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* Eric Schelkopf at the Kane County Chronicle…
Kane County judge Kevin Busch on Monday granted a temporary restraining order to prevent Gov. JB Pritzker, the Illinois Department of Public Health and the Kane County Health Department from enforcing an indoor dining ban at FoxFire restaurant in Geneva. […]
“There is no question that a person’s ability to pursue their calling, to earn a living and to run a business is a protectable right under both the federal and state constitution and is inherent in everyone’s natural right to liberty,” Busch said, in issuing his opinion. “The state’s ability to deprive people of their life, liberty and the pursuit of happiness is tempered by due process.” […]
Busch agreed with the suit’s contention that Pritzker exceeded the 30-day emergency powers granted to him. In March, he issued a disaster proclamation because of COVID-19. […]
“The crowds at our local food stores are much greater than the crowds that can, and I expect do, populate our local restaurants, including FoxFire,” he said. “I note that in our community that every one of the big box stores is open. And again, the crowds that populate these stores are significantly greater than the crowds that populate are local restaurants, including those like FoxFire. And the court cannot turn a blind eye to these facts. If there was such a compelling public need to shut down businesses for public health, then how did we pick the winners and losers?”
The Patch’s coverage included this important context to the judge’s comments…
According to the Centers for Disease Control and Prevention, dining at bars and restaurants is closely linked to the spread of the virus in many communities. Adults who tested positive for the virus were approximately twice as likely to have reported dining at a restaurant than those with negative test results, according to a CDC study published in September. Experts now believe the coronavirus is airborne, and tiny droplets containing the virus can linger indoors for hours as aerosols, making indoor dining especially risky since diners can’t wear masks while eating.
* Maybe if the state had been allowed to brief the case, the judge would’ve had some answers. From the governor’s office…
The administration is disappointed the court has ruled against public health protections that keep people safe. This decision was made without briefing and is contrary to how many other Illinois state and federal courts have ruled on this matter. Positivity rates and hospitalizations are rising across the state; this public health crisis is not over. The administration will review the court’s order and determine the appropriate next steps.
From the attorney general’s office…
With 9,522 lives lost and half the counties in Illinois now at the Illinois Department of Public Health’s warning level, the need for these lifesaving measures could not be more evident. As we have argued successfully in other Illinois courts that have considered these issues, the governor’s constitutional and statutory authority to protect Illinois residents during the pandemic is clear. We are committed to continuing to defend the well-reasoned measures being implemented to mitigate the spread of COVID-19 throughout Illinois, particularly as the numbers of positive cases and hospitalizations once again increase.
The lawyers representing the restaurant were on WGN Radio yesterday. Click here to listen to the interview.
*** UPDATE 1 *** From the plaintiff’s petition…
(T)he [Illinois Emergency Management Agency Act] does not authorize Gov. Pritzker to declare a “disaster” to manage an existing “disaster” for an additional thirty (30) days, and certainly not ad nauseum.
Judge Busch…
“The state has argued that there’s nothing in the Emergency Management Act that suggests that the governor couldn’t issue then successive proclamations,” Busch said. “And while that is certainly true, there’s nothing in the act that suggests he can.”
* From an Illinois Supreme Court order issued today…
Illinois has been in a state of emergency since Governor Pritzker’s declaration on March 9, 2020, due to the COVID-19 pandemic, necessitating temporary court-imposed restrictions to minimize the impact of COVID-19 on the court system, while continuing to provide access to justice.
That could be a pretty good hint at where the high court is going here.
*** UPDATE 2 *** The attorney general’s office has asked 2nd Appellate District to hear its appeal of the TRO. Click here. The AG also filed this document with Judge Busch. Worth a read.
posted by Rich Miller
Tuesday, Oct 27, 20 @ 9:57 am
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“no question that a person’s ability to pursue their calling, to earn a living and to run a business is a protectable right under both the federal and state constitution”
Glad we have Kane County judges out here making up constitutional law as they go along. Makes for a really stable society.
Comment by Larry Bowa Jr. Tuesday, Oct 27, 20 @ 10:02 am
The four Democrats on the Illinois Supreme Court go to Bush v. Gore lengths to protect the party’s ability to gerrymander, but can’t step in and clarify the governor’s powers during an unprecedented pandemic. Our sorry state indeed.
Comment by lake county democrat Tuesday, Oct 27, 20 @ 10:04 am
and, another domino falls…
Remember, remember, the 3rd of November…
Comment by MidState Anon Tuesday, Oct 27, 20 @ 10:10 am
Right there with you lake county democrat. This has gone on too long. The ISC should have weighed in on this long ago. I don’t care what the rule is, just clarify if it’s legal so everyone can proceed accordingly. Wisconsin and Michigan Supreme Courts have done so.
Since the legislature doesn’t want to weigh in, there will be continued uncertainty. It looks like judicial is avoiding it as well.
Comment by ddp76 Tuesday, Oct 27, 20 @ 10:10 am
So apparently the Lochner rulings are still in effect in Kane County. Good to know.
Comment by yeah Tuesday, Oct 27, 20 @ 10:17 am
LCD. Is there a case before the court?
Comment by very old soil Tuesday, Oct 27, 20 @ 10:19 am
“ Adults who tested positive were twice as likely…” this does not necessarily mean that restaurants are a cause of spreading the virus. It might just mean that the people who go to restaurants are taking greater chances with their behavior concerning the virus. It’s hard to hold restaurants responsible in that case.”
Comment by ajjacksson Tuesday, Oct 27, 20 @ 10:22 am
I may be wrong and if so I know I will be corrected but aren’t casinos open? Seems they would have same issue as a restaurant, also exercise places. And a local bowling alley shut down seating for bar and restaurant so you go get food and drinks and bring back food and drinks to alley and he keeps video gambling open. I think the inconsistencies and changes hurt the governor
Comment by DuPage Saint Tuesday, Oct 27, 20 @ 10:25 am
Another willfully ignorant judge who doesn’t understand the difference between essential activities like getting food versus nonessential activities like sitting down unmasked for a beer or meal out. Or the ability of masks to prevent transmission while shopping.
Comment by Jibba Tuesday, Oct 27, 20 @ 10:26 am
= but can’t step in and clarify the governor’s powers =
No, they can’t. Like any court, the Illinois Supreme Court can rule only on cases that are before it. When one of these cases reaches them, they’ll render a decision, not before.
Comment by JoanP Tuesday, Oct 27, 20 @ 10:27 am
The restaurant itself got a favorable ruling.
As it works its way up, we may get a better clarity to the law, instead of judicial activism seems to be here.
All they did was, as a plaintiff, expose themselves as Covidiots, and its another place I won’t visit, as safety is not a concern.
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 10:28 am
1. This is a TRO, the operative word being ‘temporary.’ They are typically granted with limited notice and limited hearing, but they can be dissolved just as easily. The Gov will get his chance very soon. 2. There is nothing ‘new’ or ‘made up’ about what the judge is citing as constitutional rights- it’s squarely within the fifth amendment’s due process protections- life, liberty & property. The legislature REALLY needs to act, and act soon if they want to put an end to all of this.
Comment by The Ford Lawyer Tuesday, Oct 27, 20 @ 10:42 am
===The legislature REALLY needs to act===
Narrator: they don’t.
The legislature has decided not to act. It’s not going to act, thinking they will act is not understanding how this going and why it’s going as it is.
===life, liberty & property.===
The case is money OVER lives, but… if ya put enough buzz words in a row…
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 10:49 am
== There is nothing ‘new’ or ‘made up’ about what the judge is citing as constitutional rights- it’s squarely within the fifth amendment’s due process protections- life, liberty & property. The legislature REALLY needs to act, and act soon if they want to put an end to all of this. ==
Unless we’ve been transported back in time to the 1920s, no not really. The courts have taken a very dim view of economic substantive due process claims for a long time.
Comment by yeah Tuesday, Oct 27, 20 @ 10:50 am
=The legislature REALLY needs to act, and act soon if they want to put an end to all of this.=
The legislature did act. They decided that the law was sufficient as written and took no further action. People can take it up with the courts as they’ve chosen to do here.
Comment by Pundent Tuesday, Oct 27, 20 @ 10:50 am
The legislature and Supreme Court need to step in one way or the other. Our entire area is open for business. They are doing so with the approval of our Republican and Democratic elected officials, the states attorney, and the sheriff. The health department is slow walking all complaints, too.
They may be open, but our wallet is now closed. We increased our support to local restaurants to the point where we’ve spent over $20,000 dining out this year, excluding tips. That ended yesterday. We know we won’t put anyone out of business or even put a dent in their revenues, but it’s what’s right for us. The grocery store is our new restaurant. And cooking at home will be healthier.
Comment by DirtLawyer Tuesday, Oct 27, 20 @ 10:51 am
===The legislature did act===
Yep. They’ve been in session since the pandemic began and chose not to do much of anything. And I haven’t yet seen a single serious legislative proposal for the veto session.
Comment by Rich Miller Tuesday, Oct 27, 20 @ 10:53 am
===The legislature and Supreme Court need to step in one way or the other.===
Again, it’ll be the judicial, the legislature has made clear in their inaction, they’re “out”… and by inaction I mean the legislature has decided enough has been done, they do not need to “step in”, and if the courts would like to step in, they’re fine with that.
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 10:55 am
=== They’ve been in session since the pandemic began and chose not to do much of anything===
Because, sadly, their sinecures and paychecks are more important than public health.
Comment by DirtLawyer Tuesday, Oct 27, 20 @ 10:56 am
The Supreme Court has the ability to hear cases immediately - I presume the Illinois Supreme Court has the same mechanism but TBH don’t know for certain. I believe the legislature could give the court the power as well (as Congress can for the federal courts). https://www.scotusblog.com/2011/02/overview-of-supreme-court%E2%80%99s-cert-before-judgment-practice/
Comment by lake county democrat Tuesday, Oct 27, 20 @ 10:56 am
=== the legislature has made clear in their inaction, they’re “out”===
Yup. Why take the political heat? You’d think after the election someone somewhere will do something, as we now will end up with splits in circuits and conflicts in opinions.
Comment by DirtLawyer Tuesday, Oct 27, 20 @ 10:58 am
===as we now will end up with splits in circuits and conflicts in opinions.===
As a “dirt lawyer” you’ll prolly see the ILSC rule on one and that’ll set the table for those filling “suit”
We’ll see.
If you don’t like the legislature’s way, make sure you vote this election.
:)
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 11:01 am
===You’d think after the election someone somewhere will do something===
lol
Comment by Rich Miller Tuesday, Oct 27, 20 @ 11:14 am
===You’d think after the election someone somewhere will do something===
(Sigh)
The Covidiots are trying to make an argument they are best to lead… so far it’s not winning hearts or minds.
What political good, election-wise, will help those in contested races?
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 11:24 am
@ yeah 10:50 — “The courts have taken a very dim view of economic substantive due process claims for a long time.”
With respect: Can you provide citation(s) to governing court decisions? Would like to follow up on this. Thanks.
Comment by Flapdoodle Tuesday, Oct 27, 20 @ 11:30 am
===lol===
Exactly. Why do your job when you don’t have to, knowing it’ll cost you votes and campaign donations? And I’m confident the ILSC will punt for as long as it can leaving us in chaos. I thought about calling legislators, but more realistically, calling a Realtor makes more sense.
Comment by DirtLawyer Tuesday, Oct 27, 20 @ 11:34 am
==The state’s ability to deprive people of their life==
This judge thinks he has a right to deprive people of their lives, which is what he is doing with his decision - killing people. There’s a reason why this virus is running rampant in the U.S. and it’s because of the views of people like this judge.
Comment by Demoralized Tuesday, Oct 27, 20 @ 11:38 am
=== Why do your job when you don’t have to, knowing it’ll cost you votes and campaign donations?===
The Governor acted, the legislature decided their own path.
You don’t like it.
Ok.
But, that’s where it is.
Oh. Boy. …
=== I thought about calling legislators===
Shot…
===but more realistically, calling a Realtor makes more sense.===
… and the Chaser.
Facebook has realtors.
Have you even contemplated… you have 71 and 36 if that legislation you want gets passed but is vetoed? That 60/30 won’t override that veto.
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 11:40 am
===Have you even contemplated… you have 71 and 36 if that legislation you want gets passed but is vetoed? That 60/30 won’t override that veto.===
And your point? We all know there will be nothing but inaction by everyone, and Pritzker is being and will continue to be largely ignored Downstate. As you said, though, the legislature decided its own path. I think it was the wrong path, but there it is. I voted, as you mentioned, but both my GA candidates are Covidiots anyway.
Comment by DirtLawyer Tuesday, Oct 27, 20 @ 11:54 am
=== And your point?===
Friend, if you don’t understand what you’re even asking… how can I take you at all serious to the process you hope to make happen?
If you don’t have 71 and 36… then what are we really talking about?
Good luck.
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 12:01 pm
This alone.
===I voted, as you mentioned, but both my GA candidates are Covidiots anyway.===
I feel for ya. I truly do. I can read your head and heart are in the right place, but it’s not an easy or thoughtful politically driven response, all we can do is see these cases go thru the courts, and then move forward.
Be well.
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 12:05 pm
53% of the deaths statewide are from nursing homes and LTC facilities.
Comment by Swimdad13 Tuesday, Oct 27, 20 @ 12:09 pm
Dear Judge Busch,
Unlike you, Covid doesn’t watch Fox News.
Comment by PublicServant Tuesday, Oct 27, 20 @ 12:12 pm
==53% of the deaths statewide are from nursing homes and LTC facilities.==
And every single one of those deaths was caused by the virus being brought in from the outside. Any other brilliant arguments you want to make Mr. Wizard?
Comment by Demoralized Tuesday, Oct 27, 20 @ 12:15 pm
=The Supreme Court has the ability to hear cases immediately - I presume the Illinois Supreme Court has the same mechanism but TBH don’t know for certain.=
There are certain types of cases which can be appealed directly to the Supreme Court. But the Court cannot simply reach out and make a decision unless and until a case is before it.
Suggesting that the Court “step in” is the very definition of judicial activism and is antithetical to our judicial system.
Comment by JoanP Tuesday, Oct 27, 20 @ 12:22 pm
===…at where the high court is going here.===
I sure wish they’d get there a lot faster. The loud minority gets louder with each passing day. Lacking a court decision, I think now is the time for JB to start pulling liquor and gambling licenses.
Comment by Jibba Tuesday, Oct 27, 20 @ 12:27 pm
@flapdoodle
== With respect: Can you provide citation(s) to governing court decisions? Would like to follow up on this. Thanks.==
From 1905 to 1937, economic regulation in the US was in what’s called the “Lochner era.” The name derived from Lochner v New York in which the Supreme Court ruled that a state law limiting the number of hours bakers could work violated the due process clause of the 5th and 14th amendments.
For the next three decades, the courts struck down economic regulations under the Lochner decision, essentially saying that the government could not interfere with the “freedom to contract.”
The Lochner era ended in 1937 in West Coast Hotel Co. v. Parrish in which the Supreme Court upheld a minimum wage law in Washington.
Ever since then, the courts have generally refused to find that economic restrictions imposed by states violate the due process clause.
Comment by Yeah Tuesday, Oct 27, 20 @ 12:31 pm
Why isn’t my response to Demoralized being posted? it is not uncivil, no profanity, not a rumor nor anonymous?
Comment by Swimdad13 Tuesday, Oct 27, 20 @ 12:34 pm
I know. LOL
Comment by Swimdad13 Tuesday, Oct 27, 20 @ 12:39 pm
Y’all here to add to the discussion or just spam?
We’re at 224,000 deaths plus, and growing, in America.
Y’all laughing at the victims we lost… or the families mourning loved ones, friends mourning friends… who y’all laughing at?
Who are y’all… mocking?
Comment by Oswego Willy Tuesday, Oct 27, 20 @ 12:43 pm
=We all know there will be nothing but inaction by everyone, and Pritzker is being and will continue to be largely ignored Downstate.=
Are you suggesting that action by the legislature would change any of this? If they were to pass something it would reaffirm the authority the Governor is currently exercising. Democratic reps would vote in favor while Republicans would oppose. Darren Bailey’s message would be exactly as it is today and Pritzker’s popularity or lack thereof downstate would be as it currently is. The only way this gets better is when we all start taking the virus seriously.
Comment by Pundent Tuesday, Oct 27, 20 @ 12:43 pm
I responded responsibly to Demoralized which appeared to be blocked. Not sure why No Mask is laughing at me.
Comment by Swimdad13 Tuesday, Oct 27, 20 @ 12:48 pm
For those of you wanting the Supremes to jump in - what Joan P. said.
Comment by West Side the Best Side Tuesday, Oct 27, 20 @ 12:49 pm
Demoralized - 53% has been pretty consistent throughout the pandemic and has not changed. What measures are being taken to lower that number?
Comment by Swimdad13 Tuesday, Oct 27, 20 @ 12:57 pm
=“The state has argued that there’s nothing in the Emergency Management Act that suggests that the governor couldn’t issue then successive proclamations,” Busch said. “And while that is certainly true, there’s nothing in the act that suggests he can.”=
When interpreting laws, isn’t it generally agreed upon that unless there is a law that says you can’t you can?
This judge seems to suggest the opposite.
Comment by Former Downstater Tuesday, Oct 27, 20 @ 1:13 pm
==run a business is a protectable right==
I didn’t realize that running a business (along with fishing) was in the constitution.
::cue “The More You Know” rainbow logo::
Comment by Jocko Tuesday, Oct 27, 20 @ 1:44 pm
===What measures are being taken to lower that number?===
Masks, capacity limits, social distancing… What do you think those are intended to do? If followed, they stop community spread so it never reaches the LTC facilities and other vulnerable populations.
Assuming your 53% metric is true, the ratio of deaths there versus the general population is less of the concern than the overall number of deaths (and the long-term non-death health impacts). I mean, if we just care about the 53% metric, we just need more non-LTC people to die, right?
Comment by thechampaignlife Tuesday, Oct 27, 20 @ 1:56 pm
To the Update:
ISC statement implies that the Gov has the right to do what he is doing so long as customers have access to the business. In the case of dining, customers can do take-out or drive-thru. So long as these options remain the Gov appears to be within his power.
The only nuance in the statement is the word “temporary”. Is there a legal definition on timing for something to no longer be considered “temporary” or is temporary looked at in the realm of the event i.e. pandemics end eventually thus if it’s one year or five years it still constitutes as temporary.
Who defines and has the legal capacity to determine when the event is over? If/when the WHO says society does not generally have to be concerned would the ISC recognize that or only when the State says so?
Comment by 1st Ward Tuesday, Oct 27, 20 @ 2:12 pm
As I posted before: “The GA has already given the Governor the power to issue rolling executive orders with the authority to issue each new, consecutive emergency declaration. There is no need to do more. The GA’s silence is tacit approval of what is already state law.”
Comment by Steve Polite Tuesday, Oct 27, 20 @ 2:14 pm
===The only nuance in the statement is the word “temporary”.===
That’s just reality. The governor says this ain’t permanent. Only lasts as long as the emergency lasts.
Comment by Rich Miller Tuesday, Oct 27, 20 @ 2:19 pm
“States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.” - Kavanaugh
Flip?…from what previous result?…Beware.
Comment by Dotnonymous Tuesday, Oct 27, 20 @ 2:23 pm
“53% has been pretty consistent” You do realize that this disease has serious affects even for the survivors, right? There are outcomes besides “die or completely recover.”
Comment by Skeptic Tuesday, Oct 27, 20 @ 2:28 pm
==53% of the deaths statewide are from nursing homes and LTC facilities.==
I’d like to talk about this a bit because it seems to segway to the ‘well they are going to die anyway’ argument.
First, by no stretch of the imagination are those the only types of patients in these facilities many of them have had medical issues or surgery that requires recovery and rehab that partners or families are unable to provide, the goal in many of these cases is to get the patient home or at least to a less intense level of care.
Secondly, the whole ‘number/percentage/who dies’ argument is rather BS anyway. Food contamination doesn’t kill the vast majority of people who get food-borne illnesses but will still expect cooks to wash their hands when they leave the restroom and have health inspectors to ensure that food is prepared and stored properly.
If our attitude is really going to become ‘well they are old’ please let me know because then we can stop getting my wife malpractice insurance, heck why make sure she is even licensed, I mean it’s old people who were going to die anyway.
Comment by OneMan Tuesday, Oct 27, 20 @ 2:36 pm
JoanP: you are mistaken - read the link - they can take the appeal the moment a case is docketed in an appellate court, and in federal court at least you can appeal a denial of an injunction or TRO to an appellate court immediately.
Comment by lake county democrat Tuesday, Oct 27, 20 @ 3:01 pm
===JoanP: you are mistaken - read the link - they can take the appeal the moment a case is docketed in an appellate court, and in federal court at least you can appeal a denial of an injunction or TRO to an appellate court immediately.===
See also Illinois Supreme Court Rule 302(b). http://www.illinoiscourts.gov/supremecourt/rules/art_iii/ArtIII.htm#302
Comment by DirtLawyer Tuesday, Oct 27, 20 @ 3:19 pm
The Rise and Fall of Economic Substantive Due Process
https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/the-rise-and-fall-of-economic-substantive-due-process-overview
Comment by Bigtwich Tuesday, Oct 27, 20 @ 3:44 pm
maybe a more qualified judge can be assigned to the next hearing
https://www.isba.org/sites/default/files/judicialevaluations/2016general/16circuit.pdf
Comment by crazybleedingheart Tuesday, Oct 27, 20 @ 4:03 pm
So is the Update #1 something that was issued today or was it issued for how the Supreme Court is changing policies for conducting civil trials?
Reason I’m asking for clarification is I questioned Greg Bishop on this as he just posted something about this restaurant and said this isn’t in response to this challenge. So now I’m confused.
Comment by Club J Tuesday, Oct 27, 20 @ 4:41 pm
@LDD-
You are missing the point. The case must go through normal channels. The Supreme Court cannot just decide to decide. Or, in your words, “step in”.
And quit looking at federal court procedures. Those are irrelevant to state court proceedings.
Comment by JoanP Tuesday, Oct 27, 20 @ 5:22 pm
Nothing has moved to the appellate stage. The Illinois Supreme Court can’t do anything until that happens. They’re playing games in Clay County to keep that from happening and the losers in the other counties haven’t filed appeals. Unlike the GA which can follow news headlines and say “Let’s pass a law about that”, courts need to have a case before them to reach decisions. And Illinois courts follow Illinois statutes and rules, not federal rules.
Comment by West Side the Best Side Tuesday, Oct 27, 20 @ 7:28 pm
Former Downstater -
In answer to your question as to whether it is “generally agreed upon” in statutory interpretation that if there’s no prohibition, a power can be exercised.
There is no such rule or general agreement.
If the court cannot devise the meaning of a statute from its plain wording, it is required to consult the legislative history to determine what the legislature’s intent was in approving the measure that ultimately became law. In the present case, as the statute is silent as to whether a governor has the ability to declare a second or subsequent declaration, the legislative history and intent is the key.
At some point, someone is going to do that research with regards to the statute in question. Actually, that research has already been done, but for some reason that’s not yet come to light.
Comment by Quenton Cassidy Tuesday, Oct 27, 20 @ 8:11 pm
Re: Update 2. Now things are on the move so the Supremes can legally and properly “step in/weigh in.” Hope that makes people happy. ( Or will you only be happy if, let’s say, Justice Theis, starts tweeting about this like some unhinged loony. That ain’t gonna happen.)
Comment by West Side the Best Side Tuesday, Oct 27, 20 @ 8:43 pm