Gov. JB Pritzker has again asked a Springfield judge to toss a lawsuit brought by a Geneva restaurant owner, accusing Pritzker of overstepping his constitutional authority in singling out indoor restaurant dining and taverns for strong restrictions as part of the state’s response to the COVID-19 pandemic.
But the owner of the Foxfire restaurant asserts the governor’s attempt to bring the court fight to an abrupt end flies in the face of the state’s constitution, and ignores a key ruling from the Illinois Supreme Court, specifically addressing restaurant owners’ private property rights.
The governor argued the severe nature of the pandemic gives him the power under state law to ignore or clip constitutional protections otherwise afforded to Illinois residents, including the right to due process.
“There is no dispute that the Governor’s executive order temporarily suspending indoor dining in Kane County was ‘designed to promote the public health,’” the Illinois Attorney General’s office wrote on Pritzker’s behalf.
“And Illinois law is clear that ‘no provision of our State Constitution was designed to interfere with’ actions like the Governor’s that are intended to protect ‘the health, peace, morals, and general welfare of the people."
Foxfire responded by again asserting Pritzker "wandered outside his constitutional charge,” and has nearly a year and a half trespassing across the separation of powers established by the constitution, making it necessary for a court to brush him back.
“He created brand new laws via executive order (a legislative function), he extended his own laws for months on end (a legislative function), and he did all of this while maintaining his actions were not reviewable (a judicial function,)" Foxfire wrote in its reply brief.
“The Governor’s actions are unprecedented, left unchallenged they become precedent, and given recent restriction whisperings, may very well happen again.”
CAN EMERGENCY POWERS CONTINUE INDEFINITELY?
The owners of the west suburban restaurant Foxfire were among a number of Illinois restaurant owners and others who sued Pritzker in 2020 over restrictions he imposed on a host of social and business activities. Foxfire’s lawsuit came last fall, after Pritzker again ordered indoor restaurant and tavern dining and drinking shut down statewide.
The renewed shutdown orders came amid a resurgence of COVID-19 infections across the state and the nation.
Pritzker eased and then ultimately lifted nearly all restrictions on restaurants and taverns beginning in January.
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 declined every month following, until the so-called Delta variant surge began in July.
In response to that increase in COVID cases in many parts of the state, Pritzker has begun to reimpose indoor mask mandates in certain locations, and has said he is not ruling out slapping on even more and stricter restrictions once more, in the name of slowing the spread of COVID-19.
While a swarm of lawsuits were filed, courts have persistently rejected attempts to limit Pritzker’s powers, permitting him, to this point, to continue for more than 16 months to use the state’s emergency management law to govern the state largely through executive order, citing emergency powers.
Foxfire, however, has managed to keep its lawsuit alive, while nearly all others were either dismissed or dropped.
While a state appellate court rejected Foxfire’s attempt to secure a court order preventing Pritzker from enforcing his indoor dining closure orders against Foxfire and other Illinois restaurants, a Sangamon County judge in Springfield has also rejected an attempt by Pritzker earlier this year to end Foxfire’s legal action.
Sangamon County Judge Raylene Grischow, who has been appointed by the Illinois Supreme Court to handle nearly all challenges to Pritzker’s emergency COVID authority, warned Pritzker in a ruling in April that his reliance on emergency powers cannot continue “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.”
The judge also had earlier ordered the Pritzker administration to provide data and documents sought by Foxfire to back up Pritzker’s claims that all of his decisions, including banning indoor dining in restaurants for months, was actually backed by science and observation.
A REASONABLE RELATIONSHIP
In his new motion to dismiss, filed in early July, Pritzker and his lawyers from the Attorney General’s office continued to assert Pritzker’s decisions were based on science, including observations documented by the Centers for Disease Control.
“The CDC, our nation’s leading public health agency, has identified indoor dining at restaurants and bars as an activity closely linked to the spread of Covid-19,” Pritzker’s lawyers wrote. “It has also identified factors associated with an increased risk of Covid-19 transmission - including prolonged exposure in an enclosed space where people are unable to wear masks and raising their voices - each of which is present in indoor dining.
“All this goes to show there is a ‘reasonable relationship’ between the Governor’s decision to temporarily suspend indoor dining and his legitimate goal of slowing the spread of Covid-19 and preventing unnecessary deaths in Illinois.”
Pritzker further asserted Foxfire’s complaint falls short of demonstrating the governor exceeded his authority, saying restaurants and other businesses are not entitled to the right to challenge the governor’s closure orders before or after being shuttered by executive order amid a public health emergency, such as COVID-19.
Constitutional guarantees to due process “merely require the regulation to bear a rational relationship to the problem they seek to address,” the attorney general wrote for Pritzker.
While restaurants and other businesses targeted individually by a government closure order under normal conditions can expect the chance to defend their property interests in a “predeprivation hearing,” no such rights exist when the closure orders are applied to restaurants and other businesses statewide amid a public health emergency, Pritzker argued.
The governor’s lawyers asserted such due process requirements should be tossed aside, because they would impair the governor’s ability to combat the pandemic, and would overwhelm the state’s courts and administrative capacity.
“It would take years if not decades for the Governor to provide a predeprivation hearing to every bar and restaurant in Kane County (plus the bars and restaurants in other parts of the State subject to similar executive orders at the same time),” Pritzker’s lawyers wrote.
“This caseload would quickly overwhelm the judicial resources of every court in the State, not to mention the executive branch officials required to prosecute those actions. It imposes an impossible requirement on an executive confronted with a public health emergency like Covid-19, which requires collective action measured in days or even hours.”
CONSTITUTIONALLY PROTECTED PROPERTY INTEREST
In their reply, however, Foxfire said Pritzker’s arguments are misplaced.
They again argued the Pritzker administration appears to be withholding information from them to make plain the governor’s professed scientific rationale for his orders against restaurants.
But perhaps more importantly, they noted Pritzker’s lawyers are overlooking a recent Illinois Supreme Court decision, which Foxfire said, actually gives restaurant owners an entrenched right to due process.
In the decision known as LMP Services Inc. v City of Chicago, the state high court ruled that the city of Chicago was within its constitutional authority to restrict how close to brick-and-mortar restaurants food trucks could operate. In that decision, Foxfire argued, the state Supreme Court established such restaurants had a “constitutionally protected property interest to use their property in the pursuit of their business.”
“These holdings are clear and prescient: Foxfire has a fundamental and protected interest to use its private property for a lawful purpose,” the restaurant’s lawyers wrote.
Therefore, they said, the governor must do more than wave at public health to secure easy dismissal of legal challenges to his executive orders.
They said arguments over such key legal questions should require further court proceedings to satisfy their rights to due process.
“We all know basics of due process requirements: notice and an opportunity to be heard. The irony here is that the Governor consistently claims that the existence of our case exists is Foxfire’s evidence of post-deprivation due process,” Foxfire wrote.
“Such a claim is circular reasoning at its finest. The Governor has consistently argued (both orally and in briefs) that his actions are not reviewable by the courts – the only remedy being voting him out of office.
“Our Chief Executive’s legal position is that his actions are not reviewable, this case must be dismissed summarily, and this summary dismissal – which is clearly not a decision on the merits – is sufficient process. Such a position is indefensible.”
Foxfire is represented in the action by attorney Kevin Nelson, of the firm of Myers, Earl and Nelson P.C., of Geneva.