As Gov. JB Pritzker extends the state’s eviction moratorium by at least another month, owners of apartment buildings and other rental housing say they are continuing to hold out hope for some relief from the courts.
However, they cautioned a recent ruling from a Texas federal judge will likely have little impact on their legal challenges still pending against Pritzker’s orders in Illinois.
For the past year, Pritzker has prohibited virtually all residential evictions, including for tenants who refuse to pay rent. Pritzker has modified the eviction moratorium slightly, with tweaks he said would allow eviction proceedings to move forward for tenants who pose a threat to their neighbors or to the property, as well as in some limited economic circumstances.
James Noonan
| Noonan & Lieberman
Pritzker extended the evictions restrictions by another 30 days, in new orders issued March 5.
The governor has defended his evictions ban as a measure needed to keep people in their homes amid the COVID-19 pandemic, and slow the spread of the coronavirus. Without such evictions actions, the governor claims a wave of homelessness would follow, working against government regulations put in place to combat the virus and worsening infection rates, hospitalizations and deaths from the disease.
The federal government has also cited similar concerns in prohibiting certain residential evictions nationwide.
Such evictions bans, however, have been met with legal challenges in Illinois and elsewhere.
In June 2020, a group of rental property owners filed suit against Pritzker in Will County. The landlords argued the governor’s evictions orders amounted to a state order seizing control of their property, but not paying for them.
“Protecting economically needy citizens such as tenants … is sound and proper policy,” the landlords wrote in their lawsuit. “But compelled subsidization by landlords is an improper and unconstitutional method of solving that problem.”
A Will County judge, however, sided with Pritzker, ruling the governor’s emergency powers to fight the COVID pandemic are broad, even to the point of infringing on constitutional rights and property rights.
The rental property owners have appealed that ruling to the Illinois Third District Appellate Court in Ottawa. Arguments were heard in the case late last year, but a decision has not yet been handed down.
Paul Arena, director of legislative affairs for the Illinois Rental Property Owners Association, said the landlords and their trade groups remain “anxious” for the decision, as “we are approaching three months since the hearing.”
However, as they await a decision from the Illinois court, a federal appeals court has been asked to review the decision of a federal district judge in Texas, who declared the federal evictions ban unconstitutional.
But landlords fighting state eviction bans may not find much help from that federal decision.
In that case, U.S. District Judge J. Campbell Barker ruled the Centers for Disease Control overstepped the federal government’s general authority to regulate interstate commerce by imposing the first-ever federal evictions ban.
The judge determined residential evictions are not an act of interstate commerce, within the purview of Congress or a federal agency to regulate.
However, Judge Barker explicitly recognized such powers can still reside within the states, under state governments’ so-called “police powers.”
Attorney James Noonan, of the firm of Noonan & Lieberman, of Chicago, who is representing the rental property owners in the Will County lawsuit, said he also doesn’t expect that case to have any impact on their lawsuit challenging Pritzker’s orders.
The federal Commerce Clause, said Noonan, has no bearing in the Illinois case, “as we are challenging the state moratorium and not alleging a violation of any federal law.”
“In addition, Texas does not have a statewide eviction moratorium so the only law prohibiting evictions was the CDC Order,” Noonan wrote. “If the Texas decision is followed by a Texas state court, then a Texas landlord will be free to evict. If an Illinois court were also to find the CDC Order invalid, Illinois landlords would still be subject to the Illinois moratorium.”
Arena, however, said he is hopeful the Texas decision will survive its appeal to the U.S. Fifth Circuit Court of Appeals, and can then be used to guide other courts elsewhere in the U.S.
“I'm hopeful that if one court views the moratorium as unconstitutional, other courts may reach the same interpretation of the law,” Arena said.