Citing concerns over potential civil rights lawsuits – as well as frustration with what he said were “moved goalposts” – the mayor of a south suburban community has declared his government will not take any action to enforce Gov. JB Pritzker’s newest round of COVID-lockdown-style restrictions on restaurants and bars.
The statement from Orland Park Mayor Keith Pekau comes at the same time restaurant owners throughout the Chicago area are publicly declaring their intent to resist Pritzker’s prohibition on indoor dining and drinking, as they say complying with the edicts will amount to a death sentence for their businesses.
“This is about control and power, and not about science and data,” said Pekau in a video statement posted to Orland Park’s village YouTube channel.
In the past two weeks, Pritzker has issued executive orders purporting to forbid restaurants and bars from serving food and drink to anyone inside their establishments throughout much of Illinois, including most of its most populated areas. This week, that included new restrictions in the city of Chicago, suburban Cook County, Lake County and McHenry County. That followed restrictions imposed in Kane County, DuPage County and the St. Louis metro area, among others.
The orders allow for the continuation of outdoor dining and beverage service, as well as carryout and delivery orders.
However, with the onset of colder temperatures and wintry weather, restaurant owners, as well as trade and business groups, said the governor’s restrictions mean that many establishments will not survive the winter.
Citing the potential dire consequences of complying with the governor’s orders, restaurant owners and local government officials have pushed back. Some have pledged to simply remain open, despite the orders.
Others have filed suit. In west suburban Geneva, for instance, the owners of the Foxfire restaurant sued the governor, and earlier this week, secured a temporary restraining order from a judge in Kane County, allowing them to continue serving patrons inside their premises, at least until their legal challenge continues.
Pritzker ally Illinois Attorney General Kwame Raoul has appealed that decision. They will ask the Illinois Second District Appellate Court in Elgin to throw out the decision, and line up with most other judges in Illinois and in federal court who have heard legal challenges to Pritzker’s emergency COVID-related authority, and who have declared they believe Pritzker has not violated state law or the constitution by continuing to govern by executive order since March.
To date, only Kane County Judge Kevin Busch and Clay County Judge Michael McHaney have ruled Pritzker has exceeded his authority.
To date, the Illinois Supreme Court has yet to weigh in on the key legal question, and the Illinois General Assembly has remained out of session since March, leaving the Attorney General’s office to fend off a number of lawsuits continuing to challenge the governor’s authority.
One of those lawsuits was filed in June by the village of Orland Park, challenging Pritzker’s power to shut down entire swaths of businesses across the state, without due process. A federal judge, however, ended that legal action in August, ruling the law gives Pritzker that power, and business owners have no right to due process to challenge such decisions made in the name of combating a pandemic.
As Pritzker has moved to reinstitute indoor dining and drinking restrictions on many of the state’s restaurants and bars, Pekau said his village government will not, and cannot, enforce those restrictions.
In the video statement, Pekau criticized Pritzker and the Illinois Department of Public Health for refusing to show the data – or worse, hiding data – showing why the restaurant restrictions are needed and justified.
Pekau asserted Pritzker has continuously “moved goalposts” from the onset of the pandemic to now, accusing him of changing metrics used to determine when businesses can reopen and how they can operate.
With the new round of restrictions, Pekau said his Village Hall was restrained by state law in enforcing Pritzker’s orders. He said the law delegates that authority exclusively to state officials and agencies.
“Simply put: If the village takes any steps to enforce these orders, which may be illegal, and have been voided by a downstate judge, it opens the village up to the potential for federal civil rights liability,” Pekau said, in his video statement.
“Therefore, the village will not take any of these steps, and will leave it up to the state emergency services and disaster agencies established pursuant to the (Illinois Emergency Management Act), and the coordinators thereof, to execute and enforce the orders, rules and regulations made by the governor.”
Pekau said he would continue to work to establish a “balance between public health and our economy,” which he said is “not a binary choice.”
“We can – and must – do both,” Pekau said.