Fox Fire Tavern, LLC v. Pritzker

2020 IL App (2d) 200623

161 N.E.3d 1190

443 Ill.Dec. 538

FOX FIRE TAVERN, LLC, d/b/a FoxFire, Plaintiff-Appellee,

v.Jay Robert PRITZKER, in His Official Capacity as Governor of the State of Illinois, The Department of Public Health, and The Kane County Health Department, Defendants-Appellants.

Nos. 2-20-0623 & 2-20-0627 cons.

Appellate Court of Illinois, Second District.

Rule 23 Filed November 6, 2020

Motion to Publish Granted November 13, 2020

Opinion filed November 13, 2020

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 On October 21, 2020, the governor, Jay Robert Pritzker, issued Executive Order 2020-61 (EO61), which imposed certain restrictions on dining establishments in four counties, including Kane County. On October 23, 2020, plaintiff, Fox Fire Tavern, LLC (FoxFire), filed a complaint seeking a declaratory judgment regarding the lawfulness of EO61. On October 26, 2020, FoxFire filed a motion for a temporary restraining order (TRO), seeking to block the enforcement of EO61 against it. That day, the circuit court of Kane County granted the motion and entered a TRO against defendants, Governor Pritzker, the Illinois Department of Public Health (Department), and the Kane County Health Department. Defendants appeal, arguing that the trial court abused its discretion in granting the TRO. We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 The controversy in this case involves the State's response to the COVID-19 pandemic, which continues to beset Illinois as well as the rest of the world. On March 9, 2020, the Governor issued a proclamation under section 7 of the Illinois Emergency Management Agency Act (Act) ( 20 ILCS 3305/7 (West 2018) ), declaring that the COVID-19 pandemic constituted a disaster within the State of Illinois. According to this proclamation, at the time of its issuance, the State had 11 confirmed cases of COVID-19, "an additional 260 persons under investigation," and evidence of "community transmission in Illinois." Proclamation No. 2020-38, 44 Ill. Reg. 4744 (Mar. 9, 2020), https://www2.illinois.gov/sites/gov/Documents/CoronavirusDisasterProc-3-12-2020.pdf [https://perma.cc/HF89-Y8HD].

¶ 4 As the pandemic persisted, the Governor entered subsequent disaster proclamations, on April 1, April 30, May 29, June 26, July 24, August 21, September 18, and October 16, 2020. In his most recent proclamation, the Governor noted that, as of October 16, 2020, "there have been over 335,000 confirmed cases of COVID-19 in all 102 Illinois counties" and that "more than 9150 residents of Illinois have died due to COVID-19," although the total cases of COVID-19 "may be up to 13 times higher than currently reported." Proclamation No. 2020-63, 44 Ill. Reg. 17514 (Oct. 16, 2020), https://www2.illinois.gov/sites/gov/Documents/CoronavirusDisasterProc-10-16-2020.pdf [https://perma.cc/NMD2-6GMJ]. The Governor also listed 34 counties in this proclamation, including Kane County, that were "identified as exhibiting warning signs of increased COVID-19 risk." Id.

¶ 5 On October 21, 2020, the Governor issued EO61, which cited the October 16, 2020, disaster proclamation. Exec. Order No. 2020-61, 44 Ill. Reg. 17833 (Oct. 21, 2020), https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-61.aspx [https://perma.cc/8KYY-LNJW]. In EO61, the Governor described two scenarios that would lead the State to institute additional mitigating health measures for any of the State's regions. Id. EO61 went on to describe these two scenarios:

"[F]irst, a sustained increase in the 7-day rolling average (7 out of 10 days) in the positivity rate [of COVID-19 testing results], coupled with either (a) a sustained 7-day increase in hospital admissions for a COVID-like illness, or (b) a reduction in hospital capacity threatening surge capabilities (ICE capacity or medical/surgical beds under 20%); or second, three consecutive days averaging greater than or equal to an 8% positivity rate (7 day rolling average )." (Emphasis added.) Id.

Because the three-day rolling positivity rate of COVID-19 in Kane County triggered the second scenario, EO61 mandated additional restrictions for the county. Id.

¶ 6 These restrictions pertained to restaurants and bars, meetings and social events, gaming and casinos, and all workplaces. Id. Regarding the measures for restaurants and bars, the order imposed five temporary measures:

"1. All restaurants and bars in the region must close at 11:00 p.m., and must remain closed until 6:00 a.m. the following day.

2. All restaurants and bars in the region must suspend indoor on-premises consumption.

3. All customers eating or drinking on premises must be seated at outdoor tables spaced at least six feet apart. Multiple parties may not be seated at a single table.

4. Customers who are not yet seated at a table must wait off premises and, when waiting, must not congregate in groups larger than the party with whom they are dining. Standing, congregating, or dancing on premises is not permitted.

5. Each party must have a reservation, even if made on-site, so that the restaurant or bar has contact information to reach every party for contact tracing if needed." Id.

¶ 7 On October 23, 2020, FoxFire, a restaurant located in Geneva, filed its verified complaint for declaratory judgment and injunctive relief, seeking a declaration that the Governor's October 16, 2020, disaster proclamation and EO61 were both void. The complaint named the Governor, the Department, and the Kane County Health Department as defendants. On October 26, 2020, FoxFire filed an emergency petition for a TRO and a preliminary injunction pursuant to section 11-101 of the Code of Civil Procedure ( 735 ILCS 5/11-101 (West 2018) ), seeking to preclude enforcement of EO61 against it. Hours later, the Attorney General of the State of Illinois (State) filed its appearance on behalf of the Governor and the Department as well as a notice of orders and decisions from other courts upholding the legality of Illinois's COVID-19 response. The Kane County Health Department filed a response to the petition, arguing that FoxFire's claims were not ripe and that the restaurant had not satisfied the requirements for temporary injunctive relief.

¶ 8 At the TRO hearing, all the parties appeared remotely. After concluding that the Governor lacked statutory authority to address the COVID-19 pandemic in consecutive disaster proclamations, the trial court found that FoxFire established a likelihood of success on the merits. Consequently, the court granted FoxFire's request for a TRO and enjoined defendants from enforcing EO61 against it.¹ Defendants timely appealed. The Illinois Restaurant Association and the Restaurant Law Center filed a brief as amici curiae in support of FoxFire's position. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 9 II. ANALYSIS

¶ 10 On appeal, defendants argue that the trial court improvidently granted the TRO. Specifically, defendants contend that FoxFire could not demonstrate a likelihood of success on the merits, because the October 16, 2020, disaster proclamation was authorized by statute. Defendants also contend that the trial court abused its discretion in balancing the factors required to support the issuance of a TRO. Because we agree that FoxFire has failed to show a likelihood of success on the merits, we need address only address defendants' first point.

¶ 11 Generally, "[a] trial court's order granting or denying a TRO is reviewed for an abuse of discretion." Bradford v. Wynstone Property Owners' Ass'n , 355 Ill. App. 3d 736, 739, 291 Ill.Dec. 580, 823 N.E.2d 1166 (2005). However, where the propriety of a TRO rests on a purely legal issue, that issue should be reviewed de novo . Mohanty v. St. John Heart Clinic, S.C. , 225 Ill. 2d 52, 63, 310 Ill.Dec. 274, 866 N.E.2d 85 (2006). Because statutory interpretation involves questions of law, we review the trial court's interpretation of any applicable statutes de novo , while reviewing its grant of the TRO under the abuse-of-discretion standard. Midstate Siding & Window Co. v. Rogers , 204 Ill. 2d 314, 319, 273 Ill.Dec. 816, 789 N.E.2d 1248 (2003) (holding that the interpretation of a statute presents a question of law); Mohanty , 225 Ill. 2d at 63, 310 Ill.Dec. 274, 866 N.E.2d 85 ; Bradford , 355 Ill. App. 3d at 739, 291 Ill.Dec. 580, 823 N.E.2d 1166.

¶ 12 A. Preliminary Matters

¶ 13 Before we analyze the trial court's decision to issue the TRO, we first address several ancillary matters that FoxFire brings to our attention. First, FoxFire requests that the State's memorandum be stricken because it exceeds the length limit specified by Illinois Supreme Court Rule 307(d)(2) (eff. Nov. 1, 2017). Furthermore, FoxFire takes issue with certain facts that the State has included in its memorandum, which FoxFire contends are unsupported by the record. We examine each of these matters in turn.

¶ 14 1. Illinois Supreme Court Rule 307(d)(2)

¶ 15 FoxFire first requests that we strike the State's memorandum because it exceeds the length limit specified by Rule 307(d)(2). The State, acknowledging its error, has requested permission instanter to file its oversized memorandum. While we agree that the State violated Rule 307(d)(2), we nonetheless decline to strike its memorandum, and we grant its request for leave to file the oversized memorandum instanter .

¶ 16 Pursuant to Rule 307(d)(2), a "petitioner may file a memorandum supporting the petition which shall not exceed 15 pages or, alternatively, 4,500 words." Id. Illinois Supreme Court rules must be obeyed and enforced as written; they are not merely suggestions or aspirational. Roth v. Illinois Farmers Insurance Co. , 202 Ill. 2d 490, 494, 270 Ill.Dec. 18, 782 N.E.2d 212 (2002). While we are authorized to strike a brief or memorandum that violates these rules, this is a harsh sanction, appropriate only sanction where a party's rule violations preclude review. In re Detention of Powell , 217 Ill. 2d 123, 132, 298 Ill.Dec. 361, 839 N.E.2d 1008 (2005...