A west suburban restaurant owner says the administration of Gov. JB Pritzker is engaged in legal “gymnastics” in court, as the state seeks to end the restaurant’s bid for a court order declaring Pritzker overstepped his bounds in issuing Executive Order 61 last fall, shutting down indoor dining at restaurants statewide, in the name of fighting the spread of COVID-19.
“… Our State believes there is no viable legal challenge to EO61, period,” wrote attorney Kevin L. Nelson, on behalf of the FoxFire restaurant, of Geneva.
“Out of one corner of their mouth they argue that the case at bar proves businesses have legal redress for EO61, but out of the other that there are no facts which can ever be proven entitling these businesses to relief.
Kevin L. Nelson
| Earl Nelson Company Ltd.
“This is confounding.”
In November, attorneys for the Pritzker administration and lawyers representing the owner of FoxFire restaurant, of Geneva, traded arguments in court in Springfield over another motion from the governor to toss FoxFire’s lawsuit.
The restaurant owner and the governor have been in court since last October, when FoxFire was one of several Illinois restaurants that sued Pritzker over his decision to shut down indoor restaurant dining rooms by issuing Executive Order 61 as part of his broader pattern of restrictions imposed on a host of social and business activities amid the pandemic.
Pritzker ultimately eased those restrictions in January, when it became clear COVID cases had been subsiding for nearly two months.
Courts have persistently rejected attempts to limit Pritzker’s use of emergency powers and executive orders, finding the governor did not exceed the limits of Illinois’ Emergency Management Agency Act.
FoxFire, however, has managed to keep its lawsuit alive, while nearly all others were either dismissed or dropped. While the case was originally filed in Kane County court, the case was transferred, along with nearly all others challenging Pritzker’s powers, to the court of Judge Raylene Grischow in Sangamon County Circuit Court in Springfield.
In an amended complaint filed in October, FoxFire argued the IEMA law does not give the governor the power his administration has claimed. Rather, they said, state law gives the power to shut down restaurants to public health departments, using processes spelled out in the state’s public health law.
By instead citing the IEMA Act and issuing a blanket indoor dining ban order statewide, Pritzker violated FoxFire’s due process rights, the restaurant argued.
Further, FoxFire claimed Pritzker violated their rights to equal protection, by only shutting down indoor dining restaurants, while allowing other indoor businesses, like supermarkets and big box retail stores, to continue to operate, otherwise free of restrictions.
While the indoor dining restrictions have long since been lifted, FoxFire has persisted with the lawsuit, in pursuit of a court declaration that Pritzker can’t do it again.
Pritzker responded on Nov. 5 with a motion to dismiss that amended complaint.
Pritzker had already failed once before to dismiss the complaint, with Judge Grischow warning the governor could not continue to rely on his claim to emergency powers indefinitely.
'AN IMPOSSIBLE REQUIREMENT'
In the new motion, however, attorneys from the Illinois Attorney General’s office, on Pritzker’s behalf, argued FoxFire has no grounds to challenge the governor’s indoor restaurant dining ban.
Pritzker argued the indoor dining ban fell well within the scope of his emergency powers amid the COVID-19 pandemic.
The administration asserted the IEMA Act’s “broad language” means the state’s public health law takes a backseat amid a declared disaster.
And they argued FoxFire’s claims to due process and equal protection also fall apart under the weight of the pandemic-related disaster declaration under the IEMA law. The administration argued the governor’s administration could not possibly be made to issue “personal notice” of the shutdown order to “every bar and restaurant in Kane County,” let alone the rest of the state.
“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,” Pritzker’s attorneys wrote. “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.”
And even if the IEMA Act does not push aside the public health law, Pritzker argued the indoor dining ban did not amount to a “closure order,” as defined by the public health law. His legal team noted FoxFire, as other restaurants, could still sell takeout food to customers or serve them at tables outdoors, if they wished.
The governor argued restaurants like FoxFire are not in the same category as supermarkets or even big box stores, which provide “basic necessities of life.”
“FoxFire, on the other hand, provides an expendable luxury service: ‘a fine dining bar and restaurant,’” the Attorney General wrote. “No one will starve or go without medicine if FoxFire is temporarily unable to offer indoor dining.”
The governor argued EO61, as others of his dozens of executive orders issued since March 2020, should withstand any legal challenge, because the order needs to “merely bear a rational relationship to the problem it seeks to address.”
In this instance, the governor said he believed the order was needed to slow the spread of COVID-19, which he said he believed was more easily spread in restaurant’s indoor dining rooms than other settings.
'PRIVATE PROPERTY RIGHTS AT STAKE'
In a reply filed Nov. 19, FoxFire scoffed at the governor’s assertion that his indoor dining ban was somehow not a “closure,” calling the governor’s claim “semantics nonsense.”
“Technically speaking, FoxFire could hold gymnastic meets inside their restaurant, so in that regard, they were not ‘closed,’” FoxFire wrote. “…EO61 shut down the primary purpose for which FoxFire is in business: indoor dining. It declared private property off limits to the public for its intended use.
“To a reasonable person, and more importantly, to the public who believed EO61 lawful, FoxFire closed when EO61 took effect. Claims that this closure was not ‘full closure’ because outdoor dining was still permitted requires the true gymnastics, albeit of the mental variety.”
Further, the restaurant argued that under the rules by which courts interpret statutes, the Illinois Department of Public Health Act should control, because the public health law specifically addresses the way in which the state can shut down restaurants and other businesses.
Further, they pointed out the IEMA Act directs the governor to “coordinate ‘to the maximum extent’ with state localities,” like the Kane County Health Department and other local health departments.
“Our Governor made no attempt to coordinate with the KCHD, he simply fired off executive orders shutting down Kane County restaurants…,” FoxFire wrote. “The State grabbed the local health department’s authority without a second thought.”
And FoxFire further argued the assertion that Pritzker was legally justified in closing restaurant dining rooms, simply because they might facilitate the spread of COVID-19. The restaurant said Pritzker’s own data did not back his claims, based on “a single national CDC article,” that restaurants presented any greater danger than other indoor settings.
“Yes, Covid-19 is respiratory in nature, but this fact does not mean that all orders directed at respiratory conduct pass rational basis muster,” FoxFire wrote. “… Given actual evidence, not mere suspicion that FoxFire endangers the community because of a national article, EO61 is arbitrary.
“Our Governor does not get to ignore his own data when convenient to him, especially when what is at stake is private property rights.”
Judge Grischow has not yet ruled on the motion to dismiss.
FoxFire’s attorney Kevin Nelson is with the Earl Nelson Company Ltd., of Aurora.
Assistant Illinois Attorney General Darren Kinkead is representing Pritzker.