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AG’s office sends Rep. Bailey’s lawsuit to federal court
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AG’s office sends Rep. Bailey’s lawsuit to federal court

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State Reps. Darren Bailey (left), R-Xenia, and David McSweeney, R-Barrington Hills, walk to their desks on the floor of the Bank of Springfield Center during Thursday's legislative session. Bailey was wearing a face covering Thursday after refusing to do so and being voted out of the arena by fellow representatives. Bailey's lawsuit challenging Gov. JB Pritzker's emergency orders was moved Thursday by the attorney general's office from Clay County Court to federal court. 

SPRINGFIELD — The attorney general’s office has moved a state representative’s lawsuit challenging Gov. J.B. Pritzker’s use of emergency powers to federal court because it says his case alleges violations of federal rights.

Hours before the state was due to respond to Rep. Darren Bailey’s request for Clay County Circuit Court Judge Michael McHaney to rule on his case, the attorney general’s office changed the venue with a filing Thursday. A hearing on the request from Bailey, R-Xenia, was scheduled for Friday.

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Thomas Verticchio, senior attorney general, wrote in the office’s notice that Bailey alleged his rights to religion, due process, interstate travel and “a Republican form of government” were infringed by Pritzker’s stay-at-home orders and disaster proclamations. Those rights are guaranteed by the U.S. Constitution, and thus issues to be raised in 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 (in) the U.S. Constitution, and we have done so in several other cases challenging the governor’s executive orders,” an office spokesperson wrote in a statement. “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.”

Thomas DeVore, one of Bailey’s attorneys, said the state’s jurisdiction change amounts to a “delay tactic.” His colleague, Steven Wallace, wrote it was an effort to “dodge what [Pritzker] clearly anticipated would be an adverse decision in the circuit court.”

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McHaney previously released Bailey from the governor’s stay-at-home order, and when the attorney general’s office requested the case be moved to Sangamon County last week, DeVore suggested it was “judge shopping.”

The real question in the lawsuit, Wallace said in his response, is whether Pritzker has the authority under Illinois statute to take the actions he has. That “has no bearing on federal interest.”

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Verticchio’s motion has four facets.

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First, the state wrote, because Bailey alleges the governor does not have continuing powers to restrict residents’ movement or shutter businesses, he is claiming Pritzker violated his right to liberty. And the representative’s claim that the procedures outlined in the Illinois Department of Public Health Act for quarantining citizens and closing stores were not followed amounts to an allegation that his right to due process was also violated.

Bailey’s argument that the social restrictions implemented to combat COVID-19 are “preventing” him from attending church is equivalent to an allegation Pritzker violated his First Amendment freedom of religion, Verticchio wrote. He added the representative’s claim he is confined by the stay-at-home order is Bailey’s assertion his constitutional right to travel was breached.

And fourth, “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 U.S. Constitution,” according to the filing.

But in his response Wallace shrugged off the state’s logic as the office designing “a roadmap for a hypothetical civil rights complaint,” and called the venue shift “perhaps the most outrageous invocation of federal jurisdiction imaginable.”

A federal judge can decline the case, which would send it back to Clay County and McHaney’s courtroom. That is unlikely to happen before the hearing that remains scheduled for Friday in Clay County Court.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.

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