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*** UPDATED x1 *** Federal judge sends Bailey case back to Clay County

Tuesday, Jun 30, 2020

* Mike Miletich

The controversial lawsuit case between Rep. Darren Bailey (R-Xenia) and Gov. JB Pritzker has regained momentum.

Both parties have waited weeks for a decision on where the case would continue. U.S. Magistrate Judge Gilbert Sison remanded the case back to Clay County on Monday.

The Illinois Attorney General’s office wanted consideration in federal court on May 21. Bailey’s Attorney, Tom DeVore, immediately filed a motion to remand the case to Clay County.

“It is a fundamental principle of federalism that federal courts may hear only certain claims, such as those raising ‘federal questions’ or ‘arising under’ the laws of the United States,” Sison wrote. “A defendant may not remove a case to federal court unless, at the time of removal, a plaintiff’s complaint establishes that there is federal jurisdiction.”

* Bailey’s attorney won’t be awarded legal fees, however. From the opinion

In his emergency motion to remand, Bailey asks the Court to order the Governor to pay his reasonable fees and costs incurred during the period of time this action was pending in this court. […]

Bailey vigorously argues that Governor Pritzker’s decision to remove this case was frivolous and in bad faith, but the Court disagrees. The removal was timely. The face of the complaint arguably seeks to vindicate constitutional rights, like the right to travel and the right to free exercise of religion, without specifying that it refers only to rights secured by the Illinois Constitution. The Court seriously considered whether Bailey unintentionally pleaded himself into federal jurisdiction by raising a claim under the United States Constitution with this lack of specificity, and the decision in his favor was a close call. As such, the Court does not find that Governor Pritzker lacked an objectively reasonable basis for seeking removal. Thus, the Court will not award any fees under Section 1447(c).

*** UPDATE *** We apparently have a court date…


Since other county judges have ruled in favor of the EO, this likely isn’t gonna matter outside Clay County, population 13,815.

- Posted by Rich Miller        

22 Comments »
  1. - State Attorney - Tuesday, Jun 30, 20 @ 10:17 am:

    So many grandstanding attorneys are objectively bad attorneys. How on earth do you fail to specify in your complaint whether you’re relying on the IL or US constitution?


  2. - Anotherretiree - Tuesday, Jun 30, 20 @ 10:37 am:

    Covid is inexorable. It wont stop, always looking for a chink in our defense. Morgan county was stable at 34 for a long time. Now at 127. Eventually Clay County’s count of 2 will move. I wonder if having a trial and drawing press and attorneys from outside will hasten that ? If it ever finds podunk Scott County… then you’ll know we are in trouble LOL.


  3. - don the legend - Tuesday, Jun 30, 20 @ 10:41 am:

    If he can’t recover fees the what’s the use?


  4. - Give Us Barabbas - Tuesday, Jun 30, 20 @ 10:46 am:

    He doesn’t care if the case has merit, this is just harassment for the sake of “stiggin’ it”. he wants to make a big, raw, ugly public relations wound to fester in the media coverage, win or lose, and his ilk will then feed on that to try and stir up the Base of redhats and make them easier to defraud and control.

    Attacking JB, a billionaire lawyer, in court, reminds me of the guy in the Batman movie who tells Mr. Fox he’s going to “out” Bruce Wayne… and didn’t think thru his cunning plan all the way.


  5. - the Edge - Tuesday, Jun 30, 20 @ 10:48 am:

    So, its back to the appellant court and most likely the IL Supremes. The legal bills will mount and the court will uphold the Gov’s EO’s. Darn.


  6. - Birdseed - Tuesday, Jun 30, 20 @ 11:06 am:

    - Anotherretiree - Tuesday, Jun 30, 20 @ 10:37 am:

    Eventually Clay County’s count of 2 will move. I wonder if having a trial and drawing press and attorneys from outside will hasten that ? ===

    Ya’ll have been clutching pearls about Clay County since the middle of April - when the case count was 2


  7. - Back in Clay County - Tuesday, Jun 30, 20 @ 11:28 am:

    This seems like the case that will never go away. Bailey won at first, but it was only for him and his Attorney DeVore I guess didn’t know that. So Bailey had that thrown out and then filed this one where it covers everyone from the way DeVore sounded on the radio this morning.

    Seems like more politics than policy to me.


  8. - West Side the Best Side - Tuesday, Jun 30, 20 @ 11:32 am:

    Well reasoned opinion by the Magistrate Judge. And he didn’t even talk about fishing at all. Oh well, back to Clay County, sport fishing fans.


  9. - Way down yonder - Tuesday, Jun 30, 20 @ 11:38 am:

    I forgot there was a Bailey.


  10. - Duck Duck Goose - Tuesday, Jun 30, 20 @ 11:59 am:

    The fee decision was a bit of a benchslap against DeVore, implying that his legal work was clumsy to the point that nobody knew what cause of action he was actually pleading. Basically, the court had to come up with his causes of action for him.


  11. - Hard D - Tuesday, Jun 30, 20 @ 12:02 pm:

    Grandstanding attorneys how about grandstanding Mayors. The Mayor of Orland Park filed a law suit in federal court a week before stage 4 opened. Since that time 2 village employees have tested positive and he still won’t close those facilities and plans on doing a fire works show this weekend.
    Ted Slowik a award winning journalist from the Tribune reported about all the wasted money Orland is spending fighting J.B. and the state.


  12. - the Patriot - Tuesday, Jun 30, 20 @ 12:20 pm:

    Trash him if you want, but if the AG with endless resources and hundreds of attorneys cannot summarily dispose of him, perhaps there is equality in competence, or at least incompetence.


  13. - Anyone Remember - Tuesday, Jun 30, 20 @ 12:48 pm:

    “… cannot summarily dispose of him … .”
    You speaking of DeVore or McHaney?


  14. - Back to the Mountains - Tuesday, Jun 30, 20 @ 1:21 pm:

    @the Patriot, without getting into pleading standards and the general timeline for a lawsuit, the fact that Bailey–or any Plaintiff–is not summarily dismissed says nothing of the merits of the Complaint. All it says is that they’ve cleared one of many hurdles in going from the beginning to the end of the process.


  15. - Lester Holt’s Mustache - Tuesday, Jun 30, 20 @ 1:22 pm:

    Hopefully with this result we’ll finally learn more about the real victims in this case - conservative judges who lost their constitutional right to go fishing. Bailey and the rest of the republican party should be applauded for their focus on important issues like defending this downtrodden group of Americans. /s


  16. - Richard Rodriguez - Tuesday, Jun 30, 20 @ 2:11 pm:

    Federal Judge’s ruling remanding it back to Clay County means that as early as Thursday or next week at the latest the Judge will rule whether any of Pritzker’s orders are valid beyond the initial 30 emergency order. That means that Illionois will have to open up immediately. Of course the Judge’s ruling will be challenged but unless the Judge agrees to a temporary stay on his order the state will completely open up. If that happens the Governor will ask for an emergency hearing vy the Illinois Supreme Court which could easily take a few weeks or a month before they can meet on this matter. The media in Chicago have ignored this matter. They may have no choice then to cover this issue.


  17. - Rich Miller - Tuesday, Jun 30, 20 @ 2:12 pm:

    ===That means that Illionois will have to open up immediately===

    Nope. Will only apply to Clay County since other judges in other counties have ruled for the EO.

    Also, if you’re gonna cite legalese, you might wanna spell Illinois correctly. /s


  18. - LiberalLoons - Tuesday, Jun 30, 20 @ 3:08 pm:

    Here is the thing, its not about covid people. Its about the Governor violated the very law that our representatives came up with. He did so in an attempt to be the hero himself. If the department of public health thinks covid is such a risk they have unilateral authority to close businesses and impose quarantine BUT only with due process which is the hallmark of democracy. The governor did an end run around due process and that is what this is about. Also to Duck Duck Goose, I have read all of the brief’s and decisions. The federal magistrate said De Vore’s brief did not specifically cite constitutional issues though the case clearly shows of them. WHICH IS ACCURATE…..the issue is did the governor break the state law yes or no? If he did THEN in fact he did violate constitutionally protected rights. If the governor didnt violate state law, then he didnt violate your rights BECAUSE the legislature we elected gave him that power. There is no constitutional issue until the matter of violating state law is decided…..which by the way the plain language of the law says he did which is why you liberal loons are having exploding heads. I suggest everyone forget about covid and say simply this did he break the law or not? When you answer that and if your answer is yes then how can you let him get away with it? and if your answer is no, then why have any laws?


  19. - LiberalLoons - Tuesday, Jun 30, 20 @ 3:12 pm:

    Rich Miller you are incorrect if one circuit judge says unconstitutional then any rules cannot be enforced until the issue is resolved. The equal protections clause also applies if its unconstitutional for one it is for all. I am reminded of people V minis 2016…..part of the sex offender law was challenged and states attorneys as well as law enforcement could act on the law anyway but didnt in fear of it being deemed unconstitutional and having to clean up their mess. So to say it doesnt apply or would have no effect except on Clay county is like saying if a car size asteroid hits chicago, down state wont feel it.


  20. - Oswego Willy - Tuesday, Jun 30, 20 @ 3:13 pm:

    ===…and if your answer is yes then how can you let him get away with it?===

    Did the GA weigh in on the EOs? If your concern is about the law, or the EOs, why is the GA so silent?

    ===and if your answer is no, then why have any laws?===

    Dorm rooms are close until fall. Be careful making hot pockets with tin foil hats on.


  21. - Demoralized - Tuesday, Jun 30, 20 @ 4:37 pm:

    ==if one circuit judge says unconstitutional==

    Other Circuit Judges have said it is Constitutional. So, no, he’s not wrong. Don’t argue about something you clearly know nothing about.


  22. - Demoralized - Tuesday, Jun 30, 20 @ 4:55 pm:

    The beginning of the end? Only in his mind.


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