Judge declines to dismiss lawsuit over indoor dining ban
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[April 10, 2021]
By SARAH MANSUR
Capitol News Illinois
SPRINGFIELD — A Kane County restaurant’s
legal challenge to Gov. JB Pritzker’s ban on indoor dining can continue,
a Sangamon County judge ruled this week.
Attorneys for Pritzker tried to have the lawsuit dismissed but Sangamon
County Judge Raylene Grischow on Wednesday declined to do so. While
Grischow decided not to dismiss the case, she did not reach a decision
on the merits of their argument.
The lawsuit from FoxFire restaurant in Geneva argues that Pritzker’s
executive order requiring bars and restaurants to close indoor service,
which first went into effect last October, should not be allowed because
it is arbitrary and unreasonable.
Pritzker’s attorneys claimed that the governor had authority to issue
his October 2020 executive order under the state Emergency Management
The governor’s lawyers also argued that Illinois residents who seek to
challenge Pritzker’s order as beyond the limits of his power can take
action at the ballot box, not through the court system.
Grischow disagreed with this claim about the court’s role to intervene
in cases where the constitutional limits of the governor’s authority are
“[I]t is this court that must ensure the governor does not circumvent
the constitutional confines of his authority,” Grischow wrote in her
five-page opinion. “This court can inquire as to whether the means
utilized in the execution of a power granted are forbidden by the
Grischow wrote that her court has the responsibility to determine
whether the governor’s “implementation of the business shutdowns and/or
restrictions were arbitrary and unreasonable.”
Her opinion also recognized that the restaurant “bears a heavy burden to
establish that (the governor’s) actions were clearly arbitrary and
Pritzker said he has “confidence that we have followed the rules and
followed the law,” in response to a reporter’s question about Grischow’s
decision at a news conference Thursday.
“The legal challenge that you're referring to, as you know, there have
been a number of right-wing organizations that have stoked some of these
lawsuits and they continue to try to poke and prod to find something,
anything. They've lost at every turn. You know, this is just another one
of those cases,” Pritzker said Thursday at an event in suburban Cook
County. “Nearly every court, you know, has confirmed that and where they
haven't, they've been overturned.”
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The Sangamon County Complex is pictured in
Springfield. (Capitol News Illinois file photo)
Kevin Nelson, one of FoxFire’s attorneys, said in an email his
client is not “some ‘right wing’ organization as the Governor claims
but a family-owned small business, which, was almost put out of
business by his unconstitutional and unprecedented actions.”
Nelson criticized Pritzker for leaving small businesses, like
FoxFire, “out in the cold this winter.”
“The citizens of this state need to be made aware that their
governor argues in Court that he can shut down small businesses
indefinitely during an emergency,” Nelson said in the email. “Last
week Pritzker’s lawyers went further and argued to Judge Grischow
that there is nothing the citizenry, nor even the court system, can
do about it other than ‘vote him out of office.’ Thankfully, yet
another Illinois judge disagreed with him. If FoxFire represents a
‘conspiracy,’ we live in a scary reality. FoxFire’s specialty is
fine dining, not votes. FoxFire will stick to fine dining and leave
the mismanagement of our state to Mr. Pritzker.”
Grischow’s decision issued Wednesday is the latest development in
the legal challenge to the governor’s executive order raised by
FoxFire, which has remained open to indoor service while its lawsuit
The restaurant won an early victory in October when a Kane County
judge granted the restaurant’s request for a temporary restraining
order that allowed FoxFire to ignore the new indoor dining
restrictions contained in the executive order.
The 2nd District Appellate Court overruled the Kane County judge’s
decision in November, rejecting FoxFire’s arguments that Pritzker is
limited, under state law, to issue one 30-day disaster proclamation,
and also does not have the power to order businesses closed.
Following that appellate court decision, the FoxFire case was
consolidated in Sangamon County court with several other cases
challenging the indoor dining ban. Currently, FoxFire is the last of
these cases opposing the indoor dining ban remaining in Sangamon
FoxFire’s attorneys have also filed an appeal directly with the
Illinois Supreme Court, which has not yet weighed in on this case.
The next hearing in this case is scheduled for April 28.
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