A judge in Springfield has refused to toss a suburban restaurant owner’s lawsuit challenging Gov. JB Pritzker’s authority to shut down restaurants across the state at will, hinting for the first time that the judicial branch’s patience may be running out on Pritzker’s sustained use of emergency powers to govern the state by executive orders in the name of fighting COVID-19.
On April 7, Sangamon County Judge Raylene D. Grischow denied Pritzker’s request to dismiss the lawsuit brought by the owners of FoxFire restaurant, of west suburban Geneva.
“… The governor cannot rely on emergency powers indefinitely,” Grischow wrote. “The U.S. Constitution recognized the importance of dispersing governmental power in order to protect individual liberty and avoid tyranny.
Sangamon County Judge Raylene Grischow
“… When a case or controversy comes within the judicial competence, the Constitution does not authorize judges to look the other way; courts must call foul when the constitutional lines are crossed.”
The decision means Pritzker and his administration will need to do more to defeat FoxFire’s legal claims – echoed in many other lawsuits filed against Pritzker in the past year – that the governor overstepped the bounds of his constitutional authority in using executive powers repeatedly since last March to impose restrictions on business and society at large, claiming the restrictions are needed to reduce the spread of the COVID-19 pandemic.
FoxFire filed suit against Pritzker last fall, one of several such legal challenges brought by restaurant owners against the governor, as he moved to slap a ban on indoor dining at restaurants and taverns statewide late last year. The governor at the time said the measures were needed to address a surge in COVID-19 infections and hospitalizations.
Pritzker eased those restrictions late in the winter, as the COVID surge ebbed.
According to Illinois state public health data, Illinois hit its COVID activity peak in early November, before Pritzker issued those fall restaurant and bar closure orders. COVID activity in Illinois has remained relatively low ever since, though some areas have seen upticks in both COVID test positivity rates and hospitalizations in more recent weeks.
Nearly all of the other legal challenges challenging Pritzker’s authority have either been dropped or dismissed.
The FoxFire lawsuit itself suffered a blow last fall, when a state appellate court in Elgin ruled Pritzker has the authority to govern by executive orders for as long as the governor believes a public health emergency persists. The restaurant has since asked the Illinois Supreme Court to review that decision.
In the wake of that decision, however, FoxFire amended its lawsuit to instead push a demand that Pritzker demonstrate not only that he has the power to issue executive orders closing restaurants, but that he didn’t unfairly single restaurants and taverns out for such business-killing measures.
Kevin Nelson, an attorney with the firm of Myers Earl & Nelson, representing FoxFire, said FoxFire’s team is preparing to push for more information, as they question whether the disclosure to date has been complete.
Contact tracing data from the Illinois Department of Public Health, for instance, has traced only a small fraction of COVID cases back to restaurants in 2020. And that contact tracing data for restaurants appears to end in late August 2020, nearly three months before Pritzker again shut down indoor restaurant dining rooms.
In the meantime, as the two sides work through evidence discovery, Pritzker again asked Grischow to dismiss the amended lawsuit.
In arguments presented in late March, lawyers from the office of Illinois Attorney General Kwame Raoul, arguing on Pritzker’s behalf, again asserted the courts have no role in reviewing Pritzker’s decisions exercised under the emergency powers granted him under Illinois emergency management law. Further, they claimed anyone who wishes him to pursue different policies need to wait until November 2022, for their chance to elect a new governor.
On April 7, Grischow, however, rejected that argument completely.
The governor’s lawyers, she said, “argue that any disagreement over how the governor is handling the pandemic, for more than a year now, should be handled in the next election and not by this Court.”
“However, it is this Court that must ensure that the governor does not circumvent the constitutional confines of his authority,” Grischow wrote. “This fundamental principle underlying the foundation of our government prevails even in an emergency because ‘extraordinary conditions do not create or enlarge constitutional power,’” she added, citing the U.S. Supreme Court’s 1935 decision in A.L.A. Schecter Poultry Corp. v United States.
While the courts may be barred from clipping the governor’s powers amid a pandemic, they can review whether the governor’s emergency actions “are forbidden by the constitution,” Grischow said.
She noted FoxFire still has a “heavy burden” to establish Pritzker actually violated restaurant owners’ constitutional rights.
But for now, she said, the governor cannot merely sidestep the legal claims by asserting his power in responding to emergencies is all but absolute – particularly when he has exercised those powers for an alleged emergency that has lasted more than a year.
In response to Grischow’s ruling, Pritzker on Thursday downplayed the decision, saying he believes he acted within the law and the U.S. and Illinois constitutions, despite the economic damage those actions have wrought.
According to recent surveys, at least one-third of small businesses in Illinois have closed amid the COVID-19 pandemic and Pritzker’s restrictions in response to the outbreak.
The governor further asserted the legal challenges to his authority have been pushed by “right-wing” political groups, seeking to undermine his pandemic response effort.
According to a report published by The Center Square, FoxFire’s owner said his lawsuit was motivated by a desire to allow his business and others to survive the pandemic, not politics.