SPRINGFIELD — Hours after the Illinois Attorney General removed Rep. Darren Bailey’s lawsuit to federal court, the lawmaker asked the U.S. District Court to remand the case to Clay County.
The emergency motion to remand came one day before Bailey and state lawyers representing Gov. J.B. Pritzker were scheduled to appear at the Clay County Courthouse in Louisville for a hearing on the plaintiff’s motion for summary judgment.
Bailey’s suit challenges the validity of Pritzker’s executive order that has shuttered “nonessential” businesses during the COVID-19 pandemic.
In the state’s motion filed early Thursday morning. Assistant Chief Deputy Attorney General Thomas J. Verticchio argued the case raises questions “arising under the Constitution, laws, or treaties of the United States” that give the district court jurisdiction.
Federal law provides defendants in state court the right to remove those cases to federal court if the federal court would have had original jurisdiction in the first place.
Verticchio argued Bailey’s lawsuit invokes issues of federal law because Bailey contended his “liberty interest” is infringed by the governor’s order and that the order is “preventing Bailey from attending worship services” and is violating “his right to freedom of travel.”
Pritzker deferred to the Attorney General when asked about the day’s legal maneuvers at his daily press briefing.
“It’s a legal matter. I would say I think they felt like there were federal issues at hand,” Pritzker said.
In a statement, an Attorney General spokesperson said the AG’s office “will continue to defend the governor’s constitutional and statutory right to act to protect the health and safety of all Illinois residents.”
“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,” Annie Thompson said in the statement.
Bailey disputes that characterization and alleged in Thursday’s filing that Verticchio “improperly used the notice of removal to dodge what he clearly anticipated would be an adverse decision” before 4th Judicial Circuit Judge Michael D. McHaney.
Bailey’s motion argues the pleadings in his complaint “are grounded exclusively in and predicated on the construction of Illinois statutes.”
If the lawmaker can convince a judge that the federal courts lack jurisdiction, the judge could remand the case back to the state judicial system.
“Neither the complaint nor the first amended complaint make any references to the United States Constitution or Acts of Congress,” the motion states.
At a hearing last week, McHaney denied the state’s request to change the venue to Sangamon County.
Bailey, R-Xenia, moved for summary judgment on Monday.
Silver Lake Group Ltd. attorneys Steven M. Wallace, Nicole E. Mollet and Thomas G. DeVore are representing Bailey.
The case in U.S. District Court for the Southern District of Illinois is Darren Bailey v. Jay Robert Pritzker, No. 20 C 474.