There have been a number of lawsuits brought against Illinois Governor Pritzker relating to recent mitigation measures taken to address the COVID-19 pandemic. Some of these lawsuits included claims brought by restaurants to challenge bans on indoor dining and bar service. One case made its way to the Second District Appellate Court which issued a ruling last week invalidating a TRO that was issued by a trial court to stop the enforcement of the Governor’s mitigation measures against a Geneva restaurant. Fox Fire Tavern, LLC v. Jay Robert Pritzker.
On October 21, 2020, the Governo issued EO 2020-61 imposing mitigation measures on four Illinois counties, including Kane County. These measures required all restaurants and bars to cease indoor service. Fox Fire Tavern filed a lawsuit and a motion for a TRO to block enforcement of the new mitigation measures. The trial court had granted the restaurant’s motion and entered a TRO against enforcement of the mitigation measures against the restaurant, finding that the Governor lacked statutory authority to address the pandemic through consecutive disaster prcoclamations. The Governor, IDPH, and the Kane County Health Department appealed to the Second District Appellate Court.
In invalidating the trial court’s TRO, the Appellate Court found that state statute does provide authority to the Governor to issue successive proclamations arising from a single, ongoing disaster. First, the Illinois Emergency Management Agency Act contains no provision restriction the Governor from issuing multiple declarations – the language simply prohibits the length of any one declaration to “a period not to exceed 30 days”. Second, where the legislature wanted to restrict consecutive orders, the IEMA expressly said so, such as the language that prohibits a Mayor from issuing successive disaster declarations without City Council approval. In short, the Court found that the trial court’s interpretation was too narrow in reading parts of IEMA in isolation from other parts of that same statute.
The Court also referenced subsequent legislative changes to other statutes (including the Unemployment Insurance Act and the Election Code) that include express reference s to subsequent disaster proclamations as evidence that the legislature contemplated the Governor issuing successive disaster proclamations.
Finally, the Appellate Court addressed the policy arguments presented by the restaurant association and other amici who filed briefs in support of the restaurant’s case. These “friends of the court” argued that the restaurant industry had been unfairly targeted for shutdowns and that they would suffer extreme hardships from the stricter regulations. The Court stated that it was not tasked with considering the wisdom behind the Governor’s additional restrictions, or questioning the policy. Instead, the Court said its task was to determine whether the Governor has the authority to issue successive disaster proclamations for the COVID-19 pandemic, which the Court found he does.