duty to their constituency. 

As a result of the restrictions on the Illinois General Assembly, a great deal of state business has been left undone, and the voices of Illinois citizens have gone unheard. State Representatives Dan Ugaste (R-Geneva), Mark Batinick (R-Plainfield), Avery Bourne (R-Morrisonville), and Norine Hammond (R-Macomb) held a press conference on Wednesday, October 20th, to discuss the problem and how Republican members of the Illinois House intend to respond. Several representatives have joined together to try to end the governor’s unilateral rule. Rep. Ugaste has authored HB 843, a bill allowing the governor to extend a 30-day declaration of emergency – but only with the written approval of the Illinois General Assembly obtained within five days of the extension. This bill would also allow the General Assembly to adopt a joint resolution declaring the extension void.

Watch the video of their press conference here below:

Currently, the bill is stalled in the Rules Committee, unable to be brought to a vote in the House. The Rules Committee consists of State Representatives Greg Harris (D-13th District), Dan Brady (R-105th District), Tom Demmer (R-90th District), Jehan Gordon-Booth (D-92nd District), and Elizabeth Hernandez (D-24th District). Unless the Rules Committee meets to discuss the bill, it will not go forward. In the previous General Assembly, Rep. Ugaste authored HB 5790, a bill requiring the same approval for extending emergency rule. As the bill never went forward, Rep. Ugaste is resubmitting it to the current 102nd General Assembly as HB 843.

Unilateral rule by Governor Pritzker has created a tyrannical government in our state. The U.S. Constitution and the Illinois Constitution ensure a system of checks and balances intended to prevent dictatorships from forming and allow for the people’s representation. By utilizing a continuous state of emergency, Governor Pritzker has set himself up as a de facto king.

Pritzker has issued numerous orders without a single public debate or hearing. The impact of this tyrannical rule is devastating. Rep. Batinick noted that the broad-spectrum rules of school closures and masking are not always beneficial and may have lasting effects on income gaps and education. He also stated that, although the removal of mandates might not occur even if the legislature were meeting, nevertheless, all rules and orders should be open to a public debate in which experts could testify. Without public debate and complete transparency, the people of Illinois will continue to suffer from governmental overreach.

Take ACTION: Click HERE to let your state lawmakers know that you oppose the continued unilateral rule of Governor Pritzker and the lack of checks and balances in our state government. Please ask them to co-sponsor HB 843. Also, demand that this bill get a hearing in committee so that it can advance to the Illinois House for a vote. 

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Written by Austin Scott Davies

Late last week, Illinois Circuit Court Judge Michael McHaney of Clay County ruled in a lawsuit that “all citizens of Illinois” are free from Governor J.B. Pritzker‘s tyrannical orders. This comes after arguably unethical tactics by the Illinois Attorney General to delay the case by trying to remove it to federal court, and the United States Department of Justice filing a Statement of Interest in the case in support of the lawsuit.

State Representative Darren Bailey (R-Louisville) prevailed in his Motion for Summary Judgment on Counts II and III of his lawsuit against Governor Pritzker on April 23, 2020. The judge granted the declaratory relief requested in those counts and ordered a final judgment on the merits against Pritzker.

The judge ruled that by law Gov. Pritzker’s emergency powers lapsed 30 days after he declared COVID-19 a disaster and that all of his orders after April 8, 2020 that relate to the COVID-19 “disaster” are void ab initio. That’s Latin for void when they were created. Pritzker had no authority to issue orders after April 8, and legally, all orders issued after that date never existed. The Emergency Management Agency Act, which Gov. Pritzker claimed gave him authority to issue perpetual decrees shuttering businesses and churches and authority to suspend countless civil liberties, states clearly that a governor only has certain emergency powers that can be exercised for no more than 30 days following the declaration of a disaster.

The court went on to rule that there is no authority in the Constitution for Pritzker to have ever ordered the restriction of people’s movement or to have ever ordered the forcible closure of any business.

The judge made clear that in Illinois only the Illinois Department of Public Health (IDPH) and local health departments have the authority to restrict movement or close a business. To restrict movement or close a business, IDPH and local health departments must act within the constraints of existing law to take each individual person or business to court and overcome an incredibly high burden of proof. If the department is merely trying to prevent the spread of a virus or isolate a person that’s not already sick, that burden of proof is nearly insurmountable.

Specifically, Section 2 of the IDPH Act (20 ILCS 2305) allows the IDPH and local health authorities to order quarantine and isolation and to close places to prevent the probable spread of a dangerous or infectious disease. However, these agencies cannot make such orders without a prior court order, or consent by the person or persons effected.

The only exception to this is if, in the “reasonable judgment of the agency” issuing the order, “immediate action is required to protect the public from a dangerously contagious or infectious disease.” In that event, they can make such orders on a temporary basis, lasting no longer than 48 hours.

If a department of health issues such an order, they are still required to either obtain your consent or a court order within 48 hours of doing so, unless the courts are unavailable or circumstances make it impossible to obtain a court order. Then, the orders can only stay in place until the agency can obtain the court order through reasonable means.

The courts, however, are not closed, and some county courts have even made new local rules making it clear that they are open for these types of cases. To obtain an order to quarantine, isolate, or close a place or business, the health department must prove to a court “by clear and convincing evidence . . . that the public’s health and welfare are significantly endangered by a person or group of persons that has, that is suspected of having, that has been exposed to, or that is reasonably believed to have been exposed to a dangerously contagious or infectious disease including non-compliant tuberculosis patients or by a place where there is a significant amount of activity likely to spread a dangerously contagious or infectious disease. The Department must also prove that all other reasonable means of correcting the problem have been exhausted and no less restrictive alternative exists.”

At such hearing, you have a right to be represented by an attorney of your choosing, or if you are “indigent,” the court will appoint counsel to represent you. The burden is on the government to prove why you should close, isolate, or be quarantined. You do not have to prove why you should keep your business open or move about without restrictions.

At the behest of Gov. Pritzker and prior to this ruling, the IDPH has come out with “guidelines” that are phrased as orders that require certain measures of quarantine, partial business closure, and isolation such as “social” physical distancing. None of these “guidelines” or orders are enforceable unless you consent to them, or a health department complies with the due process protections described above and obtains a court order.

Shortly after this ruling, Gov. Pritzker and mainstream “news” media led a disinformation campaign to deceive Illinoisans by suggesting that “Phase 4” is still in full effect because Gov. Pritzker prevailed in other lawsuits regarding these onerous orders. While it is true that some courts have ruled against other plaintiffs that have filed lawsuits against Gov. Pritzker that are related to his orders, none have made any ruling inconsistent with the ruling in State Rep. Darren Bailey’s lawsuit. The other lawsuits referenced by Pritzker and his cohorts made different legal claims against Pritzker, were not representative actions, and in no way limit or constrain Judge McHaney’s ruling that all citizens of Illinois are free from Pritzker’s unlawful orders. This ruling applies to the entire state of Illinois and not just Clay County in the Circuit Court where it was made.

What is really telling is that only Pritzker and his cohorts are engaging in the campaign of disinformation, continuing to try to compel compliance to his void orders by intimidation. The Illinois Attorney General’s Office will not comment or respond to questions regarding the ruling.

Since the relief granted was declaratory relief, or relief which declares the parties rights under law—the parties here being Gov. Pritzker and all citizens of Illinois—the remedy of contempt of court is not available to punish Gov. Pritzker for disregarding this ruling. Unlike an injunction, a declaratory judgment does not order a party to do something or refrain from doing something. The judgment in this case is, however, valuable, in that not only does it invalidate Gov. Pritzker’s orders, but it can also be used by any citizen of Illinois to sue Pritzker and other public officials that have unlawfully deprived them of their civil rights, and any that would continue to unlawfully deprive them of their civil rights in clear violation of this judgment and under color of law.

Pritzker has even reportedly claimed that the ruling was not a final judgment on the merits, yet the Illinois Attorney General’s Office, which represents Gov. Pritzker, stated their intent to file an appeal seeking to overturn the judgment. If the ruling was not a final judgment on the merits, it could not be appealed. Unless this judgment is appealed and overturned by an appellate court, any order made by Pritzker that purported to restrict people’s movement, forcibly close any business, and any order related to COVID-19 that he made after April 8, has indeed been declared void and no longer exists anywhere in the State of Illinois.

More:

Click HERE to listen to a 10 minute interview of attorney Thomas DeVore by WMAY radio host Greg Bishop for a clarification on what the Judge Michael McHaney means.

Austin Scott Davies is an attorney and founder of Midwest Legal Care , former prosecutor, and an active member of the Winnebago County Republican Party. He is also a board member for Concerned Citizens for America, a local chapter of Illinois Family Institute.

The information contained in this article is not legal advice and is for general information purposes only. Do not act or refrain from acting on the basis of this information. Readers should contact an attorney to obtain advice with respect to any legal matter.

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Written by Austin Scott Davies

On March 9, 2020, Governor J.B. Pritzker declared every county in Illinois a disaster area. The Illinois Emergency Management Agency Act (20 ILCS 3305/7) allows the governor to proclaim a disaster exists by which he can give himself authority under the Act to exercise certain emergency powers.

The most noteworthy of the powers he has exercised is the power to control the movement of persons within a disaster area and the power to control and restrict the use, sale, or distribution of goods and services.

The governor is constrained by the Act to exercise the emergency powers for a period that is not to exceed 30 days following the proclamation of a disaster. Under the Act, the governor’s emergency powers have expired.

The federal and Illinois’ constitutions also limit the governor’s power through their due process and equal protection clauses. The Bill of Rights, found in both constitutions, restrain the government from violating our rights. However, the government is allowed to burden our rights under certain circumstances.

If a fundamental right is burdened by the government, for example the free exercise of religion, freedom of speech, or movement, some questions asked by courts to determine whether the government’s act is constitutional are whether the act substantially burdened the fundamental right, whether the act furthered a compelling government interest, and whether the government used the least restrictive means possible to pursue that interest. This analysis is called strict scrutiny.

If a non-fundamental right is burdened, courts use the rational basis analysis. Judicial precedent deems economic and business rights to be included as non-fundamental. In determining whether a government act is constitutional here, courts determine whether an act is rationally related to a legitimate government objective. Both strict scrutiny and rational basis analysis are also used for equal protection analysis, when the government applies laws differently based on classifications it creates.

Both fundamental and non-fundamental rights have been burdened by the governor’s orders, and businesses and activities have been classified as “essential” or “non-essential.” In particular, by Order 2020-10, which chose certain businesses that had to close and certain activities that people were no longer allowed to engage in. This “stay-at-home” order shuttered thousands of businesses and restricted fundamental liberties of people in Illinois.

Is prohibiting church services and gatherings of over a certain number of people but allowing people to buy recreational cannabis and liquor–even if “social-distancing” is practiced during each activity–the least restrictive means to prevent the spread of SARS-CoV-2 (also known as the disease “COVID-19”)? Are these classifications rationally related to preventing the spread of the virus? What does shutting down schools have to do with protecting the elderly and immuno-compromised who are most at risk for hospitalization? These questions are beginning to be asked across the nation by litigants, courts, and legislatures. Some doctors believe that isolation and “social distancing” should only be practiced by those most at risk, and that “social-distancing” and isolation will in the long term lead to more death than if we built up herd immunity quicker among the healthy while giving the option to those at risk to choose to social-distance and stay home.

Courts will also be asked to decide whether the government can lawfully arrest or fine people for violating the governor’s orders. In short, no, the government cannot arrest you merely for violating the governor’s orders. Unlike some states, Illinois’ Emergency Management Act does not provide any penalties for violations, so for the executive branch to impose a penalty for a violation would be a violation of procedural due process, which prohibits enforcement of penalties that are vague or, as in this case, non-existent. Even if the governor issued an order specifying a penalty, it would still be unenforceable. In our tripartite, constitutional republic, only the legislature can make law. If the governor purported to create a penalty by order, and that is not present in the statute, that part of his order would be void.

Local municipalities have passed ordinances that provide for penalties if the governor’s order is violated. Some of these ordinances may be lawful while others may not be. For example, Chicago’s Department of Public Health issued an order that requires sick people not to leave their homes except for certain essential activities. The order references Chicago ordinance 2-112-340 for enforcement of its order, which provides that anyone violating an order by the Illinois Department of Public Health or Board of Health can be fined between $100-$500 dollars. The Chicago Department of Public Health gets its authority from the Illinois Administrative Code, which allows for the Illinois Department of Public Health to delegate its authority to to local health authorities. Therefore, the Chicago Department, like the Illinois Department of Public Health, is constrained in its actions by the Illinois Department of Health Act (20 ILCS 2305).

Section 2 of this Act allows the Illinois Department of Public Health, and local health authorities, to order quarantine, isolation, and closure of places to prevent the probable spread of a dangerous or infectious disease. However, these agencies cannot make such orders without a prior court order, or consent by the person or persons effected. The only exception to this is if, in the reasonable judgment of the agency issuing the order, exigent circumstances exist that require immediate action to protect the public, they can make such orders. The agency issuing the order is still required either obtain consent or court order within 48 hours of doing so, unless the courts are unavailable or circumstances make it impossible to obtain a court order. Then, the orders can only stay in place until the agency can obtain the court order through reasonable means.

Illinois’ courts may require video and telephonic hearings at this time, but they are not closed. There have been no reports that the Chicago Department of Health has obtained a court order authorizing the quarantine or isolation of anyone. For this reason, if Chicago law enforcement does issue any fines pursuant to the ordinance, it may be possible to have the fines dismissed. It is also possible that law enforcement would charge you with a Class A misdemeanor for violating an order of a health department agency, found in the act at 20 ILCS 2305/8.1, which may be defended on the same grounds. A Class A misdemeanor carries with it up to 364 days in jail and a fine of up to $2,500.

Threat of criminal penalty has also been made by the governor. When pressed what punishment people could face for violating his order, Gov. Pritzker stated that the police could get a court order or charge people with reckless conduct. Reckless conduct (720 ILCS 5/12-5) is conduct that is performed recklessly and that endangers the safety of another person and is a Class A misdemeanor. The government would have a hard time proving your guilt beyond a reasonable doubt. If you are not under court-ordered quarantine, if you go in public while practicing “social-distancing” and wearing a mask, even while sick, your actions may not be reckless or endangering anyone else. If you are not sick, even if you are not practicing “social-distancing” or wearing a mask, it is hard to imagine the government proving that you endangered another person. It would likely have to be proven that the government knew you were positive for the virus before they arrested you for going into public and that you were reckless by not practicing social-distancing or wearing a mask.

Illinoisans may have another right regarding the pandemic. That is the right to just compensation for a government “taking.” The Fifth Amendment to the U.S. Constitution provides that the government will not take anyone’s property without just compensation. This Amendment is incorporated to the states by the Fourteenth Amendment. The same clause can be found in Section 15 of Article 1 of the Illinois Constitution. U.S. Supreme Court precedent states that one method for the government to take something is to deny it all economically viable use.

Many businesses have been denied all economic viability. Such a large scale taking and compensation is unprecedented, but it does appear that there is a justifiable argument for relief.

The Illinois General Assembly may be back in session sometime next month. Whether they act to check the governor’s power remains to be seen, but it is not likely since both branches are controlled by the same political party. As more Illinoisans struggle under the governor’s orders and local ordinances, more lawsuits will be filed, and the courts may be the only arbiter of the extent of the government’s power during this pandemic.

Austin Scott Davies is an attorney, former prosecutor, and an active member of the Winnebago County Republican Party. He is also a board member for Concerned Citizens for America, a local chapter of Illinois Family Institute.

The information contained in this article is not legal advice and is for general information purposes only. Do not act or refrain from acting on the basis of this information. Readers should contact an attorney to obtain advice with respect to any legal matter.