The Illinois Supreme Court won’t take up a west suburban restaurant owner’s challenge to Gov. JB Pritzker’s authority to shut down indoor restaurant dining by continuously re-declaring a statewide emergency in response to COVID-19.
An attorney for FoxFire restaurant, of Geneva, however, said they are continuing with their legal challenge, on a slightly different tack.
And, the attorney said, the state high court will likely be asked again to weigh in on whether Pritzker abused his power by singling out restaurant dining rooms for closure, particularly while being reticent to provide evidence backing those actions.
Kevin Nelson
| avvo.com
On May 26, the Illinois Supreme Court refused to grant FoxFire restaurant’s petition for permission to bring their case to the state high court immediately.
In this petition, the restaurant owner sought to appeal a decision from the Illinois Second District Appellate Court, which explicitly upheld Pritzker’s authority to wield broad emergency powers for more than a year by continuously re-declaring a statewide disaster every 30 days, in the name of trying to combat 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.
Thanks in large part to continuously climbing vaccination rates across the state this spring, confirmed cases of COVID-19, hospitalizations and COVID-related deaths have fallen to levels not seen since the onset of the pandemic in Illinois in March 2020.
While restrictions have eased, Pritkzer has yet to cease issuing his monthly COVID-related disaster declarations.
To date, nearly all other legal challenges to Pritzker’s authority have either been dismissed by courts or withdrawn.
The FoxFire lawsuit suffered a blow in the fall of 2020, when a three-justice panel of the Illinois Second District 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.
While FoxFire petitioned the Illinois Supreme Court to overturn that decision, the restaurant’s lawyers also amended its lawsuit before a Sangamon County judge in Springfield. Under the altered complaint, the restaurant instead asked the court to order Pritzker to demonstrate that he didn’t unfairly single restaurants and taverns with such potentially business-killing indoor dining bans.
In February, Sangamon County Judge Raylene Grischow ordered the Pritzker administration to produce documents and data that the governor and Illinois public health officials claim to have used to justify the governor’s orders against restaurants.
And in April, Grischow denied Pritzker’s attempt to dismiss FoxFire’s amended lawsuit.
In that ruling, Grischow cautioned Pritzker that, while he may have the power under the law to impose restrictions to fight a pandemic, he “cannot rely on emergency powers indefinitely.”
“The U.S. Constitution recognized the importance of dispersing governmental power in order to protect individual liberty and avoid tyranny,” Grischow wrote.
“… 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.”
Pritzker has asked the state Supreme Court to overrule Grischow and end the matter.
According to a report published by Capitol News Illinois, a Pritzker spokesperson said Pritzker “is pleased the court rejected this request and sided with upholding Gov. Pritzker’s ability to follow the science and protect the citizens of Illinois.”
FoxFire attorney Kevin Nelson, of the firm of Myers Earl & Nelson, of Geneva, said they intend to continue pressing the courts to review Pritzker’s decisions under the law.
Nelson said the restaurant’s owner “is disappointed, but not surprised, by the Supreme Court’s denial” of their petition to appeal the Second District ruling.
But, in an emailed statement, Nelson said, “FoxFire’s case is still very much alive at the trial court level, and furthermore, we fully expect the Supreme Court take up the case of such importance – however it turns out – once it is ultimately decided on the merits.
“FoxFire, the restaurant community, and the citizens of Illinois deserve to hear from our highest court on the legality of Gov. Pritzker’s shutdown orders. The fact that our Supreme Court decided to not take such up on appeal now is not an indication of FoxFire’s ultimate success.
“Go out and support our local restaurants responsibly, but stay tuned,” Nelson said.