Update: Details were added and a clarification was made to the judge’s ruling.
LOUISVILLE, Ill. — One day after a judge kept state Rep. Darren Bailey’s lawsuit over the stay-at-home order in the lawmaker’s home county, Bailey celebrated the favorable ruling before a crowd of protesters outside the statehouse Saturday.
At the “Reopen Illinois” rally, Bailey, R-Xenia, pledged he would not wear a mask when lawmakers return to the capital this week – defying Gov. J.B. Pritzker’s May 1 executive order requiring face coverings where social distancing is difficult.
The tension between the Republican southern Illinois lawmaker and the Democratic governor was on full display in the Clay County courtroom Friday, where neither the judge nor courtroom deputies abided by the face covering requirement while the assistant attorney general representing the state wore a mask.
Fourth Judicial Circuit Judge Michael D. McHaney denied the Illinois Attorney General’s motion to relocate Bailey’s lawsuit to Springfield. Bailey’s complaint alleges the governor lacks the authority under state law to issue successive disaster proclamations beyond 30 days.
Assistant Chief Deputy Attorney General Thomas J. Verticchio, argued Bailey’s suit should be removed from Clay to Sangamon County where a similar case was recently transferred on forum non conveniens grounds.
That case, Running Central v. Pritzker, was initially filed in the 10th Judicial Circuit Court in Peoria.
“The exact same situation exists here,” Verticchio said. “That was three days ago, with the same facts, same legal issues, same statewide issue touching every resident in the state of Illinois.”
McHaney noted that other lawsuits against the state over Pritzker’s executive order are “whisked to federal court” when they invoke issues of federally protected due process.
He referenced a 2002 Illinois Supreme Court case, First American Bank v. Guerine, which clarified the standard judges should follow when considering a forum non conveniens request to move a case from the plaintiff’s preferred venue.
In that ruling, the justices said one of their concerns was “curtailing forum shopping by plaintiffs.” Judges must give more weight to the plaintiff’s choice of venue unless the defendant can show that forum is inconvenient to the defendant and that another forum is more convenient to all the parties.
McHaney said the concern of forum shopping also applies to defendants.
“Now, I’m not accusing you, defense, of judge-shopping, but if it walks like a duck and quacks like a duck…” McHaney said in court Friday.
McHaney declined to follow the course taken by 10th Judicial Circuit Associate Judge Derek Asbury, who ordered the Running Central case moved to Sangamon County on May 12.
“Judge Asbury may be the greatest judge who walked the earth, but he ain’t got no authority over me,” McHaney said.
Verticchio argued the relevant materials and documents, as well as the state officials who would likely testify, can be most easily accessed in Sangamon County.
McHaney rejected that argument, citing the 2013 1st District Appellate Court ruling in Taylor v. Lemans Corp., 2013 IL App (1st) 130033 and the 1958 Illinois Supreme Court case Cotton v. Louisville & Nashville R.R. Co.
Under Taylor and Cotton, a party requesting transfer based on forum non conveniens grounds must provide greater detail beyond simply mentioning access to witnesses and documents.
McHaney granted Verticchio’s request for 14 days to respond to the amended complaint. But he denied Verticchio’s request for 10 days to respond to the motion for summary judgment.
Thomas G. DeVore, Bailey’s attorney, said he plans to file a motion for summary judgment by Monday.
The state’s response is due on May 21.
McHaney set the next hearing for May 22 at 1 p.m. in the Louisville courtroom.
The case in the 4th Judicial Circuit Court is Darren Bailey v. Jay Robert Pritzker, 20 CH 6.