Illinois (ECWd) -
It appears the Governor is realizing his Executive Orders are not laws and they violate people's Constitutional rights.
What is the norm in Illinois when elected officials get exposed for violating the law? Change the law.
In this case, change the rules and make criminals out of the very people that are the economic engine in this state.
Not only do these new suggested rules invoke criminal penalties, but they also are to last 150 days and are being pushed through in an Emergency provision for such rule changes, meaning the public has little say about it. Let that sink in. Under these proposed rules it appears the Governor intends to continue with his oppressive overreach and lock this state down into the middle of October.
If approved, the Illinois Department of Public Health would be enacting an Emergency Rule establishing criminal penalties for violating what appears to be Governor Pritzker's Executive Orders. This action points to his desperation and an admission his EOs had no enforcement power outside of those given in the law, which were limited to the Illinois Emergency Managment Agency. According to the Emergency Rule, violating IDPH rules will constitute a Class A Misdemeanor, which includes a fine and/or imprisonment. County State's Attorneys will be charged with bringing the charges - but it is already well-established, a State's Attorney has prosecutorial discretion when it comes to charging someone with a crime. (See section 8.1 of Public Health Act)
One thing we noticed on first reading, is the exemption for Airports and Hospitals having sit-down restaurants. We understand the hospitals, but why is it OK for an airport restaurant to serve sit-down customers, but not OK for any other restaurants in this state to serve sit-down customers? This provision points to a Constitutional issue of discrimination.
We also noticed there are no exceptions for indoor fitness rooms in hotels in this new rule. We exposed Pritzker's discrimination of private fitness centers in this article. Discriminatory because fitness centers in Hotels were open, to include hotels tied to Pritzker's Business. This new rule would close all hotel fitness centers as we understand it. Is this a case of break the law, change the law after being exposed?
Not surprising from this group of legal beagles is the fact it ignores the Regulatory Flexibility provision found in the Rulemaking process guidelines.
The IAPA requires agencies to take particular notice of the impact a proposed rulemaking has on small businesses, small municipalities, and non-profit organizations and to attempt to minimize the economic burden the rulemaking may impose on these entities.
Just reading the proposed rules it is clear the economic burden such a rule imposes on small businesses and small municipalities is devastating. If the businesses are shut down as proposed they have little or no financial ability to make ends meet, which includes paying of property tax that these municipalities operate under. Those very taxes ensure the people have Emergency Services such as Fire, Police, Ambulance, and yes, a local Health Department. It appears adopting such a rule all but guarantees the economic collapse of Illinois.
We believe The JCAR committee should bring this rule to a screeching halt through the Objection and Suspension procedures outlined in the rulemaking process.
"An Objection to an emergency or peremptory rule indicates that JCAR finds the rule is not consistent with statute, has an adverse economic impact on small businesses, small municipalities, and non-profit organizations, or fails to meet some other standard established by the IAPA."
"A Suspension of an emergency or peremptory rule, in conjunction with an Objection, stops the rule from being enforced based on JCAR's finding that the rule is contrary to the public interest, safety or welfare and/or that there is no legitimate reason for the agency to have used emergency or peremptory rulemaking."
Anyone in their right mind should see that this proposed rule has an adverse economic impact on small businesses. This is extremely important to understand because the very Pandemic and Influenza plan adopted by the state speaks to this point as it relates actions that damage the economy.
"Even if somewhat effective in controlling influenza in large populations, it would not be feasible to implement and enforce with available resources and would damage the economy by reducing the workforce."
If the adopted pandemic plan understands you don't keep people quarantined because it would damage the economy, the parallel is you don't close businesses as that destroys our economy even further. (Article on the Pandemic Influenza Plan)
Of interest is what appears to be a due process provision within the rulemaking process.
"An agency, JCAR, the Governor, an affected local government, 25 interested individuals, or an association representing at least 100 interested persons may request that the Department of Commerce and Economic Opportunity perform an analysis of the proposed rulemaking to determine this impact."
Prior to the rule, a person or business could exercise their due process rights, force the Health Department to obtain a court order, and only if they continued operating after a Judge ordered them closed would they be subject to arrest and prosecution. Our reading of this rule is that those due process rights placing the burden on the government to prove they can shut you down have now shifted. Now, this rule shuts you down without any due process and if you open, they make you a criminal.
We believe this action is a clear indicator that Governor Pritzker is realizing very quickly his actions were not consistent with law and his last hope is to change the rules. Such action confirms what we have said all along, the law does not provide him the power he thinks he has.
We suspect there will be a substantial push back on this rule to include legal action if adopted.
We note there is nothing on the Agenda for action to be taken on this matter during the next JCAR meeting, Wednesday, May 2020.