Madison County Board of Health hears outside attorney argue local boards can order reopenings

Kurt Prenzler, chairman of the Madison County Board of Health, convened a telephonic special session May 7 to hear outside counsel on the board'9s authority to close businesses or restrict movement during the COVID-19 emergency. The session was limited to one hour; public comments were placed on file.

Tom Devore, a private attorney who said he represents multiple business clients, told the board he has been advising clients across southern Illinois that local boards of health retain the power to issue quarantine or closure orders if they follow Illinois statutory and administrative procedures. "Public health is not a narrow word," Devore said, arguing it can include economic impacts and that boards should consider separation-of-powers limits on executive orders.

Madison County State's Attorney Tom Gibbons cautioned the board that advice from outside attorneys is not the county'9s legal counsel and cannot be relied upon for official action. "You may certainly listen to Mr. Devore," Gibbons said, "but he does not represent you and you cannot rely on that advice in the actions that you take."

Devore laid out five legal questions he said the board should consider: who has authority to restrict movement; whether that authority is executive or legislative; whether legislative power has been delegated to administrative agencies; who may close businesses; and how enforcement and due process are to be applied. He cited federal and Illinois case law (including Youngstown v. Sawyer and an Illinois precedent he identified as Barmore v. Robertson), the Illinois Department of Public Health Act, the Emergency Management Act, Executive Order 20-32, the Illinois administrative code for public-health orders, an Illinois Department of Public Health enforcement directive, and the state pandemic response plan.

Devore advised that, in his clients'9 experience, formal "Orders for Closure" or quarantine forms provide the factual basis a business or individual must be given and outline rights such as counsel and judicial review. "If you tell my client they must close and they refuse, local law enforcement could be asked to enforce, and then the client has access to a court to contest that order," he said. He added that many of his clients had voluntarily complied when presented with formal orders but that some sought broader county-level action.

Board members pressed Devore on specifics. One member asked how a county order to allow reopening would interact with state licensing or enforcement; Devore said state agencies had been sending enforcement letters in recent days but pointed to enforcement provisions in the governor'9s orders and said those interactions varied and required case-by-case legal review. Members also asked about childcare licensing (regulated by DCFS), phased occupancy limits, and whether municipal health departments could act differently; Devore repeatedly deferred to the State'9s Attorney for definitive legal interpretation.

Several board members urged Gibbons and his office to review the materials quickly so the board could consider phased reopenings for salons, sports organizations, childcare and other services. Gibbons said he had not received Devore'9s materials and requested the documents for review before offering an opinion.

The meeting closed with a vote to adjourn and a plan to meet again May 8 at 3:00 p.m. The board did not take any formal closure or reopening action during the May 7 session; members were left awaiting the State'9s Attorney'9s review of the documents Devore cited.