CHICAGO (CBS) — A day before a Clay County judge was scheduled to hold a hearing to rule on a state lawmaker’s lawsuit challenging Gov. JB Pritzker’s stay-at-home order, the governor has filed paperwork to move the case to federal court.
“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 attorney general’s office said in a statement.
The Illinois Attorney General’s office has filed a “notice of removal” sending Bailey’s case to U.S. District Court in the Southern District of Illinois, arguing
“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,” Assistant Chief Deputy Attorney General Thomas Verticchio wrote in the governor’s filing.
Bailey’s attorney, Thomas DeVore, accused the governor of “forum shopping” by sending the case to federal court just hours before he was due to file a briefing in Clay County.
“Mr. Bailey’s complaint raises nothing but questions of Governor Pritzker’s authority under specific Illinois statutes. The Attorney General and the Governor have taken Mr. Bailey’s complaint and contrived federal questions where no such questions remotely exist,” DeVore said in a written statement.
DeVore filed an emergency motion Thursday afternoon, seeking to have the case immediately sent back to Clay County.
“Defendant improperly used the notice of removal to dodge what he clearly anticipated would be an adverse decision in the Circuit Court, and this Court should reject his dilatory machinations,” DeVore wrote in his motion.
Devore said he trusted the case will be moved back to Clay County, where Judge Michael McHaney had been scheduled to hear arguments on Bailey’s lawsuit on Friday afternoon, and indicated he’d planned to make a final ruling the same day. The judge already had granted Bailey a temporary restraining order, exempting the lawmaker from the stay-at-home order, but it was later lifted at Bailey’s request.
Bailey, a Republican from Xenia, is challenging the Democratic governor’s authority to extend his stay-at-home order beyond the first 30 days of his original disaster proclamation. While his initial lawsuit sought only to exempt himself from the order, he has since amended that lawsuit to seek an order invalidating the governor’s stay-at-home mandate statewide.
Baley’s amended lawsuit points to a 2001 memo from then-Illinois Attorney General Jim Ryan undercuts the governor’s stance that state law allows him to issue successive proclamations for the same disaster.
Raoul’s office has argued that informal opinion was written nearly 20 years ago regarding a disease affecting livestock, and has no bearing on the current pandemic that has killed nearly 4,000 people.
McHaney has sent clear signals he’s opposed to the governor’s order.
“Every second this Executive Order is in existence, the Illinois Constitution, numerous sections of it are being violated and the Bill of Rights is being shredded,” McHaney said when he granted Bailey’s restraining order.
Last week, McHaney denied a request from the attorney general’s office to be given more time to respond to Bailey’s amended lawsuit.
“It’s not asking too much pursuant to the citizens of this state that every hour that goes by they’re being deprived of the right to leave their house or make a living; is not too much to ask this court to rule Friday,” he said.
Pritzker has successfully moved several other lawsuits challenging his stay-at-home order from state courts to federal courts, and at least two federal judges have sided with the governor in lawsuits filed by churches seeking to fully reopen. The 7th U.S. Circuit Court of Appeals also recently ruled the order ” does not discriminate against religious activities, nor does it show hostility toward religion” in denying a Chicago church’s request for an emergency injunction while it appeals its case.