Illinois Governor Pritzker – Do emergency powers trump due process?

Illinois (ECWd) –

As the news of the Illinois Governor closing all dine-in restaurants and bars spreads across the state, our phones are ringing off the wall.  The question everyone is asking is, can he do that?

The answer to that is complex and we suspect there will be lawsuits filed in our courts to identify the true answer.

The Governor was granted certain powers under 20 ICLS 3305/7 which we know is going to shock people when they actually realize what powers the legislature thinks they can give a Governor during a Disaster.

For example:

• 4) “On behalf of this State to take possession of, and to acquire full title or a lesser specified interest in, any personal property…”
• 5) “When required by the exigencies of the disaster, to sell, lend, rent, give, or distribute all or any part of property so or otherwise acquired to the inhabitants of this State..”
• (9) “To suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.“
• (12) Control, restrict, and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods, or services; and perform and exercise any other functions, powers, and duties as may be necessary to promote and secure the safety and protection of the civilian population.

We encourage everyone to read the full list of powers since most had no idea such power was ever granted.

What appears to be lost within those powers are key elements of our laws, specifically our Federal and State Constitutional protections of due process.

Our 5th Amendment of the US Constitution protects us from being deprived of life, liberty, or property, without due process of law.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Our Illinois State Constitution, Article 1 Section 2 also protects us from being deprived of life, liberty, or property without due process.

SECTION 2. DUE PROCESS AND EQUAL PROTECTION
“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”

Where is the due process for the restaurant and bar owners who have been ordered to close?  

It appears such action by the Governor may well be trampling those people’s due process rights, both at the State and Federal levels.

Considering the COVID-19 virus is a public health matter we looked at the Illinois Department of Public Health statutory powers and found some very interesting language in their powers.

20 ILCS 2305/2 -(c) Except as provided in this Section, no person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction. 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. 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. To obtain a court order, the Department, by clear and convincing evidence, must prove 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. For purposes of this subsection, in determining whether no less restrictive alternative exists, the court shall consider evidence showing that, under the circumstances presented by the case in which an order is sought, quarantine or isolation is the measure provided for in a rule of the Department or in guidelines issued by the Centers for Disease Control and Prevention or the World Health Organization. Persons who are or are about to be ordered to be isolated or quarantined and owners of places that are or are about to be closed and made off limits to the public shall have the right to counsel. If a person or owner is indigent, the court shall appoint counsel for that person or owner. Persons who are ordered to be isolated or quarantined or who are owners of places that are ordered to be closed and made off limits to the public, shall be given a written notice of such order. The written notice shall additionally include the following: (1) notice of the right to counsel; (2) notice that if the person or owner is indigent, the court will appoint counsel for that person or owner; (3) notice of the reason for the order for isolation, quarantine, or closure; (4) notice of whether the order is an immediate order, and if so, the time frame for the Department to seek consent or to file a petition requesting a court order as set out in this subsection; and (5) notice of the anticipated duration of the isolation, quarantine, or closure.

It appears there are some very clear guidelines for IDPH that at least points to some due process, unlike the powers listed in the Emergency Management Act.

While the Governor ignores people’s due process rights, his actions appear to have created an unnecessary panic as the store shelves are being stripped of the most basic essentials from the fear created by his closure of schools, restaurants, and bars.  While the Governor complained of large groups of people gathered at O’hare airport, he appears to have overlooked the downside to his actions.

He claims social distancing is the paramount strategy for minimizing the spread of COVID-19. His verbal orders, however, have brought people together statewide as they flock to grocery stores across the state. Rather than bring calm it appears to have created fear and concern and empty store shelves that only fuel panic.

While we do understand the need to take appropriate safety measures to minimize the spread of COVID-19, we believe the closure of people’s businesses without due process is going to be problematic for the Governor and our legislature who appeared to have ignored the most basic of our rights, due process.

We question the validity of a verbal order vs. a signed Executive Order, which so far has not been issued.

We will update this article as needed.

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