Prairie State Wire

A memo written by David J. Robinson, the chief deputy director of the Illinois Appellate Prosecutor’s Office, to the director of the office, Patrick J. Delfino, could prove problematic for Illinois Gov. J.B. Pritzker after the COVID-19 pandemic slows or ends.

The memorandum, dated April 21, focuses on executive orders issued by Pritzker during the COVID-19 pandemic and starts with the executive order in which he ordered residents to stay home and for businesses, except those deemed essential, to close. That order has been extended at least once since the pandemic began, in order to slow the spread of the virus.

In the memo, Robinson examines potential civil liability and what the state’s attorneys might face in terms of criminal and civil litigation from Pritzker’s executive orders.

Of particular concern to Robinson were comments made by Dr. Ngozi O. Ezike and the governor himself. In this memo, Robinson wrote:  

“On April 19, 2020, Dr. Ngozl O. Ezike, who appears daily with the governor at his news briefings, reported that 22 to -25 percent of those who test positive [approximately 11 percent of those who are tested are testing positive] require hospitalization. [That is approximately 7,500 individuals on the high side.],” he wrote. 

“Dr. Ezike also reported on April 19, 2020, that the 1,290 reported deaths were based on a " very simplistic" death calculation, which means that if an individual dies "with"  COVID-19, the state reports that the individual died "of' COVID-19. Dr. Ezike explained that 'if you are on hospice, even if you die of a clear alternate death, [you] would still be listed as a COVID death. "She added. 'Everyone [sic] who is listed as a COVID death doesn't mean that was the cause of death.'"

Earlier in the month, Pritzker made statements about enforcement of his executive order, telling a reporter April 7 that the government was “asking people to do the right thing” and put the onus of enforcement on local law enforcement. He also said the restrictions do not have the power of state law behind them but are mandated by executive order.

It appears Article V does not give Pritzker powers to suspend constitutional rights, nor to organize the militia to enforce laws or suppress insurrection, and Robinson notes, this may be why the governor took the position that local law enforcement is responsible for administering his rules outlined in the executive order.

Robinson also reports that a cursory review of the order and its extension reveals infringement on the constitutional rights of women, although they may be justified. Those include due process, religion, right to assemble, and right of eminent domain.

“My research leaves me less than confident that a reviewing court will hold that the governor has the authority close businesses, bar attendance at church services and assemblies in excess of ten citizens (particularly if they are assembling to redress grievances)," Robinson said. "From a strict enforcement standpoint, although well-intentioned on an emergency basis, the [executive order] is very broad and does not appear to meet strict scrutiny, this is not to mention the [executive order] appears to be beyond the framework of the specific act it cites as support.”