* 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.