Executive Order overreach – We nailed it!

Illinois (ECWd)-

We questioned portions of the Illinois Governor’s Executive Order to shut down restaurants and bars in this article March, 15th, 2020.  We took the position such action fails to provide people their due process rights.  Then on March 16th, 2020, we published this article challenging the Governor and the Executive Order he issued regarding the Open Meetings Act.

Today we obtained the Executive Summary legal brief on the Executive Order we questioned and it validates what we published. We urge everyone to read the summary. While steps were taken to shut restaurants and bars down by the Governor without due process, which we covered in this article, it appears the State is now recognizing their limited powers and seeking answers from those government entities that control restaurants and bars.

The most basic application of our laws is that they only have the power granted.  We must remember that, even during an Emergency.  When we lose sight of that very important fact we then begin to lose our rights, which include due process.

The Executive Summary outlines there is no Case Law on section 7 of the Emergency Management Act which only means the courts have not chimed in to provide their interpretation of the law since no lawsuits have been brought to challenge any of it. That being the case, we are back to the foundation of statutory construction which indicates the plain language of the law must be followed.

What enforcement mechanisms are found in the Emergency Management Act as it relates to closing restaurants and bars?

There are none.

Found in the Executive Summary:

“Therefore, enforcement mechanisms for the Governor’s Executive Orders must either be found in the Emergency Management Act or in existing statutes or regulations.”

It appears when the Emergency Management Act was created there was no forethought on how to enforce the orders that could be issued by a Governor or deal with those that chose to ignore the orders.

Just as we said, the Illinois Department of Public Health has certain limited powers to close a business and spells out how those powers are to be used as we pointed out in our article. For example:

“no place may be ordered to be closed and made off-limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction” (IDPH Powers)

From the Executive Summary:

“The Illinois Department of Public Health has been reviewing their powers to revoke or suspend licenses for establishments that sell and serve food and drink if they do not comply with the Governor’s Executive Orders. Their response is that the Executive Order has not expanded the Department’s statutory authority. Whether their current authority to suspend or revoke licenses due to health code violations will possibly be construed in a manner that will treat serving and selling food and drink as not up to health codes during these closures is open to interpretation.”

That means the IDPH has no authority to close restaurants and bars outside of the current established statutory powers in place, just as we pointed out. The part of their statement that should make everyone very nervous is “the EO has not expanded the Departments Statutory Authority.” We suspect to see an attempt to expand the statutory authority and more often than not, the legislation created during an emergency gets rushed through without much thought to the long term potential abuse of such legislation.  The Patriot Act comes to mind.

The other concern is the fact the summary eludes to health departments possibly interpreting that serving food and drink during this emergency as a code violation.  Such an interpretation of current law is absurd and we predict will lose in court if challenged.

The Executive Summary is very clear:

“The Act (Emergency management Act),  does not, however, give the Governor the authority to create new regulations.”

The same applies to the bar closures.   The law is the law and it appears the Governor is realizing they have no enforcement powers so now they are wanting the Liquor Control Commission to exercise their power when they don’t comply with the EO.

From the Executive Summary:

“The State Liquor Commission has the power to suspend or revoke an on premise consumption retailer’s license for a “violat[ing] any provision of [the Liquor Control Act] or any rule or regulation issued pursuant thereto”. Since the Governor’s Executive Orders are made pursuant to Emergency Management Agency Act and not the Liquor Control Act, a violation of them is not a violation of the Liquor Control Act or its rules that would allow the Commission to suspend or revoke a license.”

“However, when Illinois Liquor Control Commission was asked if they thought they had the authority to suspend/revoke a retailer’s license if they operate in violation of the Governor’s shut down order, they stated that: “It would more than likely be a fine. Not a suspension or revocation at this point. The primary authority for the shutdown is through IEMA for the Governor’s Order.” The Commission was asked for clarification on that statement and has yet to respond.”

So even the Liquor Control Commission is telling the Governor a bar who stays open would more than likely get a fine, not a suspension or revocation at this point.

The LCC issued a letter that orders compliance with the EO but confirms those who do not “will be subject to further penalties against their liquor license.”  It appears the Liquor Control Commission has taken the position that fines will be the action they take, which does not close down the facility.

Of interest is a directive from the Executive Director of the LCC:

“All agencies with law enforcement authority, including, but not limited to, Illinois Liquor Control Commission, Illinois State Police, Illinois State Fire Marshal, Illinois Department of Public Health, and Local Law Enforcement will issue cease and desist notices to any business violating the terms of the Governor’s Executive Order”

Does the LCC Director have the power to direct the Illinois State Police, Illinois State Fire Marshal, Department of Public Health, and Local Law Enforcement to issue cease and desist notices? As of this publication, we have found no statutory authority Director to give a directive like this.  If such power exists we welcome its production.

The last provision in the EO was dealing with the Open Meetings act and much like the failure to understand and properly apply our laws for restaurants and bars, they think it applies to every unit of government, which is not accurate and their own Executive Summary confirms that.

The important question was, What can the governor do as it relates to suspending statutes of the state according to the statutory references cited in the E.O.?

From the Executive Summary:

“The Emergency Management Agency Act gives the Governor the power to suspend statues prescribing procedures for conduct of State business or orders, rules and regulations of any State agency.” 

We believe the Governor’s attempt to suspend portions of the Open Meetings act to ALL units of Government is an overreach as he was not provided such power.  The only power to suspend state statutes or portions of them, as the Executive Summary spells out, is for those conducting State Business. The plain reading of that specific portion of the Emergency Management Act is clear and limits who it applies to.

The vast majority of our units of local government are not conducting State Business.  That being the case, the Governor should amend the Executive Order and correct the overreach and make the applicable OMA suspensions only apply to those that are conducting State Business.

We note that our original questions to the media contact for the Governor have gone unanswered.

Of additional interest will be to see what happens when the 30-day limitation on the emergency proclamation is hit.

“Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers“

I have submitted additional questions to the Governor’s office and will update if we get a response.

A copy of the Executive Summary can be downloaded at this link or viewed below.

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