Neither Gov. JB Pritzker nor any Illinois state public health officials sought the opinion of county health officials, at least in Illinois’ fifth largest county, before imposing a statewide ban on indoor dining at restaurants in the fall of 2020 in the name of fighting COVID-19, a move that left many restaurant owners facing a choice between abiding by the rules or going out of business, according to recent court documents.
Last month, the Kane County Health Department provided answers to formal written questions submitted by the attorney representing the owner of the FoxFire restaurant, of west suburban Geneva.
Since 2020, FoxFire has been in court, seeking a court order declaring Pritzker overstepped the bounds of his authority when he used emergency powers to issue the statewide indoor dining ban, known formally as Executive Order 61.
The Kane County Health Department was also named as a defendant in that lawsuit, as the local health department ostensibly tasked to enforce EO61 and take action against restaurant owners who chose to remain open in defiance of Pritzker’s ban.
Pritzker has issued the indoor dining ban in October 2020, amid a spike in COVID cases. The order came as part of a broader pattern of restrictions Pritzker imposed on a host of social and business activities across Illinois during the first year of the COVID-19 pandemic.
Through 2021, Pritzker lifted nearly all of the restrictions, amid mounting public dissatisfaction with the continued restrictions and as the severity of the pandemic waned.
Pritzker has also not sought to reimpose any of the lockdown-style restrictions that characterized the first year and a half of the state’s response to the COVID pandemic.
However, lawsuits against Pritzker’s COVID restrictions have continued since May 2020, challenging the governor’s use of emergency powers altogether, in some cases.
Most of the cases have failed, as courts have largely upheld Pritzker’s ability to exercise emergency powers under state law for as long as he believes an emergency exists. State lawmakers have also taken very few actions to limit his use of those powers, even though he has continued to issue executive orders for more than two years.
To date, however, certain legal challenges have found traction in court, including challenges to the governor’s school mask and testing mandates, led by attorney Tom DeVore.
At the same time, attorney Kevin Nelson, of Aurora, representing FoxFire, has steadily beaten back multiple attempts by the Pritzker administration to persuade a judge in Springfield to dismiss FoxFire’s case.
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.
FoxFire has argued state law never gave Pritzker the authority he claimed to issue statewide, blanket bans on activities, like indoor dining. Rather, that authority has been delegated to local health departments, the restaurant has claimed.
By issuing the statewide ban, Pritzker violated restaurant owners’ rights to due process, leaving them nowhere to go to challenge the shutdown orders, FoxFire has asserted.
FoxFire has further argued against Pritzker’s attempt to claim he was following data and science in specifically targeting indoor restaurant dining in the name of fighting COVID. FoxFire has continued to argue Pritzker’s own data did not support the governor’s claim that restaurants uniquely enabled the spread of COVID.
In January, Judge Grischow again rejected Pritzker’s attempt to dismiss the lawsuit, saying FoxFire’s claims were “legally sufficient” to continue. She specifically rejected claims from Pritzker and the Illinois Attorney General’s office that Pritzker’s decision to lift the ban and his decision since to not reimpose the indoor dining ban renders FoxFire’s lawsuit moot.
Grischow noted Pritzker has continued to defend and seek to retain his authority under the law to issue new orders, at the time of his choosing, even if he is not doing so now.
In the weeks since, Pritzker and FoxFire have sparred in court over Pritzker’s continued efforts to persuade Grischow to reconsider her January decision. Arguments were held on Pritzker’s motion for reconsideration on March 31. Grischow has not yet ruled on that request.
In the meantime, both sides have continued to engage in discovery. As part of that process, Nelson has submitted questions on FoxFire’s behalf to both the Pritzker administration and the Kane County Health Department concerning the issuance and enforcement of EO61 in the fall of 2020.
To date, the Pritzker administration has objected to Nelson’s questions, and largely refused to answer.
Kane County, however, has provided limited answers.
While the health department objected to some of FoxFire’s questions, they specifically declared neither Pritzker nor any other member of the Illinois Department of Public Health discussed the indoor dining ban before the governor issued EO61.
The answers were provided in a document filed March 18 in Sangamon County Circuit Court.
“Did the Governor or IDPH seek KCHD’s opinion on suspending indoor on premises consumption within Kane County prior to issuance of EO61?" FoxFire asked.
“No,” the Kane County Health Department responded.
The county health department also said “No” when asked if they had ever sought to enforce Pritzker’s order, and when asked if IDPH ever informed them “that KCHD had neglected or refused to take sufficient measures to restrict or slow the spread of Covid-19 within Kane County” while the indoor dining ban was in effect.
At the time EO61 was issued, the Kane County Health Department was headed by former Executive Director Barbara Jeffers, who held a masters in public health degree. She had led the KCHD since 2012. In 2019, Jeffers had helped KCHD become the first Illinois county health department to receive accreditation through the Public Health Accreditation Board, which was supported by the Centers for Disease Control and the Robert Wood Johnson Foundation.
Jeffers retired in December 2020, and has since been replaced by interim executive director Kathy Fosser.
The KCHD also has medical and public health professionals specifically assigned to tackle communicable disease, disease prevention and environmental health.
The case remains pending.