Appellate Court overturns Kane County Judge on pandemic issues

The Honorable Judge Kevin T. Busch granted a local restaurant a temporary restraining order preventing the enforcement of pandemic mitigation measures implemented by Gov. Pritzker and the Illinois Department of Public Health in October 2020. The appellate court overturned that order yesterday.

I thought Judge Busch’s ruling was troubling back in October 2020.

Given the gravity of the issues, I felt it was a mistake for Judge Busch to not require the parties to submit their positions in writing. The order that granted the temporary restraining order was not legally persuasive, and given the life and death implications it could have on our community, it was ill-conceived. A more thorough and robust culling of the facts and law followed by a more detailed ruling were needed.

We finally got that, albeit months later, from the appellate court.

The local restaurant’s lawsuit seeks to hold the Governor’s October 16, 2020 disaster declaration and Executive Order 61 (EO61) both void.

The appellate court’s decision was premised on whether the local restaurant was likely to succeed on the merits of its lawsuit.

The appellate court said:

Because the [Illinois Emergency Management Agency Act] plainly authorizes the Governor to issue successive disaster proclamations stemming from one ongoing disaster, the trial court abused its discretion in finding that FoxFire established a likelihood of success on the merits.

This sentence puts to bed – again – the contention that the Governor can only proclaim that a disaster exists once and then use emergency powers for one 30 day period only. The appellate court said:

…nothing in this language precludes the Governor from issuing multiple disaster proclamations – each with its own 30-day grant of emergency powers – arising from one ongoing disaster.

The appellate court analyzed not only the Illinois Emergency Management Agency Act but several other, subsequently enacted laws to analyze the meaning and intent of the legislature in granting the Governor successive disaster proclamations.

Had the trial court required this matter be briefed (legal arguments – likely very similar to that which was presented at the appellate level), these issues would have been evaluated in a timely fashion and perhaps the trial court would have avoided an appellate ruling reversing its decision.

Also, because of the temporary restraining order the restaurant was allowed to contravene the pandemic mitigation requirements. Getting out of this pandemic intact requires that each of us acts with a view to what is best for us all.

The hardship created on local businesses is real. They need help just like millions of others need help with everything from rent to groceries to healthcare. The onus of mitigating these hardships should fall elsewhere than on the shoulders of the most vulnerable in our communities.

We as a nation know how to do this. During World War II we put aside our individual needs and wants for the collective good of our nation in many different ways. It was a matter of national security. Fighting this pandemic is a matter of national security as well – in fact even if not as a matter of legal declaration. Doing so did not eviscerate our individual liberties back then, and doing so now will not endanger our liberties going forward either.

It’s a pandemic with 400,000 Americans dead.

Click here to read the appellate court decision.

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