Ill. Appeals Court Says Gov. Has Right To Ban Indoor Dining

By Celeste Bott
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Law360 (November 16, 2020, 9:19 PM EST) -- An Illinois appellate panel on Friday dissolved a temporary restraining order blocking the enforcement of an executive order by Gov. J.B. Pritzker that prompted a ban on indoor dining in four counties, saying the state's emergency management law gave him the authority to issue it.

The lawsuit by Fox Fire Tavern LLC is one of several recent challenges to the governor's emergency powers. The Geneva, Illinois, eatery sought a declaration both that the governor's October disaster proclamation and an ensuing emergency order that would impose restrictions on bars, restaurants and others if coronavirus cases surged. But while a lower court granted FoxFire a temporary restraining order, the appellate court said it abused its discretion because the restaurant has failed to show a likelihood of success on the merits.

The Illinois Emergency Management Agency Act "plainly authorizes the governor to issue successive disaster proclamations stemming from one ongoing disaster," the panel said.

More specifically, the relevant section of the law allows the governor to declare a disaster and exercise his emergency powers "for a period not to exceed 30 days" following the proclamation, according to the opinion.

"The state notes, and we agree, that nothing in this language precludes the governor from issuing multiple disaster proclamations — each with its own 30-day grant of emergency powers — arising from one ongoing disaster," the panel said.

The district court improperly considered that section "in a vacuum," the panel said, noting that while it doesn't limit the governor's power to issue successive disaster proclamations, other sections of the statute limit local officials' abilities to proclaim local disasters. For example, some local officials are barred from renewing  a disaster declaration beyond seven days without the consent of their jurisdictions' governing boards, the panel said.

"From this section of the act, it is plain to see that, where the legislature intended there to be a check on an official's powers to make consecutive disaster declarations, it explicitly provided as much," the court said.

The appellate court also rejected FoxFire's contention that under the Department of Public Health Act, Pritzker must show that a regulation will hinder his efforts to cope with a disaster before suspending it.

No such suspension happened in the current case, the panel concluded, because the measures laid out in Pritzker's executive order were "not tantamount to quarantine orders, isolation orders, or business-closure orders." Instead, the order "prescribed guidelines that restaurants must follow to safely operate while a region's positivity rates exceed state guidelines," the court said.

And while the panel said it understood the concerns of the Illinois Restaurant Association and the Restaurant Law Center, which filed briefs in the case defending eateries' efforts to operate safely during the pandemic, it was "not tasked with questioning the policies" behind Pritzker's order.

"Instead, pursuant to the trial court's issuance of the TRO, we are tasked only with determining whether the governor had legal authority to proclaim successive disasters to address the pandemic and that thus FoxFire failed to establish a likelihood of success on the merits," the panel said.

Representatives of the parties could not be immediately reached for comment on Monday.

FoxFire is represented by Kevin L. Nelson of Myers Earl & Nelson P.C.

The state is represented by Illinois Attorney General Kwame Raoul, Kane County State's Attorney Joseph H. McMahon, Solicitor General Jane Elinor Notz, Assistant Attorneys General Thomas Verticchio, Sarah A. Hunger, Jonathan J. Sheffield and Evan Siegel and Assistant State's Attorney Erin M. Brady.

The case is Fox Fire Tavern LLC v. Pritzker, case number 2-20-0623, in the Appellate Court of Illinois, Second District.

--Editing by Peter Rozovsky.

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