The owners of a west suburban restaurant will ask the Illinois Supreme Court to weigh in on the question of whether Illinois Gov. JB Pritzker has the power under Illinois state law and the state constitution to shut down businesses by executive order in the name of fighting the COVID-19 pandemic, for as long as the governor determines such emergency powers are needed.
Attorneys for FoxFire restaurant in Geneva announced they will be appealing to the state high court, seeking to undo a decision against the restaurant from the Illinois Second District Appellate Court, which they said “misstates law and fact.”
“Unfortunately, the Second District has decided to play politics rather than applying the statute,” said attorneys with the firm of Myers Earl & Nelson, of Geneva, in a prepared statement. “This case is about separation of powers, which the Appellate Court has missed completely.”
On Nov. 6, a three-justice panel of the Second District court in Elgin, led by Republican former DuPage County State’s Attorney Joseph Birkett, declared they believed Pritzker’s power to fight infectious disease pandemics and respond to other statewide disasters have no firm time limits. They said state law allows the governor to claim and use emergency powers to govern by executive order for as long as he believes the pandemic or other disaster that caused the emergency continues.
The ruling was delivered as an unpublished order under Illinois Supreme Court Rule 23, which would limit its use as precedent.
However, it marked the first time the state’s appeals courts have fully weighed in on such challenges to Pritzker’s authority.
Pritzker first declared a statewide emergency in March, taking on emergency powers to limit a broad swath of the state’s economy and society. Pritzker’s orders have, at various times since, shut down entire segments of the economy and banned nearly all gatherings.
Those restrictions loosened in late spring and through the summer, as the COVID-19 infection rate appeared to ebb.
However, this fall, Pritzker has reimposed various restrictions, as COVID-19 numbers have quickly climbed. Those restrictions began with again prohibiting indoor dining and drinking at restaurants and bars throughout the state’s various regions.
Pritzker’s orders have, since May, spawned an array of legal challenges from business owners, state legislators and churches, among others. They claim Pritzker has overstepped the bounds of his authority, and has trampled property rights, assembly rights, speech rights and religious freedoms, while also violating constitutional guarantees to due process and equal protection.
To date, only two judges who have heard such lawsuits have sided with the plaintiffs. In July, Clay County Judge Michael McHaney granted judgment to Illinois State Rep. Darren Bailey, R-Xenia, in southeastern Illinois.
And in October, Kane County Judge Kevin Busch granted a temporary restraining order to FoxFire, blocking Pritzker and the Illinois Department of Public Health from enforcing Pritzker’s indoor dining ban against the restaurant.
Both judges said they believed state law limited Pritzker to exercise emergency powers for only 30 days after he declared a disaster. After those 30 days expire, they said, the Illinois Emergency Management Agency Act should be read to require the governor to secure permission from the Illinois General Assembly to continue exercising those powers.
The governor, however, has argued that he can continue to essentially re-declare the same disaster every 30 days, resetting the clock on his use of emergency powers.
Pritzker and the Illinois Attorney General’s office appealed Judge Busch’s restraining order to the Second District Appellate Court, which delivered a quick decision in favor of the governor.
The unanimous panel backed Pritzker’s interpretation of the law, and said it believed the General Assembly’s Democratic majority shared that opinion, citing legislation approved since Pritzker first imposed his emergency powers. Those new laws appear to assume the governor has that authority, the justices said.
The unanimous opinion shied from tackling the question of whether the COVID-19 pandemic has been severe enough to justify the economic restrictions Pritzker has imposed.
FoxFire and other restaurant owners, and their trade associations, have said the restrictions will gut Illinois’ restaurant and hospitality industries, causing a large number of them to close their doors forever, if they are not allowed to serve patrons indoors this winter.
Another justice on the panel, Robert McLaren, however, questioned whether restaurants going out of business may simply be a price of fighting COVID-19. McLaren said the restaurants have failed “to establish just how severely the disease is or is not affecting the general public.”
“Simply put, plaintiff has neither pled nor presented evidence that the cure is worse than the disease,” McLaren said.
In their statement in response to the ruling, FoxFire’s attorneys said the justices were wrong on the law and their conclusions.
They said they hope the state Supreme Court justices will correct what they say are the mistaken conclusions reached by the Second District panel.
“… FoxFire will file their appeal to the Supreme Court of Illinois where they hope justice will be served – against the Governor’s overreach and for the ability of a local restaurant to continue to pursue its calling, safely,” they said.
An attorney for FoxFire said they have about a month to file their petition to the Illinois Supreme Court, but hope to do so sooner.
At the same time, he said they will fight an effort by Pritzker and the Attorney General’s office to transfer FoxFire’s case from Kane County to Sangamon County court in Springfield.
The state attorneys have asked the Supreme Court to consolidate FoxFire’s case, along with a slew of other lawsuits brought by restaurant owners in Cook and McHenry counties and elsewhere, with a collection of similar legal challenges now pending before Sangamon County Judge Raylene Grischow.
State Rep. Bailey’s original lawsuit also remains pending before Judge Grischow, after it, too, was transferred from Clay County to Sangamon.