White County Residents,
During these strange and constantly changing times, your law enforcement officials will continue to update you as to our position regarding enforcement issues in White County when the need arises as evidenced by questions that we receive. While we have been slow to question the motives and intentions of the policies of Governor Pritzker's administration, the most recent effort to criminalize certain types of business owners throughout the entire state is very concerning. On Friday, the governor, through the Illinois Department of Public Health(IDPH), implemented an emergency rule that would mandate what was previously mandated by the governor in his executive orders regarding: (1) businesses that serve food or beverages; (2) businesses that offer indoor fitness and similar activities; and (3) businesses that offer cosmetology, esthetics, nail technology, barber, tanning, body art, or similar non-medical personal care services, treatments, procedures, or therapies. In essence, IDPH is attempting to use their rule-making authority under 20 ILCS 2305/2(a) to make it a class A misdemeanor, subject to arrest and imprisonment, for any of these businesses to operate in any way open to the public except for drive-through, delivery, or pick-up services. What we do appreciate about this latest action is that it is confirmation of our previously stated position that criminal enforcement of the governor's executive orders mandating, amongst other things, that people stay at home, not gather in groups of more than 10 people which includes church gatherings, wear a face mask while in public, wash their hands for a minimum of 20 seconds, maintain six feet apart from one another, sneeze and cough into their sleeves or elbows rather than their hands, and that certain "non-essential" businesses either close or limit their services was neither constitutionally or statutorily enforceable as a criminal matter. That being said, for the constitutional, statutory, and ethical reasons stated herein, the position of White County law enforcement (Sheriff Doug Maier, Chief Jason Carter, Chief David Burrows, Chief Diana Tharp, Officer Mark Worlds, and myself) is still the same as it was: we will not arrest or prosecute anyone for violating the new business closure rules promulgated by the Illinois Department of Public Health.
There is already a statutory civil procedure in place for closing businesses. Within said statute, "... no place may be ordered to be closed and made off limits to the public except with the consent of the ... owner of the place or upon the prior order of a court of competent jurisdiction." IDPH and the local health departments have the ability to take a business to court to have them closed to the public if the court finds that the department has proven by clear and convincing evidence that the business is "... a place where there is a significant amount of activity likely to spread a dangerously contagious or infectious disease. The Department must also prove that all other reasonable means of correcting the problem have been exhausted and no less restrictive alternative exists." The business owner is entitled to notice counsel and a court hearing. Essentially, the business owner is entitled to what is a fundamental constitutional right that all of us possess: due process. "No person shall be deprived of life, liberty, or property without due process of law nor be denied the equal protection of the law." We as law enforcement officials have a duty and obligation of protecting the constitutional rights of our constituents. The constitutional right to due process has not been eliminated or superseded at this time. While the statute guarantees due process, the rule promulgated by IDPH does not provide due process.
Furthermore, review of the statute authorizing IDPH's rule-making authority, "business closure" does not clearly appear within the enumerated areas of IDPH's areas to promulgate rules while business closure is clearly a statutorily provided for civil process. Per Ill. Dept. of Revenue v. Ill. Civil Serv. Comm'n, (2005): "Accordingly, the authority of an administrative agency to adopt rules and regulations is defined by the statute creating that authority, and such rules and regulations must be in accord with the standards and polices set for in the statute.(citation omitted) ... If an agency promulgates rules that are beyond the scope of the legislative grant of authority or that conflict with the statute, the rules are invalid." The IDPH rule appears on its face to be beyond the scope of the legislative grant of authority and in conflict with the statute.
Lastly, officers have inherent discretion to make arrests while prosecutors have inherent discretion to prosecute. When it pertains to the exercise of discretion in filing criminal charges, the ABA prosecutorial ethical standards provide the following factor to consider: "whether the public's interests in the matter might be appropriately vindicated by available civil, regulatory, administrative, or private remedies." Due to the conflict between the statute and rule, it is our determination that the public's interest is best served with any matter of business closure due to COVID-19 at this time being vindicated through said civil process since the statue provides for an available civil remedy that provides due process. As previously stated, this is a public health matter, not a law enforcement matter.
Any valid closure pursuant to court order where due process was followed will be enforced. However, Sheriff Doug Maier will not accept into the White County Jail any person arrested solely pursuant to the IDPH rule regardless of the arresting agency. We are still encouraging business owners to contact their attorney and insurance carrier to obtain advice about, amongst other things, the suspension of a license, general liability, and insurance coverage.
Respectfully your servant,
Denton W. Aud
White County State's Attorney