Editor's note: This article has been revised to reflect new information received concerning the positions held by the Macon County Clerk concerning the constitutionality of executive actions taken by Gov. JB Pritzker. The information was received on May 8 as part of responses to questions submitted by The Cook County Record on May 7.
A Springfield federal judge has refused to allow a group of recreational marijuana advocates use the COVID-19 pandemic as an excuse to avoid gathering the necessary signatures to place a referendum on a downstate ballot this fall.
But the judge did not address questions raised in briefs by a county clerk that Gov. JB Pritzker’s stay at home order in response to the pandemic may be illegal and unenforceable.
On May 1, U.S. District Judge Sue Myerscough, of the Central District of Illinois, sided with Macon County Clerk Josh Tanner and a group of other government defendants tasked with preparing election ballots and overseeing elections in Illinois and in the region around Decatur, in east central Illinois.
In an emailed response recevied Friday, May 8, to questions The Cook County Record submitted Thursday, May 7, Tanner said he does not intend to appeal and would "still maintain no opinion on the constitutionality" of Pritzker's orders.
He further said "assertions to the constitutionality" of those orders "were erroneously included by my legal counsel."
"Counsel was instructed to remedy those errors during the court hearing, which to my knowledge is what happened," Tanner said.
Tanner's attorney, Jerrold Stocks, of the firm of Featherstun Gaumer Stocks Flynn & Eck LLP, of Decatur, provided this emailed reply to questions sent Friday by The Cook County Record, seeking clarification:
"Macon County Clerk Tanner verified facts, not legal positions. This office was defending a claim seeking the imposition of damages in the form of attorney’s fees pursuant to 42 USC Section 1988 placing the treasury of Macon County at risk. The defense required a determination of the legality of the state action that caused the alleged harm, if any. That state action was not the Election Code (for which Tanner had 1988 exposure). Rather, the COVID Executive Orders were the state action. Tanner won. Thus, we have nothing to appeal."
Judge Myerscough's ruling shot down an attempt by a group of plaintiffs that included political organizations known as Reform Champaign County and the Decatur Dispensary Project. The plaintiffs were seeking a court order declaring they could place an advisory referendum on the ballot in November in the city of Decatur, urging the city to allow recreational marijuana sales. They said the COVID-19 pandemic – and particularly Pritzker’s statewide stay at home order, prevented them from circulating petitions and collecting the number of signatures ordinarily required to place the measure on the ballot.
They pointed to a ruling from a federal judge in Chicago, who had allowed the Libertarian Party to step around petition signature requirements to place candidates on the November ballot. The Libertarians had also cited COVID-19 and the state response to the pandemic to support their court order request.
In response to the marijuana groups’ lawsuit, the defendants asserted a referendum was different constitutionally from individual candidates seeking office.
Further, it was argued the governor’s current order is scheduled to expire at the end of May.
Tanner, through his attorneys, Stocks and Edward F. Flynn, pointed to ongoing legal disputes over 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. 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 may only grant Pritzker the authority to declare an emergency and wield the associated emergency powers for 30 days. Beyond that, the Illinois General Assembly may need to specifically vote to allow the governor to continue to use the powers.
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.”
“… Governor Pritzker has not exercised his powers surgically with the support of high probability evidence when declaring affected areas,” Tanner wrote in the April 29 brief that remains on file with the court. “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.”
The marijuana reform 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 wrote in the brief.
However, she did not address the constitutionality of Pritzker’s orders or his continued use of emergency powers.
Rather, she agreed there is a constitutional difference between “a federal constitutional right to candidates’ ballot access, which clearly implicates First Amendment rights, and a state-created right to non-binding ballot initiatives.”
Myerscough further noted the petitioners have until August to collect the signatures they need. Since the governor’s stay at home order is scheduled to expire at the end of May, the petitioners should have plenty of time to gather signatures, the judge said.
The judge did not address Pritzker’s position in other court filings that he has the power to continue to extend the stay at home order for as long as he deems necessary to address the COVID-19 pandemic.
U.S. District Judge John Z. Lee had agreed with the governor’s position on the question of whether the Illinois Emergency Management Act allows the governor to exercise emergency powers for as long as the governor believes an emergency situation exists. Lee took that stance in a decision rejecting a Stephenson County church’s request for a court order declaring the governor’s limits on religious gatherings unconstitutional and illegal.
The church, known as The Beloved Church, of Lena, has appealed that ruling to the U.S. Seventh Circuit Court of Appeals. No arguments have yet been filed on appeal.