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Prosecutorial discretion is not a major victory

Friday, Oct 16, 2020

* The far right is attempting to turn this into some sort of big legal victory

Monroe County State’s Attorney Chris Hitzemann filed a “motion for nolle prosequi” Thursday, declining to prosecute a citation issued by Illinois State Police to Washy’s Saloon in Waterloo last month when it failed to abide by mitigation efforts as ordered by Gov. JB Pritzker that prohibited indoor service of patrons.

“The citation in this matter states that defendant violated 20 ILCS 2305/8.1, particularly Rule 690.40, by allowing indoor service of patrons,” the filing states. “No such rule exists; however, the state presumes that the citation intended to cite Rule 690.50. Nowhere in (that rule) is indoor service of patrons prohibited.”

On Sept. 17, ISP visited Monroe County to see if bars and restaurants were complying with mitigation measures aimed at curbing the spread of the virus in the metro east. Those mitigations have since been lifted in the metro east. […]

“In response to a consistently high positivity rate in Region 4 and complaints about a small number of businesses violating public health rules, the Illinois Department of Public Health requested assistance from the Illinois State Police in our role of helping to enforce IDPH emergency rules,” ISP Central Acting Deputy Chief Mindy Carroll said at the time. “As outlined in the administrative rule, enforcement is an incremental process starting with a notice of non-compliance. If businesses continue to not comply, as has been the case in some instances in Region 4, state or local law enforcement can issue the business a misdemeanor citation, similar to enforcing indoor smoking laws. Local state’s attorneys determine how to proceed as they would in any other misdemeanor case.”

Tom DeVore is the restaurant’s attorney.

* This is what a motion for nolle prosequi means

A nolle prosequi is the formal entry of record by the prosecuting attorney by which he or she declares that he or she is unwilling to prosecute a case.

That’s it. And with the restrictions now lifted in the region, why even bother?

- Posted by Rich Miller        

  1. - Club J - Friday, Oct 16, 20 @ 6:25 am:

    Thanks Rich for explaining this situation clearly. I just caught a piece of it last evening. I noticed DeVore was claiming a major victory and beating on his chest as he beat the Governor. His first win outside of Clay County. Isn’t such a big win after all looking at the law.

    I did watch him in action in Sangamon County and he sure was given a lot of leeway by the Judge for a guy who doesn’t follow the rules. That Bailey case seems to go on forever.

  2. - DuPage Saint - Friday, Oct 16, 20 @ 7:56 am:

    It is a major victory if it is the only one you got

  3. - Friday morning - Friday, Oct 16, 20 @ 8:07 am:

    So … the ISP cited a rule that didn’t exist. Citation should be dropped or found not guilty of charges. The prosecutor went on to state that a different one was probably the closest applicable one but that had nothing that he could prosecute so he was requesting the charges be dropped. Does not particularly sound like prosecutor discretion.

  4. - Precinct Captain - Friday, Oct 16, 20 @ 8:23 am:

    Enterprising prosecutors come up with stretches all the time. Usually to attack people. Now, it’s in the opposite direction.

  5. - TheInvisibleMan - Friday, Oct 16, 20 @ 9:13 am:

    There will be more of these decisions from local prosecutors. The only reason the ISP is going into these places is because local law enforcement is refusing to do their jobs. It’s the local attitude that is causing this to happen in the first place, and that attitude goes all the way up to elected officials.

    I expect the citations issued in Winnebago county recently to meet a similar fate.

    At some point, the state AG is going to have to take over on these cases, for the same reasons the ISP had to take over from the local sheriff.

  6. - walker - Friday, Oct 16, 20 @ 9:23 am:

    A “victory” for continuing the COVID hospitalizations and deaths in Illinois, and for ensuring businesses and schools do not safely open for many months later than they could have. Congratulations.

  7. - Norseman - Friday, Oct 16, 20 @ 9:32 am:

    As the cases of Covid increase, the Covid enablers go into super drive. Like Lemmings, they blindly follow their tribe to their end. This is a really sick time for America.

  8. - Motambe - Friday, Oct 16, 20 @ 9:33 am:

    Agree with TheInvisibleMan. State AG will need to get involved. In the last 4 or 5 weeks numerous bars and restaurants opened indoor dining in Monroe And Randolph Counties. Local discussion focused on why was Washy’s selected for a citation? And among attorneys and city officials, does the Governor have the authority for rolling executive orders? That could be fixed if the General Assembly passed a bill giving him that authority. But do they have the cajones to do that in the months leading to an election?

  9. - Steve Polite - Friday, Oct 16, 20 @ 9:47 am:

    @Motambe The GA has already given the Governor the power to issue rolling executive orders with the authority to issue each new, consecutive emergency declaration. There is no need to do more. The GA’s silence is tacit approval of what is already state law.


  10. - Glenn - Friday, Oct 16, 20 @ 10:53 am:

    High Covid-19 infection rates keep people away from businesses.

    Too many rational people don’t want to turn a shopping trip into attendance at a super spreader event.

    The Right-to-infect-and-be-infected crowd doesn’t like their rights infringed and don’t like empty business either.

    Tantrums won’t make the virus go away or force the Covid-19 wary into throwing caution to the wind.

  11. - Thomas Paine - Friday, Oct 16, 20 @ 10:57 am:

    @TheInvisibleMan -

    The Illinois AG does not have the authority to prosecute these cases I don’t think.

    Illinois is the worst-ranked Democratic state in the nation when it comes to fighting the coronavirus because of the lack of compliance in downstate Illinois.

  12. - TheInvisibleMan - Friday, Oct 16, 20 @ 12:17 pm:

    ===Thomas Paine===

    People often forget, but the AG office is the top legal enforcement agency in the state. The IL AG does have the authority to prosecute these cases and if the local prosecutors fail to do so(and some certainly will) I expect we will see that happening this winter.

  13. - PM - Wednesday, Oct 21, 20 @ 7:29 pm:

    From what I’ve read, no business in the state of Illinois had been issued a monetary fine due to the JCAR decree. State attorneys can’t prosecute or won’t prosecute. The state can’t pull licenses without giving the business a chance to go to court over it. It’s already a foregone conclusion that Madigan won’t let the General Assembly make it a legislative law (which would make sense if you want judges to impose penalties, judges can’t do anything without actual legislating law). If he did so he’d lose his majority and Pritzker would be up s*** creek.

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