A state representative’s lawsuit against the governor’s stay-at-home orders seeks to address violations under the U.S. Constitution and belongs in federal court, Illinois Attorney General Kwame Y. Raoul argued in a motion filed Friday.
Raoul asks U.S. Magistrate Judge Gilbert C. Sison in East St. Louis to deny the request from state Rep. Darren Bailey (R-Xenia) to remand his lawsuit to the Illinois 4th Judicial Circuit Court.
Bailey filed his initial lawsuit against the governor in Clay County in late April before the state removed the case to the U.S. District Court for the Southern District of Illinois.
The 21-page motion from Gov. J.B. Pritzker’s lawyers also responds to opposing arguments from attorneys at the U.S. Department of Justice’s Civil Rights Division, which intervened in this case with a statement of interest last month.
The DOJ, in the May 22 filing, supports the claim in Bailey’s lawsuit that his case belongs in state court because he only asserts violations of state law.
The DOJ also affirmed Bailey’s claim that Pritzker’s successive disaster proclamations exceeded the governor’s executive authority under Illinois law.
In his motion, Raoul contends the arguments put forth by the DOJ and Bailey are misplaced and irrelevant because they address removal to federal court under 28 U.S. Code section 1331, or federal question, instead of section 1343(a)(3), or civil rights and elective franchise.
While section 1331 covers only claims that “arise under” federal law, “Section 1343(a)(3) jurisdiction encompasses actions (such as that brought by Bailey) seeking redress for alleged deprivations of constitutional rights under color of state law,” the AG’s motion states.
“Accordingly, and consistent with the plain language of Section 1343(a)(3), Bailey’s state law claims are subject to the original jurisdiction of the Court because they were ‘commenced’ to ‘redress the deprivation of’ at least four rights secured by the U.S. Constitution (Bailey’s liberty interest, right to travel, right to worship, and right to a republican form of government).”
Raoul argues neither the DOJ nor Bailey meaningfully address the governor’s claims to section 1343(a)(3) jurisdiction.
“The question here is not whether Bailey overtly asserted a federal claim giving rise to ‘federal question’ jurisdiction under 28 U.S.C. § 1331. 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 under Section 1343(a)(3),” according to Raoul’s June 5 motion.
Thomas G. DeVore, a partner with Silver Lake Group Ltd. in Greenville, is one of Bailey’s attorneys. He did not respond to a request for comment.
The federal case in the Southern District of Illinois is Darren Bailey v. Jay Robert Pritzker No. 20 C 474.