From Illinois Leaks, reprinted with permission:
Illinois Governor’s emergency powers are limited to 30 days according to Attorney General Opinions Bureau
Illinois (ECWd) – While Illinois Governor Pritzker takes to the talk shows and his daily press briefings, he wastes no time attacking anyone that dare question his authority, whether in a court through the proper judicial processor or on the streets by citizens exercising their Constitutional rights.
Most recently, threats of withholding federal funds to any county that dare defy his edicts.
When will this reign of power stop?
According to the written legal opinion from the Senior Assistant Attorney General Michael Luke, Chief, Opinions Bureau, it already ended!
“Further, the emergency powers granted to the Governor cannot be extended beyond the 30 day period permitted in subsection 7(a) of the Illinois Emergency Management Act without legislative approval.”
Considering the very legal office that represents the Governor has such a written legal opinion on the books since 2001, coupled with the fact it was also recognized by the Chief Counsel and Chief Privacy Officer for the Illinois Department of Public Health in their Legal Team Handbook (see page 5, 10, and 85), it appears the Governor’s threats of further harm to the economy by withholding federal funds carries little weight as his powers over the people have ended if the established and accepted legal opinion are followed. We note that we have not found any legal opinion from the Attorney General that contradicts the established opinion since 2001.
We first raised the concerns over the Governor’s Executive Order powers and there limits found in the statute in our March 16, 2020 article.
“Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers“
We have continued to point to statutory construction as the foundation for applying the meaning of our laws. What did the Attorney Generals written legal opinion say?
“In construing a statute, all of its terms and provisions are to be read and considered as a whole to determine not only its intent and meaning but also the method of accomplishing the object to be attained. (Pascal v. Lyons (1958), 15 Ill. 2d 41, 45.) An attempt should be made to give meaning to the expressed intent of the legislature and to avoid a construction that would render any portion of the statute meaningless or void. People v. Tarlton (1982), 91 Ill. 2d 1, 5.“
“A construction of its provisions to allow the Governor to extend the 30 days period would render the limitation clause meaningless. A more reasonable construction, taking into consideration the other provisions of the Act, is that the Governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.”
What is most interesting with this newly uncovered legal opinion from the Attorney General Opinions Bureau is how it conflicts with the legal argument the Attorney General raised in court on this very subject in the Darren Bailey Temporary Restraining Order case. We find it troubling to see the Governor’s Attorney make no mention of this legal opinion in his oral presentation or written legal briefs. Not only were these facts not disclosed to the judge in that hearing, but questions raised by the Governors attorney in support of the absurd notion the Governor’s powers basically never end, are actually answered in this very opinion written to the Director of Illinois Emergency management in 2001.
Governor’s legal counsel from AG Office – “But then what? What if the general assembly isn’t in a position to convene?” (see page 48 line 15)
From the AG opinion – “Even though many disaster situations could require remediation for a period long in excess of 30 days, normal governmental processes, including legislative action, can be set in motion to meet such needs within 30 days of the occurrence.”
In one argument, the Attorney General argues to the court there are legal consequences to the history of past governors’ actions with executive orders and proclamations as well as the legislature not coming in and saying timeout, you can’t do that. (Page 49 line 16).
Why didn’t the legislature come in and say you can’t do that is one question, but the better question is why didn’t the Attorney General advise the Governor of the established determination on the very point? Is it because doing so would limit his powers and he was not about to have that happen?
As to why the legislature did not come in and say you can’t do that is easily answered. There was no need for such legislative action considering an established and unopposed written legal opinion provided to the Director of the Illinois Emergency Management Agency already established the limits of those powers and did so long before either of the Governors mentioned in court were even in the office of Governor. Additionally, this very opinion was included in the official TOPPOFF2 Legal Team Handbook and appears to have full acceptance of the established limits placed on the Governor.
We do not believe the Governor’s emergency powers are valid beyond the 30 day period just as the law states. In support of that is current law, Attorney General Opinion, history, legal acceptance by a Chief Legal Counsel for IDPH, judges statements, Appellate Prosecutors Office Deputy Directors legal opinion, National Governors Association, and May 11, 2020, Executive Summary on Governor powers.
30 Day limit to powers
- Current Law– Emergency Management Act – “Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers”
- Attorney General Legal Opinion -“it was determined that the emergency powers of the Governor cannot be extended beyond the 30 day period permitted in subsection 7(a)(1) of the IEMA Act without legislative approval”
- History – Civil Defense Act 1951 – “he shall have and may exercise for a period not to exceed thirty days the following emergency powers”
- Judges Statements – “How about because he knew he only had a 30-day limit?” — “There’s also nothing in the act that says you get to keep doing this every 30 days whenever you want. That ain’t in there either, is it?”
- Appellate Prosecutor Memorandum – “Upon such proclamation [of a disaster], the Governor shall have and may exercise for a period not to exceed 30 days following emergency powers”
- Official Opinions In Illinois Legal Handbook – ” it was determined that the emergency powers of the Governor cannot be extended beyond the 30 day period permitted in subsection 7(a)(1) of the IEMA Act without legislative approval.”
- National Governors Association – “The National Governors Association notes that ten states require that emergency declarations expire in less than thirty days, sixteen states do not permit
emergency declarations to exceed 30 days, and just five states allow emergency declarations to last sixty days or more.”
- May 11, 2020, Executive Summary – “A reasonable construction of an ambiguous statute by the agency charged with that statute’s enforcement, if contemporaneous, consistent, long-continued, and in concurrence with legislative acquiescence, creates a presumption of correctness that is only slightly less persuasive than a judicial construction of the same act” People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 46, 779 N.E.2d 875, 881 (2002). – (There is NOTHING ambiguous about the current 30-day limitation)
Based on the overwhelming history of the 30-day limitations, which included our own Illinois Attorney General advising the Governor’s emergency powers cannot be extended beyond the 30 day period without legislative approval, we stand firm on what we raised months ago, the Governor’s emergency powers are in fact limited.
We anticipate the now exposed Attorney General Opinion is going to find its way into every legal brief filed against the Governor for his clear overreach and violation of people’s rights.
A special thanks to the law firm of Silver Lake Group ltd. as it was their legal team that discovered the TOPOFF2 document that referenced the AG opinion. It appears we are the first to get our hands on the actual opinion which can be downloaded at this link or viewed below. We encourage everyone to read the legal opinion to better understand the magnitude of its words.