COVID Shutdowns and the Constitution

By: Michael M. Berger
– Daily Journal

Manatt Appellate Senior Counsel Michael Berger discussed a case in his latest “Takings Talk” column for Daily Journal in which a group of restaurants and gyms in California claimed that state orders closing their businesses due to concerns about the COVID-19 pandemic violated the constitution and required compensation because the closing took them for a public purpose. 

In his column, Berger explained that the opinion from 640 Tenth, LP v. Newsom stated that for a regulation to result in a “categorical” taking, it must deprive the owner of “all economically beneficial use of the property,” and this complaint did not allege a deprivation of “all” economically beneficial use. “An unused gym or restaurant is merely an empty shell of a building, not something economically beneficial or productive,” Berger stated. “Neither this court nor the others attempts to explain how that can be.” The court rejected the claims in 640 Tenth, but Berger asserted that without submitting the evidence to a jury, it is impossible for the court alone to determine if the damage done to the businesses was significant enough to have violated the constitution. “Juries should decide such issues,” he concluded. “After all, the right to a jury trial is the bulwark of American liberties.” 

Daily Journal subscribers can read the full article here

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