FoxFire To Take Indoor Dining Fight To Illinois Supreme Court

Jason Addy
Updated ·3 min read

GENEVA, IL — Days after losing a restraining order that stopped officials from enforcing an indoor dining ban, FoxFire in Geneva is set to take its legal fight over increased coronavirus restrictions to the Illinois Supreme Court.

The Illinois 2nd District Appellate Court on Friday reversed a Kane County judge’s decision to grant FoxFire a temporary restraining order against new restrictions, which were imposed Oct. 23 after Region 8's positivity rate topped 8 percent. The region's positivity rate was 13.7 percent Friday, the most recent day for which testing data is avaiable.

Positivity Rate Explodes In Region 8 After Weeks Of Restrictions

Greg Earl, who is representing FoxFire with his Geneva-based law firm Myers, Earl and Nelson, said Monday that the restaurant will soon file an appeal to have its case heard by the state’s highest court.

Kane County Judge Kevin Busch granted the restraining order Oct. 26 after saying he believed Gov. J.B. Pritzker has no authority to issue consecutive 30-day disaster proclamations under the Illinois Emergency Management Agency Act, which underpins the state's coronavirus response and mitigation plans.

Coronavirus Cases Up Nearly 50% In Geneva D304 Over Past 2 Weeks

Busch said he found nothing in the Illinois EMA Act that explicitly grants a governor the authority to issue consecutive proclamations, but the 2nd District Appellate Court wrote in its decision that Busch "improperly considered" the statute "in a vacuum."

FoxFire would be unable to show Pritzker exceeded his authority because the law "plainly authorizes the governor to issue successive disaster proclamations stemming from one, ongoing disaster," Justice Joseph Birkett wrote in the appellate court's order.

Illinois Coronavirus Update Nov. 10 — Don't miss updates in Geneva as they are announced — Sign up for Patch news alerts and newsletters.

The appellate court sent the case back to Kane County, with Justice Robert McLaren telling FoxFire it must show how the coronavirus pandemic has impacted the restaurant industry compared to the public.

FoxFire’s motions "address the harm to them but fail to establish just how severely the disease is or is not affecting the general public," McLaren wrote.

"Simply put, (FoxFire) has neither pled nor presented evidence that the cure is worse than the disease," the appellate court’s order states.

Kane Co. Public Health Director To Retire Amid Pandemic

In a statement Monday, Earl said FoxFire’s owners K.C. and Curtis Gulbro were “disappointed” with the appellate court’s ruling and said the justices who overturned the restraining order “decided to play politics rather than applying the statute” at the heart of the restaurant’s legal filings.

“This case is about separation of powers, which the Appellate Court has missed completely,” Earl said. “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,” Earl said.

IL COVID-19 Hot Spots: Schools, Restaurants Top New List

The Illinois Department of Public Health released new coronavirus data last week that shows bars and restaurants are among the top places where people could have contracted the disease.

The state's coronavirus and data is compiled from information provided by contact tracers investigating COVID-19 cases.

Exposure data shows bars and restaurants are among the top potential exposure locations, followed by schools, workplaces, hospitals and clinics.

Local health departments determine outbreaks by identifying clusters from individual case investigations, based on locations people reported they traveled to in the 14 days prior to testing positive.

REGIONAL NEWS:

This article originally appeared on the Geneva Patch