No Checks – No Balances?

Tom Stilp, JD, MBA/MM, LLM, MSC

We successfully got the Sheriff of Cook County held in Contempt of Court for failing to carry out court orders for our business clients.  We argued that the Sheriff’s actions constituted a deprivation of property by the government without just compensation paid to our clients.

We won’t get into the meetings we had with the Sheriff’s attorney, who is now a judge, but let us just say that four letter words from the Sheriff’s personnel were plentiful.

Some of you have asked about the “checks & balances” in local government.  Unlike the federal government which operates through a constitutional system, the local county governments do not.

The argument that every four (4) years something might be done through the voting booth is small solace.  If you have a leaking pipe, you would not wait four years to fix the problem.

What is playing out between counties, however, might offer some “checks & balances.”  There is a fight between Chicago area counties and counties down state.

Recall that the Courts in Clay County, Illinois have declared that certain actions by the state of Illinois are improper.  Contrariwise, other counties have supported the state’s actions.  For example, while acknowledging landlords in Illinois are suffering “economic devastation,” a Will County judge has recently ruled the COVID-19 pandemic gives Illinois Gov. JB Pritzker the power to prohibit evictions in Illinois for as long as he deems necessary, even if the tenants simply refuse to pay rent.*

“The Governor has broad discretion here, and the Court will not micromanage the Governor’s placement of weight on one policy concern over another, or one preventative measure over another,” the Court stated.

Attacking opposite rulings, the Will County Court said those rulings are “bereft of meaningful legal analysis, and are wholly unpersuasive for that reason” and are not binding.

But questions that impact the balance of power, separation of power, and the required “checks & balances” that keep government operating, include the following (these questions were certified for appellate review by the higher courts):

  • Does state law permit a Governor to continue issue successive 30-day disaster declarations?
  • Should executive orders issued using emergency powers be treated by a court the same as a state law?
  • Does the state constitution and state law empower a Governor to cite a public health emergency in issuing orders that limit constitutional rights, “including the right to a civil jury trial and the right to file a lawsuit?”
  • Can a Governor use a public health emergency to limit the ability of the courts to hold trials and hear cases?
  • Is the delay so sever as to constitute a “taking of property” to allow Landlord to collect money damages from local governments or the state?

Reaching Constitutional proportions, these questions affect thousands of businesses and  of property owners.  The Illinois Bill of Rights provides:

Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation.  He shall obtain justice by law, freely, completely, and promptly. [Bill of Rights, Illinois Constitution, Section 12.]

If your business has been impacted, these questions are more than theoretical interest.

*Based on the Cook County Record, retrieved from:

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