right our nd case for this morning is stephen cass so against david snyder ruled that case and apply what we would consider to be what we would urge is a more appropriate standard under free exercise do you agree that we would have to reverse ilam to come out in your favor well  totally come out in our favor you would either have to reverse the mootness finding an element or the free exercise finding in ylem but you still can come out for us as to the local defendants on the  frankly difficult waiting that's required in the face of both legal and scientific uncertainty well and so this is part of the problem of the district court's decision it both decided that the local officials enjoyed eleven to none of them unity which i believe there's an incorrect statement of law just just on its own but then went through and made if the all of the men applies a gratuitous ruling on a referee in illinois  why should federal courts exercise discretionary jurisdiction to balance these very difficult and competing factors under an illinois statute that really hasn't been against the local officials are supplemental they're they're part of the same you know core facts as i think we were brown to bring them as part of our complaint whether the district court wish to abstain in some way and i don't know that that's a company had a operation when it comes to supplemental jurisdiction but you certainly have the right to add them and also then the court had the need to decide is judge hamilton is saying whether it wanted to exercise that of these various people as local defendants and not people who are being conscripted by the governor of illinois to enforce state dog because once you get them over on the line of state defendants then penn hearst is in your way you know federal courts don't sit to tell state officers to comply with state law it and certainly your honor it just the issues in the way the th circuit as i understand it has dealt with particular illinois law illinois sheriffs have been held to be agents of the state when they are doing something mandatory like exercising a they when they serve it and execute a court order for which there is a specific a statutory requirement illinois you're under penalty of contempt otherwise when you're looking at these various prescriptions of the executive orders of the governor it's clear that the local officials held discretion whether to enforce or not well i and i'm not sure about that but it but i just remember that i have a very fundamental question for you we really are talking about a couple of things we're talking about the governor's various orders you know that were actually passed number seventy at this point but we're taking a look back into the past at an earlier generation of orders but you're also trying to complain about the notice that the church was given to close down and it's unclear to me and i'd like your comment on it whether any issues about this notice are now moot even talks about whether the governor's executive order can be challenging since the governor's made it very clear he can ratchet up or ratchet down he might reissue an order that looks exactly like the earlier one that the notice strikes me as a different matter and i'm not sure we and twenty dash ten has evaporated at this point so any future in force meant measures that would or would not be taken against the church would be under a different executive orders so i can understand adjudicating whether there can be a ten person limit or that kind of thing but i don't see how the local defendants have anything to do with this case other than by means of the role they played thirty two cents and others but did the church get more and more notices or is this the only notice they ever got well that is the the notice that was received by them and they closed down under but the terms of the executive orders didn't change at all but they did  i mean some of the later executive orders as you'll remember had exceptions for free exercise of religion as discussed in the illinois republican party against prince or decision and that the the  governor inserted those later provisions in response to the filing of this lawsuit well it doesn't matter i'm just saying to you that this notice addressed restrictions on the church that were gone by the time governor pritzker perhaps agreed with your position and that of many others movies this litigation is going all over the country and as you know there was this later exemption for free exercise of religion that would let the church have not answering my maybe i'm not clear but i'm focusing only on the local defendants and the local defendants as i understand this record are in this case only because they served the cease and desist order and the notice and if i'm right that the notice is now ineffective superceded disappeared then i don't see why we have any case against the local defendants use would still have whatever you want to say about the governor but i'm just focusing on it the sheriff and the health department have not disclaimed an interest in continuing to enforce whatever the governor's executive orders are on the church so if we are at a place where the executive orders were arguing that that it's not moot because the executive order could be reimposed there's been no indication that the sheriff and the health department would back off if anything this this you know the governor has  order in place right now right but certainly in it and then shown they've they've issued one before and we you have to presume they'll issue more but we don't know what it would say i mean every time we wake up in the morning we get more news about  pandemic and we hear about a variety of variables that the public officials are are working with and so we don't know what any future cease and desist order would say and  obviously we believe this issue was moot because we don't the governor gave us a full exemption and took us out of the phases thing so we don't we don't believe there's going to be any more cease and desist orders at all so when i say that we just get rid of the local defendants in that and simplify this case down to  the case against governor pritzker if this case is not moved so if this if these executive order if the if the governor issued an executive order shutting down or reimposing executive order thirty two  then they did not give the governor the benefit of the you know hornbook law that when a government official responds to litigation to give someone a full exemption you give them the benefit of the doubt which is what the governor did after at least four lawsuits were filed against him he entirely receded the field for free exercise of religion that he took away the mask requirement the sanitizing the social distancing and all capacity restrictions from john in the l days he's been ratcheting things up because of course as you know i mean it's a little sad to read your brief and say oh well you know whatever it was five people are dead and stevenson county and now it's seventeen in the cases are skyrocketing as they certainly are nearby rockford the governor is clearly concerned that the state of illinois may need to be under much more stringent controls and maybe even including free exercise of different question and i'd like you to try to explain your due process claims because it looks like what you're asking us to do is treat is a federal constitutional violation or feel your to comply with procedures mandated by state statute it your honor our argument is not we don't want to federalize the department public health act but we do believe there is some requirement needed for notice and hearing freed up of asian before emergencies why would this not be sufficient in your honor eight months in we're not in an emergency situation and it was a talking about i'm talking about an order that might take effect on a thursday that would have an effect and with the cease and desist order there was no opportunity to go to court the opportunity go to court would be to defend yourself against a misdemeanor citation and let me go in as well well and before we even get to the substance of your procedural due  why haven't you forfeited that claim i didn't see that claim in your complaint and you don't mention it in your motion for a preliminary injunction which is what we're here for today and in the motion of pages thirteen and fourteen and  governor has to provide a pretty deprivation hearing for every citizen and every church and every organization in state of illinois before issuing a stay at home order but at least in this circumstance where we were i'm i mean i'm saying how this we don't sit to decide only one person's principle if the principle is there has to be a pretty deprivation hearing there are restaurants there are hotels there are airline companies there are individual people there are sole proprietors and i take it your position is they all have to have a pretty depravation hearing for judge hamilton's thursday order that affects friday saturday sunday and monday that's a lot of hearings around the state understand were the chief justice was on that at same time in south bay california had a one hundred dollars person or twenty five percent capacity limit on the facts as well here we do have you know we've been pressing the illinois reference which takes you to the compelling interest and least restrictive means analysis and other than the district court decision in this case we know of no other case where another court has held that a ten person hard cap can can be that can stand up to strict scrutiny especially when you're up against factories making you know pork rinds down the street or they can retire factory down the street after green on that point this circles back to one of my earlier concerns you know how does have the least restrictive means to us in the face of just fundamental scientific uncertainty about public health it seems to that when we're talking about a risk of lethal infections that spread far beyond the particular individuals who might attend the church it seems like you're asking us to use to apply viewing or refer statute in such a way so as to say this congregation is entitle to choose not only to take health risks for themselves but also to impose those risks on their communities how do we balance that under a least restrictive means test your honor we're asking you to compare it to other you know other factors in the community use the test as it was set out and has been repeated in this particular case you've got the snacking down the street hundreds of people together five days a week eight to twelve hours a day making pork rinds of fried pork rinds you've got kelly tire factory where they're stacked up the clock in clock out we're just asking for equal treatment under that point and what those exceptions certainly do is they undermine the compelling interest in holding the beloved church right at ten people when they want to bring ten dollars to fifteen dollars family units together with plenty of social distancing masking and all of that it undermines the compelling interest and then makes the least restrictive means the one that has been chosen and has been adhere to by the people of illinois thousands of congregations for the last five and a half months so that's all we're asking just apply the test that has been out there for quite yes your honor may it please the court assistant attorney general priyanka gupta for defendant governor pritzker i'll be answering all common questions for the defendants and then my colleague benjamin jacoby will present arguments pacifically on behalf of local relief to begin plaintiffs have not carried their significant burden to show a likelihood of success on the merits my friend from the other side just recognize that applies to their free exercise claim and so under this cour controlling precedence they cannot succeed on the merits of their free exercise claim that brings us to their next federal claim which they clean as a federal judge process claim judge saying eva i would agree with what your question indicated which is  th amendment so there is no question that their complaint was bringing a subsequent due process claim but even if this court courtroom reached that forfeited argument it is well settled that a failure to act here to state procedures does not on its own amount to a federal to process violation now we don't think any state procedures are violated here because the church was not closed off and made off limits as contemplated by the illinois department of public health act and so these procedural safeguards were not triggered but even the nd of the notice which did seem to say that because it wasn't abiding by the executive order the church might be closed and at least at issue and that order specifically said that the process for such an order issuing is set out in the statute the same progression of the statute that need to point to and saying that they are entitled to procedural safeguards so the notice himself recognised the procedures and place for closing off their church but that next step was not taken here so your side all that your so in your view the notice was just in a sense an alert it wasn't an act of closure in and of itself honor it was simply putting plaintiffs on notice are on alert that the church could be closed off and that that order would actually come from the illinois department of public health and it would be subject to the process set out in that relevan statute so if that were to occur those safeguards would have been triggered here that was not the case although again even if the safeguards should have been applied here which we think they should not this court has made clear that simply a failure strong showing on the likelihood success of the merits and the very least this requires a demonstration of how they're going to prove the key elements of their claim here they are not even be able to make this initial threshold showing as to their federal to them than the one that was challenge has seems like there's a there's a problem there why is the limit ten instead of eleven or twelve or twenty one why isn't there some adjustment to the size of space involved all rights including that a statutory rights the free exercise of religion are considerably broader language and most of us are used to applying strict scrutiny univer i the of context and it's pretty tough to satisfy honor my friend on the other side has since to have anecdotal evidence of a pork rind factor i would know they were thirty two dead place restrictions on manufacturing and asked that all the essential lines to be operated and that staggered to minimize the risk of transmitting code that nineteen so e o thirty two did not allow the type of situation my friend on the other side is describing but setting that to one side even if this court worst apply strict scrutiny under the illinois referring to delve into this novel state law claim we believe strict scrutiny would be satisfied at the st step of the substantial harm  plaintiffs carry the burden of showing substantial harm and we're not asking this court to judge the sincerity of their beliefs but all they've pled is that in person services are essential and both  is a pretty substantial burden on any church or religious group however well justified it may be if he is a member of the u n panel if the police were justified but but i don't think the substantial burden deadly effects plaintiffs claim that there is no compelling interest asked of them because only six people have died in there have only been five hundred and thirty some cases but as judge would noted the number of deaths have increased in that county and in a number of cases that's skyrocketed as well so there is still a compelling interest of preventing the spread of coded nineteen that is in that county i would also add that in the e o sixty two  plaintiffs cited as supplemental authority region one where stevenson county is located has now been subject to a nd round of mitigation measures because the situation is so severe and so it's simply when in discussing this issue with my friend from the other side there is a lot of scientific uncertainty that still surrounds kovan ninety but what we knew when the limit was imposed and what we still know about the virus is that it does spread easily in close quarters or people are gathered for extended periods of time and engaging in activities that lead to respiratory transmission says it's seeking and praying and well matched in him sanitizing are very critical in our fight against kobe nineteen and they certainly go a long way and helping us along that fight they're not foolproof there's a reason that this argument is happening others soon and in person  as reducing the number of people who gather in one room and your honor this court recognized anyone that many at the demonologist had recommended limiting the size of gatherings and that the temper some limits the sickly comes sense yes your honor because the even though well a larger building will of course health reduce the risk of covered nineteen and i don't play their record as developed on this plane at this stage but the science does show that because these particles can linger in the air after people have gathered for more than thirty minutes and have been fooling and speaking anyone who lived through those areas can risk getting covered nineteen and here we don't have th services are completed and that type of activity also increases the risk of spreading coals if nineteen so given that the facts that we had here and that it's inherently more dangerous to have more people in a building that church are not internalizing risks to themselves when they meet but in fact there are significant extra analogies to these risks since somebody goes to the church and says well i'm willing to assume  risk there is because my religion means a great deal to me you know i have to assume that's true for everybody who's in the church but then they go home you know and they go to the grocery store or they go to home depot or they go someplace and they breathe on someone and now that person gets covered nineteen not a member of the church not somebody who shares shares those views so it's the governor who are vying it all on that sort of nd level extra now of means lambs your honor i think the extra nowadays here absolutely do inform the least restrictive means an ounce s and that's because this court is looking to what means what accomplish the compelling interest and the compelling interest here is to protect the society as a whole and the society as a whole is vulnerable when people make the decision to meet they are not just putting their own life but exposing themselves to the virus they are as your honor explained exposing others in the community to the virus and so in determining what type of measures are necessary to protect the public at large at matters that this virus can spread so easily from person to person and so that certainly also goes to show why this is the least restrictive means necessary here isn't that also very relevant to the balancing of the hardships for the preliminary injunction yes your honor i st know that plaintiffs do not bring up the balancing of the hardships at all in their opening brief and seem to have forfeited any such argument but also even if the plaintiffs were willing to expose themselves to this virus they cannot say that the community as a whole it's being willing to be exposed to this virus simply so that they can exercise their religious rights so the balance of the hardships and the public interests will chips and baber of not granting this  don't so like to know and perhaps my friend on the other side can clarify that and their reply brief plaintiffs that page two seem to be asking for a full evidentiary hearing or a trial on the merits and then at ph twenty that they ask for this case fear a mandate for a permanent thank you may please the core representative of the county sheriff snyder is in stevenson county health department administrator been and i want to focus my comments directly to judge woods inquiry on the health department the county health department never had the authority and doesn't have the authority to enforce an executive order any way that the county health departments authority is delegated to it from the illinois department of public health pursuant to the  regulations and its authority is limited to that of the id ph act and i d p s act allows the county health department to seek a closure order from the courts upon a clear and convincing showing of evidence but that's all it's allowed to do it does how you're saying this notice was just a heads up that it wasn't a concrete gutterman one hundred percent it was not in order for closure from a court it was not in order for immediate closure which would be the only other option and which only last forty eight hours of the i v ph act it did not close the court it did not close the church and it did not tell the church that the church was closed in fact it only references the church to the i v ph act section two b which is the power to close and section t c which is the procedure to close so those are the only things that this notice it was a heads up it was an alert however you want to say it that's all it did and it could not have closed the church under the executive order because the county health department doesn't have the and at least in the st instance but the problems posed here more from the frequent changes of the executive order requirements so i would i would tend to agree with you and so even though the battle did not see that was relevant to the free exercise determination it would be relevant under a referee analysis where the defendants bear the burden of proving the the compelling  est and the least respect to me if with my colleagues indulgence i guess let me just ask you one more time mister bream to address this problem of whether we frame it as  are putting the risks on others how that should come into the calculation in a restrictive means test being applied under state law but it seems to me like just a very very difficult policy problem it is and the reason you need to anchor it with the other risks in the community so you look at the exceptions undermining the compelling  interest in shutting down this particular church or limiting this particular church to ten people and which is why we recited snacking in our work complaint in the declaration with our reply we set of the chip kelly tire facility i was even has noted the nursing homes and the other risks of meat packing plants in the community we would say you've got to take those into account the burden is on the defendants though to prove this not us so it's on the defendants and they certainly did not even attempt to to