Editor's Note: This article has been revised from an earlier edition to reflect the release of written orders from two judges in McHenry County concerning two legal challenges brought by restaurant owners against shutdown orders imposed by Gov. JB Pritzker as part of COVID-19 mitigation procedures.
Two McHenry County judges denied two separate attempts by dozens of restaurants in the northwest suburban county to win court orders allowing them to legally continue operating, for now, as they challenge Gov. JB Pritzker’s emergency actions shutting down indoor dining and drinking throughout much of the state in response to climbing case counts of COVID-19.
On Oct. 30, McHenry County Judge Thomas A. Meyer rejected a request for a temporary restraining order in a lawsuit brought by more than three dozen restaurant and tavern owners. The ruling was delivered orally, from the bench, at the close of the court proceeding, and was followed later in the day by a written order.
Illinois Gov. JB Pritzker
Similarly, on Oct. 30, McHenry Judge Michael Chmiel also ruled against a smaller group of restaurant owners, who had also filed suit separately against Pritzker.
The restaurants had argued Pritzker exceeded his authority in shutting down indoor dining at restaurants and drinking at bars. As in other similar lawsuits challenging Pritzker’s emergency powers under the Illinois Emergency Management Agency Act, the plaintiffs asserted the law should be read to allow Pritzker to invoke emergency powers for 30 days after he first declares a disaster, as defined by the law.
After that, they argued, the governor must secure approval from the Illinois General Assembly to continue governing by executive order.
In response, Pritzker and the Illinois Attorney General’s Office, under Pritzker Democratic ally Kwame Raoul, has argued Pritzker has the authority under the law to continue exercising emergency executive powers over a broad swath of the state’s economy and property for as long as he believes a disaster exists, so long as he renews that disaster proclamation every 30 days.
Each of the McHenry County judges took slightly different approaches in ruling in favor of Pritzker.
Judge Meyer said changing circumstances within the COVID-19 pandemic can be used to justify new use of COVID-19 lockdown-style restrictions at different times, because changing circumstances can constitute a new disaster within the overall disaster.
Earlier this year, Pritzker’s Illinois Department of Public Health carved the state up into 11 regions. McHenry County and Lake County were paired together in Region 9.
Within each region, the state and county health departments would monitor COVID-19 transmission. Should certain benchmarks be met, new COVID-19 mitigations would be triggered, under certain tiers.
In this case, COVID-19 test positivity rates climbed above the 8% benchmark set by the state, among others.
At that point, Pritzker announced the new dine-in restrictions on restaurants and bars, among other more stringent gathering restrictions.
The pending imposition of the new restrictions then led the groups of restaurants to sue, asserting Pritzker had exceeded his power in banning indoor dining and drinking, which they said mortally imperiled their businesses.
That position has been backed by the Illinois Restaurant Association, and others, who have stated that if all restaurants are forced to close again this fall, for an indefinite period of time, many of them – perhaps as many as 20% or more of all restaurants in Illinois – would go out of business and never reopen.
However, Pritzker and the Attorney General have argued such steep economic sacrifices are justified to stave off the spread of COVID-19.
A number of judges considering similar legal challenges to the governor’s COVID-19 powers have determined the so-called “balance of harms” – in this case, economic devastation within certain industries vs. increasing number of COVID-19 infections and, potentially, hospitalizations and deaths – falls in favor of the state, not the business owners.
Judge Meyer, in McHenry County, said the surge in COVID-19 positivity in McHenry and Lake counties essentially created a new disaster, justifying Pritzker’s actions.
In an email responding to questions from the Cook County Record, attorney John Dickson, of Crystal Lake, who represented the three dozen restaurant owners in their legal action before Judge Meyer, noted that issue was not argued by either party in the case, and Judge Meyer arrived at that conclusion and interpretation of the IEMA Act “based upon his independent review of” Pritzker’s executive order shutting down dine-in at restaurants in McHenry and Lake counties.
In a separate order, Judge Chmiel downplayed the balance of harms arguments presented by the governor, acknowledging Pritzker's shutdown orders spell almost certain doom for many of these restaurants, and others.
He said Pritzker's orders mean the restaurant owners would "suffer irreparable harm ... which would cause each to permanently close its doors."
He refused to balance the restaurant owners' business failure against "amorphous harms" Pritzker asserted the state would suffer, if the restaurants were to be allowed to remain open for full service.
However, Judge Chmiel still asserted the governor has the authority to shut down the restaurants, because he believed the IEMA Act gives the governor the authority to continue to issue new disaster declarations and reassert emergency powers every 30 days.
Judge Chmiel said those findings were backed by the Illinois General Assembly's citation to such sustained emergency powers under the IEMA Act, in other legislation it passed this year after Pritzker had already begun governing by executive order.
Judge Chmiel, however, said such legal questions could have been more easily cleared up if lawmakers had taken the time to insert language into the IEMA Act explicitly granting the governor such extended emergency powers.
Dickson said he was “not sure if I agree with the decision” presented by Judge Meyer, and said he needed to consult with his clients before either asking the judge to reconsider the ruling, or before appealing to the Illinois Second District Appellate Court.
That appellate court already is expected to weigh in soon on an appeal from Pritzker and the Attorney General of a ruling handed down by a Kane County judge earlier in the week, granting a temporary restraining order, blocking Pritzker’s order from being enforced against a restaurant in west suburban Geneva.
For now, Dickson said his clientes would need to decide whether they wish to continue seeking a final judgment, “because if they’re still shut down by the time we could get that judgment, they all will almost certainly be completely out of business.”
Plaintiffs in McHenry County whose case was heard by Judge Meyer 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.
Plaintiffs whose case was heard by Judge Chmiel include the owners of: Niko's Red Mill Tavern, of Woodstock; Niko's Pointers Saloon, of Marengo; Niko's Grill and Pub, of Marengo; KC's Cabin, of Spring Grove; and Bistro Wasabi, of Lake in the Hills.