For the second time this month, Illinois Gov. JB Pritzker has told a federal judge business owners can’t sue him or the state for illegally taking their property when he ordered many of Illinois’ businesses closed this spring in response to the COVID-19 pandemic.
On July 27, Illinois Attorney General Kwame Raoul, representing Pritzker, filed a motion in federal court to dismiss a class action lawsuit brought by a group of business owners and others who asserted Pritzker had overreached his authority in closing businesses, effectively seizing their property, in violation of their constitutional rights.
“These temporary closures or restrictions that impacted profits are not significant enough to outweigh the State’s compelling need to act to slow the spread of COVID-19,” Raoul and Pritzker wrote in a memorandum accompanying the dismissal motion.
The motion to dismiss comes as Pritzker’s response to a legal action filed in May by a group of plaintiffs from Chicago’s southwest suburbs.
Those plaintiffs, including a Will County Board member and two business owners, asserted the state owed compensation to business owners and others across the state whose bottom lines were harmed by Pritzker’s COVID-19-related shutdown orders this spring.
The complaint asks the court to order the state to pay “just compensation” to the plaintiffs and potentially thousands of others across the state whose businesses were hurt or who have lost jobs as a result of Pritzker’s orders.
Beginning in March, Pritzker declared a statewide disaster following the outbreak in Illinois of the novel coronavirus that causes COVID-19. As part of that disaster declaration, Pritzker issued a host of executive orders, citing emergency powers granted him under state law.
Those orders included the so-called stay-at-home order, under which he placed the state from mid-March to the end of May. That order divided the state’s businesses, social organizations and activities into the categories of “essential” and “non-essential.” The order directed Illinois residents to remain at home, except to participate at need in essential activities. All businesses Pritzker deemed non-essential were ordered closed.
While other lawsuits raised different questions of Pritzker’s authority under the U.S. and Illinois constitutions and Illinois state law, in this case, the plaintiffs specifically asserted the governor’s orders – and particularly those closing or restricting “non-essential” businesses – amounted to a “regulatory taking” of their property rights. They asserted these orders violate the Fifth Amendment of the U.S. Constitution and related private property protections within the Illinois state constitution.
They also accused Pritzker and the state of violating their constitutional due process rights by denying them the opportunity to challenge the closure orders.
The plaintiffs are represented in the action by attorney Alan R. Bruggeman, of Bruggeman Hurst & Associates P.C., of Mokena.
In response, however, Pritzker and Raoul argue the lawsuit should be disallowed.
They challenged the ability of the plaintiffs to even file suit against Pritzker and the state under the U.S. Constitution’s Eleventh Amendment, which they argue forbids such lawsuits against the state for money repayment, and under federal law, which the state attorneys argued should deny them the chance to make the state for alleged past harms.
However, even if the lawsuit should be allowed to move forward, Pritzker and Raoul said the temporary closure of non-essential businesses without compensation is a legitimate power granted to the state in the name of protecting the health and welfare of the people of the state.
In this case, Pritzker and Raoul argued, the power granted to the state – the so-called “police power” – gives the state the authority to order businesses closed and even potentially driven out of business for good, in the name of fighting COVID-19.
Pritzker and Raoul cited cases in which courts have held governments have the power to demolish buildings without warning or compensation to prevent fires from spreading or to seize buildings or close down businesses to prevent the spread of infectious diseases.
They also cited cases in which courts have upheld the power of state governments to cut down trees to save apple orchards or close down distilleries after the sale of alcohol was declared illegal.
“If state actions to save trees and prohibit alcoholic beverages did not require compensation to impacted businesses, the Governor’s necessary restrictions on business operations to protect the health and lives of Illinois residents from a worldwide pandemic cannot constitute a taking requiring compensation,” the governor and attorney general wrote.
Further, Pritzker and Raoul argued, the closure orders were only temporary, and all of the businesses either continued to at least partly function during the shutdown order period, or have since reopened as the state has eased restrictions.
The filing marked the second time Pritzker and Raoul have expressed such arguments in response to a lawsuit accusing them of taking private property. Earlier in July, Pritzker and Raoul presented similar arguments in a motion to dismiss a lawsuit brought by a group of landlords challenging Pritzker’s evictions moratorium. In that case, the landlords argued the state’s prohibition on their ability to evict tenants – even those who have simply refused to pay rent – during the pandemic has forced them to effectively subsidize their tenants’ housing and left landlords facing financial ruin.
Pritzker has since extended the eviction moratorium through August.
He further has indicated a new round of businesses and activity restrictions could be forthcoming soon, as Illinois public health authorities have reported renewed upticks in COVID-19 cases throughout much of the state in the past few weeks. Pritzker has not indicated what steps he might take. In other states, however, governors have reinstituted restrictions on bars, restaurants, public gatherings and social events, and a number of other businesses in response to increasing COVID-19 infections.