Constitution Ignored By Illinois Courts Under Emergency Orders: Here’s The Latest – Wirepoints

By: Mark Glennon*

Few things in the COVID-19 saga are more frightening than how casually most courts have let our most fundamental constitutional rights be voided by emergency orders, particularly in Illinois. Under those orders, which Illinois courts allow to persist with no time limit, the list of trampled rights is almost as long as the Bill of Rights itself, including freedoms of association, travel, assembly, religion, property, equal protection and due process.

Two rulings by Illinois courts this week continued the trend.

First, an appellate court upheld one of the most egregiously unfair elements of Illinois’ emergency orders – the eviction moratorium, which has essentially forced property owners to pay for a free housing program.

Stories about tenants thumbing their noses at landlords who want their rent have been common in recent months, and a CBS Chicago story from last week illustrates how extreme it can get. The owner of a home on Chicago’s South Side has no remedy to remove a squatter, who easily faked a lease. When CBS asked the woman who answered the door about her residency she called police, and then came out with a pair of scissors and said, “Getting you the f**k away from my s**t.” she replied. CBS told the woman that the home belonged to somebody else and she said, “I don’t give a f**k what she say. I’m in this b***h, ain’t I?”

But a three-justice appellate panel upheld a lower court in rejecting a request from a group of rental housing owners to halt the moratorium. The 21-page opinion of the majority is a collection of gobbledygook excuses to avoid ruling on the merits of the constitutional claim.

The opinion is too incoherent to try to summarize, but for those of you who have been through a first-year civil procedure class in law school, look in particular at the standards the court says it should apply in determining whether to issue a preliminary injunction. The court ignored well-established, textbook standards.

For the rest of you, don’t take my word for that. Look at the concurring opinion by Justice McDade that says “these are remarkable statements” the majority made. “These statements are self-defeating,” he wrote. “I respectfully submit that the majority’s analysis of the preliminary injunction issue is replete with errors.”

Unfortunately, McDade, too, ducked the constitutional issues, concluding that the landlords had not established a likelihood of success on any of the 10 counts in their complaint, which I will come back to below.

There’s less to say about the second story from this week because the Illinois Supreme Court simply decided to do nothing by rejecting an appeal by the FoxFire restaurant chain. It had sought a temporary restraining order against enforcement of the occupancy limits in Gov. JB Pritzker’s emergency order, which have crippled restaurants across the state. A Kane County lower court had ruled in favor of FoxFire, but an appellate court reversed last November, so FoxFire appealed to Illinois Supreme Court.

But the state’s top court rejected the appeal, with no explanation. It has never ruled on the merits on any of the obvious and grave constitutional issues raised by Pritzker’s emergency orders.

That’s inexcusable.

In the long list of lawsuits challenging Illinois’ emergency orders, critics have sometimes claimed that the plaintiffs didn’t argue their cases properly. Maybe that’s partly true, and in the opinions linked above the courts, too, claimed certain failures to properly plead or allege various claims or facts. But those aren’t good excuses. Courts have plenty of leeway to remand matters for further proceedings when fairness so demands and to take judicial notice of facts as widely reported as they have been during the pandemic. Turning a blind eye to constitutional issues as broad and grave as those raised by Illinois emergency orders is not why we have courts.

Among the things we should expect them to have taken judicial notice of are that emergency lock-down rules haven’t made any difference; that they’ve been based on politicized “science” and junk data; that federal and state officials health officials have proved themselves to be inconsistent, wrong and sometimes dishonest; and that the pandemic is nearly over. In other words, the foundations of the emergency orders are shattered and they have no rational basis.

FoxFire is fighting on. Though its bid for a restraining order didn’t work, it still expects it’s case to be heard on the merits at the trial court level.

*Mark Glennon is founder of Wirepoints.