Judge: Pritzker can block landlords from evicting delinquent tenants during pandemic, no matter 'economic devastation'

While acknowledging landlords in Illinois are suffering “economic devastation,” a Will County judge has ruled the COVID-19 pandemic gives Illinois Gov. JB Pritzker the power to prohibit evictions in Illinois for as long as he deems necessary, even if the tenants simply refuse to pay rent.

However, the judge also teed up for appeal a series of legal questions at the heart of this legal action, as well as nearly all other legal challenges brought against the authority of Pritzker to continue wielding broad emergency powers, in the name of fighting COVID-19.

On July 31, Will County Judge John C. Anderson became the latest judge in Illinois to uphold Pritzker’s authority under state law to govern the state by executive order for as long as the governor believes the COVID-19 pandemic persists.

“To be sure, at some point, a right delayed becomes a right lost,” Judge Anderson wrote. “But the Court is not convinced that Plaintiffs (landlords) are at that point yet.”

The lawsuit centers on a moratorium on evictions issued by Pritzker each month since March, when he first declared a statewide disaster caused by the outbreak of the novel coronavirus that causes COVID-19. Pritzker has said the evictions ban is justified because evictions, which cause people to be removed from their homes and interact with a broad range of people from outside their household, would interfere with the state’s efforts in slowing the spread of COVID-19.

The governor has also said the moratorium is needed to protect Illinois residents who may have been among the millions of Illinoisans who lost a job or whose business was closed in no small part because of the economic effects of the governor’s other orders, shuttering businesses and restricting activities statewide.

Pritzker has said the moratorium would also last only until the state established a rent assistance program, designed to benefit landlords harmed by the COVID-19 crisis. Judge Anderson noted attorneys for the state have told him the state “hopefully” would have that program up and running by September.

In the lawsuit, a group of landlords from Chicago’s suburbs and Rockford accused Pritzker of overstepping his authority and unconstitutionally taking their property, while forcing the landlords to essentially pay for their tenants’ housing for months.

They filed suit against the governor on June 24. Arguments were heard in the case in mid-July.

In his ruling, Judge Anderson sided nearly completely with Pritzker.

He rejected the assertion Pritzker’s powers during a pandemic emergency are constrained by nearly any standard.

He pointed to rulings from the U.S. Supreme Court and Illinois Supreme Court to back his assertion that actions to protect the health and welfare of Illinois residents – known as that state’s “police power” - should be allowed to limit an array of property rights that would otherwise apply in pandemic-free periods.

In this case, Judge Anderson found Pritzker used his police powers to simply delay the ability of landlords to demand rent and enforce those demands under threat of eviction.

Further, he rejected their claims that the governor’s sustained refusal to allow them to evict non-paying tenants was essentially an illegal taking of their property.

Judge Anderson said neither the governor nor any state official had taken or occupied their property. They have only forbidden them, for a period of several months, from ejecting from their property tenants who have violated their leases or simply not paid rent.

Landlords’ ability to exercise their right to evict non-paying tenants “has not been removed; it is only delayed because of a public health emergency,” Judge Anderson wrote. “That delay, under the circumstances, is justified.”

Anderson said Pritzker is allowed to put such prohibitions in place, and the courts shouldn’t interfere, so long as he declares it is necessary to fight COVID-19.

“The Governor has broad discretion here, and the Court will not micromanage the Governor’s placement of weight on one policy concern over another, or one preventative measure over another,” Anderson wrote.  

Anderson said he believes Illinois lawmakers gave the governor such power during times of emergency, no matter how long, and Pritzker does not need to seek any additional action from the Illinois General Assembly.

That point has been hotly contested in a broad range of legal actions undertaken since May challenging Pritzker’s authority to govern the state by executive orders amid the pandemic.

For instance, in early July, a judge in Clay County in southeastern Illinois ruled Pritzker’s emergency power had lapsed in April, 30 days after he first declared the statewide emergency. The judge there said the governor needed to secure authorization from the Illinois General Assembly to continue exercising his emergency powers.

In his ruling, however, Anderson noted all other judges hearing the question, including federal judges and judges in Cook County, Madison County and Sangamon County had sided with Pritzker.

He said the contrary rulings in Clay County are “bereft of meaningful legal analysis, and are wholly unpersuasive for that reason” and is not binding.

However, Anderson said he believed the questions presented in the case and in other legal challenges need to land in front of a state appeals court or the Illinois Supreme Court “as quickly as possible” for review.

To that end, Anderson certified seven questions for appellate review. These include:

• Does state law permit Pritzker to continue issue successive 30-day disaster declarations?
• Should executive orders issued using emergency powers be treated by a court the same as a state law?
• Does the Illinois state constitution and state law empower Pritzker to cite a public health emergency in issuing orders that limit constitutional rights, “including the right to a civil jury trial and the right to file a lawsuit?”
• Can the governor use a public health emergency to limit the ability of the courts to hold trials and hear cases?
• Is the right to a civil jury trial a “fundamental right?” and
• Are plaintiffs who successfully sue the state for taking their property able to only collect money damages?

Anderson said he did not wish for his opinion on the law to “be read to minimize the significant harm that has been likely inflicted” on landlords and other business owners. He said he had once been a landlord himself.

But regardless of the “economic devastation” they may suffer at the hands of the state, Anderson said the “balance of harm” – meaning, the balance of who will be harmed the most in a given case – “tips substantially in the Governor’s favor,” because he asserts the eviction ban is needed to fight COVID-19.

Attorneys for the landlords declined comment on the ruling. However, they indicated they will “most likely appeal.”

The landlords are represented by attorneys James V. Noonan and Solomon Maman, of the firm of Noonan & Lieberman Ltd., of Chicago, and attorney Jeffrey Grant Brown, of Chicago.

Judge Anderson has served on the Will County Circuit Court since 2010. Prior to being elected to the bench, he served as a Democratic member of the Will County Board.