The owners of a restaurant in suburban Geneva have asked the Illinois Supreme Court to overturn a state appellate court ruling that has been used to shoot down a number of legal challenges to Gov. JB Pritzker’s emergency COVID powers, as they say the ruling essentially rewrote state law and allowed the governor to trespass the constitutional limits to his authority.
On Dec. 18, attorneys for FoxFire restaurant filed a petition with the Illinois Supreme Court, asking the court for permission to appeal a decision from the Illinois Second District Appellate Court. In that ruling, the Second District court tossed out a Kane County judge’s injunction against Pritzker, allowing FoxFire to remain open in spite of Pritzker’s orders shutting down indoor dining in the county.
The Second District rejected the Kane County judge’s ruling that Pritzker’s powers are limited by a provision in the Illinois Emergency Management Agency Act, which states the governor can only exercise emergency powers for 30 days following a disaster declaration.
The appeals panel ruled state law allows the governor to govern by emergency executive orders for as long as he believes a pandemic or other disaster continues, so long as he renews that disaster declaration every 30 days.
It marked the first time the state’s appeals courts had fully weighed in on such challenge to the emergency powers Pritzker has exercised since declaring a statewide disaster in response to onset of the COVID-19 pandemic in Illinois in March.
Pritzker’s COVID-response orders have since shut down entire segments of the economy and banned nearly all gatherings for weeks or months at a time. The governor reimposed many limits earlier this fall, as cases of COVID-19 again surged in Illinois.
Pritzker has also flatly refused to consider easing those restrictions, at least until after the holidays, even as COVID-19 infections and hospitalizations have ebbed across the state since mid-November.
Among the first of the limits reimposed this fall was a ban statewide on indoor dining at restaurants.
FoxFire and a number of other restaurant owners, including from McHenry and DeKalb counties, went to court to challenge those orders, asserting Pritzker had overstepped his authority and mortally endangered their businesses.
The Illinois Supreme Court has since ordered those other cases sent to Sangamon County Circuit Judge Raylene Grischow in Springfield, consolidated with several other lawsuits leveling similar claims against Pritzker.
Grischow has used the Second District ruling to toss several of those legal challenges, including, most recently, a lawsuit brought in Clay County, in southeastern Illinois, by State Sen. Darren Bailey, R-Xenia.
Grischow’s string of rulings upholding Pritzker’s powers, buttressed by the Second District decision, has persuaded some restaurant owners to simply abandon their challenges altogether.
Attorney Bradley Melzer, representing restaurant owners in DeKalb, for instance, told the Cook County Record: “Given this particular judge’s prior rulings on similar litigation, the appellate court litigation which has been decidedly pro-governor, the further expense imposed by having the case transferred, and the potential for our clients to be negatively impacted from continued litigation, we decided to voluntarily dismiss our case.”
With the pro-Pritzker rulings mounting in Sangamon County court, FoxFire opted to seek the intervention of the Illinois Supreme Court.
In the petition for leave to appeal, FoxFire asserts the Second District ruling wrote provisions into the IEMA Act that are not there.
They argue state lawmakers intentionally limited the governor’s “power to shutter businesses” in response to disease pandemics by both delegating that power to the Illinois Department of Public Health and by imposing a 30-day time limit in the IEMA Act.
“FoxFire maintains that our Legislature understood the power to shutter businesses is an extraordinary one,” they wrote in their petition. “This is why it delegated this power to the Department of Public Health, not the Governor, and tempered the power with strict statutory due process requirements.
“Instead of following this IDPHA procedure, which still allows for immediate State action, our Governor used his own emergency power to rewrite the law. Instead of checking this executive overreach in its review, the appellate court condoned it,” FoxFire wrote.
Allowing the decision to stand, FoxFire argued, would allow Pritzker to continue to take authority given by the state constitution to the General Assembly and would leave “the restaurant industry out in the cold and without legal redress.”
FoxFire also argued the appellate court wrongly sidestepped the Illinois Department of Public Health Act. While the due process procedures spelled out in the IDPH Act would be triggered by orders closing businesses, the state has argued and the courts have ruled Pritzker’s indoor dining shutdown order did not amount to an order actually closing restaurants.
Further, the state argued and the courts ruled that the due process procedures in the IDPH Act would tie Pritzker’s hands in responding to a pandemic.
Not so, FoxFire argued, as the IDPH Act gives the department the power to close businesses immediately, if warranted. The business, however, would have the ability to challenge the closure later.
In this instance, FoxFire said, Pritzker decided to simply “suspend” the IDPH Act, and ordered indoor dining closed statewide, indefinitely.
“The Legislature already gave the State a clear and immediate path to close down a restaurant for ‘public health’ purposes, our Governor simply chose not to follow it,” FoxFire wrote. “Instead of executing existing law, which is his Constitutional charge, the Governor wrote contradictory law through executive order.”
FoxFire is represented by attorney Kevin L. Nelson, of the firm of Myers, Earl and Nelson P.C., of Geneva.
The Illinois Attorney General’s Office, representing Pritzker, will have the opportunity to respond to the petition.