The lawyers leading many of the legal actions challenging Gov. JB Pritzker’s authority to continue governing the state by executive order amid the COVID-19 pandemic have begun to warn county governments of legal trouble should they continue aiding the governor’s efforts to restrict small business activity in the name of fighting COVID-19.
On June 12, attorney Tom DeVore, of Silverlake Group Ltd., of downstate Greenville, sent a “cease and desist” letter to the Peoria City/County Health Department.
In the letter, DeVore said he is representing “numerous businesses within the city of Peoria.”
Peoria Mayor Jim Ardis
DeVore asserts those businesses have received threats of enforcement action from the health department against businesses, presumably for opening in defiance of Gov. Pritzker’s executive orders.
The letter followed a June 11 release from the Peoria City/County Health Department threatening to revoke the licenses of restaurant and bar owners, in particular, who reopen their businesses in full sooner than Pritzker says is safe under his emergency orders.
Since March, many businesses – particular small businesses – throughout Illinois have either been forced to close their doors, or curtail services under executive orders issued by Pritzker. Most notably, from mid-March to the end of May, Pritzker slapped a so-called “stay at home order” on Illinois residents, restricting them from participating in activities or operating businesses deemed “non-essential.”
That order has since been modified, as the state entered the third phase of Pritzker’s “Restore Illinois” plan. Under the new rules, many more businesses, and particularly, retailers, have been allowed to reopen their doors, subject to capacity limits and social distancing rules. Restaurants also have been permitted to seat dine-in customers at outdoor tables.
However, a range of other businesses remain shuttered or restricted. This has produced a call among many pro-business advocates to move the state more aggressively into Phase 4 of the plan. That phase is currently scheduled to begin at the end of June, and, again, would allow a host of other businesses to reopen, particularly those that rely on large crowds.
However, in the meantime, a number of businesses throughout the state have opted to simply quietly reopen.
That, in turn, has drawn threats of enforcement action from state and local officials, in the name of Pritzker’s executive COVID orders.
At the same time, Pritzker has faced a number of lawsuits in state and federal court challenging his authority. Many of those plaintiffs are represented by DeVore and his firm. Notably among those actions, DeVore has represented state Rep. Darren Bailey (R-Xenia), the first to directly challenge Pritzker’s authority.
In those cases, DeVore has laid out a legal interpretation against Pritzker’s authority – namely, that the governor lacks the power under state law to continue delegating to himself broad, sweeping emergency powers, for as long as he believes the COVID-19 emergency continues. Specifically, DeVore, Bailey and others have asserted the governor, under the Illinois Emergency Management Agency Act, must secure permission from the Illinois General Assembly if he wishes to use emergency powers beyond a 30-day period immediately following the disaster declaration.
That interpretation has been backed by past opinions from the Illinois Attorney General’s Office, and current court filings from some state’s attorneys and the Justice Department.
Prtizker and current Attorney General Kwame Raoul, however, argue the governor has the power to keep his emergency powers for as long as he believes is necessary, provided he re-declare a disaster every 30 days.
DeVore has also argued the power to regulate businesses in the name of public health in Illinois has been delegated by lawmakers to public health departments, particularly at the county level.
However, in some Illinois counties, those county health departments have allegedly begun threatening business owners who open sooner than allowed under Pritzker’s orders.
DeVore said those health departments would be violating the same law he believes Pritzker has violated, and would be subject legal action, as well.
In the letter, DeVore warned the Peoria County Health Department against “blind allegiance” to Pritzker’s orders.
“Whether you agree in principal (sic) with the executive order or not is of no consequence, as our legislature did not delegate your office authority over such matters merely so you can acquiesce to the arbitrary and caprice decisions of the executive branch,” DeVore wrote.
Rather than enforcing the governor’s orders against business owners, who are trying to stay in business.
“It seems your department should be focusing its attention on how to assist the good people with those disasters rather than trying to further devastate small business which are the backbone of this State’s economy,” DeVore wrote.
In response to an inquiry from the Cook County Record, Peoria County declined comment, pointing only to their June 11 release.
The county asserted "99.8%" of that county's 1,135 licensed restaurants and bars have remained in compliance with Pritzker's orders.
“We have always encouraged businesses that require a state license to comply with the Governor's Executive Orders and not potentially jeopardize their state licenses," said Peoria Mayor Jim Ardis, in the county's release. "We understand the sense of urgency for businesses to re-open.”
The release said businesses that reopen in defiance of Pritzker's orders could lose their food safety licenses, and be subject to fines and other penalties.