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McHenry County state’s attorney says he won’t enforce Illinois’ ban on indoor dining in restaurants

McHenry County’s top prosecutor announced Wednesday that his office will not enforce Gov. J.B. Pritzker’s order to ban indoor dining at restaurants.

State’s Attorney Patrick Kenneally issued a statement that the Illinois Emergency Management Act, which gives the governor authority to issue executive orders, does not require or empower the state’s attorney to enforce the orders.

Kenneally also wrote that there is “the legitimate question” being litigated in court over whether the governor’s repeated orders are authorized by law. So far, while two trial courts have ruled that the orders were not lawful, two McHenry County judges, as well as appellate and federal courts, have upheld the orders on at least a preliminary basis.

Kenneally said he would continue to enforce legitimate mask and distancing orders, but chided lawmakers for failing to clarify the law on “one of the most important issues this State has ever faced.”

“Rather, the Governor has taken it upon himself to unilaterally make ‘laws’ by executive order ? without any identifiable criteria or process ? that drastically impact the day-to-day lives and constitutional rights of every Illinois resident and then execute those laws,” Kenneally wrote. “This is a dangerous combination in a constitutional republic.”

Pritzker has said the law clearly gives him authority to issue the closure orders and that they are needed to prevent further illness and deaths. Nearly 12,000 people with COVID-19 have died in Illinois, and about 6,000 patients are in hospitals. Pritzker has called lawyers who argue he doesn’t have the authority to issue the orders “snake oil salesmen.”

“Surprising that a state’s attorney doesn’t want to follow the law,” Pritzker said Wednesday about Kenneally. “These are the laws of the state of Illinois, and other jurisdictions are following the law and prosecuting these fines. And that’s what they are: fines for businesses that are failing to follow the mitigations.”

Many restaurants in McHenry County and elsewhere in the state continue to defy the governor’s indoor closure order, and customers continue to patronize them, officials said.

The McHenry County Health Department reported it had 55 complaints about restaurants offering indoor dining in defiance of the order as of Monday. In response, the department issued violation notices to 36 of those establishments, and referred 11 to the state’s attorney for enforcement.

John Dickson, an attorney representing 37 restaurants and bars that were denied a request in court to overturn the governor’s closure order, welcomed the state’s attorney’s action, but said, “This doesn’t solve the big problem.”

Restaurants and bars still face the threat of losing their state liquor or video gambling licenses, which are often vital to their businesses, he said.

Pending litigation in Springfield to resolve the issue would likely take at least two years to resolve, Dickson said, by which time the restaurants might be out of business, or the pandemic and enforcement actions may be very different.

Tribune reporter Dan Petrella contributed.