SPRINGFIELD — Gov. J.B. Pritzker Wednesday doubled back on his emergency rule that would have allowed law enforcement to prosecute “non-essential” businesses if they did not comply with his stay-at-home orders.
The administration withdrew the emergency rule and will instead allow the Illinois General Assembly to enact legislation with “the same intended mechanism,” Pritzker said during his daily press conference.
“Given the importance of what we are trying to do here, we will look to file an additional rule if legislation does not occur,” he said.
Sen. Bill Cunningham, D-Chicago, said the legislation should clarify that business owners will not be detained for violating the executive order.
“There was never any intent to see anyone arrested. There is a provision of a misdemeanor that allows for a fine. That was the intent. That was the intended enforcement tool, not a criminal charge,” he said. “So, we want to clarify that that is not part of our effort that we if there was any sanction in place, it would not be anything beyond it fine that would be adjudicated in the civil court system, or through some administrative system, and not through the criminal courts.”
Cunningham is also co-chair of the Joint Commission on Administrative Rules, a 12-person committee of state representatives and senators tasked with overseeing emergency rules.
The Illinois Department of Public Health was scheduled to testify about the rule before JCAR on Wednesday.
Without additional comments, IDPH Deputy Chief of Staff Joanne Olson confirmed to the committee that the agency would repeal the rule filed last week.
The retraction was the conclusion to a nearly three-hour delay to the start of the meeting, during which the committee’s six Democratic members met behind closed doors.
About an hour after the JCAR hearing ended, Cunningham defended the hours-long private meeting that took place before, describing it as a normal part of the committee’s process.
“This is essentially a negotiation, something that goes on every day in the [l]egislature between the executive branch and the legislative branch,” he said. “When we take any action, those actions are taken in public where it can be viewed by citizens.”
Cunningham also said the state wants to avoid revoking licenses that could have a longer lasting negative effect on a business.
“What we want to have is something that our public health departments and the police departments, that they work in concert with, to have tools to enforce the stay at home order, make sure businesses are following aspects of that order. And I think it’s fair to say we would like to do it with a soft touch,” he said.
The scrapped emergency rule stated that a person who violated those rules would be “subject to penalties set forth in Section 8.1” of the Illinois Department of Public Health Act.
Section 8.1 of the IDPH Act reads: “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.”
The decision to toss the rule came one day after the Illinois State Police announced on Twitter that it would “not issue any criminal misdemeanors to individuals for violations of temporary emergency rules or executive orders.”
The Twitter post went on to say that ISP would “only apply those emergency rules to entities such as corporations, LLPs or other business entities consistent with state and constitutional law.”
Illinois State Police Director Brendan F. Kelly, at the press conference Wednesday, said the original emergency rule was not meant to penalize businesses owners with jail time, but simply a fine.
“Let me say from the very beginning, it has been the governor’s intent from day one, that no one be arrested, no one be taken to jail,” Kelly said. “And that is the case today. The Illinois State Police have not taken anybody to jail for violations of the executive order, or for any conditions related to emergency rules promulgated by any agency during the pandemic.”
Sen. Paul M. Schimpf, a Republican from Waterloo who sits on JCAR, called the rule’s repeal a victory for the legislative branch and the separation of powers.
“It’s the General Assembly that needs to assess criminal liability, not the governor through administrative JCAR rules,” Schimpf, of counsel at Stumpf & Gutknecht P.C. in Columbia, told reporters after the meeting.
The rule’s withdrawal means JCAR won’t take additional action on it. But, the legislation Pritzker and Cunningham alluded to could be introduced and passed through the General Assembly this week.
Sen. Sue Rezin, a Republican from Morris who sits on JCAR, said that process would be more appropriate than leaving it up to members of a single committee.
“It’s more difficult to take a vote on it versus just saying you support or oppose something,” Rezin said. “So the process is what it needs to be, it’s difficult, it will be messy, but it needs to happen.”
Rezin said she thinks a legislative version of the rule could make it to Pritzker’s desk before the General Assembly adjourns Friday.