An Illinois Appellate Court in Fox Fire Tavern, LLC v. Pritzker, 2020 BL 441165 (2d) has upheld Illinois Governor Jay Pritzker’s Executive Order imposing restrictions on dining establishments as a result of the Covid-19 pandemic. At issue in the case was whether the Governor had the authority under Illinois’ Emergency Management Act (“Act”) to issue more than one disaster proclamation.

The plaintiff, restaurant, brought a declaratory action and motion for a TRO challenging the recent Executive Order as an ultra vires act. The trial court granted the motion which the Governor immediately appealed. The appellate court reversed and remanded.

On March 9, 2020 the Governor issued a proclamation under section 7 of the Act declaring that the COVID-19 pandemic constituted a disaster within the State of Illinois. As the pandemic persisted, the Governor entered subsequent disaster proclamations, including the most recent one issued on October 16, 2020. The restaurant argued the Governor lacked the authority under the Act to do so. The trial court agreed concluding that the restaurant showed that it was likely to succeed on the merits.

The appellate court ruled that “the Act plainly authorizes the Governor to issue successive disaster proclamations stemming from one ongoing disaster” so the trial court abused its discretion in finding that the restaurant established a likelihood of success on the merits. The trial court declined the invitation to examine the policies behind the Executive Order. It viewed its task only with determining whether the Governor had legal authority to proclaim successive disasters to address the pandemic.

Pursuant to section 7 of the Act, “[i]n the event of a disaster *** the Governor may, by proclamation declare that a disaster exists.” Once such a declaration has been made, the Governor may exercise his emergency powers “for a period not to exceed 30 days” following the proclamation. Nothing in the language of the Act precludes the Governor from issuing multiple disaster proclamations—each with its own 30-day grant of emergency powers—arising from one ongoing disaster.

This conclusion was supported by the fact that another section of the Act contains limitations on local officials’ capabilities to proclaim local disasters. Thus, where the legislature intended there to be a check on an official’s powers to make consecutive disaster declarations, it explicitly provided as much. The trial court’s interpretation of the Act also improperly read limitations into the Act that were neither provided nor intended by the legislature.

In addition, the appellate court said that its conclusion was bolstered by other legislation that explicitly refers to the Governor’s authority to issue successive disaster proclamations. These statutes, and amendments to existing statutes, explicitly contemplate the Governor’s authority to issue successive disaster proclamations.

Because the trial court misconstrued the Act, it abused its discretion when it held that the Governor was without power to make successive disaster proclamations in response to the COVID-19 pandemic.


  • James Noonan

    Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.

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