As resistance to the orders of Gov. JB Pritzker mounts statewide, Illinois could be about to enter uncharted legal and political waters, and businesses could be caught in the middle, left to decide whether to follow their local governmental leaders or the governor through the COVID-19 pandemic, with many lives and livelihoods hanging in the balance.
“This is not a yes or no question,” said attorney Michael Ciesla, of suburban Northbrook. “We’re getting into areas we’ve never gotten into before.”
This week, Madison County, located in the St. Louis metro area in southwestern Illinois, became the first county to officially break with Pritzker. The board on Tuesday voted overwhelmingly to defy Pritzker’s business shutdown orders and approve a plan to allow its businesses to reopen sooner than Pritzker would allow.
Illinois Chamber of Commerce President and CEO Todd Maisch
| Photo Courtesy of Illinois Chamber of Commerce
They were followed on May 13 by the Effingham County Board in southeastern Illinois.
It remains to be seen how many businesses in those counties will reopen, and even whether enough customers will return to make it worth the businesses’ bother. But business owners who do reopen could face a number of challenges amid the tricky economic and legal waters churned by the COVID-19 pandemic – including Pritzker’s response to the resistance.
On one hand, businesses who choose to remain closed may face economic oblivion. Many who are now closed will likely never reopen again, no matter what the state or their local governments do.
However, Pritzker has publicly warned businesses who reopen without his approval that the state’s Department of Professional Regulation would take action against businesses, to strip them of the licenses they are legally required to hold to conduct a range of businesses. The state licenses dozens of professions, including barbers, hair braiders and cosmetologists, acupuncturists, athletic trainers, engineers, architects, firearm trainers, interior designers, locksmiths, nail technicians, pawn brokers, financial counselors, loan originators, security contractors, and a host of medical and dental professions, among many others. That list doesn’t include state regulations on restaurants and alcohol sellers.
Pritzker said the actions will be needed to hold accountable those business owners who violate public health orders. In statements delivered May 13, Pritzker appealed again to “science,” saying that alone will inform his decision making on when to lift business and activity restrictions in Illinois. Without those restrictions, he said, COVID-19 will kill thousands more Illinoisans.
In addition to yanking business licenses of renegade shop owners, Pritzker has hinted he also would do nothing to stop trial lawyers – many of whom have politically backed him and donated voluminously to Pritzker’s fellow Illinois Democrats – from launching lawsuits against businesses who defy him.
Antonio Romanucci, president of the Illinois Trial Lawyers Association, has publicly warned businesses who stand against the governor that such lawsuits may be on the way, unless they abide by Pritzker’s orders.
Further, the insurance industry has warned businesses they could risk finding themselves without coverage, should they be sued while reopening their business without explicit approval from Pritzker.
When asked about those concerns, Pritzker said if he were still running a business, he would not take the risk of incurring such liability.
Business owners may choose to attempt to shelter behind reopening plans adopted by their local governments.
That, said Ciesla, could set up a showdown in court.
He said lawyers representing the state would undoubtedly argue the governor’s actions trump local officials.
But as Pritzker continues to ramp up threats against businesses and counties and cities that stand up to him, Ciesla said it could set up “intriguing questions” for the courts concerning the balance of state regulation against local control of businesses.
“It puts us in a very interesting place,” said Ciesla.
Pritzker’s continued threats against business owners and local governments who resist may also only serve to further poison his relationship with much of the public.
John Pastuovic, president of the tort reform group Illinois Civil Justice League, said the threat of private lawsuits to enforce Pritzker’s orders generally underscores the need for legal reforms in Illinois.
But he said the governor’s resort to threats also illustrates a need for a more collaborative approach when addressing both the public health emergency, and an economic crisis that has followed – a crisis many in the business community believe has been exacerbated by Pritzker’s stay at home and business closure orders.
“I believe we require a broader discussion and a balanced approach in regards to reopening the state,” Pastuovic said. “What is necessary for Chicago, may be different for the collar counties and different still for downstate.”
Ciesla and Pastuovic noted there are already a number of ongoing legal challenges to Pritzker’s use of executive powers.
Ciesla was among the first legal observers in Illinois to publicly raise questions concerning the governor’s use of those powers. The challenges that have since been filed center on the proposition Ciesla first published about on his blog, noting the text of the Illinois Emergency Management Act expressly limits the governor to use of emergency powers for 30 days. Beyond that, Ciesla reasoned, the governor must secure approval from the Illinois state legislature.
That opinion has been backed by opinions unearthed from an Illinois deputy appellate prosecutor earlier this year, and in a 2001 memorandum from a former senior assistant Illinois attorney general.
Pritzker and current Illinois Attorney General Kwame Raoul have argued the governor can simply extend that 30-day declaration unilaterally, provided he makes a redetermination every 30 days that the condition that caused the emergency still exists.
Two federal judges and a Cook County judge have, to this point, backed Pritzker’s arguments. However, a number of lawsuits remain pending, including two filed by churches that are ticketed to be heard by the U.S. Seventh Circuit Court of Appeals.
However, in the meantime, business owners and local governments have indicated an increasing desire to stand up to Pritzker and contest his power. Officials in Chicago suburban communities, for instance, have grown increasingly louder in their concerns over being grouped with Chicago for the purposes of evaluating their ability to safely reopen their economies this spring.
While Pritzker’s “Restore Illinois” plan calls for reopening the state in phases, by region, the suburban community leaders and representatives have argued their COVID-19 metrics are not comparable to those of Chicago, which has suffered the brunt of the COVID-19 damage in Illinois to this point.
Ciesla said the true sticking point for most business owners will be the question of their business licenses. While they may wish to reopen, many will not wish to also risk losing their license, which would put them out of business, whether they reopen or not.
“There’s more to this than the ‘black letter’ of the law,” said Ciesla. “I know a lot of business owners who wouldn’t want to take the gamble.”
However, regardless of what path business owners may take, the governor’s response to the concerns of business owners to this point has sent the wrong message to the state’s employers, said Todd Maisch, president of the Illinois Chamber of Commerce.
Maisch said businesses have appealed to the governor on numerous occasions to take their survival amid the COVID-19 economic crisis.
While Pritzker has repeatedly indicated his sympathy for business owners on the brink of losing everything, Maisch said the governor has not followed up those public statements with actions to give business owners hope that they will be allowed to at least try to keep their businesses afloat.
“The sympathy is welcome,” said Maisch. “But at some point, you’ve got to follow up with actions.”
Maisch said feelings of resentment toward the governor and resistance to Pritzker’s orders are building in many parts of the state, particularly in regions bordering neighboring states, like Missouri, Iowa and Indiana, which are opening their economies, even as Illinois’ remains locked down.
And he said those perceptions, that the governor is leaving businesses locked in a no-win vice, is only reinforced when Pritzker indicates he is willing to “sic personal injury lawyers on otherwise law-abiding businesses.”
Maisch said it could cause a number of communities and businesses to essentially rush the turnstiles, massing in such numbers it would become logistically difficult to take action against them all.
“It could be a real mess the governor has on his hands here,” Maisch said.