McHenry County judge denies temporary restraining order filed by 37 area restaurants, bars over Pritzker’s increased mitigations

A McHenry County judge denied a temporary restraining order Friday filed by 37 local bars and restaurants seeking to remain open despite the governor’s mitigation rules that take effect Saturday.

Attorneys met Friday morning at the McHenry County courthouse in Woodstock, where they argued primarily about Gov. JB Pritzker’s powers, or lack thereof, to enforce consecutive 30-day executive measures.

The ruling means that McHenry County restaurants remain subject to the new mitigation order.

McHenry County Judge Thomas Meyer said he ruled that way because he felt that the new mitigation orders were based on “new and discrete facts” and were not simply an extension of Pritzker’s original executive order.

“It was a difficult and unpleasant order to enter,” Meyer said. “But I do believe that there is a basis for the new executive order, and that is how we end up where we are.”

Meyer said the executive order cites the three consecutive days of COVID-19 positivity rates exceeding the 8% threshold.

“This order was not based on the mere existence of the pandemic, but rather new facts related to the pandemic,” he said. “As a result, the 30-day issue that we spent much time discussing earlier isn’t as significant as the court originally thought because this is a new finding and not simply an extension of the prior order.”

On Wednesday night, Crystal Lake lawyer John Dickson wrote a 78-page lawsuit on behalf of 37 bar and restaurant owners who said they can’t afford another two-week partial shutdown.

The lawsuit, which claims Pritzker’s emergency powers expired April 11, seeks to make void the governor’s order as it pertains to each of the restaurants joined in the suit.

Dickson also filed a petition for an emergency temporary restraining order that would prevent Pritzker from enforcing the mitigation rules. Pritzker, the McHenry County Department of Health and the Illinois Department of Public Health all are named as defendants.

A similar complaint was successfully filed in Kane County on behalf of FoxFire Restaurant against Pritzker, the IDPH and the Kane County Health Department. According to the lawsuit, Pritzker has exceeded the emergency powers that were given to him.

Pritzker and the IDPH have appealed the Kane County decision.

In court Friday, Illinois Assistant Chief Deputy Attorney General Thomas Verticchio asked for the case to be transferred to Sangamon County, where he said the suit originally should have been filed. Meyer, however, denied that request and noted that moving the case to another county likely would delay the business owners’ request.

Citing similar cases throughout Illinois, including those in DuPage and DeKalb counties, Verticchio asked the judge to consider the potential harm that could result from a refusal to comply with the governor’s order.

“It’s going to lead to illness and likely death,” Verticchio said.

Pritzker announced the mitigation restrictions Wednesday, as the region made up of McHenry and Lake counties entered its third consecutive day above the 8% positivity threshold.

COVID-19 mostly is spread by respiratory droplets when people talk, cough or sneeze, according to the Centers for Disease Control and Prevention. The virus also may spread by hand from a contaminated surface and then to the nose or mouth, causing infection. That’s why restaurants that offer limited drive-thru, takeout and curbside pickup services are believed to present the lowest risk, according to the CDC.

On-site dining with both indoor and outdoor seating where seating capacity has not been reduced and tables have not been spaced at least 6 feet apart, on the other hand, is considered the highest-risk option for food service businesses, according to the CDC.

The businesses joined in the lawsuit, however, said there’s no link between indoor dining and a resurgence of COVID-19.

When Verticchio reminded the judge Friday that restaurants still would remain open for curbside pickup and delivery services, Meyer said that likely wasn’t enough to carry businesses through the winter months.

“It’s freaking cold out,” the judge said, laughing.