Capitol Fax.com - Your Illinois News Radar

Please, Supremes, take the darned case

Posted in:

Illinois

* Hopefully we can finally get some closure on some of these issues…

The owners of FoxFire restaurant in Geneva plan to take their fight against an indoor dining ban to the Illinois Supreme Court.

On Friday, Illinois’ 2nd District Appellate Court ordered a reversal of Kane County Judge Kevin Busch’s decision to grant a temporary restraining order to prevent the enforcement of a state-ordered indoor dining ban at restaurants in Kane and DuPage counties in response to a surge of COVID-19 cases and hospitalizations. In response, FoxFire plans to take the case to the Illinois Supreme Court.

“It is obvious to say that FoxFire is disappointed with the Appellate Court’s decision,” attorney R. Gregory Earl, III, of the Geneva-based firm Myers, Earl and Nelson said in a statement on Monday. “Unfortunately, the Second District has decided to play politics rather than applying the statute. This case is about separation of powers, which the Appellate Court has missed completely. Instead, the justice authoring the opinion misstates law and fact. Needless to say, FoxFire will file their appeal to the Supreme Court of Illinois where they hope justice will be served – against the governor’s overreach and for the ability of a local restaurant to continue to pursue its calling, safely.”

posted by Rich Miller
Tuesday, Nov 10, 20 @ 2:27 am

Comments

What is really interesting is that the appellate court ruling is not binding on anyone except the parties, since it was filed under Rule 23.

Comment by Is it 2021 yet Tuesday, Nov 10, 20 @ 4:20 am
They would have saved everyone a lot of grief had they just dealt with Bailey in the beginning. Not sure whether they could have taken that case legally?, I was hoping they would. At least then there would be some finality to a lot of this. Some questions answered at least.

Comment by essentially working Tuesday, Nov 10, 20 @ 6:58 am
While the Pfizer vaccine shows real promise, I think many people will somehow idiotically equate this with “it’s over”, and toss their masks, making the upward climb a vertical one.

Comment by Sayitaintso Tuesday, Nov 10, 20 @ 7:20 am
The fact that it was a Rule 23 order does not preclude the Supreme Court from taking the case, which I’m sure they will do. As far as playing politics, is the attorney suggesting that the three appellate justices, who were all elected as Republicans, are just more of Madigan’s favorite judges. Perhaps if he had a better case and argued it better the results might have been different, although unlikely. The process has finally reached the stage where the Supreme Court can get invovled.

Comment by West Side the Best Side Tuesday, Nov 10, 20 @ 7:24 am
I may be wrong but I think the Supremes were avoiding ruling on this stuff before because of Kilbride’s race. They are politicians too.

Comment by hisgirlfriday Tuesday, Nov 10, 20 @ 7:37 am
Burkett does have a history with Madigan. Lisa Madigan he was all ready to become AG when he thought Lisa was going to run for another office but when she announced she was running for re election he quickly backed out So maybe he think the Speaker will come after him /S

Comment by DuPage Saint Tuesday, Nov 10, 20 @ 7:49 am
“but I think the Supremes were avoiding ruling”
Doesn’t somebody actually have to bring the case to them to rule?

Comment by Skeptic Tuesday, Nov 10, 20 @ 7:53 am
The cynic in me says they were waiting until after the Kilbride election.

Comment by ddp76 Tuesday, Nov 10, 20 @ 8:26 am
Skeptic - Yes, you are right. If a case never gets beyond the trial court level,that is it is an appealable case, as in Clay County, the Appellate Court can’t just reach in and grab it. Similarly, if a case doesn’t get beyond the appellate level (with the exception of certain cases that can go directly to the Supreme Court, but that’s not an issue with any of these cases as far as I am aware) the Supreme Court can’t just swoop in. The SC is not avoiding anything, there is no “case or controversy” properly before them to rule on. I mean, no one wants an activist court now, do we. (OK, that part may be snark.)

Comment by West Side the Best Side Tuesday, Nov 10, 20 @ 8:28 am
West Side, of course the supremes can take a rule 23. My point is that it is ludicrous for the appellate court to make it a rule 23. It’s an important ruling, and making it a rule 23 is irresponsible.

Will the Supreme Court take it? Maybe. Probably. But I don’t think they avoided it to help Kilbride. After all, it took this long just to get a case to the appellate court.

Comment by Is it 2021 yet Tuesday, Nov 10, 20 @ 8:40 am
What’s the backstory on the attorney, R. Gregory Earl, III? Because his comments about the appellate court are very atypical for a regular lawyer and sound more like someone running for office.

Comment by Rasselas Tuesday, Nov 10, 20 @ 8:44 am
I suspected it was because they would be forced to rule against the Governor. Waiting on elections to be over would make sense, since they probably won’t rule against JB.

Comment by essentially working Tuesday, Nov 10, 20 @ 8:45 am
Oops. Just googled him. He got his law degree from Liberty University (Falwell’s place). Explains a lot.

Comment by Rasselas Tuesday, Nov 10, 20 @ 8:47 am
2021 - Re: Rule 23 cases, you know it and I know it, but some people here think the SC can just take a case because it’s in the headlines, so I just wanted to point out Rule 23 doesn’t keep them from ruling on a case that looks like it will finally properly be before them? Why a Rule 23 order and not an opinion? Good question.

Comment by West Side the Best Side Tuesday, Nov 10, 20 @ 8:51 am
I wouldn’t be surprised if this winds up in federal court. Restaurants are involved in interstate commerce. If Joe Biden supporters can gather in the streets and not social distance who could oppose people meeting in a restaurant unless you believe that only registered Republicans can pass on covid-19.

Comment by JB' s Tailor Tuesday, Nov 10, 20 @ 9:26 am
=== I wouldn’t be surprised if this winds up in federal court. Restaurants are involved in interstate commerce.===

It’s about the powers of the governor.

=== If Joe Biden supporters can gather in the streets and not social distance===

(Sigh)

“If Trump supporters can gather in the streets and not social distance…”

“If Notre Dame students can rush the field and not social distance…”

It’s an issue to the governor, in *this* state

Comment by Oswego Willy Tuesday, Nov 10, 20 @ 9:29 am
=== If Joe Biden supporters can gather in the streets and not social distance===

That would be the key phrase, in the streets. To my knowledge, restaurants are only being banned from outdoor service after 11:00pm.

Comment by cermak_rd Tuesday, Nov 10, 20 @ 9:31 am
Are the commentators on this web site absolutely sure that Justice Alito and Amy Coney Barrett have the same view of 14th amendment that you do ?

Comment by JB' s Tailor Tuesday, Nov 10, 20 @ 9:34 am
=== Are the commentators on this web site…===

… more understanding than me when it comes to what is actually at play?

It seems so.

Comment by Oswego Willy Tuesday, Nov 10, 20 @ 9:35 am
=== R. Gregory Earl, III === Probably high on Nowlan’s list to replace Kilbride. Just sayin.

Comment by PublicServant Tuesday, Nov 10, 20 @ 9:42 am
==- JB’ s Tailor - Tuesday, Nov 10, 20 @ 9:34 am:==

You probably should understand the difference between the Illinois Supreme Court and U.S. Supreme Court. Let’s start there.

Comment by Precinct Captain Tuesday, Nov 10, 20 @ 9:47 am
OW @ 9:29 am. +1.

Comment by Norseman Tuesday, Nov 10, 20 @ 9:49 am
-you should-

You should probably understand how easy it is to get into federal court via the 14th Amendment especially when you’re dealing with interstate commerce.

Comment by JB' s Tailor Tuesday, Nov 10, 20 @ 9:51 am
=== You should probably understand…===

… how ridiculous you are sounding, as in these past 8+ months, in 50 states… not one case is as you describe.

So there’s that.

Comment by Oswego Willy Tuesday, Nov 10, 20 @ 9:53 am
-ridiculous-

It’s a brand new day with a different US Supreme Court . Keep the faith Capitol Fax commentators. You sure there ain’t five votes now that RBG is gone?

Comment by JB' s Tailor Tuesday, Nov 10, 20 @ 9:57 am
A dine-in experience at a restaurant is not interstate commerce. The Governor’s EO does not affect any restaurant’s ability to ship an order to another state, an event that would qualify as interstate commerce.

Comment by cover Tuesday, Nov 10, 20 @ 9:58 am
I stand corrected…

=== However, on September 14, 2020, U.S. District Judge William Stickman IV of the Western District of Pennsylvania ruled that certain restrictions imposed by Pennsylvania Governor Tom Wolf and his administration were unconstitutional. Specifically, Judge Stickman declared that the congregate gathering limitations imposed by Governor Wolf in an Executive Order violated the First Amendment’s right to free assembly. He further found violations of the Fourteenth Amendment’s Due Process and Equal Protection clauses in the now lifted stay-at-home and business closure components of certain Executive Orders.===

This is probably why going to Federal court isn’t viable in an overall

The surge in this fall and winter will be looked upon differently?

Comment by Oswego Willy Tuesday, Nov 10, 20 @ 10:01 am
Ref the Rule 23 decision: The State can motion the Court to publish the ruling, making in binding precedent in the 2nd Appellate District. See Rule 23(f) Motion to Publish.

Comment by thisjustinagain Tuesday, Nov 10, 20 @ 10:03 am
@JB’ s Tailor === I’ll be your Huckleberry.

What aspect of the 14th Amendment do you think applies to this case about emergency powers of the states?

Also, why do you think Alito and Coney-Barrett are crucial to this case about emergency powers?

Comment by H-W Tuesday, Nov 10, 20 @ 10:03 am
-What aspects-

Just read the 81 words in Section 1 of the Fourteenth Amendment. Also check out the 1964 Civil Rights Act. They’ve got a really good case here.

Comment by JB' s Tailor Tuesday, Nov 10, 20 @ 10:08 am
=== They’ve got a really good case here.===

… and yet they’re in state court, as it’s a state issue to the governor’s powers.

Comment by Oswego Willy Tuesday, Nov 10, 20 @ 10:09 am
The public’s and court’s opinions may be quite different after we move from uptick to surge…to slaughter.

The bell curve that grades lawyers is ten stories high…obviously.

Comment by Dotnonymous Tuesday, Nov 10, 20 @ 10:11 am
-and yet-

I wouldn’t have complete confidence that this won’t wind up in federal court.

Comment by JB' s Tailor Tuesday, Nov 10, 20 @ 10:17 am
=== I wouldn’t have complete confidence===

This dorm room “what if” has been fun.

When they file it, they file it.

DeVore and Co are grifters. It’s never been about rights for them, but finding marks to pay them to lose graciously… think Washington Generals basketball.

Comment by Oswego Willy Tuesday, Nov 10, 20 @ 10:20 am
@JB’s Tailor- Wishing in one hand and reality in another. Which hand is heavier.

We are not in the same Federal Appeals court circuit so your western pennsylvania case is not a precedent here in the 7th circuit. For starters. State and Federal courts in Illinois have largely supported Pritzker who operates under a completely different set of rules than the Pennsylvania Governor. The Illinois executive is one of the most powerful in the nation based on powers granted. In addition, when the legislature was asked to weigh in, they took a pass. The courts took note.

You are free to think what you want. Facts notwithstanding.

Comment by JS Mill Tuesday, Nov 10, 20 @ 10:21 am
-JS Mill-

You don’t sound very confident . I wouldn’t either knowing the way Clarence Thomas feels about the privileges and immunities immunity’s clause.

Comment by JB' s Tailor Tuesday, Nov 10, 20 @ 10:26 am
There’s no federal case even filed.

Classes start soon, wear your mask on the Quad.

To the post,

If the ILSC finally weighs in, will that weighing in include a left handed reminder of the legislative inaction and silence?

Comment by Oswego Willy Tuesday, Nov 10, 20 @ 10:28 am
The mandatory vaccination case, Jacobsen v. Massachusetts, was as I recall based on a 14th Amendment claim. It’s arguably what Justice Barrett calls a super-precedent at this point. (And coincidentally Barrett was on the 7th Circuit panel for Illinois GOP v. Pritzker turning down that appeal on free exercise grounds with dicta noting Jacobsen.) So let them file whatever, wherever. I for one welcome some judicial clarity.

Comment by DirtLawyer Tuesday, Nov 10, 20 @ 10:41 am
=You don’t sound very confident .=

LOL, if that makes you feel better.

People who are fanatics are often covering up a serious lack of confidence and doubt.

All I did was site facts with regard to how are federal court system operates. You are the one that seems to have a needs to reassure yourself with anecdotes how different judges “feel” even when some of them have yet to issue an opinion and this issue has yet to even approach the federal level.

I hope that clears up your projections of your “feelings” onto others.

Comment by JS Mill Tuesday, Nov 10, 20 @ 10:55 am
If I knew of a restaurant that I went to was deliberately putting customers in harms way, I’d stop going there.

FTR, I have made it a point to do carryout/delivery weekly from locally owned neighborhood restaurants since this started. I would probably be spending that money on eating out at least once a week if that were possible.

Comment by Cheryl44 Tuesday, Nov 10, 20 @ 11:01 am
==for the ability of a local restaurant to continue to pursue its calling, safely==

Is there anything in your ‘calling’ that leads to you taking responsibility if you kill someone? or is that your insurer’s problem?

Comment by Jocko Tuesday, Nov 10, 20 @ 11:12 am
Rasselas is spot on.

There is no way that a veteran appellate lawyer would speak that way. Even when we are absolutely outraged by a decision, we know that we may be before that panel again so will not speak pubblicly anything other than possibly “we are disappointed in the decision and we are considering our options.”

That being said, as a lawyer who tends to spend election days working for Democrats, I would like to see the S.Ct. look at this one and, if the Court rules for the Governor, I think the House and Senate need to take up revising the power. The Governor’s use, even if correct from a medical perspective, was not what anyone would have considered when the bill was passed.

Comment by Crash Tuesday, Nov 10, 20 @ 11:23 am
“will that weighing in include a left handed reminder of the legislative inaction and silence?” I sure hope so….

Comment by essentially working Tuesday, Nov 10, 20 @ 11:23 am
Anonymous at 11:43 was H-W (sorry)

Comment by H-W Tuesday, Nov 10, 20 @ 11:50 am
“A dine-in experience at a restaurant is not interstate commerce.”

You might want to read … https://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel,_Inc._v._United_States

Comment by Anyone Remember Tuesday, Nov 10, 20 @ 12:07 pm
Any attempt to reign in the Governor’s powers flies in the face that disasters can be very different in their scope, effects, and duration. Attempting to do so is simply folly. Emergencies don’t follow the law, just like Covid doesn’t. The courts have generally upheld the existing law and EO’s, and the Legislature saw ZERO need to amend the law. Done. Move on to response and recovery, which includes the individual protective measures of masks, social distance and handwashing. Too bad the “freedom to spread disease and kill people” crowd will NEVER get it.

Comment by thisjustinagagin Tuesday, Nov 10, 20 @ 12:38 pm
Anyone Remember:

“Hotels and motels are included as types of public accommodation in the Act, and so are restaurants that serve food substantially to those who participate in interstate travel.”

FoxFire is not any of these things.

Comment by Lefty Lefty Tuesday, Nov 10, 20 @ 1:02 pm
From that Wikipedia page:

“Hotels and motels are included as types of public accommodation in the Act, and so are restaurants that serve food substantially to those who participate in interstate travel.”

I’m not sure what argument can be made by any of the restaurants that would qualify for federal involvement - the Governor’s EO applies equally to all restaurants, not just those primarily serving interstate travelers. The cited case pertained to racial discrimination, completely unrelated to public health.

Comment by cover Tuesday, Nov 10, 20 @ 1:06 pm