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Complete smackdown: Foxfire restaurant TRO reversed by appellate court

Friday, Nov 6, 2020 - Posted by Rich Miller

* Background is here if you need it. From the decision by Justice Birkett

The trial court abused its discretion by granting a temporary restraining order where the petitioner failed to establish a likelihood of success on the merits. […]

Turning to the substance of this appeal, defendants contend that the trial court improperly granted FoxFire’s request for a TRO because FoxFire did not establish a likelihood of success on the merits. […]

In order to show a likelihood of success on the merits, the party seeking injunctive relief need only “raise a fair question as to the existence of the right which [it] claims and lead the court to believe that [it] will probably be entitled to the relief requested if the proof sustains [its] allegations.” Because both the Act and subsequent statutes confirm the governor’s authority to issue successive proclamations arising from a single, ongoing disaster, we find that FoxFire failed to establish a probability of success on the merits.

Because the Act plainly authorizes the governor to issue successive disaster proclamations stemming from one, ongoing disaster, the trial court abused its discretion in finding that FoxFire established a likelihood of success on the merits.

When interpreting a statute, a court’s primary objective is to ascertain the legislature’s intent. The best indicator of the legislative intent is a statute’s language, given its plain and ordinary meaning. Where a statute is unambiguous, a court should apply the statute as written without the use of extrinsic aids.

“It is not permissible to depart from the plain language of the statute by reading into it exceptions, limitations, or conditions not expressed by the legislature.” […]

To maintain the separation of the legislative and judicial branches, courts should avoid implementing their own “notions of optimal public policy” into legislation.

Pursuant to section 7 of the Act, “[i]n the event of a disaster *** the Governor may, by proclamation declare that a disaster exists.” 20 ILCS 3305/7. Once such a declaration has been made, the governor may exercise his emergency powers “for a period not to exceed 30 days” following the proclamation. 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.

While section 7 does not contain any limitations to the governor’s power to issue successive disaster proclamations, other sections of the Act do contain limitations on other local officials’ capabilities to exercise that power. […]

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. […]

However, by failing to consider the entirety of the Act before concluding that the governor’s authority to address the COVID-19 pandemic were “limited by the legislature to 30 days,” the trial court improperly considered section 7 of the Act in a vacuum. The trial court’s interpretation of the Act also violated a second maxim of statutory interpretation by reading limitations into the Act that were neither provided nor intended by the legislature. Because the trial court ignored these maxims of statutory interpretation, we find that it abused its discretion when finding that FoxFire established a likelihood of success on the merits. […]

Our reading of the Act is bolstered by recent legislation that explicitly refers to the governor’s authority to issue successive disaster proclamations. […]

Each of these three statutes explicitly contemplates the governor’s authority to issue successive disaster proclamations. In fact, the amended language of the Unemployment Insurance Act mentions the governor’s power to issue subsequent proclamations specifically to address the COVID-19 pandemic. […]

FoxFire, seemingly abandoning its argument regarding the governor’s authority to issue successive disaster proclamations, now argues that section 7 of the Act imposed an additional prerequisite to the governor exercising his emergency powers to address the pandemic. Specifically, FoxFire reasons that before utilizing his emergency powers, the governor needed to show that “strict compliance with the statutes/rules at play must hinder the action [he] desires to take.” FoxFire concludes that, because the governor did not show strict compliance of section 2(c) of the Public Health Act (20 ILCS 2305/2(c) (West 2018)) hindered his efforts to address the pandemic, he was not authorized to suspend that statute by issuing EO61.

However, FoxFire’s contentions are meritless.

* And then the court addressed an amicus brief filed by the Illinois Restaurant Association

We understand and certainly appreciate amici’s cause for concern, especially considering the extreme hardships that the restaurant industry has faced in light of the ongoing pandemic. However, as we have noted above, we are not tasked with questioning the policies behind EO61. Instead, pursuant to the trial court’s issuance of the TRO, we are only tasked with determining whether the governor had legal authority to proclaim successive disasters to address the pandemic. Even if we were to consider the wisdom behind EO61, we note that the record is insufficient to guide us in such an analysis. As FoxFire has already suggested, the record contains no reference to any facts, figures, or expert testimony to support or rebut the governor’s implementation of EO61. Therefore, while we appreciate amici’s contentions, they unfortunately bear no relevance to the issue underlying this appeal.



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