* Background is here if you need it. The state today filed a motion to publish the order issued in the appeal of FoxFire restaurant’s TRO. From last week’s appellate decision…

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23

If the appellate court agrees with the new motion, then the order could be used as precedent by other courts.

* Reasoning…

In its order, this Court concluded that the Governor has authority under the Illinois Emergency Management Agency Act, 20 ILCS 3305/1 (the “Act”), to issue successive proclamations arising from a single, ongoing disaster.

Accordingly, Plaintiff-Respondent Fox Fire Tavern, LLC failed to establish a likelihood of success on the merits of its claim that the Governor lacked authority to issue a successive disaster proclamation on October 16, 2020, and, under this proclamation, to issue Executive Order 2020-61 to address the recent, exponential spread of Covid-19. Because Respondent lacked a likelihood of success on its claim, the circuit court abused its discretion by granting a temporary restraining order enjoining enforcement of this executive order against Respondent.

Publication of this Court’s order is warranted under Rule 23(a) because it “explains . . . an existing rule of law.” Ill. Sup. Ct. R. 23(a).

No previous opinion of an Illinois Appellate Court has decided whether the Act authorizes the Governor to issue successive proclamations from a single, ongoing disaster.

The Governor has interpreted the Act as authorizing him to issue successive disaster proclamations and, for 30 days following each proclamation, to address the Covid-19 pandemic using emergency powers under the Act. Yet many private organizations and individuals have asked courts across the State to reach the opposite legal conclusion. They have asserted that the Act permitted the Governor to proclaim the Covid-19 pandemic a disaster only once, and that afterward the Governor must use procedures set forth in the Illinois Public Health Act, 20 ILCS 2305/2, to address Covid-19.

Indeed, this challenge to the Governor’s authority to issue successive disaster proclamations during this ongoing pandemic is raised in cases pending across Illinois, on appeal and in pretrial litigation […]

Publication of this Court’s order, which explains an existing rule of law, thus would assist courts across Illinois currently tasked with resolution of this statutory question.

* By the way, here are all the cases that the state is dealing with…

JL Properties Group B LLC v. Pritzker, Nos. 3-20-0304 and 3-20-0305 (consol.), Appellate Court of Illinois, Third District; In re Covid-19 Litigation, No. 2020-MR-589, Cir. Ct. of Sangamon Cty.; Millertime Partners, LLC v. Pritzker, No. 20-CH-179, Cir. Ct. of Sangamon Cty.; Shakou, LLC v. Pritzker, No. 20 CH 6526, Cir. Ct of Cook Cty; Orphan Smokehouse, LLC v. Pritzker, No. 20-MR-140, Cir. Ct. of Marion Cty.; Rad Gaming, Inc. v. Pritzker, No. 20-MR-109, Cir. Ct. of Clinton Cty.; NKG Pingree Grove, LLC v. Priztker, No. 20-CH-353, Cir. Ct. of Kane Cty.; SBBL, LLC v. Priztker, No. 20-CH- 596, Cir. Ct. of DuPage Cty.; 251 Pub, LLC v. Pritzker, No. 20-MR-1121 Cir. Ct. of McHenry Cty.; Niko’s Red Mill, Inc, No. 20 CH 287, Cir. Ct. of McHenry Cty.; Haymaker Enterprises, LLC v. Priztker, No. 20 CH 65, Cir. Ct. of DeKalb Cty.; and Sheldon v. Lightfoot, 20-CH-04727, Cir. Ct. of Cook Cty.