State asks for Appellate Court to reverse decision by judge regarding indoor dining ban

GENEVA – Gov. JB Pritzker and the Illinois Department of Public Health is asking the Illinois Second District Appellate Court to reverse a decision by Kane County Judge Kevin Busch granting a temporary restraining order to prevent the enforcement of an indoor dining ban at FoxFire restaurant in Geneva.

In their appeal, Pritzker and the Illinois Department of Public Health ask for the order to be vacated and for the temporary restraining order to be dissolved. The appeal was filed on Tuesday, the day after Busch granted the temporary restraining order.

The owners of FoxFire restaurant had asked the court to issue the restraining order in regard to the indoor dining ban, which went into effect in Kane and DuPage counties Oct. 23 because of a rising number of COVID-19 infections across the region.

They also filed a lawsuit against Pritzker, the Illinois Department of Public Health and the Kane County Health Department. The suit stated that Pritzker has exceeded the emergency powers that were given to him.

The suit also contended the Illinois Department of Public Health and the Kane County Health Department acted beyond the authority granted to them.

"There is no question that a person's ability to pursue their calling, to earn a living and to run a business is a protectable right under both the federal and state constitution and is inherent in everyone's natural right to liberty," Busch said in issuing his opinion. "The state's ability to deprive people of their life, liberty and the pursuit of happiness is tempered by due process."

Busch agreed with the suit's contention that Pritzker exceeded the 30-day emergency powers granted to him. In March, Pritzker issued a disaster proclamation because of COVID-19.

"The state has argued that there's nothing in the Emergency Management Act that suggests that the governor couldn't issue then successive proclamations," Busch said. "And while that is certainly true, there's nothing in the act that suggests he can."

In addition, Busch said the Illinois Department of Public Health and subsequently the Kane County Health Department exceeded their powers. He said a business that is being told to shut down has the opportunity "to seek review."

"The burden is on the Department of Public Health, by clear and convincing evidence, to establish that the restrictions they seek to enforce are necessary for this particular business in this particular community," Busch said.

In delivering his ruling, Busch wondered why other businesses such as food stores and big-box stores do not face similar restrictions.

"The crowds at our local food stores are much greater than the crowds that can, and I expect do, populate our local restaurants, including FoxFire," he said. "I note that in our community that every one of the big-box stores is open. And again, the crowds that populate these stores are significantly greater than the crowds that populate our local restaurants, including those like FoxFire. And the court cannot turn a blind eye to these facts. If there was such a compelling public need to shut down businesses for public health, then how did we pick the winners and losers?"

FoxFire previously had announced that it plans to keep its dining room open as a way to protest the new rules. K.C. Gulbro, one of the owners of FoxFire restaurant, states in an affidavit that a temporary shutdown of all indoor dining and drinks at FoxFire for more than a few days will lead to an "insurmountable" loss of income, putting the restaurant out of business along with countless others.

Gulbro owns the restaurant with his father, Curtis.