Looking at the source of the Governor's emegency powers, the challenge thereto, and the potential resolutions to the controversy

The Governor's stay-at-home orders, both the original and all subsequent ones, are grounded in §7 of the Emergency Management Act, 20 ILCS 3305/7.

According to that statute, where a disaster (as defined by §4 of the Act) exists, "the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers" (14 of them, if you're counting, delineated in great detail).

And there is no question that the COVID-19 pandemic is within the §4 definition of "disaster."

Section 4 of the Emergency Management Act defines "disaster" as an "occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism" (20 ILCS 3305/4).

The Governor's original coronavirus-related disaster declaration came on March 9 -- and that is why, in accord with the statute, the original stay-at-home order was set to expire on April 8.

The stay-at-home orders have been "extended" twice now -- that's the way it's been explained to the public -- most recently with some modifications that are to take effect on May 1. But §7 says nothing about 'extending' any proclamation; indeed, the statute says that, pursuant to any disaster proclamation, the Governor's extraordinary powers last only "for a period not to exceed 30 days."

So what actually happened was that, on April 1, the Governor again declared that a "continuing disaster exists within the State of Illinois and specifically declare[d] all counties in the State of Illinois as a disaster area." That proclamation was intended to extend the Governor's authority another 30 days, to April 30. Presumably another proclamation has been, or will shortly be, filed with the Secretary of State.

This brings us to Rep. Darren Bailey's suit against the Governor and the TRO entered yesterday afternoon, during Gov. Pritzker's daily press briefing.

The Governor was asked about the TRO before Clay County Circuit Court Judge Michael D. McHaney's signature was dry -- and Gov. Pritzker was not happy. He called Bailey's suit insulting and dangerous.

Pritzker didn't cool down overnight. He began this afternoon's daily briefing with a blast at Bailey's suit, calling it a "cheap political stunt designed so that the representative can see his name in headlines." He said that the State has already appealed (and the Clay County docket already reflects the filing of a notice of appeal).

Later, during today's question and answer period, the Governor stated that he has great respect for the judiciary and supports everyone's right to go to court -- even though he sees Bailey's suit (and there's apparently another one that may soon be filed by another state representative, too) as reckless in the extreme. Rich Miller's substantial (and invaluable) notes of today's proceedings didn't pick this up, but I distinctly heard the Governor say that he expects "responsible members of the judiciary" to overturn yesterday's decision.

Yikes.

There are any number of reasons why Bailey's suit may ultimately fail and I hope to go into some of them in a future post. And, certainly, if one were forced to bet, the smart money would go against Judge McHaney's April 27 ruling being affirmed.

But.

Lawyers will probably not be shocked to discover that there is almost no case law interpreting the Illinois Emergency Management Act and, according to my Lexis search today, none at all regarding the all-important §7.

The Governor's powers in this emergency, though substantial, are not just grounded in the Emergency Management Act, they are bounded thereby.

Our government functions, or is supposed to function, on a system of checks and balances. In junior high school, when you were studying for the Constitution tests, you learned that this was why we have three coequal branches of government. But checks and balances exist within each branch as well: When a governor or a judge or any other government employee is given great powers, they are either narrowly focused or, if broad, are of limited duration -- like the 30-day period of §7.

I completely agree with the Governor and the responsible medical authorities that the COVID-19 pandemic is real, it is continuing, and (much as I wish otherwise) it has not gone away. But it is only one pandemic.

That fact -- that there is one and only one pandemic -- may not necessarily preclude the Governor from making multiple, valid disaster declarations. But only if the statute can be read to permit this.

And there is one other inescapable fact, namely, that the statute does not specifically or expressly provide for extensions of a governor's extraordinary powers, even where the disaster has refused to go away, as here, within the initially allotted 30 days.

In fact, though the Governor is downright scornful about it, it seems a reasonable and logical construction of the statute that, where there is only one disaster, there can be only one proclamation.

It may take some creative judicial thinking to get around all this.

My own unhappy experience may suggest one way.

I had a case in the Appellate Court many years ago involving the owner of eight McDonald's restaurants. All eight restaurants were insured under a single policy. Every day the franchise owner sent a courier around to pick up the proceeds from each of his restaurants and take them to the bank.

The courier had a run of bad luck.

First, his vehicle was broken into after the cash had been picked up from seven of the restaurants (the courier was inside the 8th store when it happened).

Thereafter, he got robbed again, but this time he'd been to only four of the stores.

How many robberies were there?

Two, right?

That was my client's position -- I represented the insurer -- and, therefore, my client owed the restaurant owner $20,000, because the policy provided for a $10,000 per occurrence limit for losses like this. The insured, however, contended and, eventually, the Chancery Court and the Appellate Court agreed, that there had been 11 occurrences, not two. (The Appellate Court did agree with my client that, logically, these appeared to be only two occurrences; no news reporter, for example, would have said otherwise. But that was only the beginning of the analysis, not the end. For my client, all went downhill from there.)

Gov. Pritzker may well prevail over Rep. Bailey -- as I said, there are many reasons why and not all may reach this question of how many disaster declarations a governor can issue for a single disaster.

But judges will occasionally reach a result that is unpopular or unexpected because they find that the law compels, and their oaths require, it. Even when the whole world has contrary expectations. There's a reason why lawyers can never guarantee results in any case.

Of course, any confusion here about the Governor's authority can be speedily rectified by action of the General Assembly.

I would assume that there would be broad, bipartisan support for an amendment to §7 of the Emergency Management Act that would allow for multiple extensions, in appropriate circumstances.

If the Legislature could be coaxed into session, that is. With the obvious exception of Rep. Bailey, the Legislature has not been heard from much in this crisis. And the legislative year is fast drawing to a close.

Section 22 of the Emergency Management Act provides, "No emergency services and disaster agency established under the authority of this Act shall be employed directly or indirectly by any person or persons for political purposes." And the Governor has pleaded on many occasions for party sentiment to be put aside as we all deal with the Covid crisis. Let's do that. Let the courts figure out how best to construe §7 while we continue to observe the reality of the orders in effect and the disease that has so disrupted our lives. And, in the meantime, could we get an amendment to Emergency Management Act in place that eliminates the controversy in the first place?