One day before a hearing scheduled in front of 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.
In doing so, Pritzker likely thwarted an expected legal showdown, at least temporarily. Clay County Circuit Clerk Crystal Ballard said the Friday afternoon hearing before Clay County Judge Michael McHaney would remain on the calendar, because Bailey’s legal team was expected to file an emergency motion in federal court to take the case back to state court.
But Bailey would be unlikely to prevail in time for Friday’s hearing. And without a ruling from the federal court, it’s unlikely the state court hearing could move forward.
McHaney has previously said “the Bill of Rights is being shredded” by Pritzker’s stay-at-home order. Bailey attorney Tom DeVore also told the Chicago Sun-Times the latest move by the governor is a “stall tactic.” In a written statement, DeVore also said it “could perhaps be the most (disreputable) invocation of federal jurisdiction ever seen in modern times.”
“The governor’s trying to buy time,” DeVore told the Sun-Times. He added there are “zero federal issues raised” in Bailey’s lawsuit.
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.”
Annie Thompson, senior press secretary for Illinois Attorney General Kwame Raoul, said in an emailed statement, “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.”
“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,” Thompson said.
Pritzker’s stay-at-home order has survived multiple religious challenges in federal court. The 7th U.S. Circuit Court of Appeals recently found the order “does not discriminate against religious activities.” Another church made a bid Wednesday in federal court for a temporary restraining order to allow outdoor services.
A state court judge in Sangamon County 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.
But in Clay County, McHaney has made his opposition to Pritzker’s stay-at-home order clear. He previously granted a temporary restraining order that freed Bailey — but no one else — from Pritzker’s edicts. That temporary restraining order has since been lifted at Bailey’s request.
Last week, Bailey filed a revised complaint in the case. And at a hearing that followed, McHaney said, “This case needs to be heard. I mean now.”
“I don’t need to hear two days of testimony from a medical expert that if these executive orders aren’t continued the world is going to end,” McHaney said. “I don’t need to hear that. This is a legal issue, a legal argument on whether this governor had the authority to issue this executive order under Illinois law and pursuant to the Illinois Constitution. Period. That ain’t hard.”
The judge also complained about the very tactic the governor employed Thursday — moving cases from state court to federal court. He told Verticchio, “I’m not accusing you . . . of judge shopping.”
But then he added, “If it walks like a duck and quacks like a duck.”
