Illinois (ECWd) -
When any question of the legitimacy of powers comes into question you will find that the courts, more often than not, have spoken on matters either directly on point or very similar to the issue in question. When there is no such case law they default to the basic statutory construction rule, meaning the plain language of the law is to be applied. Along those lines, courts have said, it can be assumed the legislature did not intend to create an absurdity when they passed the legislation.
What has the Illinois Supreme Court said on the point of isolation/quarantine during a health emergency?
"The constitutional guarantees that no person shall be deprived of life, liberty, or property without due process of law, and that no state shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of a state may lawfully be asserted in this any more than in any other connection." (Illinois Supreme Court)
As we stated in our March 15, 2020, no matter the situations, there are due process rights that can not be trampled. However, in the current declared emergency, State Law has delegated certain powers during this emergency to the Illinois Department of Public Health, as we explained in that article.
The Illinois Supreme Court went on to state some very important things that we believe the Governor and whoever is advising him should pay attention to.
"The health authorities cannot interfere with the liberties of a citizen until the emergency actually exists"
While many will try to claim the emergency exists because we don't know who may be infectious, the courts, and our laws have already addressed that point.
"A person cannot be quarantined upon mere suspicion that they may have a contagious and infectious disease, but the health authorities must have reliable information on which they have reasonable ground to believe that the public health by permitting the person to be at large." (Illinois Supreme Court)
"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." Department of Public Health Act 2(c)
The Supreme Court even went so far to make it crystal clear, just as the State has confirmed in the Illinois Influenza Pandemic Plan, it is IDPH and the Local Health Departments that have the power to close businesses and isolate and or quarantine people. Those powers were never given to the Governor in the Emergency Management Act.
"In emergencies of this character, it is indispensable to the preservation of public health that some administrative body should be clothed with the authority to make adequate rules which have the force of law and to put these rules and regulations into effect promptly. Under these general powers the state department of health has authority to isolate persons who are throwing off disease germs and are thereby endangering the public health." (Illinois Supreme Court)
The Illinois Supreme Court, in the same case linked above, went so far as to say the administration of public health should not be vested in an individual, even one trained in the science of public health. That being the case, it is clear by all the legislation, case law, and plans currently in place, the Governor has usurped the powers of IDPH and local public health departments in our opinion, which is based on everything we are providing in this article and past articles. We also contend he is invoking powers never given to him.
As this current COVID-19 matter applies to the Emergency Management Act, there is no case-law as it has never been challenged in court, probably because no one has ever abused it as we are seeing now. Regardless of whether people agree or not on the issue of abuse, it is absurd to think the legislature intended to provide any Governor the power to declare a disaster and exercise those powers beyond 30 days as outlined in the law and pointed out in our March 18th, 2020, article.
"Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers." (EMA Act paragraph 7)
Shall have and may exercise for a period not to exceed 30 days is pretty clear.
In the most recent court case currently being litigated in Clay County, Judge McHaney summed it up best.
"The issue before me now is whether the Governor can ignore the Illinois and United States Constitutions for more than 30 days. This court rules that the answer to that question is a resounding no." (Transcript page 66)
His decision, in part, was based on the very information we outlined above which were all included in the court filings, minus our articles.
While we fully understand the health concerns this new virus brings to this world, the path we must follow is one established and supported by law and applicable to every citizen, including the Governor. We have written numerous articles about how public officials break the law and then change the law after being exposed or even charged with a crime. We suspect before this is over, those breaking the current laws in our opinion will take steps to change the law as it appears to be how things work in Illinois.
A copy of the Illinois Supreme Court case linked above can be viewed below or downloaded at this link.
[documentcloud url="http://www.documentcloud.org/documents/6881294-PEOPLE-Ex-Rel-BARMORE.html" responsive=true]
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