A Springfield judge has pulled the plug on a lawsuit brought against Gov. JB Pritzker by the owner of a west suburban restaurant, challenging Pritzker’s use of emergency executive power to shut down indoor dining in restaurants and taverns nearly two years ago, in the name of fighting Covid-19.
And a lawyer for the owners of the FoxFire restaurant, in Geneva, says the way in which the case at last was killed sends an ominous signal for the ability of Pritzker and his eventual successors to wield executive power in the future.
“Essentially, the precedent is that the governor can exercise dubious executive powers, and so long as he doesn’t use them for longer than a few months – three months is the going rate – he will get away with it,” said attorney Kevin Nelson, of the firm of Earl Nelson Company, of Aurora.
Kevin L. Nelson
| Earl Nelson Company Ltd.
On April 25, Sangamon County Judge Raylene Grischow dismissed the lawsuit brought by FoxFire.
The restaurant’s owners had filed suit in 2020, asserting Pritzker had trampled their rights, and those of others in the hospitality industry, in issuing an executive order directing restaurants to close their indoor dining spaces in the fall of 2020.
That edict had come as part of Pritzker’s broader pattern of restrictions imposed on a swath 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 months.
Pritzker opted not to reimpose those restrictions throughout 2021 and into early 2022, even during times when Covid case numbers and hospitalizations in Illinois exceeded the levels seen even at the worst points of 2020, when he said the business-crippling closures were needed to combat Covid.
However, FoxFire continued to press its case, seeking a court order declaring Pritzker had exceeded his authority, which could limit the ability of Pritzker and future governors to deploy such powers again.
During the duration of the case, FoxFire demanded the Pritzker administration produce the science and data on which the governor had claimed supported his decisions.
While Pritzker had resisted such discovery, judges ultimately forced the state to respond. Amid discovery, plaintiffs noted the state never revealed any data beyond initial reports from the Centers for Disease Control claiming restaurants were inherently more dangerous than other indoor setting.
Further, the plaintiffs also obtained information and sworn testimony revealing the Pritzker administration never consulted with local health departments before imposing broad, economically destructive restrictions the local health departments were then expected to enforce.
“The system was already set up to handle this, with local health departments having all authority to issue closure orders if they felt such necessary,” Nelson said in response to questions from the Cook County Record.
“Instead, Pritzker usurped this process, made the decision himself and rammed it down the throats of local health departments. It was/is a naked power grab by the governor,” Nelson said.
The case originated in Kane County court. However, at Pritzker’s request and the direction of the Illinois Supreme Court, the case was transferred to Judge Grischow in Sangamon County court in Springfield.
For more than a year, Grischow rejected attempts by Pritzker to dismiss the case.
The governor had claimed the case shouldn’t be allowed to continue because the governor’s powers to respond to public health emergencies are broad and virtually unchallengeable under Illinois law. And, the governor and his lawyers from the Illinois Attorney General’s office claimed the case should be considered moot, because the indoor dining ban had long since expired, and Pritzker had not reimposed the order.
Pritzker has continued to wield enhanced emergency powers since March 2020, claiming the state has remained a “disaster” for more than two years because of people continue to be infected by Covid. He has refused to indicate when, or under what conditions, he might consider lifting that emergency declaration and allow the normal constitutional order to resume, with its limits on executive power and guarantees of due process for individuals and businesses.
In refusing to dismiss the case, Grischow warned in her decisions that she did not believe the power of the governor to govern by executive order amid a pandemic was as unlimited as Pritzker and Illinois Attorney General Kwame Raoul claimed.
Further, as recently as December 2021, she questioned Raoul’s and Pritzker’s assertions that the governor would not again impose a new indoor dining ban, should they claim it was needed to protect public health.
However, in her April 25 order dismissing FoxFire’s case, Grischow shifted her position to side with the governor’s position that FoxFire’s case was moot.
FoxFire had argued the case should survive the governor’s “mootness” claim, under the legal concept known as the “public interest exception.” Essentially, FoxFire claimed Pritzker’s trespass on legal rights should not go unaddressed, simply because the policy expired during the time the court took to consider their legal challenge.
While Grischow may have previously agreed, her opinion changed in her latest order, saying FoxFire needed to prove the governor had plans to reimpose the indoor dining ban or similar restrictions.
“The Governor’s suspension of indoor dining took place during a surge of Covid-19 cases in Illinois in 2020,” Grischow wrote. “Since then, another surge of Covid-19 cases occurred in Illinois from November 2021 through February 2022. The recent surge caused a far greater number of Covid-19 cases than the prior 2020 surge during which the Governor suspended indoor dining.
“Yet the Governor did not suspend indoor dining during the recent surge. As FoxFire concedes, the circumstances have changed materially since the Governor issued the executive orders challenged in this action. Due to the lapse of time and changing circumstances, this Court cannot conclude it is likely the Governor will suspend indoor dining in the future to address the spread of Covid-19,” Grischow wrote.
The Illinois Attorney General’s office declined comment on Grischow’s ruling.
Nelson said the biggest change between Grischow’s prior rulings in the FoxFire case and her most recent ruling could be ascribed to recent decisions from state appellate courts and the Illinois Supreme Court, giving the governor an escape hatch from legal challenges to other Covid-related orders.
Those decisions also vacated an order issued by Judge Grischow, forbidding Pritzker and local school districts from enforcing the governor’s mask mandates.
“Judge Grischow is a great judge and handled this case skillfully, but when both our highest court and the court directly above her ruled on DeVore’s case as they did, stating the issue was moot, she saw the writing on the wall,” Nelson said.
“The real damage was done in the DeVore case when the appellate court said that the ‘Public Interest Exception’ to mootness did not apply. If that exception did not apply to DeVore’s case, it did not apply to ours, which we had been arguing and it seemed Judge Grischow agreed with its application.
“How shutting down restaurants and small businesses for an entire fiscal quarter, and how requiring students to be masked all day despite the negative impact on learning, does not fall within the public interest exception is beyond me.”
Nelson said FoxFire has not yet decided if it may seek to appeal Grischow’s ruling, but noted the appeal deadline is May 25.
For now, Nelson said he worries what the case law that has been set in the past few months could mean for what he fears could be future executive power overreach in Illinois, as governors learn constitutionally questionable policies can remain in place for months without any fear of real rebuke from the courts.
“One or two bold trial judges may strike him (the governor) down, most appellate courts will probably side with him and reverse, and as long as the (attorney general) can string out these cases until the orders lapse, the governor can keep using his questionable power,” Nelson said. “If courts are not going to use a mootness exception to rule on whether the orders are lawful and/or exceed authority, then limited duration executive actions become essentially un-reviewable.
“This is not justice, nor an answer, it is a legal 3-and-out with a punt.”