A state appeals panel has agreed a group of downstate businesses can’t continue their lawsuit alleging Gov. JB Pritzker’s COVID-related shutdown orders amounted to an illegal taking of their property.
The owners and operators of 15 bars and restaurants in Pike County filed a lawsuit in May 2020 naming Pritzker and Acting Illinois Emergency Management Agency Director Alicia Tate-Nadeau as defendants. Pike County is located along the Mississippi River, across from Hannibal, Missouri, about 70 miles west of Springfield -
The bar and restaurant owners alleged that Pritzker’s executive orders starting in March 2020, which the governor said were aimed at mitigating the spread of the then-novel coronavirus, should have come along with equitable payment for their loss of personal property in accordance with the Illinois Emergency Management Act.
Illinois Fourth District Appellate Court, Springfield
| Jonathan Bilyk
According to the business owners, the relevant section inthe law said a governor has the authority to forbid use of a full or reduced interest in personal property “only upon the undertaking of the state to pay just compensation therefor.”
Unlike other lawsuits challenging Pritzker’s authority and the reach of his executive orders, the Pike County owners “are simply addressing the governor’s actions and inactions and their impact on plaintiffs’ property solely and exclusively within the context of" the emergency management law, according to their complaint.
The plaintiffs asked Circuit Court Judge Alan Tucker to order Tate-Nadeau to file a petition requesting a compensation amount to be established and paid. In August 2020, Tucker granted the state’s motion to dismiss the complaint without prejudice, finding the allegations “vague and conclusory.”
The business owners amended their complaint, detailing expenses for each business, including such items as utensils, tables and chairs, employee numbers, 2019 revenues and information about canceled contracts. In December 2020 Tucker granted the state’s motion to dismiss with prejudice, again determining the business owners failed to establish an improper taking. The plaintiffs challenged that decision before the Illinois Fourth District Appellate Court, located in Springfield.
Justice Robert Steigmann wrote the panel’s decision, issued Dec. 28. Justices James Knecht and Craig DeArmond concurred. The order was issued under Supreme Court Rule 23, which may restrict its use as precedent.
A writ of mandamus, as the plaintiffs sought, forces a public officer to engage in nondiscretionary duties, the panel explained. To obtain such an “extroadinary remedy,” the justices said, plaintiffs have to demonstrate a clear right to the relief they request, a clear duty of the officer to act and the authority of that officer to comply with the judicial order.
Steigmann explained the primary question is whether the forced closure of the taverns and eateries is a “taking” under the Emergency Management Agency Act definition. Ordering businesses to suspend operations, he said, is different from physically taking a building.
“When the governor has taken possession of personal or real property, the Act requires the payment of ‘just compensation,’ ” Steigmann wrote. “This language contemplates the physical acquisition of property by the governor for use in ameliorating a statewide disaster. Here, plaintiffs do not allege that the governor took physical possession of, acquired title to, or even used their personal property. Instead, plaintiffs merely allege that he forbade them from using their personal property. Although they allege that he acquired a ‘specified interest’ in their property by forbidding its use, they do not state what that interest was. Nor can they, because forbidding others’ use of their personal property is not the same as acquiring it for one’s own use.”
Other parts of the law not included in the complaint allow a governor to change the way food and alcohol are sold and transported without being linked to compensation, the panel continued, supporting the conclusion that the “taking” clause does require physical acquisition of property to trigger the payment provision.
Furthermore, the challenged section does list property a governor may control — airplanes, trucks, livestock and medicines — and the exclusion of bars and restaurants from the list speaks to lawmakers’ intent to exclude such property.
“Like the trial court, we are sympathetic to the difficulties plaintiffs have suffered as a result of COVID-19,” Stiegmann wrote. “However, defendants correctly point out that plaintiffs have limited their argument to the governor’s authorized actions under the Act. They have not argued that he exceeded his authority or violated any other statute or state or federal constitutional provision. Accordingly, we need not and do not consider defendants’ alternative argument that plaintiffs failed to allege a regulatory taking, which would require compensation under the federal and state constitutions.”