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Pritzker, IDPH ask appellate court to make FoxFire TRO decision precedential

Tuesday, Nov 10, 2020 - Posted by Rich Miller

* 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.

       

4 Comments
  1. - TheInvisibleMan - Tuesday, Nov 10, 20 @ 3:16 pm:

    Since it has become painfully obvious most county health departments are less than useless, even in the face of a global pandemic, I’d like to hear suggestions on what organizational structure will replace them.

    County board members appointing their friends to run a health department clearly is not the correct way to handle this.


  2. - Norseman - Tuesday, Nov 10, 20 @ 3:23 pm:

    Hopefully, the court will grant the request. It’s time to move past these frivolous suits.


  3. - Norseman - Tuesday, Nov 10, 20 @ 3:27 pm:

    Another troll adding inane comments about local health departments. It’s not a perfect system, but it took decades of persuasion, cajoling and compromise to get where we’re at today. Politicians don’t want to spend money on public health. And, when the hard decisions have to be made the politicians ignore the professional advice their given.


  4. - TheInvisibleMan - Tuesday, Nov 10, 20 @ 3:31 pm:

    ===inane comments about local health departments===

    We are here in no small part because county health departments have worked closer with the local chambers of commerce, than in the interest of public health.

    The current system is broken. I don’t want to hear excuses about ‘how hard it would be’ to fix it. That ship has sailed. The current county health department structure is not science-based, it is commerce based.


Sorry, comments for this post are now closed.


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