A state appeals court has told a Geneva restaurant owner and the organization that represents restaurants across the state that they should expect no reprieve from the courts in the face of orders issued by Gov. JB Pritzker, even if they will drive a large number of restaurants out of business before spring.
Late in the day on Friday, Nov. 6, a three-justice panel of the Illinois Second District Appellate Court, in Elgin, struck down an order from a Kane County judge that had allowed the FoxFire restaurant in suburban Geneva to continue operating legally in the face of orders, issued by Pritzker, that otherwise shut down indoor restaurant dining this fall in the name of reducing the spread of COVID-19.
In that ruling, the panel explicitly declared Pritzker has the authority under state law to claim emergency powers to govern by executive order for as long as he believes the disaster that caused the emergency continues.
Illinois Appellate Justice Robert McLaren
| Illinoiscourts.gov
The appellate court justices also refused to take up the question of whether the COVID-19 pandemic was severe enough to justify any of the restrictions imposed by Pritzker, even if it means putting restaurants out of business throughout the state.
The opinion was authored by Justice Joseph E. Birkett; justices Mary S. Schostok and Robert D. McLaren concurred.
Birkett formerly served as the DuPage County State’s Attorney and had been the Republican nominee for Illinois Attorney General in 2002.
The case landed at the appellate court last week, after Kane County Judge Kevin Busch granted a temporary restraining order to FoxFire.
The owners of the Geneva restaurant had sued Pritzker, asserting he had exceeded his power in imposing a new round of restrictions on restaurants and bars in Kane County and elsewhere, as COVID-19 cases have continued to rise in the region and statewide.
Under the various new gathering restrictions, indoor dining and drinking in all regions have now been ordered shut down. 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 and their trade organizations have blasted the new restrictions, saying it will mean a very large number of Illinois restaurants 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 restaurant operators have pledged to remain open, despite the orders.
Others have filed suit.
In response to the lawsuits, filed throughout the suburbs, the Illinois Attorney General’s Office, representing Pritzker, has petitioned the Illinois Supreme Court to order all the cases transferred to Sangamon County Circuit Court in Springfield. They wish to combine those cases, including the FoxFire lawsuit, with other pending cases that have also been consolidated before a judge there.
That judge on Nov. 4 dismissed six lawsuits also challenging the governor’s authority.
The Kane County ruling marked only the second time a judge had sided with plaintiffs challenging Pritzker’s assertions of authority.
In nearly all of the lawsuits, the plaintiffs have asserted Pritzker overstepped the bounds of his authority. They claim the text of the Illinois Emergency Management Agency Act limits Pritzker to exercise broad emergency powers over the state’s economy and society for 30 days after he declares a disaster. After that, they assert, the governor must secure permission from the Illinois General Assembly to continue issuing executive orders restricting activity in the state.
Judge Busch sided with that interpretation.
Birkett and his fellow appellate justices, however, said that interpretation is reached only in a “vacuum.”
Birkett said the law elsewhere expressly limits the ability of a number of other officials to continue to exercise emergency powers in the event of a disaster, but provides no such limit on the ability of the governor to continue to use emergency powers, so long as he essentially re-declares an emergency every 30 days.
Birkett also noted the Illinois General Assembly referenced the governor’s ability to issue subsequent disaster declarations in other pieces of legislation enacted this spring following Pritzker’s COVID-19 disaster declarations.
Birkett said the Kane County court had “misapprehended the correct construction” of the law, and had therefore “abused its discretion when it held that the governor was without power to make successive disaster proclamations in response to the COVID-19 pandemic.”
In addition to finding against FoxFire and upholding Pritzker’s authority to govern by executive order for as long as the COVID-19 emergency continues, the justices also addressed a brief filed by the Illinois Restaurant Association in support of FoxFire’s position.
In that brief, the restaurant association noted the impending doom facing a great many restaurants this winter, if they are not allowed to serve patrons indoors.
But Birkett said those concerns have no bearing on the governor’s authority. Further, the panel said it did not believe the courts had any business reviewing the “wisdom” behind health authorities’ actions to combat the spread of a disease.
And in a separate concurring opinion, Justice McLaren derided the premise underlying the restaurants’ arguments, which he framed as the notion that the pandemic is not severe enough to justify the restrictions.
While restaurants may go out of business under the weight of the restrictions, McLaren questioned whether that was simply the price of fighting COVID-19.
While Foxfire and the Illinois Restaurant Association “address the harm to them,” they “fail to establish just how severely the disease is or is not affecting the general public,” McLaren wrote.
“In this instance, the unstated premise is that the pandemic is not as severe or dangerous as presumed or claimed by defendants as a basis to impose the orders,” McLaren wrote. “Simply put, plaintiff has neither pled nor presented evidence that the cure is worse than the disease.”
McLaren, a former DuPage County judge, has served on the appellate court since 1988.
FoxFire has been represented in the case by attorney Kevin L. Nelson, of the firm of Myers Earl & Nelson P.C., of Geneva.