Illinois Gov. JB Pritzker has fired back at a southern Illinois state lawmaker and the U.S. Justice Department in the dispute over whether a lawsuit challenging his authority to lockdown the state in response to COVID-19 belongs in federal court or in a southern Illinois county courthouse, though it did not address accusations Pritzker was "forum shopping" for a sympathetic judge.
On June 5, the Illinois Attorney General’s office filed a brief on Pritzker’s behalf in federal court in East St. Louis. The brief argued the lawsuit filed by State Rep. Darren Bailey (R-Xenia) belongs in federal court, and not before a judge in Clay County, who has twice ruled against Pritzker in the case or a similar question already.
U.S. Attorney Steven Weinhoeft
However, the governor said Bailey’s lawsuit also centers on his claims Pritzker’s actions under that law have infringed on Bailey’s constitutional freedoms, as well as those of people throughout Illinois.
That, the governor said, means Bailey’s lawsuit belongs squarely in federal court.
“The question here is not whether Bailey overtly asserted a federal claim giving rise to ‘federal question’ jurisdiction…,” the Attorney General’s office wrote. “He has not. The question is whether Bailey’s state law claims seek redress for violations under color of state law of rights protected by the U.S. Constitution.
“That he has plainly done in a manner that triggers federal jurisdiction…”
The legal fight between Bailey and Pritzker has raged on for more than a month.
Bailey first filed suit in early May, asserting Pritzker had overstepped his authority under Illinois state law. Specifically, Bailey argued the Illinois Emergency Management Agency Act only gave Pritzker 30 days following the declaration of a disaster to exercise broad, sweeping emergency powers to address the emergency.
Bailey and others have argued the governor must secure explicit approval from the Illinois General Assembly to continue governing the state by executive orders once that 30-day period has expired.
Pritzker and Illinois Attorney General Kwame Raoul, however, have argued the law actually gives Pritzker the power to exercise emergency powers for as long as believes he needs to, provided he re-declares a disaster every 30 days.
Pritzker initially declared a statewide disaster in early March. He has reissued that declaration each month since.
In early May, however, Pritzker extended a so-called stay at home order, which divided activities and organizations throughout the state into the category of essential and non-essential. The order, which had been put in place in late March, essentially ground most economic activity across the state to a halt for more than two months, closing thousands of businesses and putting hundreds of thousands of Illinoisans out of work.
When the governor announced his intent to extend that order through the end of May, Bailey sued, contending the governor’s actions were illegal and trampled his rights. Bailey did not sue on behalf of everyone throughout the state.
In the weeks that have followed, others have also sued Pritzker in a mounting front of legal challenges from churches, businesses and individuals.
To date, all courts but one have upheld the governor’s authority – that of Judge Michael McHaney in Clay County.
McHaney granted Bailey a restraining order, blocking Pritzker from enforcing his lockdown order against Bailey, individually. Following that ruling, Pritzker publicly criticized the judge, and appealed.
After Pritzker appealed, Bailey voluntarily surrendered that restraining order, saying he did not want the case decided amid appellate arguments over the restraining order.
Bailey later amended his complaint, adding further documentation and claims, including an opinion filed in 2001 by then-Illinois Attorney General Jim Ryan, which indicated a belief that Bailey’s interpretation of the law, and the 30-day limit on the governor’s powers is correct.
Bailey moved for summary judgment, which would end the matter at the county court level and set up further appeals in the Illinois state court system.
A day before that hearing, however, and without ever replying to Bailey’s summary judgment filings, Raoul removed the case to federal court. He asserted Bailey’s lawsuit should be considered a federal claim, because he is claiming Pritzker’s orders violate constitutional rights.
Bailey’s lawyer, Tom DeVore, responded by asking the case be immediately sent back to Clay County. They argued Pritzker is merely stalling and is “forum shopping” in search of a judge to rule in his favor.
The dispute drew a filing from the Justice Department, which also argued Bailey is correct. U.S. Attorney Stephen Weinhoeft said Bailey’s lawsuit is centered entirely on a dispute over state law, and implicates constitutional claims indirectly.
Weinhoeft said neither the state law nor the Illinois state constitution give Pritzker the powers he has claimed amid the pandemic.
Pritzker and Raoul followed the Justice Department filing with their response, in which they asserted the U.S. Attorney and Bailey are both wrong.
Pritzker did not respond to Bailey's accusations concerning forum shopping.
Rather, they centered their response on arguments over whether Bailey's lawsuit implicates the Constitution, and under what federal law the governor is allowed to take the case to federal court.
Raoul said two different federal laws allow participants to land an action in federal court. In this case, the attorney general said, they are seeking to keep the case in the U.S. District Court for the Southern District of Illinois under a law enacted in the wake of the Civil War, tailored specifically to allow people to sue over violations of their constitutional rights and escape hostile and discriminatory state courts.
They said Bailey and the Justice Department, instead, have centered their arguments over a different, more commonly used federal statute governing how lawsuits can be moved from state court to federal court.
In this instance, they said, Judge McHaney in his rulings and Bailey in his lawsuit have both raised constitutional questions over the impacts of Pritzker’s orders.
Neither Bailey nor the Justice Department have yet replied to Pritzker’s new filing.