Gov. JB Pritzker has failed again to snuff out a lawsuit from a west suburban restaurant owner, seeking a court order declaring Pritzker overstepped his authority when he issued orders in 2020, shutting down indoor dining at restaurants statewide in the name of fighting COVID-19, without giving restaurant owners any legal recourse.
On Dec. 28, Sangamon County Circuit Judge Raylene Grischow, in Springfield, refused the Pritzker administration’s latest motion to dismiss the legal challenge brought by the owner of FoxFire Restaurant, of Geneva.
In her ruling, Grischow said she believed FoxFire’s lawsuit was “legally sufficient” to continue.
Sangamon County Judge Raylene Grischow
The judge noted the Illinois Attorney General’s office, representing Pritzker, had assured the court that Pritzker does not intend to order restaurants closed again.
But that, she said, is not enough to end the case.
“Perhaps (the Attorney General’s) crystal ball works better than the Court’s, and counsel for the state parties is willing to rely on this unsubstantiated representation, but, this Court will not,” Grischow wrote in her order.
The Dec. 28 order means FoxFire will be allowed to continue to press its claims that Pritzker trampled their rights, and those of all other restaurant owners in the state, when he issued the edict known as Executive Order 61 in the fall of 2020, as part of his broader pattern of restrictions imposed on a host of social and business activities amid the first year of the COVID-19 pandemic.
Pritzker ultimately eased those restrictions in January 2021, when it became clear that COVID cases had been subsiding for nearly two months.
Pritzker has to this point declined to reimpose any of the restrictions that were common in earlier days of the pandemic. That has remained true, even as COVID case numbers and hospitalizations in Illinois have risen in the past month to levels not seen except at the worst points of fall and winter surges, to date, far exceeding the metrics he had used in the past when issuing societal restrictions.
However, FoxFire has continued to press its case, seeking a court order that might explicitly limit the ability of Pritzker and perhaps future governors to wield such powers in the future. Throughout its case, FoxFire has noted the Pritzker administration’s refusal to produce the science and data on which the governor claimed he had based his restrictions.
Courts, to this point, 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.
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.
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.
In their new motion to dismiss, Pritzker and Attorney General Kwame Raoul argued FoxFire’s claims to due process and equal protection fall apart under the weight of the pandemic-related disaster declaration under the IEMA law.
They argue to find otherwise may require the state to issue “personal notice” to every bar and restaurant statewide when ordering shutdowns amid a public health emergency, which they assert is “an impossible requirement.”
And Pritzker and Raoul argued FoxFire was never really closed, because the restaurant could still sell food for takeout.
FoxFire scoffed at Pritzker’s responses.
They noted public health emergencies do not mean all other laws take a backseat to the IEMA law.
FoxFire further assured the judge that, by shutting down indoor dining, the governor was, in fact, closing restaurants.
And FoxFire continued to note Pritzker’s own data, released to date, does not support his assertions that restaurants are any more dangerous for spreading COVID than any other indoor gathering.
“Our Governor does not get to ignore his own data when convenient to him, especially when what is at stake is private property rights,” FoxFire said, in a brief filed Nov. 19.
Grischow gave Pritzker until Jan. 27 to file an answer to FoxFire’s claims.
The next hearing is scheduled for Feb. 7.
FoxFire is represented in the action by attorney Kevin Nelson, of Earl Nelson Company Ltd., of Aurora.