FAIRVIEW HEIGHTS – U.S. Attorney Steven Weinhoeft asserted national interest in state Rep. Darren Bailey’s suit for liberty on Friday, May 22.
A statement he filed in U.S. district court recommended Clay County jurisdiction, but placed him in Bailey’s corner at either court.
“Plaintiff has set forth a strong case that the orders exceed the authority granted to the governor by the Illinois legislature,” Weinhoeft wrote.
Government interest in public health “does not justify government restrictions imposed upon its citizens without legal authority,” he wrote.
He wrote that action contrary to law would likely erode public confidence in legitimate efforts to address the virus.
Governor JB Pritzker removed the suit from Clay County on May 21, claiming Bailey raised issues under the U.S. Constitution.
Bailey filed an emergency motion to remand it to Clay County, claiming he raised only the issue of Pritzker’s power under state law.
Bailey claims Pritzker’s original emergency order expired after 30 days and he signed extension orders without authority.
Magistrate Judge Gilbert Sison held a brief conference on Tuesday, May 26, and laid
out a schedule to determine jurisdiction within a month.
He directed Pritzker to respond to Bailey’s remand motion on June 5, and set a June
10 deadline for Bailey if he chooses to reply.
After that, he said, he would rule on the motion in a week or two.
He said that if either side declines consent to magistrate jurisdiction, the court will
randomly assign a district judge and the schedule might change.
He also said he would typically decide a remand motion without oral argument but a
party could move for a hearing.
According to Weinhoeft, the suit belongs in Clay County because Bailey made no federal claim.
“To be sure, resolution of the plaintiff’s claim could have implications for federal claims brought in other litigation,” Weinhoeft wrote.
“But mere federal implications from resolution of a state law claim have never been sufficient to justify removal to a federal court.”
He wrote that Bailey could have advanced constitutional claims but did not.
He wrote that paragraphs in the complaint that Pritzker cited as constitutional allegations contained no references to the Constitution at all.
“In sum, the governor may conceive of constitutional arguments against his course of action, but plaintiff has not asserted them,” he wrote.
Weinhoeft argues that the Illinois Constitution contains parallel protections for each of the federal rights Pritzker said was asserted.
It also guarantees that no one shall be deprived of life, liberty or property without due process and equal protection, as well as forever guarantees free exercise of religion, profession and worship, according to Weinhoeft’s brief.
He wrote that if Sison should decline to remand the case to Clay County, he should find that the governor exceeded his authority.
He wrote that state law affords Pritzker power to: take possession of personal property with full title or a lesser specific interest; evacuate all or part of the population from any stricken or threatened area; control ingress and egress to and from an area, movement within the area, and occupancy of premises therein and control, restrict, and regulate the use, sale, and distribution of food, feed, fuel and clothing.
“The breadth of these authorities may explain why the Illinois legislature, as a policy matter, may have included a 30 day time period,” he wrote.
“Rules that allow recreational marijuana dispensaries to operate, but not flower shops, may be a sign that state action is impermissibly arbitrary and bears no real or substantial relation to its proffered public health end.”
He wrote that Pritzker’s removal notice acknowledged numerous constitutional violations that Bailey’s complaint might implicate.
“These constitutional claims will likely be raised in other litigation,” he wrote.
Assistant U.S. attorneys James Cutchin and Peter Reed entered appearances along with Weinhoeft.