A day before the Clay County judge was set to hear arguments in state Rep. Darren Bailey’s lawsuit over the stay-at-home order in the lawmaker’s home county, the Illinois Attorney General’s office Thursday removed the case to federal court with the issue now being whether the Federal court will remand the matter back to State court.
Assistant Chief Deputy Attorney General removed the suit to “redress for alleged deprivations of Bailey’s federal constitutional rights caused by actions taken under color of state law,” according to the seven-page filing.
Removal is a process provided by federal statute, and a defendant can generally choose to remove a case from state court if the case could have been filed in federal court from the start. Once a case is removed, the state court no longer has jurisdiction.
Citing Bailey’s amended complaint, the AG pointed out that the lawsuit claims the stay-at-home orders violated four constitutional rights, including free exercise of religion, procedural due process, interstate travel, and a republican form of state government.
On May 15, the Illinois 4th Judicial Circuit Judge Michael D. McHaney had denied the State’s motion to relocate Bailey’s lawsuit to Sangamon County. In removing the case to Federal court, Gov. Pritzker delayed the expected legal throw-down over this issue for the State of Illinois. The Friday afternoon hearing remains on the Circuit Court’s calendar anticipating the emergency motion that has been filed seeking to remand the case back to State Court. But Bailey will be unlikely to prevail in time for the Friday, May 22, 2020 hearing.n The argument the law maker will make is that the Federal courts lack jurisdiction and the motion states states, “Neither the complaint nor the first amended complaint make any references to the United States Constitution or Acts of Congress.”
If the Federal court does not remand the matter, the State Court will not have jurisdiction to proceed. According to the Press Secretary for the AG:
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.
The federal case in the Southern District of Illinois is Darren Bailey v. Jay Robert Pritzker, No. 20 C 474. Governor Pritzker’s stay-at-home order has thus far survived several religious challenges in the 7th Circuit Court of appeals.