Business owners in Illinois could be at risk of criminal penalties, potentially including fines and jail time, should they decide to open their businesses sooner than Gov. JB Pritzker deems appropriate, under new emergency rules introduced by the Illinois Department of Public Health late last week.
And the proposal has kicked up a storm of phone calls and emails from Illinois residents to a select group of legislators who are all that may stand in the way of those rules potentially gaining the force of law, should the lawmakers decide not to object.
Late in the day on Friday, May 15, Pritzker, through the IDPH, quietly filed the emergency rules, which would deem business owners to have committed a Class A misdemeanor under Illinois law should they reopen their restaurant, shop or other so-called “non-essential” business before they would otherwise be allowed under Pritzker’s “Restore Illinois” plan.
Illinois Gov. JB Pritzker
Pritzker introduced the plan earlier this month, asserting it was the best way to gradually reopen the state’s economy out of statewide closures instituted under Pritzker’s stay at home order, which had been issued as the centerpiece of the state’s response to the COVID-19 pandemic. Pritzker said the plan, which opens the state economy in five phases, would save lives by allowing the state to monitor the spread of the COVID-19 novel coronavirus at various points in the process.
In the wake of Pritzker’s decision to extend the stay at home order through the end of May, and then his introduction of the 5-phase plan, opposition and resistance to his emergency powers have only increased across the state.
Many sheriffs and state’s attorneys have publicly stated they will refuse to enforce the order.
DuPage County Sheriff James Mendrick added his name to the growing list of those officials now opposing Pritzker. In a public statement Sunday, Mendrick said he believed DuPage County was ready to “reopen responsibly” now, and not wait on Pritzker’s relatively slow timetable.
“I’m just having difficulty with what looks like politics pitting everyone against each other and then wanting the police to arrest everyone who disagrees,” Mendrick said in a Facebook post. “We not storm troopers. We are peacekeepers.
“All these years, you have told us that you want law enforcement that thinks before arresting, doesn’t violate your rights and treats their citizens with decency. Now you have that and are asking us to regress into what you didn’t want and didn’t deserve. Please let us be the law enforcement you always asked us to be. Non-oppressive.
“… This is not the time to introduce fear into our society by threatening class A misdemeanors, but instead it’s a time to assist our citizens and businesses to get back on their feet.”
At the same time, Pritzker’s administration faces numerous lawsuits, asserting he has exceeded the bounds of his authority in claiming broad, sweeping emergency powers, trespassing on Illinoisans’ constitutional rights, and bypassing the Illinois General Assembly.
One of the lawsuits, brought by state Rep. Darren Bailey (R-Xenia) specifically points to language in state law explicitly designating the IDPH as the agency solely empowered by law to close businesses in response to a public health emergency. Under that law, business owners targeted for closure would have rights to due process, to challenge the state’s actions.
Bailey’s lawsuit notes no business owners have been granted any chance to contest the governor’s actions.
In response to the growing hostility to his emergency powers and executive orders, Pritzker’s tone has shifted, threatening business owners who open too soon with a loss of the state licenses they need to do business, essentially closing their doors for good.
He has also indicated he would do nothing to prevent his political allies among the state’s trial lawyers from suing businesses who resist his orders. Some of the state’s most prominent personal injury and class action attorneys have echoed that warning, saying they stand ready to “protect” Illinoisans from businesses that “open too soon.”
The governor’s health department then moved to introduce the rules, explicitly placing business owners who open before Pritzker says they can at risk of criminal proceedings.
On Monday, Pritzker defended those rules, saying he believed it was already a misdemeanor to defy his emergency orders. He said the rule creates a new level of enforcement that allows the state to stop short of costly business license revocations.
He echoed his spokespeople, who, in reports published over the weekend, compared the potential misdemeanor charges to “traffic citations,” and pledged no one was going to be handcuffed and jailed.
Pritzker also said enforcement of the new IDPH emergency rules would also be left to local prosecutors.
The emergency rules, however, have generated angry responses from many throughout the state, who appeared on Monday to have flooded lawmakers with phone calls and emails to register their opposition to the attempt to amend the rules.
The calls were particularly targeted at the Joint Committee on Administrative Rules, an otherwise little-noticed panel of 12 state lawmakers – six Democrats and six Republicans – who review rules issued by administrative state agencies, like the IDPH.
If eight of the members of the JCAR vote against the rule, it would be blocked.
From Friday to Monday, the Republican members of the committee voiced opposition to the IDPH emergency rules, calling the changes the latest example of the governor’s “overreach” amid his use of emergency powers during the COVID-19 pandemic.
“Class A misdemeanors bring fines up to $2500 and 364 days in jail,” said State Rep. Keith Wheeler (R-North Aurora). Wheeler serves as co-chair of the JCAR with State Sen. Bill Cunningham (D-Chicago).
“That means that a single-mom doing nails in her own home to try to feed her children and keep a roof over their heads would be subject to a substantial penalty and jail time. That process includes fingerprinting and a conviction that remains on a person’s permanent record and the result could impact their licensure which in Illinois is their ability to earn a living.
“This is a vast government overreach in a time when business owners are doing everything they can to stay afloat.
“Filing these emergency rules to extend criminal penalties to businesses and individuals all over Illinois is an abuse of emergency rulemaking.”
Wheeler pledged to introduce a motion to the JCAR to ask for a vote to oppose the emergency rule.
Democrats on the JCAR were silent on the issue through Monday. Attempts to reach Democratic members, including Sen. Cunningham were unsuccessful Monday.
Each time the Cook County Record attempted to call Cunningham’s offices, for instance, the voicemail greeting indicated the “mailbox was full” and could not accept new messages.
Democratic members of the JCAR also did not reply to email messages sent by the Cook County Record Monday.
While many Illinoisans are asking for a vote in opposition to the governor’s latest emergency power usage, Todd Maisch, president of the Illinois Chamber of Commerce, said his organization hoped Pritzker would recognize the deep concerns over the rule change and choose to voluntarily withdraw the proposal, for now.
Maisch said the move to introduce a measure late in the day on a Friday, only continues to “destroy trust” between Illinoisans and the governor amid a public health crisis.
Maisch said the Chamber believes the governor may be able to find sufficient “legal wiggle room” to allow his emergency order to stand.
However, Maisch said Pritzker needs to recognize the reasons behind the furor that has erupted statewide, and a divide that only continues to widen.
He encouraged the governor to instead seek a new set of orders based on “consensus” among as broad a set of Illinois residents, businesses and government officials as possible.
“He needs to recognize that this is being perceived by many people in this state as the governor creating a new criminal penalty by decree,” said Maisch. “We need a better way forward.”