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.

The Constitutional Convention in Philadelphia

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.

For that, we turn to the memo obtained by Edgar County Watchdogs written by the Chief Deputy Director of the Illinois Appellate Prosecutor’s Office to the Director of that office.

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.

 

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Carol Howard
5 months ago

I would like to file a suit myself against Governor Pritzker he himself can’t keep his wife from traveling to Florida a hot spot may I say so why do the small businesses have to suffer and all this does is make people angry. We committed no crime but are prisioned while he is letting very dangerous criminals out of our prisons. Enough is enough.

Governor of Alderaan
5 months ago

Jabba’s unhinged attacks on the legislature are unprecedented, dangerous, and further proof that Dictator for Life Jabba is unfit for the job.

Stev
5 months ago

Awesome it’s about time I was kicked of our local bus for not wearing a mask mask after they took me to the grocery store 7 miles away unconstitutional

Where's Madigan
5 months ago

I resent being told I have to wear a Mask to enter a public place as of May 1st!
Shop Wisconsin or Indiana if convenient!

a person
5 months ago

Wisconsin

5 months ago

I ECHO Pritzkers words ” It’s insulting, it’s dangerous, and people’s safety and health has now been put at risk”……….Not because of Baileys action But Because JB let people out of PRISON who are Murderers and WORSE! And Now the people of ILLINOIS ARE NOT SAFE!!

Rick
5 months ago

Please use a word processor and grammar/style software. Your article was difficult to read.

Rick
5 months ago
Reply to  Rick

I’m user Rick, have been for years. And I didn’t post this grammar complaint. Somebody else is using my name!

JimBob
5 months ago

A class action damage claim against Pritzker individually would have only a few opt outs. Is he immune from willful violations or does his executive authority in emergencies override judicial rulings? I don’t recall any classes consisting of the entire state population, but the asbestos and tobacco cases certainly had large numbers of class members.

Lots of lawyers are being laid-off. Surely there are one or two who don’t feed off the public treasury and would be able to go for it. Federal court, right?

Harvy Gerth
5 months ago

I predict that if this lock down continues that before June 1, The Governor will be under attack by a horde of long haired women with grey roots showing, screaming ” let me visit my hairdresser ! “

LakeMom
5 months ago

I hope every business owner and anyone who lost their job or who has suffered serious financial damage due to the extended lock down files suit.

Jeffery Schurman
5 months ago

They need to recall Pritzker and his lackeys and get someone in office who knows what the hell they are doing ! It’s damn sure clear democrats only want power to control and that’s it !

Can'tBelieveIt
5 months ago

The closures were implemented to slow the rush of patients to our health care system. Well, it seems inarguable that our hospitals have not been overrun. Or even become crowded.

So, with respect to the goal of the closures, it seems it is time to reopen with some common sense guidelines…

I am sincerely hopeful the judicial branch does its job and limits the overreach of this moron. Sadly, this crisis has only further exposed his inability to manage/govern/inspire anyone or anything.

LakeMom
5 months ago
Reply to  Can'tBelieveIt

Hospitals downstate have been furloughing staff because the census (# of patients) is down. There are an awful lot of empty beds out there.

Governor of Alderaan
5 months ago
Reply to  Can'tBelieveIt

The closures were implemented to make Jabba Dictator for Life

Rick
5 months ago

Maybe Pritzker should have that judge apprehended and arrested for causing people to die? I mean, he should put up or shut up right?

bagelgirl
5 months ago

In a state of over 12 million residents, the odds are in favor that at least one person is going to object to the stay at home order.

debtsor
5 months ago
Reply to  bagelgirl

But wait, JB cited polls at this news conference yesterday (and parroted by Capitol Fax) that say citizens approve of the job JB is doing and they disapprove of the job Trump is doing! Oh and guess what, the poll was conducted for Capitol Fax subscribers! You can’t make this stuff up! https://capitolfax.com/2020/04/28/about-that-poll-the-governor-mentioned/ “About that poll the governor mentioned Tuesday, Apr 28, 2020: * Gov. JB Pritzker mentioned a poll today in his daily media briefing. That poll was conducted for my subscribers, but now that it’s out there (grrr), I wanted to make sure y’all knew the toplines before… Read more »

Yoz
5 months ago
Reply to  debtsor

Haha, Rich Miller is such a hack.

UnclePugsly
5 months ago
Reply to  bagelgirl

@bagel And if that person is a judge or states attorney, you intend to ignore them?

Steve Neuman
5 months ago
Reply to  bagelgirl

Maybe you need to open your eyes and ears. 1 person? I think you have been in lock down way too long.

Tom Paine's Ghost
5 months ago

The visceral reaction of Tyrants when their power is questioned seems to be somewhat universal.

UnclePugsly
5 months ago

This is an excellent article on the facts as they currently are. I believe the judges are also looking at precedent. For Pritzker to argue he has indefinite ’emergency powers’, which he himself can extend, is something which MUST be struck down, never mind his belief that his powers in that emergency are unlimited. I’d go to the SCOTUS on that for sure.

accept reality
5 months ago

Perfect! Let’s have some of you lawyers go after Spanky on a professional and personal basis.

ConcernedExpat
5 months ago

If the co-equal Judicial Branch of Illinois had any semblance of impartiality, they would have the governor address the extension with his legislature. There should be no implied discretion with a law of this magnitude – it should be explicit. Unforunately, we know all too well this state’s court, packed with imbedded Dem machine judges, will not act accordingly. Otherwise, what is to stop a Rogue Governor from forcing all IL citizens under house arrest indefinitely ? There needs to be checks and balances in this state. If this Gov can suspend our constitutional rights during an “emergency” then we… Read more »

Jonathan
5 months ago
Reply to  ConcernedExpat

Article 3 section 7 of the Illinois Constitution will stop him. INITIATIVE TO RECALL THE GOVERNOR.

5 months ago
Reply to  Jonathan

Precisely ! What is a Constitution if you fail to use it.

NiteCat
5 months ago
Reply to  ConcernedExpat

The IL Dept. of Health Act Rules & Regulations are very specific about the govenment powers in the handling of an medical/flu epidemic.

Bob
5 months ago

Well there is a group on Facebook called Re-Open Illinois and there are protests set for May 1st in the capitol of Illinois which is Chicago it seems. At the Thompson center. Also one in the former capitol of Springfield on the same date. Looks like its getting some good traction and I plan on being at the Thompson Center. Pritzker is a partisan fool and he has some real morons advising him. This state needed a true statesman and we got a learn on the job trust fund baby. And Chicago got an ineffective learn on the job partisan… Read more »

Tara
5 months ago
Reply to  Bob

Chicago is not the capitol, it is just where the governor lives and will be physically present on Friday.

CharlesEcho
5 months ago
Reply to  Tara

I believe the author had his tongue in cheek when he was writing about the Capitol. True citizens of Illinois know where the Capitol is. Someone needs to tell Pritzker.

Governor of Alderaan
5 months ago
Reply to  CharlesEcho

Is Jabba allowing Illinoisans to put their tongues in their cheeks? I believe he’s outlawed that

Kathy
5 months ago

You did not address the clear findings enunciated in the public health management act on pgs. 66-67 about quarantines, and who directs them and the clear statements regarding the spread of infections and shutting down an economy. The governor has disregarded those directions.

Mike marek
5 months ago

Well done mark

Old Spartan
5 months ago

Excellent analysis, Wirepoints. And there are several attorneys already looking at the 1983 claim possibility. Several interesting arguments. First, the Gov claiming he can issue end on end 30 day orders renders meaningless the statutory limit of 30 days. Second, there is no clear meaning of “essential” services and products, and it is being arbitrarily enforced. I can not open my clothing store, but dozens of stores are selling clothes–Walmart, Target, Farm and Fleet etc. “Essential” to whom and who created the list of what is and is not essential. Third, where is the emergency? The virus is not like… Read more »

CharlesEcho
5 months ago
Reply to  Old Spartan

Gives one pause does it not. If the emergency were as terrible as we are being led to believe, those essential workers would be dropping like flies.

UnclePugsly
5 months ago
Reply to  CharlesEcho

Heard many of those workers declared ‘essential’ want hazard pay – seems to make sense. Of course Pritzker and the Chicago Democrats only make sure public unions are fluffed.

NiteCat
5 months ago
Reply to  UnclePugsly

And remember, all IL government employees were deemed “essential”.

Governor of Alderaan
5 months ago
Reply to  Old Spartan

The big box stores have lobbyists and make huge donations to the democrats, unlike your clothing store. Big Government is bad for the little guy