Eviction Moratorium – Gubernatorial Overreach?
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Does anyone else feel like every day is Groundhog Day in Illinois?
Governor Pritzker first imposed an Eviction Moratorium by Executive Order on March 20th – the same day that he imposed a stay-at-home order. Both actions were in response to the rapid spread of the COVID-19 virus which had morphed from a local problem in far-away Wuhan, China to an international pandemic in just a matter of months.
At the time the Governor first took these actions, it was no exaggeration to describe the rampaging pandemic as an “emergency” situation that required quick and decisive action.
At the time the Governor first took these actions, it was no exaggeration to describe the rampaging pandemic as an “emergency” situation.
But, like most emergencies, the first wave of panic gradually subsided as infection rates began to fall and things started to seem like they were getting back under control. By the end of May, the Governor believed conditions had sufficiently improved to lift his the stay-at-home order, which he did on Friday, May 29th. But the Eviction Moratorium remained.
It was set to expire on June 18th, but the Governor extended it through July 31st. Before it could expire at the end of July, he extended it again on July 22nd…
and then again on August 22nd…
and again on September 18th…
and yet again on October 16th…
and, most recently, again on November 10th.
With the moratorium now extended through the end of the year, we can only wonder how much further into 2021 this will continue.
In the middle of all these extensions, the Centers for Disease Control and Prevention (CDC) also issued an eviction moratorium, beginning on September 4th and extending through the end of 2020. This action gave the Governor additional cover, and another reason to justify continuing his own statewide moratorium. But, a closer look at both bans reveals important differences between the Illinois and CDC requirements.
With the moratorium now extended through the end of the year, we can only wonder how much further into 2021 this will continue.
The Illinois ban is all-encompassing. The only meaningful exception is for tenants who poses a “direct threat to the health and safety of other tenants, an immediate and severe risk to property, or a violation of any applicable building code, health ordinance, or similar regulation.”
By contrast, the CDC order requires tenants to provide proof that they have suffered “substantial loss of income” and “used best efforts” to obtain “government assistance for rent or housing,” among other requirements.
Attorney Jim Noonan
The Neighborhood Building Owners Alliance (NBOA) got it right when they said, “the Governor’s blanket eviction moratorium, among the most expansive in the nation, still offers no recourse for struggling neighborhood housing providers.”
In response to this never-ending cycle of eviction moratorium renewals, two Chicago law firms – Noonan & Lieberman, Ltd. and Jeffrey Grant Brown, P.C. – filed a complaint in the Circuit Court of Will County on behalf of three small DeKalb and Will County property owners who had been harmed by the moratoria.
“The Governor’s blanket eviction moratorium, among the most expansive in the nation, still offers no recourse for struggling neighborhood housing providers.” (NBOA)
Attorney Jim Noonan released a statement saying the moratorium “has denied landlords access to the courts” and “unnecessarily and unlawfully redistributes the cost of protecting tenants to landlords, who deserve the same protection under Illinois law as other citizens.” Mr. Noonan’s statement concludes by saying, “requiring only landlords, many of whom have limited means, to carry this burden alone is unfair.”
Mr. Noonan joined a Zoom meeting of the NBOA on Tuesday, October 20th to provide additional information on the purpose of the lawsuit and the grounds for the legal challenge. Mr. Noonan identified three primary reasons why he believes the Governor has exceeded his authority under the Constitution of the State of Illinois:
- Separation of Powers – In Illinois, as in the United States, our system of government assumes three co-equal branches of government – Executive, Legislative and Judicial. Each branch has certain powers over the others, ensuring a system of checks and balances. The lawsuit contends that the Governor has infringed upon the power of the courts, which reopened in June, but which have been effectively banned from hearing cases on evictions while all other judicial actions can proceed. It also contends the moratorium invades the province of the legislature which has the power to suspend laws.
- Equal Treatment – the lawsuit contends that property owners have been unfairly and uniquely singled out by the Governor who has prevented them from being able to access the courts to enforce breaches of contract (residential leases) while other persons with property interests (mortgagees and condominium associations, to name two) have unimpeded access to the courts to recover property.
- Overreach – the lawsuit contends that the Governor has exceeded the limits of his authority under the Emergency Management Agency Act. The lawsuit contends that the initial stay-at-home order and Eviction Moratorium were not permitted under the emergency police powers vested in the Governor under the Act. But, even if the Governor had the authority, the lawsuit contends that the authority expired thirty days after declaring an emergency and certainly no later than when the stay-at-home order was lifted. Subsequent extensions of the moratorium should have been returned to the legislature which has the exclusive power to make, amend or suspend laws.
The lawsuit is working its way through the courts. These arguments will be heard by the Third District Appellate Court of Ottawa. If the court finds in favor of the Plaintiffs, the Eviction Moratorium will be declared illegal everywhere in Illinois. Whether the complaint is upheld or denied at the Appellate Court level, Mr. Noonan believes it is inevitable that this case will end up before the Illinois Supreme Court.
It is clear the Governor will not listen to our concerns or treat us fairly. The legal challenge may be the best chance property owners have to fight these unfair and ruinous moratoria.
The Appellate Court case is currently scheduled to be heard the first week of December. There is no way to know what the outcome may be. Possibilities include a finding in favor of the complainant, resulting in an immediate lifting of the moratorium; a finding in favor of the complainant with an immediate stay of that order, pending an appeal and final ruling by the Illinois Supreme Court; or a finding against the complainant, in which case the lawsuit will still be appealed to the Illinois Supreme Court by the complainant.
RPBG fully supports the efforts of Mr. Noonan and the three property owners who have bravely filed this complaint. We wish them well and hope for a favorable decision from the courts. It is clear the Governor will not listen to our concerns or treat us fairly. The legal challenge may be the best chance property owners have to fight these unfair and ruinous moratoria.
One thing is for certain: property owners are tired of waking up to Ground Hog Day, day after day after day. The current court challenge may be our best hope to make it go away.
For additional information on this legal challenge, feel free to reach out to:
James V. Noonan
Noonan & Lieberman, Ltd.
105 W. Adams St., Suite 1800
Chicago, IL. 60603
P: 312-431-1455 x 3323
F: 312-431-1456
D: 312-605-3443
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