Landlords in Illinois, who have been blocked by Gov. JB Pritzker for more than a year from tossing out tenants who refuse to pay rent, have again lost in court in their bid to challenge Pritzker’s persistent orders banning evictions.
On May 21, a three-justice panel of the Illinois Third District Appellate Court said a Will County judge was correct in rejecting a request from a group of rental housing owners for a court order prohibiting Pritzker from continuing to use COVID-related emergency powers to forbid any kind of residential eviction actions statewide.
“In this case, the circuit court correctly found that (1) both the State and the public had a strong interest in preserving public health and (2) these interests weighed substantially in favor of the Governor and outweighed the harm that the eviction moratoria caused the plaintiffs,” the panel’s majority wrote.
Illinois Third District Appellate Justice Mary McDade
| Illinoiscourts.gov
The decision comes nearly 10 months since Will County Judge John Anderson rejected the landlords’ injunction request, and more than five months since the appellate court heard arguments in the matter.
In June 2020, a group of rental property owners filed suit in Will County Circuit Court against Pritzker. The lawsuit challenged Pritzker’s imposition of a so-called “eviction moratorium,” instituted in the name of slowing the spread of the COVID-19 pandemic.
Named plaintiffs in the action include JL Properties Group; Mark Dauenbaugh; and Steven Cole. According to the complaint, JL Properties owns a single family home it leases in Bolingbrook; Dauenbaugh owns an apartment complex in Rockford; and Cole serves as trustee and landlord for a leased residential property in University Park.
They have been 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.
Pritzker has consistently wielded emergency powers since March 2020, when he first declared a statewide disaster upon the onset of the COVID pandemic in Illinois. Using those powers, the governor has routinely issued a series of executive orders, imposing restrictions on both society and business in Illinois.
As part of those orders, Pritzker prohibited rental property owners from either beginning or continuing eviction actions against tenants, even if they simply refuse to pay their rent. The moratorium has largely been reissued every month since, for more than 14 months.
However, the governor indicated in recent weeks his intention to end the eviction moratorium by August, as ever-increasing vaccinations, amid other factors, appear to have ebbed the spread of COVID-19, and made its spread much less threatening.
In their action against the governor, the landlords asserted Pritzker’s repeated reissue of the eviction bans have trampled their constitutional rights, and amounted to an illegal taking of their property.
When the case landed before Judge Anderson last summer, however, the judge said the law was on Pritzker’s side. The judge ruled the eviction ban merely amounted to a temporary delay, caused by a “public health emergency” of the landlords’ right to secure court orders protecting their property against non-paying tenants.
In his ruling, Judge Anderson said it did not matter if rental property owners faced “economic devastation” as a result of Pritzker’s orders.
Last summer, Pritzker’s lawyers from the Illinois Attorney General’s office told the judge the moratorium would only last until the state could roll out a rental assistant program to help financially struggling tenants and landlords. That program, however, has still not been fully implemented, nearly a year later.
Their arguments, however, suffered the same fate on appeal.
In this case, they said, faced with a public health crisis, the state had the power to block landlords for a time from using the courts to evict tenants, even if they simply refused to pay rent, to allow Illinois residents to shelter in place and reduce the movement of people in and out of communities throughout the state, thereby reducing the spread of COVID-19.
They said the threat posed by COVID-19 outweighed the risk of economic devastation faced by property owners, who could themselves have their property seized, should they be unable to make payments on their mortgage loans or to pay property taxes.
Justice McDade agreed with the conclusion in the case, but said the majority decision perpetuated “bad law,” by not completing a more detailed analysis of the landlords’ claims to determine if they had made a prima facie case to establish their claim to a preliminary injunction. He said court precedent has established a four-element test to determine whether a case was strong enough to merit an injunction, and the majority skipped over that test in favor of the “balance of equities” test they applied.
Justice McDade applied the four-element test in his concurring opinion, and declared he did not believe the landlords had a strong likelihood of success.
McDade particularly pointed to Section 7 of the Illinois Emergency Management Agency Act to support his conclusion concerning the landlords’ chances of success in court.
“Once the Governor has declared a disaster exists, section 7 grants him or her the authority to exercise certain enumerated powers,” McDade wrote. “Those powers include ‘to control ingress or egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.’
“We find that this broad grant of authority to the Governor reasonably encompasses his ability to impose the (eviction) moratoria,” McDade wrote.
The case has been sent back to the Will County court for further proceedings on the remaining claims against Pritzker in the rental property owners’ complaint.