Judge to rule on Pritzker’s latest motion to dismiss dining prohibition
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[September 17, 2021]
By Greg Bishop
(The Center Square) – A judge may soon rule
on if a restaurant's challenge to the governor’s prohibition of indoor
dining last year amid COVID-19 orders should be dismissed.
Last year, Gov. J.B. Pritzker issued a statewide stay-at-home order as
the pandemic hit. After a phased in opening, in the fall he triggered
different restaurant capacity limits for different areas of the state
based on COVID metrics. In Kane County, he prohibited indoor dining for
FoxFire in Geneva sued Pritzker last fall. With many status hearings and
even amended complaints by the restaurant, the latest motion to dismiss
from the governor was heard this week.
Attorneys for FoxFire and Pritzker argued Wednesday in a virtual
Sangamon County Court hearing before Circuit Judge Raylene Grischow
regarding if the motion to dismiss was proper.
Early on, litigants discussed the original counts brought by FoxFire.
Grischow said there are facts throughout that may be considered.
“[FoxFire attorney Kevin Nelson] brings up the quarantine statue, which
I have been waiting for months and months for someone to bring up and no
one has brought it up and finally now that I look at the facts on all
counts, Mr. Nelson does raise that,” Grishow said. “Shutting down a
business is a form of quarantine. … I think that is an issue that is
ripe for argument.”
Pritzker’s attorneys said no specific allegation has been made by
FoxFire and the governor had a reasonable right to limit activity during
“The governor has authority to control occupancy of premises,” Pritzker
attorney Darren Kinkead said during the hearing. He also said the
governor can control the sale of food and commodities.
“It’s very broad powers,” Kinkead said of Pritzker’s orders last fall.
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He argued FoxFire has not proven a fundamental right was violated.
“Foxfire has been arguing that what has occurred here is tantamount to a
full business closure … the indoor dining restaurant can’t do outdoor
dining in the winter time,” Nelson replied, noting FoxFire doesn’t do
carryout or deliver. “People don’t like eating a fine steak on
After the hearing, Nelson said in an interview the governor has
attempted at least four different times to have the case dismissed.
“The Second District says ‘no, there’s a claim here, and here’s what a
trial should look like,’ so the fact that the governor keeps trying to
come back and get this entire case dismissed, not on the merits, but
summarily dismissed is inappropriate, but that's what they’re doing,”
Nelson said they’re getting discovery documents for if there is a trial,
but there’s an impasse on getting substantive information. He told the
judge 99.9% of the documents they’re getting from the governor through
the discovery process are redacted or not pertinent to the case.
Brining finality to the case sooner than later is important, he said.
“Precedent is a slippery slope,” Nelson said after the hearing. “The
governor shutdown indoor dining at restaurants for more than three
months in Kane County and that has not been declared improper and then
from there, because he thinks he can do that, then he launches into
other various things that go further such as mask mandates in schools to
who knows about vaccines.”
A status hearing is set for next month. The judge could rule on the
governor’s latest motion to dismiss before then.