Illinois Governor Pritzker – The king has no clothes

Illinois (ECWd) –

It’s time to once again expose why we believe many parts of the numerous Executive Orders the Governor has issued are outside his authority.

Statutory construction is the foundation for our position, and simply reading the powers given supports the position the Governor invoked powers never given.

The specific powers granted to the Governor are found in section 7, specifically, we need to look at paragraph (1) :

(1) To suspend the provisions of any regulatory statute prescribing procedures for conduct of State business, or the orders, rules and regulations of any State agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder or delay necessary action, including emergency purchases, by the Illinois Emergency Management Agency, in coping with the disaster.

The only power given to the Illinois Governor regarding statutes is found in the above provision and it is very clear those powers are limited to those statutes that are regulatory statutes that prescribe procedures for the conduct of State Business, orders, rules, and regulations of State agencies but only if strick compliance their provisions would in any way prevent, hinder, or delay necessary action to include emergency purchases, by IEMA in coping with the disaster.

The question that must be asked, does the statutes the Governor is suspending in his Executive Orders fit the very narrow limitations found in paragraph 7(1) of his powers granted during an emergency.  The other key question that must be asked, how do the statutes being suspended hinder or delay necessary action by the IEMA in coping with the disaster?

States Statutes and regulations the Governor has suspended through Executive Orders:

• March 12, 2020 – Executive Order #3 – Cannabis Regulation and Tax Act, 410 ILCS 705 – deadline for submission of craft grower license applications is extended to March 30, 2020; the deadline for submission of infuser license applications is extended to March 30, 2020; the deadline for submission of transporter license applications is extended to March 30, 2020

Can anyone explain how deadlines for submissions for Cannabis-related matters would hinder or delay necessary action by the IEMA in coping with the disaster?

• March 13, 2020 – Executive Order #4 – Beginning March 13, 2020, the two-year continuous service requirement for state employees to receive advancement of sick leave pursuant to Title 80, Section 303.110 of the Illinois Administrative Code Personnel Rules, is suspended during the duration of the Gubernational Disaster Proclamation.

Can anyone explain how sick leave rules hinder or delay necessary action by the IEMA in coping with the disaster?

• March 13, 2020 -Executive Order #5 – The definition of “chronic absence” pursuant to 105 ILCS 5/26-18 is suspended: School board approval, hearing obligations, teacher and staff notifications for e-learning suspended.  10 ILCS 5/10-20.56(b)(c)and (d)10
  

Can anyone explain how changing definitions in our laws, suspending board approvals or suspending public hearings and applicable notices to teachers and staff would hinder or delay necessary action by the IEMA in coping with the disaster? We note that the powers given say nothing about changing definitions in our laws.

• March 16, 2020 – Executive Order #7 – Liquor Control Act of 1934, 235 ILCS 5 -suspend service for and may not permit on-premises consumption: suspend one-week waiting period for unemployment claims 820 ILCS 405/500(D); suspend portions of the Open Meetings Act 5 ILCS 120/2.01 and 5 ILCS 120/7
  

We covered the limitations of this EO in these articles here and here, that included supporting documentation from the Liquor Control Commission.  Additionally, the suspension of portions of the Open Meetings Act has nothing to do with the IEMA exercising their powers nor does it hinder or delay necessary action by the IEMA in coping with the disaster.

• March 17, 2020 – Executive Order #8 – suspend expiration of vehicle registrations, driver’s licenses, permits, and parking decals –625 ILCS 5 ; suspend provisions of the Illinois Identification Card Act, 15 ILCS 335; suspend hearings conducted by the Secretary of State pursuant to the Illinois Vehicle Code, 625 ILCS 5/2-118, and the Secretary of State Merit Employment Code, 15 ILCS 310/9; suspend provisions of Article 4A of the Illinois Governmental Ethics Act, 5 ILCS 420/4A

Can anyone explain how any of these statutes, especially the Illinois Government Ethics Act, hinder or delay necessary action by the IEMA in coping with the disaster?

• March 19, 2020 – Executive Order #9 – Creates new definitions for legally defined terms in 215 ILCS 5; Suspend statutory limitations pursuant to Section 5 of Illinois’ Mental Health and Developmental Disabilities Confidentiality Act- disclosure prohibitions and written consent provisions 740 ILCS 110.  Suspend license reinstatement requirements for Medical Practice, 225 ILCS 60/21,

Again, nothing in the law provides the Governor with the power to create new definitions for established laws and it should concern us all that license reinstatement requirements for Medical Practice are being suspended. We welcome an explanation of how these matters hinder or delay necessary action by the IEMA in coping with the disaster

• March 20, 2020 – Executive Order #10  – Believed to be the most controversial order of those issued, now contains a disclaimer not found in the others.  “If any provision of this Executive Order or its application to any person or circumstance is held invalid by any court of competent jurisdiction, this invalidity does not affect any other provision or application of this Executive Order, which can be given effect without the invalid provision or application. To achieve this purpose, the provisions of this Executive Order are declared to be severable.”

Instructs all state, county, and local law enforcement officers in the State of Illinois are instructed to cease enforcement of orders of eviction for residential premises for the duration of the Gubernatorial Disaster Proclamation and cites 20 ILCS 3305/7(2), (8), and (10) as the authority.

Nothing in those three provisions provides for such power.  We suspect the reason for the disclaimer in this EO is because there are numerous orders that clearly could be challenged as unconstitutional and or at a minimum ruled illegal as they are outside the scope of the powers given and they know it.  Enforcement of eviction notices does not hinder or delay necessary action by the IEMA in coping with the disaster.

• Mach 23, 2020 – Executive Order #11 – Suspends licensing requirements for daycare homes pursuant to Section 4 of the Child Care Act, 225 ILCS 10/4 – Suspend requirement of no less than 14 days notice to State’s Attorney prior to releasing inmates under 730 ILCS 5/3-6-3(a)(5).

Can anyone explain how licensing requirements for daycare homes or inmate release hinder or delay necessary action by the IEMA in coping with the disaster?

• March 24, 2020 – Executive Order #12 – suspends provisions in the Healthcare Worker Background Check Act, 225 ILCS 46/33(g) that prohibit an individual from being hired to work as a certified nursing assistant if they have been inactive on the Health Care Worker Registry are suspended if the individual;  Suspends the provision in the Health Care Worker Background Check Act, 225 ILCS 46/33(l) limiting conditional employment of certified nursing assistants to 3 months pending the results of a fingerprint-based criminal history record check is suspended; Suspends Department of Juvenile Justice notification requirements to the State’s Attorneys prior to a youths target release date 730 ILCS 5/3-2.5-85.

Not sure how background checks of our health workers hinder or delay necessary action by the IEMA in coping with the disaster, let alone notifying proper authorities about releasing criminal juveniles.

• March 26, 2020 – Executive Order #13 – Suspends all admissions to the Illinois Department of Corrections from all Illinois county jails.

Can anyone explain how those to be transferred from county jail to IDOC would hinder or delay necessary action by the IEMA in coping with the disaster?

• March 26, 2020 – Executive Order #14 – any act of witnessing required by Illinois law may be completed remotely by via two-way audio-video communication 5 ILCS 312/6-102.

Can anyone explain how notary laws hinder or delay necessary action by the IEMA in coping with the disaster? Where in the Governor’s Powers does it permit him to create new provisions within current law?

• March 26, 2020 – Executive Order #15 – Suspends the prohibition of bids for construction purposes from being communicated, accepted, or opened electronically 105 ILCS 5/10-20.21.

Can anyone explain how suspending the requirements for bids to be open in a public meeting hinders or delay necessary action by the IEMA in coping with the disaster?

• March 26, 2020 – Executive Order #16 – Suspends provisions of the Uniform Commercial Code, 810 ILCS 5/9-609, regarding the possession or usability of a vehicle, and the provisions of the Illinois Vehicle Code, 625 ILCS 5/3-114, regarding the repossession of vehicles; Creates new law regarding any training required pursuant to the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004 may be completed through online instruction.

Who knew the usability of a vehicle or its repossession hinders or delays necessary action by the IEMA in coping with the disaster?  Note the private detective related order is not a suspension of any statute but rather a creation of a new law, a power not given to the Governor in the EM Act.

• March 26, 2020 – Executive Order #17– Once again extends deadlines in the Cannabis Regulation and Tax Act, 410 ILCS 705
  

• April 1, 2020 – Executive Order #18 – Once again extends deadlines in the Cannabis Regulation and Tax Act, 410 ILCS 705

Can anyone explain how deadlines for submissions for Cannabis-related matters would hinder or delay necessary action by the IEMA in coping with the disaster?  Considering there are three such deadline extensions, it is clear it has nothing to do with the IEMA coping with the disaster, making the order invalid in our opinion.

• March 26, 2020 – Executive Order #20 – Suspends relevant minimum security requirements established by the Department of Central Management Services for applications for public assistance and suspends the requirement to provide an audio recording of their verbal attestation during a telephone application for public assistance benefits; Specifically, the requirement of the Electronic Commerce Security Act at 5 ILCS 175/25-101(c) that all rules adopted by a State agency shall include relevant minimum security requirements established by the Department of Central Management Services.

So does the Governor want us to believe key requirements that are in place to prevent fraud in public assistance programs hinder or delay necessary action by the IEMA in coping with the disaster?

• March 26, 2020 – Executive Order #21 – inmate furloughs not to exceed 14 days is suspended 730 ILCS 5/3-11-1
  

While the public is being told to shelter in place, the Governor releases criminals that are already sheltered in place.  How are the current laws for furloughs hindering or delaying necessary action by the IEMA in coping with the disaster?

• April 7, 2020 – Executive Order #22 – Suspended the Annual Township Meeting requirements – 60 ILCS 1/30-5(a) and 30-5(b); Suspends funeral director and embalmer intern licensure 225 ILCS 41/10-35 stating that no license of a funeral director and embalmer intern shall be renewed more than twice, is suspended; Suspends requiring that the transportation of deceased human remains to a cemetery, crematory or other place of final disposition shall be under the immediate direct supervision of a licensee 225 ILCS 41/1-15 and 225 ILCS 41/1-20; Suspends the definition of “child” under Section 2.01 of the Child Care Act of 1969, 225 ILCS 10/2.01; Suspends the time frame that designated students, applicants, and employees must have their fingerprints collected electronically and transmitted to the Illinois Department of State Police as part of the background check obligations 225 ILCS 46/33(e);

Suspending the Annual Township Meeting effectively stripped people of their right to vote as outlined in the Township Code. The Township Code has nothing to do with IEMA coping with the disaster nor would the annual township meeting hinder or delay necessary action by the IEMA in coping with the disaster in any way. How is the suspension of license requirements related to the deceased, funeral directors and embalmer interns as well as transportation of the deceased a matter that involves IEMA coping with the disaster?  And once again, background checks are being suspended even though such requirements do not hinder or delay necessary action by the IEMA in coping with the disaster.

• April 7, 2020 – Executive Order #24 – Suspends sections 104-17(b), 104-23(b)(3), 104-25(b), and 104-26(c)(2) of the Illinois Code of Criminal Procedure of 1963, as well as Sections 5-2-4(a) of the Illinois Unified Code of Corrections; Suspends portions of “Employee as perpetrator of abuse” 405 ILCS 5/3-210.

Why on earth would any portion of a statute dealing with an employee as a perpetrator of abuse be suspended?  Why are laws related to mental health issues in the code of criminal procedures being suspended?  How do those laws hinder or delay necessary action by the IEMA in coping with the disaster?

• April 7, 2020 – Executive Order #25 – Suspends 5/12-705, 5/12-805, and 5/2-1402 of the Illinois Code of Civil Procedure, 735 ILCS 5/12-705, 735 ILCS 5/12-805, and 735 ILCS 5/2-1402, that permit the service of a garnishment summons, wage deduction summons, or a citation to discover assets on a consumer debtor or consumer garnishee.

While we understand the financial hardship created on many during this disaster, those provisions in no way hinder or delay necessary action by the IEMA in coping with the disaster.

• April 7, 2020 – Executive Order #26 – The IDPH shall exercise discretion regarding enforcement of all provisions of the Hospital Licensing Act, 210 ILCS 85/1 et seq.; the Emergency Medical Services (EMS) Systems Act, 210 ILCS 50/1 et seq.; the Department of Public Health Powers and Duties Law, 20 ILCS 2310/2310-1 et seq.; the Illinois Adverse Health Care Events Reporting Law of 2005, 410 ILCS 522/10-1; Suspends all provisions set forth in the Hospital Report Card Act, 210 ILCS 86/1.
  

While the law provided narrow limitations for the Governor to suspend applicable statutes, nowhere does it provide him the power to direct a State Agency to exercise discretion for the laws those agencies are bound by.  Considering the Hospital Report Card Act states “The General Assembly finds that Illinois consumers have a right to access information about the quality of health care provided in Illinois hospitals in order to make better decisions about their choice of health care provider”, we find suspending such a law a violation of the consumer’s rights to access this information. Nevermind the fact the obligations outlined in that act do not hinder or delay necessary action by the IEMA in coping with the disaster.

We fully understand the intent behind “some” of the Executive Orders, it is clear the Governor has exercised powers not found in the Illinois Emergency Act in our opinion and the opinion of numerous attorney’s in this state.  The proper way to expand on such powers would have been to have the legislature address such needed changes and pass them through the General Assembly.

We suspect when this disaster is behind us we will see drastic changes to the Illinois Emergency Management Act as it is clear there are numerous amendments that are needed to properly deal with an emergency like the one currently taking place. We also suspect we will see numerous lawsuits against the Governor when the disaster is behind us.

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