Editor's note: This story has been updated and revised from an earlier version to reflect a judge's decision to reject the request for a temporary restraining order.
Restaurants and bars in DeKalb County, Rockford and elsewhere in northwest Illinois will be ordered to close their indoor lounges and dining rooms in the name of fighting COVID-19, after a DeKalb County judge refused a request from a group of DeKalb area restaurant owners for a temporary restraining order blocking Gov. JB Pritzker from imposing new restrictions.
The restaurant owners in DeKalb had banded together to sue Pritzker in the hope of stopping the new COVID-related mitigation measures from taking effect.
Bradley Melzer
| Cronauer Law
The seven restaurant owners had filed suit on Oct. 1 in DeKalb County Circuit Court in Sycamore, asserting Pritzker and the Illinois Department of Public Health, under his control, had “usurped” the power of county health departments by imposing activity restrictions on a regional basis, rather than by county.
The lawsuit asserts DeKalb County’s restaurants, bars and other businesses are being unfairly "punished," simply because Pritzker and his IDPH “lumped” the county together with other counties – including some that at least two to three hours away - whose COVID-19 metrics are worse.
“If the goal of the Governor and IDPH is to ‘keep as much of our state open as possible,’ then the broad overreach by lumping counties together by region frustrates this purpose and is not narrowly tailored given the science or data presently available to them for each County,” the complaint said.
As a result, the plaintiffs said they stand to lose half or more of their income, should the court allow Pritzker to lock their doors.
The lawsuit was filed by attorneys Bradley M. Melzer and N. Nicholas Cronauer, of Cronauer Law LLP, of Sycamore.
Plaintiffs in the action include the owners of restaurants in and around DeKalb and Sycamore, including Fatty’s, Remington’s Gastropub, the Lincoln Inn and Faranda’s Banquet Center, Ellwood Steak & Fish House, the Junction Eatery, MVP Sports Club and El Jimador Mexican Grill.
El Jimador had just opened its doors earlier in the week.
In arguments Friday afternoon before the judge, with just hours to spare before they would be ordered to close their doors, the restaurant owners' attorneys sought to persuade DeKalb County Judge Bradley J. Waller to back their assertion that the governor had violated their rights to equal protection in imposing the new restrictions across the IDPH's so-called "Region 1" in Illinois.
They said they did not dispute Pritzker's authority to implement public health-related activity restrictions. Rather, they said, the manner in which Pritzker has enforced the restrictions violates state law and the rights of business owners.
They said the business owners in DeKalb County had "played by the rules" laid out by the IDPH, and, as a result, the county's COVID-19 numbers are significantly lower than those of other counties in Region 1, which stretches from DeKalb County north through Rockford to the Wisconsin state line and west to Mississippi River and the Iowa border.
"They are punishing DeKalb County for the sins of others," said Cronauer.
The lawsuit takes aim at Pritzker’s so-called “Restore Illinois” plan. The plan was rolled out earlier this year, as Pritzker eased back on strict regulations imposed in March under his stay at home orders. Under those orders, a wide range of businesses were either closed or severely limited in their ability to continue to operate.
Under the Restore Illinois plan, the state was divided into 11 geographic regions. DeKalb County was included as the easternmost county in Region 1, as it borders the Chicago suburbs to the east and north.
Within the 11 regions, the state tracks COVID-19 data, and has established guidelines for either tightening or easing restrictions in response to the severity of the virus outbreak within the region.
For instance, if a region experiences COVID positivity rates of 8% or more for three consecutive days, and triggers at least one other warning metric laid out by IDPH, Pritzker could order additional mitigation, in the name of slowing the spread of COVID-19.
To date, the IDPH has slapped additional restrictions on two other regions: Region 4, which borders St. Louis in southwest Illinois, and Region 7, which includes Will and Kankakee counties.
The restrictions were lifted in Region 7 after several weeks. However, the restrictions remain in place in Region 4.
Those restrictions have included closing bars to indoor guests, and closing all indoor dining at restaurants, among other measures.
Earlier this week, Pritzker and the IDPH announced similar mitigation measures for Region 1, including DeKalb County, beginning Saturday, Oct. 3. The restrictions would not be lifted until Region 1 achieves COVID positivity rates of no more than 6.5%.
However, the businesses said DeKalb County’s COVID-19 metrics are significantly better than those of other counties in the region, and are more comparable to those of suburban counties, like Kane and Kendall, which border DeKalb County. So, they said, DeKalb’s restaurants are being unfairly punished for problems caused by others far away.
The lawsuit challenges Pritzker’s ability to impose restrictions by region, asserting the law delegates public health powers to the county health departments, not by “arbitrary” regions created by Pritzker and the IDPH.
The actions against the DeKalb restaurants were “taken … in an arbitrary and capricious way,” because DeKalb County happens to be located “within the artificial lines drawn and re-drawn” by Pritzker and the IDPH, the lawsuit said, and “despite publicly available data being released showing the positivity rate in DeKalb County is below the actionable level.”
“By lumping DeKalb businesses with other counties who are 100 miles away, the ‘regions’ are both against the Governor’s stated goal of coordinating with local officials and keeping as much of the state open as possible based on science and data,” Melzer said in his statement.
“Even under the governor’s authority and goalpost of an 8% positivity rate, DeKalb County is being arbitrarily lumped together in a ‘region’ where only three of the eight counties currently exceed that threshold.
“Our clients in DeKalb County have taken this pandemic seriously and have been following all the appropriate guidelines. To now be punished for another counties (sic) spike in COVID-19 cases is not only unjust, but an unequal application of the law.”
Before Judge Waller, the plaintiffs asserted the proper approach under the law would be a "more surgical" approach, which allows counties to stand and fall on their own numbers.
They said the DeKalb County restaurants are asking the judge to order the state to treat DeKalb County the same as "93 other" Illinois counties, which have similar COVID-19 health statistics, yet are allowed by the state to remain open.
In response, the Illinois Attorney General's office argued the temporary restraining order could not be granted, because to do so would amount to the judge improperly "second guessing" the decisions of the governor and public health officials.
They said the regions were not drawn arbitrarily, but were designed to correspond to the state's historic hospital regions - meaning, where patients in a given county may be taken for certain kinds of medical care. They said DeKalb County has such a historic hospital relationship with Rockford.
So, even though COVID-19 numbers in DeKalb are significantly better than those in Rockford, DeKalb County could be grouped with Rockford's Winnebago County.
Further, the state argued the restaurant owners' right to operate a business and pursue their profession is not a "fundamental right," which could be subject to so-called "strict scrutiny." That, they said, is left for alleged violations of the "fundamental rights" of individuals, such as speech, religious freedom and assembly, among others, as well as cases of discrimination.
In this case, they argued, the correct legal standard for reviewing the governor's decisions is the so-called "rational basis," which essentially asserts that, so long as there is a rational relation between the governor's actions and an identifiable state interest, the actions are acceptable, whether or not they destroy businesses and result in unemployment.
In this case, they said, stopping the COVID-19 pandemic is such a state interest, so Pritzker's actions should be allowed under the law.
Judge Waller said he was required to put his "personal feelings aside," as he disagreed with rulings in other courts that have backed the governor's position. However, he said, the state's argument is correct.
He denied the temporary restraining order.
The lawsuit will otherwise continue, even as the governor's restrictions take hold, bars are closed and restaurants in Region 1 are restricted to carryout, delivery and outdoor dining, where still available this fall.