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*** UPDATED x1 *** A poorly drafted rule is causing unnecessary panic and may even be unneeded

Tuesday, May 19, 2020

* A false claim by the Daily Wire

The governor’s office “filed an emergency rule that would penalize owners of restaurants, bars, gyms, barbershops and other businesses for reopening before coronavirus restrictions are lifted,” The Hill reports.

The emergency rule makes reopening early a “class A felony,” which, in Illinois, carries with it a fine of up to $2,500 and up to a year in jail.

If it hadn’t been for Rep. Skillicorn favorably tweeting this story I likely wouldn’t have seen it. As The Hill and everyone else reported, it’s a Class A misdemeanor, not a felony.

* Daily Herald

DuPage County Sheriff James Mendrick has joined a chorus of suburban law enforcement officials who say they won’t enforce Gov. J.B. Pritzker’s stay-at-home order as a criminal offense.

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On Monday, Mendrick said he decided to post the message after receiving hundreds of phone calls from “terrified citizens asking me if I’m going to arrest them” for meeting with their friends or being at a business.

He said there’s no need to threaten to arrest residents when they are staying home, wearing masks and social distancing to help curb the spread of COVID-19.

“Through community policing and education, we’ve had full compliance,” Mendrick said. “So why would I threaten a society that’s compliant?

He stressed he’s not defying Gov. Pritzker.

People are most certainly freaked out by this new IDPH emergency rule. Unveiling it late Friday with no advance notice to pretty much anyone was a really bad idea. And stories like this one just fan the flames

Illinois business owners could do jail time under Pritzker’s new emergency rules

Illinois business owners found guilty of violating the governor’s stay-at-home-orders could land in jail for up to a year under new emergency rules filed by Gov. J.B. Pritzker late Friday, two months into his executive response to slow the spread of COVID-19.

* The rule is also poorly drafted. Text message from a Democratic legislator…

There’s no language in the rule directly tying it to the Gov’s EO. So it technically can stay in place well after the EO expires. (Which will fuel a lot of the crazies and their conspiracy theories.) Of course, the rule could be withdrawn when the EO expires, but there’s no accounting in the rule for the phased re-opening contemplated in the gov’s plan. Hair salons are scheduled to reopen in stage three, but restaurants not til stage four. The rule doesn’t address that. And of course, the reopening can happen at different points geographically.

The rule is here.

* But some legislators are receiving this form e-mail…

We would like to vote NO on the following:
Vote NO against granting an overreach of the Governor’s power.
Vote NO against making changes to the Illinois Constitution granting additional power to the Governor.
Vote: “NO” to Mandatory Vaccination against COVID-19
Vote: “NO” to Mandatory Testing of COVID-19

Nobody is pushing to change the constitution. Also, arguing against mandatory vaccination probably doesn’t help their cause and testing isn’t mandatory.

* Stopping this rule will require two Democrats to cross over tomorrow

State Rep. Keith Wheeler, R-Oswego, is on the Joint Commission on Administrative Rules. He said when the commission meets in Springfield on Wednesday, he will file a motion to suspend the rules.

“That takes eight members, so it would have to be bipartisan with respect to getting a suspension,” Wheeler told WMAY on Monday.

The commission is comprised of six Democrats, three from each the House and Senate, and six Republicans, three from each the House and Senate.

The rules are in place right now, Wheeler said. If the rules are not suspended on Wednesday, they will be in place through the second week of October. He called the rules an abuse of the rule-making process.

“If they’re intent on doing this, they can do this by statute,” Wheeler said. “The push back they give on that is it’s easier to withdraw an emergency rule and that is true but we sunset things in Springfield all the time, so I’m sure that the creative minds in Springfield could find a way if everyone agreed this was good policy, which I don’t.”

* But why they even needed to issue the rule is still somewhat beyond me

During his daily coronavirus press briefing Monday, Pritzker pointed out that defying an Illinois Department of Public Health Act rule has always been a Class A misdemeanor. He said the emergency rule is simply another “tool” for local law enforcement.

“That’s the existing law today, in fact, last week and last year,” Pritzker said. “Under that existing law, law enforcement can issue a citation to the business. … This additional enforcement tool causes less harm to a business than a total shutdown or loss of a license, but gives local law enforcement the ability to do their jobs.”

Not to mention that the governor has unnecessarily created a huge uproar ahead of the first legislative session since March.

*** UPDATE *** From the governor’s media briefing…

Governor what exactly do you want JCAR to do tomorrow? I’m hearing a couple of concerns about your order lasting quote five months, can you clear that up?…

    The rule that we’ve put in place in emergency would only last until the end of this phase. That’s about 10 more days. And then in phase three a new rule would need to be issued. That’s the way it would work. It’s not something that would last five months.

It’s kinda ludicrous that they caused all this uproar over two weeks of enforcement.

- Posted by Rich Miller        

  1. - Downstate Region - Tuesday, May 19, 20 @ 11:34 am:

    If I had to speculate, it would seem that this is the Governor’s attempt at a Goldilocks solution. We won’t pull licenses, but businesses may be subject to civil fines in the discretion of their local prosecutors. But the problem is he doesn’t come out and say this, which causes confusion especially when there is also potential criminal liability. If he doesn’t want to pull licenses he should just say that. Say what you mean and mean what you say.

  2. - JSS - Tuesday, May 19, 20 @ 11:35 am:

    The key point is that it is an “Emergency Rule”, so only valid for 150 days maximum. If IDPH tried to adopt an “normal” rule, the minimum amount of time it takes to be adopted and in effect is 90 days vs. immediate for emergency rules. To make an Emergency Rule permanent the normal rulemaking process would have to take place, JCAR review, public comment periods, etc.

    IDPH and other agencies have adopted emergency rules such as the SOS extending disabled parking permit expirations to be extended 90 days. Where is Wheeler’s outrage over this emergency rule?

  3. - Oswego Willy - Tuesday, May 19, 20 @ 11:39 am:

    === Unveiling it late Friday with no advance notice to pretty much anyone was a really bad idea.===

    There’s never a good reason, in a global pandemic, to move something like is a Friday News Dump.

    This couldn’t wait until Monday? If the rule is all that is said, dropping it on Friday, like a news dump, did it make *any* difference… Saturday? Sunday?

    As an aside, once again, “nothing happens in this state… until Oswego has her say”.

    At this point, it’s now a discussion on process, not on the merits alone.

    That’s not how policy decisions should be ushered out.

  4. - RuralKing - Tuesday, May 19, 20 @ 11:39 am:

    Instead of flexing is muscle, JB should be spending his time flexing his Restore Illinois Plan. There are several differing plans to choose from where he could be magnanimus and soften his approach without completely caving in. Playing hardball with people’s lives and livelihoods is only going to make tensions worse.

  5. - DoiChef - Tuesday, May 19, 20 @ 11:40 am:

    People seem to keep minimizing what a Class A misdemeanor is. First, it is a criminal offense, not a Business Offense which would carry no jail time. Secondly, police can’t write a building a ticket. Someone (i.e. the owner) will be on the hook for the charge. Short of getting the charge dismissed it will stay with them and could impact their ability to get insurance, licenses, loans, etc. The Governor cannot rightly claim no one is going to jail. Only a judge can do that. Another part of the issue not taken into account is that the owner Must Appear in court. That means in addition to the fine, there will likely be court costs which could amount to several hundreds of dollars.

  6. - La La Land - Tuesday, May 19, 20 @ 11:42 am:

    To JSS point it appears the difference between some of the other 80+ emergency rules on JCAR agenda tomorrow is that those attempt to help citizens where this one is perceived to be a tool to “punish” people. I would agree with Rich that why was this even pursued if it is already law.

  7. - Just Me 2 - Tuesday, May 19, 20 @ 11:44 am:

    My father is convinced — absolutely convinced — this is J.B.’s way of sending out the State Police to arrest his political enemies.

  8. - Donnie Elgin - Tuesday, May 19, 20 @ 11:47 am:

    (20 ILCS 2305/8.1) (from Ch. 111 1/2, par. 24)
    Sec. 8.1. Whoever violates or refuses to obey any rule or regulation of the Department of Public Health shall be deemed guilty of a Class A misdemeanor… Each State’s Attorney shall prosecute all persons in his county

    Heavy-handed and unnecessary. In most parts of the state, the local SA and LEO are going to use their discretion and avoid implementing this.

  9. - fs - Tuesday, May 19, 20 @ 12:00 pm:

    Smartest Person In The Room Syndrome

    When you start believing you can and should do everything, eventually you’re going to do something that sounds like a brilliant idea in your head, but in reality it’s void of common sense, and the only thing it will end up doing is making people more angry and less trusting. This is one of those instances.

  10. - Norseman - Tuesday, May 19, 20 @ 12:02 pm:

    Would this action have been necessary if our leaders were united in confronting the pandemic? Instead, we have one party sowing noncompliance with public health measures as a political tactic.

  11. - RNUG - Tuesday, May 19, 20 @ 12:06 pm:

    Appears to be a reaction to (some of) the public no longer buying his messaging. As such, it is a really lousy and tone deaf PR move and guaranteed to just make some people madder.

    He needs to back off, and fast, before he loses his entire stay home message.

  12. - Lester Holt’s Mustache - Tuesday, May 19, 20 @ 12:09 pm:

    What JB needs instead is an avenue to punish LEO’s and SA’s for refusing to enforce the law. Sheriff’s and SA’s are elected, of course, but I know of one guy who has a whole heck of a lot of money that could be donated to SA and Sheriff candidates who would support their local public health departments over the demands of fringe anti-Semite protesters.

  13. - Hippopotamus - Tuesday, May 19, 20 @ 12:11 pm:

    The rule is a deflection play. It enables the GA to avoid full on debates concerning the extension of the Governor’s EO authority and a debate on what are appropriate measures.

  14. - Bob Loblaw - Tuesday, May 19, 20 @ 12:11 pm:

    How does a state ensure public health if local politicians encourage people to ignore public health laws and cops and judges refuse to enforce them?

  15. - Unstable Genius - Tuesday, May 19, 20 @ 12:15 pm:

    It seems to me that Governor Pritzker is breathing life into the Illinois Republican party - incredible.

  16. - Cadillac - Tuesday, May 19, 20 @ 12:26 pm:

    === - Lester Holt’s Mustache - Tuesday, May 19, 20 @ 12:09 pm:

    What JB needs instead is an avenue to punish LEO’s and SA’s for refusing to enforce the law. ===

    Hear that Kim Foxx?

  17. - A Guy - Tuesday, May 19, 20 @ 12:29 pm:

    Maybe he should have taken a little break, gone to the horse farm or lake in Wisconsin, and thought this one through a little more. However many people are in the room for his decisions: he needs at least one more. And not just anyone, someone with a little more clarity.

  18. - JoanP - Tuesday, May 19, 20 @ 12:30 pm:

    There’s no such thing as a “Class A felony” in Illinois.

  19. - Allin - Tuesday, May 19, 20 @ 12:44 pm:

    The following chart may be beneficial for everyone involved the next time “citations”, “Class A felonies”, and “civil fines” are discussed.

  20. - weeds - Tuesday, May 19, 20 @ 12:46 pm:

    There is a rich irony occurring. Stick with me as its very nuanced.

    The ideologues that claim to despise the person-hood of the corporation as granted in Citizens United v SEC (2010), and Santa Clara v S.Pacific (1886) and other precedent setting cases, are now using an enforcement tool directed at the “corporate person” to punish “real” humans resisting government overreach during a “real” human disease outbreak.

    Equal Protection, Due Process, Interstate Commerce, etc. seem to be available to all “persons” in the US, per precedent, maybe even during “emergencies” in Illinois.

    These are interesting times.

  21. - the Patriot - Tuesday, May 19, 20 @ 12:52 pm:

    ==What JB needs instead is an avenue to punish LEO’s and SA’s for refusing to enforce the law.==

    Even if they had legal authority, ISP and the AG lack the resources to do anything. JB really needs to get to Springfield and out of the echo chamber of Chicago. Look, you do not need 95 counties to get re-elected, but if you have any interest in governing them, get to the capitol ASAP.

  22. - Ducky LaMoore - Tuesday, May 19, 20 @ 12:56 pm:

    He is overreaching and is also being horribly misconstrued. He needs to regain control of the message pronto.

  23. - Nagidam - Tuesday, May 19, 20 @ 12:58 pm:

    What is fascinating in all this is that President Harmon and Speaker Madigan have been let of the hook for any governing during this pandemic. There is no need for court cases challenging the Governor’s EO’s. Legislatively vote them up or down. Of course we know neither of these leaders want to put their members on that button. This is a planned class in how they all agree to let the Governor take the collar ahead of the November election. Same thing with the budget.

  24. - Oswego Willy - Tuesday, May 19, 20 @ 12:59 pm:

    === if you have any interest in governing them, get to the capitol ASAP.===

    Narrator: The Governor is self quarantining.

  25. - the Patriot - Tuesday, May 19, 20 @ 1:30 pm:

    ==Narrator: The Governor is self quarantining==

    Any medically necessary quarantine will be over by Monday, he is in hiding, not quarantine.

    How many Governor’s have refused to enter their capitol since March 1? If you don’t have he courage to go to Springfield and show the people you can govern, you don’t have the courage to get us through this.

  26. - Rich Miller - Tuesday, May 19, 20 @ 1:34 pm:

    He’ll be in Springfield tomorrow. Move along.

  27. - Almost the weekend - Tuesday, May 19, 20 @ 1:36 pm:

    Meanwhile Cuomo has reopened seven of ten ten regions in New York and Pritzker is dealing with this. June 1st can’t come soon enough for his team. I shutter to think how his messaging and execution will go through June.

  28. - CG - Tuesday, May 19, 20 @ 1:50 pm:

    I’m not at all saying that JB always behaves this way, but this is all seems like a classic example of the downside of a privileged elite billionaire being Governor. He’s used to being the only one in the room making decisions. And that’s what seems to be making this go off the rails in this instance. Because when you’re used to that - it doesn’t even occur to you that you’re doing that. And on the privileged side, it kind of appears he hired some elite consultant firm such as McKinsey to come up with this convoluted plan that had lord knows how many slides in the Power Point presentation when it was presented to him.

  29. - Sky J - Tuesday, May 19, 20 @ 1:53 pm:

    My interpretation was that this was a response to the multiple county sheriff statements insisting the EO is not enforceble. Those statements, in addition to the one from DuPage, came from Kendall, Kane, and McHenry (at least, there could be more.) They fanned flames in a big way. Are those statements accurate in terms of lack of enforceability? I’m really confused.

  30. - cigare - Tuesday, May 19, 20 @ 1:59 pm:

    this is great idea,god help us

  31. - Demoralized - Tuesday, May 19, 20 @ 2:32 pm:

    ==If you don’t have he courage to go to Springfield and show the people you can govern==

    This argument that gets made over and over again about Governor’s not being in Springfield enough is one of the absolute most childish arguments that can ever be made.

    And, I’ve not seen any evidence that he’s having any problems being the Governor. But keep up your petty temper tantrum.

  32. - ajjacksson - Tuesday, May 19, 20 @ 2:39 pm:

    The Friday “news dump” reminds me of the last governor. Not a good memory….

  33. - Bourbon Street - Tuesday, May 19, 20 @ 3:06 pm:

    “C) Any person who violates the provisions of this Section shall be subject to the penalties set forth in Section 8.1 of the Act.”

    I don’t know how the Governor squares the language “any person” with what is being reported as his insistence that the new rule applies only to businesses and not individuals. I did not see in the linked rule that “person” was defined as “businesses and establishments”, but maybe I’m missing something here.

    Class A misdemeanors are serious business as the penalties include up to a year in jail. Pretending otherwise is not a good look, Governor.

  34. - Holding Back - Tuesday, May 19, 20 @ 10:10 pm:

    State money being pulled will get people in line. Everybody’s coffers being empty makes it easy to pick the winners

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* Reader comments closed for the weekend
* Pritzker thanks Dr. Ezike, extends financial protections, points to progress, says no more daily COVID-19 briefings - Calls Trump tweets "reprehensible" - "I want to send my condolences to the family of George Floyd, and also to every African American in this country" - Defends budget decisions - Credits Illinoisans for progress against virus - No bill signing ceremonies - Hopes testing progress continues - "It seems as if President Trump is withdrawing us from the rest of the world" - No out of state travel plans - Talks contact tracing - Asks Illinoisans to be careful during reopening - Will sign Medicare for undocumented seniors bill - Refuses to criticize Lightfoot for Trump comments - Talks about difficulties in securing testing locations - Dr. Ezike and Pritzker respond to question about what they've learned about themselves and leadership - "We're no longer in a stay at home order"
* 1,622 new cases, 86 additional deaths
* *** UPDATED x1 *** What in the heck is going on in Rockford?
* COVID-19 roundup
* All metro areas reporting record high unemployment rates
* School seclusion and restraint bill derailed after opposition
* Attorney DeVore asks appellate court to dissolve another TRO
* Question of the day
* Madigan issues new guidance to members, staff
* Architects abandon alternative reopening plan
* SUBSCRIBERS ONLY - Supplement to today’s edition
* House of worship attendance limit expected to be removed from stay at home order
* Open thread
* SUBSCRIBERS ONLY - Today's edition of Capitol Fax (use all CAPS in password)
* Sheriffs file suit against state for refusing to accept jail transfers
* Pritzker says IDPH has offered "suggestions" to churches - Says he's received "pushback" from some private nursing homes - IDPH will file new rule on nursing homes - Still looking at what to do about IDPH rule - Dodges question about Willie Wilson - Employers should use "common decency" when bring workers back - Will wait on feds before making any more budget decisions - Central Illinois hospitalization numbers improve - "We might potentially have to move backwards in the phases - "Not our intention" to make changes to Phase 4 guidance - No plans to dine at restaurant this weekend - No decision about ending daily briefing - Repeats that he has never encouraged police enforcement - Suggests GOP demand for IDES audit could be a "political move" - Still pondering school reopening - All testing is free - Asked about dangers of Legionella in large buildings - Testing and tracing metrics are "internal goals" - Points to federal rules on unemployment and workers who refuse to return - "Difficult for us to open theaters in the near future" - Dr. Ezike talks rules for malls - Dr. Ezike monitoring outbreak at county jail with ICE detainees
* Yesterday's stories

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