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ICCA v State of Illinois, et al, Litigation Update 11-24-2020

The ICCA’s lawsuit in the Circuit Court of Cook County Illinois, ICCA v. The State of Illinois, Governor J.B. Pritzker, the Illinois Department of Agriculture (IDoA) and its director, Jerry Costello II, Case No. 2020 CH 06247 is continuing to move forward. On November 24, 2020 at 2:30 p.m. CT, Judge Allen P. Walker heard the ICCA’s request for an expedited Writ of Mandamus (order to compel a lawful obligation) to require the Defendants to issue Craft Grower, Infuser and Transporting licenses without further delay as required by Illinois statute (410 ILCS 705/30-5(a) Craft Grower, 35-5(a) Infuser and 40-5(a) Transporting). Attorney David S. Ruskin appeared on behalf of the Plaintiff, ICCA and its membership. All Defendants were represented at the hearing by Assistant Illinois Attorney General Katherine Snitzer.

The ICCA’s argument focused on the specific executive order issued by the Governor on June 29 indefinitely suspending the statutory license issuance deadline of July 1, 2020, (Executive Order 2020-45) and its effect on license applicants. The ICCA asserted that Governor Pritzker exceeded his authority when he indefinitely suspended the State’s non-discretionary, ministerial, statutory obligation to issue licenses. The ICCA also argued that ongoing harm is occurring to its members because of the delay and will continue until the IDoA issues licenses. Given the evidence the ICCA has uncovered, the IDoA is still functioning and not materially impacted by the current pandemic.

Significantly, just days before this hearing, Fox Fire Tavern, LLC v. Jay Robert Pritzker, et al., 2020 IL App (2d) 200623 was decided by the Illinois Court of Appeals. In the Fox Fire case, the Second District Court of Appeals specifically interpreted the statute at issue in the ICCA case consistently with the ICCA’s interpretation, undercutting one of the State’s main arguments. The ICCA highlighted this case to the Court and urged its application to our case.

The State argued that the Governor was within his authority and discretion to extend the State’s deadline to issue licenses and that he did not have to justify the basis for his attempted statutory change. They argued that the Fox Fire case does not say what the ICCA asserts and that it is not binding authority. The State also argued that issuance of an order requiring completion of their non-discretionary function to issue licenses before deliberation is complete would affect their ability to exercise their administrative duties of full deliberation and review of the applications.

During and after hearing arguments by the parties, Judge Walker asked the attorneys numerous questions including:

1. Whether he has authority to order the State to finish discretionary actions (grading and scoring) to complete its non-discretionary action of issuing licenses;

2. If there are aspects of process which are discretionary, how does the court issue a writ to complete those actions when he only has authority to order compliance with non-discretionary functions;

3. The effect of the Fox Fire case and its application to the Governor’s authority to change the statutory deadlines;

4. The effect damages suffered by ICCA membership should have on his decision, and;

5. In the event the Judge was to issue a writ compelling issuance of licenses, how much time is reasonable for defendants to complete license evaluation. Interestingly, the State’s attorney did not have an answer.

After hearing all arguments, Judge Walker advised the parties that he would take the matter under advisement and issue a written decision “with all due deliberate speed”. If necessary, he would schedule a status hearing on the remaining issues before the Court. Given the nature of the arguments and questioning by the judge, the ICCA and its attorneys remain hopeful their arguments convinced the Court to issue a writ of mandamus compelling the State and Department of Agriculture to comply with their legal obligations and issue scores and licenses without further delay.

Stay tuned for updates in the coming week.

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