(The Center Square) – A Sangamon County judge is poised to rule on a motion to dismiss a case challenging Illinois Gov. J.B. Pritzker’s authority to order a blanket closure of indoor dining amid the COVID-19 pandemic.
Pritzker ordered a prohibition of indoor dining March 16, 2020, with subsequent orders of varying degrees on all economic activity, including a statewide stay-at-home order that lasted more than two months. Ongoing orders more than a year later still prohibit indoor dining above 50 percent capacity.
The state Legislature has not provided any check on the governor’s ability to issue rolling consecutive 30-day disaster proclamations for the same disaster.
FoxFire restaurant in Geneva sued over the prohibition in October and won in Kane County Circuit Court. The case was then reversed on appeal and remanded back to the lower court where it was consolidated with other similar cases against the governor’s orders in Sangamon County court.
Following discovery orders in the case compelling the Pritzker administration to turn over documents they say justifies the closure orders to FoxFire’s attorney’s, the court Tuesday heard virtual oral arguments around the governor’s motion to dismiss the case.
“The General Assembly did not just give the governor sole discretion to declare a disaster, the General Assembly also wanted the governor to lead the state’s response to the disaster,” said attorney Darren Kinkead arguing for the motion to dismiss. “They wanted him to have sole discretion to determine how to use these incredibly broad and expansive emergency powers that they provided.”
Kinkead also used case law to argue the courts have no role in reviewing administrative functions with the separation of powers. He said the policy disagreement over how the governor is handling the pandemic more than a year in should be handled in the next election.
“It’s never wrong in our democracy to make your voice heard about how our government works because ultimately of course it’s the people who have the final say in how our government operates,” Kinkead said. “The solution is to vote. Next year there’s going to be a gubernatorial election.”
Sangamon County Judge Raylene Grischow said it’s been more than a year of the governor’s orders.
“The duration of this so-called emergency has gone from weeks to months to a date that remains uncertain,” Grishow said. “So if this is allowed to continue, aren’t we ultimately looking at the suspension of constitutional liberties themselves?”
“I research the CDC guidelines and nowhere in those guidelines does it say that we should quarantine or we should close businesses,” Grishow said. “I looked everywhere and I didn’t see it, yet that is what the governor has done.”
She said FoxFire is looking for empirical data that supports the governor’s orders.
“There’s no end in sight,” Grishow said. “Yes, we’ve made leaps and bounds to where we are today, but ultimately aren’t we looking at infringing on people’s rights? And that is something for the courts to review.”
Attorney Kevin Nelson represents FoxFire. He said the argument that his client should wait until the next election to get relief by voting neglects the idea of checks and balances among the branches of government.
“Both parties totally agree that what has happened is unprecedented,” Nelson said. “Never in the history of Illinois statehood has the governor used his emergency powers in succession this long, ever. And the idea that the businesses that were shut down, their only right of redress is to vote seems equally to violate some of those basic civic principles as well too.”
Grishow said she will take the case under advisement and issue a ruling in the next two weeks on whether to dismiss the case or allow it to advance.
The case in Sangamon County is 10-MR-589.
