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Judges deny requests in McHenry, DuPage for restaurants to remain open for indoor service despite state order following COVID-19 spike

Judges in McHenry and DuPage counties on Friday upheld Gov. J.B. Pritzker’s authority to stop indoor service at restaurants and bars amid spikes during the COVID-19 pandemic.

McHenry Judge Thomas Meyer ruled against 37 restaurants and bars in the county that had filed suit seeking a temporary restraining order to prevent imposition of Pritzker’s order.

In DuPage County, Judge Bonnie Wheaton denied a similar request made by a Lombard restaurant owner.

Meyer ruled that because the governor predicated his order on the rate of positive COVID-19 tests in the county exceeding 8% for three days straight, the order was new and different from the prior executive orders Pritzker issued going back to March.

The judge previously said he was concerned that the governor was exceeding the 30-day limit on such orders as stated in Illinois law, but said the new basis for the order rendered that concern moot. Pritzker issued an initial 30-day order in March that shut down many businesses statewide.

“It is a difficult and unpleasant order to enter,” Meyer said, “but I do believe there was a basis for the new executive order.”

The judge also said that he was troubled by the General Assembly’s lack of action on the matter.

The McHenry and DuPage lawsuits were among other recent legal developments involving the governor’s executive orders aimed at limiting the pandemic. A similar suit in Kane County this week led to a court order allowing FoxFire restaurant in Geneva to keep operating despite the order, which the state is appealing. In addition, numerous restaurants statewide are simply defying the shutdown.

Thomas Verticchio, assistant chief deputy attorney general, argued in McHenry County that circuit judges have upheld the governors power to issue successive emergency orders in Cook, DuPage, DeKalb and Madison counties and in federal court.

Govs. Patrick Quinn, Bruce Rauner and Pritzker issued multiple successive emergency orders regarding the H1N1 and flooding crises without objection from lawmakers, he noted.

The General Assembly also passed three acts in May that referred to the governor making multiple successive emergency orders.

The previous decisions are not binding on other judges, but an appellate court ruling, which does set precedent for the state, noted that if lawmakers do not object to the application of a law, judges must give that great weight in deciding whether to allow similar use of the law.

In DuPage County, Steven Brauer, owner of Brauer House in Lombard, also filed a the lawsuit earlier this week, arguing that Pritzker doesn’t have the authority to continue declaring emergency disasters beyond the initial executive order in March.

Brauer said he’s concerned about the fate of his independent business and the more than 30 workers employed there. He said Brauer House had tried offering curbside and carryout services earlier this year during the last state shutdown, but these options didn’t prove profitable.

“I feel bad for anyone in the service industry at this point, that relies on indoor service,” he said.

Brauer added that he plans to comply with Pritzker’s executive order as the lawsuit continues.

“We don’t want to put anyone in harm’s way, as far as COVID-19 goes," he said. "But we’d also like to operate legally.”

In the decision to dismiss, Judge Wheaton noted that “the harm to Plaintiff’s business is outweighed by the immense risk to the public health posed by enjoining the Governor’s statutory and constitutional powers to combat COVID-19.”

Wheaton also cited a Centers for Disease Control and Prevention study in September that closely linked dining at restaurants and bars to the spread of the virus; the CDC found that adults who tested positive for COVID-19 were twice as likely to report dining at a restaurant than those who tested negative. Indoor dining was found to be particularly risky, she said, because diners can’t wear masks while eating and the virus can linger indoors.

“The statewide effectiveness of the COVID-19 response is dependent on every person in Illinois sacrificing their individual pursuits for the greater good,” Wheaton said in court documents. “To date, Illinoisans have met this challenge with resolve and the number of deaths is far fewer than would have otherwise occurred. Judicial exemptions to these collective efforts inject uncertainty into the need to comply with the Governor’s directives. And such a disruption can be deadly.”

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