Here’s the blueprint, Illinois. Let Wisconsin be our guide.

The Wisconsin Supreme Court issued a ruling yesterday which found Wisconsin’s stay at home order unenforceable.  Although the facts are different than those surrounding the emergency orders in Illinois, the blueprint for a successful legal argument against Governor Pritzker’s emergency orders is laid out in the Wisconsin ruling.

In Wisconsin, the Secretary-designee of the Wisconsin Department of Health Services issued Emergency Order 28 which commanded all individuals in Wisconsin to stay at home or risk punishment of up to 30 days imprisonment or up to a $250 fine, or both.  The Secretary-designee is not an elected official in Wisconsin.

The Court found that in order for the violation of Order 28 to constitute a crime, such directive needed to be set out with specificity in a statute in order to give fair notice.  In other words, any order, including an emergency order, that contains criminal penalties must be issued by the legislature, not an agency.

Even though the ruling was directed at the Secretary-designee and her Order, the bulk of the opinion spoke to the Governor of Wisconsin and his use of emergency powers.  Such dicta should apply equally to Illinois as well. 

The U.S. Department of Justice, in Temple Baptist Church v. City of Greenville, No. 4:20-cv-64-DMB-JMV (N.D. Miss. April 14, 2020), expressed the position of the United States by stating: “There is no pandemic exception . . . to the fundamental liberties the Constitution safeguards.  Indeed, the individual rights secured by the Constitution do not disappear during a public health crisis.  These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always in force and restrain government action.”

The Court stated that the “Governor’s emergency powers are premised on the inability to secure legislative approval given the nature of the emergency.  In the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.”{emphasis added}.

The Court looked at the emergency powers granted to the Governor under Wisconsin statutes (which gives emergency powers for 60 days) and expressly stated that “60 days is more than enough time to follow rule making procedures.”  The Court reasoned that the emergency powers exist for so long as there is an inability to secure legislative approval given the nature of the emergency.  The Court indicated that there is no reason why the Wisconsin Legislature cannot resume lawmaking.

To that point, the Court stated that: “People, businesses and other institutions need to know how to proceed and what is expected of them.  Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs.”

While the emergency orders in Illinois were issued by the Governor and not a state agency, the legal conclusions of the Wisconsin Supreme Court should be echoed by the Illinois Supreme Court. 

Any emergency order which purports to inflict criminal penalties on any citizen of Illinois is arguably unenforceable if the language of such order was not codified by the Illinois Legislature.  As of this writing, none of the emergency orders were codified.

Further, the Governor’s emergency powers are technically over.  Aside from the factual arguments that Governor Pritzker only had emergency powers for 30 days, there is no reason why the Illinois Legislature cannot resume its constitutionally mandated activities.  If businesses and other legislatures around the country can recommence activities (whether in person or through technological platforms), surely Illinois can as well.  As the Wisconsin Supreme Court analogized: “If a forest fire breaks out there is no time for debate.  Action is needed.  The Governor could declare an emergency and respond accordingly . . . [but] the Governor cannot rely on emergency powers indefinitely.”

The Court chided the Secretary-designee (and arguably the Governor of Wisconsin) by stating that she cites no authority for “this vast seizure of power.”  The same rebuke can easily be leveled at Governor Pritzker. 

While the Wisconsin Supreme Court ruling will be looked at by many non-legal scholars as simply a political ploy, the reality is that the justices followed the state and federal constitutions and properly maintained the fundamental process of checks and balances.  The Court did not issue an opinion as to how to address COVID-19.  The Court simply reminded everyone that all citizens of Wisconsin have certain inherent rights such as life, liberty and the pursuit of happiness and that only the legislature can infringe on a person’s rights.  The people in Wisconsin (like the people in every other state and commonwealth) “consent to the legislature to make laws because the people have faith that the procedural hurdles required to pass legislation limit the ability of the Legislature to infringe on their rights.”  However, even when a legislature passes a law that infringes on a person’s rights, such law cannot be oppressive.

Illinois – it’s your serve.