Illinois (ECWd) -
March 15, 2020, we laid out the applicable obligations of the IDPH and Local Health Departments to quarantine/isolate, and close businesses in this state as it related to the Governor's Executive Orders.
Fast forward over 6 weeks, and the law of the land is being applied in counties throughout the state, and the process to follow is crystal clear.
We have obtained two enforcement documents from a Local Health Department and we encourage everyone to read them very closely as their enforcement powers must show that you or your business "is, or may be, the source of, or contaminated with a dangerously contagious or infectious disease" if they want you to stay at home or close your business, unless you voluntarily give up your due process rights and agree to their request.
The document is a simple fill-in-the-blanks and check the applicable box enforcement document for dummies.
Do you consent to quarantine/isolation or closure of your business?
If not, and they order you to quarantine/isolate, or close your business, "the health department must as soon as practical (within 48 hours after issuing immediate order) obtain consent or request a court order except when court system is unavailable or it is impossible to do so.) 20 ILCS 2305/2(c).
No court order, no quarantine/isolation, or closure power! That is the law as we understand it and confirmed by attorneys.
They must have "A reasonable belief exists that the place identified in this order is or is suspected of being contaminated with the following dangerously contagious or infectious disease:". In short, they must have facts to support their enforcement action and that is supported by case law.
“A person cannot be quarantined upon mere suspicion that they may have a contagious and infectious disease, but the health authorities must have reliable information on which they have reasonable ground to believe that the public health by permitting the person to be at large.” (Illinois Supreme Court)
Contained within those documents are the very due process rights we spelled out over 6 weeks ago. "You have the right to counsel. If you are indigent, the court will appoint counsel for you. 20 ILCS 2305/2(c)."
How long can such enforcement last? "This closure order will remain in effect only as long as there is a danger of spreading the disease to others."
How easy is it for people to go about living their lives and open their business doors?
While it appears people could simply swing their doors open without any notice, we encourage the olive branch approach. A simple letter to your local County State's Attorney, Sheriff, and County Department of Public Health can put things in motion. Copies of two letters that have been issued were shared in this article and anyone interested can follow those same steps. We know of numerous such letters having been sent, and to date, not a single health department has taken enforcement action because they are unable to meet their burden of proof that they are a health risk. If the local health department takes no action to get a court order then there is nothing to stop people from going about their daily lives and open their businesses.
For those that read the key documents below, and our previous articles with letters used to exercise their due process rights, we must also point out we are in no way encouraging people to ignore the well-established guidance to minimize the spread of COVID-19. We all need to adhere to safety measures that recommend social distancing, washing of hands, and even staying home if you're sick or around someone who has tested positive.
When our Constitution was written our founding Fathers began with We The People for a reason. They trusted that the people are fully capable of managing their lives and vested such powers to the people to limit the Government's powers. These very documents properly explain We The People have due process rights and it is the Government's obligation to prove we are a risk to public health before trampling our rights.
If you are one of the many thousands who listened to the Executive Orders and believed you had no options, especially since they never sent out the proper enforcement documents to you, we urge you to exercise your rights and send one of those letters to the local authorities listed above and at a minimum, you're going to see very quickly if the government has any facts to support the obtaining of a court order to force you to stay home or close your business. If you're not comfortable taking those steps on your own, then by all means contact an attorney. The letters published in this article were prepared by a lawyer.
The enforcement documents can be downloaded at this link or viewed below.