An Illinois county clerk in downstate Decatur has joined the growing list of those asserting Gov. JB Pritzker’s extension of the statewide stay at home order is unconstitutional and illegal.
However, unlike others, Macon County Clerk Josh Tanner is not directly challenging the governor’s order. Rather, he is simply assuming it is illegal and unconstitutional, for the purposes of defending against a lawsuit over whether a marijuana referendum can land on the ballot this fall.
On April 29, Tanner’s attorneys, Edward F. Flynn and Jerrod H. Stocks, of the firm of Featherstun Gaumer Stocks Flynn & Eck LLP, of Decatur, filed a brief in the U.S. District Court for the Central District of Illinois, in Springfield.
The brief, which was first reported by policy analysis site Wirepoints, was filed in response to a lawsuit that had been filed on April 27 by a group of plaintiffs who are seeking to place an advisory referendum – essentially, a poll of voters, conducted at the ballot box – on the November 2020 ballot, asking voters whether they supported the idea of allowing cannabis dispensaries to open in the city of Decatur.
Plaintiffs on the complaint included groups identified as Reform Champaign County and the Decatur Dispensary Project.
The complaint identified a litany of official defendants involved in the process of placing the referendum on the ballot, or conducting the upcoming election.
These included Tanner; Champaign County Clerk Aaron Ammons; and Decatur City Clerk Kim Althoff; as well as Illinois Secretary of State Jesse White.
In the complaint, the plaintiffs asserted they should not need to satisfy the regular requirement of collecting a certain number of signatures on petitions to place the referendum on the ballot. They asserted they are precluded from gathering the signatures because of the difficulties presented by the COVID-19 pandemic, and the general prohibition on petition circulation imposed by Pritzker’s stay at home order.
The governor had issued the first stay at home order in mid-March, indicating the measure was needed to stem the spread of the novel coronavirus that causes COVID-19, and to prevent Illinois’ hospitals from being swamped by COVID-19 patients. Pritzker has stated repeatedly, nearly every day since declaring a statewide emergency in early March, that the state’s response is needed to “save lives.”
Among other effects, however, the stay at home measures have also made the task of gathering signatures for ballot petitions much more difficult, as the stay at home order did not declare petition circulating an “essential” activity, exempted from the order.
Earlier, the Libertarian Party secured a federal court order granting them permission to sidestep signature requirements and place candidates on the ballot, to erase an imbalance in the ballot placement process that otherwise tilted in favor of the Democratic and Republican parties in Illinois.
The plaintiffs in the Decatur marijuana referendum case requested similar relief for their ballot measure.
However, in response, Tanner asserted Pritzker’s orders should have nothing to do with the requirement to gather the necessary signatures, because Pritzker’s orders are illegal and unconstitutional.
In his brief, Tanner points to the language of the Illinois Emergency Management Act, the state law Pritzker has repeatedly asserted gives him the authority to wield broad emergency powers and rule by executive order, rather than through the normal legislative and rulemaking process. Pritzker has asserted these powers include the ability to order businesses closed statewide, and to order Illinois residents to remain in their homes, but for “essential” activities or to work at “essential businesses.”
In his brief, Tanner said the IEMA law only grants Pritzker the authority to declare an emergency and wield the associated emergency powers for 30 days, absent an act by the Illinois General Assembly.
To support this position, Tanner pointed to a memorandum authored by the Chief Deputy Director for the Illinois Appellate Prosecutor’s Office, and to a decision from Clay County Judge Michael McHaney, both of which indicated Pritzker’s authority may not be as extensive as the governor has asserted.
McHaney’s ruling had come as he granted a temporary restraining order requested by State Rep. Darren Bailey (R-Xenia), who had sued Pritzker to challenge his authority to issue the stay at home orders.
That decision had only applied to Bailey, as the plaintiff. But Pritzker’s orders have since been challenged in other lawsuits.
In a case filed in Rockford, State Rep. John Cabello (R-Machesney Park) had leveled similar allegations to those in Bailey’s case, but this time on behalf of everyone in Illinois.
And in Stephenson County, a church also sued the governor in federal court, asserting his orders were illegal and unconstitutional infringements on the rights to free exercise of religion, free speech, assembly and due process, among others.
Pritzker has appealed McHaney’s decision, arguing in briefs filed both with the Illinois Fifth District Appellate Court and the Illinois Supreme Court, that the law gives Pritzker the authority to use emergency powers for as long as the governor believes an emergency is occurring, so long as he renews that emergency declaration every 30 days. He asserts he does not need any input from the people or their elected representatives to do so.
Pritzker signed an extension of his stay at home order on April 30, seeking to place the entire state under slightly modified restrictions until the end of May.
Tanner, however, said the statewide exercise of emergency powers is an illegal “overly broad exercise of the emergency powers” that denies due process to citizens in Illinois.
“… Governor Pritzker has not exercised his powers surgically with the support of high probability evidence when declaring affected areas,” Tanner writes. “Pritzker has covered the entire State of Illinois with an iron blanket forcing the factually unaffected to the same deprivations as the likely affected population. An unconstitutional detention or deprivation of one individual is not remedied by depriving all citizens under your jurisdiction.”
Further, Tanner argues the stay at home order’s division of businesses and activities into “essential” and “non-essential” categories is also illegal.
“… The social distancing encroachment presented by a petition circulator (non-essential) does not exceed the social distancing encroachment of a grocery store check-out clerk (essential) to justify the classification,” Tanner wrote. “The EO (executive orders) are exercises of arbitrary classifications picking winners and losers in the essential/non-essential pageant. The consequences, the deprivation of an individual’s fundamental right to earn a living or to move freely.”
Tanner asserts the plaintiffs’ real complaint is against the governor and his executive orders, and not local election officials.
The plaintiffs, he said, chose “to submit to the unconstitutional EO (executive orders)” and so local officials cannot then be expected to relax election law and rules to allow them to place their referendum on the ballot without the required signatures.
“… It is the position of Josh Tanner, Macon County Clerk that any future stay-at-home orders by Governor Pritzker are unconstitutional, lacks statutory support and unenforceable,” Tanner writes.
In the brief, Tanner requests U.S. District Judge Sue Myerscough to reach that same conclusion.
The plaintiffs have not yet filed a reply to Tanner’s assertions. Neither had any attorney for Pritzker or the state intervened in the matter, as of April 30.