Illinois Gov. JB Pritzker will need to defend against two more lawsuits from restaurant owners in Chicago’s suburbs, challenging his authority to shut down indoor dining in the name of COVID-19 – regulations the restaurant owners will all but put them out of business.
On Oct. 28, the owners of the Brauer House restaurant, bar and live entertainment venue in Lombard filed suit in DuPage County Circuit Court in Wheaton against the governor.
That was followed on Oct. 29 by a lawsuit filed in McHenry County Circuit Court in Woodstock on behalf of more than three dozen restaurants from across that county.
McHenry County State's Attorney Patrick Kenneally
| mchenrycountyil.gov
Both lawsuits accuse Pritzker of overstepping his authority under Illinois state law in implementing COVID-19 mitigation measures that restaurant owners and their trade associations have said are questionable, if not illegal.
In recent weeks, Pritzker has issued executive orders requiring the owners of restaurants and bars throughout the Chicago area and most of the rest of Illinois to close their dining rooms and indoor taverns and lounges. The governor has asserted the measures are needed to combat a rising spread of the novel coronavirus that causes COVID-19.
The orders will allow restaurants and bars to continue serving food and drink outside or by carryout and delivery.
With the onset of wintry weather, however, restaurant and bar owners have said the measures leave them in precarious positions, as compliance now could mean they may not open for months. That, say many restaurant owners and the Illinois Restaurant Association, means that many who close now will never reopen again.
The moves have triggered varying responses from restaurant owners. While most have closed in compliance with the orders, others have resisted. Some have chosen to simply remain open, in defiance of the shutdown orders. Several others have filed lawsuits, seeking court orders forestalling or preventing their closures.
In Kane County, a judge granted a temporary restraining order to Geneva restaurant Foxfire, allowing it to stay open while its legal challenge continues. The Illinois Attorney General’s Office, representing Pritzker, has filed an appeal, saying the ruling is out of step with the bulk of rulings from federal and county judges who have handled other legal actions brought against Pritzker.
Both cases particularly take aim at the ability, claimed by Pritzker, to continue to issue disaster proclamations under the Illinois Emergency Management Agency Act every 30 days since March, which, he says, give him power to regulate broad swaths of the Illinois economy in the name of fighting the COVID-19 pandemic.
Plaintiffs, however, say the law should actually be read to limit Pritzker to one 30-day disaster proclamation. After that, they said, the governor must obtain permission from the Illinois General Assembly to continue governing by executive order.
Further, the plaintiffs point to language in Illinois law which requires the Illinois Department of Public Health to obtain court orders if it wishes to shut down businesses. To this point, the lawsuit said, the IDPH has refused to do so, despite Pritzker first declaring a disaster at least 230 days earlier.
“The State Department of Health has had more than adequate time since then to obtain a prior order authorizing the closure of … bars and restaurants but has failed to do so,” the McHenry County plaintiffs wrote.
They argued this robs them of their rights to due process to challenge a government action taken against them.
Many other cases have similarly taken aim at those aspects of the law and Pritzker’s orders against businesses since he began restricting business activity in Illinois in March.
To this point, however, only one judge, in Clay County in far southeastern Illinois, has declared Pritzker’s orders unconstitutional. That case, however, was redirected by the Illinois Supreme Court to a judge in Sangamon County court in Springfield, where it was combined with other legal challenges brought by the same attorney, Thomas DeVore.
In McHenry County, the plaintiffs are represented by attorney John P. Dickson, of Dickson Law Group, of Crystal Lake.
In DuPage County, the Brauer House is represented by attorney Joel Rabb, of Chicago.
Both the cases also name as defendants the local county health department.
In McHenry County, for instance, that will trigger representation of the McHenry County Health Department by the McHenry County State’s Attorney’s Office.
McHenry County State’s Attorney Patrick D. Kenneally has earlier filed a brief in federal court, asserting he also did not believe Pritzker had the authority to issue anti-COVID orders until he decides to stop.
In that brief, filed in May, Kenneally blasted the “anemic” legal rationale presented by the Illinois Attorney General’s office in defense of Pritzker’s COVID shutdown orders, and particularly of Pritzker’s assertion he can continue to re-declare a disaster every 30 days, until he alone determines the disaster has ended.
“The Attorney General’s position is essentially that the court should set the precedent that an Illinois governor may – with no check, identifiable criteria, formal deliberation, or process – unilaterally consider and evaluate the reports and data germane to the question of whether a disaster exists and single-handedly determine the necessity for a proclamation indefinitely,” Kenneally wrote in the brief.
“… It would be no small affront, absurdity, or injustice to our constitutional form of government to interpret the Act to permit over 13 million Illinoisans to essentially live under the reign and decision-making of one individual for that period preceding the availability of a vaccine,” Kenneally continued.
Plaintiffs in McHenry County include the owners of: Woods Creek Tavern, in Lake in the Hills; 750 Cucina Rustica, in Cary; D.C. Cobbs, in McHenry and Woodstock; Andy’s Restaurant, in Crystal Lake; Tony’s Café, in Crystal Lake; BBQ King Smokehouse, of Huntley and Woodstock; Bold American Fare, of Algonquin; Buddyz Pizza, of McHenry; Cary Ale House & Brewing Company, of Cary; The Tracks Bar & Grill, of Cary; Cattleman’s Burger and Brew, of Algonquin; Clausen’s Tavern, of Union; The Hidden Tap, of Cary; Dino’s Pizza & Pasta, of Lake In the Hills; Kim and Patty’s Café, of McHenry; Fire Bar & Grill, of Crystal Lake; Hart’s Saloon, of Hebron; Burnt Toast II, of Algonquin; Public House of Woodstock; Metalwood Grille, of McHenry; Cucina Bella, of Algonquin; The Cottage, of Crystal Lake; The Cabin, of Woodstock; Offsides Bar & Grill, of Woodstock; Bub’s Subs, of Algonquin; Pablo’s Family Fiesta, of Crystal Lake; Rosati’s, of Harvard; Hoops Sports Bar & Grill, of Hebron; Stucky’s Bar & Grille, of Johnsburg; Papa G’s Restaurant, of Huntley; Around the Clock Restaurant, of Crystal Lake; Benton Street Tap, of Woodstock; The Breakers, of unincorporated McHenry County; Whiskey and Wine, of Algonquin; and Windhill Pancake Parlor, of McHenry.