Illinois (ECWd) -
The Illinois Department of Public Health is the supreme authority during a pandemic, and that fact is clearly spelled out in our laws, which we covered at length in this article. That fact is also clearly spelled out in the most recent lawsuit against the Governor.
While the Governor was sending planes to China to buy faulty masks, the Director of IDPH, Dr. Ezike, sent out a letter to local health departments. Reading the letter you will see it is full of information on the Governor's Executive Order #5, dated March 16, 2020, to include a directive to the local health departments regarding enforcement. We understand the letter was sent out the same day as the Executive order or the day after, March 17, 2020.
Within that directive, it explains how the health departments are to take steps to close businesses that are not allowed to operate according to the Governor. We explained what that process was in this article. Part of the tools a health department has in carrying out their mission is to get a court order to force a business to close. We also explained that process in this article on March 15, 2020, the day before the EO that IDPH is providing enforcement instructions to local health departments.
According to Illinois law, as outlined in our article on March 15, 2020, 20 ILCS 2305/2-(c) is the governing law on closing a business.
According to the IDPH Director, as found at the bottom of her letter, "The process of issuing such an order is set forth in 20 ILCS 2305/3(c)."
If you're wondering why we did not provide a hotlink to 20 ILCS 2305/3(c), don't think too hard as there is no such state law in Illinois.
Representative Brad Halbrook discovered the IDPH directive after seeking answers from his local health department regarding enforcement directives. Representative Halbrook wanted to know the process in order to be able to answer questions from his constituents. As he finished reading, he tried to fact check the listed statute. Tried, but was unsuccessful, because the law does not exist. We also confirmed there is no such statute.
"Five plus weeks and no one caught that IDPH was citing a non-existent statute as the legal authority for local health departments to close business? These are the same people that are spreading fear into our business owners and operators to stay closed. " Representative Brad Halbrook
While we understand mistakes do happen, why was the same mistake made in their updated directive a month later on April 17, 2020, which also cites a non-existent statute?
After Halbrook communicated with the appropriate people, IDPH has now issued a new directive dated April 25, 2020. What statute did they cite? The very one we cited in our publication on March 15, 2020. While we have already called for the Governor to seek new legal counsel, I guess we can add a similar request to the IDPH Director as it is clear, someone failed to fact check the directives they sent out statewide.
Can it get worse?
We covered extensively who has the supreme authority during a pandemic. It is the IDPH and local health departments that have the power to order a business closed because of a contagious pandemic infection concern and unless such closure is voluntary, they must obtain a court order. Then, and only then, can law enforcement be asked to assist in enforcing the order from the court? There is no provision for law enforcement to order businesses to close under the Executive Order issued by the Governor.
IDPH answer to who is in charge of enforcing the order:
"Per the COVID-19 Executive Order No. 5, Section 3, enforcement responsibilities will be a cooperative effort of the Illinois State Police, Illinois Department of Public Health, the State Fire Marshal, and the Illinois Liquor Control Commission. When it comes to enforcement of this Executive Order, the focus of the local health departments (LHDs) should be on helping restaurants and food service facilities voluntarily comply with the order. If this can’t be successfully achieved, IDPH and LHDs have the authority to order the closure of a facility and law enforcement is authorized to carry out such orders. Please consult your States Attorney as needed."
The way they worded the answer on enforcement, it leads people to believe law enforcement is authorized to close businesses. An officer that follows the directive rather than the law may try to close a business, however, he has no such power unless there is a court order, which at that point he has enforcement power. We encourage law enforcement as well as health department personnel to review the laws and read our article on this to provide a perspective as to why it is so important to do it right. Doing it right avoids potential costly lawsuits from business owners who end up having their due process rights trampled.
So with directives that cite non-existent laws and directives so poorly written it leads people to believe police have powers they don't, we must ask, Who is flying this plane?
Stay tuned for exposure of IDPH and the failure to disclose certain data on COVID-19.