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US Attorney, Illinois AG Spar On Court Venue Changes In Bailey Lawsuit

Sam Dunklau
NPR Illinois 91.9 FM
State Rep. Darren Bailey (R, Xenia) speaking to reporters outside the BoS Center on May 20. Bailey was among the first to mount a legal challenge to Gov. J.B. Pritzker's authority in state court

The U.S. Attorney for the Southern District of Illinois is arguing a lawsuit between a state representative and Gov. J.B. Pritzker should remain in circuit court, after state Attorney General Kwame Raoul's office moved the case up to the federal level.

The case was among the first filed by southern Illinois attorney Thomas DeVore on behalf of Xenia Republican Darren Bailey. Chief among his arguments has been Gov. Pritzker allegedly overstepping his exeuctive authority by issuing more than one disaster proclamation during the COVID-19 pandemic. Bailey, through DeVore, has also alleged only the state's Department of Public Health has the authority to do things like shut down businesses.

"I want to get the message of the law out there," DeVore said last month. "Let's look at what is the genesis of the authority that the Governor is trying to wield."

A Clay County judge had previously ruled in Bailey's favor, but the Republican voluntarily gave up that victory and DeVore filed a new lawsuit that is currently pending.

Not long after that, the state's legal team requested to move the new case to Sangamon County, but Judge Michael McHaney denied that ask, accusing the state of "judge shopping." 

In a court document filed last Thursday, Assistant Attorney General Thomas Verticchio said the move to federal court was necessary since "because the action seeks redress for alleged deprivations of Bailey’s federal constitutional rights caused by actions taken under color of state law." That document points to four separate rights the state representative claims have been infringed: the rights to due process, travel, religion, and a "Republican form of government," all of which are protected under the U.S. Constitution.

DeVore then filed a motion to move the case back to circuit court, and the U.S. Justice Department voiced its approval of that move in another court documentfiled before the weekend. The U.S. Attorney for the Southern District of Illinois, Steven Weinhoeft, argued Bailey makes no federal claim but rather is challenging Pritzker's authority under a state law, the Illinois Emergency Management Agency Act.

"Mere federal implications from resolution of a state law claim have never been sufficient to justify removal to a federal court," Weinhoeft wrote.

Meanwhile, attorney DeVore is handling several other lawsuits from a bar, a hair salon, and even the Edwardsville Chamber of Commerce, all of whom are challenging Pritzker's authority. Most have been moved to federal court as well, while a hearing for the Chamber of Commerce case has not yet been scheduled.

Sam is a Public Affairs Reporting intern for spring 2018, working out the NPR Illinois Statehouse bureau.
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