As they await a response from the Illinois Supreme Court, lawyers for the owner of suburban restaurant that is challenging the authority of Gov. JB Pritzker to shut down restaurants statewide in the name of fighting COVID-19, are asking a Springfield judge to order the state to turn over the data the governor says he has relied upon to justify repeated orders to close restaurants amid the pandemic.
This month, attorneys for the FoxFire restaurant in west suburban Geneva have filed motions with Sangamon County Judge Raylene Grischow, asking the judge to force the Pritzker administration to turn over any reports, studies or data Illinois public health officials have used to undergird Pritzker’s position that closing restaurants and bars is essential to slow the spread of the virus.
FoxFire is represented by attorney Kevin Nelson and others with the firm of Myers Earl & Nelson, of Geneva.
To date, the lawyers said, the Pritzker administration has objected to the requests for the information and refused to turn it over. The state has asserted FoxFire's case needs to first be amended to comply with the decision of a state appeals court.
Further, lawyers from the office of Illinois Attorney General Kwame Raoul, representing Pritzker, have filed a motion to dismiss FoxFire’s case.
“Summarizing Defendant’s (Pritzker’s) Motion: the Governor has absolute authority to shutter business using his emergency power, said restaurants have no legal redress, the courts have no right to review, and the State – who holds all COVID-19 related data utilized in ordering said shutdown … – cannot be compelled to provide said data through legal processes,” Nelson wrote in a response filed Feb. 10.
“Unfortunately for the State, and fortunately for those businesses shuttered, that is not exactly how the law works.”
FoxFire and Pritzker have battled in court since last fall, when Pritzker imposed a fresh round of orders shutting down indoor dining at restaurants and bars in response to a spike in cases of COVID-19 across Illinois. Those shutdown orders were lifted in January, as Illinois public health officials confirmed any spike in COVID activity from the holidays had been avoided or ended.
According to Illinois state public health data, Illinois hit is COVID activity peak in early November, before Pritzker issued its closure orders. COVID activity in the state has declined ever since.
FoxFire’s owners were among a number of restaurant owners from throughout the suburbs and elsewhere in Illinois to sue the governor over those closures, asserting he had overstepped the bounds of his authority in essentially shuttering restaurants without any recourse, months after he had first assumed emergency powers when he declared a statewide disaster in response to COVID-19 in March 2020.
Nearly all of those other lawsuits have either been dropped or dismissed by the courts, particularly since Pritzker secured an order from the Illinois Supreme Court sending all of those lawsuits to Judge Grischow in Springfield.
FoxFire, however, has continued to press its case.
That came after the Illinois Second District Appellate Court in Elgin became the first state appeals court to definitively rule on the question. In that decision, the appellate panel explicitly ruled state law allows the governor to govern by emergency executive orders for as long as he believes a pandemic or other disaster continues. Challengers to that authority, including FoxFire, have argued the law actually limits him to wield those powers for 30 days, unless the governor receives further authority from the state legislature.
Courts, however, have ruled they believe Pritzker can simply reissue a statewide disaster declaration every 30 days.
The Illinois Supreme Court has yet to respond to FoxFire’s petition.
In the meantime, FoxFire has continued its case before Judge Grischow in Springfield.
Among other motions, the restaurant has demanded the Pritzker administration turn over documents and evidence backing its assertions concerning the spread of COVID in restaurants.
In its motions, FoxFire argued such information is essential to its case, and the governor and Attorney General are stalling to prevent the release of that information.
The Second District Appellate court provided “a template for how FoxFire can succeed at the trial level – Plaintiff must demonstrate the unreasonable disparity between the impact on the restaurant industry versus the general public,” FoxFire wrote.
However, Pritzker and Raoul are instead attempting to have the case dismissed, which FoxFire said essentially turns the “law of the case” on its head.
They noted the Second District remanded the case for further proceedings, and did not dismiss the matter. Those further proceedings should include the evidence discovery process, FoxFire’s lawyers said.
Instead, Nelson wrote in a Feb. 1 motion, the attorneys for Pritzker have “engaged in circuitous motion practice” to put off a ruling ordering the state to disclose the information, until they can win a dismissal.
“… At the end of the day it is the State’s position that the Governor and the (Illinois Department of Public Health) can order restaurants such as FoxFire to shut down indefinitely, but they have no obligation in a subsequent suit thereon to provide any evidence supporting the … shutdown,” Nelson wrote on Feb. 1.