From McHenry County State’s Attorney Patrick Kenneally in support of Winnebago County State Rep. John Cabello’s case against Governor JB Pritzker:
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE OF THE MCHENRY COUNTY STATE’S ATTORNEY’S OFFICE
The McHenry County State’s Attorney’s Office, by and through the McHenry County State’s Attorney, Patrick D. Kenneally, pursuant to this Court’s inherent authority, hereby moves for leave to file its Brief Amici Curiae and For Consideration Thereof.
Introduction and Statement of Interest
Although the Federal Rules of Civil Procedure provide no rule concerning the filing of amicus briefs, “‘[d]istrict courts have inherent authority to appoint or deny amici which is derived from Rule 29 of the Federal Rules of Appellate Procedure.’” Youming Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 136 (D. D.C. 2008), quoting Smith v. Chrysler Fin. Co., L.L.C., 2003 U.S.Dist. LEXIS 1798 at 21-22 (D. N.J. Jan. 15, 2003).
In times of emergency, a tension of “tragic dimensions” emerges between responding to the crisis and constitutional values. FN1
To be sure, the State must have recourse to special or amplified powers in these times, which are most sensibly concentrated in the hands of the Executive, to effectively protect the lives and health of residents.
After all, our Constitution is not a “suicide pact.” FN2
However, even in times of emergency, Illinois remains a government of limited powers and a government of laws, not men.
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FN1 Pnina Lahave, A Barrel Without Hoops: The impact of Counterterrorism on Israel’s Legal Culture, 10 CARDOZO L. REV. 529, 531 (1998).
FN2 Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
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Illinois courts, accordingly, cannot interpret laws during these times in a manner that is inattentive to the ideals of democracy and individual rights or unduly deferential to state actors trumpeting their own pure motives and the exigency of the grim danger faced.
A few points of clarification prior to setting forth our position.
The McHenry County State’s Attorney offers no position on the wisdom or necessity of a “stay-at home” or “business-closure” order in principle or other extraordinary measures to limit the spread of this loathsome disease and the death and human suffering attendant to its spread.
At the time of this writing, more than 971 McHenry County residents have been infected with COVID-19 and 53 have tragically lost their lives despite the selfless efforts of medical providers.
Neither does this brief attempt to allege that the Governor has in any way acted in bad-faith or is motivated by an impulse other than to do what is best to protect health, save lives, and shepherd Illinois through this desperate time.
The McHenry County State’s Attorney’s Office extends its gratitude to the Governor and all members of his team for their service.
The job of a state’s attorney is to faithfully enforce all the laws of Illinois, not subjectively determine which laws, whether executive orders or lower class drug crimes, are worthy of enforcement.
As such and at this time, we intend to enforce EO2020-10, EO-2020-18, and EO-2020-32 (hereinafter EOs) unless otherwise directed by a court.
At the same time, the McHenry State’s Attorney’s Office believes that it has a concomitant duty to ensure that the laws it enforces, especially those laws that could result in loss of liberty, have been legitimately interpreted and are constitutional and, if we suspect not, bring our misgivings to the attention of the court.
To that end, in this Brief, we question the manner in which the Executive has interpreted the Illinois Emergency Management Agency Act (hereinafter the Act). FN3
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FN3 20 ILCS 3305/et al.
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We are particularly troubled with the anemic rationalization the Attorney General provided in Bailey v. Pritzker FN4 for the Governor’s continued appropriation of “emergency powers.”
We question further the constitutionality of the EOs on
- free assembly,
- free exercise, and
- freedom of movement
A. The Act Should Be Interpreted So That the Governor Is Limited to One 30-Day Disaster Proclamation.
The cardinal rule of statutory construction, and the one which all other cannons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature.” FN5
In undertaking that responsibility, the court must presume that when the legislature enacted a law, it did not intend to produce absurd, inconvenient or unjust results FN6
“Public policy retains a place of great importance in the process of statutory interpretation, and the tendency of the courts has always been to favor an interpretation which is consistent with public policy.” FN7
“In fact it may be safely asserted that the basis of all interpretive rules in regard to strict and liberal interpretations are founded upon public policy in one form or another.” FN8
Without question, the ongoing pandemic constitutes a “disaster,” specifically a “public health emergency” by the terms of 20 ILCS 3305/4. While the Attorney General rightly points out that“[t]he the Act does not limit the number of proclamations that the Governor may issue for a single disaster,” FN9 this fact is not decisive.
The adverse position that the “plain language” of the Act does not expressly authorize more than one proclamation has the exact same persuasive force, if not more.
This is especially true in view of the ancient rule of statutory construction, “expression unius est exclusion alterius.”
Accordingly, because a 30-day limitation is specifically included in the Act coupled with the absence of any additional language allowing for successive declarations, the Act should be interpreted by the courts to mean that the Governor is limited to only one 30-day period before additional action by the General Assembly is needed.
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FN4 Brief for Defendant, Bailey v. Pritzker, 2020 IL App (5th) 200148-U.
FN5 Country Mutual Insurance Co. v. Teachers Insurance Co., 1995 Ill 2d 322, 330 (2001).
FN6 Sun Choi v. Industrial Comm’n, 182 Ill 2d 387, 396 (1998).
FN7 Wilbon v. D.F. Bast Co., 48 Ill. App. 3d 98, 102 (1st Dist 1977).
FN9 Supra note 4, at 4.
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In an attempt to allay the unease at the prospect of the Governor controlling the period by which he is vested with sweeping powers, the Attorney General assures that “[t]he Governor has not purported to exercise emergency powers indefinitely…”FN10
Statutory construction, however, is not dependent on the Governor’s current intent to practice restraint.
The Attorney General’s position is essentially that the court should set the precedent that an Illinois governor may – with
- no check,
- identifiable criteria,
- formal deliberation, or
- process –
unilaterally consider and evaluate the reports and data germane to the question of whether a disaster exists and single-handedly determine the necessity for a proclamation indefinitely.
While we appreciate the fact that a disaster must be “declared” every 30-days, such a declaration, which requires merely the wave of a pen and rests solely on the conscience and judgment of one individual, is little more than a formality.
The Attorney General’s position that this “re-declaration” provides some type of effective constraint on Governor’s power is uniquely unpersuasive.
The Attorney General argues further, “[b]ut if the factual circumstances change – as every Illinoisan hopes they will – the Governor may no longer be able to reasonably conclude that a disaster still exists” and, only then, would the Governor’s “emergency powers…expire 30 days after the issuance of the most recent disaster proclamation.”FN11
Respectfully, in McHenry County, we cherish our constitutional rights and proper restraints on an outsized Executive and expect that our Governor is evaluating the “factual circumstances” underling his extraordinary arrogation of power pursuant to the Act on a daily basis.
Further, we expect that the Governor would fully intend to revoke said proclamation the moment circumstances dictate, not at the expiration of 30- days.
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FN10 Id. at 10
FN11 Id. at 10.
The Attorney General’s position is fraught with an inherent susceptibility to abuse and potential to unnecessarily prolong emergency periods, which are times posing the greatest risk that our human rights and civil liberties will be trenched upon.
As lamented by Justice Brennan:
There is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties have received in the United States during times of war and perceived threats to its national security…After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But is has proven unable to prevent itself from repeating the error when the next crisis came along. FN12
The risk of the response here being overwrought is especially true as there appears to be a significant potential that COVID-19 will become normative.
Though a dreaded prospect, a number of authoritative voices have opined that COVID-19 will not be stamped out after the curve is “flattened” or even after a sharp descent, FN13 but only after a vaccine is developed and made available to the masses. FN14
As such, COVID-19 may very well continue to pose a substantial risk until a vaccine is developed, which, at the earliest, is projected to take between 18 and 24 months.
Indeed, EO-2020-10 was issued at a time when there were only 11 known cases in all of Illinois. FN15
The logic set forth in “whereas” clauses to all the EO’s proceeds as follows:
1) COVID-19 is highly infectious;
2) if it spreads, people will suffer and die;
3) we can limit its spread by the measures set out in the EOs; and
4) the measures in the EOs are justified.
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FN12 William J. Brennan, Jr., The Quest to Develop a Jurisprudence of Civil Liberties in Times of Crisis, 18 ISR. Y.B. HUM. RTS., 11, 11 (1988
FN13 Coronavirus May Last Two Years, Study Warns. And It’s Second Wave Could Be Worse, Dennis Wagner, USA TODAY, (May 1, 2020), available at https://www.usatoday.com/story/news/health/2020/05/01/coronavirus-wont-end-2-years-worsesecond-wave-study-warns/3064708001/.
FN14 A Coronavirus Vaccine Cannot Be Reasonably Expected Until The End of 2021, Professor Says, Audrey Cher, CNBC (May 4, 2020), available at https://www.cnbc.com/2020/05/04/a-coronavirus-vaccine-wont-beready-until-the-end-of-2021-professor-says.html.
FN15 What We Know About the 4 New Coronavirus Cases in Illinois, NBC CHICAGO (March 10, 2020), available at https://www.nbcchicago.com/news/local/what-we-know-about-the-4-new-coronavirus-cases-inillinois/2233910/.
This logic is unlikely to change come on June 1, 2020, December 1, 2020, or even June 1, 2021.
It would be no small affront, absurdity, or injustice to our constitutional form of government to interpret the Act to permit over 13 million Illinoisans to essentially live under the reign and decision-making of one individual for that period preceding the availability of a vaccine. FN16
B. Even if the Governor is authorized to issue successive disaster proclamations, he is without statutory authority to order residents to “stay-at-home or place of residence” or require “non-essential businesses to cease business and operations.”
In an effort to defend the “stay-at-home” and “business-closing” directives in the EOs, the Attorney General first identifies section 3305/7(2) of the Act,17 which provides that the Governor may “use available resources of the State government.”
While there is obvious wisdom in permitting the Governor in times of emergency to use the available resources of the State government, the lives and operations of businesses in Illinois are not “State resources” to be suspended or shuttered until further notice.
Second, the Attorney General seeks allowance under section 3305/7(8), 18 providing that the Governor may “control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.”
The plain language of this section clearly presumes a finite affected area, as is most common with disaster declarations involving floods, tornadoes, or localized social unrest.
The Attorney General’s interpretation would broaden executive powers to breathtaking proportions such that the Governor can control the “movement” of every person in the State of Illinois.
Under such a construction, it is conceivable that a governor, after a self-consultation, could displace everyone in Illinois from their homes and families and order them to reside in internment camps.
Before we are accused of hyperbole, one might consider whether anyone could have imagined on Ash Wednesday that the State would have essentially criminalized the celebration of Easter.
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FN16 Supra note 14.
FN17 Supra note 4.
That said, we know that this Governor has no intentions of interning any Illinois residents.
However, our laws should not be interpreted nor precedents fixed to abide so readily the injustices and abuses of future leaders.
Again, this is especially true when interpreting statutes empowering government officials during times of emergencies, when the impulse to disregard constitutional freedoms is at a fever pitch and the effectiveness of checks and balances at rock bottom.
In its final effort to justify the EOs, the Attorney General continues that even if the Governor is acting without statutory authority, he has inherent, constitutional powers as Governor to issue the “stay-at-home” and “business closing” directives. FN19
The Attorney General cites Justice Story for the proposition that
“[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive,…to act on a sudden emergency…by summary measures, which are not found in the text of the laws.”
The Attorney General seems, however, to ignore the fact that Justice Story was referring to “sudden” emergencies, of which COVID-19 was not and certainly is not now, nearly two-months after the disaster proclamation.
Nevertheless, this chilling argument, raising the specter of a “constitutional crisis,” that the Governor “inherently” need not follow the law will likely do little to placate the very real anxieties that the Governor’s sweeping constraints have provoked.
If this is true, one wonders why the General Assembly bothered passing the Act in the first place.
If this is truly the Governor’s position, he should be transparent in this regard as was President Lincoln when he exercised extra-legal powers during the Civil War. FN20
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FN19 Id. at 12-13.
FN20 “On April 15, Lincoln called for Congress to convene on July 4th – no later, but also no sooner – ensuring wide leeway for presidential operation in the meantime. Acting as the protector of the Union, Lincoln called for the militia, posed a blockade on the of the Southern states, paid out unappropriated finds to private persons unauthorized to receive such payments, authorized the commandeer of the Army to suspend the writ of habeas corpus in the area between the cities of Philadelphia and Washington (and, later on, also in the area between Washington and New York), and enlarged the army and navy beyond the limits set by Congress.” Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 12 YALE L.J. 1011, 1068.
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We would submit further that, if this is the Governor’s position, he express an intention to seek a subsequent ratification of his actions by the General Assembly.
As stated by President Lincoln:
“whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress.” FN21
In developing this argument further, the Attorney General alleges that the court has only two options:
1) permit the Governor’s interpretation of the Act to stand without constraint, or
2) accept that “COVID-19 would once again begin its exponential spread throughout the State, resulting in the inevitable loss of many lives.” FN22
After all, they conclude, “the effectiveness of the COVID-19 response is dependent on every person deciding to sacrifice individual desires for the greater good.”
Aside from the fact that “the individual must sacrifice for the greater good as determined by the state” logic has invariably been used to justify the worst crimes ever perpetrated on humanity by governments, there is an excluded middle ground fully in keeping with a comprehensive statutory analysis that views the Act as setting forth a process.
The wisdom of the statute is in its simplicity.
The Executive must have the capacity to respond immediately to an emergency without being slowed by the more gradual legislative process.
However, the Executive is not thereafter altogether freed entirely from the
sage advice, and
of the People’s representatives for as long as he deems appropriate.
Rather, the legislative branch has 30-days to thoroughly vet and deliberate on the best course of action and work with the Executive to chart the appropriate course through the crisis with legislation.
Such legislation may very well permit the aggregation of extraordinary powers in the Executive for an extended term and sanction “stay-at-home” orders and “business closures,” but at least it would have been done so intentionally and with undeniable legitimacy.
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FN21 Id. at 1111.
FN22 Supra note 4 at 14.
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C. Unconstitutionally Violates the Right to Assemble, Free Speech, and Free Exercise Clause of the First Amendment and Freedom of Movement as Protected By the Due Process Clause of the 14th Amendment. FN23
In Jacobson v. Commonwealth, FN24 the United States Supreme Court considered the extent to which a state may implement emergency measures that constrain constitutional rights.
The court ruled that a state may impose such emergency measures “so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” FN25
Stated differently, a reviewing court must determine whether the emergency power had been exercised in an “arbitrary, unreasonable manner, or through “arbitrary and oppressive regulations.” FN26 EO-2020-32 fails even this deferential standard.
Examples of the arbitrariness and unreasonable manner in which EO-2020-32 distinguishes between “essential” versus “non-essential” activity and the impact these designations have on the Right to Assemble, Free Speech, Freedom of Movement, and Free Exercise are nearly inexhaustible.
A few examples bear out the point:
A resident is free to congregate in groups of more than 10 in a retail cannabis to discuss for hours the various highs they could expect from certain marijuana strains, but cannot congregate in a church for a 30-minute service, join nonimmediate family for dinner outdoors, or join together in a public place to demonstrate against the paradoxical nature of EO-2020-32.
A resident may shop at Walmart, Target, and Costco to purchase toys for their children and a new television, but the small retail toy and electronics shop must remain closed.
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FN23 Byfkofsky v. Middletown, 429 U.S. 964 (1976)(stating, “[t]he freedom to leave one’s house and move about at will is “of the very essence of a scheme of ordered liberty and hence protected against state intrusion by the Due Process Clause of the Fourteenth Amendment”).
FN24 197 U.S. 11 (1905).
FN25 Id. at 31.
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A resident can consult with a lawyer, financial adviser, or other person providing a professional service at the professional’s office among the dozens of staff, but a car dealer cannot consult with a customer about the purchase of a new car.
While it is commendable that the Governor in EO-2020-32 loosened the constraints on religious practice, the measure is woefully inadequate in that a religious assembly is still limited to 10 people or less.
As recently stated in On Fire Christian Ct. v. Fisher:
Religion is not “some purely personal avocation” that can be indulged entirely in secret….For most believes, it is not that, and ‘has never been.’
“Instead, just as many religions reinforce their faith and their bonds with the faithful through religious assemblies, many Christians take comfort and draw strength from Christ’s promise that ‘where two or three are gathered together in My name, there am I in the midst of them.’
“Indeed, as On Fire points out, the Greek word translated ‘church’ in our English version of the Christian scriptures is the word ‘ekklesia,’ which literally means ‘assembly.’” FN27
The Attorney General, in its response in Beloved Church v. Pritzker, again provides the straw man argument that the State’s capacity to effectively redress COVID-19 is contingent upon the court finding that EO-2020-32 is constitutional.
To date, the disease has infected over one million people and caused over 60,000 deaths in the United States.
Here in Illinois, which fortunately took measures early on to prevent the spread of COVID-19, more than 56,000 people have been infected and over 2,450 have died.
Medical experts have estimated that, in the worst case scenario, millions of Americans would die if governments were to do nothing to prevent the spread of COVID-19.
The virulently infections nature of this disease, combined with the ability of asymptomatic individuals to unknowingly spread the virus and the absence of any vaccination ow widely effective treatment, has limited the options for combatting the disease and-as similar measures by other state, local, and national officials demonstrate –made the orders’ “stay at home strategy crucial to slowing the spread of the virus.” The temporary prohibition against public gatherings of more than 10 is an indispensable part of this strategy. Large public gatherings generally have fueled the spread of COVID-19, including through in-person religious services. In addition to being stationary in close quarters for extended periods during such services, congregants often are speaking aloud and singing which increases the danger that infected individuals will project respiratory droplets that contain the virus and may infect others…
…Plaintiffs argue that these carve-outs for grocery, hardware, and liquor stores, as well as a snack food manufacturing plant are “at best arbitrary. This argument is specious. Stores like Menards and Walmart are essential because, even in a pandemic, the day-to-day infrastructural needs of a society require people to be able to purchase food to eat, supplies to maintain their residences, and pharmaceuticals to stay healthy.” FN28
We agree the State has a compelling interest in this case and that the State must act boldly and broadly to protect the lives of residents.
However, the Attorney General continues to frame the inquiry as “all or nothing,” maintaining that implementing the provisions of EO-2020-32, collectively and in their current form, is the only thing that can be done to stave off disaster.
But if, as the Attorney General rightly contends, COVID-19 is an unprecedentedly acute threat to the residents in Illinois, EO-2020-32 should prohibit all activities that are truly “non-essential,” which in permitting golf, liquor store sales, in-store retail fish-food sales, and group therapy sessions, it undeniably has not done.
In order to pass constitutional muster, the Attorney General need not establish only that there is a compelling interest and that its response does something to limit the spread of COVID-19.
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FN27 3:20-CV-264-JRW, 2020 U.S. Dist. Court (West. Dis. Ky.).
FN28 Brief for Defendant, Beloved Church v. Pritzker, 2020 Dis. Ct. (N.D. Ill.).
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It must establish that it has not exercised power in an “arbitrary” or “unreasonable” fashion.
We do not dispute that a “stay-at-home” or “business-closure” order of some fashion may be appropriate.
We contend only that this “stay-at-home” and “business-closure” order with its haphazard and internally inconsistent “exceptions” is unconstitutional to the extent that it substantially burdens the exercise of constitutional rights.
We do not dispute that many of the provisions of EO-2020-32 may be constitutional.
We are contending that only those “unreasonable and arbitrary” provisions be severed or ordered to be amended.
The Attorney General’s argument that stores like Menards and Walmart are truly “essential” in the ordinary, as opposed to legal, sense because they provide the “day-today infrastructural needs of a society…purchase food to eat, supplies to maintain their residences, and pharmaceuticals to stay healthy” betrays a hidden undervaluation of religion, human interaction, and speech.
The Attorney General here is on dangerous ground.
Many devoted practitioners of religion would certainly bristle at the suggestion that the pharmacy is more important to their health than communing with or receiving at a church service the God who they are convinced sustains their every breath.
Many would gladly forgo the opportunity to install a new faucet or add crown molding to sit with loved ones and family who they have not seen in two months or have the opportunity to publicly petition their government in the form of a demonstration.
The contention that going to Walmart or Target is less dangerous because shoppers “enter a building quickly, do not engage directly with others except at points of sale, and leave once a task is complete,” FN29 ignores the fact that the attributes that make trips to Walmart and Target “safer” can easily be imposed upon a church service, a protest, or other assembly.
For example, parishioners at a service could be required to wear masks, maintain whatever adequate social distance the State deems necessary, and leave directly after the service.
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FN29 Beloved Church v. Pritzker, 2020 Dis. Ct. 21 (North. Dis. Ill).
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Again, if all EO-2020-32 permitted was “transitory” transactions that directly bear on sustaining human life and home maintenance, the Attorney General may have a point.
But indisputably, meeting once a week for an hour or less in a large church space or outdoor venue where all parishioners are required to stay 6 feet or more apart poses no more risk of facilitating the spread of COVID-19 than working all day in the confined office space of a law firm made up of hundreds of people.
The Governor’s attempt at categorizing in hurried and ungainly terms the vast and varied breadth of all public behavior in Illinois and then selecting from among these categories begets an executive order that is at once both “over-inclusive” and “under-inclusive.”
Specifically, it permits a number of activities that are not “essential,” as the term is ordinarily understood, while prohibiting constitutionally protected activities that self-evidently pose no more or less of a threat of contributing the spread of COVID-19.
As such, those provisions of EO-2020-32 that substantially prohibit as opposed to conditionally permit the exercise of fundamental constitutional rights are unreasonable and arbitrary and should be severed.
Conclusion The McHenry County State’s Attorney’s Office respectfully requests that this Court grant leave to file its Brief Amici Curiae and consider the position of the McHenry County State’s Attorney’s Office therein.
/s/ Patrick D. Kenneally
McHenry County State’s Attorney