A fitting way to bid adieu to 2021: Ruble v. Tate-Nadeau, No. 4-20-0641 (Dec. 28, 2021), in which the Illinois Appellate Court held that the governor's tavern and dine-in restaurant Covid-19 shut-down orders were not takings of personal property under section 7(4) of the Illinois Emergency Management Act.
This was not a claim for a constitutional taking, but only under the Act, which obligates "the State to pay just compensation" if it "take[s] possession" of personal or real property. The plaintiffs alleged that the governor had taken possession of their properties by forbidding use of their businesses. The trial court dismissed the petition for failing to state a claim.
Because the plaintiffs' claims were "solely and exclusively" under the Act, the appeals' court's analysis was limited to statutory construction of the term "take possession of" personal or real property. The court concluded that "[t]his language contemplates the physical acquisition of property by the Governor for use in ameliorating a statewide disaster." Slip op. at 9. Ordering businesses to shut down isn't "taking possession" -
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. Instead, forbidding the use of personal property is regulating others’ use of property, which is governed by other provisions of section 7.
Slip op. at 9-10.
Here, the governor merely "regulated" the use of the plaintiffs' property:
For example, section 7(9) grants the Governor the power to “suspend or limit the sale, dispensing, or transportation of alcoholic beverages.” Id. § 7(9). Section 7(12) grants the Governor the power to “[c]ontrol, restrict, and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food *** and other commodities, materials, goods or services[.]” (Emphases added.) Id. § 7(12). These sections, which appear to pertain directly to the actions the Governor took regulating plaintiffs’ operation of their restaurant and tavern businesses, do not require the payment of “just compensation.” Section 7(4) is the only emergency power that contains such a requirement.
Slip op. at 10. "The existence of specific statutory provisions governing the suspension, limitation, restriction, or rationing of food and alcohol in sections 7(9) and 7(12) supports our conclusion that section 7(4) applies to the physical taking or acquisition of property, and not to the regulation of use of personal property, such as occurred here. Slip op. at 10-11.
That rationale (regulation isn't an acquisition) doesn't quite hold water as a logical matter. It shouldn't be hard to see how a permanent and total ban on these businesses, for example, would be a de facto deprivation. That's the rationale for the "too far" vibe in constitutional takings where the government may be obligated to provide compensation even if it exercises police power and has no acquisitory intent. But this is not a constitutional takings case, but only a question of the statutory language and the legislature's intent.
Accordingly, we agree with defendants that the plain language section 7 of the Act “makes a clear distinction between the State’s actual possession and use of personal property” and “the State’s regulation of others’ use of private property.” Plaintiffs may be entitled to just compensation under section 7(4) only when a physical taking of property has occurred. Because plaintiffs failed to allege in their petition that the Governor took physical possession of or acquired title to (or some lesser interest in), their personal or real property, they did not establish that they are entitled to just compensation or an order commanding the Director to seek the payment of just compensation. And because plaintiffs failed to establish a right to mandamus relief under section 7 of the Act, the trial court correctly dismissed the petition pursuant to section 2-615 for failure to state a claim upon which relief could be granted.
Slip op. at 11-12.
The court was "sympathetic to the difficulties plaintiffs have suffered as a result of COVID-19. 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." Slip op. at 12.
The court summed up: "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." Id.
More here: "IL appeals panel: State doesn't need to pay business owners for shutdowns forced by Pritzker's COVID orders."
For more on commandeerings and Co-19 takings (of the constitutional sort), check our our piece, "Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm. & Mary Bill of Rights J. 1145 (2021). For more on emergency management acts generally, see "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority," 43 U. Haw. L. Rev. 71 (2020) .
See you in 2022!
Ruble v. Tate-Nadeau, No. 4-20-0641 (Ill. Ct. App. Dec. 28, 2021)