By: Mark Glennon*
Governor JB Pritzker’s tirade against State Rep. Darren Bailey may be turn out to be as self-destructive as it was improper, encouraging more lawsuits including damage claims and assertions of personal liability.
On Monday, a state court judge blocked Governor J.B. Pritzker’s 30-day extension of the state’s stay-at-home order by granting a temporary restraining order Bailey sought. Technically, the order might apply only to Bailey, but its resolution on appeal clearly will set precedent for other cases.
Instead of addressing the issue on the merits, Pritzker angrily unleashed a barrage of invective against Bailey. That invective might as well have been directed at the judge, since he obviously agreed with Bailey, and at the principles the judge ruled on. Pritzker was effectively being as contemptuous of the judge and peoples’ right to go to court as he was of Bailey. That made Pritzker’s words exceptionally inappropriate.
Here’s what Pritzker said:
Rep. Darren Bailey’s decision to take to the courts to try and dismantle public health directives designed to keep people safe is an insult to all Illinoisans who have been lost during this COVID-19 crisis, and it’s a danger to millions of people who may get ill because of his recklessness. It’s insulting, it’s dangerous, and people’s safety and health has now been put at risk; there may be people who contract coronavirus as a result of what Darren Bailey has done.
Painful as our actions might be, the question boils down to life and death. COVID-19 is responsible for denying the people of Illinois the precious moments of togetherness and steadiness of routine that have been put on pause in response to this global pandemic. History will remember those who put politics aside to come together to keep people safe. It will also remember those who so blindly devoted to ideology and the pursuit of personal celebrity that they made an enemy of science, and of reason.
And on Tuesday he added this:
This was a cheap political stunt designed so that the representative can see his name in headlines, and unfortunately he has briefly been successful in that most countless of feats as absurd as this charade is, we are taking this matter very seriously.
Pritzker went on national television Tuesday morning saying much the same thing.
They may be in a minority, but there is no shortage of Illinoisans who bitterly oppose Pritzker’s order. In Pritzker’s daily press briefings they see manipulated numbers and political theater. They resent being told that opposition to the order means they are killers, which is now Pritzker’s central message. They see vast overreach in the emergency order and little effort by Illinois to balance the health issues against an economic catastrophe that grows every day.
Most important, they know their constitutional rights are at issue, and they won’t take kindly to hearing Pritzker try to convert those issues into personal insults.
Have no doubt that countless Illinoisans have plausible lawsuits they could bring themselves, including what are known as 1983 claims. That federal law, 42 U.S. Code Section 1983, allows private citizens to bring lawsuits for constitutional violations, including damage claims, in federal courts. Those claims can be brought against anybody “acting under color of law” who enforces, or threatens to enforce, a violation of constitutional rights.
Importantly, 1983 claims can impose personal liability on individuals acting under color of law.
My research leaves me less than confident that a reviewing court will hold that the Governor has the authority to close businesses, bar attendance at church services and assemblies in excess of ten citizens (particularly if they are assembling to redress grievances). From a strict enforcement standpoint, although well-intentioned on an emergency basis, the EO is very broad and does not appear to meet strict scrutiny – this is not to mention the EO appears to be beyond the framework of the specific Act it cites as support.
He wrote that memo, it says, “because of the volume of requests from individual State’s Attorneys this Agency has received regarding the viability of enforcement (and potential civil liability under Federal section 1983).” [Emphasis Added.]
He could have added that travel restriction in the order also are clearly overbroad and likely run afoul of the right to travel. Both interstate and intrastate travel are protected rights under the constitution, even though not expressly mentioned therein.
Anybody suing may be getting help from the United States Department of Justice. Attorney General William Barr said Monday the Justice Department will intervene if stay-at-home orders become too restrictive, directing federal prosecutors “to be on the lookout” for state and local directives that could be violating constitutional rights. That apparently would include help with 1983 claims, as indicated in an American Bar Association article.
The “strict scrutiny” referred to in the memo quoted above is the legal standard that would likely apply to many claims. That means, as the memo correctly says, “the State action [the order] must be narrowly tailored to the compelling State interest.”
The court order issued Monday apparently was based primarily on violation of the state emergency powers statute that limits emergency orders to 30 days. Pritzker’s lawyers argued that he can issue successive 30-day orders indefinitely and the judge said he cannot, which should be obvious. However, the constitutional violations were debated passionately in the hearing, as you can see in the transcript. We will have to wait to see which issues take primacy in the appeal.
While much of Pritzker’s order was appropriate and would withstand a court challenge, overreach seems clear as it applies to many Illinoisans in many circumstances.
I invite lawyers with expertise in this field to supplement or disagree with me on the above, but I will say this much: Given the risk of personal liability and the obvious number of plausible claims, if I were in law enforcement, I would not be enforcing Pritzker’s order.
UPDATE: The Woodford County State’s Attorney, citing constitutional issues, says he will not prosecute violations of Pritzker’s extended stay-at-home order. Woodford County businesses of any type — even those deemed “nonessential” by the order — may open their doors, and customers are free to patronize them. Likewise, churches and their member can make similar decisions. JournalStar article linked here, which is based on work of Edgar County Watchdogs. Salute to them for their work.
SECOND UPDATE: Here is the state’s brief filed in the appeal.
*Mark Glennon is founder of Wirepoints.