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MORRIS – Grundy County State's Attorney Jason Helland delivered a message on his Facebook page Wednesday.
During the message, Helland said that his office will not be filing charges that come from violating Governor JB Pritzker's extension of the stay-at-home order, which was originally issued March 20 and extended on April 23 to run through May 30.
"A lot of people had questions about the enforceability of the stay-at-home order," Helland said. "Criminal liability, businesses re-opening in the area and things of that nature."
Helland said that all of the state's attorneys in Illinois received a memo from the Appellate Prosecutor's Office. He explained that if anyone is convicted in a criminal case, the case goes to appeal and the Appellate Prosecutor's Office handles those cases.
"We rely heavily on the Appellate Prosecutor's advice on the enforceability of certain criminal offenses," Helland said. "We were given a memo from the Appellate Prosecutor's Office that essentially said that their belief is that the executive order that the Governor entered in March is not a constitutional order, that it violates the constitution and is essentially null and void at this point. That is because the Governor, under the Emergency Assistance Act, only has 30 days to have emergency authority over things that are in nature. Usually the Governor declares disasters when there is a tornado, like in Coal City, or if there is a flood and there is a disaster proclamation. There has never in the state of Illinois had a disaster proclamation last for more than 30 days, so we are in some very unusual territory here.
"Basically, what the Appellate Prosecutor stated is that when the executive branch or legislative branch infringes on fundamental constitutional rights, the state action is subject to strict scrutiny, which means that the state action must be narrowly tailored to the compelling state interest, such action is narrowly tailored if targets and eliminates no more than the exact source of the evil it seeks to remedy, and the state must utilize the least restrictive means consistent with the attainment of that goal. So, basically, the Appellate Prosecutor went on to say that when the government takes actions that affect constitutional rights like liberty interests, they must be narrowly tailored to have a compelling state interest, and they also noted that there is no pandemic exception to the fundamental liberties in the constitutional safeguards, stated that the governor cited several sections of the Emergency Management Act as his authority for the executive order and stated that the act clearly permits the governor to declare a disaster and suspend certain statutes.
"However, it says that there is an exception in the act that states that that law shall not be construed to affect responsibilities of police forces or fire fighting forces or any personnel thereof. Then it says, finally, the act appears to provide the governor a maximum of 30 day window with the disaster proclamation."
With that information, Helland announced that his office will not file charges for violation of the stay-at-home order.
"Currently as established, it is the belief of the Appellate Prosecutor that the executive order is unenforceable," Helland said. "Since the executive order is not enforceable, we are not going to be criminally prosecuting anybody for the violation of that order because a conviction will not stand. If somebody is prosecuted, the conviction will not stand on appeal, and I am not going to put myself in a civil liability situation where I am giving bad legal advice to individuals that are going to get the county sued for money damages.
"It also states that the the stay at home recommendations and social distancing are great recommendations. Those things should be practiced, but criminal enforcement of the executive order is a different question."
Helland also said that the memo said that the research leaves attorneys confident that a review in court would hold that the Governor has the authority to close business, bar attendance at church services and assemblies of more than 10 citizens, particularly when they are expressing their First Amendment rights, such as protesting at the Thompson Center, but from a strict enforcement standpoint, although well-intentioned on an emergency basis, the executive order is overly broad, and does not appear to meet strict scrutiny under Supreme Court standards. It is the Appellate Prosecutor's opinion that the executive order is unenforceable.
"My legal advice is going to be that nobody from the State's Attorney's office is going to be filing criminal charges merely for the violation of the executive order," Helland said. "I would state that, as it says in the memo, that the stay at home order and social distancing are great recommendations, even though that I believe that the order is not enforceable, I am continuing to stay at home and engaging in social distancing recommendations. Because, although this is not legal and is not enforceable, it is about doing what is morally right and making sure that I am not a carrier of a virus and I am not getting somebody sick. So, that's my personal choice. But the personal choices of other people are governed by laws and statutes, not by an executive order that is not enforceable."
Helland said that the only situations that he could see where criminal liability may occur because of the violation of an executive order would be extreme situations.
"The Governor was asked during a press conference that if somebody violates your executive order, what is the criminal penalty?" Helland said. "He [Pritzker] said, 'Of course, it's reckless conduct.' Well, reckless conduct is the willful disregard of the safety of another. In my opinion, in order to reach that standard, you would have to knowingly test positive for COVID-19, be in a public place and coughing on people to get to that willful standard of committing a criminal act. Reckless conduct would be somebody who knows that they are sick and they are out in public. That would be a major issue. Test positive, do an act to infect another. That would be a criminal act.
"Another thing that we have seen with the executive order, as I stated is not in and of itself criminally enforceable but could be a situation that happens, is a criminal trespass. If I walk into a big box retailer and they ask me to put on a mask and I don't put on a mask and they say you have to leave the store and I don't leave the store, that could be a criminal trespass. If a park is posted, 'Don't come in here because the park is shut down,' and you go are in there, you are given notice not to be there and you go there, that could be a criminal trespass."