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Attorney says ‘takings lawsuits’ over governor’s pandemic orders could cost taxpayers billions

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Wednesday, June 24, 2020  |  Article  |  By Greg Bishop | The Center Square

Economy (34) , Governor (44) , Health (49) , Legal System (27) , Tort Reform (27)

(The Center Square) – Gov. J.B. Pritzker’s executive order to close businesses across the state amid the COVID-19 pandemic could cost taxpayers billions of dollars in damages, according to an attorney challenging the governor’s orders.

Attorney Thomas DeVore represents dozens of people and business owners across Illinois challenging the governor’s authority to close parts of the economy to reduce the spread of COVID-19. DeVore said those cases are still alive and important.

Despite some reports that a judge in Madison County threw out a case brought forward by a business group, DeVore said what actually happened was the court denied the group a temporary restraining order. He said that was not a ruling on the merits of the case.

“There’s not been one case yet [to] take on the real underlying factual issues, putting on some testimony,” DeVore said. “I’d love nothing more to get the governor on the stand and ask his some questions … Whether we get to that or whether summary judgment is how this gets resolved I don’t know yet, but we’ll see. We’ve got to get some answers.”

He said since the legislature has failed to provide clarity on the issue, the courts must act.

“They’re very important, but ultimately the people know and I believe in my heart that the people, regardless of what court cases are going say, they already know that this was wrong,” he said. “They already know that this went too far.”

DeVore said despite the pandemic, the overarching issue is due process.

“You can’t strip property rights and liberty rights away from people without due process under any circumstance,” he said.

DeVore said he’s considering additional legal options, including a possible challenge to the state's decision to cancel the annual state fairs and a challenge to restrictions for school districts.

Pritzker has said the cases challenging his authority were examples of political grandstanding and has defended his actions as being not only lawful, but based on science and data.

Outside of the existing challenges, DeVore expects there to be thousands of other cases brought forward demanding damages be paid.

“That in and of itself should be a deterrent in the future, saying ‘wait a second, we’re going to start shutting down businesses, we need to keep in mind we’re going to have to write a big check for that,’ yeah, that’s coming and it’s coming soon,” DeVore said. “I’m working on that.”

DeVore said it was possible those costs will be borne by taxpayers.

“Hopefully that means the taxpayers will remember next time an executive officer tries to do something like this they say ‘uh-huh, we’re not playing that game,’ ” DeVore said.

A takings lawsuit filed against Michigan's governor was called a 'very steep uphill battle' by Michael McDaniel, a Western Michigan University Cooley Law School professor. He told WOOD TV under “normal circumstance,” there might be a case. “But the problem he has here... is these are not normal times,” he told the TV station. 

DeVore said the overall issue is about due process, of which he argues there’s been none.

He also said he expected the case he filed on behalf of state Rep. Darren Bailey, R-Xenia, which attorneys for the state motioned to be moved from state court to federal court will be remanded back to state court.

Pritzker scored a win in federal court after a panel of judges ruled his 10-person cap on religious gatherings was constitutional. A panel of Seventh Circuit Appellate Court judges said in an opinion in Elim Romanian Pentecostal Church and Logos Baptist Ministries v. Pritzker that the governor's crowd restriction did not run afoul of the First Amendment.