(CN) — The chairman of a Republican Party committee and three business owners sued Illinois’ Democratic governor Wednesday in federal court claiming his shutdown order is an unconstitutional taking of property.
Will County Republican Party Committee Chairman George Pearson was joined by a member of the Will County Board, and the owners of a pet grooming business, a hair salon and an auto shop. They seek class-action status, saying they “stand on the precipice of economic collapse” as a result the business closures.
The case was brought on behalf of all businesses and employees harmed by the closures. Pearson says the lockdown prevents him from fund raising; board member Steve Balich says he cannot properly campaign for reelection; pet groomer Samantha Palya claims the lockdown has cost her $45,000 in anticipated income.
The bare-bones 11-page complaint says the plaintiffs do not dispute that the shutdown order is “prudent,” or that Governor Jay Pritzker lacks the authority to impose it, but say they are entitled to just compensation for their losses.
Pritzker issued the order on March 20 requiring all nonessential businesses to close indefinitely.
Pearson et al. claim the order is a “regulatory taking,” that businesses have been deprived of “all economically beneficial use of their property” and employees have been deprived of their wages and livelihood. They are represented by Alan Bruggeman with Bruggeman Hurst in Mokena, Ill.
A similar lawsuit was filed on March 26 in federal court in Philadelphia. Other lawsuits challenging state shutdowns have claimed that they violate freedom of religion, speech, and assembly. More than a dozen lawsuits have been filed challenging the California shutdown, including one by a woman who claims that Governor Gavin Newsom’s order “ruined her idyllic wedding plans.”
The Illinois lawsuit will be easier than the one in Philadelphia, Bruggeman told Courthouse News, because Illinois state law requires a jury trial in takings cases. That means Illinois can’t get the case dismissed before trial by arguing that the plaintiffs have been adequately compensated through unemployment insurance and federal loans under the Paycheck Protection Program.
Emphasizing the challenge involved in calculating the losses suffered by every business and employee in Illinois, however, Bruggeman predicted some difficulty in achieving class-action status, although he said expert testimony could be used.
Bruggeman called the hurdles similar to those in asbestos class actions. In any case, the lawsuit might be more successful if class status is denied, he added, because notifying all potential class members would be lengthy and difficult and “delays work in favor of the government.”
In late April a state judge in Illinois issued a temporary restraining order against the state’s shutdown, although that order applied only to the man who brought the lawsuit, Republican state Rep. Darren Bailey.
There do not appear to be any appellate cases that specifically address whether shuttering businesses due to a pandemic is a taking, but there are cases in other contexts holding that depriving people of property for public health reasons is not a taking. For instance, the Supreme Court held in 1928 that Virginia did not have to pay compensation when it ordered the destruction of some cedar trees to prevent the spread of a tree disease to a nearby apple orchard.
In 1978 the U.S. Supreme Court issued a multipart test for regulatory takings that has not always proven clear-cut. However, under this test the government has often avoided having to pay compensation in cases where a taking was temporary and the government did not physically occupy or destroy property.
Bruggeman noted, though, that there have been cases where the government temporarily flooded land as part of its spillway management and this was held to be a taking.
Will County, pop. 691,000, whose seat is Joliet, once was solidly Republican, but has become a swing county in recent years.
