A federal appeals panel has shut down an attempt by a group of central Illinois businesses to win some compensation from the state for Gov. JB Pritzker’s 2020 closure orders, which the businesses said amounted to an unconstitutional taking of their property by the governor, under the guise of taking action to stop the spread of Covid-19.
On May 20, a three-judge panel of the U.S. Seventh Circuit Court of Appeals said the businesses fell short of proving how Pritzker’s closure orders had harmed them, saying it wasn’t enough to say they were illegally prohibited from conducting business, leaving them on the doorstep of economic ruin.
The decision was authored by Seventh Circuit Judge Diane P. Wood. Circuit judges Kenneth F. Ripple and Thomas L. Kirsch concurred.
John C. Kreamer
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“The Businesses have asserted legal conclusions, but they have not supported those conclusions with factual allegations that plausibly suggest that the Governor’s orders constituted regulatory takings,” Wood wrote in the opinion.
“How much money did they lose? How long was each Business closed? Did one or more of them use its property in other, albeit less lucrative, ways? We don’t know.
“… While the preferred or intended use of many business properties was limited or even prohibited by the Governor’s COVID orders, those orders did not deprive property owners of all uses to which their premises might be put.
“… That such uses would not have been their preferred or most profitable uses does not mean that the closure orders effected a regulatory taking,” Wood said.
The decision came as the latest, and perhaps final step, in a court fight dating back to 2020, amid some of the earliest weeks of social and business restrictions Pritzker imposed across the state, saying they were needed to staunch the spread of Covid.
Despite those restrictions, Illinois’ public health performance amid the pandemic ranks squarely in the middle among states in the U.S., by a number of measures. Illinois’ cumulative rate of Covid deaths at 300 per 100,000 population rates on par with other states which imposed less severe Covid rules, such as Texas (299 per 100,000), Florida (325), Iowa (302) and Wisconsin (249).
And as the country’s business climate has continued to rebound from the depths of 2020, Illinois’ 4.4% unemployment rate in May 2022 still lags far behind those other states which did not impose the kinds of steep economic restrictions Pritzker did, using emergency powers he claimed under the state’s disaster response law.
Pritzker’s Covid edicts triggered a wave of legal challenges from individuals and businesses across the state, arguing Pritzker’s actions amounted to illegal violations of a broad range of constitutional rights.
Among those lawsuits was a sprawling constitutional action filed by several central Illinois business owners and others, represented by attorneys John C. Kreamer and Joseph E. Urani, of the Kreamer Law Group, of suburban Naperville.
In the lawsuit, the plaintiffs assert Pritzker’s actions violated their individual rights, including freedom of speech, assembly, religion, due process and equal protection under the law. They noted in their complaint the lack of action by any state agency to shut down large political protests and other gatherings from politically progressive and left wing groups favored by Pritzker in the spring and summer of 2020.
The business owners further asserted Pritzker’s statewide shut down orders amounted to a so-called regulatory taking. Under such a theory, the plaintiffs claim that, while the government did not physically seize their property, the orders to close their doors or face potential criminal and civil prosecution accomplished essentially the same goal, by depriving them, under the threat of government force, of the ability to earn a living from their business and their property.
Courts throughout the pandemic have largely sided with Pritzker in rejecting the challenges to his continued use of emergency executive power for over two years.
In federal court in central Illinois, U.S. District Judge James E. Shadid, however, sided with Pritzker. Shadid ruled the plaintiffs lacked standing to bring the lawsuit because they could not establish any concrete or actual injuries they had suffered.
Asserting Pritzker had trampled their constitutional rights and potentially ruining their businesses was not enough, Shadid ruined.
On appeal, the Seventh Circuit panel backed Shadid, dismissing all counts in the lawsuit, similarly determining the plaintiffs lacked standing to press their claims.
Regarding the plaintiffs’ individual constitutional rights claims, Wood wrote: “Such a bare assertion of harm—unsupported by any concrete details and tethered to no specific plaintiff—does not satisfy the constitutional requirement of a concrete and particularized injury-in-fact.”
Wood and the other judges agreed the state’s politically-guided selective enforcement of gathering size restrictions did not automatically win them the chance to continue. They noted the Seventh Circuit already has rejected similar claims advanced by the Illinois Republican Party in a lawsuit that also challenged Pritzker’s decision to not only allow, but himself participate in, large anti-racism protests in the spring of 2020 in Chicago, while continuing to forbid other gatherings of far lesser sizes.
“We observed in Illinois Republican Party v. Pritzker that the text of the executive orders did not exempt certain political groups from the order limiting the size of gatherings and thus did not facially discriminate,” Wood wrote.
“Although we did not ‘rule out the possibility that someone might be able to prove’ discriminatory enforcement of the orders, we held that ‘the record … f[ell] short.’
“We agree with the district court that Plaintiffs’ allegations in the present case also fall short.”
And as to the businesses’ regulatory taking claim, Wood said the business owners had similarly failed to provide enough concrete details to allow them to continue.