With COVID-19 surging, appellate court hands Gov. Pritzker new legal victory on coronavirus restrictions

A state appellate court handed Gov. J.B. Pritzker a new legal victory Friday, siding with him on a key question that has hovered over his COVID-19 restrictions since the early days of the pandemic.

In an opinion undoing a temporary restraining order that had freed a Kane County restaurant from Pritzker’s current ban on indoor dining, Illinois’ 2nd District Appellate Court found the Illinois Emergency Management Agency Act “plainly authorizes” the governor to issue multiple disaster proclamations — each giving him 30 days of emergency powers.

Though most judges had already sided with the governor on that question, Kane County Judge Kevin Busch recently found that Pritzker could claim emergency powers for no more than 30 days. State lawyers appealed, and that led to Friday’s opinion. It is believed to be the first time an appellate court in the state has ruled on the issue.

Anthony Vazquez/Sun-Times

Though the appellate court noted its opinion “may not be cited as precedent” except in limited circumstances, veteran attorney Terry Ekl said in an email it’s clear the court “has determined that the governor had the authority to issue his restrictions.”

State lawyers have continued to defend Pritzker’s orders in court even as warm weather led to loosened restrictions. The 7th U.S. Circuit Court of Appeals is getting ready to hear further arguments in a religious challenge to Pritzker’s orders Thursday, for example.

It’s the same case in which U.S. District Judge John Lee addressed the question of Pritzker’s ability to extend his powers beyond 30 days back in May. Lee wrote Illinois law specifically mentions disasters that could extend beyond 30 days and added, “It is difficult to see why the legislature would recognize these long-running problems as disasters, yet divest the governor of the tools he needs to address them.”

Amy Coney Barrett even weighed in before she joined the U.S. Supreme Court. The judge joined a 7th Circuit panel in September that sided with Pritzker in a case brought by the Illinois Republican Party. Three weeks later, President Donald Trump nominated Barrett to the Supreme Court, where she is now a justice.

Though a judge in Clay County did rule against the governor, that case has been moved to Sangamon County and is being considered by a different judge.

Now COVID-19 is on the rise again. Pritzker has said, “I cannot stress enough the severity of our situation” and that further restrictions could be coming “because the rise in cases and hospitalizations is unsustainable.” The state’s COVID-19 death toll has now passed 10,000.

Pritzker recently issued bans on indoor services at bars and restaurants across the state. But Busch, the Kane County judge, entered an order Oct. 26 stopping Pritzker from enforcing an indoor dining ban against Fox Fire Tavern and told lawyers that “I believe the statute is plain, simple and clear, and that the 30 days is a limitation of the governor’s power.”

Meanwhile, the Illinois Restaurant Association and Restaurant Law Center filed its own 24-page brief with the appellate court, insisting they “cannot overemphasize the importance of the outcome of this case to their members.”

Most Illinois restaurants are in debt and unable to pay their bills “after close to eight months of scrambling,” attorney Gabriel Gillett wrote on their behalf. But some of the earlier financial pain the pandemic could have caused was blunted by government aid and outdoor dining allowed by warm weather.

“But now, outdoor dining is all but over and meaningful support to stay in business and pay employees is not coming from the state or federal government,” Gillett wrote. “Without aid, and without the ability to continue serving customers either indoors or outdoors, restaurants will be out of options and out of business.”

In the Friday ruling written by appellate Justice Joseph E. Birkett, the court said the “reasonableness” of Pritzker’s orders “is not before us.” In a concurrence, appellate Justice Robert D. McLaren wrote, “in order to deem the governor’s orders unreasonable, there has to be a comparison of the disease’s impact on the restaurant industry viz a viz its impact on the general public.”

“Simply put, (Fox Fire) has neither pled nor presented evidence that the cure is worse than the disease,” McLaren wrote.