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AG Raoul files notice to remove Bailey’s case to federal court

Thursday, May 21, 2020

* Jon Seidel at the Sun-Times

One day before a hearing scheduled to be held before a skeptical downstate judge that threatened his stay-at-home order, a lawyer for Gov. J.B. Pritzker on Thursday moved a lawsuit from Rep. Darren Bailey out of state court in Clay County and into federal court.

It wasn’t immediately clear what the move would mean for the court hearing on Friday before Clay County Judge Michael McHaney, who has already said “the Bill of Rights is being shredded” by the stay-at-home order. If nothing else, it could delay a ruling. Tom DeVore, Bailey’s attorney, told the Chicago Sun-Times Thursday it is a “stall tactic.”

“The governor’s trying to buy time,” said DeVore, who added that there are “zero federal issues raised” in Bailey’s lawsuit.

Legal experts told the Sun-Times parties can move cases from state court to federal court if there is a constitutional issue at play, but opposing parties can fight the move. State lawyer Thomas Verticchio wrote in Thursday’s removal notice that Bailey’s lawsuit “seeks redress for alleged deprivations of Bailey’s federal constitutional rights caused by actions taken under color of state law.” […]

A state court judge in Sangamon County also on Tuesday denied a request for a temporary restraining order against Pritzker sought by a running store. That case had been moved to Sangamon County from Peoria County.

* From the AG’s notice of removal filed in federal court

Federal courts have long exercised jurisdiction over challenges to allegedly ultra vires state quarantine orders. See, e.g., Compagnie Francaise de Navigation a Vapeur v. State Bd. of Health, 186 U.S. 380, 386, 393-94 (1902) (exercising appellate jurisdiction based on due process protections in the Fomieenth Amendment over challenge to allegedly ultra vires state quarantine order). This Court has original jurisdiction in this case because Bailey challenges an allegedly ultra vires quarantine order that he alleges has deprived him of his liberty interest without the procedural due process to which he is entitled under the Fourteenth Amendment.

Second, Bailey seeks to redress an alleged violation ofhis right to free exercise of religion. (See, e.g., Am. Comp!., Ex. A, ii 71, seeking redress for Governor’s alleged actions “preventing Bailey from attending worship services.”) The freedom of religion that Bailey alleges to have been violated, and for which Bailey seeks redress, is secured by the United States Constitution. See U.S. Const. amend. I; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). The First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, forbids the Governor, in his official capacity, from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S. Const. amend. I.

Third, Bailey seeks to redress an alleged violation of his right to freedom of travel. (See, e.g., Am. Comp!., Ex. A, ifif 105-110, seeking redress for Governor’s alleged actions “restrict[ing] … citizen’s movement.”) The freedom to travel that Bailey alleges to have been violated, and for which Bailey seeks redress, is secured by the United States Constitution. See Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 901-02 (1986) (”Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”) (internal citations and quotation marks omitted) (collecting cases).

Fourth, Bailey seeks to redress an alleged violation of Article IV, Section 4 of the United States Constitution, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Bailey’s complaint alleges that the Governor, through the disaster proclamations and executive orders that Bailey seeks to void, has seized “unilateral control over the movement and livelihood of eve1y citizen in the State. The legislative branch during this period of executive rule under the emergency powers has been rendered meaningless.” (See, e.g., Am. Comp!., Ex. A, ifif 84-85.) In other words, Bailey alleges that the Governor’s actions have transformed the state government of Illinois to such a degree that Illinois no longer enjoys the “Republican Form of Government” guaranteed by the United States Constitution. U.S. Const. art. IV, § 4.

Because Bailey’s action seeks redress for alleged deprivation of at least four rights secured by the United States Constitution, this Court has original jurisdiction over Bailey’s action under 28 U.S.C. § 1343(a)(3), and removal is proper under 28 U.S.C. § 1441(a) and§ 1446.

…Adding… From the AG’s office…

The Attorney General’s office will continue to defend the governor’s constitutional and statutory right to act to protect the health and safety of all Illinois residents.

The law gives a defendant the right to remove a case to federal court when a plaintiff files a complaint in state court alleging a violation of rights that are enshrined the U.S. Constitution, and we have done so in several other cases challenging the governor’s executive orders. Because Mr. Bailey’s amended complaint alleges violations of his federal constitutional rights, we removed his case to the U.S. District Court for the Southern District of Illinois.

The AG’s office also sent a copy of the Sangamon County judicial opinion. Click here.

- Posted by Rich Miller        

42 Comments »
  1. - SAP - Thursday, May 21, 20 @ 11:09 am:

    Not sure how an allegation that the Bill of Rights is being shredded would not raise Constitutional issues.


  2. - Skeptic - Thursday, May 21, 20 @ 11:14 am:

    What SAP said.


  3. - TheInvisibleMan - Thursday, May 21, 20 @ 11:15 am:

    === it is a “stall tactic”.===

    Well this guy would know all about stall tactics. The case mentioned about the store in peoria that was moved to sangamon county was filed after the bailey case, and already has a resolution.

    This real estate lawyer has had his 15 minutes.

    Baliey will be a footnote to Illinois politics in much the same way Indiana has a legislator that is known for trying to define pi to be equal to 3.


  4. - Ron Burgundy - Thursday, May 21, 20 @ 11:16 am:

    Agree with prior comments. Last I checked the Bill of Rights was in the Constitution.

    Further, removal to federal court (or at least an attempt to do it) is a right of litigants, and when proper, is designed to protect them against the precise type of state court “home cooking” it looks like we were seeing here.


  5. - Downstate - Thursday, May 21, 20 @ 11:21 am:

    It seems clear that the Governor only has 30 days of emergency power via the rule of law. Anything beyond that requires legislative approval.
    (which he seems disinclined to secure).

    JB has now doubled down by threatening state licensing for anyone that violates his executive order, even though the licensees have not violated anything other than an executive order - which is now well past the 30 day timeframe.

    Would the legislature have tolerated Rauner issuing an executive order that temporarily closed businesses with the threat of permanent closure?

    We have 3 branches of government for a reason, but seemed to have abdicated all power to one branch without question.


  6. - Huh? - Thursday, May 21, 20 @ 11:23 am:

    Here endth the lesson. (mic drop)


  7. - Miso - Thursday, May 21, 20 @ 11:23 am:

    “We have 3 branches of government for a reason, but seemed to have abdicated all power to one branch without question.”

    So you agree with removal. Bravo.


  8. - Ron Burgundy - Thursday, May 21, 20 @ 11:24 am:

    -It seems clear that the Governor only has 30 days of emergency power via the rule of law. Anything beyond that requires legislative approval.-

    It’s absolutely not clear until a high court says it is.


  9. - Chicago Cynic - Thursday, May 21, 20 @ 11:28 am:

    “ It seems clear that the Governor only has 30 days of emergency power via the rule of law. Anything beyond that requires legislative approval.”

    Why? Because an elected local judge made his biases clear in open court? Yea, that’s not how this works.


  10. - Huh? - Thursday, May 21, 20 @ 11:29 am:

    “It seems clear that the Governor only has 30 days of emergency power via the rule of law per disaster declaration.”

    Fixed it for you. BTW, the Governor has declared several disasters and therefore by extension can continue his emergency executive orders.


  11. - Jibba - Thursday, May 21, 20 @ 11:29 am:

    Wouldn’t JB rather have this end up at the ILSC rather than the Supreme Court?


  12. - Keyrock - Thursday, May 21, 20 @ 11:29 am:

    And removal deprives the state court of jurisdiction over the case. So no hearing tomorrow.


  13. - Holding Back - Thursday, May 21, 20 @ 11:30 am:

    I guess the party was cancelled?


  14. - Temp Expat - Thursday, May 21, 20 @ 11:33 am:

    Removal is a perfectly proper legal action under the circumstances. Once Bailey implicated federal constitutional claims, removal is permissible and non-appealable. Bailey should have hired a better lawyer.


  15. - Downstate - Thursday, May 21, 20 @ 11:39 am:

    From the Illinois State Statute:

    (20 ILCS 3305/7) (from Ch. 127, par. 1057)
    Sec. 7. Emergency Powers of the Governor. In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days…


  16. - Buford - Thursday, May 21, 20 @ 11:42 am:

    I view this as a stall move by Raoul. If only the crime fighters in AG Kwame Raoul’s office spent as much time overseeing local governments violating the basic concept of democracy 101 by holding secret meetings during the cover of the COVID crisis, like the Whiteside county board on Tuesday, March 24. But then what can you expect, Raoul’s campaign HQ was inside the Chicago district office of Senate President John Cullerton. No one wanted a real guardian of the Constitution in the state of Illinois.


  17. - gfalkes - Thursday, May 21, 20 @ 11:42 am:

    @downstate
    it is so clear that the Governor’s authority to enforce his order’s beyond 30 days from his initial disaster declaration, that 3 judges (1 state and two federal) and a 7th circuit court of appeals panel of 3 have rejected that argument.


  18. - bowwow - Thursday, May 21, 20 @ 11:45 am:

    I agree with Jibba. A state decision would have gone to the Illinois Supreme Court that may be more inclined to support the Gov. AG Barr has made it pretty clear the pandemic does not override constitutional rights. The lockdown order is statewide but many counties in Illinois have few if any cases. So, using a strict scrutiny standard, the order may be struck down as overbroad, regardless of the 30 day issue.


  19. - Bigtwich - Thursday, May 21, 20 @ 11:46 am:

    ==It seems clear that the Governor only has 30 days of emergency power via the rule of law. Anything beyond that requires legislative approval.==

    Please read Judge Grischow”s opinion in the Sangamon County case.


  20. - Ron Burgundy - Thursday, May 21, 20 @ 11:47 am:

    Illinois is not Wisconsin, sorry folks. Even if, hypothetically a high court were to find that emergency declarations are not renewable as it stands, the GA and the Governor could rewrite that statute immediately to extend them for as long as they want. Unless you have 60 votes, 30 votes and the Governor’s pen this 30 day argument is academic.


  21. - Amalia - Thursday, May 21, 20 @ 11:54 am:

    so it can go to the USSC faster?


  22. - Huh? - Thursday, May 21, 20 @ 11:56 am:

    Downstate- Where in the statute that only 1 disaster proclamation is allowed?

    There have been multiple disaster proclamations. Therefore, for each proclamation a 30 day period emergency powers is allowed.

    This has been hashed out several times on this blog. Drop it.


  23. - JS Mill - Thursday, May 21, 20 @ 12:04 pm:

    =It seems clear that the Governor only has 30 days of emergency power via the rule of law. Anything beyond that requires legislative approval.
    (which he seems disinclined to secure).=

    Is “seems” a legal term from your law school?

    If he declares a new emergency then it moot. A new declaration is exactly that.

    =JB has now doubled down by threatening state licensing for anyone that violates his executive order, even though the licensees have not violated anything other than an executive order - which is now well past the 30 day timeframe.=

    Again, reading is fundamental, and if people or businesses violate the order why wouldn’t they be subject to consequences? Because you don’t like it? So now sheriff’s and judges can capriciously enforce the law? And where does that end?

    =Would the legislature have tolerated Rauner issuing an executive order that temporarily closed businesses with the threat of permanent closure?=

    If people break the law that is what can happen. In Rauner’s case he left a business in operation that was poisoning people.

    There is that.

    =We have 3 branches of government for a reason, but seemed to have abdicated all power to one branch without question.=

    Seems they are in session and operating so your “without question” comment is…questionable.

    The Illinois Constitution makes the governor one of the most powerful state executives in the country. The “co-equal” concert in Illinois is not Constitutionally accurate.


  24. - Unstable Genius - Thursday, May 21, 20 @ 1:10 pm:

    Downstate - King (er, I mean Governor) JB “Ritchie Rich” Pritzker gets an infinite number of emergency extensions. As an Illinois “subject”(I mean citizen), you are not allowed to question his authority to shut down businesses for as long as he wants. Your so called right to use of your property means nothing. I suggest that you apologize to the King (er, I mean Governor.)


  25. - Downstate - Thursday, May 21, 20 @ 1:13 pm:

    Huh?
    “Where in the statute that only 1 disaster proclamation is allowed? There have been multiple disaster proclamations. Therefore, for each proclamation a 30 day period emergency powers is allowed. This has been hashed out several times on this blog. Drop it.”

    Sorry, I haven’t been able to be on the blog during those discussions. In reading the statute, the terms “not to exceed 30 days” and “a disaster” are the pertinent terms.

    “Not to exceed” is firm language that would specifically prohibit actions beyond the stated time period.

    Also, the term “a disaster” infers that a single disaster cannot be used for more than one 30 day period. That would require the Governor to argue that his executive order in March was for a different disaster than for an executive order covering the current time period. Hence, he can’t state he “extending” his order for the same reason. Clearly, via the language of the statute he would have to identify a new disaster to start the 30 day clock anew.

    Also, the fact that the statute doesn’t contain language allowing for an “extension” or “renewal” of the emergency order puts a strong exclamation point on the “not to exceed” language.


  26. - Oswego Willy - Thursday, May 21, 20 @ 1:14 pm:

    ===apologize to the King===

    Take off your mask for a moment before you hyperventilate and pass out.

    To the post,

    === The law gives a defendant the right to remove a case to federal court when a plaintiff files a complaint in state court alleging a violation of rights that are enshrined the U.S. Constitution, and we have done so in several other cases challenging the governor’s executive orders.===

    Sometimes it’s about venue, sometimes it’s about trying to figure out which venue is best.

    Sometimes… they might even be the same.


  27. - CJ - Thursday, May 21, 20 @ 1:14 pm:

    I haven’t read the text of Bailey’s suit to see which Constitution is referenced, but there is a Bill of Rights present in the IL Constitution similar to the Federal Constitution. It seems to me an argument of personal rights could potentially be a state or federal issue. So the issue is not automatically a federal one just because it is addressing the Bill of Rights. We have a Bill of Rights under state law which would make it a state issue.


  28. - @misterjayem - Thursday, May 21, 20 @ 1:19 pm:

    “Also, the term ‘a disaster’ infers that a single disaster cannot be used for more than one 30 day period.”

    That’s not what “infers” means. You’re thinking of “implies.”

    But please, don’t let me interrupt your expert analysis of the statutory language.

    – MrJM


  29. - Downstate - Thursday, May 21, 20 @ 1:23 pm:

    MrJM,
    You are correct. “implies” would have been a better word choice in that sentence.


  30. - Pundent - Thursday, May 21, 20 @ 1:27 pm:

    =Also, the term “a disaster” infers that a single disaster cannot be used for more than one 30 day period.=

    When the legislature drafted the law they could have chosen to be explicit. They hold that power and chose not to exercise it. Perhaps the court agrees with your interpretation or maybe they don’t. But there’s no compelling reason for the legislature to do anything until, and if, the court requires.


  31. - Anyone Remember - Thursday, May 21, 20 @ 1:40 pm:

    Buford. “If only the crime fighters in AG Kwame Raoul’s office spent as much time overseeing local governments violating the basic concept of democracy 101 by holding secret meetings during the cover of the COVID crisis, like the Whiteside county board on Tuesday, March 24.”

    [Serious font on] There are over 7,000 units of local government in Illinois. How many lawyers, historically and currently, does the Illinois Attorney General have? [Serious font off, sarcasm font on] Undocumented charge a small unit of government is violating the Open Meetings Act? Take it to the Edgar County Watchdogs. [Sarcasm Font Off]


  32. - Downstate - Thursday, May 21, 20 @ 2:00 pm:

    “Perhaps the court agrees with your interpretation or maybe they don’t. But there’s no compelling reason for the legislature to do anything until, and if, the court requires.”

    I agree. Other than the fact that the legislature could end much of the litigation on the matter.


  33. - Huh? - Thursday, May 21, 20 @ 2:27 pm:

    Where in the statute does it say that a disaster (of what ever type, flooding, infectious disease, tornado, etc) is limited to a maximum of 30 days? Many governors have made numerous disaster declarations for the same event.

    You are parsing the statute to make your specious argument.


  34. - Pundent - Thursday, May 21, 20 @ 2:27 pm:

    Like all things there’s a legal and political calculus on taking action or not doing so. We’ll see how it plays out.


  35. - don the legend - Thursday, May 21, 20 @ 2:58 pm:

    ==You are correct. “implies” would have been a better word choice in that sentence.==

    Would have been a better word choice?? Implies is the correct word choice. Words have meaning.


  36. - Huh? - Thursday, May 21, 20 @ 3:14 pm:

    “Other than the fact that the legislature could end much of the litigation on the matter.”

    Until the next beetle files a lawsuit.


  37. - Downstate - Thursday, May 21, 20 @ 3:14 pm:

    Huh?,
    “Where in the statute does it say that a disaster ….is limited to a maximum of 30 days?”

    The statute specifically states, “not to exceed 30 days”. There are numerous other time frames in the specific statute which delineates the number of days for various actions to take place, including:
    “..in excess of 7 days..”, “..until 10 days..”, “..within 20 days..”.

    So the “limited to 30 days” language seems pretty specific as to the length of the time for the order. By that, I mean that time frames for various actions were specifically identified even within this individual statute.

    Thus, the question becomes, are these multiple executive orders for one disaster or several.

    As to other governors “making numerous disaster declarations”, do they operate under similar statutory restrictions as Illinois? (Would mind sharing which states you are referring to?)

    Thanks.


  38. - Downstate - Thursday, May 21, 20 @ 3:45 pm:

    Huh?,
    “Many governors have made numerous disaster declarations for the same event.”

    Can you share which states you are referring to. I checked California Law, and Governor Newsom has nearly unchecked powers in declaring a state of emergency. By comparison, NY allows Governor Cuomo to declare a “disaster”. And he can operate under that for at least 6 months.


  39. - Huh? - Thursday, May 21, 20 @ 3:48 pm:

    “20 ILCS 3305/4 Sec. 4. Definitions. …
    “Disaster” As used in this Act, unless the context clearly indicates otherwise, the following words and terms have the meanings ascribed to them in this Section:

    “Disaster” means an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism. …”

    Where in Section 4 does it say that a disaster is limited to a 30 day period? As a matter of fact, the only place where the number “30″ appears in the text of the statute is in the statute number “20 ILCS 3305/4″

    Section 7 states “… Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days …”

    There is nothing in the statute that says the Governor is limited to a single proclamation per disaster.

    “Governor may, by proclamation declare that a disaster exists.” Governor Pritzker has made several proclamations stating the covid19 pandemic is a natural disaster. As such, under the statute, his emergency powers are being exercised for the duration of the disaster declaration, 30 days.

    To be even more blunt, there are only two phrases in the entire (20 ILCS 3305/) Illinois Emergency Management Agency Act that mention a 30-day period. These are found in Section 7 (20 ILCS 3305/7) and discuss the 30-day period for the governor’s emergency powers. However, as previously stated, there is nothing in the statute that limits the governor to a single proclamation per individual disaster.

    As previously stated, this argument has been rehashed several times before in this blog. Get over your specious argument.


  40. - Demoralized - Thursday, May 21, 20 @ 4:43 pm:

    Downstate:

    I’m not sure if he meant many Governor’s, as in Governor’s from other states. I can tell you that other Governor’s in Illinois have issued multiple disaster declarations for the same event. It’s been done for floods.


  41. - Huh? - Thursday, May 21, 20 @ 4:52 pm:

    What demoralized said. Thank you.


  42. - RNUG - Thursday, May 21, 20 @ 7:15 pm:

    As I said the other day, you can argue both ways. Given the ability of the GA to override EO’s and the lack of action by the GA, specifically now with the GA in session, I think a judge would infer the GA is in concurrence with the Governor’s actions.

    You could also reasonably infer that the GA is politically avoiding any blame by not interfering with the Governor’s EO’s.


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