The owners of a restaurant in suburban Geneva have secured a court order forcing the administration of Gov. JB Pritzker to produce scientific evidence he has claimed supported his decisions to order statewide shutdowns of indoor restaurant dining in the name of fighting COVID-19.
On Feb. 17, Sangamon County Judge Raylene Grischow gave Pritzker’s administration until March 3 to begin disclosing to attorneys for the FoxFire restaurant “responsive information and documents” FoxFire had demanded as part of discovery in its lawsuit against the governor.
If Pritzker’s team continues to resist or slow-walk the rollout of that information, the judge indicated she would consider imposing sanctions on the state of Illinois, potentially including requiring the state to pay the legal bills the restaurant has racked up trying to persuade Pritzker to turn over the information.
Sangamon County Judge Raylene Grischow
The decision comes as the latest step in a lengthy court fight initiated by the owners of FoxFire last fall, when Pritzker again ordered indoor dining and drinking shut down at restaurants and taverns throughout Illinois.
The renewed shutdown orders came amid a resurgence of COVID-19 infections across the state and the nation.
However, as COVID activity continued to decline in January, Pritzker eased back those restrictions.
According to Illinois state public health data, Illinois hit its COVID activity peak in early November, before Pritzker issued the most recent restaurant and bar closure orders. COVID activity in the state has continued to decline ever since, shrinking at February’s close to the lowest levels recorded in Illinois since the beginning of the COVID-19 pandemic one year ago.
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 overstepped the bounds of his authority in essentially shuttering eateries 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.
Late last year, Pritzker secured an order from the Illinois Supreme Court sending all lawsuits challenging the governor’s pandemic response powers to Judge Grischow.
Those legal challenges were further chopped by the effect of a decision from an Illinois appeals court, which explicitly sided with Pritzker on the question of the use of his emergency powers under Illinois state law.
Grischow then cited that decision in dismissing many of the lawsuits against Pritzker.
While others then dropped out, FoxFire continued its lawsuit, petitioning the Illinois Supreme Court to take on its case against the governor over the use of his power.
The state Supreme Court has yet to rule on FoxFire’s petition.
In the meantime, FoxFire also continued to press its case before Judge Grischow, most recently demanding Pritzker’s people turn over documents and evidence backing the governor’s assertions concerning the scientific and public health basis behind Pritzker’s decisions to close restaurants and bars.
The Illinois Attorney General’s office, representing Pritzker, objected to the evidence requests, and have refused to produce responsive information and documents to this point. Rather, they asked Grischow to dismiss FoxFire’s case altogether.
They claimed the Illinois appellate court’s decision should force FoxFire to amend its lawsuit, and essentially start over.
FoxFire’s lawyers, however, argued the appellate court had only ruled the governor has the authority he claims. Questions, however, still remain over whether Pritzker can justify his use of that authority to single out dining establishments for closure.
To allow the governor to keep the information concealed would amount to finding that “the Governor has absolute authority to shutter business using emergency power, … 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,” FoxFire’s lawyers argued in a brief filed Feb. 10.
“Unfortunately for the State, and fortunately for those businesses shuttered, that is not exactly how the law works.”
FoxFire is represented by attorney Kevin Nelson and others with the firm of Myers Earl & Nelson, of Geneva.