Ruble v. Tate-Nadeau

2021 IL App (4th) 200641-U

• Court: Appellate Court of Illinois
• Decided: December 28, 2021
• Docket: 4-20-0641
• Status: Unpublished

Opinion

NOTICE 2021 IL App (4th) 200641-U FILED This Order was filed under December 28, 2021 Supreme Court Rule 23 and Carla Bender is not precedent except in the NO. 4-20-0641 4th District Appellate limited circumstances al- Court, IL lowed under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PATTY L. RUBLE d/b/a COURTYARD ) Appeal from the CAFE & BAKERY; G V PIZZA, INC.; ) Circuit Court of SWARTZ & SWARTZ, INC.; PAMELA ) Pike County UTTERBACK d/b/a BAINBRIDGE STREET ) No. 20MR75 CAFÉ; STAGECOACH INN, LLC; TEDDYS, ) LLC; COSMIC ENTERTAINMENT COMPLEX, ) LLC; MALISHA CROWDER d/b/a ATLAS ) CAFÉ; WAYNE PUCKETT and KAREN ) PUCKETT d/b/a SUBWAY; J2 BEVERAGES, ) LLC; NUCCI’S PASTA HOUSE, INC.; ED & ) WOODIE’S—S & S, INC.; LINDSAYS’ TOO, INC.; ) LINDSAY’S TAVERN, INC.; and ) WE-B SALOON, INC., ) Plaintiffs-Appellants, ) v. ) ALICIA TATE-NADEAU, in Her Official ) Capacity as Acting Director of the ) Illinois Emergency Management ) Agency and JAY ROBERT PRITZKER a/k/a JB ) PRITZKER, in His Official Capacity as Governor of ) Honorable the State of Illinois, ) Alan D. Tucker, Defendants-Appellees. ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the trial court’s judgment dismissing plaintiffs’ petition for a writ of mandamus because plaintiffs failed to allege facts establishing that they were entitled to the relief sought.

¶2 Plaintiffs are a group of 15 various restaurants and taverns (or their owners or

operators) located in Pike County, Illinois. In September 2020, plaintiffs filed an amended petition for a writ of mandamus, naming Governor J.B. Pritzker and Acting Director of the Illinois

Emergency Management Agency (IEMA), Alicia Tate-Nadeau (Director), as defendants. The

petition alleged that, beginning in March 2020, to mitigate the spread of COVID-19, the Governor

issued a series of executive orders under the authority conferred upon him by section 7(4) of the

Illinois Emergency Management Act (Act) (20 ILCS 3305/1 et seq. (West 2018)). These orders

prohibited “the operation of all tavern businesses and dine-in restaurant businesses” statewide.

¶3 According to plaintiffs, the Governor’s actions constituted a taking of their personal

property interests in their businesses, which required the payment of “just compensation” under

the Act. Because the Governor had taken no steps to (1) determine the amount owed or (2) pay

plaintiffs “just compensation,” plaintiffs sought an order commanding the Director to comply with

section 7(4)(b) of the Act, which requires the Director to file a petition in circuit court requesting

that the amount of “just compensation” be fixed and paid.

¶4 In October 2020, defendants filed a motion to dismiss the petition pursuant to

section 2-615 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-615 (West 2020)),

arguing that the petition was “substantially insufficient in law” in that it “[did] not establish a clear

right to mandamus because it [did] not clearly establish a taking.”

¶5 In December 2020, the trial court granted defendants’ motion and dismissed

plaintiffs’ petition with prejudice because it “failed to establish a taking entitling Plaintiffs to just

compensation.” Having failed to establish a taking, plaintiffs failed to state a claim upon which

mandamus relief could be granted.

¶6 Plaintiffs appeal, arguing the trial court erred by dismissing their petition pursuant

to section 2-615 because it alleged sufficient facts to state a cause of action for mandamus.

¶7 We disagree and affirm.

-2- ¶8 I. BACKGROUND

¶9 A. The Petition

¶ 10 Plaintiffs are a group of 15 various restaurants and taverns (or their owners or

operators) in Pike County, Illinois. In May 2020, plaintiffs filed a petition for a writ of mandamus

against the Governor and the Director. The petition alleged the following. On March 9, 2020, in

response to the spread of COVID-19 in Illinois, the Governor declared a “public health

emergency” and issued a statewide disaster proclamation. Proclamation No. 2020-38, 44 Ill. Reg.

4744 (Mar. 9, 2020). This disaster declaration conferred upon the Governor 14 emergency powers,

enumerated in section 7 of the Act. 20 ILCS 3305/7 (West 2018). Pursuant to this authority, on

March 20, 2020, the Governor issued an executive order (EO 2020-10), which prohibited plaintiffs

from operating “all tavern businesses and all dine-in restaurant businesses.” Exec. Order No. 2020-

10, 44 Ill. Reg. 5857 (Mar. 20, 2020). The Governor issued subsequent declarations and executive

orders that extended the duration of the March 20, 2020, order until May 29, 2020. Plaintiffs

alleged that, through these orders, “the Governor [had] taken possession (by forbidding its use) of

a full interest or a lesser specified interest [sic] in Plaintiffs’ personal property pursuant to [section

7(4)] of the Act[.]”

¶ 11 Plaintiffs further alleged that (1) section 7(4) of the Act grants the Governor the

authority to perform such a taking “only upon the undertaking of the State to pay just compensation

therefor” and (2) the Governor had taken no steps to compensate plaintiffs.

¶ 12 Last, plaintiffs alleged that section 7(4)(b) directs that, where just compensation is

not “determined and paid,” “a petition in the name of The People of the State of Illinois shall be

promptly filed by the Director, which filing may be enforced by mandamus, in the circuit court of

the county where the property *** was located and initially taken[.]”

-3- ¶ 13 Plaintiffs requested the trial court to (1) find that the Governor acted under section

7(4) of the Act to take an interest in personal property away from plaintiffs and had not taken any

action to compensate them and (2) issue of a writ of mandamus ordering the Director, pursuant to

section 7(4)(b) of the Act, to file a petition in the circuit court “praying that the amount of

compensation to be paid to Plaintiffs be fixed and determined.”

¶ 14 B. The Motion To Dismiss

¶ 15 In June 2020, defendants filed a motion to dismiss the petition pursuant to section

2-615 of the Civil Code. 735 ILCS 5/2-615 (West 2018). Defendants argued that plaintiffs’ petition

failed “at the outset” because it did not establish a taking of property for which the plaintiffs had

a right of just compensation. Defendants contended that mandamus is improper where the claimed

right is not established. See Doe v. Carlson, 250 Ill. App. 3d 570, 573, 619 N.E.2d 906, 908 (1993).

¶ 16 In response, plaintiffs argued that their pleading was legally sufficient to establish

that (1) the Governor took action under the Act that “directly impacted their property” and

(2) neither the Governor nor the Director acted pursuant to the statutory framework to provide the

required compensation.

¶ 17 C. The Trial Court’s Ruling

¶ 18 In August 2020, the trial court granted defendants’ motion to dismiss without

prejudice and gave plaintiffs leave to replead. In its ruling, the court expressed concern that the

allegations in the initial petition were “vague and conclusory” regarding the value of the claimed

losses and the nature of the taking.

¶ 19 In response, plaintiffs, in September 2020 amended their petition to attach a group

exhibit enumerating, for each plaintiff, the number of various restaurant-related items (utensils,

dinnerware, tables, chairs, etc.), the number of employees, monthly revenues from 2019, and the

-4- number and cost of cancelled contracts. In October 2020, defendants moved to dismiss the

amended petition on the same grounds as before.

¶ 20 In December 2020, the trial court entered a written order granting defendants’

motion to dismiss with prejudice. The court found that “the petition [was] substantially insufficient

at law for failure to state a claim upon which relief may be granted in that plaintiffs [had] failed to

establish a taking entitling [them] to just compensation.” The court further found that, “should a

taking be established, that claim is defeated by the State’s police power and the public necessity

doctrine.”

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Plaintiffs appeal, arguing the trial court erred by dismissing their petition pursuant

to section 2-615 because it alleged sufficient facts to state a cause of action for mandamus.

¶ 24 We disagree and affirm.

¶ 25 A. The Applicable Law

¶ 26 As an initial matter, plaintiffs repeatedly emphasize that they do not challenge the

Governor’s authority under the Act to issue the executive orders he did, nor do they raise any

claims regarding the Governor’s constitutional authority, police powers, or public necessity

regulatory powers. Instead, plaintiffs explain that they “are simply addressing the Governor’s

actions and inactions and their impact on [p]laintiffs’ property solely and exclusively within the

context of the [Act].” (Emphasis added.) Accordingly, our review is limited to the application of

the Act to the facts alleged in the petition and does not include consideration of any other statutory

or constitutional provision.

¶ 27 1. Section 2-615 Motions To Dismiss

-5- ¶ 28 Defendants obtained dismissal of plaintiffs’ petition under section 2-615 of the

Civil Code. 735 ILCS 5/2-615 (West 2020). “A motion to dismiss under section 2-615 challenges

the legal sufficiency of a complaint.” Cochran v. Securitas Security Services USA, Inc., 2017 IL

121200, ¶ 11, 93 N.E.3d 493. “In ruling on such a motion, a court must accept as true all

well-pleaded facts in the complaint, as well as any reasonable inferences that may arise from

them.” Id. However, a court cannot accept as true mere conclusions unsupported by specific facts.

In re Estate of Powell, 2014 IL 115997, ¶ 12, 12 N.E.3d 14. A cause of action should be dismissed

under section 2-615 only if “it is clearly apparent from the pleadings that no set of facts can be

proven that would entitle the plaintiff to recover.” Cochran, 2017 IL 121200, ¶ 11. This court

reviews de novo an order granting a section 2-615 motion to dismiss. Id.

¶ 29 2. Elements of a Mandamus Action

¶ 30 “Mandamus is an extraordinary remedy used to compel a public officer to perform

nondiscretionary official duties.” McFatridge v. Madigan, 2013 IL 113676, ¶ 17, 989 N.E.2d 165.

To obtain a mandamus remedy, the plaintiff must establish (1) a clear right to the requested relief,

(2) a clear duty of the public officer to act, and (3) clear authority of the public officer to comply

with the order. Id.

¶ 31 3. The Illinois Emergency Management Act

¶ 32 One purpose of the Illinois Emergency Management Act is to confer certain powers

upon the Governor, in the event of a disaster, in order “[to] preserve the lives and property of the

people of this State and protect the public peace, health, and safety[.]” 20 ILCS 3305/2(a) (West

2020). “[P]ublic health emergencies” are included within the definition of a “disaster.” Id. § 4.

Upon the declaration of a disaster, for a period of 30 days, the Governor shall have the 14

emergency powers enumerated in section 7 of the Act. Id. § 7. Central to this appeal is section

-6- 7(4), which authorizes the Governor to do the following:

“take possession of, and to acquire full title or a lesser specified interest in, any

personal property as may be necessary to accomplish the objectives set forth in

Section 2 of this Act, including: airplanes, automobiles, trucks, trailers, buses, and

other vehicles; coal, oils, gasoline, and other fuels and means of propulsion;

explosives, materials, equipment, and supplies; animals and livestock; feed and

seed; food and provisions for humans and animals; clothing and bedding; and

medicines and medical and surgical supplies; and to take possession of and for a

limited period occupy and use any real estate necessary to accomplish those

objectives; but only upon the undertaking by the State to pay just compensation

therefor as in this Act provided, and then only under the following provisions:

a. The Governor *** may forthwith take possession of property for and on

behalf of the State; provided, however, that the Governor *** shall simultaneously

with the taking, deliver to the owner *** a signed statement in writing, that shall

include the name and address of the owner, the date and place of the taking,

description of the property sufficient to identify it, a statement of interest in the

property that is being so taken, and, if possible, a statement in writing, signed by

the owner, setting forth the sum that he or she is willing to accept as just

compensation for the property or use. ***

b. When the compensation to be paid for the taking or use of property or

interest therein is not or cannot be determined and paid under item [(a)] of this

paragraph (4), a petition in the name of The People of the State of Illinois shall be

promptly filed by the Director [of IEMA], which filing may be enforced by

-7- mandamus, in the circuit court of the county where the property or any part thereof

was located when initially taken or used under the provisions of this Act praying

that the amount of compensation to be paid to the person or persons interested

therein be fixed and determined. The petition shall include a description of the

property that has been taken, shall state the physical condition of the property when

taken, shall name as defendants all interested parties, shall set forth the sum of

money estimated to be just compensation for the property or interest therein taken

or used, and shall be signed by the Director. The litigation shall be handled by the

Attorney General for and on behalf of the State.” Id. § 7(4).

¶ 33 4. Statutory Construction and the Standard of Review

¶ 34 Whether plaintiffs sufficiently alleged a taking within the meaning of section 7 of

the Act presents a question of statutory construction.

¶ 35 “The fundamental rule of statutory construction is to ascertain and give effect to the

legislature’s intent.” (Internal quotation marks omitted.) People v. McChriston, 2014 IL 115310,

¶ 15, 4 N.E.3d 29. “The best way to determine the legislature’s intent is to give the statutory

language its plain and ordinary meaning.” People v. Rowell, 2020 IL App (4th) 190231, ¶ 16, 165

N.E.3d 477 (citing People v. Witherspoon, 2019 IL 123092, ¶ 21, 129 N.E.3d 1208). “Where

statutory language is clear and unambiguous, courts should apply the statute as written.” Id. (citing

People v. Eppinger, 2013 IL 114121, ¶ 21, 984 N.E.2d 475). “We may not depart from the plain

language of a statute by reading into it exceptions, limitations, or conditions that the legislature

did not express.” (Internal quotation marks omitted.) Witherspoon, 2019 IL 123092, ¶ 24.

¶ 36 This court reviews issues of statutory construction de novo. Oswald v. Hamer, 2018

IL 122203, ¶ 9, 115 N.E.3d 181.

-8- ¶ 37 B. This Case

¶ 38 Plaintiffs argue the trial court erred by dismissing their petition for mandamus

pursuant to section 2-615 because the petition alleged sufficient facts to state a cause of action.

Specifically, the petition alleged that (1) “the Governor’s actions were exercised exclusively and

solely and through the [Act],” (2) “section 7 of the [Act] provides a statutory framework for takings

and compensation,” (3) “the Governor’s actions constituted a taking pursuant to Section 7,

paragraph 4 of the [Act],” (4) “the Governor did not take any action pursuant to Section 7,

paragraph 4(a) of the [Act] regarding compensating Plaintiffs,” (5) “[where] no action is taken

under Section 7, paragraph 4(a), paragraph 4(b) provides that the Director shall file suit to

determine compensation,” and (6) “if the Director does not act pursuant to Section 7, paragraph

4(b), the Director’s action can be enforced through mandamus.”

¶ 39 Defendants respond that the trial court correctly dismissed the petition pursuant to

section 2-615 because plaintiffs “failed to allege that the Governor took possession and acquired

any interest in their property under the plain language of section 7(4).”

¶ 40 We agree with defendants that “a straightforward application of the plain terms of

section 7 of the Act requires dismissal of plaintiffs’ action.”

¶ 41 Section 7(4), by its plain language, authorizes the Governor to “take possession of”

or “acquire full title” (or some lesser specified interest in) personal property, or to “take possession

of,” occupy, or use real property, in to accomplish the objectives of the Act. (Emphases added.)

20 ILCS 3305/7(4) (West 2020). When the Governor has taken possession of personal or real

property, the Act requires the payment of “just compensation.” Id. This language contemplates the

physical acquisition of property by the Governor for use in ameliorating a statewide disaster.

¶ 42 Here, plaintiffs do not allege that the Governor took physical possession of,

-9- 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.

¶ 43 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.

¶ 44 “A fundamental principle of statutory construction is to view all provisions of a

statutory enactment as a whole.” Southern Illinoisian v. Illinois Department of Public Health, 218

Ill. 2d 390, 415, 844 N.E.2d 1, 14 (2006). “Accordingly, words and phrases should not be construed

in isolation, but must be interpreted in light of other relevant provisions of the statute.” Id.

“Generally, specific statutory provisions control over general provisions on the same subject.”

Williams v. Illinois State Scholarship Comm’n, 139 Ill. 2d 24, 57, 563 N.E.2d 465, 480 (1990).

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

- 10 - property, such as occurred here.

¶ 45 We also note that section 7(4) includes a non-exhaustive list of property of which

the Governor may take possession. This list includes tangible items such as airplanes, trucks,

livestock, and medicines. Defendants correctly note that this list does not include any intangible

interests. “Where a statute lists the things to which it refers, there is an inference that all omissions

should be understood as exclusions.” (Internal quotation marks omitted.) People v. O’Connell, 227

Ill. 2d 31, 37, 879 N.E.2d 315, 319 (2007). The application of this rule of statutory construction

supports our conclusion that section 7(4) contemplates the physical taking of physical property,

and not regulations which affect intangible business interests such as the lost revenue and cancelled

contracts plaintiffs claim here.

¶ 46 Additionally, section 7(4)(b) describes the mandamus procedure to be followed

when a taking has occurred under section 7(4). 20 ILCS 3305/7(4)(b) (West 2020). It requires that

the petition filed in circuit court to determine the amount of compensation must describe the

property that has been taken and its physical condition when taken. Id. This also indicates that

section 7(4) contemplates the physical taking of tangible property, not the regulation of physical

property or intangible business interests.

¶ 47 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

- 11 - 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.

¶ 48 We note that, like the trial court, we are 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. 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.

¶ 49 We conclude that the trial court correctly dismissed plaintiffs’ petition for a writ of

mandamus under section 2-615 of the Civil Code for failure to state a claim for mandamus relief

under section 7(4) of the Act.

¶ 50 III. CONCLUSION

¶ 51 For the reasons stated, we affirm the trial court’s judgment.

¶ 52 Affirmed.

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