Pritzker responds to FoxFire with motion to reconsider or immediate appeal

[April 22, 2021]  By Greg Bishop

(The Center Square) – Instead of defending his COVID-19 orders, Gov. J.B. Pritzker filed a motion to reconsider in a lawsuit filed by Geneva-based restaurant FoxFire.

FoxFire’s attorneys said it was another delay tactic.

In Wednesday's filing to the Sangamon County Circuit Court, Pritzker's attorneys said if a motion to reconsider is not granted, they want an immediate appeal.

Pritzker was sued in October 2020 by FoxFire restaurant. The restaurant said the governor’s blanket orders last fall closing restaurants to indoor service was arbitrary and capricious. A Kane County judge sided with the restaurant, but an appeal court reversed the decision.

FoxFire’s case, handled by the firm Myers Earl Nelson, was then consolidated with similar cases in Sangamon County and is considered the last remaining plaintiff in the challenge. Attorneys for the restaurant were awarded discovery in the case forcing the governor to turn over documents pertaining to his orders, and Sangamon County Circuit Court Judge Raylene Grischow denied the state's motion to dismiss the case.

“[T]he governor cannot rely on emergency powers indefinitely,” Grischow wrote earlier this month. “The U.S. Constitution recognized the importance of dispersing governmental power in order to protect individual liberty and avoid tyranny.”

Grischow gave the governor a Wednesday deadline to respond to FoxFire’s charge.

“The Court should reconsider its Order denying Defendants’ motion to dismiss Count V and hold either that FoxFire has no cause of action or that, applying rational-basis review, Count V fails on the merits,” a legal filing by Illinois Attorney General Kwame Raoul said on behalf of Pritzker. “Alternatively, it should certify the questions set out above for immediate appeal under Rule 308(a) and stay proceedings pending resolution of that appeal.”

"[T]he Court’s decision has significant consequences, both for the separation of powers and for the Governor’s ability to confront the current pandemic and future emergencies," Pritzker's filing says. "The Court’s expansion of judicial authority will also hamper a governor’s ability to respond to this and future emergencies."

Gov. J.B. Pritzker speaks at a news conference in Chicago on Monday, Dec. 7, 2020.

By Brett Rowland | The Center Square

FoxFire’s attorneys said the motion was a “waste of time.”

“I do not know if the Governor is worse in victory or defeat,” FoxFire lead attorney Kevin Nelson said in an email. “Judge Grischow does not need to reconsider something she so thoughtfully considered – even citing the Federalist papers!”

“This is a play to appeal and create more delay/confusion, all the while avoiding additional discovery,” Nelson said.

Nelson said the motion also opens up another “lurking” problem with an appeal “which we know would have to be sorted out sooner or later.”

“[S]ince we have been consolidated into Sangamon, we are now in the 7th Appellate Circuit, and no longer the 2nd,” Nelson said. “We could have a battle of the circuits. This will all but ensure that the case goes to the Supreme Court for clarification.”

Nelson said Pritzker’s motion assumes Grischow is wrong.

“Apparently, Judge’s don't comprehend Pritzker’s power, only he does,” Nelson wrote. “The twists and turns continue.”

Later in the day Wednesday, Pritzker’s attorneys filed their official response to the charge. The 24-page response concludes “All executive orders forbidding indoor dining at bars and restaurants in Kane County have expired, and ceased to have any effect. Furthermore, no exception to the doctrine of mootness applies. As such, FoxFire’s claim for relief in Count V is moot”
 

Kane County Public health Department also filed a response saying FoxFire’s claim about the governor’s executive order “allege no actual controversy between KCHD and Plaintiff, where KCHD is not alleged to have participated in creating the Executive Order, and no allegation has been made that any adverse action has been taken by KCHD against Plaintiff.”

A hearing in the case in Sangamon County Circuit Court is scheduled for April 28.