Lawsuits over indoor dining ban proceed as all regions reopen

[February 05, 2021]  By SARAH MANSUR
Capitol News Illinois
[e-mail]

SPRINGFIELD — Although the governor’s latest indoor dining ban has been lifted in all areas of the state, some lawsuits brought by restaurants challenging the ban remain active.

Among those are the cases filed by Tom DeVore, a southern Illinois lawyer who represents Sen. Darren Bailey, R-Xenia, and advises hundreds of other business clients who are staying open during the pandemic.

DeVore has argued, on behalf of restaurants, that Pritzker lacks the authority under the Illinois Emergency Management Agency Act – the statute through which the governor’s lawyers have claimed his authority is derived – to close businesses via emergency order. DeVore instead argues this power belongs to the Illinois Department of Public Health under the Illinois Department of Public Health Act.

This week, DeVore filed a motion asking a Sangamon County judge to voluntarily dismiss the lawsuits he initiated on behalf of two downstate restaurants against Pritzker and eight local health department officials in COVID-19 mitigation Region 4.

DeVore argues the lawsuits are no longer necessary, citing statements from health department officials from four of the eight health departments that they never enforced the executive orders because they lacked the authority to do so.

According to DeVore, this claim by the health departments should make clear to restaurants across the state that health departments did not possess the authority to shutter businesses based on the governor’s executive order.

Health department officials in Clinton, Bond, Washington and Randolph counties, which are within Region 4, claimed in a court filing that the lawsuit against them should be dismissed because the health departments didn’t take any action to enforce the ban and therefore did not cause an injury to the restaurants.

They also argue that the health departments did not have authority in the first place to enforce the bans because the executive orders do not identify the IDPH Act as the statute authorizing enforcement. The governor’s executive order on Nov. 28 lists the state Emergency Management Agency Act as the only statute authorizing enforcement.

Notably, the health departments’ court filing does not address the argument that the Emergency Management Agency Act authorizes local health departments to enforce the governor’s executive orders.

It also ignores the municipal and county boards that passed ordinances authorizing local officials to enforce the executive orders. Those ordinances have resulted in fines and food or liquor license suspensions for some restaurants, including some represented by DeVore, that were flouting the indoor dining ban in certain counties, including Sangamon County.

Still, DeVore wrote in his motion in Sangamon County Court that the professed lack of enforcement by county health officials in Region 4 resolves the need for court intervention.

Benjamin Jacobi, one of the lawyers representing the county health departments, did not respond to a request for comment.

Lawyers with the Illinois Attorney General’s Office, which represents the governor in court, have not yet filed a response to the health departments’ motion.

Sangamon County Courthouse in Springfield. (Capitol News Illinois file photo).

FoxFire restaurant

A second active case over the indoor dining ban was brought by owners of FoxFire, a restaurant in Kane County, who are also appealing their case to the Illinois Supreme Court.

FoxFire’s initial lawsuit was in response to Pritzker’s executive order in October that imposed the ban on indoor dining and bar service following a spike in COVID-19 cases and hospitalizations throughout the state.

While a Kane County judge initially granted the restaurant’s request for a temporary restraining order allowing FoxFire to ignore the new indoor dining restrictions, an appellate court promptly reversed the judge’s decision.

The appellate court rejected the arguments from FoxFire’s legal team. It ruled that Pritzker’s executive order did not amount to a “closure” for businesses, therefore Illinois Department of Public Health Act regulations governing business closures did not apply in this case.

Since then, FoxFire’s attorneys asked the Illinois Supreme Court to hear the case and overrule the appellate court’s decision. The Illinois Supreme Court has not taken any action thus far.

Meanwhile, as FoxFire has remained open throughout the fall and winter in defiance of the governor’s orders, its case in Sangamon County continues to proceed.

Kevin Nelson, one of FoxFire’s attorneys, has asked Pritzker’s administration to provide evidence, also referred to as discovery, related to the administration’s decision to shut down indoor dining in Kane County.

For example, FoxFire’s request asks for any documentation showing that bars and restaurants in Kane County are the primary source of COVID-19 increases within the county.

The request also asks for documentation showing the connection between the fall season rise in COVID cases and restaurants throughout the state, among other demands.

Pritzker’s lawyers have objected to the requests and have not provided any of the documents or information requested.

Earlier this week, Nelson filed a motion asking the Sangamon County judge to overrule Pritzker’s objections and force his agencies to provide the information.

Sangamon County Judge Raylene Grischow is expected to rule on that motion in early March, according to court documents.

Nelson did not respond to requests for comment by deadline.

A spokesperson for the Illinois Attorney General’s Office said the governor’s lawyers filed a motion “opposing discovery because, as the judge considers our motion to dismiss the remaining claim, there is no need for discovery – particularly when the plaintiffs are seeking information that is publicly available on the Illinois Department of Public Health’s website.”

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.