Case 3:20-cv-00474-GCS Document 1 Filed 05/21/20 Page 1 of 7 Page ID #1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARREN BAILEY,

Plaintiff,

v.

No. 3:20-cv-00474

GOVERNOR JB PRITZKER, in his official capacity,

Defendant.

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that Defendant Governor JB Pritzker (“Governor”) hereby

removes this action to this Court pursuant to 28 U.S.C. § 1446 and 28 U.S.C. 1343(a)(3), because

the action seeks to redress an alleged deprivation of Plaintiff Darren Bailey’s rights secured by the

Constitution of the United States, including his First Amendment right to free exercise of religion,

his Fourteenth Amendment right to procedural due process, his right to interstate travel, and the

right to a Republican Form of Government conferred by Article IV, Section 4 of the United States

Constitution.

1. On April 23, 2020, Plaintiff Darren Bailey (“Bailey”) commenced an action in the

Circuit Court for the Fourth Judicial Circuit, Clay County, Illinois, captioned Darren Bailey v.

Governor Jay Robert Pritzker, in his official capacity, No. 2020 CH 6 (“State Court Action”).

Bailey served the initial complaint on the Governor on April 24, 2020. On May 15, 2020, Bailey

received leave to and filed an amended complaint, which he also served on the Governor. The

Governor is the only defendant named in the State Court Action. Accordingly, this Notice of

Removal is timely under 28 U.S.C. § 1446(b)(1) and 28 U.S.C. § 1446(b)(3), as it is filed within

Case 3:20-cv-00474-GCS Document 1 Filed 05/21/20 Page 2 of 7 Page ID #2
30 days of service of both the initial pleading and the amended pleading. See Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 350–51 (1999).
2. Pursuant to 28 U.S.C. § 1446(a), a copy of all process, pleadings, and orders served on the office of Governor J.B. Pritzker relating to this action is attached as Exhibits A–I. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being served on counsel for Bailey, and a copy, along with a Notice of Filing of the Notice of Removal, is today being filed with the Clerk of the Circuit Court of Clay County, Illinois.
3. The Governor removes this action under 28 U.S.C. § 1343(a)(3) because the action seeks redress for alleged deprivations of Bailey’s federal constitutional rights caused by actions taken under color of state law. Section 1343(a)(3) provides federal district courts with original jurisdiction over “any civil action authorized by law” brought by any person: (a) “to redress the deprivation . . . of any right, privilege or immunity secured by the Constitution of the United States” that (b) occurs “under color of any State law, statute, ordinance, regulation, custom or usage.”
4. Bailey challenges the validity of disaster proclamations and executive orders that the Governor issued in his official capacity under color of Illinois law. (Am. Compl., Counts I– III.) Bailey seeks declaratory and injunctive relief. In his amended complaint, Bailey alleges he has standing to seek this declaratory and injunctive relief because he has suffered harm caused by the Governor’s actions, including alleged harm to Bailey’s rights that are protected under the United States Constitution. (Am. Compl., ¶ 117, alleging that “An actual controversy exists between the parties in regard to the authority of Pritzker to enter and enforce those provisions of Executive Order 32 which restrict the movement and activities of persons, and the closure of businesses.”) His amended complaint makes clear that through his action for declaratory judgment
2

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and injunctive relief Bailey seeks to redress the alleged deprivation under color of Illinois law of four rights secured by the United States Constitution.
5. First, Bailey seeks to redress an alleged violation of his “liberty interest.” (See, e.g., Am. Compl., Ex. A, ¶¶ 105-107, seeking redress for Governor’s alleged “utilization of the police powers of the State” to “restrict a citizen’s movement or activities or seizing control of . . . business premises”; Temporary Restraining Order, Ex. B, ¶ 5, asserting “Plaintiff has shown he has a clearly ascertainable right in need of immediate protection, namely his liberty interest to be free from Pritzker’s executive order.”)1 The “liberty interest” that Bailey alleges to have been violated, and for which Bailey seeks redress, is secured by the United States Constitution. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315 (1982); Parham v. J.R., 442 U.S. 584, 600 (1979). The Fourteenth Amendment to the United States Constitution prohibits a “state” from “depriv[ing] any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1 (emphasis added).
6. Bailey alleges that the executive orders issued by the Governor have deprived him of his liberty interest by requiring him to quarantine himself at home. (See Am. Compl., ¶¶ 32–49, discussing quarantine procedures; ¶¶ 105-107, seeking redress for actions restricting movement; ¶ 117, same.) Bailey alleges that the Governor failed to provide him with notice before subjecting him to quarantine and failed to provide him with adequate procedures to challenge his alleged quarantine. (See Am. Compl., ¶ 41, alleging “Persons who are ordered to be isolated or quarantined or who are owners of places that are ordered to be closed and made off limits to the public, shall be given a written notice of such order.”; id. ¶ 37, asserting that “within 48 hours after issuing the
1 The Temporary Restraining Order attached hereto as Exhibit B was drafted by counsel for Bailey and was signed by Judge Michael McHaney without substantive revision. See Temporary Restraining Order, Ex. B, passim.
3

Case 3:20-cv-00474-GCS Document 1 Filed 05/21/20 Page 4 of 7 Page ID #4
order,” the State had to “obtain the consent of the person” subject to quarantine “or file a petition requesting a court order authorizing the isolation or quarantine.”) Bailey asserts that there are “procedural safeguards” that “must be followed when restricting the movements or activities of the people, or closing businesses, to control disease spread.” (Am. Compl. ¶ 48.)
7. Bailey’s allegations, when construed as a well-pleaded complaint, as they must be, assert a procedural due process claim under the Fourteenth Amendment. See Wright & Miller, 14C Fed. Prac. & Poc. Juris. § 3722.1 (Rev. 4th ed. April 2020) (explaining that under the artfulpleading doctrine, a corollary of the well-pleaded complaint rule, “when a cause of action in the plaintiff’s complaint, if properly pled, would pose a federal question and make the case removable, the plaintiff will not be permitted to disguise the inherently federal cause of action, to block removal”). Federal courts have long exercised jurisdiction over challenges to allegedly ultra vires state quarantine orders. See, e.g., Compagnie Francaise de Navigation a Vapeur v. State Bd. of Health, 186 U.S. 380, 386, 393–94 (1902) (exercising appellate jurisdiction based on due process protections in the Fourteenth Amendment over challenge to allegedly ultra vires state quarantine order). This Court has original jurisdiction in this case because Bailey challenges an allegedly ultra vires quarantine order that he alleges has deprived him of his liberty interest without the procedural due process to which he is entitled under the Fourteenth Amendment. 28 U.S.C. § 1343(a)(3).
8. Second, Bailey seeks to redress an alleged violation of his right to free exercise of religion. (See, e.g., Am. Compl., Ex. A, ¶ 71, seeking redress for Governor’s alleged actions “preventing Bailey from attending worship services.”) The freedom of religion that Bailey alleges to have been violated, and for which Bailey seeks redress, is secured by the United States Constitution. See U.S. Const. amend. I; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). The First Amendment to the United States Constitution, as applied to
4

Case 3:20-cv-00474-GCS Document 1 Filed 05/21/20 Page 5 of 7 Page ID #5
the states through the Fourteenth Amendment, forbids the Governor, in his official capacity, from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S. Const. amend. I.
9. Third, Bailey seeks to redress an alleged violation of his right to freedom of travel. (See, e.g., Am. Compl., Ex. A, ¶¶ 105–110, seeking redress for Governor’s alleged actions “restrict[ing] . . . citizen’s movement.”) The freedom to travel that Bailey alleges to have been violated, and for which Bailey seeks redress, is secured by the United States Constitution. See Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 901–02 (1986) (“Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”) (internal citations and quotation marks omitted) (collecting cases).
10. Fourth, Bailey seeks to redress an alleged violation of Article IV, Section 4 of the United States Constitution, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Bailey’s complaint alleges that the Governor, through the disaster proclamations and executive orders that Bailey seeks to void, has seized “unilateral control over the movement and livelihood of every citizen in the State. The legislative branch during this period of executive rule under the emergency powers has been rendered meaningless.” (See, e.g., Am. Compl., Ex. A, ¶¶ 84–85.) In other words, Bailey alleges that the Governor’s actions have transformed the state government of Illinois to such a degree that Illinois no longer enjoys the “Republican Form of Government” guaranteed by the United States Constitution. U.S. Const. art. IV, § 4.
11. Because Bailey’s action seeks redress for alleged deprivation of at least four rights secured by the United States Constitution, this Court has original jurisdiction over Bailey’s action under 28 U.S.C. § 1343(a)(3), and removal is proper under 28 U.S.C. § 1441(a) and § 1446.
5

Case 3:20-cv-00474-GCS Document 1 Filed 05/21/20 Page 6 of 7 Page ID #6

WHEREFORE, for all these reasons, the Governor removes the State Court Action to this

Court.

Dated: May 21, 2020

Respectfully Submitted,

KWAME RAOUL Attorney General of Illinois

/s/ Thomas J. Verticchio

R. Douglas Rees, #6201825 Christopher G. Wells, #6304265 Darren Kinkead, #6304847 Isaac Freilich Jones, #6323915 Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Thomas J. Verticchio, #6190501 Assistant Chief Deputy Attorney General Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-5354 tverticchio@atg.state.il.us

Counsel for the Governor

6

Case 3:20-cv-00474-GCS Document 1 Filed 05/21/20 Page 7 of 7 Page ID #7
CERTIFICATE OF SERVICE I certify that on May 21, 2020 I caused a copy of the foregoing to be served on the following counsel of record via email and US Mail at the addresses listed below: Thomas G. DeVore Erik Hyam DeVore Law Offices, LLC 118 N. 2nd St. Greenville, IL 62246 618-664-9439 tom@silverlakelaw.com erik@silverlakelaw.com
/s/ Thomas J. Verticchio Thomas J. Verticchio Assistant Chief Deputy Attorney General Counsel for the Governor
7

 </s> CLOSED,CONSENT
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:20-cv-00474-GCS

Bailey v. Pritzker Assigned to: Magistrate Judge Gilbert C. Sison Case in other court: Clay County, Illinois, 2020 CH 6 Cause: 28:2201 Constitutionality of State Statute(s)

Date Filed: 05/21/2020 Date Terminated: 06/30/2020 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Darren Bailey

represented by Steven M. Wallace Silver Lake Group, Ltd. - Glen Carbon 6 Ginger Creek Village Drive Glen Carbon, IL 62034 618-692-5275 Fax: 888-519-6101 Email: steve@silverlakelaw.com ATTORNEY TO BE NOTICED

V.
Defendant
Governor Jay Robert Pritzker in his official capacity

represented by R. Douglas Rees Office of the Attorney General Chicago, IL 100 West Randolph Street 12th Floor Chicago, IL 60601 312-814-3000 Fax: 312-814-2806 Email: rrees@atg.state.il.us ATTORNEY TO BE NOTICED
Thomas J. Verticchio Swanson, Martin & Bell, LLP Chicago, IL One IBM Plaza 330 North Wabash Street

V. Interested Party USA

Suite 3300 Chicago, IL 60611 312-814-5354 Fax: 312-814-4452 Email: tverticchio@atg.state.il.us ATTORNEY TO BE NOTICED
represented by Steven D. Weinhoeft U.S. Attorney - Fairview Heights 9 Executive Drive Suite 300 Fairview Heights, IL 62208 618-628-3700 Email: steven.weinhoeft@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James M. Cutchin Assistant U.S. Attorney - Benton 402 West Main Street Suite 2A Benton, IL 62812 618-439-3808 Fax: 618-439-2401 Email: Jim.Cutchin@usdoj.gov ATTORNEY TO BE NOTICED
Peter T. Reed U.S. Attorney's Office - Fairview Heights 9 Executive Drive Fairview Heights, IL 62208 618-628-3700 Fax: 618-628-3730 Email: peter.reed@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 05/21/2020

# Docket Text
1 NOTICE OF REMOVAL from Circuit Court for the Fourth Judicial Circuit, Clay County, case number 2020 CH 6 ( Filing fee $ 400 receipt

05/21/2020 05/21/2020 05/21/2020 05/21/2020 05/21/2020
05/21/2020

number 0754-4185889), filed by Jay Robert Pritzker. (Attachments: # 1 Exhibit Exhibits to Notice of Removal)(Verticchio, Thomas) (Entered: 05/21/2020)
2 NOTICE by Jay Robert Pritzker re 1 Notice of Removal, Civil Cover Sheet (Verticchio, Thomas) (Entered: 05/21/2020)
3 NOTICE of Appearance by Thomas J. Verticchio on behalf of Jay Robert Pritzker (Verticchio, Thomas) (Entered: 05/21/2020)
4 NOTICE of Appearance by R. Douglas Rees on behalf of Jay Robert Pritzker (Rees, R.) (Entered: 05/21/2020)
5 NOTICE of Appearance by Steven M. Wallace on behalf of Darren Bailey (Wallace, Steven) (Entered: 05/21/2020)
6 NOTICE OF INITIAL ASSIGNMENT TO A U.S. MAGISTRATE JUDGE: This case has been randomly assigned to United States Magistrate Judge Gilbert C. Sison pursuant to Administrative Order No. 257. The parties are advised that their consent is required if the assigned Magistrate Judge is to conduct all further proceedings in the case, including trial and final entry of judgment pursuant to 28 U.S.C. 636(c) and Federal Rule of Civil Procedure 73. As set forth in Administrative Order No. 257, each party will be required to file a Notice and Consent to Proceed Before a Magistrate Judge Jurisdiction form indicating consent or nonconsent to the jurisdiction of the assigned Magistrate Judge. If all parties do not consent to the Magistrate Judge's jurisdiction, the case will be randomly assigned to a district judge for all further proceedings and the parties cannot later consent to reassignment of the case to a magistrate judge. The parties are further advised that they are free to withhold consent without adverse substantive consequences. Within 21 days of this Notice, the following party or parties must file the attached form indicating consent to proceed before the assigned Magistrate Judge or an affirmative declination to consent: Darren Bailey, Jay Robert Pritzker. A link regarding the magistrate judges in this district is attached for your convenience: http://www.ilsd.uscourts.gov/documents/BenefitsofConsent.pdf. All future documents must bear case number 20-474-GCS. Refer to Civil/Removal Case Processing Requirements, found on the ILSD website, for further service information. Consent due by 6/11/2020 (ack) (Entered: 05/21/2020)
7 Emergency MOTION to Remand to State Court by Darren Bailey. Responses due by 6/25/2020 (Wallace, Steven) (Entered: 05/21/2020)

05/21/2020

8 MEMORANDUM in Support re 7 Emergency MOTION to Remand to State Court filed by Darren Bailey. (Wallace, Steven) (Entered: 05/21/2020)

05/21/2020 9 MOTION re 7 Emergency MOTION to Remand to State Court (to Expedite) by Darren Bailey. (Wallace, Steven) (Entered: 05/21/2020)

05/22/2020

10 NOTICE of Hearing: Telephonic Status Conference set for 5/26/2020 at 1:00 PM before Magistrate Judge Gilbert C. Sison. Counsel is instructed to participate via telephone conference. Instructions for the conference call are as follows: (1) call toll-free, 888-273-3658; (2) when prompted, enter the seven-digit Access Code: 5699758; (3) when prompted, enter the four-digit Security Code: 0474. (dmw2)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/22/2020)

05/22/2020

11 MEMORANDUM in Opposition re 9 MOTION re 7 Emergency MOTION to Remand to State Court (to Expedite) filed by Jay Robert Pritzker. (Rees, R.) (Entered: 05/22/2020)

05/22/2020 12 NOTICE of Appearance by Steven D. Weinhoeft on behalf of USA (Weinhoeft, Steven) (Entered: 05/22/2020)

05/22/2020 13 NOTICE of Appearance by James M. Cutchin on behalf of USA (Cutchin, James) (Entered: 05/22/2020)

05/22/2020 14 NOTICE of Appearance by Peter T. Reed on behalf of USA (Reed, Peter) (Entered: 05/22/2020)

05/22/2020 15 NOTICE by USA of Statement of Interest on Behalf of The United States of America (Weinhoeft, Steven) (Entered: 05/22/2020)

05/24/2020

16 MOTION for Leave to File Reply to Objection to Motion to Expedite by Darren Bailey. (Attachments: # 1 Supplement Proposed Reply to Objection to Motion to Expediter, # 2 Exhibit Exhibit to Proposed Reply)(Wallace, Steven) (Entered: 05/24/2020)

05/24/2020

17 ORDER granting 16 Motion for Leave to File. Plaintiff shall his reply to Defendant's response in opposition to the motion to expedite briefing instanter. Signed by Magistrate Judge Gilbert C. Sison on 5/24/2020. (kll)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/24/2020)

05/24/2020 18 REPLY to Response to Motion re 9 MOTION re 7 Emergency MOTION to Remand to State Court (to Expedite) filed by Darren Bailey.

(Attachments: # 1 Exhibit Defendant's Supplemental Emergency Motion in Illinois Supreme Court)(Wallace, Steven) (Entered: 05/24/2020)

05/26/2020

19 NOTICE - Telephonic Status Hearing is set for 5/26/2020 at 1:00 PM before Judge Gilbert C. Sison. While the federal courthouse is currently closed to the public per Administrative Order #266, full access to this hearing is available remotely. Instructions to join the hearing are as follows: Call toll free 1-888-684-8852, when prompted enter Access Code 6102338. In light of the public health crisis due to the COVID-19 virus, the Court finds that full access to the press and public cannot be afforded for this hearing. Other alternatives to closure were considered, but at this time the Court only has the technological capability to allow access by teleconference. (lmt)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/26/2020)

05/26/2020

20 CONSENT/NON-CONSENT TO U.S. MAGISTRATE JUDGE - sealed pending receipt from all parties. (Wallace, Steven) Unsealed on 6/3/2020 (rah). (Entered: 05/26/2020)

05/26/2020

21 Minute Entry for proceedings held before Magistrate Judge Gilbert C. Sison: Telephonic Status Conference held on 5/26/2020. Attorney Steven Wallace present on behalf of Plaintiff Darren Bailey. Attorneys Douglas Rees and Thomas Verticchio present on behalf of Defendant Governor Jay Robert Pritzker. USA Steven Weinhoeft present on behalf of the United States. The Court amends the deadline to consent to proceed before a magistrate judge to 6/2/2020. The Court GRANTS 9 MOTION re 7 Emergency MOTION to Remand to State Court (to Expedite) filed by Darren Bailey. Defendant's response to the Motion at Doc. 7 is due by 6/5/2020. Plaintiff's reply is due by 6/10/2020. (Court Reporter Karen Waugh.) (dmw2)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/26/2020)

06/02/2020

22 FINAL CONSENT/NON-CONSENT TO U.S. MAGISTRATE JUDGE - sealed pending receipt from all parties. (Rees, R.) Unsealed on 6/3/2020 (rah). (Entered: 06/02/2020)

06/03/2020

23 NOTICE: All parties have consented to have a United States Magistrate Judge conduct all proceedings in this case. Accordingly, Magistrate Judge Gilbert C. Sison is ASSIGNED to conduct all proceedings in this case, including trial and final entry of judgment pursuant to 28 U.S.C. Sec. 636(c) and Federal Rule of Civil Procedure 73. All future documents must bear case number 20-474-GCS. Any District Judge previously assigned will no longer be assigned to this case. (rah)THIS

TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/03/2020)

06/05/2020

24 MEMORANDUM in Opposition re 7 Emergency MOTION to Remand to State Court filed by Jay Robert Pritzker. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Verticchio, Thomas) (Entered: 06/05/2020)

06/10/2020

25 REPLY to Response to Motion re 7 Emergency MOTION to Remand to State Court filed by Darren Bailey. (Wallace, Steven) (Entered: 06/10/2020)

06/10/2020 26 MOTION to Strike 25 Reply to Response to Motion by Jay Robert Pritzker. (Verticchio, Thomas) (Entered: 06/10/2020)

06/10/2020

27 RESPONSE in Opposition re 26 MOTION to Strike 25 Reply to Response to Motion Alternative Motion for Leave to File Reply in Excess of Page Limitations filed by Darren Bailey. (Wallace, Steven) (Entered: 06/10/2020)

06/11/2020

28 ORDER granting in part and denying in part 26 Motion to Strike. The Court GRANTS Plaintiff's request for leave to file excess pages and will consider his reply in its entirety. Defendant's request to strike the reply is DENIED. Defendant is granted leave to file a sur-reply, not to exceed three pages, no later than Monday, June 15, 2020. Signed by Magistrate Judge Gilbert C. Sison on 6/11/2020. (kll)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/11/2020)

06/15/2020

29 REPLY to Response to Motion re 7 Emergency MOTION to Remand to State Court , 26 MOTION to Strike 25 Reply to Response to Motion filed by Jay Robert Pritzker. (Verticchio, Thomas) (Entered: 06/15/2020)

06/29/2020

30 ORDER granting 7 Motion to Remand to State Court. For the reasons stated in the attached Memorandum & Order, Plaintiff Darren Bailey's emergency motion to remand is GRANTED. It is hereby ORDERED that, pursuant to 28 U.S.C. 1447(c), this action be REMANDED to the Circuit Court for the Fourth Judicial Circuit, Clay County, Illinois. No fees or costs are awarded. The Clerk of Court is DIRECTED to transmit a certified copy of this Order to the clerk of the state court, and thereafter to CLOSE this case. Signed by Magistrate Judge Gilbert C. Sison on 6/29/2020. (kll) (Entered: 06/29/2020)

06/30/2020 31 Letter to Fourth Judicial Circuit, Clay County, Illinois regarding Order Remanding Case (amv) (Entered: 06/30/2020)

07/09/2020 32 Acknowledgment received from Clay County as to remand to State Court. (trb) (Entered: 07/09/2020)

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 </s> Case 3:20-cv-00474-GCS Document 7 Filed 05/21/20 Page 1 of 2 Page ID #253

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISON

DARREN BAILEY,

)

)

Plaintiff,

)

)

vs.

)

)

GOVERNOR JAY ROBERT PRITZKER, )

in his own capacity,

)

)

Defendant.

)

Case No. 3:20-cv-00474

EMERGENCY MOTION TO REMAND

DARREN BAILEY by and through his undersigned attorneys, states as follows:

1. On April 23, 2020, Plaintiff filed his action against Defendant in the Circuit

Court, Clay County, Illinois under case number 2020-CH-6.

2. After numerous proceedings in the Clay County Circuit Court, on May 21,

2020, Defendant filed his notice of removal of the Clay County action to this Court.

3. As more particularly set forth in Plaintiff’s Memorandum in Support of

Emergency Motion to Remand filed herewith, this matter should be immediately remanded

to the Circuit Court, Clay County, Illinois for further proceedings and for disposition.

WHEREFORE, DARREN BAILEY respectfully requests and prays that this Court

(a) grant Plaintiff expedited relief, (b) remand this case immediately to the Circuit Court,

Clay County, Illinois, and (c) award Plaintiff his attorney fees, costs and expenses

associated with his response to the instant Notice of Removal.

Case 3:20-cv-00474-GCS Document 7 Filed 05/21/20 Page 2 of 2 Page ID #254
Respectfully submitted, SILVER LAKE GROUP, LTD. /s/ Steven M. Wallace By :_________________________________ Steven M. Wallace #6198917 Nicole E. Mollet #6238578 6 Ginger Creek Village Drive Glen Carbon, IL 62034 Phone: (618) 692-5275 Fax: (888) 519-6101 Email: steve@silverlakelaw.com Counsel to Darren Bailey
CERTIFICATE OF SERVICE The undersigned hereby certifies on the 21st day of May, 2020, that a true and correct copy of the above and foregoing pleading was served by electronic filing in the CM/ECF system of the United States District.
/s/Steven M. Wallace
2

Case 3:20-cv-00474-GCS Document 8 Filed 05/21/20 Page 1 of 11 Page ID #255

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISON

DARREN BAILEY,

)

)

Plaintiff,

)

)

Vs.

)

)

GOVERNOR JAY ROBERT PRITZKER, )

in his own capacity,

)

)

Defendant.

)

Case No. 3:20-cv-00474

MEMORANDUM IN SUPPORT OF EMERGENCY MOTION TO REMAND DARREN BAILEY by and through his undersigned attorneys, states as follows:
INTRODUCTION The Defendant’s Notice of Removal is perhaps the most outrageous invocation of federal jurisdiction imaginable. Defendant has taken Plaintiff’s Complaint, which raises nothing but questions concerning Defendant’s authority under certain Illinois statutes, and contrived federal questions where none exist. Given the Defendant’s prior actions in connection with the underlying state court case, including a request for supervisory review and a specious motion to transfer venue, it is clear he is intent on forum shopping and wants nothing more than to derail state court proceedings. This Court should not countenance such an egregious attempt to neuter a state court. In short, the Notice of Removal is beyond frivolous and reeks of bad faith, and this Court should immediately remand this matter to the Circuit Court, Clay County, Illinois for disposition.

Case 3:20-cv-00474-GCS Document 8 Filed 05/21/20 Page 2 of 11 Page ID #256

I.

BACKGROUND

Plaintiff commenced his action in the Circuit Court, Clay County, Illinois on April

23, 2020, seeking relief from certain executive orders and declarations issued by the

Defendant in connection with the COVID-19 pandemic. Specifically, in his initial

complaint, Plaintiff sought multiple forms of relief: (1) a judgment declaring the scope of

and limitations on the Defendant’s authority under the Illinois Emergency Management

Agency Act (the “IEMAA”) and (2) an injunction excusing Plaintiff’s compliance with

certain so-called “stay at home” orders Defendant issued under the auspices of the

IEMAA.

At the conclusion of a hearing in this case on April 27, 2020, the Court entered its

temporary restraining order which found that Plaintiff was not subject to certain of the

“stay at home” orders Defendant issued. In that respect, the Court concluded

Defendant’s authority to exercise emergency powers under the IEMAA terminated 30

days following Defendant’s March 9, 2020 disaster declaration. The Defendant

immediately sought appellate review and further asked for direct review by the Illinois

Supreme Court. In tandem with his request for direct review by the Illinois Supreme

Court, Defendant asked the Supreme Court to issue a supervisory order concerning the

scope of Defendant’s authority under the IEMAA.

Following Defendant’s appeal, Plaintiff agreed to vacatur of the temporary

restraining order, thus mooting Defendant’s request for appellate review. However,

2 1 1

Case 3:20-cv-00474-GCS Document 8 Filed 05/21/20 Page 3 of 11 Page ID #257
Defendant persisted in his motion for entry of a supervisory order, and the Illinois Supreme Court denied that motion on May 11, 2020.
Defendant filed a motion to transfer the case on May 13, 2020, on the basis of forum non conveniens. The Circuit Court denied the motion to transfer and all but officially recognized it as Defendant’s attempt at forum shopping.
In the midst of Defendant’s procedural machinations to strip the Clay County Circuit Court of jurisdiction, Plaintiff filed his first amended complaint. The relief Plaintiff seeks is precise and his requests go solely to construction of Illinois statutes:
I. A declaration that the Defendant’s April 30, 2020 proclamation is void for failing to meet the definition of a disaster as defined in the Illinois Emergency Management Agency Act;
II. A declaration finding that Defendant had no authority under the Illinois Emergency Management Agency Act to utilize emergency powers after April 8, 2020;
III. A declaration that the Illinois Department of Public Health Act governs Defendant’s actions; and
IV. Injunctive relief enjoining Defendant from enforcing the executive orders described in the first amended complaint on the basis of Defendant’s lack of statutory authority.
The relief requested in the first amended complaint is not predicated, in any respect, on alleged violations of rights conferred under the United States Constitution or any federal statutes. Nor does the first amended complaint contain any suggestion by
3 1 1

Case 3:20-cv-00474-GCS Document 8 Filed 05/21/20 Page 4 of 11 Page ID #258
Plaintiff that his federal civil rights have been violated by Defendant’s proclamations and executive orders. Instead, Plaintiff states only that Defendant’s proclamations and executive orders exceed authority conferred by the Illinois legislature.
On May 15, 2020, the Circuit Court in Clay County directed Plaintiff to file his motion for summary judgment on or before May 18, 2020, and instructed Defendant to file his response no later than noon on May 21, 2020. The Court further scheduled a hearing on the motion for summary judgment for May 22, 2020.
Defendant did not file a response to Plaintiff’s motion for summary judgment, but, instead, removed the action to this Court.
II. ARGUMENT A. This Court Lacks Subject Matter Jurisdiction.
This Court’s jurisdiction over removed cases is limited to only those matters over which it would have original jurisdiction. 28 U.S.C. §1446(a). Because Plaintiffs' statelaw claims do not "arise under" federal law, Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 807 (1986), there is no federal question jurisdiction, and this case should be immediately remanded. See 28 U.S.C. §1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). See also Merrell Dow Pharm, Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229 (1986) (finding removal improper because no federal cause of action appeared in the complaint).
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This case turns exclusively on Illinois law – specifically Illinois statutes and the authority conferred on Defendant pursuant to those statutes. Nowhere does Defendant suggest, nor could he, that a court must refer to federal law in order to determine whether Defendant’s actions exceeded the authority conferred upon him by the Illinois legislature. Instead, Defendant appears to claim that the effects of his actions impact Plaintiff’s rights and interests under the United States Constitution and certain Acts of Congress. Thus, Defendant posits the action is properly removable. He is wrong.
Defendant cannot dispute that Plaintiff’s causes of action do not arise under federal law, yet he advances the canard that Plaintiff’s claims have some “embedded” federal law issues that justify removal. See Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 312 (2005) (concerning treatment of state law claims containing “embedded” federal issues). Defendant does not grasp that only a "slim category" of cases qualify for federal jurisdiction under Grable, see Gunn v. Minton, 568 U.S. 251, 258 (2013), and the claims here clearly do not. Where federal law does not create the cause of action, "federal jurisdiction over a state law claim will [only] lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Id. at 258.
First, no federal claim is "necessarily raised." That standard requires that the federal question be an "essential element" of the plaintiff's "claim.” Grable, 545 U.S. at 315); accord Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158, 163, 165 (3d Cir. 2014), aff'd, 136 S. Ct. 1562 (2016). The Grable exception is for state causes of
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action where the state rule of decision turns on federal law. Here, the matters Defendant raises as predicates for federal jurisdiction are irrelevant to Defendant’s authority under applicable Illinois statutes and resolution of Plaintiff’s causes of action.
Second, the issue is not "actually disputed" because Plaintiff has not asked the Circuit Court to make any determination whether Defendant’s actions contravene Plaintiff’s federal rights. Instead, he only asserts that Defendant’s ultra vires state law based actions have the effect of restricting Plaintiff’s activities. Once again, Plaintiff’s complaint and first amended complaint do not so much as hint that he seeks a resolution on the basis of infringement of rights conferred under the United States Constitution.
Third, not only are the issues Defendant raises not “substantial” within the contemplation of Grable, they are non-existent in this context. Whether or not Defendant’s actions infringe on rights existing under the United States Constitution is irrelevant to and mentioned nowhere in Plaintiff’s complaint or first amended complaint. In other words, a decision concerning the impact of Defendant’s actions on Plaintiff’s rights under the United States Constitution are neither here nor there in this situation.
Fourth, any issue about the construction of the Illinois Emergency Management Agency Act and the Illinois Department of Public Health Act, i.e., the core of Plaintiff’s causes of action, is not “capable of resolution in federal court without disrupting the federal-state balance.” In that respect, Plaintiff’s causes of action are grounded exclusively in and predicated on the construction of Illinois statutes. Did Defendant have the authority to take certain actions under Illinois statues? That question goes to the heart
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of the interests of the State of Illinois and has no bearing on federal interest. In short, "the court must consider 'the degree to which federal law [is] in the forefront of the case and not collateral, peripheral or remote.'" Krause v. Phila. Soul, No. CIV.A. 09-1132, 2009 WL 1175625, at *2 (E.D. Pa. Apr. 30, 2009) (quoting Merrell Dow, 478 U.S. at 814 n.11). In this case, federal law is not simply collateral, peripheral, or remote: its appearance in this case is a pure contrivance.
Curiously, Defendant relies on Compagnie Francaise de Navigation a Vapeur v. State Bd. Of Health, 186 U.S. 380 (1902) for the proposition that “Federal courts have long exercised jurisdiction over alleged challenges to ultra vires state quarantine orders.” Notice of Removal at 4, ¶7. The Defendant seems to suggest that the only matters at issue in the complaint were alleged ultra vires quarantine orders and that those orders alone. The most charitable way to describe Defendant’s reliance on that case is that it is misleading. Defendant chose to conceal from this Court the actual averments at issue: “It was averred that the action of the board was not authorized by the state law, and if it was such law was void because repugnant to the provision of the Constitution of the United States conferring upon Congress power ‘to regulate commerce with foreign nations . . .” Id. at 382-83. No such allegations appear in Plaintiff’s complaint of first amended complaint. Therefore, Compagnie Francaise de Navigation a Vapeur is hardly dispositive here as Defendant suggests.
Defendant’s reliance on the Court’s jurisdiction under 28 U.S.C. §1343 is completely misplaced. The text of section 1343 demonstrates its inapplicability in the case at bar. Under section 1343, the district courts have original jurisdiction over a
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specifically defined set of claims: (a) to recover damages related to section 1985 of title 42; (b) to redress deprivation of rights secured by the United States Constitution or an Action of Congress; and (c) to recover damages or secure equitable relief under federal civil rights legislation. See 28 U.S.C. §1343(a). Not one of those jurisdictional hooks exist in this case, and Defendant is relying on a complaint that does not exist in the record. Plaintiff has sought declaratory and injunctive relief based exclusively on limitations on Defendant’s authority set forth in Illinois statutes. Neither the complaint nor the first amended complaint make any references to the United States Constitution or Acts of Congress. Defendant has done nothing more than create a roadmap for a hypothetical civil rights complaint.
B. Expedited Relief is Essential. Under § 1447(c), the Court may remand the case "at any time" based on the lack of
subject matter jurisdiction. When a district court discovers a jurisdictional defect in an improperly removed case, the court should remand the case immediately. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999). Likewise, once a party raises by motion a failure in the predicates for removal, an immediate remand is appropriate.
Given this Court's lack of subject matter jurisdiction, as well as the expedited schedule for the state court proceeding as established by the Circuit Court, this Court should remand this matter immediately, without awaiting an opposition from Defendant. Nothing he would say could salvage this removal.
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Any delay in resolving this motion would substantially prejudice Plaintiff. Indeed, Defendant’s vexatious conduct has already resulted in delays and expenditure of time and resources responding to calls for intervention by the Illinois Supreme Court and specious motions to transfer venue. Beyond that, Defendant notified the state court of his removal just a day before the scheduled hearing on Plaintiff’s motion for summary judgment and mere hours before his response to the motion was due. Defendant improperly used the notice of removal to dodge what he clearly anticipated would be an adverse decision in the Circuit Court, and this Court should reject his dilatory machinations.
C. Plaintiff is Entitled to Attorneys' Fees Under 28 U.S.C. § 1447(c) Under 28 U.S.C. § 1447(c), "[a]n order remanding the case may require payment of
just costs and any actual expenses, including attorney fees, incurred as a result of the removal." "Absent unusual circumstances, courts may award attorney's fees under §1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005). "Conversely, when an objectively reasonable basis exists, fees should be denied." Id. A party seeking fees need not establish that a notice of removal was frivolous. Rather, an award of attorney fees is entirely appropriate where "the assertion in the removal petition that the district court had jurisdiction was, if not frivolous, at best insubstantial." Mints v. Educ. Testing Serv., 99 F.3d 1253, 1261 (3d Cir. 1996).
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Here, Defendant’s notice of removal is far worse than insubstantial—it is frivolous. His entire theory of jurisdiction rests on the utterly false assertions that Plaintiff is seeking vindication of violation of his federal rights. On that basis, this Court should assess Plaintiff’s attorney fees against the Defendant.
III. CONCLUSION For the foregoing reasons, this Court should (a) grant Plaintiff expedited relief, (b) remand this case immediately to the Circuit Court, Clay County, Illinois, and (c) award Plaintiff his attorney fees, costs and expenses associated with his response to the instant Notice of Removal.
Respectfully submitted, SILVER LAKE GROUP, LTD. /s/ Steven M. Wallace By :_________________________________ Steven M. Wallace #6198917 Nicole E. Mollet #6238578 6 Ginger Creek Village Drive Glen Carbon, IL 62034 Phone: (618) 692-5275 Fax: (888) 519-6101 Email: steve@silverlakelaw.com Counsel to Darren Bailey
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Case 3:20-cv-00474-GCS Document 8 Filed 05/21/20 Page 11 of 11 Page ID #265 CERTIFICATE OF SERVICE
The undersigned hereby certifies on the 21st day of May, 2020, that a true and correct copy of the above and foregoing pleading was served by electronic filing in the CM/ECF system of the United States District.
/s/Steven M. Wallace
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 </s> Case 3:20-cv-00474-GCS Document 15 Filed 05/22/20 Page 1 of 21 Page ID #280

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

DARREN BAILEY, Plaintiff,
v. Governor JAY ROBERT PRITZKER, in his official capacity,
Defendant.

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Case No. 3:20-cv-00474-GCS

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STATEMENT OF INTEREST ON BEHALF OF THE UNITED STATES OF AMERICA

The United States of America respectfully files this Statement of Interest, pursuant to

28 U.S.C. § 517, which permits the Attorney General to direct any officer of the Department of

Justice to attend to the interests of the United States in any case “pending in a court of the United

States.” The United States thus routinely files Statements of Interest in pending matters to which

it is not a party without requiring either intervention or leave of Court to do so.

INTRODUCTION

In the midst of the COVID-19 pandemic, the state and federal governments have a shared

interest in promoting the best possible public health strategies to combat the virus to protect the

people of the United States from harm. But that interest does not justify government restrictions

imposed upon its citizens without legal authority. Indeed, action contrary to law is likely to erode

public confidence in, and compliance with, legitimate efforts taken to address the COVID-19

pandemic. This case accordingly implicates issues of national public importance regarding the

interplay between a State’s compelling interest in protecting public health and safety from COVID-

19 and the equally compelling interest in preserving civil liberties.

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The United States supports the plaintiff’s emergency motion for remand (SDIL Case 3:20cv-00474-GCS, Doc. 9) and asks the Court promptly to return this matter to the Illinois Circuit Court, where it belongs, because the plaintiff makes no federal claim. Rather, he alleges that the Governor has exceeded the statutory authority granted under the Illinois Emergency Management Agency Act. Am. Compl., ¶¶ 69, 77, 97, & 109. To be sure, resolution of the plaintiff’s claim could have implications for federal claims brought in other litigation. But mere federal implications from resolution of a state law claim have never been sufficient to justify removal to a federal court.
The federal government has an interest in preventing the limited resources of the federal courts from being drawn into state-law disputes that lie outside of their jurisdiction. True, the plaintiff’s argument may bear on federal due process challenges to the executive orders in other litigation. But the only claim at issue in his suit is under state law. A timely remand is required to allow the Illinois courts to resolve this issue quickly, which may affect the lives of each of the nearly 13 million residents and business owners in the state of Illinois.
BACKGROUND1 In passing the Illinois Emergency Management Agency Act, the Illinois Legislature declared its purpose “to insure that th[e] State w[ould] be prepared to and w[ould] adequately deal with any disasters, preserve the lives and property of the people of th[e] State and protect the public peace, health, and safety in the event of a disaster.” 20 ILCS 3305/2(a). The Act accordingly “confer[red]” upon the Governor, 20 ILCS 3305/2(a)(2), the power to “by proclamation declare that a disaster exists” and, “[u]pon such proclamation, . . . [to] have and . . . exercise for a period not to exceed 30 days” certain specified emergency powers. 20 ILCS 3305/7. As relevant here,

1

The United States submits this brief on the basis of the facts alleged in the complaint and reflected in the

accompanying exhibits.

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these emergency powers include the power to “control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein,” 20 ILCS 3305/7(8); to “[c]ontrol, restrict, and regulate by . . . the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods, or services;” and to “perform and exercise any other functions, powers, and duties as may be necessary to promote and secure the safety and protection of the civilian population,” 20 ILCS 3305/7(12). The Act does not “[l]imit, modify, or abridge the authority of the Governor to proclaim martial law or exercise any other powers vested in the Governor under the constitution, statutes, or common law of th[e] State, independent of or in conjunction with any provisions of th[e] Act.” 20 ILCS 3305/3(d).
Over the last two months, the Governor has relied upon the authority conveyed upon him under the Illinois Emergency Management Agency Act to restrict, in many cases significantly, the liberties of citizens within the State. On March 9, 2020, the Governor proclaimed that “the circumstances surrounding COVID-19 constitute a public health emergency” and “all counties in the State of Illinois a[re] a disaster area.” Am. Compl., Ex. 1. On March 20, 2020, the Governor issued an executive order requiring “all individuals currently living within the State of Illinois . . . to stay at home or at their place of residence except” for certain specified “Essential Activities, Essential Governmental Functions, or to operate Essential Businesses and Operations,” through the duration of the disaster proclamation, which at that point extended through April 7, 2020. Am. Compl., Ex. 2. On April 1, 2020, the Governor issued another proclamation, in which he designated “the circumstances surrounding COVID-19 [as] a continuing public health emergency” and asserted that the designation “continue[d] the Governor’s authority to exercise all of the emergency powers provided in Section 7 of the Illinois Emergency Management Agency Act” for another 30 days. Compl., Ex. 3. The same day, the Governor extended Executive Order
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2020-10, along with numerous other Executive Orders that he had issued pursuant to his original disaster proclamation, for the same 30 days. Compl., Ex. 4.
Darren Bailey (“Bailey” or “Plaintiff”) filed this suit on April 23, 2020, seeking a declaratory judgment that the Governor’s Orders are unauthorized and related injunctive relief. He also filed a motion for a temporary restraining order and preliminary injunction the same day. The state court concluded that Bailey had established “a reasonable likelihood of succeeding on the merits,” as well as irreparable harm, and issued a Temporary Restraining Order (TRO) on April 27, 2020, to continue not longer than 30 days and only until the Court had an opportunity to hear a motion for preliminary injunction. See TRO at 1-2. Plaintiff subsequently agreed to vacatur of the TRO and expedited summary judgment briefing on an amended complaint. That amended complaint sought declaratory judgments that the Governor’s April 30, 2020, proclamation was void under state law because it did not meet the statutory definition of disaster, that the Governor lacked authority under the Act to exercise emergency powers after April 8, 2020, and that the Illinois Department of Public Health Act applied to the Governor’s actions, along with related injunctive relief. Am. Compl. ¶¶ 72, 98, 118, 120. The hearing on Plaintiff’s motion for summary judgment was set for May 22, 2020. Notice of Hearing, May 18, 2020.
On May 21, 2020, the Governor filed a notice of removal. SDIL Case 3:20-cv-00474GCS, Doc. 1. In that notice, he attempts to characterize the plaintiff’s purely state-law complaint as seeking redress for alleged deprivations of Bailey’s federal constitutional rights caused by actions taken under color of state law. Doc. 1 ¶ 3. Certainly, Bailey could have advanced those constitutional claims. But he did not. Instead, he brought only state law claims. And as such, the case belongs in state court.
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Plaintiff has set forth a strong case that the Orders exceed the authority granted to the Governor by the Illinois legislature. The United States also agrees with the Governor’s apparent recognition that, although violations of state law do not ordinarily amount to a federal due process violation, state actions that are both wholly unauthorized by state law and impose broad and intrusive restrictions on individual liberties may raise federal due process concerns. But those federal concerns cannot transform a complaint that presses only state-law claims into a complaint over which this Court has jurisdiction.
ARGUMENT I. The Case Should Be Remanded to Illinois Circuit Court Because Plaintiff’s
Complaint Does Not Arise Under Federal Law. A. Plaintiff’s Amended Complaint Does Not Allege a Federal Cause of Action. Federal removal is governed by 28 U.S.C. § 1441. The removing party typically bears the burden of showing removal is proper. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). “Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Id. To be sure, “a plaintiff may not defeat removal by omitting to plead necessary federal questions.” Citadel Sec., LLC v. Chicago Bd. Options Exch., Inc., 808 F.3d 694, 701 (7th Cir. 2015) (citations and internal quotation marks omitted). But, at all times, the plaintiff remains “the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, Inc., 482 U.S. at 392 (footnote omitted).
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Federal question jurisdiction exists when the “complaint standing alone” establishes either: (i) “that federal law creates the cause of action”; or (ii) “that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294, 298 (7th Cir. 2003) (citation omitted).2 “[F]ederal-question jurisdiction is invoked by and large by plaintiffs pleading a cause of action created by federal law (e.g., claims under 42 U.S.C. § 1983).” Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005). Here, however, the complaint does not allege a federal cause of action—a fact the Governor does not dispute in the notice of removal. That leaves only the second route.
B. The Court Lacks Jurisdiction Over Plaintiff’s State Law Claims. Although state law claims are generally committed to the jurisdiction of the state courts,
“federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013) (citing Grable, 545 U.S. at 314).
Grable sets a high bar. “Federal jurisdiction is rarely established on this basis.” Webb v. Fin. Indus. Regulatory Auth., Inc., 889 F.3d 853, 860 (7th Cir. 2018); Gunn, 568 U.S. at 258 (cautioning that Grable applies only to a “slim category” of cases). It is rare for a reason: Congress has only granted federal courts jurisdiction in cases “arising under” the laws of the United States, see § 1331, and, by definition, state law claims rarely arise under federal law. Nor does Grable

2

The Governor purports to remove this action “under 28 U.S.C. § 1343(a)(3).” Notice at ¶ 3. Section

1343(a)(3) does not authorize removal, but does have a parallel removal statute in § 1443. Both statutes extend “only

to rights that are granted in terms of equality and not to the whole gamut of constitutional rights.” Chapman v. Houston

Welfare Rights Org., 441 U.S. 600, 622 (1979) (citation and quotation marks omitted) (expressly excluding due-

process-clause claims from the scope of § 1443). This is not one of those cases, and § 1443’s specific requirements

are not met here. At any rate, § 1343(a)(3) is largely defunct, and the removal analysis should proceed under § 1441.

See Myles v. United States, 416 F.3d 551, 554 (7th Cir. 2005) (“Section 1343(a)(3) covers only civil rights claims

against state actors and has had no legal effect since 1976, when Congress amended § 1331 to eliminate any amount-

in-controversy requirement.”).

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allow for removal simply because “the predominant issue concerns federal law.” Hartland Lakeside Joint No. 3 Sch. Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1034 (7th Cir. 2014); see Webb, 889 F.3d at 860 (explaining “an issue of federal law must be the ‘cornerstone’ of the plaintiff’s complaint”) (citation omitted).
The Governor’s notice of removal asserts that this standard is met because the amended complaint allegedly asserts “harm to Bailey’s rights that are protected under the United States Constitution” in order to show standing. Dkt. 1 ¶ 4. It also allegedly seeks “redress” of those rights. Id. This misreads the amended complaint and falls far short of meeting Grable’s test.
First, the Governor cannot show that any federal issue is necessarily raised by the complaint. The Governor cannot, for example, “contend that the only material issue is federal” because to do so would require him to “concede” that Plaintiff has “a good claim under state law.” Hartland, 756 F.3d at 1033. “Yet far from conceding this,” the Governor has so far denied that Plaintiff has “valid state-law claims,” id.; that is, that the Governor lacked authority under the Act. Any such concession is not clear from the face of the notice of removal.
Second, no reference to federal constitutional rights appears “on the face of” the amended complaint, giving rise to an actual dispute over such rights in this case. See Caterpillar, Inc., 482 U.S. at 392. Indeed, the paragraphs that the Governor cites as alleging constitutional violations contain no references to the federal constitution at all:
• Due Process in ¶¶ 37, 41, 48, and 105-110. Paragraphs 37, 41, and 48 summarize the requirements of the Illinois Department of Public Health Act and supporting administrative regulations, with citations. Paragraphs 105-110 allege that, under Illinois law, police powers are vested in the legislative branch, not in the executive. Not one of these paragraphs references federal due process.
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• Free Exercise in ¶ 71. Paragraph 71 alleges that the challenged executive orders and proclamations, among other things, prevent Bailey from “attending religious services.” This example of the challenged actions’ effect contains no reference to the federal Constitution, nor asks for relief thereunder.
• Freedom to travel in ¶¶ 105-110. Again, these paragraphs allege that, under Illinois law, police powers are vested in the legislative branch, not in the executive. They make no reference to a federal right to travel.
• Art. IV, § 4 in ¶ 84-85. These paragraphs broadly describe the perceived effect of the Governor’s actions on the legislative power in the State of Illinois. To the degree these paragraphs make any constitutional assertions (and on their face they do not), it would be under the Illinois Constitution’s provisions governing the separation of powers. The paragraphs contain no reference to a federal right to a republican form of government.
In sum, the Governor may conceive of constitutional arguments against his course of action, but Plaintiff has not asserted them. Caterpillar, Inc., 482 U.S. at 392.
Third, Plaintiff’s motion to remand disclaims any reliance on federal constitutional rights. See SDIL Case 3:20-cv-00474-GCS Doc. 8, Pl.’s Memo. in Support at 6 (“Plaintiff’s complaint and first amended complaint do not so much as hint that he seeks a resolution on the basis of infringement of rights conferred under the United States Constitution.”). Indeed, he seems surprised to learn that he might be implying them. Id. These judicial admissions will bind him “once the case is sent back to state court.” Ctr. For Wildlife Ethics, Inc. v. Clark, 325 F. Supp. 3d 911, 915-16 (N.D. Ind. 2018) (remanding even where a complaint made “seemingly superfluous references to the U.S. Constitution” because plaintiff “disclaim[ed] any potential federal
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questions” in its motion to remand). So there can be no federal question actually raised and disposed of here.
Fourth, Plaintiff may prove standing under Illinois state law, so the Governor cannot show that any federal question is “necessarily raised,” “actually disputed,” and “substantial” by Plaintiff’s claim to standing in this case. Gunn, 568 U.S. at 258. Here, state law appears to provide an array of theories whereby Plaintiff can show redressable injury. The procedural protections he cites, for example, may be enforceable in a way that provides him relief, and the Illinois Constitution contains parallel protections for each of the federal rights the Governor says were asserted in the amended complaint.
The Governor argues that Plaintiff’s amended complaint may only be read as alleging that the Governor’s orders violate the U.S. Constitution, but that argument fails to account for the state Constitution. Specifically, the Governor reads Plaintiff’s complaint as alleging that the Orders violate his Fourteenth Amendment “liberty interests” because they restrict his movements and require him to quarantine in his home (Doc. 1 ¶¶ 5 & 6), violate his First Amendment right to the free exercise of religion by preventing him from attending religious services (id. at ¶ 6), and restrict his right to travel (id. at ¶ 8). But of course, none of these provisions of the U.S. Constitution is cited in Plaintiff’s complaint, and each of these rights is likewise secured to Plaintiff by the Illinois Constitution. For example, Art. 1, § 2 of the Illinois constitution guarantees that “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied equal protection of the laws,” and the Illinois Supreme Court has explained that the guarantee of “liberty” in that constitutional provision is coextensive with that in the federal Constitution and “is deemed to embrace the right of every person to be free in the use of his or her powers, faculties, and property, in such lawful ways as he or she may choose, ‘subject only to such restraints as are necessary to
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secure the common welfare.” People v. Shepard, 152 Ill.2d 489, 501 (Ill. 1992) (emphasis in original) (citing Ill. Const. 1970, art. 1, § 2) (case citation omitted). Art. 1, § 3 of the Illinois Constitution “forever” guarantees Illinois citizens like Plaintiff “[t]he free exercise and enjoyment of religious profession and worship,” and the Illinois courts have interpreted the provision as providing “protections of religious practice . . . [that] are coextensive with those of the United States Constitution.” Mefford v. White, 331 Ill.App.3d 167, 179 (4th Dist. 2002) (citing People v. Falbe, 189 Ill.2d 635, 645 (Ill. 2000)). The right to travel is “among those protected personal liberties which have long been recognized” by the due process clause, City of Chicago v. Morales, 177 Ill.2d 440, 459-60 (Ill. 1997), and is thus equally protected under the Illinois Constitution, Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton, 105 Ill.2d 389, 397 (Ill. 1985).
The Governor also cites ¶¶ 84-85 of Plaintiff’s amended complaint to assert a violation of Art. IV, ¶ 4 of the U.S. Constitution, which guarantees to every state a republican form of government. Dkt. 1, ¶ 10. Not even a liberal construction of Bailey’s complaint, however, supports the Governor’s argument that Bailey is asserting a federal constitutional claim in this regard. Bailey makes his observation that “[t]he legislative branch during this period of executive rule under the emergency powers has been rendered meaningless” in the context of arguing that the Governor has misconstrued his emergency powers under the Act—a pure issue of state law, not a federal constitutional claim. See Am. Comp. ¶¶ 73-98. To the extent that Plaintiff’s assertions can be read as raising a constitutional claim, it is that the Governor’s reading of the Act improperly usurps for himself “[t]he legislative power [which] is vested in [the] General Assembly” in violation of the Illinois Constitution. Ill. Const., Art. 4, § 1; see also Am. Comp. ¶¶ 73-98.
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As the plaintiff, it is well settled that Bailey is the “master[ ] of the complaint” and “may include (or omit) claims or parties in order to determine the forum.” Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir. 2000). Here, Plaintiff has elected to proceed on only state law claims, and removal is thus improper.
II. Governor Pritzker’s Orders Appear Unsupported By State Law If the Court declines to remand the case to Illinois Circuit Court, then it should find that
the Governor exceeded his authority when issuing the executive orders. The Constitution establishes a unique federal structure for the United States of America in
which the States play a significant role. It “establishes a National Government with broad, often plenary authority over matters within its recognized competence” while also “assum[ing] the States’ continued existence and active participation in the fundamental processes of governance.” Alden v. Maine, 527 U.S. 706, 713 (1999) (citation omitted). Indeed, were there any doubt about the “vital role reserved to the States by the constitutional design,” the Tenth Amendment “confirm[ed] the premise implicit in the original document: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’” Id. at 713-14 (quoting U.S. Const. amend. X) (citations omitted). This federal structure “preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (citations omitted).
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One critical aspect of the powers reserved to the States is the “autonomy to establish their own governmental processes.” See Ariz. State Legislature v. Ariz. Independent Redistricting Comm’n, 135 S. Ct. 2652, 2673 (2015) (citations omitted); see also id. (“Whenever the States may choose to substitute other republican forms, they have a right to do so.”) (citation and quotation marks omitted). Because States’ powers “proceed, not from the people of America, but from the people of the several states; [these powers] remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.” Sturges v. Crowninshield, 17 U.S. 122, 193 (1819). And the right of a State to establish its own governmental processes is of fundamental importance, for it is “[t]hrough the structure of its government, and the character of those who exercise government authority, [that] a State defines itself as a sovereign.” Gregory, 501 U.S. at 460.
Here, Illinois has defined its governmental processes through the Illinois Emergency Management Agency Act. The Illinois Legislature recognized “the possibility of the occurrence of disasters” resulting from explosions, “fire, flood, earthquake, telecommunications failure, or other natural or technological causes.” 20 ILCS 3305/2(a). And it decided, inter alia, “[t]o confer upon the Governor and upon the principal executive officer of the political subdivisions of the State” certain broad, but specified, powers. 20 ILCS 3305/2(a). These powers are keyed to the proclamation of a disaster, which is broadly defined as follows:
“Disaster” means an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism.
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20 ILCS 3305/4. “In the event of [such] a disaster, . . . the Governor may, by proclamation declare that a disaster exists.” 20 ILCS 3305/7. “Upon such proclamation, . . . the Governor shall have and may exercise for a period not to exceed 30 days the [specified] powers.” Id.
But nowhere in the Act does it say that the Governor can extend a proclamation for the same disaster. Compare 20 ILCS 3305/7 with 42 U.S.C. § 247d(a) (“Any such determination of a public health emergency terminates upon the Secretary [of Health and Human Services] declaring that the emergency no longer exists, or upon the expiration of the 90-day period beginning on the date on which the determination is made by the Secretary, whichever occurs first. Determinations that terminate under the preceding sentence may be renewed by the Secretary . . . .”).
The Office of the Illinois Attorney General has, in the past, informally opined that the Act does not authorize the extension of emergency powers for a single disaster. In 2001, the Opinions Bureau opined, “A construction of [Subsection 7(a)(1)’s] provisions to allow the Governor to extend the 30 day period would render the limitation clause meaningless. A more reasonable construction, taking into consideration the other provisions of the Act, is that the Governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days.” Am. Compl. Ex. 7, Office of the Attorney General, Emergency Preparedness: Emergency Authority to Respond to an Outbreak of Foot and Mouth Disease, July 2, 2001, at 5-6. The Bureau further noted, “Even though many disaster situations could require remediation for a period long in excess of 30 days, normal governmental processes, including legislative action, can be set in motion to meet such needs within 30 days of the occurrence.”3 Id. at 6.

3

The powers afforded to the Governor in the Illinois Emergency Management Agency Act are broad,

allowing the Governor to affect nearly every aspect of Illinois citizens’ lives. They allow him, for example, “to take

possession of, and to acquire full title or a lesser specified interest in, any personal property as may be necessary,”

subject to certain provisions for compensation, 20 ILCS 3305/7(4); “[t]o recommend the evacuation of all or part of

the population from any stricken or threatened area within the State,” 20 ILCS 3305/7(6); “[t]o control ingress and

egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein,”

20 ILCS 3305/7(8); to “control, restrict, and regulate by rationing, freezing, use of quotas, prohibitions on

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The Governor triggered his emergency powers in his March 9, 2020, Proclamation, and 30 days following that Proclamation concluded on April 8, 2020. Although it is for the Illinois’ courts, not the United States, to interpret state law, it is not clear from the face of the Act from where the Governor derived his authority to issue a second proclamation of public health emergency relating to COVID-19 and, in any event, his Executive Order, which purported to continue until April 30, 2020, far exceeded the 30-day limit set forth in the Act.
Although the Governor has, in the state court, also invoked his authorities under the Illinois Constitution, art. V, § 8, to support the Orders, see, e.g., Mot. to Dismiss, ¶ 1, he did not rely upon any such authority in the Orders themselves, see Compl., Exs. 1-4. We note, without expressing a view on the proper interpretation or application of the Illinois Constitution, that the Supreme Court of Illinois has previously declined to consider alternative assertions of authority for an executive order. Buettell v. Walker, 59 Ill.2d 146, 154 (1974) (“The defendants have also suggested that the order may be justified as a rule or regulation under section 5 of the Illinois Purchasing Act . . . We find it unnecessary to pursue this suggestion beyond noting that the order on its face purports to be the exercise by the Governor of an authority independently derived from the Constitution, and not the exercise of a delegated power.”).
Moreover, it is far from clear that such authority exists under the Illinois Constitution as interpreted by the Illinois Supreme Court. Article V, section 8, provides, “The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.” The Illinois Constitution does not attempt to define the executive power so conferred, People v.
shipments, price fixing, allocation or other means, the use, sale, or distribution of food, feed, fuel, clothing and other commodities, materials, goods, or services; and [to] perform and exercise any other functions, powers, and duties as may be necessary to promote and secure the safety and protection of the civilian population,” 20 ILCS 3305/7(12). The breadth of these authorities may explain why the Illinois legislature, as a policy matter, may have included a 30day time period.
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Hammond, 355 Ill. Dec. 1, 16 (2011), but the Supreme Court of Illinois has previously held that this power does not include the power “to formulate a new legal requirement rather than to execute an existing one.” Buettell, 59 Ill.2d at 153-54. The Attorney General of Illinois has accordingly opined: “[T]he Governor does not have power to legislate by executive order, and, therefore, unless authorized by law, an executive order relating to matters other than executive reorganization can be no more than a policy directive to agencies under the Governor’s control. To conclude otherwise would cede to the Governor legislative powers which he is prohibited from exercising by the separation of powers doctrine.” Office of the Attorney General, Applicability of Executive Orders, Administrative Orders, and Directives Limiting the Use of Appropriated Funds to Executive Agencies Not Under the Governor’s Jurisdiction, Dec. 23, 2013, at 6.
III. This Case Has Federal Implications, But Such Implications Are Not Sufficient To Support Removal.
The United States does not typically weigh in on alleged violations of state law, and it defers to the Illinois courts’ resolution of such matters. After all, it is the States, in the exercise of their retained sovereignty, who are tasked with remedying violations of state law. But the Orders at issue are not only of critical importance to the people of Illinois, they implicate a broader national issue about constitutional rights in the time of a pandemic. As this Court is well aware, the federal government, the District of Columbia, and all 50 States have declared states of emergency and taken essential steps to contain the spread of the COVID-19 pandemic. See, e.g., Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020).4

4

Presidential Proclamation, Proclamation on Declaring a National Emergency Concerning the Novel

Coronavirus Disease (COVID-19) Outbreak, 85 F.R. 15337 (Mar. 13, 2020), available at

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-

coronavirus-disease-covid-19-outbreak/

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The Constitution does not hobble States from taking necessary, temporary measures to meet a genuine emergency. According to the Supreme Court, “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905). In Jacobson, for example, the Court explained that “[a]n American citizen arriving at an American port” who had traveled to a region with yellow fever “may yet, in some circumstances, be held in quarantine against his will.” Id. The “settled rule [from Jacobson],” a federal court of appeals recently concluded, “allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.” In re Abbott, 954 F.3d 772, 778 (5th Cir. 2020).5
For that reason, courts generally review State action taken to preserve public health during a pandemic under a deferential standard of review. See, e.g., Jacobson, 197 U.S. at 28 (“Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large, was arbitrary and not justified by the necessities of the case.”); Compagnie Francaise de Navigation a Vapeur v. La State Bd. of Health, 186 U.S. 380, 397 (1902) (upholding Louisiana’s quarantine of healthy passengers aboard a vessel during an outbreak of yellow fever against a Fourteenth Amendment challenge); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (“[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease”).

5

Jacobson dealt with a state statute and county board of health regulation, and the Supreme Court thus had

no occasion to pass upon the powers of the federal government in the context of a national public health emergency,

nor any constitutional limitations that may apply to such powers.

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But that deferential standard of review is not an abdication of judicial review. Even in the context of a pandemic, State actions undertaken pursuant to the police power are subject to important limitations. See Jacobson, 197 U.S. at 31, 38-39; Robinson v. Attorney Gen., 957 F.3d. 1171, 1177 (11th Cir. 2020) (“[J]ust as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency.”). That is, even during a pandemic, state actions undertaken in service of the public health cannot be divorced from that end and cannot clearly infringe constitutional rights. Thus, “if a statute purporting to have been enacted to promote the public health, the public moral or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Jacobson, 197 U.S. at 31.
State action may impermissibly deviate from having a “real or substantial relation” to the public health in a number of ways. First, State action may be “exercised in particular circumstances and in reference to particular persons” in “an arbitrary, unreasonable manner.” Id. at 28. For example, 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. Although “the day is gone when th[e Supreme] Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought,” the Supreme Court still requires that a law be “rationally related to the public health and welfare.” See Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 488-89 (1955). And when certain fundamental rights are at issue, Supreme Court precedent requires more. See, e.g., Maryvale Baptist Church, Inc. v. Beshear, 957 F.3d 610, 613
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(6th Cir. 2020) (“We don’t doubt the Governor’s sincerity in trying to do his level best to lessen the spread of the virus or his authority to protect the Commonwealth’s citizens . . . . But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.”).
Second, the Supreme Court has held that, even in a pandemic, a State may exceed the bounds of its police power when it “go[es] so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” Jacobson, 197 U.S. at 28; id. (upholding Massachusetts’ mandatory vaccination requirement in part because smallpox was “prevalent and increasing at Cambridge”); see also Lee Optical of Oklahoma, Inc., 348 U.S. at 488.
Third, a State action, purportedly taken pursuant to its police power, may raise federal constitutional concerns in certain extraordinary cases where the action both is wholly unauthorized and imposes broad and intrusive restrictions on individual liberties. After all, a pandemic does not excuse a State from following its own law governing procedures to protect the public health. See German Alliance Ins. Co. v. Hale, 219 U.S. 307, 317 (1911) (“[A]ll corporations, associations, and individuals, within the jurisdiction of a state, are subject to such regulations, in respect of their relative rights and duties, as the state may, in the exercise of its police power, and in harmony with its own and the Federal Constitution, prescribe for the public convenience and the general good.” (emphasis added)); Jacobson, 197 U.S. at 12 (noting that the board of health in Cambridge possessed the statutory authority to require and enforce the vaccination of its inhabitants). And although “a mere error of state law is not a denial of due process,” Swarthout v. Cooke, 562 U.S. 216, 222 (2011), the Supreme Court has also held that the Due Process Clause of the Fourteenth
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Amendment to the U.S. Constitution operates as a bulwark against arbitrary and oppressive action by the States, see, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998).
Although Bailey, as master of his complaint, elected not to press a constitutional claim— or, indeed, any federal claim—the arguments he makes implicate this potential limit on state action. The Supreme Court has held that the “right to remove from one place to another according to inclination [is] an attribute of personal liberty protected by the Constitution,” Chicago v. Morales, 527 U.S. 41, 53 (1999), and the Orders plainly restrict that right, see Compl., Ex. 2, § 1 (“[A]ll individuals currently living within the State of Illinois are ordered to stay at home or at their place of residence except as allowed in this Executive Order.”). Indeed, the Governor himself acknowledges numerous constitutional violations that may be implicated by Bailey’s complaint as result of his Orders. Case 3:20-cv-00474-GCS, Doc. 1, Notice at ¶ 5-11 (First Amendment right to free exercise of religion, Fourteenth Amendment right to procedural due process, “liberty interests” and the right to interstate travel, and the right to a Republican Form of Government conferred by Article IV, Section 4 of the United States Constitution).
If Bailey is correct that these executive orders are wholly without authorization under Illinois law, then the Orders’ imposition of broad and intrusive restrictions on the people of Illinois would raise real questions about whether the people of Illinois have been deprived of their liberties without constitutionally adequate process. And these constitutional claims will likely be raised in other litigation. Cf. Compagnie Francaise de Navigation a Vapeur v. State Bd. of Health, 186 U.S. 380, 393 (1902) (contrasting the quarantine law upheld against a Due Process Clause challenge in that case with one not “lawfully adopted and enforced”). But for all of the reasons discussed in Part I, potential implications for federal claims in other cases has never been sufficient to support
19

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removal to a federal court. See Gunn, 568 U.S. at 258 (emphasizing the “special and small category of cases in which arising under jurisdiction still lies”).
CONCLUSION The Court should remand this matter to the Illinois Circuit Court, which is limited to the question whether the Governor has overstepped his authority under the Illinois statute. While this case is important, it does not arise under federal law and thus falls outside this Court’s jurisdiction. It is up to the Illinois courts to rule on Plaintiff’s claims, which, because of the sweeping nature of the Orders, may affect millions of lives and raise significant constitutional concerns in other litigation. Even in the face of a pandemic—indeed, one might say especially in the face of a pandemic—States must follow the legal processes they have established to protect their people’s health, while also protecting their people’s rights. Such legal processes enable the States to make the sensitive policy choices in a manner responsive to the people and, in doing so, both respect and serve the goals of our broader federal structure, including the guarantee of due process in the U.S. Constitution. A remand of this matter will likewise respect our federal structure and allow those processes to unfold.
Dated: May 22, 2020
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Case 3:20-cv-00474-GCS Document 15 Filed 05/22/20 Page 21 of 21 Page ID #300
Respectfully submitted, ERIC S. DREIBAND Assistant Attorney General ALEXANDER V. MAUGERI Deputy Assistant Attorney General ERIC W. TREENE Special Counsel JAMES M. CUTCHIN Assistant United States Attorney PETER T. REED Assistant United States Attorney
s/ Steven D. Weinhoeft
STEVEN D. WEINHOEFT United States Attorney Southern District of Illinois Nine Executive Drive Fairview Heights, Illinois 62208 (618) 628-3700 telephone (618) 628-3720 facsimile IL ARDC #6239656 E-mail: Steven.Weinhoeft@usdoj.gov Counsel for the United States of America
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 </s> FILED Clay Co. Circuit Court
4th Judicial Circuit Date: 4/23/2020 4:03 PM
Crystal Ballard
2020CH6

 </s> FILED Clay Co. Circuit Court
4th Judicial Circuit Date: 4/23/2020 4:03 PM
Crystal Ballard
2020CH6

 </s> FILED Clay Co. Circuit Court
4th Judicial Circuit Date: 4/23/2020 4:03 PM
Crystal Ballard
2020CH6

 </s>  </s> FILED Clay Co. Circuit Court
4th Judicial Circuit Date: 5/13/2020 4:01 PM
Crystal Ballard

IN THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT
CLAY COUNTY, ILLINOIS

Darren Bailey,
Plaintiff, vs. Governor Jay Robert Pritzker, in his official capacity.
Defendant.

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Case No. 2020-CH-06

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FIRST AMENDED VERIFIED COMPLAINT FOR . DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

COMES NOW Plaintiff, Darren Bailey, in his individual capacity, (hereinafter

referred to as "Bailey") by and through his attorneys, Thomas G. DeVore, Erik Hyam, and DeVore

Law Offices, LLC, and for his First Amended Verified Complaint for Declaratory Judgment and

Injunctive Relief against Defendant, Governor Jay Robert Pritzker (hereinafter referred to as

"Pritzker"), in his official capacity, hereby alleges as follows:

1. Pritzker is currently the duly elected Governor of the State of Illinois.

2. Bailey is a citizen and lawful resident of Clay County Illinois.

3. On March 09, 2020, Pritzker issued a proclamation declaring, as of that date, a

disaster existed within Illinois as a result of the COVID-19 virus. (See Exhibit 1 hereinafter

referred to as "COVID #1")

4. Pritzker issued the proclamation pursuant to the authority granted him under the

Illinois Emergency Management Agency Act. (See 20 ILCS 3305 et seq., hereinafter referred to

as the "IEMAA")

1

5. The IEMAA states: "In the event ofa disaster, as defined in Section 4, the Governor

may by proclamation declare that a disaster exists." (See 20 ILCS 3305/7)

6. Section 4 of The Act defines a disaster as follows:

"Disaster" means an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism. (See 20 ILCS 3305/4)

7. In COVID#l, Pritzker states the COVID-19 virus is a novel severe acute respiratory

illness. (See 2nd whereas clause ofCOVID#l)

8.

In COVID#l, Pritzker determined the respiratory illness not to be a disaster but to

be a currently existing "public health emergency." (See 15th whereas clause of COVID# I.)

9. In COVID#l, Pritzker declared all 102 counties within Illinois a disaster area as a

result of COVID-19. (See Section I of COVID# I)

10. Under the auspices of COVID#l, Pritzker utilized his emergency powers wherein

he issued various executive orders.

11. On April 01, 2020, Pritzker issued another disaster proclamation. (See Exhibit 2

hereinafter referred to as "COVID#2")

12. In COVID#2, Pritzker states the COVID-19 virus is novel severe acute respiratory

illness. (See Ist whereas clause of COVID#2)

13. In COVID#2, Pritzker found COVID-19 is a public health emergency. (See 15th

whereas clause ofCOVID#2.)

14. As such in COVID#2, Pritzker declares the COVID-19 illness to be a "continuing

disaster". (See Section I of COVID#2.)

2

15. Because he construed COVID#2 as a continuing proclamation of disaster, Pritzker further declared a continuation of his authority to wield the emergency powers of section 7 of the IEMAA. (See Section 1 ofCOVID#2.)
16. As a result of COVID#2, Pritzker utilized his emergency powers wherein he executed and continued various executive orders from that time through and including April 30, 2020.
17. On April 30, 2020, Pritzker issued yet another proclamation of disaster. (See Exhibit 3 hereinafter referred to as COVID#3.)
18. In COVID#3, Pritzker states the COVID-19 virus is novel severe acute respiratory illness. (See 3rd whereas clause of COVID#3.)
19. Yet again, Pritzker acknowledges in COVID#3 that COVID-19 is a current public health emergency. (See whereas clause 52 and 53 in COVID#3.)
20. As a result of COVID#3, Pritzker utilized his emergency powers wherein he executed and continued various executive orders until May 31, 2020.
21. As a result ofCOVID#l, COVID#2 and COVID#3, Pritzker is attempting to wield the emergency powers under the IEMAA for approximately 81 days.
22. The very occurrence for which Pritzker found a disaster existed in COVID#l, COVID#2 and COVID#3 was the exact same novel severe acute respiratory illness.
23. COVID#2 and COVID#3 were both issued for exact 30-day periods. 24. Subsequent to a proper disaster proclamation, the IEMAA confers specific enumerated powers upon the Governor of the State of Illinois. (See 20 ILCS 3305/2(a)(2).) 25. Amongst those enumerated powers are fourteen (14) emergency powers as provided in section 7 of The Act. (See 20 ILCS 3305/7)
3

26. Section 7 of the IEMAA expressly states: "Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers .... (See 20 ILCS 3305/7)
27. As a result of Proclamation #3, Pritzker issued Executive Order 2020-32 (hereinafter "EO 32"). (See Exhibit 4)
28. As alleged authority to issue EO 32, Pritzker relies on two authorities: a) Powers vested in him as the Governor of the State of Illinois. b) Sections 7(1), 7(2), 7(3), 7(8), 7(9) and 7(12) of the IEMAA. (See the "THEREFORE" clause on page 2 ofEO 32) 29. Pritzker further states the emergency powers exercised in EO 32 were consistent with public health laws. (See the "THEREFORE" clause on page 2 of EO 32) 30. Upon information and belief, the public health laws which Pritzker states are consistent with his authority in EO 32 is assuredly the Illinois Department of Public Health Act, being 20 ILCS 2305 et seq. (hereinafter referred to as "IDPHA") (See the "THEREFORE" clause on page 2 ofEO 32) 31. IDPHA provides for general supervision of the interests of the health and lives of the people of the State. (See 20 ILCS 2305/2(a)) 32. Under the IDPHA, the Department of Public Health (the "Department") has supreme authority in matters of quarantine and isolation. Id. (Emphasis Added) 33. The Department may declare and enforce quarantine and isolation, when none exists, and may modify or relax quarantine and isolation when it has been established. Id. 34. Subject to the provisions of subsection (c), the Department may order a person or group of persons to be quarantined or isolated or may order a place to be closed and made off
4

limits to the public to prevent the probable spread of a dangerously contagious or infectious disease, including non-compliant tuberculosis patients, until such time as the condition can be corrected or the danger to the public health eliminated or reduced in such a manner that no substantial danger to the public's health any longer exists. (See 20 ILCS 2305/2(b).)
35. The IDPHA specifically admonishes that no person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction. (See 20 ILCS 2305/2(c).)
36. The Department may, however, order a person or a group of persons to be quarantined or isolated or may order a place to be closed and made off limits to the public on an immediate basis without prior consent or court order if, in the reasonable judgment of the Department, immediate action is required to protect the public from a dangerously contagious or infectious disease. Id.
37. In the event of an immediate order issued without prior consent or court order, the Department shall, as soon as practical, within 48 hours after issuing the order, obtain the consent of the person or owner or file a petition requesting a court order authorizing the isolation or quarantine or closure. Id.
38. To obtain a court order for isolation, quarantine, or closure, the Department, by clear and convincing evidence, must prove that the public's health and welfare are significantly endangered by a person or group of persons that has, that is suspected of having, that has been exposed to, or that is reasonably believed to have been exposed to a dangerously contagious or infectious disease or by a place where there is a significant amount of activity likely to spread a dangerously contagious or infectious disease. Id.
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39. The Department must also prove that all other reasonable means of correcting the problem have been exhausted and no less restrictive alternative exists. Id.
40. Persons who are or are about to be ordered to be isolated or quarantined and owners of places that are or are about to be closed and made off limits to the public shall have the right to counsel. Id.
41. Persons who are ordered to be isolated or quarantined or who are owners of places that are ordered to be closed and made off limits to the public, shall be given a written notice of such order. Id.
42. The written notice shall additionally include the following: (1) notice of the right to counsel; (2) notice that ifthe person or owner is indigent, the court will appoint counsel for that person or owner; (3) notice of the reason for the order for isolation, quarantine, or closure; (4) notice of whether the order is an immediate order, and if so, the time frame for the Department to seek consent or to file a petition requesting a court order as set out in this subsection; and (5) notice of the anticipated duration of the isolation, quarantine, or closure. Id.
43. Because the Department is an agency of the State of Illinois and because Pritzker is the chief executive officer of the State of Illinois, upon information and belief, Pritzker is familiar with and charged with knowledge of the IDPHA.
44. Pritzker is also familiar with and charged with knowledge of the Plan and administrative rules of the Department attached herein. (See Exhibits 5 and 6 respectively)
45. The Plan, consistent with relevant provisions of state law provides: "[The Department] is authorized to order a person to be quarantined or isolated or a place to be closed and made offlimits to the public to prevent the probable spread of a dangerously contagious or infectious disease until such time as the condition may be corrected or the danger to the public health eliminated or reduced in such a manner that no substantial danger to the public's health any longer exists (20 ILCS 2305/2(b)). No person may be ordered to be quarantined or isolated and no place
6

may be ordered to be closed and made off limits to the public, however, except with the consent of the person or the owner of the place or upon the order of a court of competent jurisdiction (20 ILCS 2305/2(c)). In order to obtain a court order, IDPH must prove, by clear and convincing evidence, that the public's health and welfare are significantly endangered and all other reasonable means of correcting the problem have been exhausted and no less restrictive alternative exists (20 ILCS 2305/2(c))." (See Page 71 of The Plan.) 46. The Department has explicitly delegated its authority to order isolation, quarantine and closure to certified local health departments. (See Page 71 of The Plan.) (Emphasis Added) 47. The IDPHA generally defines quarantine as restricting the movement of people or restricting their activities. 48. IDPH's promulgated administrative rules regarding procedural safeguards must be followed when restricting the movements or activities of the people, or closing businesses, to control disease spread. (See Exhibit 6.). 49. The board of health of each county or multiple-county health department shall: a) Within its jurisdiction, and professional and technical competence, enforce and
observe all State laws pertaining to the preservation of health..... See 55 ILCS 5/5-25013 (A)(6). b) Within its jurisdiction, and professional and technical competence, investigate the existence of any contagious or infectious disease and adopt measures, not inconsistent with the regulations of the State Department of Public Health... See 55 ILCS 5/5-25013 (A)(7).
COUNT I DECLARATORY JUDGMENT FINDING THE APRIL 30 PROCLAMATION IS VOID FOR FAILING TO MEET THE DEFINITION OF A DISASTER AS DEFINED IN THE IEMAA 50. Plaintiff incorporates paragraphs 1-49 as if more fully stated herein.
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51. In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. (See 20 ILCS 3305/7)
52. Section 4 defines a disaster as follows: "Disaster" means an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism." 53. Thus, under Section 4, a "disaster" exists only if there is an occurrence or threat requiring emergency action to avert its effects. 54. For purposes of this action, Bailey does not dispute that on March 09, 2020 when Pritzker issued COVID#1 an occurrence or threat of a widespread natural cause which could cause loss oflife existed and as such there was a requirement ofemergency action to avert a public health emergency. 55. In order to trigger executive authority under the IEMAA, the proposed emergency action by the executive must be necessary to avert the danger or damage or epidemic~ 56. However, COVID#2 which is ostensibly predicated on the same provision of the IEMAA, the same independent analysis applies, as only in the event of a disaster, as defined in Section 4, may the Governor by proclamation declare that a disaster exists. (See 20 ILCS 3305/7) 57. Once again, as defined in the IEMAA, a disaster by definition must require emergency action to avert, inter alia, a public health emergency. 58. Pritzker states in COVID#2 "based upon the foregoing, the circumstances surrounding COVID-19 constitute a continuing public health emergency under section 4 of the IEMAA" (See 12'h whereas of COVID #2)
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59. On April 30, 2020, Pritzker signed COVID#3. 60. The analysis concerning the triggering of executive authority applies equally to COVID#3. In other words, the prerequisite to a disaster declaration under the IEMAA is the necessity of action to avert, inter alia, a public health emergency. 61. As the ever-increasing amount of ink is consumed with each serial proclamation, the relevant provision can be found at the 9th whereas clause on page 4 of COVID#3. It states in relevant part: "the current circumstances in Illinois surrounding the spread of COVID-19 constitute an epidemic emergency and a public health emergency under section 4 of the IEMAA." 62. Since it purports to restrict his rights and interests, Bailey has a right to insist COVID#3, which declared a disaster, was within the authority granted Pritzker by the legislature. 63. Contrary to Pritzker' contention in COVID#3, Section 4 of the IEMAA does not define what constitutes an epidemic or a public health emergency. 64. As such, the emergency powers of Section 7 of the IEMAA can only be invoked to try and prevent or ward off those enumerated matters such as a public health emergency. 65. Pritzker admits in COVID#2 and COVID#3 that COVID-19 constitutes a thenexisting public health emergency. 66. Given Pritzker's express acknowledgment in COVID#3 on April 30, 2020 that a public health emergency then existed, it is impossible for him to legally declare a disaster. 67. By definition, Pritzker could only declare a disaster in regard to the COVID-19 virus if emergency action was required to avert a public health emergency. 68. Pritzker admits the public health emergency exists and makes it clear he is engaging in numerous efforts to manage the existing public health emergency.
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69. However, Pritzker cannot declare a disaster to manage a then present public health emergency as such acts are beyond the powers granted him by the legislature.
70. Bailey has a right to insist COVID#3 which declared a disaster was within the authority granted Pritzker by the legislature.
71. An actual controversy exists between the parties in regard to the authority of Pritzker to issue and enforce his executive orders 'and proclamations which have the effect of restricting Bailey's movements and preventing Bailey from attending worship services.
72. An immediate and definitive determination is necessary to clarify the rights and interests of the parties.
WHEREFORE, Plaintiff, Darren Bailey, herein requests that this court enter an Order: A. declaring Pritzker admitted in COVID#2 that a public health emergency existed on
that date; B. declaring Pritzker admitted in COVID#3 that a public health emergency existed on
that date; C. declaring that Section 4 of the IEMAA defines a disaster exists only when it
requires emergency powers to avert a public health emergency; D. finding COVID#3 is void ab initio as no disaster existed on that date as defined in
Section 4 ofthe IEMAA; E. finding that any emergency powers under Section 7 of the IEMAA which were
invoked in EO 32 are null and void ab initio; F. Awarding Bailey his costs incurred in this matter as may be allowed by law; G. That the Court grant such other and further relief as is just and proper.
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COUNT II DECLARATORY JUDGMENT FINDING PRITZKER HAD NO AUTHORITY TO UTILIZE EMERGENCY POWERS AFTER APRIL 08, 2020 73. Bailey restates paragraphs 1-72 as if more fully stated herein. 74. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers. (See 20 ILCS 3305/7) 75. Pritzker has by devise been exercising emergency powers under Section 7 of the IEMAA since March 09, 2020. 76. Pritzker has issued serial proclamations from March 09, 2020 through April 30, 2020. 77. Each time he issues a new proclamation, he contemporaneously issues new executive order(s) under the emergency power of section 7 of the IEMAA. 78. Notwithstanding there is no 30-day requirement under the IEMAA as to disaster proclamations, Pritzker has included arbitrary 30-day deadlines in COVID#l, COVID#2, COVID#3. 79. In each and every disaster proclamation, Pritzker refers to the same COVID-19 virus as the genesis of his proclaiming a disaster. 80. The IEMAA has no such requirement regarding any termination date m a proclamation of disaster. 81. Upon information and belief, Governor Rauner was the first Governor who placed arbitrary 30-day deadlines in his disaster proclamations. 82. Upon information and belief, Governor Rauner never issued back to back 30-day proclamations.
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83. Upon information and belief, Pritzker is the first Governor of this state to issue serial proclamations back to back for the purpose of energizing the 30-day emergency powers to attempt to seize control the movement and activities of the people, and forcible closure of businesses, of the entire State of Illinois.
84. Among these emergency powers, Pritzker has taken unilateral control over the movement and livelihood of every citizen in the State.
85. The legislative branch during this period of executive rule under the emergency powers has been rendered meaningless.
86. In this Court on April 27, 2020, the Illinois Attorney General's office, on behalf of Pritzker, took the position that a clear reading of Section 7 leaves only one conclusion and that is the proclamation gives rise to the 30 day emergency powers and that as long as a proclama,_tion is done in good faith then there is no limit the duration of the emergency powers extensions that can be had as long as a new proclamation issued.
87. That is a precarious proposition given each serial proclamation is for the exact same occurrence which gave rise to the initial proclamation.
88. What is even more precarious is an Illinois Attorney General opinion exists which glaringly contradicts the proposition of Pritzker. (See Exhibit 7)
89. On or about July 02, 2001, Attorney General Jim Ryan was presented this very question by then acting Director of the Illinois Emergency Management Authority.
90. Attorney General Ryan, and his staff, properly acknowledged he must attempt to give meaning to the expressed intent of the legislature and to avoid construction that would render any portion void. (Pg. 5 of Exhibit 8)
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91. Attorney Ryan went on to advise that the act was clear in that it authorized emergency powers for 30 days and construction of the statute any other way would render the limitation clause meaningless. Id.
92. He further advised more reasonable construction, taking into consideration the other provisions of the Act, is that the Governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days. Id.
93. This construction is supported by references to section 9 ofthe Act (20 ILCS 3305/9 (West 2000)), which pertains to the financing of disaster response measures. Section 9 provides for the Governor's use of paiticular appropriated funds for emergency purposes, and, if necessary and the General Assembly is not in session, the transfer of funds from other accounts or the borrowing of additional funds, but only "until such time as a quorum of the General Assembly can convene in regular or extraordinary session".The purpose of this provision, like section 7 of the Act, is to empower the Governor to deal immediately with emerging emergency situations. Even though many disaster situations could require remediation for a period long in excess of 30 days, normal governmental processes, including legislative action, can be set in motion to meet such needs within 30 days of the occurrence. Id.
94. Pritzker did not advise the Honorable Court of this analysis by Attorney General Ryan.
95. This Attorney General opinion lays bare the overreach of the executive branch being perpetrated by this gamesmanship.
96. Bailey has a right to insist Pritzker not engage in activities designed to circumvent limitations on his authority imposed by the legislature.
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97. An actual controversy exists between the parties in regard to the authority of Pritzker to issue serial proclamations for the same disaster for the purpose of continuing to exercise emergency powers.
98. An immediate and definitive determination is necessary to clarify the rights and interests of the parties.
WHEREFORE, Plaintiff, Darren Bailey, herein requests that this court enter an Order: A) declaring Pritzker issued COVID#2 and COVID#3 for the same COVID-19 virus which
gave rise to the issuance of COVID#l on March 09, 2020; B) declaring the 30-days of emergency powers provided under Section 7 of the IEMAA
lapsed on April 08, 2020; C) declaring COVID#2 and COVID#3 did not reset the 30-day emergency provisions under
Section 7 of the IEMAA; D) declaring any executive orders finding their authority under the emergency powers of
Section 7 of the IEMAA after April 08, 2020 are void ab initio; E) Awarding Bailey his costs incurred in this matter as may be allowed by law; F) That the Court grant such other and further relief as is just and proper.
COUNT III DECLARATORY JUDGMENT FINDING THAT THE ILLINOIS DEPARTMENT OF HEALTH ACT GOVERNS THE CONDUCT OF STATE ACTORS IN THIS CONTEXT
99. Bailey restates paragraphs 1-98 as if more fully stated herein. 100. In relation to the specific matters raised herein, in order to restrict a citizen's movement or activities, or close a citizen's business, Pritzker must have acted under the Illinois constitutional powers vested in him as Governor, or under the powers delegated to him under The IEMAA by the legislative branch.
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101. Nowhere in EO 32 does Pritzker identify what Illinois constitutional power is vested in him to restrict a citizen's movement or activities or seize control of any citizen's business and order the premises closed.
102. His suggestion of having constitutional authority is nothing but conclusory. 103. As Governor, he is the supreme executive of the State of Illinois. 104. In that role, he is charged with the faithful execution of the laws of the State and not the making of laws. 105. Restrict a citizen's movement or activities or seizing control of citizen's business premises and ordering it closed is a clear utilization of the police powers of the State. 106. Police powers are vested in the sound discretion of the legislative branch of government. 107. As such, Pritzker must find authority to restrict a citizen's movement or activities, or forcibly close any citizen's business premises under the cited sections of the IEMAA. 108. The power would have been delegated to him by the legislative branch, and ifhe has none, the order restricting a citizens' movement or activities and/or closure of any citizen's business premises would be unlawful and void. 109. Even under the most strained interpretation of Pritzker's cited sections 7(1), 7(2), 7(3), 7(8), 7(9) and 7(12) of The IEMAA, nowhere can it be found where the legislative branch delegated any power to Pritzker to forcibly restrict a citizen's movement or activities and/or close private businesses. 110. Pritzker made it clear EO 32 was not intended to alter or modify any existing State, County or local authority over restrict a citizens' movement or activities and/or ordering business closures. (See Section 19 ofEO 32)
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111. Bailey does not dispute in times such as these, and at all times for that matter, the Department has the authority to restrict a citizen's movement or activities and/or forcibly close the business premises if circumstances give rise to a public health risk.
112. The legislative branch in its sound discretion placed the supreme authority over such matters with the Department pursuant to the IDPHA.
113. Pritzker attempts to cobble together a basis for delegated authority under his cited sections of EO 32, should not remotely compel this Court that Pritzker's strained and desperate interpretation might in anyway supersede the express supreme authority vested in the Department of Health by the people's lawmaking branch of our government.
114. The supreme authority over matters restricting a citizen's movement or activities and closure of businesses due to health risks is quite compelling language the legislature used when granting the Department this extraordinary power.
115. The Department has determined that relevant authority under the IDPHA must be exercised by each county's board of health in a manner consistent with state law.
116. Baily has aright to insist Pritzker act solely within the scope ofthe authority granted to him by the legislature, and, specifically, be constrained from acting beyond the authority granted to him under the IEMAA. Among other things, Pritzker is subject to the limitations on his authority under the IEMAA and must conform his actions to provisions of the IDPHA.
117. An actual controversy exists between the parties in regard to the authority of Pritzker to enter and enforce those provisions ofEO 32 which restrict the movement and activities of persons, and the closure of businesses.
118. An immediate and definitive determination is necessary to clarify the rights and interests of the parties.
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WHEREFORE, Plaintiff, Darren Bailey, herein requests that this court enter an Order: A declaring Pritzker had no Illinois constitutional authority as Governor to restrict a
citizen's movement or activities and/or forcibly close the business premises in EO 32; B. declaring that none of the cited provisions of the IEMAA in EO 32 delegated Pritzker any authority to restrict a citizen's movement or activities and/or forcibly close their business premises; C. declaring the proper authority to restrict a citizen's movement or activities and/or forcibly close their business due to any public health risks has been expressly delegated to the Department of Health under the Illinois Department of Public Health Act; D. Awarding Bailey his costs incurred in this matter as may be allowed by law; E. That the Court grant such other and further relief as is just and proper.
COUNT IV FOR INJUNCTIVE RELIEF 119. Plaintiff restates paragraphs 1-118 as if more fully stated herein. 120. Bailey has the following separate and distinct rights as it relates to this cause: a) To insist Pritzker not exceed his authority by issuing disaster proclamations which fail to meet the definition of a disaster under Section 4 of the IEMAA; b) To insist Pritzker not exceed his authority in arbitrarily extending the emergency powers of section 7 of the IEMAA beyond the 30-day limitation. c) To insist Pritzker does not have any authority to restrict the movement or activities or business closures under the IEMAA, as that authority was expressly delegated to the Department.
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121. Bailey is being in-eparably harmed each and every day in which he continues to be subjected to Pritzker's ultra vires executive order. Among other things, Bailey is prohibited from attending worship services and is subject to potential enforcement actions in the event and to the extent he engages in activities proscribed by EO 32 and the other relevant executive orders and declarations.
122. Bailey has no adequate remedy at law to prohibit Pritzker from enforcing the executive orders against him absent an injunction from this Court ordering the same. In that respect, the relevant executive orders and declarations constitute prior restraints which cannot be fully remedied by an award of damages.
123. There is a reasonable likelihood of success on the merits as COVID#3 clearly was not issued pursuant to a disaster as defined by the IEMAA.
124. There is a reasonable likelihood ofsuccess on the merits as Pritzker has no authority to extend the emergency powers of section 7 of the IEMAA beyond 30 days.
125. There is a reasonable likelihood of success on the merits as Pritzker has no authority under the IEMAA to restrict the movement or activities of people, or business closures.
126. There is a reasonable likelihood of success on the merits because the IDPHA governs the matters at issue in connection with COVID-19, the Department has delegated its authority under the IDPHA to county public health departments for purposes of enforcement consistent with applicable law, and county public health departments have not acted within the scope of and subject to the limitations on their authority under the IDPHA.
WHEREFORE, Plaintiff, Dan-en Bailey, prays that this Court enter judgment in his favor and: A. Find and determine Plaintiff has a right to insist that Pritzker act only within the scope of the
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authority granted to him by the legislature.
B. Find and dete1mined Bailey is irreparably harmed each day he is subjected to the executive
orders relative to this cause.
C. Find and determine Bailey has no adequate remedy at law to protect his rights against any
unlawful orders of Pritzker beyond injunctive relief.
D. Find and determine Bailey has a likelihood of success on the merits.
E. Enter an injunction permanently enjoining Pritzker, or anyone under his authority, from
enforcing EO 32 from this date forward.
F. For such other relief as this Court deems just and proper.
Respectfully submitted,
By: Isl Thomas Devore Thomas G. DeVore IL Bar Reg. No. 6305737 DeVore Law Offices, LLC Attorneys for Plaintiff 118 N. 2nd St. Greenville, IL 62246 Telephone - 618-664-9439 tom@silverlakelaw.com
Isl Erik Hyam ErikHyam IL Bar No. 6311090 DeVore Law Offices, LLC Attorneys for Plaintiff 118 N. Second Street Greenville, IL 62246 Tel. (618) 664.9439 Fax (618) 664.9486 erik@silverlakelaw.com
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VERIFICATION

Underpennllies of perjury as provided by law pursuant to Section 1-109 of the Code of Civil

Procedure, the undersigned certifies that the statements set forth in this instrument are true

and correct except as to matters therein stated to be on Information and belief, ifany, and as

to such matters the undersigned certifies as aforesaid that the undersigned verily believes the

same to be tnic.
Date: S - 13

'2020

D~
By:------------Darren Bailey

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GUBERNATORIAL DISASTER PROCLAMATION
WHEREAS, in late 2019, a new and significant outbreak of Coronavirus Disease 2019 (COVID-19) emerged in China; and,
WHEREAS, COVID-19 is a novel severe acute respiratory illness that can spread among people through respiratory transmissions and present with symptoms similar to those of influenza; and,
WHEREAS, certain populations are at higher risk of experiencing more severe illness as a result of COVID-19, including older adults and people who have serious chronic medical conditions such as heart disease, diabetes, or lung disease; and,
WHEREAS, we are continuing our efforts to prepare for any eventuality given that this is a novel illness and given the known health risks it poses for the elderly and those with serious chronic medical conditions; and,
WHEREAS, the World Health Organization declared COVID-19 a Public Health Emergency oflntemational Concern on January 30, 2020, and the United States Secretary ofHealth and Human Services declared that COVID-19 presents a public health emergency on January 27, 2020; and,
WHEREAS, the World Health Organization has reported 109,578 confirmed cases of COVID-19 and 3,809 deaths attributable to COVID-19 globally as of March 9, 2020; and,
WHEREAS, in response to the recent COVID-19 outbreaks in China, Iran, Italy and South Korea, the Centers for Disease Control and Prevention ("CDC") has deemed it necessary to prohibit or restrict non-essential travel to or from those countries; and,
WHEREAS, the CDC has advised older travelers and those with chronic medical conditions to avoid nonessential travel, and has advised all travelers to exercise enhanced precautions; and,
WHEREAS, the CDC currently recommends community preparedness and everyday prevention measures be taken by all individuals and families in the United States, including voluntaiy home isolation when individuals are sick with respiratory symptoms, covering coughs and sneezes with a tissue, washing hands often with soap and water for at least 20 seconds, use of alcohol-based hand sanitizers with at least 60% alcohol if soap and water are not readily available, and routinely cleaning frequently touched surfaces and objects to increase community resilience and readiness for responding to an outbreak; and,
WHEREAS, a vaccine or drug is currently not available for COVID-19; and,
WHEREAS, in communities with confirmed COVID-19 cases, the CDC currently recommends mitigation measures, including staying at home when sick, when a household
EXHIBIT
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 </s> FILED Clay Co. Circuit Court
4th Judicial Circuit Date: 5/18/2020 12:54 PM
Crystal Ballard

IN THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT
CLAY COUNTY, ILLINOIS

Darren Bailey,
Plaintiff, vs. Governor Jay Robert Pritzker, in his official capacity.
Defendant.

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Case No. 2020-CH-6

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MOTION FOR SUMMARY JUDGMENT

COMES NOW Plaintiff, Darren Bailey, (hereinafter referred to as “Bailey”) by and

through his attorneys, Thomas G. DeVore, Erik Hyam, and DeVore Law Offices, LLC, and for his

Motion for Summary Judgment pursuant to 735 ILCS 5/2-1005 against the Defendant, Governor

Jay Robert Pritzker (hereinafter referred to as “Pritzker”), in his official capacity, and hereby states

as follows:

PROCEDURAL AND LEGAL STANDARD AS TO A SUMMARY JUDGMENT REQUEST

1. Any time after the opposite party has appeared or after the time within which he or she is

required to appear has expired, a plaintiff may move, with or without supporting affidavits,

for a summary judgment in his or her favor for all or any part of the relief sought. (See

735 ILCS 5/2-1005 (a).)

2. The judgment sought shall be rendered without delay if the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law. (See 735 ILCS 5/2-1005 (c).)

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3. Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. State Farm Mutual Automobile Insurance Co. v. Collins, 258 Ill.App.3d 1, 629 N.E.2d 762, 763, 196 Ill.Dec. 217 (1st Dist. 1994).
4. Summary judgment “is an important tool in the administration of justice; its use in a proper case is to be encouraged and its benefits inure not only to the litigants…but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trial.” Kimbrough v. Jewel Cos., 92 Ill.App.3d 813, 416 N.E.2d 328, 333, 48 Ill. Dec. 297 (1st Dist. 1981).
5. There are no issues of material fact in this cause and the pertinent facts to this matter can be found in the public records all of which are attached as exhibits in this cause. REQUEST FOR SUMMARY JUDGMENT AS TO COUNT I OF THE FIRST AMENDED COMPLAINT
6. In the event of a disaster, as defined in Section 4 of the Illinois Emergency Management Agency Act (“IEMAA”), the Governor may by proclamation declare that a disaster exists. (See 20 ILCS 3305/7.)
7. On March 09, 2020, Pritzker entered his first disaster proclamation (“Proclamation #1”) regarding the COVID-19 virus. (See Exhibit 1 attached to the Complaint.)
8. Proclamation #1 found COVID-19 to be a public health emergency under Section 4 of the IEMAA. (See whereas #15 of Proclamation #1.)
9. Pritzker stated in Proclamation #1, he issued the proclamation pursuant to the authority granted him under the IEMAA.
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10. Notwithstanding there being no provision in the IEMAA requiring the inclusion of an expiration date, Pritzker set Proclamation #1 to expire 30 days from issuance.
11. On April 01, 2020, Pritzker issued his second disaster proclamation (“Proclamation #2”) regarding the COVID-19 virus. (See Exhibit 2 attached to the Complaint.)
12. Pritzker stated in Proclamation #2, he issued the proclamation pursuant to the authority granted him under the IEMAA.
13. In Proclamation #2, Pritzker states: “based on the foregoing, the circumstances surrounding COVID-19 constitute a continuing public health emergency under Section 4 of the Illinois Emergency Management Agency Act.” (See 15th whereas clause of Proclamation #2.) (Emphasis Added.)
14. Notwithstanding there is no provision in the IEMAA requiring the inclusion of an expiration date, Pritzker set Proclamation #2 to expire 30 days from issuance.
15. On April 30, 2020, Pritzker issued his third and most recent disaster proclamation (“Proclamation #3”) regarding the COVID-19 virus. (See Exhibit 3 attached to the Complaint.)
16. Pritzker stated in Proclamation #3, he issued the proclamation pursuant to the authority granted him under the IEMAA.
17. In Proclamation #3, Pritzker acknowledges “the current circumstances in Illinois surrounding the spread of COVID-19 constitute an epidemic emergency and a public health emergency under section 4 of the IEMAA.” (See whereas clause 52 in Proclamation #3.) (Emphasis Added.)
18. As a product of COVID#3, Pritzker issued Executive Order 2020-32 (hereinafter “EO 32”). (See Exhibit 4 attached to the Complaint.)
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19. Section 4 of the IEMAA defines a disaster as follows: “Disaster” means an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism. (See 20 ILCS 3305/4. Emphasis Added.)
20. An express requisite for Pritzker to have authority to issue a disaster proclamation under the IEMAA is the existence of an ‘occurrence or threat’, and the occurrence or threat requires emergency action to avert, inter alia, a public health emergency.
21. Pritzker expressly acknowledges in Proclamation #2 that a public health emergency existed prior to April 01, 2020, and that public health emergency was the very same COVID-19 which was the genesis of Proclamation #1 on March 09, 2020, so by clear definition of what constitutes a disaster under Section 4 of the IEMAA, an ‘occurrence or threat’ for issuing Proclamation #2 did not lie.
22. As of April 01, 2020, the only occurrence existing which required the issuance of Proclamation #2 regarding COVID-19 was Pritzker’s arbitrary 30-day deadline he placed in Proclamation #1.
23. On April 01, 2020, Pritzker did not require emergency powers to avert a public health emergency caused by COVID-19 given he acknowledged in Proclamation #2 an extant public health emergency had existed since March 09, 2020.
24. Also, Pritzker expressly acknowledges in Proclamation #3 the disaster which existed on April 30, 2020 was the same disaster which existed on March 09, 2020, all being due to the same COVID-19 virus.
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25. As of April 30, 2020, the only occurrence existing which required the issuance of Proclamation #3 regarding COVID-19 was Pritzker’s arbitrary 30-day deadline he had placed in Proclamation #2.
26. Until such time as the legislature defines an allowable “occurrence” under Section 4 of the IEMAA to be an arbitrary deadline which artificially terminated an otherwise allowable disaster proclamation, such an occurrence does not fit the definition of a disaster under the law.
27. Given no disaster existed as defined by Section 4 of the IEMAA, Pritzker had no authority to issue Proclamation #2 and/or Proclamation #3 for the purpose of triggering the emergency powers of Section 7 of the IEMAA. WHEREFORE, Plaintiff, Darren Bailey, herein request that this court enter an Order
entering judgment in his favor against the Defendant for the following relief: A. declaring Pritzker admitted in Proclamation #2 that the disaster which existed on April 01, 2020 was the same disaster which existed on March 09, 2020; B. declaring Pritzker admitted in Proclamation #3 that the disaster which existed on April 30, 2020 was the same disaster which existed on March 09, 2020; C. declaring that Section 4 of the IEMAA defines a disaster exists only when a threat or occurrence requires emergency powers to avert, inter alia, a public health emergency; D. declaring the arbitrary deadlines placed in prior proclamations fail to be allowable occurrences under Section 4 of the IEMAA to authorize the issuance of Proclamation #3.
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E. finding Proclamation #3 is void ab initio as no threat or occurrence existed on that date as defined in Section 4 of the IEMAA;
F. finding that any emergency powers under Section 7 of the IEMAA which were invoked in EO 32 by authority are null and void ab initio;
G. Awarding Bailey his costs incurred in this matter as may be allowed by law; H. That the Court grant such other and further relief as is just and proper.
REQUEST FOR SUMMARY JUDGMENT AS TO COUNT II OF THE FIRST AMENDED COMPLAINT 28. On March 09, 2020, Pritzker issued a Proclamation #1 declaring, as of that date, a disaster existed within Illinois as a result of the COVID-19 virus. (See Exhibit 1 attached to the Complaint.) 29. COVID#1 was proclaimed in response to COVID-19 which Pritzker defines as a novel severe acute respiratory illness. (See 2nd whereas clause of Proclamation #1.) 30. Pritzker’s Proclamation #1 remained in effect for only 30 days due to its express terms. (See Section 11 of Proclamation #1.) 31. The IEMAA contains no provision which states Proclamation #1 must have provided a limit on its period of effectiveness. 32. On April 01, 2020, Pritzker issued Proclamation #2 regarding COVID-19. (See Exhibit 2 attached to the Compliant.) 33. In Proclamation #2, Pritzker states the COVID-19 virus is a novel severe acute respiratory illness. (See 1st whereas clause of Proclamation #2)
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34. Given Pritzker declared Proclamation #2 a continuing disaster, Pritzker further declared a continuation of his authority to wield the emergency powers of section 7 of the IEMAA. (See Section 1 of Proclamation #2.)
35. Pritzker’s Proclamation #2 remained in effect for only 30 days due to its express terms. (See Section 12 of Proclamation #2.)
36. The IEMAA contains no provision which states Proclamation #2 must have provided a limit on its period of effectiveness.
37. On April 30, 2020, Pritzker issued Proclamation #3 regarding COVID-19. (See Exhibit 3 attached to the Complaint.)
38. In Proclamation #3, Pritzker states the COVID-19 virus is a novel severe acute respiratory illness. (See 3rd whereas clause of Proclamation #3.)
39. Pritzker’s Proclamation #3 is to remain in effect for 30 days. (See Section 12 of Proclamation #3.)
40. The IEMAA contains no provision which states Proclamation #3 must provide a limit on its period of effectiveness.
41. Given Pritzker declared Proclamation #3 a disaster, Pritzker further declares his authority to wield the emergency powers of section 7 of the IEMAA. (See Section 1 of Proclamation #2.)
42. Pritzker’s Proclamation #3 is to remain in effect for 30 days. (See Section 12 of Proclamation #3.)
43. As a result of Proclamation #3, Pritzker issued Executive Order 2020-32 (hereinafter “EO 32”). (See Exhibit 4 attached to the Complaint.)
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44. In EO 32, Pritzker cites subsections 7(1), 7(2), 7(3), 7(8), 7(9) and 7(12) of Section 7 of the IEMAA as authority to exercise emergency powers.
45. Upon a proclamation of disaster, the Governor shall have and may exercise for a period not to exceed 30 days certain enumerated emergency powers. (See 20 ILCS 3305/7.)
46. Section 4 of the IEMAA defines a disaster as follows: “Disaster” means an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism. (See 20 ILCS 3305/4.)
47. The very “occurrence or threat” for which Pritzker found a disaster existed in Proclamation #2 and Proclamation #3 is the exact same ‘occurrence or threat, for which a disaster was declared in Proclamation #1.
48. The novel severe acute respiratory virus, being COVID-19, was the exact ‘occurrence or threat’ in each of the three disaster proclamations.
49. The only reason Proclamation #2 and Proclamation #3 issued was due to the arbitrary 30day termination provision Pritzker placed in each of the disaster proclamations.
50. The IEMAA is clear a Governor shall have and may exercise the emergency powers for a period not to exceed 30 days from the date of a proclamation of a disaster.
51. The serial proclamations, being Proclamation #1, Proclamation #2 and Proclamation #3 were a product of the exact same “occurrence or threat” which gave rise to a disaster being declared in Proclamation #1.
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52. It should be readily apparent to this Honorable Court that Pritzker issued Proclamation #2 and Proclamation #3 for the sole purpose of triggering the reanimation of the emergency powers of Section 7 of the IEMAA.
53. The Attorney General’s Office acknowledged this scheme in this Honorable Court on April 27, 2020.
54. Pritzker’s arbitrary 30-day disaster proclamations, as to the expression provisions to trigger the emergency powers provisions, are ultra vires efforts and beyond the powers of Section 7 authorized by the legislature in the IEMAA. WHEREFORE, Plaintiff, Darren Bailey, herein requests that this court enter an Order:
A) declaring Pritzker issued Proclamation #2 and Proclamation #3 for the same occurrence or threat which gave rise to the issuance of Proclamation #1 on March 09, 2020;
B) declaring the 30-days of emergency powers provided under Section 7 of the IEMAA provided to the Governor to address the COVID-19 lapsed on April 08, 2020;
C) declaring any provision within Proclamation #2 and Proclamation #3 triggering a reset of the 30-day emergency powers under Section 7 of the IEMAA be invalid;
D) declaring any executive orders finding their authority under the emergency powers of Section 7 of the IEMAA are void ab initio subsequent to April 08, 2020;
E) Awarding Bailey his costs incurred in this matter as may be allowed by law; F) That the Court grant such other and further relief as is just and proper.
REQUEST FOR SUMMARY JUDGMENT AS TO COUNT III OF THE FIRST AMENDED COMPLAINT 55. Section 7 of the IEMAA expressly states: “Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers…” (See 20 ILCS 3305/7.)
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56. As a result of Proclamation #3, Pritzker issued Executive Order 2020-32 (hereinafter “EO 32”).
57. Section 2, Part 1, of EO 32, ordered all citizens of the state of Illinois to stay at home, or at their place of residence, except as allowed by EO 32. (See the referenced provision of EO 32.)
58. This stay at home provision practically separated and restricted the movement and activities of all citizens of this state, whether they be ill or not.
59. As it relates to citizens, EO 32 states “the intent of the executive order is to ensure that the maximum number of people self-isolate in the places of residence…” (See section 16 of EO 32.)
60. Section 2, Part 2, of EO 32, ordered all “non-essential” businesses cease all activity, except for minimum basis operations. (See the referenced provision of EO 32.)
61. As alleged authority to issue EO 32, Pritzker relies on two sources: a) Powers vested in him as the Governor of the State of Illinois; and, b) Sections 7(1), 7(2), 7(3), 7(8), 7(9) and 7(12) of the IEMAA. (See the “THEREFORE” clause on page 2 of EO 32)
62. In regard to Pritzker’s powers vested in him by the Illinois Constitution, he states: “whereas, the Illinois Constitution, in Article V, Section 8, provides that the governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws, and states in the Preamble, that a central purpose of the Illinois Constitution is to provide for the health, and welfare of the people” (See 2nd to last whereas clause of EO 32.)
63. The following provisions of the IEMAA are also cited as authority.
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64. Section 7(1) states: (1) To suspend the provisions of any regulatory statute prescribing procedures for conduct of State business, or the orders, rules and regulations of any State agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder or delay necessary action, including emergency purchases, by the Illinois Emergency Management Agency, in coping with the disaster. (See 20 ILCS 3305/7(1).)
65. Section 7(2) states: (2) To utilize all available resources of the State government as reasonably necessary to cope with the disaster and of each political subdivision of the State. (See 20 ILCS 3305/7(2).)
66. Section 7(3) states: (3) To transfer the direction, personnel or functions of State departments and agencies or units thereof for the purpose of performing or facilitating disaster response and recovery programs. (See 20 ILCS 3305/7(3).)
67. Section 7(8) states: (8) To control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein. (See 20 ILCS 3305/7(8).)
68. Section 7(9) states: (9) To suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles. (See 20 ILCS 3305/7 (9).)
69. Section 7(12) states: (12) Control, restrict, and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food, feed,
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fuel, clothing and other commodities, materials, goods, or services; and perform and exercise any other functions, powers, and duties as may be necessary to promote and secure the safety and protection of the civilian population. (See 20 ILCS 3305/7(12).) 70. The Illinois Constitution does not confer upon Pritzker the power to issue EO 32 for the purpose of separating and restricting the movement and activities of every citizen of this state, whether they be ill or not. 71. None of the six enumerated provisions of the IEMAA cited by Pritzker in EO 32 delegate authority for him to separate and restrict the movement and activities of every citizen of this state, whether they be ill or not. 72. The Illinois Constitution does not confer upon Pritzker the power to issue EO 32 for the purpose of forcibly closing every business in this state which he concluded to be nonessential. 73. None of the six enumerated provisions of the IEMAA delegate authority to Pritzker the power to forcibly close every business in this state which he concluded to be non-essential. 74. Any strained interpretation of any of the six enumerated provisions of the IEMAA which Pritzker may argue delegated him arbitrary authority to separate and restrict the movement and activities of every citizen of this state, whether they be ill or not, or to forcibly close all businesses which he concluded to be non-essential, would be in direct contravention to the supreme authority delegated to the Illinois Department of Health (“IDPH”) by the legislative branch of government pursuant to 20 ILCS 2305 et seq. 75. IDPH has general supervision of the interests of the health and lives of the people of the State. (See 20 ILCS 2305/2(a).) 76. It has supreme authority in matters of quarantine and isolation. (See 20 ILCS 2305/2(a).)
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77. IDPH defines quarantine as “the separation and restriction of movement or activities of persons who are not ill…” (See key terms on page 66 of IDPH Pandemic Plan attached to the Complaint as Exhibit 5.)
78. Subject to the provisions of subsection (c), the Department may order a person or group of persons to be quarantined or isolated or may order a place to be closed and made off limits to the public to prevent the probable spread of a dangerously contagious or infectious disease. (See 20 ILCS 2305/2(b).)
79. Except as provided in this Section, no person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction. (See 20 ILCS 2305/2(c).)
80. If the legislative intent of 20 ILCS 2305 et seq. is not clear enough to support the legislature intended to give supreme authority of quarantined, isolation and business closures to the IDPH, further legislative action in the county code provides additional support. (See 55 ILCS 5/5-25001 et seq.)
81. The board of health of each county or multiple-county health department shall: a) Within its jurisdiction, and professional and technical competence, enforce and observe all State laws pertaining to the preservation of health… (See 55 ILCS 5/525013(A)(6).) b) Within its jurisdiction, and professional and technical competence, investigate the existence of any contagious or infectious disease and adopt measures, not inconsistent with the regulations of the State Department of Public Health… (See 55 ILCS 5/525013(A)(7).)
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82. Nothing written in the IEMAA can be construed as an intent by our legislature to delegate to the executive office such extraordinary power over our people.
83. Our legislature in 20 ILCS 2305 et seq. and 55 ILCS 5/5-25001 et seq. has clearly given supreme authority over such matters to IDPH and each local county board of health. WHEREFORE, Plaintiff, Darren Bailey, herein requests that this court enter an Order:
A. declaring Pritzker had no Illinois constitutional authority as Governor to restrict a citizen’s movement or activities and/or forcibly close business premises in EO 32; B. declaring that none of the cited provisions of the IEMAA in EO 32 delegated Pritzker any authority to restrict a citizen’s movement or activities and/or forcibly close business premises; C. declaring the proper authority to restrict a citizen’s movement or activities and/or forcibly close their business due to any public health risks has been expressly delegated to the Department of Health under the Illinois Department of Public Health Act and the County Code; D. Declaring any provision of EO 32 which restrict a citizen’s movement or activities and/or forcibly closes business premises is void ab initio; E. Awarding Bailey his costs incurred in this matter as may be allowed by law; F. That the Court grant such other and further relief as is just and proper.
Respectfully submitted,
By: /s/ Thomas Devore Thomas G. DeVore IL Bar Reg. No. 6305737 DeVore Law Offices, LLC Attorneys for Plaintiff 118 N. 2nd St. Greenville, IL 62246 Telephone - 618-664-9439 tom@silverlakelaw.com
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/s/ Erik D. Hyam Erik D. Hyam IL Bar No. 6311090 DeVore Law Offices, LLC Attorneys for Plaintiff 118 N. Second Street Greenville, IL 62246 Tel. (618) 664.9439 Fax (618) 664.9486 erik@silverlakelaw.com CERTIFICATE OF SERVICE PLEASE TAKE NOTICE that, the undersigned hereby certifies, that a true and correct copy of the foregoing was served via the electronic filing system, this 18th Day of May, 2020, to: Thomas J. Verticchio Assistant Chief Deputy Attorney General Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 (312) 814-5354 (office) tverticchio@atg.state.il.us
and that the original was filed with the Clerk of the Court in which said cause is pending.
/s/ Thomas DeVore Thomas DeVore
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 </s> FILED Clay Co. Circuit Court
4th Judicial Circuit Date: 5/19/2020 2:03 PM
Crystal Ballard

IN THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT
CLAY COUNTY, ILLINOIS

DmTen Bailey Plaintiff,
vs. Governor Jay Robert Pritzker, in his official capacity.
Defendant.

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Case No. 2020-CH-06

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LEGAL BRIEF IN SUPPORT OF DARREN BAILEY'S MOTION FOR SUMMARY JUDGMENT

COMES NOW Plaintiff, Darren Bailey, (hereinafter "Bailey") by and tln·ough his

attorneys, Thomas G. DeVore, Erik Hyam, and DeVore Law Offices, LLC, and provides this

memorandum in support of his cause, and hereby states:

INTRODUCTION

1. Bailey readily recognizes COVID-19 is a serious public health matter which has required

a conce1ied effort to combat and protect our state's public health interest.

2. Bailey's objection to Governor Pritzker's ("Pritzker") effmis lies not solely with the

efficacy of the unilateral decisions being made, but more with the blatant usurping of long-

standing legislative solutions which were already in place to manage such public health

emergencies.

3. These long-standing legislative solutions enacted to protect the public health include

numerous statutory procedural and substantive due process protections to preserve our

people's individual libe1iies during these trying times, which intentionally or not, have

been absolutely shredded by the executive branch over the last two months.

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4. Bailey acknowledges that on March 09, 2020, COVID-19 constituted an occutrnnce or threat, which rose to the level of a disaster, as it required at that time emergency measures to try and avert a public health emergency, all as defined in Section 4 of the IEMAA.
5. As of the filing of his Motion for Summaiy Judgment, Bailey offers no facts in dispute that as of the filing of Proclamation #3 on April 30, 2020 a public health emergency which originated on March 09, 2020 still existed.
6. The issue of whether or not a public health emergency existed on April 30, 2020 is but a red-hening to deflect from the substantive matters actually present in this cause.
7. Bailey contends the operative provisions of the IEMAA have been perverted by the executive office to wield emergency powers far in excess of the legislative grant to address any such public health emergency.
8. As a direct result of the unilateral action of Pritzker in response to COVID-19, our state and local economies have been devastated and many good people have lost their livelihoods.
9. The economic and societal costs resulting from Pritzker's ai·bitraiy decisions will have far reaching impacts lasting a generation or more.
10. Thousands of businesses Pritzker deemed non-essential have been forced to close their doors and many are staring at the stark reality of financial ruin.
11. Our citizens wake up each day and must determine if their free will has been restrained by Pritzker's list of essential activities.
12. It is undeniable a public health emergency such as this presents challenges to government, businesses and individuals, but these challenges demand a balancing of the public health with all individual's God-given rights, and not just for those who have been arbitrarily
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deemed essential by an administrative agency, which agency determination of essentiality was beyond the purview of the watchful public eye. 13. The rule of law forged by our forefathers, and maintained by the sacrifices of millions of patriots in our history, cannot be cast aside during times of crisis, as it is these ve1y times when the rule of law is needed to protect our people. 14. Each of Bailey's three counts for declarat01y judgment are matters for which justice requires a timely resolve via summaty judgment. 15. There are no issues of material fact in either of the three causes. 16. The facts and circumstances in the public record speak for themselves. 17. Each of the tlu·ee matters which the Court is being asked to resolve only require a review of the public records, all of which were attached as exhibits in this cause: 18. When the Comt reviews all of these documents and relevant statutes, and applies current legal precedent, Bailey avers that summary judgment should be granted in his favor on all tlu·ee counts.
LEGAL FRAMEWORK OF STATUTORY INTERPRETATION 19. The cai·dinal rule of statut01y construction, to which all other canons and rules ai·e
subordinate, is to asce1tain and give effect to the true intent and meaning of the legislature. People v. Boykin (1983), 94 Ill.2d 138, 141, 68 Ill.Dec. 321, 445 N.E.2d 1174, quoting People ex rel. Hanrahan v. White (1972), 52 Ill.2d 70, 73, 285 N.E.2d 129.) 20. In dete1mining the legislative intent, courts should consider first the statutory language. Boykin, 94 Ill.2d at 141.
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21. Unambiguous terms, when not specifically defined, must be given their plain and ordinaiy meaning. Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill.2d 450, 455, 145 Ill.Dec. 894, 557 N.E.2d 873.
22. The courts presume that the General Assembly, in passing legislation, did not intend absurdity, inconvenience, or injustice and a statute will be interpreted so as to avoid a construction which would raise doubts as to its validity. Harris v. Manor Healthcare Corp., 489 N.E.2d 1374, 111Ill.2d350, 95 Ill.Dec. 510 (Ill. 1986)
23. The courts also will avoid a construction of a statute which would render any portion of it meaningless or void. Id.
24. Under accepted and established rules of statutmy construction, when more than one act might apply to a situation, the more specific provisions prevail over the more general ones in cases of conflict. Winnebago County v. Davis, 509 N.E.2d 143, 156 Ill.App.3d 535, 108 Ill.Dec. 717 (Ill. App. 1987); Board ofEducation v. Carter (1983), 119 Ill. App. 3d 857, 75 Ill.Dec. 882, 458 N.E.2d 50.; Board ofEduc. ofMinooka Community High School Dist. No. 111, Grundy, Kendall and Will Counties v. Carter, 458 N.E.2d 50, 119 Ill.App.3d 857, 75 Ill.Dec. 882 (Ill. App. 1983) OTHER OPERATIVE LEGAL AUTHORITY
25. Section 8 of article V of the Constitution does not grant a Governor the authority to promulgate new legal requirements via executive orders. Buettell v. Walker, 319 N.E.2d 502, 59 Ill.2d 146 (Ill. 1974)
26. An executive order can be utilized to execute an existing law but it is not a vehicle for establishing a new one. Id.
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27. According to the Honorable Former Attorney General Lisa Madigan, a Governor does not have the power to legislate by executive order, and therefore, unless authorized by law an executive order relating to matters other than executive reorganization can be no more than a policy directive to agencies under the Governor's control. (See 2013 Ill. Att'y Gen. Op. 002)
28. According to the Honorable F01mer Attorney General Jim Ryan, emergency powers granted to a Governor under Section 7 of IEMAA cannot be extended beyond 30-days without legislative approval. (See 2001 Ill. Att'y Gen. Op. I-028)
29. Attorney General Ryan went on to advise the act was clear in that it authorized emergency powers for 30-days and constrnction of the statute any other way would render the limitation clause meaningless. Id.
30. Ryan found fmiher suppmi for this constrnction is suppmied by references to section 9 of the IEMAA, which pe1iains to the financing of disaster response measures. Section 9 provides for the Governor's use of paiiicular appropriated funds for emergency purposes, and, if necessaty and the General Assembly is not in session, the transfer of funds from other accounts or the borrowing of additional funds, but only "until such time as a quornm of the General Assembly can convene in regular or extraordinaiy session". The purpose of this provision, like section 7 of the Act, is to empower the Governor to deal i111111ediately with emerging emergency situations. Id.
31. Ryan finished by stating, even though many disaster situations could require remediation for a period long in excess of 30-days, normal goverlllllental processes, including legislative action, can be set in motion to meet such needs within 30-days ofthe occmTence. Id.
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32. In the case of emergencies it is indispensable to the preservation of public health that some administrative body should be clothed with authority to make adequate tules which have the force of law, and to put these rules and regulations into effect promptly. Barmore v. Robertson, 302 Ill. 422, 134 N.E. 815, 819 (Ill. 1922)
33. While the courts will not pass upon the wisdom of the means adopted to restrict and suppress the spread of contagious and infectious diseases, they will interfere if the regulations are arbitrary and unreasonable. Id.
34. Health authorities cannot promulgate and enforce rules which merely have a tendency to prevent the spread of contagious and infectious diseases. Id. 1
35. The health authorities cannot interfere with the liberties of a citizen until the emergency actually exists. Id.
36. IDPH has general supervision of the interests of the health and lives of the people of the State. (See 20 ILCS 2305/2(a))
37. IDPH has supreme authority in matters of quarantine and isolation. (See 20 ILCS 2305/2(a))
38. IDPH defines quarantine as "the separation and restriction of movement or activities of persons who are not ill ...." (See key terms on page 66 ofIDPH Pandemic Plan attached to the Complaint as Exhibit 5.)
39. Subject to the provisions of subsection (c), the Depaiiment may order a person or group of persons to be quarantined or isolated or may order a place to be closed and made off limits
1 This prohibition sounds awful shnilar to "flattening the curve". This is yet another exa1nple in this cause where Illinois Supreme Corut precedent is being ignored by Pritzker in that he is enforcing by executive fiat health regulations which have been deemed beyond the authority of government for a~nost a centmy.
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to the public to prevent the probable spread of a dangerously contagious or infectious disease. (See 20 ILCS 2305/2(b)) 40. Except as provided in this Section, no person or a group of persons may be ordered to be quarantined or isolated and no place may be ordered to be closed and made off limits to the public except with the consent of the person or owner of the place or upon the prior order of a court of competent jurisdiction. (See 20 ILCS 2305/2(c)) 41. Ifthe legislative intent of20 ILCS 2305 et seq. is not clear enough to support the legislature intended to give supreme authority of quarantined, isolation and business closures to the IDPH, fmiher legislative action in the county code provides additional supp01i. (See 55 ILCS 5/5-25001 et seq.) 42. The board of health of each county or multiple-county health depatiment shall a) Within its jurisdiction, and professional and technical competence, enforce and
observe all State laws pertaining to the preservation of health..... See 55 ILCS 5/525013 (A)(6). b) Within its jurisdiction, and professional and technical competence, investigate the existence of any contagious or infectious disease and adopt measures, not inconsistent with the regulations of the State Depatiment of Public Health... See 55 ILCS 5/525013 (A)(7). 43. A board of health must necessarily consist of more than one person, and it generally consists of several persons. Barmore, 134 N.E. at 820. 44. Many authorities contend that the administration of public health should be vested in an individual. Id.
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45. This contention is based on the ground that this form of administration of the health laws is productive of efficiency and economy. Id.
46. The same argument might be made in favor of an absolute monarchy, but the experience of the world has been that other fo1ms of government, perhaps more cumbersome and less efficient, insure to the people a more reasonable and less arbitrary administration of the laws. Id.
47. Whatever may be best, the Legislature of Illinois has said that the public health of cities shall be regulated and guarded by a board of health. Id.
48. The powers given to boards of health are extraordinaiy, and the legislature was evidently unwilling to leave to one person the dete1mination of such important and drastic measures as are given to such boai·ds. Id. (Emphasis Added)
AS TO COUNT I THE COURT SHOULD DELCARE THERE HAS BEEN ONLY ONE DISASTER AND AS SUCH PROCLAMATION #2 AND PROCLAMATION #3 FAILED TO
MEET THE DEFINITION OF A DISASTER AND AS SUCH ARE INVALID 49. In the TRO hearing on April 27, 2020, counsel for Pritzker ("Pritzker's Counsel") stated
to this Court that a declaration of disaster "triggers" the emergency provisions of section 7 of the IEMAA. (Transcript from TRO Hearing, Pg. 41, Lines 17-24) 50. Pritzker's Counsel stated: "so the triggering event is the proclamation and then the 30days." (Transcript from TRO Hearing, Pg. 42, Lines 2-3) 51. Pritzker's Counsel stated: "Ifthere's another proclamation, then there's another trigger, and, if there's another proclamation, then there's another trigger." (Transcript from TRO Heai·ing, Pg. 42, Lines 3-5)
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52. Pritzker's Counsel further stated: What's the guardrail? What's the guardrail because this can't go on forever? Well, the guardrail is that the Governor is required under the act to declare a disaster. (Transcript from TRO Hearing, Pg. 42, Lines 5-8)
53. The Court asked "What's to stop him from keeping on declaring a disaster for the next five years? (Transcript from TRO Hearing, Pg. 42, Lines 9-10)
54. Pritzker's Counsel stated: Mr. Bailey could bring a case and say his declaration of disaster was not taken in good faith, and that's the standard. (Transcript from TRO Hearing, Pg. 42, Lines 12-14)
55. Notwithstanding Pritzker's Counsel's suggested standard of bad faith, Bailey would never outright accuse Pritzker of arbitrarily reissuing disaster proclamations every 30days in bad faith merely as a ruse to attempt to maintain an executive stronghold on the state, but reasonable minds might be inclined to consider such a proposition.
56. The language ofthe IEMAA is clear that a disaster requires an 'occurrence or threat' which meets the definition of Section 4 of the IEMAA.
57. As for Proclamation #1, the occurrence or threat was COVID-19. 58. While efforts were certainly taken at the onset to try and avert a public health emergency,
by the time Proclamation #2 and Proclamation #3 were issued it was clear nothing was being aveiied anymore, and effmis were being taken to manage COVID-19. 59. There is absolutely one occurrence, and one occurrence only, evidencing why Proclamation #2 and Proclamation #3 were even issued, and that was due to arbitrary and unnecessary termination dates placed in the proclamations merely to reset the trigger of the emergency powers.
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60. Pritzker's Counsel at the April 27, 2020 hearing all but admitted to this Honorable Court that serial proclamations were being issued merely to "trigger" the emergency powers.
61. Triggering the extension of the emergency powers is not a threat or occurrence as defined in Section 4 ofthe IEMAA.
62. Case law is clear this Court should not interpret the IEMAA in such a way as to cause absurd results and this Court should always look for the true intent of the legislature.
63. In doing so, the Court must conclude the legislature never intended for the executive branch to issue serial disaster proclamations for the exact same disaster merely to trigger emergency powers.
64. Such an interpretation of the statute would render the express limitation on the emergency powers meaningless.
65. With the facts present, the Court could ce1iainly ente1iain the proffered standard that Proclamation #2 and Proclamation #3 were not issued in good faith, but it would suffice for the Court to merely find the legislature never intended the executive branch be allowed to place an arbitrary end date in a disaster proclamation merely to "trigger" a reset of the emergency powers with the issuance of a serial disaster proclamation regarding the exact same occurrence or threat which gave rise to the initial disaster proclamation.
66. The Court should find Proclamation #2 and Proclamation #3 were issued solely for the purpose to "trigger" a reset of the emergency powers of section 7 of the IEMAA.
67. As such, Proclamation #2 and Proclamation #3 should be deemed invalid for failure to meet the definition of a disaster of under Section 4 of the IEMAA.
68. Until such time as our legislature changes the definition of disaster to include a continuing proclamation may issue when necessary to create a fiction to arbitraTily extend the
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emergency powers to the executive branch, this Comt should decline to find such an injustice was intended by the legislature. 69. If the Court is not inclined to strike down the proclamation in total, the Court ought to invalidate the relevant provision of Proclamation #2 and Proclamation #3 which "trigger" the emergency powers. 70. Should the Court choose to invalidate just the relevant provision of Proclamation #2 which triggered a reset of emergency powers, it can be found in Section 1 of Proclamation #2. 71. Should the Comi choose to invalidate just the relevant provision of Proclamation #3 which triggered a reset of emergency powers, it can be found in Section 1 of Proclamation #3.
AS TO COUNT II THE COURT SHOULD DELCARE THE 30-DAY EMERGENCY POWERS LAPSED ON APRIL 08, 2020 72. Upon the issuance of a proclamation of disaster, Pritzker shall have and may exercise for a period not to exceed 30-days certain enumerated emergency powers. 73. Pritzker has by devise been exercising emergency powers under Section 7 of the IEMAA since March 09, 2020. 74. Counsel for Pritzker stated to this Comi that a declaration of disaster "triggers" the emergency provisions of section 7 of the IEMAA. (Transcript from TRO Hearing, Pg. 41, Lines 17-24) 75. Pritzker's Counsel fmther stated: "If there's another proclamation, then there's another h·igger, and, if there's another proclamation, then there's another h·igger." (Transcript from TRO Hearing, Pg. 42, Lines 3-5) 76. Pritzker has issued three proclamations of disaster. 77. The first on March 09, 2020; second on April 01, 2020; lastly April 30, 2020. 78. COVID-19 was a public health emergency at all times relevant.
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79. Pritzker placed an arbitrary 30-day expiration date m each of the three disaster proclamations.
80. The IEMAA has no such requirement regarding any termination date in a proclamation of disaster.
81. Each time Pritzker issues a new proclamation in 30-day increments, he continues to wield the emergency powers under Section 7 of the IEMAA for another 30-days.
82. In each and eve1y disaster proclamation, Pritzker refers to the exact same COVID-19 virus as the tln·eat or occurrence present substantiating his proclamation.
83. The documents and admissions of Pritzker' s Counsel evidence the serial proclamations of the same COVID-19 disaster are for no other purpose than to trigger emergency power for as long as Pritzker deems prudent.
84. The courts presume that the General Assembly, in passing legislation, did not intend absurdity or injustice.
85. The courts also will avoid a construction of a statute which would render any portion of said statute meaningless or void.
86. It's absurd to believe the legislature intended to allow the executive office to issue numerous consecutive proclamations of disaster for the exact same occurrence or tln·eat, which in this instance is COVID-19, and to allow the executive office to wield the extraordinary emergency powers into perpetuity.
87. Such an interpretation would also render the 30-day limit on emergency powers meaningless.
88. The issue of the 30-day limitation in the IEMAA was presented to former attorney general Jim Ryan in 2001.
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89. According to the Honorable Former Attorney General Jim Ryan, emergency powers granted to a Governor under Section 7 of IEMAA cannot be extended beyond 30-days without legislative approval.
90. Attorney General Ryan went on to advise the act was clear in that it authorized emergency powers for 30-days and construction of the statute any other way would render the limitation clause meaningless.
91. Ryan found further support by finding: a) This construction is suppmied by references to section 9 ofthe IEMAA, which pertains to the financing of disaster response measures. b) Section 9 provides for the Governor's use of particular appropriated funds for emergency purposes, and, if necessary and the General Assembly is not in session, the transfer of funds from other accounts or the bon-owing of additional funds, but only "until such time as a quornm of the General Assembly can convene in regular or extraordinaiy session". c) The purpose of this provision, like section 7 of the Act, is to empower the Governor to deal immediately with emerging emergency situations. d) Even though many disaster situations could require remediation for a period long in excess of 30-days, normal governmental processes, including legislative action, can be set in motion to meet such needs within 30-days of the occurrence.
92. Former Attorney General Ryan's opinion seems consistent with the intent of the legislature and Bailey asks this Comi to find that saine. AS TO COUNT III THE COURT SHOULD DELCARE PRITZKER HAS NO CONSTITUTIONAL POWER OR STATUTORY POWER TO EVER ORDER CITIZENS TO STAY AT HOME OR TO FORCIBLY CLOSE BUSINESSES
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93. Ifthose relevant paiis (stay at home and non-essential business closure) ofEO 32 are to be valid, Pritzker must find the authority to execute the same either in the Illinois Constitution or the IEMAA.
94. As alleged authority to issue EO 32, Pritzker relies on two sources: a) Powers vested in him as the Governor of the State of Illinois. b) Sections 7(1), 7(2), 7(3), 7(8), 7(9) and 7(12) of the IEMAA. (See the "THEREFORE" clause on page 2 of EO 32)
95. If the authority does not lie in at least one of those two sources, the relevant provisions of EO 32 are void. A. Pritzker has No Constitutional Grant of Authority
96. In EO 32, Pritzker states the following: "In regard to Pritzker's powers vested in him by the Illinois Constitution, he states: "whereas, the Illinois Constitution, in Atiicle V, Section 8, provides that the governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws, and states in the Preamble, that a central purpose of the Illinois Constitution is to provide for the health, and welfare of the people" (See 211d to last whereas clause ofEO 32)
97. Moreover, Pritzker's Counsel goes through great lengths at the TRO hearing on April 27, 2020 to convince the Comi Pritzker wields constitutional power to issue the relevant provisions of the executive orders such as those being disputed herein. (Transcript from TRO Hearing, Pg. 57, Lines 7-8) (Transcript from TRO Hearing, Pg. 58, Lines 4-5) (Transcript from TRO Hearing, Pg. 63, Lines 3-4)
98. It needs to be crystal elem-, on April 27, 2020, it was the assertion of Attorney General Kwame Raoul's Assistant Chief Deputy that Pritzker lawfully wields Illinois
14

Constitutional Authority to enter executive orders which restrict citizens movement and activities, and also to forcibly close businesses deemed non-essential in every corner of this state. 99. The Attorney General is the state's chief!egal officer and is responsible for protecting the public interest of the state and its people. 100. Protecting the rights of the good people of this state is an obligation of the Office of Attorney General. 101. One can only presume the Attorney General's Kwame Raoul's Office must have overlooked the penned opinion of Former Attorney General Ms. Lisa Madigan from 2013. 102. And one must further presume the Attorney General's Office was not familiar with Illinois Supreme Court authority which expressly forbids the use of executive orders for reasons argued proper to this Honorable Court on April 27, 2020. 103. Section 8 of miicle V of the Constitution does not grant a Governor the authority to promulgate new legal requirements via executive orders. Buettell v. Walker, 319 N.E.2d 502, 59 Ill.2d 146 (Ill. 1974) 104. An executive order can be utilized to execute an existing law but it is not a vehicle for establishing a new one. Id. 105.Ms. Madigan's interpretation of the authority of a Governor to legislate via executive order draws a stark contrast to those taken by the cunent office of Attorney General in this Comt. 106.It bem·s mentioning former Attorney General Madigan's opinion was grounded in the Illinois Supreme Court authority cited directly above.
15

107. F01mer Attorney General Madigan was c1ystal clear when she wrote: "unless authorized by law an executive order relating to matters other than executive reorganization can be no more than a policy directive to agencies under the Governor's control"
108. It is fair to say EO 32 goes just a tad bit further than a policy directive to agencies. 109. Contrary to the argument of the cu!1'ent Attorney General's Office in this Comi on April
27, 2020, Pritzker can find no refuge in the Illinois Constitution to issue those provisions ofEO 32 which trample upon the rights of eve1y citizen in this great state. No Delegated Authority from the IEMAA 110.None of the specifically enumerated provisions of the IEMAA expressly give Pritzker authority to restrict the movement of people and their activities, or to forcibly close businesses. 111. Only one of the six enumerated provisions of the IEMAA cited by Pritzker could even remotely provide a semblance of implied power. 112. Section 7(8) states: (8) To control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein. (See 20 ILCS 3305/7(8)) 113. While it would be a strained interpretation to say the least, the Court need only look to other statutory schemes as well as relevant case law to conclude the legislature never intended to delegate such extraordinary power to the executive in the IEMAA. 114. IDPH has supreme authority in matters of quarantine and isolation. 115. IDPH defines quarantine as "the separation and restriction of movement or activities of persons who are not ill ...."
16

116. The board of health of each county or multiple-county health department shall enforce all state laws pertaining to the preservation of health.
117. IDPH finds it authority in 20 ILCS 2305 et seq. which authority contains significant procedural and substantive safeguard protections for our people and businesses.
118. Our Illinois Supreme Court was clear almost 100 years ago that such power wielded over our people must be done by a board and not one person.
119. Should the Comt find it even necessary to compare the IDPHA and the IEMAA, only one conclusion can be drawn, and that is the legislature created a specific statut01y scheme for protecting the public health during times like these within the IDPHA.
120. That scheme includes a board of health in every county, with the oversight of our comts if necessaiy, which has been entrusted by our legislature, with balancing the protection of the public health with the liberty interests of our people.
121. IDPH wields the power to isolate and quarantine our citizens and to close our businesses when necessary to protect the public health.
122. Almost 100 years ago, our Supreme Court made it clear the legislature never intended to delegate such extraordinary power to one person.
123.Let alone to delegate this power to the heavy hand of the executive branch under the IEMAA, which act is devoid of any procedural safeguards afforded to our citizens in the IDPHA.
124. Pritzker has made no qualms about unleashing administrative agencies with "tools" to enforce his arbitraiy orders, which "tools" include potentially placing our citizens in handcuffs and jailing them, all without due process oflaw.
17

125. These actions by the executive branch show a complete disregard for the legislative and judicial branches of govemment.
126. In this great state the rnle of law reigns supreme, and as such this Court should conclude the legislature never granted the executive branch the power to issue orders to isolate and quarantine our citizens or to close our businesses under some implied interpretation of the IEMAA.
127. Such an interpretation would cause an injustice of inrmense proportions to our people and this Honorable Corui can safely presume the legislature intended no such purpose. Respectfully submitted,
By: Isl Thomas Devore
Thomas G. DeVore IL Bar Reg. No. 6305737 DeVore Law Offices, LLC Attorneys for Plaintiff 118 N. 2nd St. Greenville, IL 62246 Telephone - 618-664-9439 tom@silverlakelaw.com
18

CERTIFICATE OF SERVICE PLEASE TAKE NOTICE that, the undersigned hereby ce1iifies, that a ttue and correct copy of the foregoing was served via the electronic filing system, this 19111 Day of May, 2020, to:
Thomas J. Verticchio, Esq. Assistant Chief Deputy Attorney General Office of the Illinois Attorney General 100 West Randolph Street, 11111 Floor Chicago, Illinois 60601 (312) 814-5354 (office) (708) 525-7635 (cell) tverticchio@atg.state.il.us Mr. Isaac Jones, Esq. Assistant Attorney General, Special Litigation Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 ifreilichj ones@atg.state.il. us
By: /s/ Thomas Devore Thomas G. DeVore IL Bar Reg. No. 6305737 DeVore Law Offices, LLC Attorneys for Plaintiff 118 N. 2nd St. Greenville, IL 62246 Telephone - 618-664-9439 tom@silverlakelaw.com
19

 </s> Case 3:20-cv-00474-GCS Document 11 Filed 05/22/20 Page 1 of 5 Page ID #269

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

DARREN BAILEY,

Plaintiff,

v.

No. 3:20-cv-00474-GCS

GOVERNOR JB PRITZKER, in his official capacity,

Magistrate Judge Gilbert C. Sison

Defendant.

GOVERNOR’S MEMORANDUM IN OPPOSITION TO MOTION TO EXPEDITE HEARING ON EMERGENCY MOTION TO REMAND

Governor JB Pritzker, by his attorney, Illinois Attorney General Kwame Raoul,

respectfully submits this memorandum in opposition to Plaintiff Darren Bailey’s Motion To

Expedite Hearing On Emergency Motion To Remand. (ECF 9.) The Court should reject Bailey’s

request for the Court to remand the case sua sponte without even allowing the Governor to

respond on the merits of removal. Bailey provides no basis for expediting a hearing on his

remand motion. To the contrary, his actions in this litigation bely any claim of an emergency. He

vacated the TRO he previously obtained in state court, delayed two weeks before filing an

amended complaint and, after filing it, did not seek emergency relief or an expedited hearing.

That said, the Governor will be prepared to respond on the merits of Bailey’s remand

motion by Friday, June 5, 2020, or on a date set by the Court. In the meantime, the Governor’s

counsel acknowledge the Court’s status call on May 26, 2020, at 1 p.m. and will be on that call.

Procedural Background

1. On April 23, 2020, Bailey sued the Governor in the Circuit Court for the Fourth

Judicial Circuit in Clay County, Illinois (the “State Court”), challenging the Governor’s authority

to issue executive orders in the fight against the COVID-19 public health emergency. (ECF 1 at

1

Case 3:20-cv-00474-GCS Document 11 Filed 05/22/20 Page 2 of 5 Page ID #270
Ex. E.) Bailey followed with a motion for a temporary restraining order that was heard on April 27, 2020. (ECF 1 at Ex. B.) On April 27, 2020, the State Court granted Bailey’s motion for a TRO, but after the Governor appealed, Bailey requested that the TRO be vacated, which the Illinois appellate court did on April 30, 2020. (ECF 1 at Ex. I.)
2. On Friday, May 15, 2020, the State Court granted Bailey leave to file an amended complaint, and then, sua sponte, set a one-week schedule for summary judgment briefing. On Monday, May 18, 2020, Bailey filed a motion for summary judgment, then filed a brief in support of his motion the next day. Bailey did not seek a temporary restraining order, a preliminary injunction, or any other form of expedited or emergency briefing schedule or relief in connection with his amended complaint or summary judgment motion. (ECF 8 at 4.)
3. On May 21, 2020, for the reasons stated in the Notice of Removal, the Governor removed this matter to this Court. (ECF 1.)
4. Later on May 21, 2020, Bailey filed papers styled an “Emergency Motion To Remand” (ECF 7), “Memorandum In Support Of Emergency Motion To Remand” (ECF 8), and “Motion To Expedite Hearing On Emergency Motion To Remand” (ECF 9). Consistent with Local Rule 7.1, the court automatically gave the Governor until June 25, 2020 to respond to the remand motion. (ECF 7.) Bailey has requested that the Court waive Local Rule 7.1, consider his “Emergency Motion To Remand” on an expedited basis, remand the case “sua sponte,” and “not even give [the Governor] the benefit of time to respond” to Bailey’s remand motion. (ECF 9 ¶ 5.) On May 22, 2020, the Court set a telephonic status conference for May 26, 2020. (ECF 10.)
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Case 3:20-cv-00474-GCS Document 11 Filed 05/22/20 Page 3 of 5 Page ID #271

Bailey’s request for expedited remand without time to respond should be denied.

5. There is no emergency that would require the Court to waive the federal rules of

civil procedure and this Court’s Local Rules, and decide Bailey’s remand motion on an

expedited basis without granting the Governor time to respond in writing.

6. Bailey bases his demand for “emergency” consideration of his remand motion on

a professed “exigency of the circumstances, including the prior scheduling of a motion hearing.”

(ECF 9 ¶ 6.) There was no emergency in the removed action. Bailey had not filed any emergency

motion on his amended complaint, and he had previously voluntarily vacated the TRO he was

granted on April 27, 2020. See Bailey v. Pritzker, 2020 WL 2116566, *1 (Ill. App. Ct. 2020). His

conduct belies his claim of an emergency now.

7. Bailey further asserts this matter should be expedited because “federal jurisdiction

is non-existent in this case, and it is not even a close call.” (ECF 9 ¶ 5.) This assertion prejudges

the merits of the Governor’s removal and Bailey’s remand motion. Bailey’s request is contrary to

the rules of civil procedure, the Local Rules of the Court, and court precedent. See Darnell v.

Hoelscher Inc., 2011 WL 2461951, *1 (S.D. Ill. 2011) (allowing legal issues relating to removal

to be fully briefed and denying remand, notwithstanding plaintiff’s “emergency motion to

remand”).

For each of these reasons, the Governor respectfully requests that the Court deny Bailey’s

Motion To Expedite Hearing On Emergency Remand. Although the Court has already set June

25, 2020 for the Governor’s response to the remand motion consistent with Local Rule 7.1, the

Governor will be prepared to respond within 14 days from today, by June 5, 2020, or on another

date set by the Court, even though no emergency justifies expedited briefing.

Dated: May 22, 2020

Respectfully Submitted,

KWAME RAOUL

/s/ R. Douglas Rees

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Case 3:20-cv-00474-GCS Document 11 Filed 05/22/20 Page 4 of 5 Page ID #272

Attorney General of Illinois
Thomas J. Verticchio #6190501 Christopher G. Wells #6304265 Darren Kinkead #6304847 Isaac Freilich Jones #6289023 Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601
Laura K. Bautista #6289023 Office of the Illinois Attorney General 500 South Second Street Springfield, Illinois 62701

R. Douglas Rees #6201825 Deputy Attorney General, Civil Division Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-3498 rrees@atg.state.il.us

4

Case 3:20-cv-00474-GCS Document 11 Filed 05/22/20 Page 5 of 5 Page ID #273 CERTIFICATE OF SERVICE
The undersigned certifies that on May 22, 2020, he caused a true and correct copy of the foregoing to be served by electronic filing in the CM/ECF system on the following:
Steven M. Wallace SILVER LAKE GROUP, LTD. – GLEN CARBON 6 Ginger Creek Village Drive Glen Carbon, IL 62034 Tel.: 618-692-5275 Fax: (888) 519-6101 steve@silverlakelaw.com
By: /s/ R. Douglas Rees
5

 </s> Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 1 of 23 Page ID #342

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARREN BAILEY,

Plaintiff, v.
GOVERNOR JB PRITZKER, in his official capacity,

No. 3:20-cv-00474-GCS Magistrate Judge Gilbert C. Sison

Defendant.

GOVERNOR’S MEMORANDUM IN OPPOSITION TO REMAND

Dated: June 5, 2020
R. Douglas Rees #6201825 Thomas J. Verticchio #6190501 Christopher G. Wells #6304265 Darren Kinkead #6304847 Isaac Freilich Jones #6289023 Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601
Laura K. Bautista #6289023 Office of the Illinois Attorney General 500 South Second Street Springfield, Illinois 62701

KWAME RAOUL Attorney General of Illinois

Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 2 of 23 Page ID #343
This Court has jurisdiction over this action under the plain language of 28 U.S.C. § 1343(a)(3) because plaintiff Darren Bailey commenced this case to seek redress for conduct of the defendant, Governor JB Pritzker, acting under color of state law, that allegedly deprived Bailey of rights secured by the United States Constitution.
Background Bailey challenges the Governor’s COVID-19 response to preserve his “constitutionally protected freedoms.”
On April 23, 2020, Bailey sued the Governor in the Circuit Court for the Fourth Judicial Circuit in Clay County, Illinois (the “State Court”), challenging the Governor’s authority to issue certain executive orders in the fight against the COVID-19 public health emergency. (ECF 1-1, Ex. E.) Bailey alleged that the Governor’s executive order issued on March 20, 2020 “limit[ed] Bailey’s constitutionally protected freedoms in that it ordered him to stay at home, or at his place of residence, as well as limited his ability to travel within the state.” (Id. ¶ 12.) Bailey further alleged that the Governor continued to deprive him of these “constitutionally protected freedoms” by issuing an additional executive order on April 1, 2020, that “acted to restrain Bailey within his residence, as well as limit his travel.” (Id. ¶ 19.) To redress these deprivations, Bailey sought a declaratory judgment finding, inter alia, “that any further emergency executive orders in response to the COVID-19 continuing disaster . . . ordering Bailey remain within the confines of his home, as well as limit his travel . . . are void ab initio.” (Id. ¶ 34(E).) Bailey also sought an injunction enforcing that declaratory judgment. (Id. ¶¶ 35–40.) The State Court grants Bailey a temporary restraining order to protect Bailey’s “constitutionally protected freedoms,” but Bailey vacates the TRO.
On April 24, 2020, Bailey served on the Governor a motion for temporary restraining order and preliminary injunction seeking to enjoin the Governor from enforcing any COVID-19
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Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 3 of 23 Page ID #344
executive orders against him. (ECF 1-1, Exs. C, F, G.) That motion was heard on April 27, 2020.
(ECF 1-1, Ex. B.)
The State Court granted Bailey his requested TRO. Following the presentation of Bailey’s
argument, the State Court ruled that irreparable harm existed on federal constitutional grounds,
noting that “every second this Executive Order is in existence . . . the Bill of Rights is being
shredded. That is irreparable harm.” (Ex. A, at 60:17–21, Apr. 27, 2020 Report of Proceedings
(“Apr. 27, 2020 Tr.”).) In addition, the State Court also found a likelihood of success on the merits
for Bailey’s claims on federal constitutional grounds:
The court is guided by, among other things, the following: There is no pandemic exception to the fundamental liberties the constitution safeguards. Indeed, individual rights secured by the constitution do not disappear during a public health crisis. That’s In Re: Abbott, A-b-b-o-t-t, Federal 3d, 2020 West Law 1685929. That’s a Fifth Circuit appellate opinion. These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always in force and restrain government action. At the same time, the constitution does not hobble government from taking necessary temporary measures to meet a genuine emergency. According to our United States Supreme Court, in every well-ordered society charged with the duty of preserving, conserving the safety its members, the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand, and that is the Jacobson case which was also cited by the Attorney General. The settled rule from Jacobson, the Fifth Circuit recently explained, allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one's home. Courts owe substantial deference to government actions, particularly when exercised by states and localities under their police powers during a bona fide emergency. The Supreme Court also has instructed courts to intervene if a statute purporting to have been enacted to protect the public health or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law. That is also a quote from Jacobson . . . .
The issue before me now is whether the Governor can ignore the Illinois and United States Constitutions for more than 30 days. This court rules that the answer to that question is a resounding no.
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Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 4 of 23 Page ID #345
(Id. at 64:12–66:19.)1 At no time did Bailey dispute the federal constitutional basis for Bailey’s TRO, or the State Court’s ruling. In fact, when the State Court asked Bailey to show why Bailey should not be required to post bond for the TRO, Bailey’s counsel replied “[w]hat showing would the court require for bond sufficient for my client to be able to continue with his constitutional rights . . . ?” (Id. at 68:5–7.) And the State Court TRO, which was drafted by Bailey and entered by the State Court without substantive revision, expressly stated “Plaintiff has shown he has a clearly ascertainable right in need of immediate protection, namely his liberty interest to be free from Pritzker’s executive order.” (ECF 1-1, Ex. B ¶ 5.) The Governor immediately appealed to the Illinois Appellate Court. Rather than defend the TRO on appeal, Bailey voluntarily vacated the TRO, and the case returned to the trial court. (ECF 1-1, Ex. I.) Bailey amends his complaint, but continues to seek redress for deprivations under color of state law of rights secured by the United States Constitution.
On May 15, 2020, Bailey received leave to file an amended complaint. Although Bailey removed references to the Constitution, Bailey’s amended complaint remained predicated on his prior allegations that the Governor’s executive orders deprived him of rights, under color or state law, that are secured by the U.S. Constitution. First, Bailey reiterated his allegations that the Governor violated his “liberty interest.” (Compare, e.g., ECF 1-1, Ex. A ¶¶ 105–107 (seeking redress for Governor’s alleged “utilization of the police powers of the State” to “[r]estrict a citizen’s movement or activities”) with ECF 1-1, Ex. E ¶ 12 (Governor allegedly “limit[ed] Bailey’s constitutionally protected freedoms in that it ordered him to stay at home, or at his place of residence.”).) Second, Bailey reiterated his allegation that the Governor violated his right to
1 The State Court’s ruling was fundamentally flawed, and entirely inconsistent with the authority the State Court cited. Given that this memorandum is focused on the Court’s jurisdiction and not the merits of Bailey’s claims, however, the Governor will not comment further here on the State Court’s erroneous ruling.
3

Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 5 of 23 Page ID #346
freedom of travel. (Compare, e.g., ECF 1-1, Ex. A, ¶¶ 105–110 (seeking redress for Governor’s alleged actions “restrict[ing] . . . citizen’s [sic] movement”) with ECF 1-1, Ex. E ¶ 12 (Governor allegedly “limit[ed] Bailey’s constitutionally protected freedoms in that [he] . . . limited his ability to travel within the state”).
In addition, Bailey’s amended complaint included allegations of two additional deprivations under color of state law of rights or privileges secured by the U.S. Constitution. Bailey added allegations that the Governor is violating his right to free exercise of religion. (ECF 1-1, Ex. A, ¶ 71, seeking redress for Governor’s alleged actions “preventing Bailey from attending worship services.”) Bailey also added allegations that the Governor seized “unilateral control over the movement and livelihood of every citizen in the State. The legislative branch during this period of executive rule under the emergency powers has been rendered meaningless.” (Id. ¶¶ 84–85.) This alleges a violation of Article IV, § 4 of the U.S. Constitution, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” The Governor removes this action to federal court, and Bailey seeks remand.
On May 21, 2020, the Governor removed this action to this Court based on federal jurisdiction under 28 U.S.C. § 1343(a)(3). (ECF 1.) Bailey filed an “Emergency Motion To Remand” (ECF 7), “Memorandum In Support Of Emergency Motion To Remand” (ECF 8), and “Motion To Expedite Hearing On Emergency Motion To Remand” (ECF 9). On May 22, 2020, the Governor filed an opposition to Bailey’s request for the Court to remand the case sua sponte without granting the Governor the opportunity to respond. (ECF 11.) Separately, the United States Department of Justice (DOJ) filed a Statement of Interest (“DOJ Statement”). (ECF 15.)
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Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 6 of 23 Page ID #347
Neither Bailey’s filings nor the DOJ Statement substantively address the scope of federal jurisdiction under Section 1343(a)(3). (ECF 7, 8, 9, 15.)
Although Bailey asserts in his remand motion that his requested relief is not predicated on alleged deprivations of his constitutional rights (e.g., ECF 8 at 3), Bailey separately continues to contend that the Governor “has issued orders which control Plaintiff’s activities, travel, and association with others” (ECF 18 ¶ 10). As shown below, this Court has jurisdiction to redress these alleged deprivations of constitutional rights.2
Argument This Court has jurisdiction over this action under the plain language of 28 U.S.C. § 1343(a)(3) because Bailey seeks redress based on allegations that the Governor, acting under color of state law, has deprived him of rights secured by the U.S. Constitution. I. This Court has jurisdiction under 28 U.S.C. § 1343(a)(3). A. The plain language of 28 U.S.C. § 1343(a)(3) provides district courts with jurisdiction over actions seeking redress for alleged deprivations under color of State law of rights secured by the United States Constitution. The Governor removed this action under 28 U.S.C. § 1441(a) based on the Court’s original jurisdiction provided by 28 U.S.C. § 1343(a)(3) (ECF 1), which states: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States . . . . The Governor removed solely based on Section 1343(a)(3), and not based on “arising under” jurisdiction provided by 28 U.S.C. § 1331. Bailey’s and the DOJ’s arguments based on Section
2 Bailey could have submitted an amended complaint that deleted all references to, and expressly disavowed seeking redress for, alleged deprivations of rights secured by the U.S. Constitution, but he has not done so.
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Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 7 of 23 Page ID #348
1331 are therefore misplaced. The plain language of 28 U.S.C. § 1343(a)(3) provides that 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.
In construing a statute, “a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself. Where . . . that examination yields a clear answer, judges must stop.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (internal citations omitted); see also Moskal v. United States, 498 U.S. 103, 108 (1990). The plain language of Section 1343(a)(3) provides that federal district courts have original jurisdiction over “any civil action authorized by law” commenced by any person: (a) “to redress the deprivation . . . of any right, privilege or immunity secured by the Constitution of the United States” that (b) occurs “under color of any State law, statute, ordinance, regulation, custom or usage.” 28 U.S.C. § 1343(a)(3) (emphasis added).
Interpreting this language, the First Circuit Court of Appeals observed that Section 1343(a)(3) is “a broadly worded jurisdictional grant.” Rodriguez v. Comas, 888 F.2d 899, 906 (1st Cir. 1989). More specifically, the First Circuit instructed that:
[T]he grant of jurisdiction is over ‘any civil action authorized by law to be commenced by any person ...’ (emphasis added). 28 U.S.C. § 1343(a). In contrast to [other jurisdictional grants], the jurisdictional statute here is open-ended—applying to any person and over any civil action. Id. (emphasis added, citations in the original). The First Circuit’s decision in Rodriguez confirmed what the Fifth Circuit previously observed: jurisdiction exists under Section 1343(a)(3) if a party brings a claim under either federal civil rights causes of action, “or other appropriate legal authority.” Campbell v. Gadsden Cty. Dist. Sch. Bd., 534 F.2d 650, 655 n.3 (5th Cir. 1976); see also Hagans v. Lavine, 415 U.S. 528, 538 (1974) (Section 1343(a)(3) “unquestionably authorize[s] federal courts to entertain suits to redress the deprivation, under
6

Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 8 of 23 Page ID #349
color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation.”); Spaulding v. Mingo Cty. Bd. of Educ., 897 F. Supp. 284, 288 (S.D.W. Va. 1995) (finding Section 1343(a)(3) jurisdiction existed over state law claims removed to federal court because “the substance and essence of the Complaint . . . alleged a deprivation under color of state laws . . . of rights secured under the Constitution of the United States”).
By its terms, and as interpreted by at least two federal appellate courts and one federal district court, Section 1343(a)(3) allows a district court to exercise original jurisdiction over causes of action that assert non-federal claims, to the extent that those claims are predicated on and seek to “redress the deprivation . . . of any right, privilege or immunity secured by the Constitution of the United States” under color of state law. This is in contrast to actions brought (or removed) under Section 1331, which covers only claims that “arise under” federal law. 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).
B. Section 1343(a)(3), read in the context in which it was passed into law and together with related statutes, grants federal jurisdiction here. “[W]hen deciding whether the language is plain, we must read the words in their context
and with a view to their place in the overall statutory scheme. [A court’s] duty, after all, is to construe statutes, not isolated provisions.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (internal citations and quotation marks omitted); see also Samantar v. Yousuf, 560 U.S. 305, 319 (2010) (“we do not . . . construe statutory phrases in isolation; we read statutes as a whole.”).
The scope of Section 1343(a)(3) is apparent when read, as the Supreme Court has required, in the context of the statute in which it became law: Chapters 3 and 7 of Title XIII of
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Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 9 of 23 Page ID #350
the Revised Statutes of the United States of 1874 (the “Revised Statutes”).3 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608–09 (1979) (“In 1874, Congress enacted the Revised Statutes of the United States,” including the language “now found in [Section 1343(a)(3)].”). When the Revised Statutes became law, Congress had not yet authorized federal courts to exercise “federal question” jurisdiction—the language that is now codified at 28 U.S.C. § 1331 would not be passed until 1875. See Act of March 3, 1875, § 1, 18 Stat. 470. Instead, through the Revised Statutes, Congress authorized various federal courts to exercise original jurisdiction over claims in nearly twenty specific areas. See Revised Stat., Ex. B, at passim.
Congress drafted the jurisdictional grants in the Revised Statutes with care in response to the historical context of the recently concluded Civil War and the ongoing Reconstruction of former Confederate states, in which a federal forum could provide recognition and protection of the rights recently recognized in the Thirteenth, Fourteenth, and Fifteenth Amendments. Where Congress wished to limit federal court jurisdiction in some area to cases “arising under” or “under” federal law, it said so clearly and definitively. For example, Congress authorized federal courts to exercise jurisdiction over “all crimes and offenses cognizable under the authority of the United States,” “all cases arising under any act for the punishment of piracy,” “all suits for penalties and forfeitures incurred under any law of the United States,” “all suits for the recovery of any forfeiture or damages under section thirty-four hundred and ninety,” “all causes of action arising under the postal laws of the United States,” “all suits at law or in equity arising under the
3 The jurisdictional grants in the Revised Statutes, including those quoted here, were divided between the two intertwined systems of federal trial courts that existed in 1874: circuit courts and district courts. See Revised Stat., Ex. B, at 2, 5. The current system, in which circuit courts serve as courts of appeals and district courts serve as trial courts, did not come into existence until later. See Judicial Code of 1911, Pub. L. 61–475, 36 Stat. 1087 et seq.
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patent or copyright laws of the United States, and “all suits and proceedings arising under section fifty-three hundred and forty-four.” See Revised Stat., Ex. B, at 2, 8, 9.
The jurisdictional provision now codified in Section 1343(a)(3), however, was different. See Revised Stat., Ex. B, at 3, 8. Unlike most other jurisdictional grants in the Revised Statutes, what is now Section 1343(a)(3) contained no limitation to suits “arising under” or “under” federal law. Instead, Congress provided that federal courts would have jurisdiction over “all suits at law or in equity authorized by law . . . to redress the deprivation, under color of any law . . . of any State, of any right . . . secured by the Constitution.”4 Id. at 3 (emphasis added). Section 1343(a)(3) therefore fell into a small group of jurisdictional grants through which Congress created room for federal courts to exercise jurisdiction over state law claims. See, e.g., id. at 8 (authorizing federal jurisdiction over “all suits arising under any law relating to the slave trade”).
The pattern in the Revised Statutes is clear. Where Congress intended to limit a jurisdictional grant to claims “arising under” or “under” federal law—restricting a jurisdictional grant to federal claims—it knew how to do so, and did so clearly. Congress could have easily limited 1343(a)(3) jurisdiction to suits “arising under” the Constitution of the United States, just as it did in so many other jurisdictional grants included in the very same statute. It did not. The legal effect of this deliberate congressional decision is inescapable. Interpreted in “context and with a view to [its] place in the overall statutory scheme,” King, 135 S. Ct. at 2489; Samantar, 560 U.S. at 319, the jurisdiction conferred by Section 1343(a)(3) is not limited to exclusively claims arising under federal law.
4 The slight changes in wording seen in the modern codification of this statute did not change the meaning, and are related to the 1938 abolition of any formal distinction between courts of law and equity in the federal system. See Rex R. Perschbacher & Deborah Bassett, The Revolution of 1938 and Its Discontents, 61 Oᴋʟᴀ. L. Rᴇᴠ. 275, 282–83 (2008).
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The scope of jurisdiction provided by Section 1343(a)(3) is equally apparent when evaluated in the context of the modern “statutory scheme” governing original jurisdiction. King, 135 S. Ct. at 2489. As in the Revised Statutes, modern laws conferring jurisdiction on district courts usually explicitly require that the causes of action for which they confer jurisdiction arise under or relate directly to the Constitution or a federal statute or rule. For example:
• 28 U.S.C. § 1331 provides that a federal court has jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States” (emphasis added).
• 28 USC § 1343(a)(1) provides that a federal court has jurisdiction over civil actions regarding “any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42” (emphasis added).
• 28 USC § 1343(a)(2) provides that a federal court has jurisdiction over civil actions “[t]o recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42” that the person knew of and could have prevented (emphasis added).
• 28 USC 1343(a)(4) provides that a federal court has jurisdiction over civil actions “[t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote” (emphasis added).
Once again, the plain language of Section 1343(a)(3) contains no such limitation. In keeping with the basic principles of statutory construction, these differences must be treated as meaningful. United States v. Heon Seok Lee, 937 F.3d 797, 816 (7th Cir. 2019) (“A material variation in terms suggests a variation in meaning.”) (citations and quotation marks omitted) (quoting ANTONIN SCALIA AND BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 270 (2012)); see also United States v. Menasche, 348 U.S. 528, 538–39 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute.”). The words used by Congress mean that this Court has jurisdiction over the state-law claims at issue because Bailey uses those claims to seek redress for deprivations of rights secured by the U.S. Constitution.
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C. Section 1343(a)(3) jurisdiction over state law claims for deprivations of constitutional rights under color of state law is consistent with fundamental constitutional principles. Reading Section 1343(a)(3) to grant federal courts jurisdiction over state claims brought
for the purpose of redressing violations of constitutional rights under color of state law does not transgress the bounds of the jurisdiction Congress may bestow under Article III. As the Supreme Court has ruled, “Article III ‘arising under’ jurisdiction is broader than federal question jurisdiction under § 1331.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 495 (1983); Int’l Union Operating Eng’rs v. Ward, 563 F.3d 276, 281 (7th Cir. 2009) (“Although the language of § 1331 is similar to that of Article III, courts have interpreted § 1331 much more narrowly than its constitutional counterpart.”); Patrickson v. Dole Food Co., 251 F.3d 795, 799 (9th Cir. 2001) (“[A]ny federal ingredient may be sufficient to satisfy Article III”). A claim predicated on, and seeking redress for, the deprivation of a right guaranteed in the U.S. Constitution certainly has the necessary “federal ingredient.” Patrickson, 251 F.3d at 799. Section 1343(a)(3) is therefore constitutional under longstanding Article III jurisprudence. Id.
D. The only federal court to squarely consider this issue determined that causes asserting non-federal claims and seeking to redress deprivations under color of State law of rights guaranteed by the U.S. Constitution are subject to federal jurisdiction under Section 1343(a)(3) and may be removed to federal court. Federal jurisdiction over this case is confirmed by the ruling in Spaulding v. Mingo Cty.
Bd. of Educ., 897 F. Supp. 284 (S.D.W. Va. 1995). The plaintiffs in Spaulding brought an action in state court asserting state-law claims for “tortious acts of assault and battery, infliction of severe emotional distress, negligent supervision and training, false imprisonment, misrepresentation and fraud, and retaliation” in violation of state common law, violations of the West Virginia Constitution, and violations of at least two West Virginia statutes. Id. at 286. The defendants removed to federal court based on 28 U.S.C. § 1343(a)(3), because the “factual
11

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allegations apparent on the face of the Complaint allege, under color of state laws and regulations, deprivations of rights secured by the Constitution of the United States.” Id. Like Bailey here, the plaintiffs in Spaulding objected to removal, arguing that no federal jurisdiction existed because “no cause of action arising under the Constitution, treaties, or laws of the United States is contained in the Complaint.” Id.
The Spaulding court rejected plaintiffs’ argument that no federal jurisdiction existed. Acknowledging that a plaintiff is typically “master of his claim,” the court nevertheless determined that, in the context of removal pursuant to the court’s original jurisdiction under Section 1343(a)(3), “[a]n exception to this principle arises when the claim, although ostensibly asserted under state law, is in fact a federal law claim but by artful pleading is misrepresented in order to defeat defendant’s right to a federal forum.” Id. at 287–88 (internal quotation marks omitted). On that basis, the court reasoned:
the Court looks to the substance and essence of the Complaint and finds the Plaintiffs have purposely omitted reference to the Constitution of the United States, federal laws, and federal statutes through artful pleading. The Court concludes it has original jurisdiction pursuant to 28 U.S.C. 1343(a)(3) because Plaintiffs have alleged a deprivation under color of state laws, statutes, and regulations of rights secured under the Constitution of the United States . . . . Id. at 288–89.5 The court thus made clear that even where an asserted right or privilege may be concurrently protected by the U.S. Constitution and a state constitutional or statutory provision, the action is within the scope of the jurisdiction conferred by Section 1343(a)(3) where the
5 The Spaulding court ultimately remanded the case based on a version of 28 U.S.C. § 1441(c) that has since been revised. Compare Spaulding, 897 F. Supp. at 286 n.5 (quoting then-existing version of Section 1441(c)) with 28 U.S.C. § 1441(c). Under the current version of Section 1441(c), the court must sever claims that are not within the court’s original or supplemental jurisdiction, but as discussed above, this requirement does not apply here where the court has original federal jurisdiction over state-law claims commenced to seek redress for deprivations under color of state law for alleged violations of the U.S. Constitution.
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“substance and essence” of a complaint is founded on allegations of a deprivation under color of state law of rights secured by the U.S. Constitution.6 Precisely what Bailey did here. II. This Court has jurisdiction because Bailey seeks to redress alleged deprivations
under color of state law of rights secured by the United States Constitution. Bailey’s pleadings and the proceedings before the State Court demonstrate that Bailey seeks redress for claims that the Governor, under color of state law, is depriving Bailey of rights secured by the U.S. Constitution, making his state-law claims subject to federal jurisdiction under Section 1343(a)(3) and properly removed pursuant to Section 1441(a).7 Bailey cannot dispute that he is a “person” for the purposes of Section 1343(a)(3), and that his complaint and amended complaint both allege the Governor took unlawful actions under color of state law. (See, e.g., ECF 1-1, Ex. A ¶ 72(E), alleging “Bailey has a right to insist Pritzker not engage in activities designed to circumvent limitations on his authority imposed by the legislature” by issuing various executive orders). The only question before the Court is whether Bailey “commenced” this action “[t]o redress the deprivation, under color of any State law . . . of any right . . . secured by the Constitution of the United States,” irrespective of whether
6 For it to be true that a right secured by Illinois law is automatically outside the jurisdictional reach of Section 1343(a)(3), the Court would have to conclude that the Illinois Constitution of 1970 had the effect of modifying the scope of jurisdiction conferred by a federal statute passed in 1874. But any such conclusion would violate a bedrock principle of American federalism: “the act of [a state] . . . cannot be permitted to prejudice the question” of the “jurisdiction of the courts of the union.” United States v. Peters, 9 U.S. 115, 136 (1809) (Marshall, CJ, writing for the majority). Moreover, it would mean that Section 1343(a)(3) jurisdiction would vary from district court to district court, depending on the state in which each district court sits, and whether the state constitution of that state protects all the rights also secured by the U.S. Constitution. Such a result is absurd, and must be rejected. 7 Under the general removal statute codified at 28 U.S.C. § 1441(a), removal is proper if the district court has original jurisdiction over an action, as it does here.
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he did so by pleading federal or state law claims. Rodriguez, 888 F.2d at 906; Spaulding, 897 F. Supp. at 288; 28 U.S.C. § 1343(a)(3). The answer to that question is yes.8
A. Bailey’s pleadings show he commenced and continued this action to redress deprivation of rights secured by the federal constitution.
Bailey’s complaint alleged that the executive order issued by the Governor on March 20, 2020 “limit[ed] Bailey’s constitutionally protected freedoms in that it ordered him to stay at home, or at his place of residence, as well as limited his ability to travel within the state.” (ECF 1-1, Ex. E ¶ 12.) Bailey further alleged that the Governor continued to deprive him of these “constitutionally protected freedoms” by issuing an additional executive order on April 1, 2020, that “acted to restrain Bailey within his residence, as well as limit his travel.” (Id. ¶ 19.) These allegations of a purported deprivation of rights secured by the federal constitution formed the predicate of Bailey’s claims, and Bailey’s action was unquestionably “commenced” to redress those alleged deprivations. Id.
As discussed in the Governor’s Notice of Removal (ECF 1), Bailey’s amended complaint never abandoned these alleged violations of his constitutional rights. Indeed, it expanded on them. In his amended complaint, Bailey continued to seek redress for alleged violations of his liberty interest.9 (ECF 1-1, Ex. A, ¶¶ 105–107, seeking redress for Governor’s alleged “utilization of the police powers of the State” to “restrict a citizen’s . . . activities or seizing
8 Bailey has on numerous occasions publicly confirmed that he commenced this suit to redress alleged constitutional violations. See, e.g., Rebecca Anzel, AG to appeal judge’s ruling halting stay-at-home order against lawmaker, PEORIA JOURNAL STAR, Apr. 28, 2020, www.pjstar.com/news/20200428/ag-to-appeal-judges-ruling-halting-stay-at-home-order-againstlawmaker (last visited June 5, 2020). 9 This “liberty interest” is secured by the U.S. Constitution. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315 (1982); Parham v. J.R., 442 U.S. 584, 600 (1979). The Fourteenth Amendment to the U.S. Constitution prohibits a “state” from “depriv[ing] any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1 (emphasis added).
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control of . . . business premises”; ¶¶ 32–49, discussing quarantine procedures). Bailey also repeated his allegation that the Governor has violated his right to freedom of travel. (Id. ¶¶ 105– 07, seeking redress for Governor’s alleged actions “restrict[ing] a citizen’s movement”).
Bailey’s amended complaint adds alleged deprivations of two additional rights or privileges secured by the U.S. Constitution: Bailey’s allegation that the Governor is violating his right to free exercise of religion (id. ¶ 71, seeking redress for the Governor’s alleged actions “preventing Bailey from attending worship services”), and Bailey’s allegation that the Governor has somehow seized “unilateral control over the movement and livelihood of every citizen in the State,” rendering the legislature “meaningless” (id. ¶¶ 84–85). These new allegations seek redress for an alleged violation of the First Amendment and also Article IV, Section 4 of the U.S. Constitution, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”
In sum, although Bailey assiduously removed the word “constitution” from his amended complaint, the “substance and essence” of Bailey’s action continues to be that the Governor is acting under color of state law to deprive him of the same constitutional rights (and more) addressed in his initial complaint. (ECF 1-1, Ex. A.) The DOJ itself recognizes the federal constitutional predicates and implications of Bailey’s amended complaint, writing:
If Bailey is correct that these executive orders are wholly without authorization under Illinois law, then the Orders’ imposition of broad and intrusive restrictions on the people of Illinois would raise real questions about whether the people of Illinois have been deprived of their liberties without constitutionally adequate process. (ECF 15 at p. 15–19.) Because “the substance and essence” of Bailey’s complaint, like the complaint in Spaulding, alleges deprivations under color of state laws “of rights secured under the Constitution of the United States,” this Court has original jurisdiction under Section 1343(a)(3). Spaulding, 897 F. Supp. at 288–89.
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B. Proceedings in the State Court show that Bailey is seeking to redress alleged deprivations of rights secured by the United States Constitution.
The State Court itself acknowledged and confirmed that Bailey commenced this action to redress deprivations of rights secured by the U.S. Constitution. On April 27, 2020, when the State Court granted Bailey’s motion for a TRO (that Bailey then moved to vacate to avoid defending it on appeal), the court based its ruling on irreparable harm on federal constitutional grounds, ruling that “every second this Executive Order is in existence . . . the Bill of Rights is being shredded. That is irreparable harm.” Ex. A, Apr. 27, 2020 Tr. at 60:17–21. In addition, the State Court found a likelihood of success on the merits for Bailey’s claims on federal constitutional grounds, stating: “there is no pandemic exception to the fundamental liberties the constitution safeguards . . . . individual rights secured by the constitution do not disappear during a public health crisis . . . . These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always in force and restrain government action . . . . the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint . . . as the safety of the general public may demand . . . The Supreme Court also has instructed courts to intervene if a statute purporting to have been enacted to protect the public health or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 64:12–66:19.
The State Court justified its ruling by noting “[t]here is a vast difference between being allowed to ask the federal government for disaster loans for farmers in a flood and an executive order that shuts down my right, my constitutional right to work, to travel, to exist . . . . [D]oes the Governor have the right to shred the constitution for longer than 30 days? That’s the issue, isn't
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it?” Id. at 39:25-40:14. The judge further stated that “there’s that pesky little thing called the constitution that’s going to have to be dealt with.” Id. at 47:17–18.
Bailey plainly concurred in the State Court’s assessment of the constitutional nature of his action. During argument over bond, Bailey’s counsel asked “[w]hat showing would the court require for bond sufficient for my client to be able to continue with his constitutional rights . . . ?” (Id. at 68:5–7.) And Bailey submitted a draft TRO order, which the State Court entered without substantive revision. (ECF 1-1, Ex. B.) That order provided that Bailey had “shown he has a clearly ascertainable right in need of immediate protection, namely his liberty interest to be free from Pritzker’s executive order.” (Id. ¶ 5.) III. Bailey and the DOJ’s arguments for remand are irrelevant to the issue at hand
because they address federal jurisdiction under Section 1331, not Section 1343(a)(3). The DOJ acknowledges that “[i]f Bailey is correct that these executive orders are wholly without authorization under Illinois law, then the Orders’ imposition of broad and intrusive restrictions on the people of Illinois would raise real questions about whether the people of Illinois have been deprived of their liberties without constitutionally adequate process.” (ECF 15 at 15–19.) Despite this acknowledgment, the DOJ (and Bailey) argue the Court lacks jurisdiction over this case because Bailey’s claims do not allege a federal claim and do not come within the “slim category” of state law cases that nonetheless give rise to original jurisdiction under Section 1331 in the federal courts because they arise under federal law. (ECF 15 at 5–6, quoting Gunn v. Minton, 568 U.S. 251, 258 (2013); ECF 8 at 5.) This is a strawman. 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).
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Bailey and the DOJ largely ignore that the Governor has invoked federal jurisdiction on the basis of 28 U.S.C. §1343(a)(3), not Section 1331. With the exception of a single footnote in the DOJ Statement (in which the DOJ misquotes and misstates the relevant law), not a single case cited by Bailey or the DOJ relates to Section 1343(a)(3) jurisdiction. Instead, Bailey and the DOJ have relied entirely on cases construing the requirements of Section 1331. (ECF 7, 8, 15, citing Gunn v. Minton, 568 U.S. 251 (2013) (addressing § 1331 with no mention of § 1343(a)(3)); Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005) (same); Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (same); Merrell Dow Pharm. v. Thompson, 478 U.S. 814 (1986) (same); Webb v. Fin. Indus. Regulatory Auth., Inc., 889 F.3d 853 (7th Cir. 2018) (same); Citadel Sec., LLC v. Chicago Bd. Options Exch., Inc., 808 F.3d 694 (7th Cir. 2015) (same); Hartland Lakeside Joint No. 3 Sch. Dist. v. WEA Ins. Corp., 756 F.3d 1032 (7th Cir. 2014) (same); Manning v. Merrill Lynch Pierce Fenner & Smith, 772 F.3d 158 (3d Cir. 2014) (same); Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294 (7th Cir. 2003) (same); Ctr. For Wildlife Ethics, Inc. v. Clark, 325 F. Supp. 3d 911 (N.D. Ind. 2018) (same); Krause v. Phila. Soul, 2009 WL 1175625 (E.D. Pa. 2009).)10
Bailey’s memorandum fails to meaningfully address the substance of Section 1343(a)(3), and the DOJ’s sole reference to Section 1343(a)(3) appears in a footnote on page 6 of its filing. In that footnote, the DOJ attempts to limit the scope of Section 1343(a)(3) by claiming that it extends “‘only to rights that are granted in terms of equality and not to the whole gamut of
10 Bailey’s discussion of Compagnie Francaise de Navigation a Vapeuer v. State Bd. Of Health, 186 U.S. 380 (1902) also misses the mark (ECF 8 at 7), as it is based on the inaccurate claim that Bailey has not argued the Governor has violated the U.S. Constitution. See disc. supra at 1–4. And neither DOJ nor Bailey can fairly dispute that Compagnie Francaise stands for the proposition that federal courts have jurisdiction over actions challenging alleged ultra vires public health measures on the grounds that they transgress the U.S. Constitution.
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constitutional rights.’” (ECF 15 at 6, n.2, quoting Chapman, 441 U.S. at 622.) There are two problems with this assertion, both fatal to the DOJ’s argument.
First, the passage from Chapman that the DOJ quotes refers specifically to 28 U.S.C. § 1443, a removal statute with language different from Section 1343(a)(3).11 Second, even if the Chapman Court intended that its holding should extend to similar language in Section 1343, the holding still would not reach this case. To be sure, one category of cases encompassed by Section 1343(a)(3) is civil actions to redress violations of rights “secured by . . . any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” The Governor, however, has not removed on those grounds. Instead, he has removed on the basis that Section 1343(a)(3) gives this Court jurisdiction over civil actions to redress deprivations of rights “secured by the Constitution of the United States.” 28 U.S.C. § 1343(a)(3); see also Roberge v. Philbrook, 313 F. Supp. 608, 610 (D. Vt. 1970) (noting the “two separate jurisdictional grants” under Section 1343(a)(3), one for deprivation of rights secured by the constitution, and one for deprivation of rights secured by federal statutes providing for equal protection). Chapman’s holdings on that score are limited to the “statutory” prong of Section 1343(a)(3), and are not relevant to the current jurisdictional dispute.
The DOJ’s conclusory, unsupported assertion that Section 1343(a)(3) is “largely defunct” (EDF 15 at 6 n.2) is wishful thinking. DOJ does not and cannot seriously contend that the removal of the amount-in-controversy requirement from 28 U.S.C. § 1331 caused Section 1343(a)(3) to be repealed. Section 1343(a)(3) was, after all, a central element of Congress’s effort to provide federal forum for the recognition and protection of the rights recently
11 DOJ attempts to yoke Section 1343 to Section 1443 by describing the latter as Section 1343(a)(3)’s “parallel removal statute.” DOJ is flat wrong. Because Section 1343(a)(3) grants original jurisdiction to federal courts, Section 1441(a) is the appropriate removal statute.
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recognized in the Thirteenth, Fourteenth, and Fifteenth Amendments following the Civil War

and during Reconstruction. See Revised Stat., Ex. B, at passim. As the Supreme Court has held,

“repeals by implication are not favored” and when “two statutes are capable of co-existence, it is

the duty of the courts, absent a clearly expressed congressional intention to the contrary, to

regard each as effective.” Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1323

(2020) (internal quotation marks and citations omitted). That is particularly true here, where the

jurisdictional statute in question is among the most historic Congress has ever enacted.

The DOJ also cites to dicta in Myles v. United States, 416 F.3d 551, 554 (7th Cir. 2005),

in which the court criticized the design of a form designed for prisoner-plaintiffs in Indiana.12

That dicta aside, courts across the country have continued to recognize Section 1343(a)(3) as

good law, and a valid basis for federal jurisdiction. See, e.g., Jhagroo v. Brown, 2020 WL

419450, *1 (S.D.N.Y. 2020) (citing § 1343(a)(3) as basis for court’s jurisdiction); Willis v.

Tejeda, 2019 WL 498952, *1 (N.D. Ill. 2019) (same); Correction Officers’ Benevolent Ass'n,

Inc. v. City of New York, 415 F. Supp. 3d 464, 466–67 (S.D.N.Y. 2019) (same). This Court

should do the same and reject Bailey’s motion to remand this case to state court.

CONCLUSION

For each of these reasons, the Governor requests that the Court deny Bailey’s Emergency

Motion To Remand.

Dated: June 5, 2020

Respectfully Submitted,

KWAME RAOUL Attorney General of Illinois

/s/ Thomas J. Verticchio

12 The court criticized the form because it erroneously classified Section 1983 as a jurisdictional statute, and because the court thought Section 1331 jurisdiction was most appropriate in the context of prisoner litigation. In any event, immediately after its discussion of Section 1343, the court made clear that this criticism was dicta, writing “[n]one of this, however, affected Myles.” Myles, 416 F.3d at 554.
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R. Douglas Rees #6201825 Christopher G. Wells #6304265 Darren Kinkead #6304847 Isaac Freilich Jones #6289023 Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601
Laura K. Bautista #6289023 Office of the Illinois Attorney General 500 South Second Street Springfield, Illinois 62701

Thomas J. Verticchio #6190501 Assistant Chief Deputy Attorney General Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-3000 tvertticchio@atg.state.il.us

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Case 3:20-cv-00474-GCS Document 24 Filed 06/05/20 Page 23 of 23 Page ID #364
CERTIFICATE OF SERVICE The undersigned certifies that on June 5, 2020, he caused a true and correct copy of the foregoing to be served by electronic filing in the CM/ECF system on the following: Steven M. Wallace SILVER LAKE GROUP, LTD. – GLEN CARBON 6 Ginger Creek Village Drive Glen Carbon, IL 62034 Tel.: 618-692-5275 Fax: (888) 519-6101 steve@silverlakelaw.com
By: /s/ Thomas J. Verticchio
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Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 1 of 72 Page ID #365
Exhibit A

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 2 of 72 Page ID #366

1

IN THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT

2

CLAY COUNTY, ILLINOIS

3

4 DARREN BAILEY,

5

Plaintiff,

6

vs.

7 GOVERNOR J.B. PRITZKER, in his official capacity,
8 Defendant.
9

) ) ) ) ) NO. 20-CH-6 ) ) ) ) )

10

11

REPORT OF PROCEEDINGS of the hearing held

12 before the Honorable MICHAEL D. McHANEY on the 27th day

13 of April, 2020.

14

APPEARANCES:

MR. THOMAS DEVORE

15

MR. ERIK HYAM

On behalf of the Plaintiff

16

MR. THOMAS VERTICCHIO

on behalf of the Defendant

17

18

19

PREPARED BY: LORI SIMS

20

Certified Shorthand Reporter

No. 084-003424

21

1431 Panther Creek Lane

Louisville, Illinois 62858

22

23

24

25

1

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 3 of 72 Page ID #367

1

THE COURT: All right. We've got some

2 preliminary matters before we begin. First, obviously

3 the public is in this courtroom. To the extent that

4 that could be viewed as contravention of our

5 Administrative Order governing the Fourth Circuit or a

6 violation of the Governor's stay-at-home order, I and I

7 alone take full responsibility for any ramifications for

8 either of those.

9

The public has an absolute right to access to

10 the courts and transparency. I cannot imagine anything

11 more unjust than to deprive the citizens the right to

12 view the process in which this court is asked to

13 drastically potentially alter their lives. Therefore,

14 you're here. However, you are here as directed by the

15 sheriff of Clay County, who has done a phenomenal job

16 preparing for this with respect to social distancing and

17 our Fourth Circuit Administrative Order. Thank you,

18 Sheriff.

19

In that vein, while you're here, there will be

20 no public outbursts, no displays. Anybody disrupting

21 this proceeding will be removed immediately, and, at the

22 conclusion of this hearing, you will leave as directed

23 by the Clay County Sheriff.

24

I'm now going to call 20-CH-6, Bailey versus

25 Pritzker. Would the parties please identify themselves

2

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 4 of 72 Page ID #368

1 for the court reporter and record.

2

MR. DeVORE: Your Honor, Plaintiff appears,

3 Darren Bailey, by his counsel, Erik Hyam and Thomas

4 DeVore of DeVore Law Office, sir.

5

MR. VERTICCHIO: Good afternoon, Your Honor.

6 Tom Verticchio for Governor Pritzker.

7

THE COURT: Very well. Thank you. You may be

8 seated.

9

MR. VERTICCHIO: Your Honor, may I?

10

THE COURT: Yes.

11

MR. VERTICCHIO: I know we had a preliminary

12 matter that I became aware of this morning. There was a

13 Motion for leave to file an Amicus. I know that counsel

14 is in the courtroom, and I thought the court might want

15 to address that.

16

THE COURT: Yeah. Let's do that. What have you

17 got, the Hospital Association?

18

MR. WURL: Yes, Your Honor.

19

THE COURT: Would you please identify yourself

20 for the record.

21

MR. WURL: My name is Dan Wurl of Heyl Royster

22 Law Firm in Champaign, Illinois, and we are serving as

23 local counsel for the Illinois Health and Hospital

24 Association.

25

MR. OURTH: I'm Joe Ourth, Saul, Ewing, Arnstein

3

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 5 of 72 Page ID #369

1 & Lehr, on behalf of the Illinois Health and Hospital

2 Association and on behalf of the 200 members of the

3 hospitals who are members of the Hospital Association.

4

THE COURT: And, for the record, you have filed

5 an Amicus brief; is that correct?

6

MR. WURL: That's correct, Your Honor.

7

THE COURT: Both parties received a copy of

8 that?

9

MR. VERTICCHIO: Yes, Judge.

10

MR. DeVORE: Yes, Judge. I got it on the way

11 down here, sir.

12

THE COURT: Any objection?

13

MR. VERTICCHIO: None from the Governor, Your

14 Honor.

15

MR. DeVORE: Judge, we would have an objection

16 at this point, especially at the proceeding of a

17 temporary restraining order. From what I understand of

18 looking at their document, it appears to be, and, again,

19 reading it as we were driving down here, me not driving,

20 of course, sir, some kind of balancing of the equities

21 or some, something of the nature that if the court would

22 find that the Governor's Order is beyond his authority,

23 that that would cause some undue harm within the

24 hospitals.

25

To me, at this stage of the proceeding, that

4

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 6 of 72 Page ID #370

1 issue is not in front of the court. I believe it will

2 cloud what otherwise is a temporary restraining order

3 hearing on the pleadings of the parties. I believe once

4 the court gets into this and sees some of the

5 documentation, that it will find, that even if this

6 court would find that the Order exceeded his authority,

7 that there are measures already in place.

8

So, to the extent that that would over-

9 complicate what otherwise is a statutory construction

10 and a constitutional issue, I don't believe that the

11 Amicus brief provides any helpful insight at this time

12 to the court. Thank you.

13

MR. VERTICCHIO: May I, Your Honor?

14

THE COURT: Yeah.

15

MR. VERTICCHIO: On behalf of the Governor,

16 we're here on a TRO and, as you know from the briefing,

17 Your Honor, one of the issues that the court will

18 consider, provided that the plaintiff meets his original

19 four requirements, is the balancing of the harms and the

20 hardship due upon the public in the event that the Order

21 is entered and relief granted. It appears to me that

22 there could be no more relevant, sadly, there could be

23 no more relevant viewpoint for the court to consider on

24 the balancing of the harms and damage to the public than

25 the view of the Amicus hospital, Health and Hospital

5

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 7 of 72 Page ID #371

1 Association.

2

I briefly looked at the brief and declaration

3 attached and it bears directly upon the issue of

4 balancing the harms and the hardship upon the public.

5 We respectfully request that the Motion be granted.

6

THE COURT: I will allow the filing of the

7 Amicus brief, although you're not parties but you, of

8 course, may observe.

9

MR. WURL: Thank you, Your Honor.

10

MR. VERTICCHIO: Thank you, Judge.

11

THE COURT: All right.

12

MR. VERTICCHIO: Then procedurally, Your Honor,

13 I don't know how the court wants to proceed in terms of

14 the order. We have filed a 2-615 Motion to Dismiss the

15 Complaint. Granted it, by and large, goes to the

16 likelihood of success on the merits.

17

THE COURT: It does. They're intertwined.

18

MR. VERTICCHIO: Maybe for that reason it makes

19 sense for Mr. DeVore to present his Motion with the

20 understanding that I will then present my 2-615 in

21 response to the Motion for temporary restraining order

22 if that makes sense for the court.

23

THE COURT: Makes sense to me.

24

MR. DeVORE: Your Honor, I would ask the

25 court -- I agree with my colleague that the arguments

6

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 8 of 72 Page ID #372

1 raised in the, you know, not as much the Motion to

2 Dismiss but in their opposition brief I will call it, it

3 does take on the issue of likelihood of success on the

4 merits as it relates to the temporary restraining order.

5 If they are successful in that argument, the TRO doesn't

6 issue, but as to the issue of the Motion --

7

THE COURT: Anybody that's got a cell phone, if

8 that goes off again, the sheriff is going to confiscate

9 it and you're out of here. Go ahead.

10

MR. DeVORE: Thank you, Your Honor. Your Honor,

11 the Motion to Dismiss was filed and the Notice of

12 Hearing on that Motion to Dismiss was received by our

13 office roughly an hour ago. Local Rule 501(d) says that

14 Notice of Hearing has to be presented to the opposing

15 party no later than the second court date preceding the

16 hearing. So I would ask the court merely to entertain

17 the likelihood of success on the merits issue as it

18 relates to the TRO and then, regardless of whether the

19 court grants or denies, I believe the governor's Motion

20 to Dismiss could be taken up at a later date where we

21 can address those issues fully.

22

MR. VERTICCHIO: Your Honor, this is an

23 emergency proceeding. The Motion was -- the Complaint

24 was filed on Friday. We were served with it on Friday,

25 the Motion to Dismiss filed Monday morning. We are on

7

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 9 of 72 Page ID #373

1 the fast track as we all know. As a matter of fact, I

2 received a supplemental brief last night from

3 plaintiff's counsel, don't hold me to the precise time,

4 but I think it was 1:05 a.m. Monday morning. There's a

5 lot going on.

6

It seems to me that the Motion to Dismiss is

7 directly tied to the likelihood of success. It's the

8 same arguments on the legal issues --

9

THE COURT: Yeah. Basically the same argument.

10 All right. I'm going to find I can walk and chew gum at

11 the same time. I'm going to consider them both and the

12 whole giant argument and we'll sort it out later. You

13 may proceed, Petitioner.

14

MR. DeVORE: Understood, sir. Your Honor, my

15 client brought this cause of action under declaratory

16 judgment and request for preliminary injunction and

17 temporary restraining order. The temporary restraining

18 order request is verified and it was filed in this

19 court.

20

As the court is aware and my colleague is aware,

21 there's four elements that are required in order for a

22 temporary restraining order to issue. They are a right

23 in need of protection, they are irreparable injury, they

24 are no adequate remedy at law, and likelihood of success

25 on the merits. I would like to address each one of

8

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 10 of 72 Page ID #374

1 those individually for the court. I'm going to leave

2 likelihood of success on the merits for last because, as

3 the court is aware, that is one of the most complicated

4 ones.

5

As to the issue of right in need of protection,

6 as was brought up briefly on, which is now in the record

7 of the court on their request for a continuance, the

8 right in need of protection is a liberty interest. It

9 is a liberty interest as pled in this case of my client

10 but it's also the same liberty interest of every citizen

11 of this state. But as to Mr. Bailey, the liberty

12 interest of him being ordered by the executive branch of

13 this state to stay in his home unless he is engaged in

14 an essential activity that the Governor's office has

15 also defined what's essential with someone, we don't

16 know who, and, if he does that, if he doesn't follow

17 that order, he could be subject to some prosecution,

18 persecution, whatever we want to call it, we don't

19 really know, we haven't seen that yet, but ultimately

20 some mechanism by which my client could be sanctioned

21 for not staying at home unless it's an essential task or

22 work or food, it's been defined by the same executive

23 branch. That is a right in need of protection, one of

24 which I'm not sure there could be a greater right in

25 need of protection for this court to consider.

9

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 11 of 72 Page ID #375

1

Now, there's been some -- I want to throw this

2 in just briefly. There's been some response by the

3 Governor's office that says, well, Mr. Bailey hasn't

4 adhered to that so he's really not subject to this stay-

5 at-home order. If my client has chosen to leave his

6 home not for an essential task, he has, at least as we

7 sit right now in the state of the executive order,

8 potentially subjecting himself to punishment. That's

9 the right in need of protection here, Judge, not whether

10 you choose to peacefully disobey, which I would call

11 that, the fact that the order has been issued that says

12 if you do this, you could be subject to violation of

13 this order. That's the right, Judge, and we would ask

14 the court to find that that, there's really no contest

15 that my client has raised a right in need of protection.

16

The issue of irreparable injury is next, which

17 is kind of coupled with that, is what injury, should

18 this court not enter a temporary retraining order, would

19 Mr. Bailey suffer? Again, briefly argued to this court

20 in the motion to continue by the state, by the

21 Governor's office was that there is no prejudice. Every

22 day that goes by that this Executive Order has been in

23 effect is irreparable to my client. To be told by the

24 executive branch of this state that if he does not stay

25 in his house, unless you leave it for a reason I say you

10

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 12 of 72 Page ID #376

1 can leave, every day that goes by, that is an

2 irreplaceable violation of his liberty interest. You

3 can't get that back.

4

Maybe my client chose to want to go peacefully

5 go to his neighbor's house and see how his friend's

6 doing. I don't know what he does for a living, or what

7 he does for entertainment, but that's a violation,

8 Judge, and it's irreparable. You cannot get that back.

9 So I would ask the court to find that there's really no

10 contest as to that one.

11

Adequate remedy at law. That's where we're at

12 right now. The executive branch has said, and I think

13 they've said in their response that they filed with this

14 court, that the Governor has the constitutional power to

15 use the police power any way he sees fit. And as we sit

16 here today, and I'm saddened on behalf of my client and

17 the rest of the people of this state, that the

18 legislature has not done a thing. They haven't met

19 since May (sic) 5th.

20

The first proclamation of disaster was entered

21 on March 9th. Four days before that was the last day

22 they convened. They have not convened since. I've

23 asked my representatives, Mr. Bailey should probably ask

24 his, why are you not convening? We don't know. But is

25 there a remedy in the legislature? I don't think we

11

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 13 of 72 Page ID #377

1 need to look to it for that, but I would just point out

2 to the court that if, in fact, my client's case is found

3 to have merit by this court, part of that merit is the

4 fact that the legislature has sat by idly and watched

5 the executive branch usurp its authority and has not

6 done anything.

7

So my client's only adequate remedy at law is to

8 come to the third branch of government, which is this

9 court, and ask them for redress. That's the only choice

10 he has.

11

THE COURT: But the attorney general is going to

12 argue he does have an adequate remedy of law. It's

13 already passed. The Governor can pass these continuing

14 disaster proclamations every 30 days or beyond.

15

MR. DeVORE: That's what he's going to argue.

16 Yeah.

17

THE COURT: You've got an adequate remedy right

18 there.

19

MR. DeVORE: The remedy being the executive

20 branch?

21

THE COURT: Yeah. That's what he's going to do.

22

MR. DeVORE: He's going to try, I'm sure. So as

23 to the adequate remedy at law, my client's position is

24 for a court to find that the Governor's orders that he

25 is issuing exceed his authority.

12

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 14 of 72 Page ID #378

1

THE COURT: Let's just get down to it.

2

MR. DeVORE: Yes.

3

THE COURT: What's your arguing is the Governor

4 can do what he did for 30 days and that's it absent

5 further legislative approval. Isn't that what you're

6 saying?

7

MR. DeVORE: Under the Illinois Emergency

8 Management Act, yes. Under the Department of Public

9 Health Act, I would say it's different.

10

THE COURT: Yeah. It's vastly different there

11 because there, Attorney General, you get a lawyer. You

12 get judicial review. You can't do this stuff longer

13 than 48 hours until you go to court.

14

MR. DeVORE: That's what we're getting to. Yes,

15 sir.

16

THE COURT: Anyway.

17

MR. DEVORE: Yes, sir. I agree with the court.

18 So, again, after the adequate remedy at law, again,

19 there is a law that we're getting to on the likelihood

20 of success on the merits. My client has to prove to

21 this court today, not that he can succeed on the merits,

22 which is why I would ask the court, at least for the

23 record, to find I still have an objection to hearing the

24 Motion to Dismiss because my burden on the TRO today is

25 merely likelihood of success, which is different than

13

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 15 of 72 Page ID #379

1 the Motion to Dismiss for stated claim, but I just want

2 that noted, Judge.

3

Likelihood of success on the merit, has my

4 client put forth enough information in front of this

5 court to say, yes, there is a chance here of some merit

6 that he is going succeed, at what? Succeed that the

7 Governor exceeded his authority to force him, through an

8 Executive Order, to stay in his house.

9

Now, what I think is interesting about this,

10 Judge, is, in their response, the Governor takes the

11 position that -- because we cite the Illinois Department

12 of Public Health rules and regulations and the act that

13 talks about isolation and quarantine. The Governor

14 takes the position in this court that, well, telling

15 someone to stay at home but they can leave for these

16 reasons I said they can leave is not tantamount to a

17 quarantine. That's some interesting mental gymnastics,

18 Judge, and I would ask the court not to entertain that.

19 Telling someone that they can't leave their house except

20 for these reasons is tantamount to a quarantine. I'll

21 get to that.

22

Illinois Emergency Management Agency Act, 20

23 ILCS 3305/2, the court has it, the court has read it.

24 The language of it is not ambiguous. As my colleague on

25 behalf of the Governor would say, he believes there's

14

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 16 of 72 Page ID #380

1 ambiguity so I would like to go to the statute, and I

2 have it in front of me, and the statute, by our

3 legislature, in Section 2, subsection (a)(2), it does

4 intend to confer upon the Governor and upon the

5 principal executive officer the powers provided herein.

6 So something herein the legislature intended to grant

7 that power to the Governor. It was a delegation of some

8 legislative authority to the executive branch, and we

9 have to look at see what those are.

10

Before -- I'm going to go through the statute as

11 it reads, Judge. The first thing before certain powers

12 are triggered, as the court has read and the attorneys

13 here know, we have to have a disaster. What is a

14 disaster? The statute helps us with that. A disaster,

15 and I'm going to parse the language because, as we all

16 know, it's written by lawyers and there's a lot of

17 words, but I've parsed it out, a disaster means an

18 occurrence.

19

THE COURT: Aren't you conceding there's a

20 disaster?

21

MR. DeVORE: Yes, but there's a point to make,

22 Judge. Yes. A disaster means an occurrence, which it

23 could include loss of life from any natural cause

24 requiring emergency action to avert is what the language

25 says, a public health emergency. So if the Governor

15

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 17 of 72 Page ID #381

1 chooses to issue a disaster proclamation under COVID-19,

2 that's what he would look at, and he did that on

3 March 9th. It's not been contested that I'm aware of.

4 My client is not contesting that in this court today.

5 That was issued on March 9th, Your Honor.

6

If I flip to Section 6, it talks about certain

7 powers that the Governor has about preparing plans and

8 doing things to help keep people, you know, with other

9 agencies, and that's not really in front of the court

10 today, but Section 7 is where we get to, Your Honor.

11

THE COURT: That's 30 days.

12

MR. DeVORE: Emergency powers of the governor,

13 and I want to parse this really close if I may, sir.

14 And just for the court's clarification, the government

15 has taken the position that this language is ambiguous

16 somehow. In the event --

17

THE COURT: Are you?

18

MR. VERTICCHIO: Not at all, Your Honor.

19

THE COURT: I didn't think he was either. I

20 thought he said -- he's saying it's clear that the

21 Governor can just issue these 30-day proclamations as

22 long as he wants.

23

MR. DeVORE: True, which would be an

24 interpretation. I'm sorry, sir. Go ahead.

25

MR. VERTICCHIO: As long as it's declared a

16

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 18 of 72 Page ID #382

1 disaster.

2

THE COURT: All right.

3

MR. DeVORE: Fair enough. Let's talk about

4 that, Judge. In the event of a disaster as defined in

5 Section 4, which we just went through, and I think -- I

6 don't believe there's a dispute in this court, and I'm

7 asking the court not to find there's a dispute, that

8 that disaster proclamation on March 9th was COVID-19.

9 Okay.

10

So, in the event that disaster was proclaimed,

11 the Governor declared a disaster exists. Upon such

12 proclamation is the language, the Governor shall have

13 and may exercise for a period not to exceed 30 days the

14 following emergency powers. I'm going to go on in a

15 lower part of the statute before I come back to the 30,

16 Judge, because when we're talking about whether they can

17 be, and I use the language on behalf of my client, re-

18 energized with a new proclamation, et cetera, provided,

19 however, that the lapse of the emergency powers shall

20 not, as regard to any act committed within the 30 days,

21 deprive any person of any rights they may have.

22

So what that was saying and what the legislature

23 is saying is, upon lapse, you still have certain rights

24 as people. So I would ask the court to consider that

25 the legislature obviously recognized that after 30 days

17

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 19 of 72 Page ID #383

1 there would be a lapse in the power at least as it

2 relates to the disaster that was promulgated at the

3 onset.

4

The Governor, when he -- and, again, going

5 through these powers, Judge, we have the power that, it

6 seems fair to say, the Governor is trying to invoke

7 here, to control ingress and egress to and from a

8 disaster area, the movement of persons within the area,

9 and the occupancy of premises therein. The Governor,

10 again, has interpreted that language, that that means he

11 can tell every person within the whole state to stay at

12 home, not arguing -- I'm asking the court just to

13 consider that in its totality. We're certainly not here

14 today arguing that that Executive Order exceeded that

15 language. We're arguing that it exceeded the 30 days,

16 because I wanted to point that out to the court that

17 there has been an interpretation that that language says

18 you can make people stay at home.

19

Now here's the clever part, Judge, of the

20 March 19th order that I would ask the court to look at.

21 The disaster proclamation of March 9th said that

22 COVID-19, and I have it here in front of me,

23 proclamation, the proclamation of March 9th, Your Honor,

24 I just had to go to it, where it has all of the

25 whereases that the court can see, based on the

18

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 20 of 72 Page ID #384

1 foregoing, the circumstances surrounding COVID-19

2 constitute a public health emergency under Section 4.

3

Then you flip to the -- he does the Executive

4 Order, and the Executive Order refers to, and I want to

5 point this out because my colleague, I believe from his

6 brief, is going to come to a constitutional argument,

7 therefore, under the Executive Order of March 20th that

8 we're arguing about, by the powers vested in me as

9 Governor of the State of Illinois, and pursuant to

10 Sections 7(1), 7(2), 7(8), 7(10) and 7(12) of the

11 Illinois Emergency Management Agency Act, 20 ILCS 3305,

12 so that's where he cites the Emergency Management Act,

13 and -- this is going to get a little bit interesting

14 later, Your Honor -- and consistent with the powers in

15 public health laws.

16

So the Governor, in this Executive Order

17 restraining my client in his home, says I'm doing that

18 under the Emergency Management Act and within the powers

19 of public health laws. And then he goes on to issue the

20 stay-at-home order in that March 20th Executive Order.

21 That March 20th Executive Order, Your Honor, was by, on

22 its face, I'm going to flip back to it, on its face I

23 believe was set to expire on the 7th of April. I want

24 to make sure that I provide that paragraph to the court.

25 Here it is, Judge, under first page, March 21st at 5:00

19

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 21 of 72 Page ID #385

1 for the remainder of the duration of the Gubernatorial

2 Disaster Proclamation, which currently and through

3 April 7, 2020. So this order was set to expire on

4 April 7th.

5

Now the Governor, when he issued the first

6 proclamation of a disaster --

7

MR. VERTICCHIO: Your Honor, I'm sorry, but if

8 the record is going to reflect that counsel is quoting

9 from the order, it doesn't say and, it says extend.

10

MR. DeVORE: Could you clarify that, counsel?

11 Where at?

12

MR. VERTICCHIO: You just read it, counsel.

13 Which currently extends through April 7th.

14

MR. DeVORE: Okay. Currently extends through

15 April 7th.

16

MR. VERTICCHIO: Thank you.

17

MR. DeVORE: Now the proclamation that was

18 entered on March 9th, interestingly enough, Your Honor,

19 had a 30-day time frame in the disaster proclamation.

20 There's nothing in the statute that says disaster

21 proclamations have a 30-day limitation. It just says

22 you can issue a disaster proclamation. Nonetheless, the

23 Governor put in a 30-day limitation on that

24 proclamation. And, again, this order of March 20th that

25 he entered ordering stay in place of my client through

20

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 22 of 72 Page ID #386

1 the Emergency Management Act, and presumably consistent

2 with the powers in the public health laws, extended

3 through April 7th.

4

Absent some argument that this order, before

5 April 1st when we have the new proclamation ordering my

6 client to stay at home, would not be through the

7 Emergency Management Act as we're here today but it

8 could be through the public health laws because the

9 Governor cites that as authority.

10

Now, getting to the April 1st proclamation,

11 Judge, is where the power being exerted by the Governor

12 through the Emergency Management Act becomes a lot more

13 precarious and I believe can no way be reconciled with

14 the plain language of the statute.

15

The Governor, in this he calls the proclamation

16 of the COVID-19 virus a continuing disaster. He doesn't

17 call it a new disaster. He doesn't say the disaster has

18 migrated in one way or another. He calls it a

19 continuing disaster, which I believe this court can say

20 and I believe makes sense with just interpreting of

21 language, it was the same disaster, it just was still

22 ongoing at that point in time. Why the Governor chose

23 to, again, put 30 days on the first disaster and have it

24 and that proclamation and then have a new proclamation

25 that just says, oh, yeah, it's continuing, I don't know

21

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 23 of 72 Page ID #387

1 why he added the temporary restraining order change.

2

THE COURT: How about because he knew he only

3 had a 30-day limit?

4

MR. DeVORE: I'm going to present that to the

5 court as probably why but, again, I'm not going to

6 speculate on the good intentions of the Governor.

7

So when this new proclamation gets entered on

8 April 1st, Your Honor, saying we have a continuing

9 disaster, a new one, we all know it's the same disaster,

10 the Governor obviously contemporaneously with that

11 issues another Executive Order pushing his emergency

12 powers down another 30 days to the end of April.

13

Now, statutory construction, I would ask the

14 court to consider this: If the legislature of the state

15 of Illinois intended to let the Governor have some sort

16 of emergency power, whether that power includes making

17 you stay at home or not, let's set that aside for a

18 second, if you were going to let the Governor have

19 emergency powers that extended for the duration of a

20 disaster, they could have written that. They could have

21 written in there that these emergency powers will last

22 so long as the COVID-19 disaster is still a public

23 health emergency. That would have been pretty easy.

24 Now whether or not that exceeded their delegation of

25 authority from a constitutional perspective, we're not

22

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 24 of 72 Page ID #388

1 at that today.

2

All we're saying is they clearly, when they

3 wrote this statute, didn't intend in any way to allow a

4 Governor, the office of Governor, I'm not even using our

5 current Governor's name, an office of Governor to

6 exercise these emergency powers into perpetuity by

7 merely bootstrapping new proclamations every 30 days for

8 the same disaster. I mean the disaster is the disaster,

9 and that's what the Governor, in his Emergency Manage-

10 ment Act proclamations, is doing.

11

THE COURT: While we're on that subject,

12 Attorney General, the speaker of the house, Illinois

13 house, could propose an amendment to this Emergency

14 Management Act and grant the authority the Governor

15 seeks in perpetuity or as long as the Governor deems

16 there to be a disaster and he could pass that in a New

17 York minute, couldn't he?

18

MR. VERTICCHIO: Well, I think the speaker of

19 the house could bring that to the floor and --

20

THE COURT: Exactly, for which then there could

21 be debate and an up or down vote and transparency so the

22 citizens could see who was voting for this and who

23 isn't. That could be done.

24

MR. VERTICCHIO: Sure. And, Your Honor, we're

25 here today to talk about what was done. What did the

23

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1 legislature do.

2

THE COURT: I get that.

3

MR. VERTICCHIO: Not what they might do.

4

THE COURT: I'm just saying that in response to

5 something in your brief that says if I dissolve this, or

6 if I grant this TRO, we're going to kill millions of

7 people. Okay. Go ahead.

8

MR. DeVORE: Thank you very much, Your Honor.

9 What the court just suggested -- and I understand my

10 colleague's response that what we're here for today is

11 what happened and not what could happen, but what could

12 happen -- I still think the court can use that analysis

13 of its significant time of experience to say I know what

14 was meant by this statute and those were the things that

15 can happen.

16

Now, granted, if the legislature would do what

17 the court is talking about and grant that authority in

18 public on the floor, people see how they vote, citizens

19 still could seek reprieve in a court saying that was an

20 excessive delegation of legislative authority.

21

THE COURT: That argument is for another day.

22

MR. DeVORE: Absolutely, sir. So as it relates

23 to the Illinois Emergency Management Act, again, Your

24 Honor, once the order of April 1st, the Executive Order

25 which then re-energized the 30 days of power under the

24

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1 Emergency Management Act according to the Governor by

2 his actions, I would ask the Court to find there's a

3 likelihood of success on the merits that there's no

4 language in the act as it's written that supports that

5 proposition and, as a matter of fact, as the court's

6 aware from statutory construction, if we, as jurists in

7 courts, interpret language of the statute that vitiates

8 completely one of its provisions, that's not something

9 we should do.

10

So if the court chose and decides to say, yes,

11 there is a proper -- again, I'm calling them serial

12 proclamations -- they could arguably give the Governor

13 the authority to use these emergency powers until COVID

14 is over. I'm not even here suggesting to the court

15 that's a good or bad idea, whether or not that best

16 serves the people. That's all a different issue. The

17 act can't be read to suggest that because, if it does,

18 the words of lapse and the words that they shall not,

19 you know, exceed 30 days, those are rendered meaning-

20 less. They don't mean anything anymore and the

21 emergency powers could continue forever.

22

So as to the Emergency Management Act, that is

23 where we believe we have presented a likelihood of

24 success on the merits that the Governor exceeded the

25 delegated authority granted him under the Illinois

25

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1 Emergency Management Act.

2

The supplemental brief that we provided to the

3 court tells, and some of the cases my colleague provided

4 the court in response gives some history and some

5 authority to this court that, when I read it -- I'm a

6 50-year-old person, Judge, and I thought, man, this is a

7 new issue. I've got to figure this out. This almost

8 identical issue existed in the halls of our courts

9 100 years ago as to people being ordered to stay at home

10 and whether or not that was a proper exercise of

11 authority. The law now has -- what I have in front of

12 me is the Department of Public Health Act. Let me grab,

13 Your Honor, and this is a significant issue that I hope

14 I do service, Your Honor. This act, Your Honor, is in

15 some of the case law, again, that my colleague cited on

16 behalf of the Governor.

17

This Department of Public Health Act must go

18 back, again, at least as early as 1922 when our Supreme

19 Court rendered an opinion that is significant. So I

20 have the, and I've provided it to the court, 20 ILCS

21 2305, Department of Public Health Act, and it has some

22 language within it that I think the court should

23 consider and it also has the Pandemic Influenza

24 Preparedness and Response Plan. Those pieces of

25 information, along with the cites that have been given

26

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1 in these cases, I believe the court will find, when this

2 is over today and I'm done presenting it, that not only

3 did the Governor exceed his authority under the Illinois

4 Emergency Management Act, regardless of that and

5 independent of that, he never had any authority in the

6 first place as it relates to quarantine and isolation.

7 He didn't have any. I would like to -- again, let me go

8 through and get my documents here and I'm going to

9 provide that to the court. 20 ILCS 2305, Powers. The

10 State Department of Public Health has general

11 supervision of the interests of the health and lives of

12 the people of the State. Next sentence, Judge. It, the

13 Department of Public Health, has supreme authority in

14 matters of quarantine and isolation, and may declare and

15 enforce quarantine and isolation when none exists.

16

The legislature, the police making the laws, you

17 know, police laws that they made gave that authority,

18 not to the Governor. I mean we have two statutes here

19 the court is considering. One I've argued he exceeded

20 in the Emergency Management Act. There is no specific

21 delegation of quarantine in the Emergency Management

22 Act. It talks about how he can control the movement of

23 people within a disaster area. I would suggest to the

24 court that's probably not quarantine.

25

Our legislature, exercising its police powers,

27

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1 which they have, gave that to a completely independent

2 body. Now they're under the Governor's office, but when

3 I get done presenting this to the court, I'm interested

4 to see how this gets responded to by the Governor.

5

Attached to the document that we've given you,

6 Judge, with the statute is a copy of, and it's required

7 by the statute, and I want to provide this to the court

8 and pray I do it justice, to the concerns of the people

9 of the state, maybe people in this room, that if this

10 court finds this order to be excess of his authority

11 that people's lives are at risk. They're not, Judge,

12 and I would tell the court they're not because this

13 issue has been reduced to a 120-page plan by the State

14 Department of Public Health Pandemic Influenza

15 Preparedness and Response Plan. It's right here for the

16 court to see. I've got some pages of it that I want to

17 cite. It refers to the statute and it's promulgated

18 under the statute, and what I think the court will find

19 interesting is that seven days before our Governor

20 issued his first proclamation of disaster, they made

21 some ministerial changes to this document, nothing

22 significant. They added our new director, Miss Ezike,

23 to it. This document was being circulated through when

24 the COVID-19 was an issue for our country and right

25 before the proclamation.

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1

The court has it there. I'm going to start

2 where the issues that I think are relevant to the court

3 start on about page 66. In these rules, again, Judge,

4 which are grounded in the authority granted the

5 Department of Public Health by our legislature who holds

6 the police powers of this state, Restriction of Movement

7 or Activities to Control Disease Spread. There's a

8 whole section in here about that that the Department of

9 Public Health has, and it talks about quarantines and it

10 talks about the different types of quarantines.

11 Quarantine is not effective in controlling multiple

12 influenza outbreaks in large, and it goes on to talk

13 about, even if quarantine on a grand scale might be

14 effective in controlling influenza in large populations,

15 it would damage the economy by reducing the work force.

16 That's in their own plan.

17

The issue of how do they enforce this.

18

THE COURT: Are you arguing that we don't need

19 the Executive Order to save millions of lives? If we

20 just follow that, we're all going to be just fine. Is

21 that what you're saying?

22

MR. DeVORE: I'm saying that that's what this

23 document was prepared for this issue, and I have two

24 Supreme Court cases that took this issue on 60 and a

25 hundred years ago that said the legislative branch and

29

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1 the Department of Public Health controls isolation and

2 quarantine and they are better served -- I want to read

3 some of this on the record if I could -- they are better

4 served as a board to legislate through the delegation by

5 the legislature to do that than one person. Our Supreme

6 Court a hundred years ago, Judge, and I want to get to

7 that, says that one person making these decisions is not

8 what this country is all about and I will get to that,

9 but what I'm saying is, yes, sir, I'm saying this 120-

10 page document -- and you know what it says, Your Honor?

11 It says in here that these decisions, and I called on

12 county health departments, but the decisions of

13 quarantine and isolation, and you know what else,

14 closure of businesses is controlled through the

15 legislature through the Illinois Department of Public

16 Health down to every county health department within the

17 102 counties that we have.

18

That's what the law says, and it's in here and

19 they've had it and they were inside of it making

20 ministerial changes seven days before the proclamation

21 was entered.

22

THE COURT: That document, that provides right

23 to counsel, judicial review and all of that, correct?

24

MR. DeVORE: The plan cites the statute and the

25 statute says, here's what it says, it says if the, and I

30

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1 can tell you, I had to go ask, communicable, that's a

2 big word, disease nurse, Bond County is where I live,

3 sir. There's a communicable disease nurse, and I don't

4 want to say her name, if you were believed to have any

5 contagious disease ever, not just COVID-19, she has the

6 ability to go to our administrator and our administrator

7 will then send a letter to that person, the notice. You

8 know what, the statute requires a notice to that person

9 that says we have determined you have this disease and

10 we need you to either voluntarily quarantine or not and,

11 if you don't, the board can go to our state's attorney,

12 whose name is Dora Mann, and it says they can get an

13 order from the judge saying you have to quarantine and

14 giving them 48 hours to appear with counsel to be heard.

15 That's in place, Judge. That's always been in place.

16

THE COURT: I get that. What if, instead of

17 COVID-19, what if this was a mutation of Ebola with a

18 hundred percent kill rate? Isn't that what this

19 Emergency Management Act is designed to prevent and what

20 these Executive Orders are designed? There's no time

21 under that act to do what you're saying. There's no

22 time. You've got to socially isolate and shut this

23 place down or everybody is going to die.

24

MR. DeVORE: I agree with you 100 percent, and

25 you know what this plan says, Judge? It says that

31

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1 decision, the legislative branch of our state has

2 delegated that decision making to the Illinois

3 Department of Public Health, not to the executive branch

4 of Governor.

5

THE COURT: But they did in the Emergency

6 Manage- ment Act.

7

MR. DeVORE: They're trying to say that they

8 did. Correct. Yeah.

9

THE COURT: All right.

10

MR. DeVORE: And -- well, I'm going to point

11 that out, too, Judge, because I'm interested to hear

12 what my colleague says, is that they have now in their

13 response said that their authority was grounded in not

14 only the Illinois Emergency Management Act but it's

15 grounded in the constitution. Now, I went back and

16 looked to make sure I didn't miss anything, and in the

17 proclamations and orders that were entered, it

18 specifically says we have issued these orders pursuant

19 to these sections of the Illinois Emergency Management

20 Act and it's consistent with public health laws. It's

21 not consistent with this public health law, Judge.

22

It completely contradicts it. Not only does it

23 contradict it and usurp it, it strips the fundamental

24 due process rights away from every citizen, including

25 Mr. Bailey. For those reasons, Judge, we believe that

32

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1 the mechanisms that are in place, they've been in place,

2 and I want to end this -- I have one case that my

3 colleague cited, Judge, that I would like to hand the

4 court and I would like the record to reflect -- I want

5 the court to appreciate -- may I, sir?

6

THE COURT: Yeah.

7

MR. DeVORE: That this issue -- this was a

8 typhoid issue of 1922 I believe is when the case was

9 issued, Judge, but this was a writ of habeas corpus to

10 where a citizen of our state said that they were being

11 held against their will for all intents and purposes.

12 This was, and I'm on page 4 of 13, this lady's name was

13 Jennie Barmore, and she filed in the court an

14 application for writ of habeas corpus, in English that

15 means I'm being held against my will, stating that she

16 was unlawfully restrained of her liberty at her home in

17 Chicago by the commissioner of health. It goes on and

18 talks about the health of the people is unquestionably

19 an economic asset and social blessing and the science of

20 public health is of great importance.

21

Now here when I get to page 6 is where this case

22 law that I would ask the court to consider, the

23 preservation of the public health is one of the duties

24 devolving upon a state as a sovereign power will not be

25 questioned. It is. The health of the people in our

33

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1 state is, it is important. Among the objects sought to

2 be secured by governmental laws, none is more important

3 than the preservation of the public health. The duty to

4 preserve the public health finds ample support in the

5 police power, which this is the part of the case I

6 believe my, the Governor cites, which is inherent in the

7 state, and which the state cannot surrender. That's

8 true, too. Every state has acknowledged power to pass

9 and enforce quarantine, health and inspection laws,

10 quarantine, health and inspection laws to prevent the

11 introduction of disease, et cetera, and such laws must

12 be submitted to by individuals.

13

So what that says, Your Honor, is that under

14 these circumstances through the powers given to certain

15 departments by the legislature, is that we, as citizens,

16 sometimes may have to yield. We understand that and I

17 think my client understands that. Generally speaking,

18 what laws or regulations are necessary to protect public

19 health and secure public comfort is a legislative

20 question, and appropriate measures intended and

21 calculated to accomplish these ends are not subject to

22 judicial review, and what that goes on to say is that

23 when someone eventually makes it to your court saying

24 that they've been held in violation of their rights,

25 this court would apply an arbitrary and capricious

34

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1 standard of whether or not they have been restrained.

2

Next paragraph, Judge. The legislature may, in

3 the exercise of the police power of the state, create

4 ministerial boards, Illinois Department of Public

5 Health, with power to prescribe rules and impose

6 penalties for their violation and provide for the

7 collection of such penalties.

8

So there's been a lot of conversation that the

9 court may have heard, well, how does a governor enforce

10 this? That's a good question. Here's how the Illinois

11 Department of Public Health enforces it and it's right

12 here, the exercise of the police power is a matter

13 resting in the discretion of the legislature or the

14 board or tribunal to which the power is delegated and

15 the courts will not interfere with this exercise unless

16 it's arbitrary or capricious. This is a 1922 case,

17 Judge, and I'm going to come to the end of something

18 that this case says, that this court said. The

19 legislature has granted the power to appoint a board of

20 health and to prescribe its duties and powers. A board

21 of health must necessarily consist of more than one

22 person and powers. Many authorities contend that the

23 administration of public health should be vested in an

24 individual, and that that individual may be trained in

25 the science of public health. This contention is based

35

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1 on the ground that this form of administration of the

2 health laws is productive and efficient.

3

Please bear with me, Judge. This is so

4 important. The same argument might have been made in

5 favor of an absolute monarchy, but the experience of the

6 world has been that other forms of government, perhaps

7 more cumbersome and less efficient, insure to the people

8 a more reasonable and less arbitrary administration of

9 the laws. Whatever may be best, legislature of Illinois

10 has said that the public health shall be regulated and

11 guarded by the board of health. Until the legislature

12 grants to cities, this was a city case, the power, they

13 must contend with the board of health. That's what this

14 case said, Judge, a hundred years ago, and that's what

15 I'm asking this court to say today.

16

We have an Emergency Management Act. Does it or

17 does it not give the Governor the power at all to

18 quarantine people? I would say it's in -- I think the

19 act for the Department of Public Health is clear. It

20 says we are the supreme power. I don't know how many

21 times I may have seen you have the supreme power. If

22 the court is looking at these two statutes, I think it's

23 clear to say the Department of Public Health statute is

24 more specific.

25

Coming back to the Illinois Emergency Manage-

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1 ment Act, did it grant the Governor the power to

2 quarantine, not just save people from going into a

3 disaster area? If we had a nuclear disaster, the

4 Governor saying who can go in there and who can't go in

5 there, that's important movement of people, but to take

6 it to the point of moving a people, being quarantining

7 the whole state, I think if the court looks at the plan

8 that we have here, it actually says that those aren't

9 really good ideas because it's hard to enforce and would

10 damage the economy. Their own plan, Judge, vitiates the

11 actions of the Governor.

12

So I'm asking the court to say Illinois

13 Department of Public Health Act, the legislature who

14 holds the ultimate police power, has given that to the

15 Board of Health. We have a mechanism in place through a

16 120-page Pandemic Influenza Response. Every county in

17 our state has something in place right now. That's the

18 protection that our legislature has set up to handle

19 these matters. The Illinois Emergency Management Act

20 clearly gave the Governor the ability to enter some kind

21 of orders within 30 days. He has now used a serial

22 proclamation to try to do that. That doesn't appear to

23 be required, or allowed by the statute itself, and, even

24 if the court might get that far, which I'm asking it not

25 to, that interpretation should not exceed the express

37

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1 and clear legislative mandate of the Illinois Department

2 of Public Health. Thank you very much, sir.

3

THE COURT: What say you, Mr. Attorney General?

4

MR. VERTICCHIO: Thank you, Your Honor. Your

5 Honor, the Illinois General Assembly passed the

6 Emergency Management Agency Act and, when it did, in the

7 introduction, here's what it said as to why the act was

8 passed, quote, to insure the state will be prepared to

9 and will adequately deal with any disasters, preserve

10 the lives and property of the people of this state and

11 protect the public peace, health and safety in the event

12 of a disaster.

13

Section (2)(a), the Act also grants the Governor

14 the authority to declare by proclamation that a disaster

15 exists and to exercise emergency powers pursuant to that

16 disaster proclamation.

17

THE COURT: That preamble there just said to

18 protect property, is that right?

19

MR. VERTICCHIO: That's one of the things.

20 Lives, property, peace, health.

21

THE COURT: This Executive Order is absolutely

22 destroying people's property. It's killing them. It is

23 keeping them from working, making a living. How is that

24 preserving property?

25

MR. VERTICCHIO: Well, it's a judgment to be

38

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1 made, Your Honor, and it's a judgment that's being made

2 not only in Illinois but across the country, indeed, the

3 world and lives --

4

THE COURT: Well, with respect to that, how

5 about the couple of states who never shut down in the

6 first place? How about the states right now who are

7 opening?

8

MR. VERTICCHIO: And that's the judgment that

9 the governors of those states made within their

10 executive power. In Illinois, Governor Pritzker made a

11 different judgment. He made a judgment that he had the

12 right to make under the act, and what's interesting

13 about the act and the proclamation and, in fact, the

14 30-day successive, multiple orders is that since the

15 decades that the act was passed, Governors Rauner,

16 Quinn, Pritzker, have passed successive and multiple,

17 made successive and multiple proclamations and then, on

18 that proclamation, issued executive orders regarding the

19 declaration of a disaster.

20

THE COURT: Aren't you talking about flooding?

21

MR. VERTICCHIO: Several of them were flooding,

22 Your Honor.

23

THE COURT: There is --

24

MR. VERTICCHIO: One of them was H1N1.

25

THE COURT: There is a vast difference between

39

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1 being allowed to ask the federal government for disaster

2 loans for farmers in a flood and an executive order that

3 shuts down my right, my constitutional right to work, to

4 travel, to exist, isn't there?

5

MR. VERTICCHIO: Well, excepting, Your Honor,

6 the issue that the plaintiff brings is under this

7 statute, does the Governor have the right to make

8 multiple or successive declarations of a disaster and,

9 therefore, upon that proclamation, trigger emergency

10 powers for a period of 30 days, and the history of this

11 act with multiple governors is yes, and now --

12

THE COURT: Does the Governor -- does the

13 Governor have the right to shred the constitution for

14 longer than 30 days? That's the issue, isn't it?

15

MR. VERTICCHIO: Well, the legislature

16 promulgated the act and gave the Governor vast powers.

17

THE COURT: They certainly are vast.

18

MR. VERTICCHIO: They are. They are, and I

19 think the key section is the one that counsel pointed

20 out. It's Section 7. That's what we're here about

21 today.

22

THE COURT: I'm glad you brought that up.

23 Section 7 says, and I'm reading it here, let me find

24 this here, the Governor shall have and may exercise for

25 a period not to exceed 30 days. It doesn't say you can

40

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1 do multiple declarations. It says you got 30 days to do

2 whatever you want, even if it shreds the constitution

3 but, after that, party over.

4

MR. VERTICCHIO: Respectfully, Your Honor,

5 that's not what it says.

6

THE COURT: Please tell me what it does say.

7

MR. VERTICCHIO: I'm going to read Section 7.

8 Quote, Emergency Powers of the Governor. In the event

9 of a disaster, as defined in Section 4, and we have no

10 dispute that there is a disaster here, the Governor may,

11 by proclamation declare that a disaster exists.

12 Continuing, upon such proclamation, what proclamation?

13 The proclamation that a disaster exists, upon such

14 proclamation, the Governor shall have and may exercise

15 for a period not to exceed 30 days the following

16 emergency powers.

17

So what triggers the 30 days? The proclamation.

18 Upon such proclamation. When the Governor, under the

19 clear reading of the act, it's the language they use,

20 when the Governor, present tense, declares a disaster

21 through proclamation, which he did in this case on

22 March 9th and then again on April 1st, that declaration,

23 through proclamation, triggers the next clause or

24 sentence. Upon such proclamation, the Governor shall

25 have and may exercise for a period not to exceed 30 days

41

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1 the following emergency powers. It's a clear sentence.

2

So the triggering event is the proclamation and

3 then the 30 days. If there's another proclamation, then

4 there's another trigger, and, if there's another

5 proclamation, then there's another trigger. What's the

6 guardrail? What's the guardrail because this can't go

7 on forever? Well, the guardrail is that the Governor is

8 required under the act to declare a disaster.

9

THE COURT: What's to stop him from keeping on

10 declaring a disaster for the next five years?

11

MR. VERTICCHIO: Cases like this, Your Honor.

12 Cases like this. Mr. Bailey could bring a case and say

13 his declaration of disaster was not taken in good faith,

14 and that's the standard.

15

THE COURT: I'm sure we'll get to that in the

16 next lawsuit.

17

MR. VERTICCHIO: Well, we may, but what we've

18 heard today is we're not disputing there's a disaster

19 and how could we? How could we dispute that? My notes

20 for today, Your Honor, said that there's been almost

21 42,000 cases of COVID-19 in Illinois and 1,843 deaths.

22 I realized coming down here this morning my notes were

23 wrong because I heard on the radio that there were 59

24 deaths yesterday. There's a disaster.

25

THE COURT: And zero in Clay County and zero in

42

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1 numerous other downstate counties.

2

MR. VERTICCHIO: That's an interesting point,

3 Your Honor, because in Jasper County right next door

4 there's 42 cases.

5

THE COURT: In a nursing home.

6

MR. VERTICCHIO: In a nursing home. In Marion

7 County, I looked last night, I think there were

8 26 cases. So this is not -- this is not a Northern

9 Illinois only problem because in southern counties, too,

10 the issue exists. Jasper County, 42 cases, less than

11 10,000 residents in the county. As a result, it suffers

12 one of the highest per capita infection rates in

13 Illinois. Its rates are doubling every three days.

14

Jefferson County is one of the few to exceed

15 Jasper. Its rates double every two and a half days.

16 Randolph County, one of the fastest doubling rates in

17 the state. The point is we can't really dispute it was

18 a disaster. It is a disaster.

19

THE COURT: With respect to these statistics

20 you're throwing out here and all of that, isn't it true

21 that if I die in a car wreck and I happen to test

22 positive for COVID-19, my cause of death for purposes of

23 what this Governor is doing is COVID-19?

24

MR. VERTICCHIO: I don't know. I don't know how

25 that particular method is, Your Honor.

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1

THE COURT: All right.

2

MR. VERTICCHIO: So, under the act, that

3 sentence is clear, and it's interesting to note that

4 counsel goes on in Section 7 to read that, well, wait a

5 minute, provided, however, that the lapse of emergency

6 powers shall not and, therefore, the conclusion is,

7 well, it must contemplate a lapse, but you have to read

8 the rest of the section. The rest of the sentence makes

9 it very clear that that clause concerns payment,

10 reimbursement and compensation of people who contracted

11 to provide services doing the 30-day period. It simply

12 has nothing to do with whether the Governor has the

13 ability to then proclaim a disaster again and then, upon

14 such proclamation, another 30 days triggers.

15

In our case, March 9th came and Governor

16 Pritzker declared a disaster existed. March 20 the

17 first Executive Order exercised the emergency powers

18 that were to extend through April 7th as we learned,

19 30 days from the original. Then on April 1st, present

20 tense, declared a disaster existed thereby, upon that

21 proclamation, was able to exercise his emergency powers

22 through the same day Executive Order on April the 1st

23 through April the 30th.

24

There are no limitations in the act with regard

25 to his ability or any governor's ability to declare

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Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 46 of 72 Page ID #410

1 multiple and successive proclamations, and that's what

2 he did on March 9 and that's what he did on April 1.

3 The act is clear and unambiguous on that issue.

4

THE COURT: There's also nothing in the act that

5 says you get to keep doing this every 30 days whenever

6 you want. That ain't in there either, is it?

7

MR. VERTICCHIO: Well, what the legislature

8 said, the general assembly said is that, if you declare

9 a disaster, then upon that proclamation, you've got

10 30 days, and the guardrails again are was it a good

11 faith exercise of the declaration of a disaster, and

12 maybe some day there will be that case, but for today's

13 purposes, I don't think anybody can dispute that we have

14 a disaster and, more importantly, nobody is disputing

15 it.

16

Where Mr. Bailey, the plaintiff's construction

17 gets confused is that he triggers and links the 30-day

18 period of emergency powers to a particular disaster, but

19 the 30-day limitation isn't linked to a particular

20 disaster. Under the clear language of the legislature,

21 it's linked to the proclamation of a present tense

22 disaster.

23

So it's pretty clear, Your Honor, that given the

24 sequence of events, Governor Pritzker conducted the

25 proclamation and the executive orders specifically

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1 within the language of the statute. Declare, then upon

2 the declaration, 30 days emergency power. And when the

3 statute's looked at as a whole, it's apparent that that

4 plain language means exactly what it was intended to

5 mean, because when you look at the limitations section

6 of the statute, Section 3, it has no limitations on the

7 Governor on this issue. In fact, the only mention of

8 the Governor in Section 3 is that the act shall not be

9 construed to constrain the Governor's ability to, quote,

10 proclaim martial law or exercise any other powers vested

11 in the Governor under the constitution, statutes, or

12 common law of this state. There are no limitations on

13 this 30-day issue.

14

So you look further in the statute. Well, did

15 the legislature, the general assembly put limitations on

16 somebody else regarding this issue, this timing issue

17 about declaring a disaster? And the answer is yes. In

18 Section 11, the general assembly dealt with the issue of

19 a local disaster, local disaster, and it gave local

20 political bodies the ability and, in particular, the

21 executive of a local subdivision, the ability to declare

22 a disaster, but here's what it said in that regard.

23 That the local disaster declaration, quote, this is

24 Section 11, quote, shall not be continued or renewed for

25 a period in excess of seven days except by or with the

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1 consent of the governing board of the political

2 subdivision.

3

In that instance, same statute, same issue, the

4 general assembly determined we're going to confine the

5 local subdivision to seven days unless it gets consent

6 of the governing body of the subdivision. The precise

7 same issue with regard to the Governor, that limitation

8 is not there. In other words, when the legislature

9 wanted to put a limitation on this ability to declare a

10 disaster in terms of timing, it did. Fair inference, it

11 didn't place that restriction on the Governor. None

12 exists.

13

THE COURT: Well, I get that, and for 30 days --

14 the legislature, aren't they saying, look, we get it.

15 You can't spend all of this time -- you've got 30 days

16 to make this state safe and do what you've got to do,

17 but, after that, there's that pesky little thing called

18 the constitution that's going to have to be dealt with.

19

MR. VERTICCHIO: Well, Your Honor, there's a

20 couple things on that. That construction, and that's

21 certainly Mr. Bailey's construction, that construction

22 presumes that every disaster will either be over in

23 30 days or the legislature is going to do something, but

24 when passing the act, the general assembly determined

25 that that's not the guardrail we're going to put on the

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Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 49 of 72 Page ID #413

1 Governor. We're not saying in this act you can only do

2 it for 30 days and then we're going to do something.

3 That's not what the ACT says. The general assembly,

4 when passing the ACT, said, Governor, if you declare a

5 disaster, the law says he has to do it in good faith,

6 but if you declare a disaster by proclamation, upon that

7 proclamation, you have emergency powers for 30 days.

8 That's all it said. It could have gone on to say and,

9 thereafter, the legislature will convene. It doesn't

10 say that. It doesn't say that at all, but under Mr.

11 Bailey's construction of the statute, the 30 days

12 triggers a stop. Stop. If you do something past

13 30 days, it's void, it's invalid, it's illegal he'll

14 tell you.

15

But then what? What if the general assembly

16 isn't in a position to convene? Sometimes that could be

17 the case. Some would argue it's the case now. The

18 determination of the general assembly was the guard-

19 rails would be the declaration of a disaster. In that

20 event, if there is a present-tense disaster, the

21 Governor declares, proclaims 30 days and, yes, it was

22 floods, although Governor Rauner's I believe was also

23 H1N1, multiple successive orders under the act.

24

THE COURT: H1N1 is the flu, also, right?

25

MR. VERTICCHIO: Certainly a virus.

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1

THE COURT: And that governor certainly didn't

2 shut down the state and destroy people's lives and

3 property for H1N1.

4

MR. VERTICCHIO: No question about it. H1N1 is

5 nothing -- I can't say it's nothing. It clearly was

6 significant, but, compared to COVID-19, it's not, it's a

7 different world.

8

MR. DeVORE: Judge, I just want to put on the

9 record for clarification that counsel is not giving

10 medical professional advice.

11

THE COURT: I get that.

12

MR. DeVORE: Thank you.

13

MR. VERTICCHIO: I will stipulate to that, Your

14 Honor.

15

MR. DeVORE: Thank you, sir.

16

MR. VERTICCHIO: But there's legal consequence

17 to the history of three different governors, successive,

18 multiple executive orders, proclamations of disaster,

19 30 days continued, another 30, another 30, and there's

20 legal consequence of the legislature not coming in and

21 saying, time out, you can't do that. You can't do that.

22 Why do I say there's legal consequence?

23

Well, we cited the case, Your Honor. It was the

24 Pielet Brothers case. Here's what the court said: A

25 reasonable interpretation of a statute by an agency

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1 charged with enforcement of that statute is entitled to

2 great weight. Such a construction is even more

3 persuasive if consistent, long-continued, and in

4 conjunction with legislative acquiescence on the

5 subject. Such acquiescence appears where the

6 legislature, presumably aware of the administrative

7 interpretation in question, has amended other sections

8 of the act since that interpretation but left untouched

9 the sections subject to the administrative

10 interpretation, and that is precisely the situation we

11 have here.

12

We have multiple governors under Section 7 of

13 the ACT making multiple or successive proclamations and,

14 upon such proclamation, exercising emergency powers for

15 the 30-day period. We have the legislature, the general

16 assembly, during these several decades, on 11 separate

17 occasions amended the act and not once did anyone in the

18 general assembly even suggest, wait a minute, those

19 successive and multiple declarations and proclamations,

20 he can't do that. We need to amend the act to make this

21 clear.

22

The Pielet court tells us that's very persuasive

23 evidence of acquiescence and validates the

24 interpretation given by the Governor in this case. All

25 of that the plaintiff ignores, disregards the plain

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1 language, the plain language of Section 7, adds

2 restrictions where none exists. There are -- there's no

3 restriction there. The one place where there is a

4 restriction on this issue is in Section 11, and the

5 general assembly was very clear there, and ignores those

6 clear limitations that were placed upon the

7 subdivisions.

8

Mr. Bailey says, well, by permitting successive

9 and multiple disaster proclamations, you rendered the

10 30-day limitation meaningless. Not true. The 30-day

11 limitation triggers upon the declaration of the disaster

12 and then a subsequent proclamation. It has meaning

13 because the Governor has to, at the end of the 30 days

14 or before the 30 days, if he is under the judgment that

15 another proclamation is in order and another declaration

16 is required, he's under the good faith obligation to

17 make a declaration of disaster and renew the emergency

18 powers and that's exactly what happened here.

19

THE COURT: Hold on. Who governs whether it's

20 good faith? Where does the petitioner get to go to

21 judge that?

22

MR. VERTICCHIO: Right here, and that's a

23 situation, Your Honor, better left in the hands of

24 people like you. Not to suggest that it's an easy

25 determination, but that's where it's left.

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1

THE COURT: For the record, I'm bound to follow

2 the law and the law requires me to give deference to the

3 executive branch and the legislative branch and I so do.

4 Go ahead.

5

MR. VERTICCHIO: Thank you, Your Honor.

6 Finally, Your Honor, on the issue of the statutory

7 interpretation, the interpretation pressed by the

8 plaintiff would lead to absurd and, frankly, in this

9 case, dangerous results because, as a result of a

10 finding that the Governor, despite the clear language of

11 the act, does not have the authority under the act to

12 issue successive and multiple proclamations triggering

13 the emergency powers, the requested relief says,

14 therefore, after April 7th, everything that the Governor

15 implemented through the Executive Order of April 1st is

16 void. There's the -- and we've -- most of the executive

17 orders are cited in the exhibits to the plaintiff's

18 complaint. Procurement of medical supplies, personal

19 protective equipment. There's executive orders

20 protecting state government operations, home evictions,

21 Department of Corrections regulations, health workers,

22 county jails, Illinois schools, repossession of

23 vehicles, regulation of bars and restaurants,

24 unemployment insurance, open meetings act issues,

25 federal funds, social distancing, protection of health,

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Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 54 of 72 Page ID #418

1 all of those executive orders, every one of them,

2 according to Mr. Bailey, are void and invalid as of

3 April 7th.

4

THE COURT: They already happened. I mean that

5 horse left the barn, didn't it?

6

MR. VERTICCHIO: But what happens to the work

7 that's being done pursuant to all of those? Everyone is

8 now free to do what they want. Health care workers are

9 no longer protected. The Amicus brief comes to mind,

10 Your Honor. They're all void, and they were all taken

11 by the Governor under the specific authority of the act

12 to protect the health and safety of citizens, of the

13 citizens of Illinois.

14

MR. DeVORE: Judge, could counsel clarify

15 whether he's referring to Section 6 or 7 as to these

16 measures?

17

MR. VERTICCHIO: Section 7 is the trigger. As I

18 said, Your Honor, these restrictions have been in place

19 now, first on March 20 then renewed based upon a new

20 declaration on April 1st and, even with the

21 restrictions, 42,000 cases, now almost 1900 deaths.

22

If they are removed, if the court determines

23 they're invalid, they're removed, things are going to

24 get worse, things are going to get worse, and the

25 general assembly's determination that this act was to

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1 protect the health and safety of the people of the state

2 of Illinois will be frustrated.

3

THE COURT: All they've got to do is convene and

4 make a motion to amend this Emergency Management Act to

5 give the Governor, not 30 days, 60, 90, 120.

6

MR. VERTICCHIO: There's no question, Your

7 Honor, but we're here to determine what did they already

8 do? The legislature has already made that

9 determination.

10

THE COURT: I get you.

11

MR. VERTICCHIO: So for all of those reasons,

12 the clear construction of the act, the statutory

13 construction rules, they all clearly land on 30 days as

14 triggered by the proclamation, the declaration of the

15 disaster. There was nothing, nothing about either of

16 the proclamations, and specifically the April 1

17 proclamation, that went afoul of the specific language

18 of the legislature.

19

And, beyond that, there's the constitutional

20 issue. Counsel said to the court, well, there's no

21 evidence in the orders that they were done pursuant to

22 some constitutional authority in addition to the act,

23 but I'm looking, for example, at, it's Exhibit 2 to the

24 plaintiff's complaint, the therefore clause that counsel

25 read part of. Therefore, quote, by the power vested in

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Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 56 of 72 Page ID #420

1 me as Governor of the State of Illinois and, now I'm

2 paraphrasing, pursuant to the act and health laws, I'm

3 invoking these emergency powers. So it's pretty clear

4 that it was pursuant to the act and pursuant to the

5 powers as Governor of the State of Illinois. Well,

6 those are his constitutional powers.

7

When you consider that he has the constitutional

8 powers in the situation at hand, it's clear that he, he

9 being Governor Pritzker, properly exercised those powers

10 here for three very simple reasons. We've heard about

11 the state's police powers. They exist under the

12 constitution to protect public health and safety.

13 That's a truism. Secondly, the general assembly has

14 done nothing, nothing to restrict the Governor in the

15 exercise of his constitutional authority to protect

16 health and safety. As a matter of fact, we now actually

17 in the Emergency Management Act, the general assembly

18 specifically said the constitutional authority of the

19 Governor is preserved. We don't seek to limit that in

20 any way and, finally, three, also undeniable, COVID-19

21 presents a situation of urgent circumstances that

22 requires prompt action, and that gets to the point that

23 you made.

24

You said it a couple of times. There's no time.

25 There's no time. There's no time to go to the health

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1 department. There's no time for everyone in this room,

2 everyone in this county, everyone in this state to get

3 right to counsel, have a hearing, determine whether some

4 kind of stay at home is required. There's no time.

5

And I know Your Honor commented upon the line in

6 the brief about millions dying, and I think, I think I

7 heard a snicker from the back, but it's no joke. Again,

8 I'm driving down this morning from my home, 59 people in

9 Illinois died yesterday. This is no joke.

10

The constitutional --

11

THE COURT: Counsel, I couldn't agree with you

12 more that it's no joke and, while we're on that subject

13 since you brought it up, at a recent press conference,

14 this Governor was asked by a reporter what about easing

15 restrictions in counties in Illinois that don't have

16 COVID or don't need it, and his response was, wait for

17 it, laughter. I agree. It ain't funny. Go ahead.

18

MR. VERTICCHIO: Couldn't agree more, Your

19 Honor. So the constitutional authority is also clear,

20 and counsel read the probative language, the relevant

21 language from the Barmore court case, among all, quote,

22 among all of the objects sought to be secured by

23 governmental laws, none is more important than the

24 preservation of public health. The duty to preserve the

25 public health finds ample support in the police power,

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1 which is inherent in the state. The power can't be

2 denied and the circumstances could not be more grave and

3 the circumstances require prompt action. As you said,

4 Your Honor, there's no time.

5

The Governor issued the executive orders.

6 They're tailored to the situation, and there's nothing

7 inconsistent in them under the statute and they are

8 within his constitutional power.

9

THE COURT: Hold on. When you say tailored to

10 the situation, that's a whole different argument and a

11 whole different standard, is it not?

12

MR. VERTICCHIO: Well, the executive orders are

13 certainly broad in terms of coverage.

14

THE COURT: Broad? You could drive a Mack truck

15 through this thing.

16

MR. VERTICCHIO: They're broad. They're broad

17 given the situation.

18

THE COURT: Tailored to the situation? How in

19 the world does me not being allowed to fish at Forbes

20 Lake promote COVID-19 but panic buying at Walmart

21 doesn't? That ain't tailored to nothing.

22

MR. VERTICCHIO: If, by the question, Your

23 Honor, you're wondering out loud whether someone will

24 bring that lawsuit to question whether it was a good

25 faith exercise in the finding of a disaster, I don't

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1 know. I don't know, but under the law and under the

2 facts that are alleged in the Complaint, the statutory

3 action was proper, legal within the terms of the

4 statute. The constitutional action was proper within

5 the constitutional authority of the Governor.

6

For that reason, and, again, this goes to the

7 likelihood of success requirement, but it also goes to

8 the 2-615 Motion. There's no way, given the facts as we

9 know them, given the facts that are already pled, that

10 Mr. Bailey can amend the Complaint in any way to cure

11 the situation. The statute says what it says. The

12 Complaint should be dismissed with prejudice on the

13 2-615 Motion, and the Motion for Temporary Restraining

14 Order, in any event, should be denied because there's

15 virtually no likelihood of success. There is no

16 likelihood of success. Given the burden undertaken by

17 the defendant in a 2-615 Motion, everything he says is

18 accepted as true and he simply doesn't state a claim,

19 and the TRO Motion fails for other reasons, too.

20

Mr. Bailey was obligated, in the TRO Motion, to

21 make a showing of irreparable harm and the showing had

22 to be supported by facts. Here's what the Capstone case

23 said, Your Honor, as quoted in our brief, quote, a TRO

24 is an extraordinary remedy and the party seeking it must

25 meet the high burden of demonstrating, through well-pled

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1 facts, that he is entitled to the relief sought.

2 Continuing quote, to be considered well-pleaded, a

3 party's factual allegations must be supported by

4 allegations of specific facts.

5

On the injury, not only injury, but the

6 irreparable injury, what do we know? Not much. We

7 don't know -- we don't know where Mr. Bailey wants to go

8 that he's not allowed to go. Counsel made a statement,

9 well, we haven't seen it yet. Well, respectfully,

10 plaintiff has an obligation to plead the facts. We

11 haven't seen it yet doesn't cut it. We know virtually

12 nothing about an injury to Mr. Bailey because all we

13 have in the pleading, and that's all we can have on a

14 TRO Motion, is his conclusion.

15

THE COURT: Are you seriously trying to argue

16 that this Executive Order has not caused serious injury?

17

MR. VERTICCHIO: I'm seriously trying to argue

18 that, with regard to Darren Bailey, who, as a result of

19 him being an elected public official, is specifically

20 exempt from the Executive Order.

21

THE COURT: He didn't sue as a public official.

22 He sued as a private citizen. For all I know, he's

23 running a non-essential business, which also, for all I

24 know, is now bankrupt because of this Executive Order.

25

MR. VERTICCHIO: That's the point, Your Honor.

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1 You said it. For all I know. We don't know. You don't

2 know. I don't know. No one looking at this record

3 knows. Why not? Because it's not in the Complaint.

4 It's not in the Motion. It's not in this record

5 anywhere. Maybe he was irreparably harmed. I don't

6 know. You don't know. It's not in the pleadings, and

7 the question on a Motion for Temporary Restraining Order

8 on the harm issue is, we cited you the cases, why does

9 this order need to issue today? What is your

10 irreparable harm now? And the flip side, why can't this

11 case just proceed at a pace that every other case?

12 Pursuant to the rules of civil procedure, the case will

13 go on. If not, what about it requires the order be

14 issued today that so irreparably harms the plaintiff?

15 And you said it. We don't know. That's a requirement

16 that it was his burden to carry. He didn't carry it.

17

THE COURT: What we do know is that every second

18 this Executive Order is in existence, the Illinois

19 Constitution, numerous sections of it are being violated

20 and the Bill of Rights is being shredded. That is

21 irreparable harm.

22

MR. VERTICCHIO: We're here, Your Honor, not on

23 political questions. We're here on --

24

THE COURT: That's got nothing to do with

25 politics.

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1

MR. VERTICCHIO: I mean political question in

2 the legal sense, Your Honor, not politics. We are here

3 on whether Mr. Bailey has carried his burden and he

4 hasn't and, even if he did somehow convince the court

5 that there was irreparable harm, the court then must

6 look at the balancing of hardships and, when you look at

7 the balancing of hardships, what damage to the public,

8 it's laid out in our brief, Your Honor.

9

The Executive Orders with the safeguards, the

10 situation hopefully is getting under control, you take

11 them all off and things are going to get worse. The

12 public is going to be damaged.

13

The Amicus brief, I looked at the declaration of

14 Dr. Michael Wahl, W-a-h-l. He lays out in great detail

15 the damage to public health care workers, hospital

16 workers if the regulations are deemed to be void, to use

17 the plaintiff's terminology. And so the balance of

18 harms isn't even close. On one side of the ledger, you

19 have what Dr. Wahl talks about and everything that's in

20 our brief. On the other side of the ledger, you have

21 the damage to Mr. Bailey. And as to that damage, we

22 don't know.

23

Finally, Your Honor, just a word about the

24 supplemental brief and the health care issue, the

25 Department of Public Health and the Public Health Act.

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1 The supplemental brief raises not only a legal theory

2 that is not in the temporary restraining order papers, a

3 legal theory that was raised at one o'clock this

4 morning, but, more importantly, I think, it raises facts

5 that are no where in the Complaint or, for that matter,

6 anywhere in this record. There's simply no evidence,

7 because I think there can't be, that Mr. Bailey is

8 subject to a quarantine, a quarantine.

9

So for that reason alone, the shifting of gears,

10 let's talk about the health act now. It doesn't work

11 because the pleading means something, the allegations

12 mean something. They are not so nimble, particularly

13 when you're asking a court to issue emergency injunctive

14 relief, the pleadings mean something. Beyond that, the

15 quarantine authority to the Department of Public Health

16 is, as the act itself says, it's in our response to the

17 supplement, Your Honor, supplements the Governor's

18 authority under the Emergency Management Act. It's in

19 Section 2. It doesn't limit it and, as you said,

20 there's simply no time. Even if we had facts that were

21 alleged that kind of at least put him within the scope

22 of the act, there's no time to deal with every person,

23 every case in the event of a COVID-19 pandemic. The way

24 to deal with it is the Emergency Management Act. That's

25 what the Governor did.

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1

And, finally, on this point, and it's also in

2 the supplemental response, Your Honor, the construction

3 Mr. Bailey wants to put upon the act trounces again upon

4 the Governor's constitutional authority. So this

5 supplemental argument raised early this morning, wrong

6 on the facts and wrong on the law.

7

Your Honor, I was talking with one of the

8 sheriff's deputies before the hearing downstairs and I

9 mentioned, we were just chatting, and I mentioned that

10 these are strange times. I was right. They're strange

11 but they're also sad. There's just a lot going on in

12 this world and this state that's sad as a result of

13 COVID-19. Is it sad that people have to be subject to

14 an Executive Order like the Governor issued? Yes. Is

15 it sad that people are getting the virus? Yes. Is it

16 sad that people are dying? Yes. But the action taken

17 by the Governor, consistent with the statutory

18 authority, consistent with the constitution, and at the

19 end of the day, Mr. Bailey didn't carry his burden on

20 the TRO.

21

The Governor respectfully requests, Your Honor,

22 that the Complaint be dismissed with prejudice under

23 2-615 and, in any event, the Motion for Temporary

24 Restraining Order be denied. Thank you.

25

THE COURT: Thank you for your excellent

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Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 65 of 72 Page ID #429

1 argument. All right. Petitioner, do you have anything

2 else to add other than your argument that this is too

3 much power in an individual, it's tyrannical, and the

4 last time this happened a bunch of guys got on a boat

5 and threw tea in the Boston Harbor?

6

MR. DeVORE: That's exactly what I'm saying,

7 Your Honor.

8

THE COURT: All right. This court has

9 considered all of the pleadings that have been filed,

10 and I read everything that's been filed, including the

11 Amicus brief.

12

The court is guided by, among other things, the

13 following: There is no pandemic exception to the

14 fundamental liberties the constitution safeguards.

15 Indeed, individual rights secured by the constitution do

16 not disappear during a public health crisis. That's In

17 Re: Abbott, A-b-b-o-t-t, Federal 3d, 2020 West Law

18 1685929. That's a Fifth Circuit appellate opinion.

19

These individual rights, including the

20 protections in the Bill of Rights made applicable to the

21 states through the Fourteenth Amendment, are always in

22 force and restrain government action. At the same time,

23 the constitution does not hobble government from taking

24 necessary temporary measures to meet a genuine

25 emergency. According to our United States Supreme

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1 Court, in every well-ordered society charged with the

2 duty of preserving, conserving the safety its members,

3 the rights of the individual in respect of his liberty

4 may, at times, under the pressure of great dangers, be

5 subjected to such restraint, to be enforced by

6 reasonable regulations, as the safety of the general

7 public may demand, and that is the Jacobson case which

8 was also cited by the Attorney General.

9

The settled rule from Jacobson, the Fifth

10 Circuit recently explained, allows the state to

11 restrict, for example, one's right to peaceably

12 assemble, to publicly worship, to travel, and even to

13 leave one's home. Courts owe substantial deference to

14 government actions, particularly when exercised by

15 states and localities under their police powers during a

16 bona fide emergency.

17

The Supreme Court also has instructed courts to

18 intervene if a statute purporting to have been enacted

19 to protect the public health or the public safety has no

20 real or substantial relation to those objects, or is,

21 beyond all question, a plain, palpable invasion of

22 rights secured by the fundamental law. That is also a

23 quote from Jacobson.

24

Courts reviewing a challenge to a measure

25 responding to the society-threatening epidemic of

65

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 67 of 72 Page ID #431

1 COVID-19 should be vigilant to protect against clear

2 invasions of constitutional rights while ensuring they

3 do not second-guess the wisdom or efficacy of the

4 measures enacted by the democratic branches of

5 government, on the advice of public health experts.

6

Fifth Amendment of the United States

7 Constitution states no person shall be deprived of life,

8 liberty or property without due process of law. Our

9 Illinois Constitution states in Section 2 no person

10 shall be deprived of life, liberty or property without

11 due process of law.

12

The issue before me now, in essence, is not

13 whether the legislature can authorize the Governor to

14 ignore the Illinois and United States Constitutions.

15 They did it in the Emergency Management Act. The issue

16 before me now is whether the Governor can ignore the

17 Illinois and United States Constitutions for more than

18 30 days. This court rules that the answer to that

19 question is a resounding no. Accordingly, the

20 petitioner's request for a TRO is granted. The Motion

21 to Dismiss under Section 2-615 is denied.

22

Now, Petitioner, you submitted a proposed order.

23 In that proposed order you state TRO extends for ten

24 days. That's the part about your argument I disagree.

25 You asked for this. You issued this. You did this with

66

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 68 of 72 Page ID #432

1 notice, not without notice. Therefore, the ten-day rule

2 doesn't apply. However, that said, this TRO that

3 extends for a lengthy period of time, in essence becomes

4 a preliminary injunction and this ain't no preliminary

5 injunction yet. Therefore, I'll let you go beyond ten

6 days but not beyond 30, otherwise, I'm entering a

7 preliminary injunction without procedural process rights

8 required for a preliminary injunction. So pick a date

9 while we're here with Madam Clerk for a hearing on a

10 preliminary injunction.

11

MR. VERTICCHIO: Can I address the court?

12

THE COURT: Yes.

13

MR. VERTICCHIO: Your Honor, given your ruling,

14 this dovetails into the preliminary injunction issue,

15 the Governor requests that the ruling be stayed.

16

THE COURT: I will absolutely deny that request.

17 This ruling takes effect right this second.

18

MR. VERTICCHIO: Can I raise the issue of bond,

19 Your Honor?

20

THE COURT: There is no requirement for bond.

21 Statute doesn't mandate it. There's no reason for one.

22 There's no money that's going to be required to be

23 refunded or returned. I don't see any reason for bond

24 whatsoever.

25

MR. VERTICCHIO: Well, the case law provides

67

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 69 of 72 Page ID #433

1 that the plaintiff is obligated to make a showing as to

2 why the court properly exercises its discretion in

3 issuing no bond.

4

THE COURT: Want to make that showing?

5

MR. DeVORE: What showing would the court

6 require for bond sufficient for my client to be able to

7 continue with his constitutional rights, Your Honor?

8

THE COURT: Well, I'm not sure either. I'm not

9 going to require bond. Anything else, AG?

10

MR. VERTICCHIO: No, Your Honor. In terms of

11 scheduling, can Tom and I just talk a little bit off the

12 record and let you know?

13

THE COURT: Absolutely. Yes.

14

MR. VERTICCHIO: Can I suggest maybe a status

15 hearing for a week from today?

16

THE COURT: Whatever -- however you want to

17 proceed is fine with me.

18

MR. VERTICCHIO: Why don't we confer with one

19 another, then we'll let you know within a matter of

20 minutes.

21

THE COURT: Would you rather do it that way?

22 You two can get, discuss the matter between yourselves

23 and you with the clerk can come up with a new date. Is

24 that agreeable?

25

MR. VERTICCHIO: That's agreeable.

68

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 70 of 72 Page ID #434

1

MR. DeVORE: Yes, sir.

2

MR. VERTICCHIO: Your Honor, am I to understand

3 that the order being entered, save for the ten-day

4 issue, is the one that was submitted?

5

THE COURT: It is. Have you got that? I've got

6 it, but I want you to cross out that ten-day deal.

7

MR. DeVORE: Yes, sir.

8

MR. VERTICCHIO: I would like to take the order

9 if the court is going to enter it today if that's

10 possible.

11

THE COURT: Yes. I think you should. Take out

12 that ten-day deal and put for the future date to be

13 determined by counsel after consultation with the

14 circuit clerk.

15

MR. DeVORE: Not to exceed 30 days?

16

THE COURT: Yes.

17

MR. DeVORE: Got it. Thank you, sir.

18

THE COURT: I will enter that right now after

19 you make that amendment.

20

MR. DeVORE: Yes, sir.

21

MR. VERTICCHIO: I'm sure we'll be able to work

22 a date out, but, if not, we'll get your guidance.

23

THE COURT: Yeah. If you can't, let me know.

24

MR. DeVORE: Yes, sir. May I approach, Judge?

25

MR. VERTICCHIO: Can I see it, Tom? Your Honor,

69

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 71 of 72 Page ID #435

1 I mentioned the other day on the phone the plaintiff's

2 Motion was captioned as both TRO and preliminary

3 injunction. Is it fair to assume, counsel, that we'll

4 be proceeding on that Motion?

5

MR. DeVORE: On the prelim? Yes, sir.

6

MR. VERTICCHIO: In other words, there's not

7 going to be another filing.

8

MR. DeVORE: Correct.

9

THE COURT: Anything further on behalf of either

10 party?

11

MR. DeVORE: No, sir. Thank you, Judge.

12

THE COURT: All right. Ladies and gentlemen, I

13 would direct you to exit the courtroom and/or building

14 as directed by the sheriff. We're adjourned.

15

16

17

18

19

20

21

22

23

24

25

70

Case 3:20-cv-00474-GCS Document 24-1 Filed 06/05/20 Page 72 of 72 Page ID #436

1

CERTIFIED SHORTHAND REPORTER'S CERTIFICATION

2

I, LORI SIMS, Certified Shorthand Reporter for

3 the Circuit Court of Clay County, Fourth Judicial

4 Circuit of Illinois, do hereby certify that I reported

5 in machine shorthand the proceedings had on the hearing

6 in the above entitled cause; that I thereafter caused

7 the foregoing to be transcribed into typewriting, which

8 I hereby certify to be a true and accurate transcript of

9 the proceedings had before the Honorable MICHAEL D.

10 McHANEY, Judge of said Court.

11

Dated this th day of April, 2020.

12

13

_____________________________

Lori Sims

14

Official Court Reporter

CSR #084-003424

15

16

17

18

19

20

21

22

23

24

25

71

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 1 of 17 Page ID #437
Exhibit B

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 2 of 17 Page ID #438
1

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 3 of 17 Page ID #439
2

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 4 of 17 Page ID #440
3

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 5 of 17 Page ID #441
4

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 6 of 17 Page ID #442
5

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 7 of 17 Page ID #443
6

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 8 of 17 Page ID #444
7

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 9 of 17 Page ID #445
8

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 10 of 17 Page ID #446
9

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 11 of 17 Page ID #447
10

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 12 of 17 Page ID #448
11

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 13 of 17 Page ID #449
12

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 14 of 17 Page ID #450
13

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 15 of 17 Page ID #451
14

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 16 of 17 Page ID #452
15

Case 3:20-cv-00474-GCS Document 24-2 Filed 06/05/20 Page 17 of 17 Page ID #453
16

 </s> Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 1 of 12 Page ID #454

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISON

DARREN BAILEY,

)

)

Plaintiff,

)

)

vs.

)

)

GOVERNOR JAY ROBERT PRITZKER, )

in his official capacity,

)

)

Defendant.

)

Case No. 3:20-cv-00474-GCS

PLAINTIFF’S REPLY TO DEFENDANT’S MEMORANDUM IN OPPOSITION TO REMAND

DARREN BAILEY, by and through his undersigned attorneys, states as follows:

INTRODUCTION

Curiously, the Governor of the State of Illinois persists in his quest to wrest

jurisdiction over Plaintiff’s causes of action from an Illinois state court. He does so even

though this action involves only the construction of Illinois statutes and whether

Defendant took certain actions without statutory authority to do so: This case concerns

nothing more, nothing less. Plaintiff has not requested an adjudication of his federal

constitutional rights or other rights and interests that may exist under federal law:

whether Defendant’s actions violate federally protected interests is neither here nor there

in this context.

Plaintiff’s complaint, not extra-judicial statements or judicial pronouncements,

governs the question of subject matter jurisdiction, and the complaint and first amended

complaint at issue in this case do not so much as hint that Plaintiff is seeking vindication

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 2 of 12 Page ID #455
of his federally guaranteed rights and interests. Instead, Plaintiff alleges only that Defendant lacked authority to issue certain of his proclamations, declarations and executive orders.
Defendant’s reliance on 28 U.S.C. §1343(a)(3) is entirely misplaced, and it certainly does not provide an independent basis for jurisdiction. First, nothing in Section 1343(a)(3) or cases construing it suggest that Defendant can simply rewrite Plaintiff’s complaint and insert federal claims where none exist. Moreover, Section 1343(a)(3) is, indeed, a relic of an era in which federal question jurisdiction was conditioned on an amount in controversy and parties seeking vindication of their federal rights desperately needed a distinct basis for federal jurisdiction in order to seek redress. The elimination of the monetary threshold in Section 1331 removed that barrier to federal jurisdiction.
Defendant’s ultra vires executive orders and proclamations may well be fodder for future actions under the United States Constitution, the Constitution of the State of Illinois, and federal statutes. However, a complaint seeking those remedies is nowhere in the record, and this matter should be remanded to the Circuit Court, Clay County, Illinois for further proceedings and for disposition.
DISCUSSION I. NEITHER PLAINTIFF’S COMPLAINT NOR HIS FIRST AMENDED
COMPLAINT ESTABLISH A BASIS FOR FEDERAL JURISDICTION. The Defendant clearly wants Plaintiff’s complaint to be something it is not: an assertion that Defendant’s actions are proscribed by either the United States Constitution or a federal statute. However, there is no invocation of federally protected rights in either
2

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 3 of 12 Page ID #456
Plaintiff’s complaint or first amended complaint. The absence of a federal issue in Plaintiff’s pleadings preclude exercise of jurisdiction here.
The United States Supreme Court has unequivocally directed that the existence of federal question jurisdiction hinges on the allegations in the plaintiff’s complaint.
Under our longstanding interpretation of the current statutory scheme, the question whether a claim "arises under" federal law must be determined by reference to the "well-pleaded complaint." Franchise Tax Board, 463 U.S., at 9-10, 103 S. Ct., at 2846-2847. A defense that raises a federal question is inadequate to confer federal jurisdiction. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 126 (1908). Since a defendant may remove a case only if the claim could have been brought in federal court, 28 U.S.C. § 1441(b), moreover, the question for removal jurisdiction must also be determined by reference to the "well-pleaded complaint." Merrell Dow Pharm. v. Thompson, 478 U.S. 804, 808, 106 S. Ct. 3229 (1986). At the time, federal law did not recognize a private right of action under the Federal Food, Drug and Cosmetic Act. Thus, the complaint at issue did not contain a federal cause of action and federal jurisdiction was lacking. See also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425 (1987) (“The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint . . . The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”) (internal citations omitted) The Complaint and First Amended Complaint in this case make it clear removal was entirely improper. In this action, Plaintiff does not so much as hint that Defendant’s Executive Orders, Declarations and Proclamations infringe on Plaintiff’s rights under the Constitution or federal law. They may well so infringe and be actionable under federal
3

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 4 of 12 Page ID #457
law. However, that is not what Plaintiff seeks in this action. Plaintiff seeks a determination that Defendant’s actions are invalid, not because they infringe on fundamental rights guaranteed under federal law, but instead, because they exceed Defendant’s authority under Illinois law.
What Defendant wants is the ability to amend Plaintiff’s pleadings and insert claims Plaintiff has not yet asserted. However, as the Supreme Court admonished, Plaintiff is the master of his claim, and cannot be compelled to assert federal claims in order to legitimize a bad faith invocation of federal jurisdiction.
Much as he did with his asserted authority under Illinois law, Defendant goes to great lengths to contrive federal claims and causes of action in Plaintiff’s Complaint and First Amended Complaint. Does Plaintiff claim that Defendant’s orders, proclamations and declarations have the effect of restricting his ability to travel, ability to associate with others, and practice his faith? He absolutely does make those allegations. However, the crux of Plaintiff’s causes of action is Defendant’s lack of statutory authority.
The Court should reject any suggestion that Plaintiff, via artful pleading, has shrouded what are actually federal claims for the purpose of defeating federal jurisdiction. Plaintiff’s allegations are straightforward: (a) Defendant issued certain proclamations, executive orders, and declarations; (b) the proclamations, executive orders, and declarations had the effect of restricting Plaintiff’s ability to travel, associate with others, and practice his faith; and (c) Defendant had no statutory authority to do so. There is nothing manipulative about seeking relief limited to those theories.
4

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 5 of 12 Page ID #458
Defendant makes much of the state court judge’s statements on the record, as well as Plaintiff’s extra-judicial statements and quotations, none of which can form the basis for jurisdiction here. Jurisprudence concerning federal jurisdiction makes it clear the “well-pleaded complaint,” and not other quotations, pronouncements or extraneous documents, governs the existence of federal jurisdiction. Thus, Plaintiff’s statements to the press are of no moment and cannot impact assessment of his motion to remand. Likewise, on-the-record statements of the state court judge, quoted by Defendant in his opposition to remand, are not part of the calculus, and even if they could be considered, it is clear he reached his conclusion on the basis of Defendant’s lack of statutory authority: “The issue before me now is whether the Governor can ignore the Illinois and United States Constitutions for more than 30 days. This court rules that the answer to that question is a resounding no.” Governor’s Memorandum in Opposition to Remand [Doc. 24] at 2. Clearly, the state court based its decision on Defendant’s authority under Illinois law, not on the constitutionality of the Defendant’s actions.
Federal jurisdiction is unquestionably lacking here. Plaintiff’s pleadings do not raise any claims under the United States Constitution or federal statutes. Defendant has done nothing more than rewrite the Complaint and First Amended Complaint to suit his needs. That he cannot do, and this Court should remand this case to the Circuit Court, Clay County, Illinois for further proceedings and disposition.
5

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 6 of 12 Page ID #459
II. SECTION 1343(a)(3) DOES NOT ESTABLISH AN INDEPENDENT BASIS FOR FEDERAL JURISDICTION, AND DOES NOT EMBRACE THE ALLEGATIONS IN PLAINTIFF’S PLEADINGS.
Defendant’s exegesis concerning 28 U.S.C. §1343(a)(3) is interesting, but entirely irrelevant in this case. The plain language of the statute, when applied to Plaintiff’s causes of action, does not provide a jurisdictional hook. Furthermore, Section 1343 is a vestige of a time when jurisdiction under Section 1331 was dependent on an amount in controversy. Amendment of Section 1331 to remove the monetary component rendered Section 1343(a)(3) superfluous. Furthermore, there is no authority whatsoever that the Court should look beyond a “well-pleaded complaint” in order to assess the existence of jurisdiction under Section 1343(a)(3).
Section 1343 provides that [t]he district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . to redress the deprivation, under color of State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . . 28 U.S.C. §1343(a)(3). Plainly, the statute is inapplicable in the case at bar. Yes, Plaintiff is a “person” within the contemplation of the statute, but the applicability of Section 1343(a)(3) stops there. Plaintiff has not sought, in this action, redress for the deprivation of a right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights. Plaintiff has sought nothing more than (a) a declaration that Defendant exceeded his authority under applicable Illinois statutes and
6

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 7 of 12 Page ID #460
(b) because of lack of a statutory basis, Plaintiff should be excused from compliance with Defendant’s proclamations, executive orders, and declarations. Those allegations do not form the basis for federal jurisdiction.
Defendant seems to posit that federal jurisdiction is triggered whenever state action infringes on a fundamental right and a plaintiff seeks relief from the state action, no matter the basis for the plaintiff’s claim. Nothing in Section 1343(a)(3) or the authority construing it gives the statute such breadth. Would an action challenging a mayor’s authority under a city’s ordinances to close a street, if it impaired a person’s ability to travel or attend a religious service, be removable if the state actor did not like his or her chances in a state court? Of course not. The Court should summarily reject such a construction of the statute.
Section 1343(a)(3) is a product of a different time, and its necessity has waned. Myles v. U.S., 416 F.3d 551 (7th Cir. 2005). The Seventh Circuit noted, albeit in dicta, that “Section 1343(a)(3) covers only civil rights claims against state actors and has had no legal effect since 1976, when Congress amended §1331 to eliminate any amount-in-controversy requirement. (The point of §1343(a)(3) had been to allow civil-rights suits without regard to the amount in controversy . . . ).” Id. at 554. See also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S. Ct. 1905 (1979) (“In reaching this conclusion, the Court of Appeals first noted that § 1983 'is not a jurisdictional statute; it only fashions a remedy . . . Nor could jurisdiction be founded on 28 U.S.C. § 1331, the general federal-question jurisdictional statute, since the amount in controversy did not exceed $10,000.”).
7

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 8 of 12 Page ID #461
Defendant makes it clear he is proceeding solely under Section 1343(a)(3), and disavows any reliance on “arising under” jurisdiction as contemplated in Section 1331. However, the clear implication of Chapman and Myles is that “arising under” jurisdiction as contemplated in Section 1331 subsumes Section 1343(a)(3). Thus, pursuant to the analysis in Chapman and Myles, if jurisdiction is non-existent under Section 1331 it is likewise lacking under Section 1343(a)(3). Since Defendant essentially concedes this Court lacks jurisdiction under Section 1331, by implication it also lacks jurisdiction under Section 1343(a)(3).
The Defendant erroneously believes he discovered a well-spring of authority in Spaulding v. Mingo County Board of Educ., 897 F. Supp. 284 (S.D. W. Va. 1995). The plaintiffs in that case asserted nothing but claims under various West Virginia statutes and West Virginia common law. The District Court concluded that the plaintiffs “artfully drafted” their complaint to avoid asserting federal claims, and, since claims under various West Virginia statutes apparently ran parallel to similar federal statutes and the United States Constitution. Ultimately, however, the Spaulding court remanded the case to the West Virginia state court, and did so because of the importance of the questions of state law presented.
Unfortunately, the Spaulding court’s assessment of federal jurisdiction under Section 1343(a)(3) was never tested on appeal. The court made no effort to explain why a plaintiff who elects to assert only state law causes of action must be deemed to have alleged federal claims as well, and it essentially ignored long-standing authority that a plaintiff is the master of his complaint.
8

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 9 of 12 Page ID #462
The only plausible explanation for the Spaulding court’s decision is that it found “embedded” federal claims that conferred jurisdiction. However, the court did not have the benefit of the Supreme Court’s decision in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 312 (2005). Where federal law does not create the cause of action, "federal jurisdiction over a state law claim will [only] lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Id. at 258. As Plaintiff explained in his Memorandum in Support of Emergency Motion to Remand, no federal claims are necessarily raised in this case, there is no actual dispute in this action concerning contravention of Plaintiff’s federal rights (he seeks only a determination of Defendant’s authority under Illinois law), the infringement of fundamental rights is not essential to a determination of Defendant’s authority under state law, and construction of the Illinois Emergency Management Agency Act and the Illinois Department of Public Health Act, i.e., the core of Plaintiff’s causes of action, is not “capable of resolution in federal court without disrupting the federal-state balance.” [Doc. 8 at 5-7].
Defendant claims that “courts across the county have continued to recognize Section 1343(a)(3) as good law, and a valid basis for federal jurisdiction.” Governor’s Memorandum in Opposition to Remand [Doc. 24 at 20]. Defendant then provides citations to a smattering of cases that purport to exercise jurisdiction under Section 1343(a)(3). However, Defendant conveniently omits that in each of the cases in his string citation the plaintiffs specifically stated claims under 42 U.S.C. §1983 and the courts found they had
9

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 10 of 12 Page ID #463
jurisdiction under 28 U.S.C. §§1331 and 1343(a)(3). See Jhagroo v. Brown, 2020 WL 419450, *1 (S.D.N.Y. 2020); Willis v. Tejeda, 2019 WL 498952, *1 (N.D. Ill. 2019); Correction Officers’ Benevolent Ass'n, Inc. v. City of New York, 415 F. Supp. 3d 464, 466–67 (S.D.N.Y. 2019).
Other authorities Defendant relies upon are completely inapplicable in this situation. For example, in Rodriguez v. Comas, 888 F.2d 899 (1st Cir. 1989), the plaintiff specifically stated a cause of action under 42 U.S.C. §1983 and the Court was not called upon to find non-existent causes of action. Equally unhelpful to Defendant’s position is Campbell v. Gadsden County Dist. School Bd., 534 F.2d 650 (5th Cir. 1976). In considering the question of jurisdiction, the Fifth Circuit noted that “[f]ederal question jurisdiction was also asserted under 28 U.S.C. § 1331, but the record does not affirmatively establish the existence of an amount in controversy in excess of $10,000.” Id. at 653, n. 7. As noted above, the obstacle to federal jurisdiction under Section 1331 has been removed.
In sum, the Court should reject the Defendant’s assertions that Section 1343(a)(3) provides an independent basis for jurisdiction in this case. Plaintiff has alleged nothing but claims that Defendant exceeded his authority under Illinois law. There may be a day when Plaintiff (and others) seek to vindicate their rights under federal law. However, that is not this case.
CONCLUSION The Defendant has done nothing more than attempt to recast Plaintiff’s pleadings as setting forth claims that are simply not there. In this action, Plaintiff seeks nothing more than a declaration concerning Defendant’s alleged authority and an injunction
10

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 11 of 12 Page ID #464
relieving Plaintiff from compliance with certain of Defendant’s executive orders, declarations and proclamations. None of Plaintiff’s pleadings request an adjudication concerning his right under federal law.
At the end of the day, Defendant is forum shopping. He sought relief in the Illinois Supreme Court and was rejected there. He filed a motion to transfer Plaintiff’s Clay County, Illinois case to Sangamon County, and the Circuit Court denied that motion. Facing a hearing on Plaintiff’s motion for summary judgment, Defendant then concocted a removal to this Court.
For the reasons set forth herein and in Plaintiff’s Emergency Motion to Remand and Memorandum in Support of Emergency Motion to Remand, the Court should (A) remand this case immediately to the Circuit Court, Clay County, Illinois and (B) award Plaintiff his attorney fees, costs and expenses associated with this matter
Respectfully submitted, SILVER LAKE GROUP, LTD. /s/ Steven M. Wallace By :_________________________________ Steven M. Wallace #6198917 6 Ginger Creek Village Drive Glen Carbon, IL 62034 Phone: (618) 692-5275 Fax: (888) 519-6101 Email: steve@silverlakelaw.com Counsel to Darren Bailey
11

Case 3:20-cv-00474-GCS Document 25 Filed 06/10/20 Page 12 of 12 Page ID #465 CERTIFICATE OF SERVICE
The undersigned hereby certifies on the 10th day of June, 2020, that a true and correct copy of the above and foregoing pleading was served by electronic filing in the CM/ECF system of the United States District Court for the Southern District of Illinois.
/s/ Steven M. Wallace ____________________________________
12

 </s> Case 3:20-cv-00474-GCS Document 29 Filed 06/15/20 Page 1 of 4 Page ID #472

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

DARREN BAILEY,

Plaintiff, v.
GOVERNOR JB PRITZKER, in his official capacity,

No. 3:20-cv-00474-GCS Magistrate Judge Gilbert C. Sison

Defendant.

GOVERNOR’S SUR-REPLY TO BAILEY’S REPLY

Bailey’s reply, like his many filings since removal (ECF 7, 8, 9, 16, 18, 25, 27), still does

not confront the primary basis for removal here—the plain text of 28 U.S.C. § 1343(a)(3), which

grants federal courts “original jurisdiction of any civil action authorized by law . . . [t]o redress

the deprivation, under color of any State law… of any right, privilege or immunity secured by

the Constitution of the United States.” 28 U.S.C. § 1343(a)(3) (emphasis added). Instead, Bailey

continues to maintain, without citing authority, that the Court should evaluate its jurisdiction

solely under the standard set by § 1331. (ECF 25 (“Reply”) at 2, 3, 7–8, 9–10.) But § 1331 is not

at issue here.

And rather than unequivocally disclaim and remove his allegations pertaining to rights

secured by the U.S. Constitution (ECF 24 at 5 n.2), Bailey doubles down by stating: “Does

Plaintiff claim [the Governor has] restrict[ed] his ability to travel, ability to associate with others,

and practice his faith? He absolutely does . . . .” (Reply at 4.) This admission, coupled with the

plain language of § 1343(a)(3), should end the inquiry.

Bailey’s reply points to dicta in Myles v. U.S., 416 F.3d 551 (7th Cir. 2005), to argue that

§ 1343(a)(3) was impliedly repealed through the removal of the amount-in-controversy

1

Case 3:20-cv-00474-GCS Document 29 Filed 06/15/20 Page 2 of 4 Page ID #473
requirement from § 1331. (Reply at 2, 7–8, 9–10.) That argument ignores binding Supreme Court precedent rejecting repeals by implication. (ECF 24 at 20.)1 Bailey also ignores that after Myles, the Seventh Circuit has accepted the ongoing vitality of § 1343(a)(3). See, e.g., Canen v. Chapman, 847 F.3d 407, 409 n.1 (7th Cir. 2017).
Bailey then insists that “the only plausible explanation” for the outcome in Spaulding v. Mingo Bd. Of Educ., 897 F. Supp. 284 (S.D.W. Va. 1995), is that the court “found ‘embedded’ federal claims that conferred jurisdiction,” an approach Bailey asserts was invalidated in Grable v. Darue, 545 U.S. 308 (2005). (Reply at 9.) Bailey is wrong for two reasons. First, the “explanation” for Spaulding is in the Spaulding opinion itself, not in a strawman created by Bailey: federal “original jurisdiction [exists] pursuant to 28 U.S.C. 1343(a)(3)” where a party has “alleged a deprivation under color of state laws, statutes, and regulations of rights secured under the Constitution of the United States,” whether or not that party brings claims that arise under federal law. 897 F. Supp. at 289.
Second, Bailey misdescribes the ruling in Grable. (Reply at 9.) Grable focused on the meaning of a specific phrase in 28 U.S.C. § 1331: “arising under the Constitution, laws, or treaties of the United States,” 545 U.S. at 312, and then addressed when a court may accept jurisdiction of state-law claims under § 1331. Grable does not mention § 1343(a)(3). Thus, Grable does not affect Spaulding’s analysis or the scope of jurisdiction under § 1343(a)(3). As discussed in the Governor’s opposition to remand, § 1343(a)(3) is not limited to claims “arising
1 Bailey’s implied repeal argument fails for another reason: § 1343(a)(3) was enacted before § 1331. (ECF 24 at 8.) When Congress enacted § 1343(a)(3) it could not have known that “federal question” jurisdiction would ever be authorized with or without an amount in controversy requirement. The creation of federal question jurisdiction with an amount-incontroversy requirement, and the subsequent elimination of that requirement, thus did not affect the scope of § 1343(a)(3), which is plainly not “subsumed” into § 1331. (Reply at 8.) Section 1343(a)(3) is an independent jurisdictional grant that stands on its own, unrelated to § 1331.
2

Case 3:20-cv-00474-GCS Document 29 Filed 06/15/20 Page 3 of 4 Page ID #474

under” federal law. Because Congress has shown that it can limit jurisdiction using “arising

under” language when it wishes to, Congress’ decision to extend § 1343(a)(3) to “any civil

action authorized by law” must be respected. (ECF 24 at 7–10.)2

Finally, Bailey tries to evade the decision in Rodriguez v. Comas, 888 F.2d 899 (1st Cir.

1989), by claiming that there “the plaintiff specifically stated a cause of action under [§] 1983.”

(Reply at 10.) Bailey misreads the case. While one plaintiff, Jose Rodriguez, asserted a § 1983

claim, the portion of the ruling cited by the Governor concerns state-law claims for “emotional

distress” brought by his wife, Irma Rodriguez. Rodriguez, 888 F.2d at 903. The Court ruled that

the trial court properly exercised jurisdiction over Irma’s state-law emotional distress claims

because § 1343(a)(3) is “a broadly worded jurisdictional grant,” and “is open-ended—applying

to any person and over any civil action.” Id. at 906 (emphasis added). Thus, Rodriguez shows

that § 1343(a)(3) means exactly what it says—it is an independent basis for federal jurisdiction

that is apart from, and can apply to a broader range of claims than, § 1331.

As he has freely admitted, and despite his attempts to evade federal jurisdiction through

artful pleading, Bailey seeks redress for alleged constitutional deprivations under color of state

law. Based on the plain text of § 1343(a)(3) the Court has jurisdiction of this case. Bailey’s

motion to remand should be denied.

Dated: June 15, 2020

Respectfully Submitted,

KWAME RAOUL Attorney General of Illinois

/s/ Thomas J. Verticchio

2 Bailey’s reliance on Merrell Dow v. Thompson, 478 U.S. 804 (1986), and Caterpillar v. Williams, 482 U.S. 386 (1987), is similarly misplaced. (Reply at 3.) Both cases concern § 1331 “arising under” jurisdiction; neither decision mentions § 1343(a)(3).
3

Case 3:20-cv-00474-GCS Document 29 Filed 06/15/20 Page 4 of 4 Page ID #475

R. Douglas Rees #6201825 Christopher G. Wells #6304265 Darren Kinkead #6304847 Isaac Freilich Jones #6323915 Office of the Illinois Attorney General 100 West Randolph Street Chicago, Illinois 60601

Thomas J. Verticchio #6190501 Assistant Chief Deputy Attorney General Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 (312) 814-3000 tverticchio@atg.state.il.us

Laura K. Bautista #6289023 Office of the Illinois Attorney General 500 South Second Street Springfield, Illinois 62701

CERTIFICATE OF SERVICE

The undersigned certifies that on June 15, 2020, he caused a true and correct copy of the foregoing to be served by electronic filing in the CM/ECF system on the following:

Steven M. Wallace SILVER LAKE GROUP, LTD. – GLEN CARBON 6 Ginger Creek Village Drive Glen Carbon, IL 62034 Tel.: 618-692-5275 Fax: (888) 519-6101 steve@silverlakelaw.com

By:

/s/ Thomas J. Verticchio

4

 </s> Paul Palazzolo
Case Information for Case: 2020-MR-000589

Case Number: 2020-MR-000589 Judge: GRISCHOW Status: Events

Case Type: Decaratory Judgment Filing Date: 07/23/2020 Report:

Date

Events

07/23/2020 Complaint for Declaratory Judgment and Injunctive Relief Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Summons - Issued Defendant: GOVERNOR JAY ROBERT PRITZKER Declaratory Judgment Fee: $327.00 Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE

07/31/2020 Notice Of Rule 384 Motion Filed by Assistant Attorney General: OFFICE OF ATTORNEY GENERAL Exhibit A: Supreme Court Filings Filed by Assistant Attorney General: OFFICE OF ATTORNEY GENERAL

08/04/2020 Motion to Transfer and Consolidate Cases Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Proposed Order Aug 12, 2020 Printed for Judge's Review Judge: GRISCHOW

08/07/2020 Copy of Supreme Court Order 8/5/20 Filed

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

08/10/2020 Change of Venue Filed by Defendant: GOVERNOR JAY ROBERT PRITZKER Transfer from Bond County Change of Venue Filed by Defendant: GOVERNOR JAY ROBERT PRITZKER Transferred from Bond County

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

08/13/2020 Change of Venue Filed Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Dates start 4/23/2020 Status: Cause Stricken Report: Terminated Aug 13, 2020 Certificate of record Filed Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Change of Venue Filed Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Table of Contents Change of Venue Filed Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Table of Contents Affidavit of Special Process Server Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Affidavit of Special Process Server Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Affidavit of Special Process Server Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Entry Regarding Hearing By Zoom Judge: GRISCHOW This matter comes on for hearing by Zoom. Mr. Verticchio, Mr. DeVore and Mr. Shapiro all appear remotely. The Edgar County, Bond County, Clinton County and Richland County cases have all been consolidated with this case. The status of the case was discussed and the following deadlines were set: Defendants have until August 31, 2020 to file responsive pleadings. Plaintiffs have 21 days, up to and including September 21, 2020 in which to file any response. Defendants have 14 days, up to and including October 5, 2020 in which to file any Reply. Courtesy copies of all pleadings are to be emailed to the Court. If the pleadings are quite voluminous, hard copies should be mailed to the court. Oral arguments are scheduled for October 14, 2020 at 1:00 p.m. If additional time is needed for any pleadings, any motion requesting additional time must be filed before the deadlines have expired in order to be considered by the court. Copy of docket entry to all parties of record. Judge: GRISCHOW Reporter: N Clerk: PL Status Hearing on Oct 14, 2020 at 1:00 PM in Courtroom 5D

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

Proof of Service Sent Defendant's Attorney: NADINE WICHERN Plaintiff's Attorney: THOMAS DEVORE

08/14/2020 Complaint Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Certification of Record Filed Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Copy of Supreme Court Order 8/11/20 Filed

08/17/2020 Entry of Appearance Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Motion to Vacate Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN For Lack of Jurisdiction Exhibits To Motion To Vacate Order For Lack Of Jurisdiction Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Change of Venue (From One County to another County) Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Change of Venue (From One County to another County) Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

08/18/2020 Entry Regarding Covid-19 Cases Pursuant to the Order of the Illinois Supreme Court the following matters were consolidated with Sangamon County Case No: 2020MR-589 - Bond County Case No: 20-MR-32; Edgar County Case No: 20-MR-45; Richland County Case No: 20-MR-48; Clay County Case No: 20-CH-6; and Clinton County Case No. 20-MR-79. Pursuant to the Illinois Supreme Court Order Clay County Case No. 20-CH-113 was consolidated with Sangamon County Case No: 20-MR-557. The parties agree that all the COVID-19 cases should be consolidated together under Sangamon County Case No: 2020-MR-589 and entitled In Re: COVID-19 Litigation. That is the order of this court. See separate written Order. Judge: GRISCHOW Reporter: NF Clerk: PL Entry Regarding Covid-19 Litigation Matter comes on for hearing on Plaintiffs' Motion for a Temporary Restraining Order. Defendants filed a Motion To Dismiss the TRO. Arguments heard. Motion Denied. The matter proceeded on the Motion for TRO. Arguments heard. Plaintiffs have shown a clearly ascertainable right in need of protection; Plaintiffs have shown a likelihood of success on the merits; Plaintiffs have shown irreparable harm if an injunction does not issue; and Plaintiffs have shown that it has no adequate remedy at law or in equity. The balancing of the equities lean in favor of granting the injunction. The Motion for Temporary Restraining Order is granted at 2:57 p.m. and shall remain in full force and effect until a hearing on the merits. See Separate Written Order. Judge: GRISCHOW Reporter: NF Clerk: PL Proof of Service Sent Defendant's Attorney: NADINE WICHERN Plaintiff's Attorney: THOMAS DEVORE Entry Regarding Motion to Vacate The Clay County July 2, 2020 Order The Governor filed a Motion to Vacate the Clay County July 2, 2020 Order for lack of jurisdiction. Mr. DeVore has 21 days, up to and including September 8, 2020, in which to file a response to the Motion. The Attorney General has 14 days, up to and including September 22, 2020, to file a reply. Courtesy copies of all motions are to be emailed to the court. Oral arguments are set for October 14, 2020 at 1:00 p.m. Personal appearance is required by all counsel. Copy of docket entry to the attorneys of record.

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

Judge: GRISCHOW Reporter: N Clerk: PL Proof of Service Sent Defendant's Attorney: NADINE WICHERN Plaintiff's Attorney: THOMAS DEVORE Order Temporary Restraining Signed Judge: GRISCHOW

08/19/2020 Motion for Substitution of Judge Filed by Plaintiff and Attorney: RILEY CRAIG & THOMAS DEVORE Entry Regarding Motion for Substitution of Judge Mr. DeVore on behalf of his client Darren Bailey has filed a Motion for Substitution of Judge. The defendants have 7 days in which to file a response to the motion, up to and including August, 26, 2020. Judge: GRISCHOW Reporter: N Clerk: PL Complaint for Declaratory Judgment and Injunctive Relief Filed by Plaintiff: RONNIE QUINN Certificate of Record Filed by Plaintiff: RONNIE QUINN Certificate of Record Filed by Plaintiff: RONNIE QUINN

08/20/2020 Order of Consolidation Signed Judge: GRISCHOW

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

08/21/2020 Entry Regarding Phone Confernce Conference call held at the request of Judge GRISCHOW. Attorneys DEVORE, VERTICCHIO, HELFRICH and REES all appear by phone. In light of Defendants Notice of Appeal filed pursuant to Supreme Court Rule 307(d) in Case No: 20-MR-557 Prtizker v. Board of Education of Huntsonville, the hearing that was scheduled for August 26, 2020 on the Motions for Summary Judgment filed in Clay County Case 20-CH-13 Mainer v. IDPH is cancelled. In light of Mr. DEVORE'S Motion for Substitution of Judge filed in Bailey v. Pritzker (20-CH-6) the Attorney General has until Friday, August 28, 2020 to file a response. The status conference set for September 2, 2020 at 1:30 by Zoom remains scheduled as does the hearing set for October 14, 2020 pending a ruling from the Appellate Court. Copy of docket entry to the attorneys of record. Judge: GRISCHOW Reporter: N Clerk: BB Proof of Service Sent Memorandum Opposition To The Mainer Plaintiffs' Motion To Certify Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Representative Action, and Motion to Strike Exhibits To Opposition To The Mainer Plaintiffs' Motion To Certify Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Representative Action, and Motion to Strike

08/27/2020 Notice of Filing of Parkview Christian Academy COVID Plan and Facebook Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Post of Jed Davis

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

08/28/2020 Motion for Extension of Time Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Exhibit To Motion For Extension Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Notice of Hearing Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN

08/31/2020 Motion to Dismiss Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Memorandum in Support of his Motion to Dismiss Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN

09/01/2020 Motion for Clarification Filed by Defendant's Attorney: RICHARD HUSZAGH

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

09/02/2020 Entry Regarding Status Judge: GRISCHOW Matter comes on for a status conference by Zoom. All parties appear through counsel, Mr. Verticchio, Ms. Helfrich and Mr. DeVore. Regarding Sangamon County case 20-MR-557, by agreement of the parties Defendant has September 30,2020 to respond to the complaint. As it pertains to the Mainer case (Clay Count 20-CH-13) Mr. DeVore moved to withdraw his Motion to Certify A Representative Action and Plaintiff's Motion for Summary Judgment. There was no objection by the State. Motions granted. The Motion To Certify A Representative Action and Plaintiff's Motion for Summary Judgment are withdrawn. As to the Governor's Motion To Dismiss filed on August 31, 2020 in the Craig case and the related cases (20-MR-45; 20-MR-589; 20-MR-32; 20-MR-48; 20-MR-79 AND 20-MR 173), Mr. DeVore has until Monday, September 21, 2020 to file a response to the Governor's Motion. The Attorney General has 14 days to file a Reply in Support of the Motion To Dismiss, up to and including, Monday, October 5, 2020. These motions are set for oral arguments on Wednesday, October 14, 2020 at 1:00. All parties are to appear in person. Regarding the Board of Education of Hutsonville Case (20-MR-557), based on the ruling from the Appellate Court, Mr. DeVore represented he was not asking for a hearing date on the preliminary injunction. As stated in the Court's Order of August 18, 2020, the TRO will remain in full force and effect until a decision has been made on the merits of the case. In the Bailey case (Clay County 2020-CH-6), Mr. DeVore does not object to the AG's motion for extension of time. The AG is given 7 days to file a response after a decision has been made by the Supreme Court pertaining to the Motion for Clarification filed on August 28, 2020. Mr. DeVore has until September 21, 2020 to file a reply in support of his Motion for Leave to File Amended Pleading to add Count V. This motion along with the Governor's opposition to the motion are set for hearing on Wednesday, October 14, 2020 at 1:00 for oral arguments. In person attendance is required. Regarding the fully briefed motion to dismiss as it pertains to Count I. These pleadings are continued generally. Copy of docket entry to all attorneys of record. Judge: GRISCHOW Reporter: N Clerk: PL Status Hearing on Oct 14, 2020 at 1:00 AM in Courtroom 5D

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

09/14/2020 Copy of Supreme Court Order 9/9/20 Signed by Judge Taft Grosboll Filed Copy of Supreme Court Order 9/9/20 Signed by Judge Taft Grosboll Filed Copy of Motion to File Instanter filed in Supreme Court Filed Copy of Response to Motion for Clarification filed in Supreme Court Filed Opposition to Motion for substitution of Judge Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & THOMAS VERTICCH Exhibits 1,2, and 3 Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & THOMAS VERTICCH Copy of Supreme Court Order 9/9/20 Filed

09/15/2020 Entry Regarding Ruling Judge: GRISCHOW The Court is in receipt of the recent rulings from the Supreme Court clarifying the Court's 384 orders. This matter is scheduled for a Zoom conference on Thursday, September 17, 202 at 11:00 a.m. The Court will send a Zoom invite with remote hearing instructions that must be followed. Judge: GRISCHOW Reporter: N Clerk: PL Proof of Service Sent Defendant's Attorney: NADINE WICHERN Plaintiff's Attorney: THOMAS DEVORE

09/16/2020 Zoom Hearing Sep 17, 2020 Motion to Revise and Enforce Briefing Schedule Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

09/17/2020 Entry Regarding Zoom Status Conference Judge: GRISCHOW Matter comes on for a hearing by Zoom on the Governor's Motion to Revise and Enforce Briefing Schedule. All parties appear remotely. The current case management order currently in effect was discussed. The attorneys are to prepare a proposed order and send it to the court for approval. The matter remains set for an in person hearing on October 14, 2020 at 1:00 p.m. Copy of docket entry to the attorneys of record. Judge: GRISCHOW Reporter: N Clerk: PL Status Hearing on Oct 14, 2020 at 1:00 PM in Courtroom 5D Proof of Service Sent Defendant's Attorney: NADINE WICHERN Plaintiff's Attorney: THOMAS DEVORE

09/18/2020 Correspondence Regarding Order from Supreme Court 9/15/20 Filed

09/21/2020 Entry of Appearance Filed Plaintiff and Attorney: DARREN BAILEY & STEVEN WALLACE Response to Motion Filed by Plaintiff and Attorney: DARREN BAILEY & STEVEN WALLACE Response to Motion Filed by Plaintiff and Attorney: DARREN BAILEY & STEVEN WALLACE

09/22/2020 Amended Breifing Schedule Order Signed Judge: GRISCHOW Proof of Service Sent Defendant's Attorney: NADINE WICHERN Plaintiff's Attorney: THOMAS DEVORE

09/23/2020 Order On Substitution Of Judge Signed Judge: GRISCHOW

09/25/2020 Motion for Judgment on the Pleadings Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Memorandum in Support of its Motion for Judgment on the Pleadings Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Entry of Appearance Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & JEFFREY VANDAM

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Date

Events

09/28/2020 Entry Regarding State's Motion Judge: GRISCHOW The Court is in receipt of the of the State's Motion for Judgement on the Pleadings in Mainer v. IDPH (20-CH-13) and Pritzker v. Board of Education of Hutsonville (20-MR-557). The following briefing schedule is in effect: Mr. DeVore has 30 days to file a response to the motion, up to and including Friday, October 30, 2020. The State has 10 days in which to file a reply, up to and including, Tuesday, November 10, 2020. The matter is set for oral arguments on Monday, November 16, 2020 at 1:30 for oral arguments. In person attendance is required. Copy of docket entry to the attorneys of record. Judge: GRISCHOW Reporter: N Clerk: PL Status Hearing on Nov 16, 2020 at 1:30 PM in Courtroom 5D Proof of Service Sent Defendant's Attorney: NADINE WICHERN Plaintiff's Attorney: THOMAS DEVORE

10/05/2020 Response In Further Support Of Motion To Vacate Filed by Defendant and Attorney: GOVERNOR JAY ROBERT PRITZKER & NADINE WICHERN Entry of Appearance Filed by Plaintiff's Attorney: THOMAS DEVORE

10/06/2020 Extended Media Coverage - Approval for Trial/Proceeding Signed Judge: GRISCHOW Copy of Amended Certificate of Service filed in Supreme Court Filed by Plaintiff's Attorney: THOMAS DEVORE Copy of Motion for Reconsideration filed in Supreme Court Filed by Plaintiff's Attorney: THOMAS DEVORE

10/08/2020 Motion- for Stay of Hearing on Defendant's Motion Filed Plaintiff and Attorney: DARREN BAILEY & THOMAS DEVORE

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Financial Transactions

Payee

Date

IL STATE TREASURER IL STATE TREASURER SANGAMON COUNTY TREASURER SANGAMON COUNTY TREASURER SANGAMON COUNTY TREASURER SANGAMON COUNTY TREASURER SANGAMON COUNTY TREASURER

08/18/2020 08/18/2020 08/18/2020 08/18/2020 08/18/2020 08/18/2020 08/18/2020

Check Number 231046 231045 230963 230959 230958 230957 230956

Amount

Type

Payor

$9.00 PMT $2.00 PMT $250.00 ACH $21.00 ACH $5.00 ACH $20.00 ACH $20.00 ACH

RILEY CRAIG RILEY CRAIG RILEY CRAIG RILEY CRAIG RILEY CRAIG RILEY CRAIG RILEY CRAIG

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Court Schedule

Date 10/14/2020

Time 1:00 AM
1:00 PM

Room 5D

Case

Attorney Name Judge

Participant

RILEY CRAIG

DEVORE

GRISCHO W

KEITH AYRE DEVORE

GRISCHO W

CHRIS SCHMULBAC DEVORE H

GRISCHO W

DANIEL ENGLISH

DEVORE

GRISCHO W

RONNIE QUINN

DEVORE

GRISCHO W

RONNIE QUINN

DEVORE

GRISCHO W

DARREN BAILEY

DEVORE

GRISCHO W

GOVERNOR JAY ROBERT WICHERN PRITZKER

GRISCHO W

RILEY CRAIG

DEVORE

GRISCHO W

KEITH AYRE DEVORE

GRISCHO W

Hearing Status Hearing

Agency

Officer Status Balance Due
Closed 0.00 Closed 0.00
Closed 0.00
Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00
Closed 0.00
Closed 0.00 Closed 0.00

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

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Case Information for Case: 2020-MR-000589 - Continued

Date 11/16/2020

Time 1:30 PM

Room 5D

Case

Attorney Name Judge

Participant

CHRIS SCHMULBAC DEVORE H

GRISCHO W

GOVERNOR JAY ROBERT WICHERN PRITZKER

GRISCHO W

RILEY CRAIG

DEVORE

GRISCHO W

KEITH AYRE DEVORE

GRISCHO W

CHRIS SCHMULBAC DEVORE H

GRISCHO W

DANIEL ENGLISH

DEVORE

GRISCHO W

RONNIE QUINN

DEVORE

GRISCHO W

RONNIE QUINN

DEVORE

GRISCHO W

DARREN BAILEY

DEVORE

GRISCHO W

GOVERNOR JAY ROBERT WICHERN PRITZKER

GRISCHO W

RILEY CRAIG

DEVORE

GRISCHO W

Hearing Status Hearing

Agency

Officer Status Balance Due
Closed 0.00
Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

Page 15 of 17

Case Information for Case: 2020-MR-000589 - Continued

Date

Time

Room

Case

Attorney Name Judge

Participant

KEITH AYRE DEVORE

GRISCHO W

CHRIS SCHMULBAC DEVORE H

GRISCHO W

DANIEL ENGLISH

DEVORE

GRISCHO W

RONNIE QUINN

DEVORE

GRISCHO W

RONNIE QUINN

DEVORE

GRISCHO W

DARREN BAILEY

DEVORE

GRISCHO W

GOVERNOR JAY ROBERT WICHERN PRITZKER

GRISCHO W

Hearing

Agency

Officer Status Balance Due
Closed 0.00

Closed 0.00

Closed 0.00 Closed 0.00 Closed 0.00 Closed 0.00

Closed 0.00

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

Page 16 of 17

Case Information for Case: 2020-MR-000589 - Continued

Case Participants

Participant Type Plaintiff Plaintiff Plaintiff PETITIONER PETITIONER PETITIONER Plaintiff Defendant

Participant Name RILEY CRAIG KEITH AYRE CHRIS SCHMULBACH DANIEL ENGLISH RONNIE QUINN RONNIE QUINN DARREN BAILEY GOVERNOR JAY ROBERT PRITZKER

Attorney Name THOMAS DEVORE THOMAS DEVORE THOMAS DEVORE
THOMAS DEVORE JEFFREY VANDAM

This information is intended to be used as a resource to determine the general status of historical and in-process court cases. This information is not the official record of the court. As such, it should only be used to gain a general understanding of a case's history and disposition. Accordingly, the Clerk of the Circuit Court of Sangamon County, its officers, and employees are not responsible or liable for any loss, consequence, or damage
resulting directly or indirectly from use of this information.

Document created on 10/12/2020 at 02:31 PM

Page 17 of 17

 </s> 2020CH6 BAILEY, DARREN

Date

Entry

Judge

Entered Under: PRITZKER, JAY ROBERT

09/11/2020 ORDER FROM SUPREME COURT ENTERED AND FILED. Order from Supreme Court entered and filed.

UNASSIGNED

08/11/2020 SUPREME COURT OF ILLINOIS STAY ORDER RECEIVED VIA EMAIL FILED Supreme Court of Illinois Order Received Via Email, filed.

UNASSIGNED

08/07/2020 Order to Show Cause, entered. Rule/show cause set for 08/14/2020 at 1:00 in courtroom A.

UNASSIGNED

08/06/2020 Reply in further support of the Governor's motion to dismiss count I filed by VERTICCHIO, THOMAS. Response filed by VERTICCHIO, THOMAS.

UNASSIGNED

08/05/2020 Verified Petition for Adjudication of Indirect Civil Contempt filed by DEVORE, THOMAS.

UNASSIGNED

07/22/2020 Plaintiff's Motion for Leave to Amend (Add Count V) filed by DEVORE, THOMAS. Plaintiff's Response to Defendant's Motion to Dismiss filed by DEVORE, THOMAS.

UNASSIGNED

07/16/2020 TCC with attorney's by agreement plaintiff shall file response to defendant's motion MDM to dismiss and motion for leave to add additional count on or before July 22, 2020; attorney's to contact office of Chief Judge to set any pending motion for hearing thereafter; docket entry to attorneys. Motion hearing July 17 vacated by agreement.

07/09/2020 Governor's Notice Of Filing filed by VERTICCHIO, THOMAS. Governor's Notice Of Filing - Exs. to Notice of Filing of Remand.pdf filed by VERTICCHIO, THOMAS.

UNASSIGNED

07/08/2020 Notice of Hearing filed by VERTICCHIO, THOMAS. Summary judgment set for 07/17/2020 at 1:00 in courtroom A. Motion hearing set for 07/17/2020 at 1:00 in courtroom A. Notice of Hearing filed by VERTICCHIO, THOMAS.

UNASSIGNED

07/07/2020 Governor's Notice of Filing filed by VERTICCHIO, THOMAS.

UNASSIGNED

Governor's Motion To Dismiss Count I Pursuan to 2-619.1 filed by VERTICCHIO,

THOMAS.

Governor's Motion To Dismiss Count I Pursuan to 2-619.1 - Ex. A - Transcript of

July 2, 2020 Proceedings.pdf filed by VERTICCHIO,

THOMAS.

07/06/2020 ORDER FROM US DISTRICT COURT RECEIVED AND FILED

UNASSIGNED

07/02/2020 Plaintiff's with Attorney, defendant by Attorney; defendant argument that court lacks jurisdiction to proceed based upon failure of federal courts mandate argued and denied; defendants argument that court cannot proceed without allowing defendant time to file written response to plaintiff's motion to summary judgment pursuant to local rule argued and denied; court hears

MDM

argument of counsel and takes judicial notice of all prior similar arguments and pleadings including exhibits in related cases; Count 1 of plaintiff's motion of summary judgment denied, counts 2 and 3 granted; Count 4 dismissed with prejudice without objection; defendant's request to proceed orally for summary judgment on all counts denied. Court reconsiders prior ruling and this ruling not restricted to plaintiff but shall apply to all commonly situated citizens; written order entered.

07/02/2020 Letter from United States District Court, filed. Copy of Order Remanding Action Pursuant to 28 U.S.1447, filed.

UNASSIGNED

06/30/2020 Motion to Bar Responsive Pleading filed by DEVORE, THOMAS.

UNASSIGNED

Notice of Hearing for Plaintiff's Motion for Summary Judgment and Motion to Bar

Responsive Pleading filed by DEVORE, THOMAS.

Summary judgment set for 07/02/2020 at 1:00 in courtroom A.

05/21/2020 Notice of filing of notice of removal filed by VERTICCHIO, THOMAS.

UNASSIGNED

05/19/2020 Legal Brief in Support of Darren Bailey's Motion For Summary Judgment filed by UNASSIGNED DEVORE, THOMAS.

05/18/2020 Plaintiff's Motion for Summary Judgment filed by DEVORE, THOMAS. Notice of UNASSIGNED Hearing for Motion for Summary Judgment filed by DEVORE, THOMAS.

05/15/2020 Objection to Motion to Transfer Pursuant to Forum Non Conveniens filed by DEVORE, THOMAS.

UNASSIGNED

05/15/2020 Plaintiff with Attorney; Defendant by Attorney; Plaintiff's motion to amend

MDM

complaint granted without objection, defendant's motion to transfer argued and

denied; plaintiff shall file motion for summary judgment on or before May 18,

2020; Defendant's response due on or before May 21, 2020; this case set for hearing

on Plaintiff's motion for summary judgment May 22, 2020 at 1:00 p.m.

05/15/2020 Summary judgment set for 05/22/2020 at 1:00 in courtroom A.

UNASSIGNED

05/14/2020 Motion hearing set for 05/15/2020 at 1:00 in courtroom A.

UNASSIGNED

05/14/2020 Based upon the issues involved, due to the intense public interest, based upon the MDM need for transparency and because the public has the absolute right to access to our court system, on the court's motion, all further proceedings in this case shall occur in open court, including the hearing scheduled for May 15, 2020 at 1:00 pm. Docket entry to be sent to Attorneys of record.

05/14/2020 Entry of Appearance filed by WALLACE, STEVEN.

UNASSIGNED

05/13/2020 Motion For Leave to File Amended Pleading filed by DEVORE, THOMAS. Motion For Leave to File Amended Pleading - First Amended Complaint.pdf filed by DEVORE, THOMAS. Notice of Hearing filed by DEVORE, THOMAS. Motion For Transfer Pursuant To Forum Non Conveniens filed by VERTICCHIO, THOMAS. Motion For Transfer Pursuant To Forum Non Conveniens - Ex. A - 2020.05.12

UNASSIGNED

ORDER - CHANGE OF VENUE ALLOWED.pdf filed by VERTICCHIO, THOMAS. Notice Of Motion For Transfer Pursuant To Forum Non Conveniens filed by VERTICCHIO, THOMAS.

05/11/2020 Per telephone conference with attys, this case is set for status on 5/15/2020 at 1pm UNASSIGNED Status hearing set for 05/15/2020 at 1:00 in courtroom A.

05/06/2020 Affidavit of non-service for Pritzker filed by DEVORE, THOMAS

UNASSIGNED

05/05/2020 APPEARANCE FILED IN THE SUPREME COURT 4/30/20 RECEIVED AND UNASSIGNED FILED NOTICE OF FILING APPEARANCE ATTACHMENT PLACED IN FILE

05/04/2020 STATE OF ILLINOIS, FIFTH DISTRICT APPELLATE COURT MANDATE FILED ORDER FROM THE APPELLATE COURT RECEIVED FILED.

UNASSIGNED

04/30/2020 Order from Appellate Court filed Order from Appellate Court filed Order from Appellate Court filed Illinois Health and Hospital Amicus Brief filed by THOMPSON, ELIZABETH.

UNASSIGNED

04/29/2020 Affidavit of Service for Jay Robert Pritzker filed by DEVORE, THOMAS.

UNASSIGNED

04/28/2020 Entry of Appearance by Heyl, Royster, Voelker & Allen as co-counsel

UNASSIGNED

on behalf of Illinois Health and Hospital Association filed by MONFORT, RENEE.

04/27/2020 Plaintiff's Supplemental Legal Brief filed by DEVORE, THOMAS.

UNASSIGNED

04/27/2020 This court was contacted by email, by the Defendant's Attorney, on April 25, 2020 MDM regarding a proposed motion to continue. This court instructed Defendant's Attorney that it would entertain such motion Monday morning at 9am, in the presence of Plaintiff's Attorney and a Court Reporter. The court further instructed Defendant's Attorney to forward any emails sent to the court, and from the court, to the Plaintiff's Attorney. Later that same day, Defendant's Attorney inquired if the court would be available to argue a motion to continue in the afternoon. The court indicated that it would accomodate that request, if agreed to by the Plaintiff. Accordingly, at 3pm on 4/25/2020, by teleconference and on the record, by a Court Reporter provided by the Defendant, the parties argued Defendant's Motion to continue, which this court denied. In the interest of transparency and to ensure the record is complete, attached is an email chain regarding the motion to continue teleconference on 04/27/2020. Docket entry to attorneys of record.

04/27/2020 Report of proceedings filed. Notice of Appearance filed by BAUTISTA, LAURA. Motion for Extended Media Coverage filed Record Sheet. Notice of Hearing filed by BAUTISTA, LAURA. Motion to Dismiss filed by BAUTISTA, LAURA. Motion for Leave to File Brief filed by THOMPSON, ELIZABETH. Notice of Motion filed by THOMPSON, ELIZABETH.

UNASSIGNED

Appearance filed by THOMPSON, ELIZABETH. Response filed by BAUTISTA, LAURA.

04/27/2020 Illinois Health and Hospital Association granted leave to file amicus breif over MDM objection of Petitioner; Petitioner with counsel; Respondent by counsel; Court hears argument of counsel; Defendant's 615 motion denied, Petitoner's request for TRO granted; Temporary Restraining Order with Notice entered.

04/27/2020 Notice of Appeal filed by WICHERN, NADINE.

UNASSIGNED

04/24/2020 Notice of Hearing filed by DEVORE, THOMAS. Motion hearing set for 04/27/2020 at 1:30 in courtroom A.

UNASSIGNED

04/23/2020 Verified Complaint For Declaratory Judgment and Injunctive Relief filed by

UNASSIGNED

DEVORE, THOMAS.

Verified Motion For Temporary Restraining Order and Preliminary Injunction with

Notice filed by DEVORE, THOMAS.

Legal Brief in Support of Darren Bailey's Verified Complaint For Declaratory

Judgment and Injunctive Relief filed by DEVORE, THOMAS. Original Summons -

Issued, Copy filed by DEVORE, THOMAS.

 </s> Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 1 of 16 Page ID #476

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS

DARREN BAILEY, Plaintiff,
vs. GOVERNOR JAY ROBERT PRITZKER, in his official capacity,
Defendant.

)

)

)

)

)

Case No. 3:20-cv-474-GCS

)

)

)

)

)

ORDER REMANDING ACTION PURSUANT TO 28 U.S.C. § 1447

SISON, Magistrate Judge:

Plaintiff Darren Bailey filed suit in the Circuit Court for the Fourth Judicial Circuit,

Clay County, Illinois, in case number 2020-CH-6 on April 23, 2020. On May 13, 2020, he

filed a first amended verified complaint for declaratory judgment and injunctive relief.

In his amended complaint, Bailey, a representative in the Illinois General Assembly suing

solely in his personal capacity as a citizen of Illinois, alleges that, by issuing continuing

disaster proclamations and executive orders more commonly known as “stay-home”

orders, Governor J.B. Pritzker exceeded his authority to exercise certain emergency

powers granted to him under the Illinois Emergency Management Agency Act, 20 ILCS

§ 3305, et seq. Governor Pritzker timely removed the action to this Court on May 21, 2020,

invoking federal jurisdiction under 28 U.S.C. § 1343(a)(3). Bailey immediately filed an

emergency motion to remand (Doc. 7). The Court set an expedited briefing schedule, and

the matter is now fully briefed and ripe for ruling.

Page 1 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 2 of 16 Page ID #477
ANALYSIS “Defendants may remove a ‘civil action’ from state court to the federal district court located in the place where such action is pending, as long as the federal district court had ‘original jurisdiction’ over the case.” Yassan v. J.P. Morgan Chase & Co., 708 F.3d 963, 968 (7th Cir. 2013)(quoting 28 U.S.C. § 1441(a)). Governor Pritzker, as the party seeking removal, bears the burden of establishing that federal jurisdiction exists. See Doe v. Allied–Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). There is a strong presumption in favor of remand, and district courts must narrowly interpret removal statutes. Id. Doubts over jurisdiction should be resolved in favor of remand. Id. The Court is guided by the principle that federal courts are courts of limited jurisdiction, a function of the restrictions placed upon the federal judiciary both by the United States Constitution and by federal law. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). It is a fundamental principle of federalism that federal courts may hear only certain claims, such as those raising “federal questions” or “arising under” the laws of the United States. U.S. CONST. art. III § 2, cl. 1. While “[t]his constitutional grant of judicial authority is broad[,] . . . the Constitution gives Congress the power to further refine the actual scope of federal jurisdiction.” International Union of Operating Engineers, Local 150, AFL-CIO v. Ward, 563 F.3d 276, 280 (7th Cir. 2009)(citing references and internal citations omitted). “Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution,” but it may impose statutory limitations. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 491 (1983). A defendant may not remove a case to federal court unless, at the time of removal,
Page 2 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 3 of 16 Page ID #478
a plaintiff’s complaint establishes that there is federal jurisdiction. See Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 10 (1983). Thus, the Court begins by considering the claims alleged in Bailey’s first amended complaint. Statements made or claims advanced prior to the filing of the first amended complaint, the operative complaint at the time of removal, bear no impact on whether federal jurisdiction existed at the time of removal.
In his first amended complaint, Bailey brings two types of claims: claims for declaratory relief and a claim for injunctive relief. He alleges that Governor Pritzker first declared the COVID-19 pandemic a disaster on March 9, 2020. The declaration, made pursuant to the Illinois Emergency Management Agency Act (“IEMAA”), labeled all 102 counties in Illinois disaster areas, and, pursuant to emergency powers granted to him under Illinois law, Governor Pritzker issued executive orders aimed at decreasing the spread of and reducing the loss of life caused by COVID-19, a severe, acute respiratory disease, caused by the novel SARS-CoV-2 virus.
According to Bailey’s amended complaint, Governor Pritzker overstepped his authority by failing to adhere to a 30-day time limit on his authority to exercise emergency powers under the IEMAA. At the time the amended complaint was filed, Bailey alleged that Governor Pritzker twice extended his initial disaster proclamation, first on April 1, 2020, and again on April 30, 2020, finding both times that the pandemic was a continuing disaster. By mid-May, Bailey claims that the Governor had been relying on his emergency powers for 81 days and that, in addition to exceeding the IEMAA temporal limit, the exercise of powers usurped the delegation of authority by the Illinois
Page 3 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 4 of 16 Page ID #479
Department of Public Health to local health departments to order disease-related restrictions like isolation and quarantines pursuant to rules promulgated under the Illinois Department of Public Health Act, 20 ILCS § 2305, et seq. (“IDPHA”).
Bailey seeks a declaratory judgment finding that the April 30, 2020 proclamation is void because, among other arguments, the IEMAA only grants Governor Pritzker the power to avert a public health emergency, not to manage it once it has occurred (Count I). He also seeks a declaratory judgment stating that Governor Pritzker had no authority to exercise his emergency powers under the IEMAA after April 8, 2020, the date when the 30 day-period from the initial March 9, 2020 disaster proclamation ended (Count II). Bailey further requests that a declaratory judgment be entered holding that the Illinois General Assembly, through the IDPHA, gave supreme authority over the restriction of citizens’ movements and business activity to the Department of Public Health when a public health risk exists, that is, that the IDPHA alone governs when and how isolation and quarantine rules may be issued and enforced in Illinois (Count III). Finally, Bailey seeks injunctive relief preventing the Governor from issuing disaster proclamations that do not comply with the IEMAA’s 30-day time limit and enjoining him from restricting movement, activities, or business operations under the IEMAA (Count IV).
As an initial note, this case does not take place in a vacuum. While the analysis must be dispassionate, the Court recognizes the enormity of the issues raised by Bailey. The Court is focused solely on the question of federal jurisdiction without consideration of the merits of Bailey’s claims, but the undersigned is cognizant that these are uncharted, turbulent times. The stakes are high on both sides of this litigation. There is no easy
Page 4 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 5 of 16 Page ID #480
balance between protecting the public from a silent, fast-spreading, novel virus and preventing great social upheaval and the heavy strain of economic and financial uncertainty. This District’s normal operations have been disrupted due to similar, albeit separate, balancing concerns. Nevertheless, the Court must set all such concerns aside in weighing the question before it now. This is a routine function of the federal judiciary and one which the Court addresses daily, i.e., whether a complaint pleads a basis for federal jurisdiction. That issue alone is before the Court. In this instance, in the interest of federalism, the Court finds that the amended complaint does not give rise to federal jurisdiction and that this action is best committed to the courts of the State of Illinois for further consideration.
Bailey argues that his complaint clearly raises no federal issues and vehemently attacks the Governor’s decision to remove this action as frivolous and taken in bad faith. While it may appear at first blush that no claim is raised under the United States Constitution or federal law, the question of whether federal jurisdiction exists presents a close call. The amended complaint does not clearly state a statutory or constitutional basis for each claim, which required the Court to expend significant time to properly categorize each claim.
To a certain degree, the amended complaint could be read as raising constitutional claims. In his reply, Bailey argues that his allegations are straightforward: “(a) Defendant issued certain proclamations, executive orders, and declarations; (b) the proclamations, executive orders, and declarations had the effect of restricting Plaintiff’s ability to travel, associate with others, and practice his faith; and (c) Defendant had no statutory authority to
Page 5 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 6 of 16 Page ID #481
do so.” (Doc. 25, p. 4) (emphasis added). The highlighted language demonstrates to the Court that even Bailey acknowledges that at the core of his claims is an allegation that his constitutional rights were violated by state action allegedly taken in violation of state law. However, the amended complaint does not single out Bailey’s rights under the Illinois Constitution. Instead, it just refers to various rights understood to be secured by constitutional grants, both state and federal.
To determine whether a complaint raises a federal issue, courts rely on the “wellpleaded complaint” rule. That is, a plaintiff is the master of his complaint and, as such, “may include (or omit) claims or parties in order to determine the forum.” Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir. 2000)(citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). See also Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983, 986 (7th Cir. 2000)(noting that a plaintiff may “avoid federal jurisdiction by pleading only state law claims[.]”). As the Supreme Court has stated, “the paramount policies embodied in the well-pleaded complaint rule . . . [are] that the plaintiff is the master of the complaint . . . and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.” Caterpillar, 482 U.S. at 398-399. To that end, it is not uncommon for a party to plead claims alleging violations solely of rights guaranteed by a state’s constitution in order to avoid federal jurisdiction. But that clarity in pleading is missing here, as the amended complaint references constitutional rights vaguely and in passing.
The references to constitutional rights include rights that are recognized by both the U.S. Constitution and the Illinois Constitution, and the amended complaint could, but
Page 6 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 7 of 16 Page ID #482
does not, specify that it seeks redress solely for violations of Bailey’s rights under the state constitution. The argument that this is a case that clearly raises no federal claims is too confidently stated. There is a federal right to travel secured by the U.S. Constitution, but there also is a federal right to travel secured by the Illinois Constitution. See, e.g., ILCS CONST., Art. 1, § 2 (establishing due process protection and stating that “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”). See also City of Chicago v. Morales, 687 N.E.2d 53, 64-65 (Ill. 1997)(noting that general right to travel was protected by the due process clause). The First Amendment protects the right to free exercise of religion and the right to assemble, but the Illinois Constitution protects those rights, as well. See ILCS CONST., Art. 1, § 3. Even Bailey acknowledges that his allegations are fairly framed as claiming the Governor’s alleged overreach restricted his ability to travel, associate with others, and practice his faith. It is a fair reading by Governor Pritzker to conclude that Bailey’s claims are couched in constitutional terms and may be constitutional claims.
That said, the Court recognizes that Illinois has an independent declaratory judgment statute that creates a cause of action for challenging statutory or executive overreach. The Illinois declaratory judgment statute states:
The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute municipal, ordinance, or other governmental regulation. 735 ILCS § 5/2-701(a). To sustain a declaratory judgment action in Illinois, courts require a showing of “(1) a plaintiff with a legal tangible interest; (2) a defendant having an
Page 7 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 8 of 16 Page ID #483
opposing interest; and (3) an actual controversy between the parties concerning such interests.” Hess v. Miller, 133 N.E.3d 1235, 1242 (Ill. Ct. App. 2019)(quoting Beahringer v. Page, 789 N.E.2d 1216, 1223 (Ill. 2003)). In Illinois, declaratory judgment actions are “purely statutory” and are “to be liberally construed.” Beahringer, 789 N.E.2d at 373. They also may be brought against a governor seeking declarations that executive orders are unconstitutional or contrary to state law. See, e.g., Caro v. Whitaker, 898 N.E.2d 1110, 1113 (noting that without the governor as a defendant, the plaintiff did not allege a declaratory judgment action challenging his authority to act).
Bailey does not cite the declaratory judgment statute in his amended complaint, and the briefs by the parties do not address it. Nevertheless, the Court finds that the most straightforward reading of Bailey’s claims is that they are brought pursuant to this Illinois statute and not as constitutional claims. Despite the omission of a statutory reference, Bailey alleges the elements of a claim under the statute, namely that he and Governor Pritzker have opposing interests related to an actual controversy and that a court has the power to make a declaration to resolve, at least in part, the dispute. While rights secured by the U.S. Constitution are impacted by the orders and proclamations at issue, they are not central to any claim for a declaratory statement from the courts on the bounds of Illinois statutory and constitutional grants of authority to a governor under the Illinois declaratory judgment statute. The question remains, then, whether any statutory grant of jurisdiction covers claims like those raised by Bailey for declaratory relief based on a violation of state law by a state actor.
The Constitution’s grant of jurisdiction, as narrowed by Congress, is codified in
Page 8 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 9 of 16 Page ID #484

various statutes including 28 U.S.C. § 1343(a)(3), which Governor Pritzker invokes as the

basis for federal jurisdiction here. Bailey, on the other hand, argues that the principles of

28 U.S.C. § 1331 apply.1 Despite strong arguments to the contrary, the Governor is

adamant that the plain language of Section 1343(a)(3) provides the jurisdictional hook for

this action. By its plain language, Section 1343(a)(3) states:

(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
. . . (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom, or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States [.]

28 U.S.C. § 1343(a)(3). By comparison, pursuant to Section 1331 “district courts shall have

original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of

the United States.”

Prior to 1980, Section 1331 had an amount in controversy requirement, but

Congress amended the statute and removed the requirement. See Pub. L. No. 96-486, 94

Stat. 2369 (1980). In dicta, the Seventh Circuit explained the relationship between claims

under Section 1343(a)(3) and claims under Section 1331:

Section 1343(a)(3) covers only civil rights claims against state actors and has had no legal effect since 1975, when Congress amended § 1331 to eliminate any amount-in-controversy requirement. (The point of § 1343(a)(3) had been to allow civil-rights suits without regard to the amount in controversy. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L.Ed.2d 508 (1979)).

1

The United States of America filed a statement of interest pursuant to 28 U.S.C. § 517. (Doc. 15).

The Court carefully reviewed the brief in support of Bailey’s motion. As the arguments raised by the United

States do not differ drastically in substance from those raised by Bailey, the position of the United States

will not be addressed separately in this Order.

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Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 10 of 16 Page ID #485
Myles v. United States, 416 F.3d 551, 554 (7th Cir. 2005). While the statement is dicta, it is a clear statement of the law that is relied upon by courts throughout this Circuit as demonstrating that Section 1343 is widely understood to provide federal jurisdiction for civil rights claims, as opposed to creating a jurisdictional grant over claims that are not covered by Section 1331. It also comports with similar decisions about jurisdiction pursuant to Section 1343 in civil rights cases. See, e.g., Hickey v. Duffy, 827 F.2d 234, 241 (7th Cir. 1987)(stating that “Section 1983 established a remedy for state officials’ violations of law as well as violations of the Constitution, but it did not create an opportunity to litigate these claims in federal court. The jurisdictional provisions of the Civil Rights Act of 1871, now found in § 1343, were limited to claims ‘secured by the Constitution.’”); Roden v. American Federation of State, County, and Mun. Employees, Council 24, No. 08-2578, 2009 WL 40001 at *2 (7th Cir. Jan. 8, 2009)(citing to Myles and stating that Section 1343 “grants jurisdiction to district courts to hear certain civil-rights claims” and provides “overlapping” jurisdiction with § 1331 for “civil-rights claims”); Savage v. Premier Bank of Jacksonville, No. 19-CV-3201, 2019 WL 4418528 at *2 (C.D. Ill. Sept. 16, 2019)(citing to Myles and stating that “Section 1343(a)(3) ‘covers only civil rights claims against state actors’” and further noting the statute has had no effect since Section 1331 was amended to eliminate the amount in controversy requirement.).
The Governor asserts that the opinions of two federal appellate courts and one federal district court support the argument that Section 1343(a)(3) permits a district court to exercise original jurisdiction over causes of actions that assert non-federal claims, so
Page 10 of 16

Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 11 of 16 Page ID #486
long as those claims seek to redress the deprivation of rights secured by the Constitution. (Doc. 24, p. 8). This is in contrast to cases removed under Section 1331, which covers only claims that arise under federal law. The Governor’s cited authorities, however, do not support such an argument. For example, the Governor references the phrase “any civil action authorized by law” in Section 1343(a)(3). The Governor then relies on Rodriguez v. Comas, 888 F.2d 899 (1st Cir. 1989), where the First Circuit stated that jurisdiction under Section 1343(a) was “open-ended – applying to any person and over any civil action.” Id. at 906. However, the phrase is taken out of context, as the First Circuit merely was comparing the jurisdictional scope of Section 1343(a) with that of Section 1346(b), the latter of which conferred jurisdiction on the district court over certain cases where the United States was named as a defendant. Id.
The Governor also relies on Campbell v. Gadsden v. County Dist. Sch. Bd., 534 F.2d 650 (5th Cir. 1976), but such reliance is misplaced. The Fifth Circuit noted that the phrase “civil action authorized by law” in Section 1343(a)(3) means that “jurisdiction is unavailable in the absence of an appropriate cause of action.” Id. at 655. The Fifth Circuit went on to state that “failure to state a claim under sections 1981, 1983 and 1985 or other appropriate legal authority has the effect of depriving federal courts of subject matter jurisdiction under 1343.” Id. The Fifth Circuit thus makes clear that the phrase “civil action authorized by law” is not as “open ended” so as to provide for a jurisdictional grant over claims not covered under Section 1331, as the Governor believes it to be. Instead, Section 1343 requires the existence of an appropriate cause of action authorized by federal law, which, consistent with the authorities cited above, are limited to civil
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Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 12 of 16 Page ID #487
rights claims. See, e.g., Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 618 (1979)(noting that where the underlying statute is not a civil rights statute, Section 1983 needs to be invoked in order to support jurisdiction under Section 1343).
Furthermore, the Governor relies on Spaulding v. Mingo County Bd. of Educ., 897 F. Supp. 284 (S.D. W.Va. 1995) for the proposition that jurisdiction is proper under Section 1343(a)(3) “even where an asserted right or privilege may be concurrently protected by the U.S. Constitution and a state constitutional or statutory provision[.]” (Doc. 24, p. 12). In Spaulding, the parents originally brought suit in West Virginia state court alleging violations of the West Virginia Constitution and West Virginia Human Rights Act, as well as other state law claims. The parents alleged that their daughter was discriminated against based on her disability by various educational agencies and their representatives. The matter was removed to federal court and the district court addressed its jurisdiction under Section 1343(a)(3). The court held that it did have jurisdiction, but it did so by relying on the “artful pleading” doctrine which provides that “a plaintiff cannot defeat removal by omitting an essential federal question from the complaint.” Id. at 288. The court reasoned that the parents essentially pleaded but purposely omitted federal claims under the Individuals with Disabilities Education Act (“IDEA”) and the Rehabilitation Act in order to defeat removal. Id. Thus, the court concluded that the two federal statutes provided the jurisdictional hook it needed to exercise jurisdiction under Section 1343(a)(3). This permitted the district court to exercise jurisdiction over the other state law claims pursuant to its supplementary jurisdiction. See 28 U.S.C. § 1367.
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Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 13 of 16 Page ID #488
More importantly, despite finding that it had jurisdiction, the court ultimately opted to exercise its discretion and remand the case back to state court. See Spaulding, 897 F. Supp. at 289. The court noted that remand was appropriate, even if there were putative federal claims, “where the crux of the action rests in the construction and application of state law[.]” Id. The court relied on factors such as whether the majority of claims were grounded in state law, whether the federal constitutional claims were closely related to state constitutional claims, and whether the federal law claims were tied to the state law claims. Id. (internal quotations and citations omitted). Accordingly, the court remanded the case reasoning that the state claims predominated over any putative federal claim, the claims raised complex issues of state law, the state courts had concurrent jurisdiction over the putative federal claims, and there was a need to respect the parents’ original choice of forum. Id.
Here, even if the Court found that jurisdiction was proper under Section 1343(a)(3), which it does not, the same considerations for remand in Spaulding would likewise apply to the instant case. Clearly, the crux of the instant dispute is the scope of the Governor’s power under the statutory scheme established by the Illinois legislature. And, although federal constitutional rights may be impacted, it is ultimately incidental to the issue of whether the Governor exceeded those powers, which is a matter governed solely by state law. Furthermore, to the extent that Bailey is asserting the violation of his federal constitutional rights, those same rights are protected by the Illinois Constitution, and thus, such claims are closely related. Finally, in the absence of any purported federal claim predominating this case, Bailey’s original choice of forum should be respected.
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Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 14 of 16 Page ID #489
In any event, despite Spaulding’s construction of Section 1343(a)(3), it is not binding on this Court. Rather, the Court chooses to follow the interpretation of Section 1343(a)(3) as provided for by the Seventh Circuit in dicta in Myles and as described above. That dicta states that Section 1343(a)(3) has had no legal effect since 1975, which is when Congress eliminated the amount-in-controversy requirement from Section 1331. See Myles, 416 F.3d at 554.
The Governor responds to Myles by noting that to follow it would result in the implicit repeal of Section 1343, which is disfavored in the law. However, this is not to say that Section 1343 has been repealed, by implication or otherwise. Rather, it is redundant now that Section 1331 confers jurisdiction without respect to the amount in controversy, negating the need for “many of the specific grants of jurisdiction.” ERWIN CHEMERINSKY, FEDERAL JURISDICTION 267, 267 n.5 (5th Ed. 2007)(stating that “[f]or example, 28 U.S.C. § 1343 creates subject matter jurisdiction for civil rights cases. The jurisdictional provision was important because of the difficulty of ascertaining the monetary value of civil rights and liberties. However, the elimination of the amount in controversy requirement in § 1331 made § 1343 superfluous”). A broad reading of Bailey’s complaint could allow the Court to find he states a claim for redress of a deprivation of a right secured by the Constitution, as discussed above, but the Court finds that the amended complaint stops just short of doing so.
Further, if the broader jurisdictional grant of Section 1331 does not reach Bailey’s claims, then the narrower reach of Section 1343 ought not confer federal jurisdiction either. Governor Pritzker raises a number of other arguments as to why Section 1343(a)(3)
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Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 15 of 16 Page ID #490
confers jurisdiction, but the Court declines to address each one individually because it is clear that it would be judicial overreach to read Bailey’s claims as federal civil rights claims subject to Section 1343’s jurisdictional grant. To so find would expand federal jurisdiction to cover claims against state actors for violating state laws in the absence of a clearly-pleaded claim that the state action violated or implicated the United States Constitution or an Act of Congress. As such, this case shall be remanded to state court for adjudication.
REQUEST FOR JUST COSTS AND EXPENSES In his emergency motion to remand, Bailey asks the Court to order the Governor to pay his reasonable fees and costs incurred during the period of time this action was pending in this court. Pursuant to 28 U.S.C. § 1447(c), “[a]n order remanding [a] case may require payment of just costs and any actual expenses, including attorney fees, incurred as the result of the removal.” The Seventh Circuit has made clear that Section 1447(c) “is not a sanctions rule; it is a fee-shifting statute, entitling the district court to make whole the victorious party.” Garbie v. DaimlerChrysler, Corp., 211 F.3d 407, 410 (7th Cir. 2000)(emphasis in original). “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). The Seventh Circuit directs courts to consider whether, “at the time the defendant filed his notice in federal court, clearly established law demonstrated that he had no basis for removal,” likening the analysis to one made under the qualified immunity doctrine. Lott v. Pfizer, Inc., 492 F.3d 789, 793 (7th Cir. 2007).
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Case 3:20-cv-00474-GCS Document 30 Filed 06/29/20 Page 16 of 16 Page ID #491

Bailey vigorously argues that Governor Pritzker’s decision to remove this case was

frivolous and in bad faith, but the Court disagrees. The removal was timely. The face of

the complaint arguably seeks to vindicate constitutional rights, like the right to travel and

the right to free exercise of religion, without specifying that it refers only to rights secured

by the Illinois Constitution. The Court seriously considered whether Bailey

unintentionally pleaded himself into federal jurisdiction by raising a claim under the

United States Constitution with this lack of specificity, and the decision in his favor was

a close call. As such, the Court does not find that Governor Pritzker lacked an objectively

reasonable basis for seeking removal. Thus, the Court will not award any fees under

Section 1447(c).

CONCLUSION

For the above-stated reasons, Plaintiff’s emergency motion to remand (Doc. 7) is

GRANTED. It is hereby ORDERED that, pursuant to 28 U.S.C. § 1447(c), this action be

REMANDED to the Circuit Court for the Fourth Judicial Circuit, Clay County, Illinois.

No fees or costs are awarded. The Clerk of Court is DIRECTED to transmit a certified

copy of this Order to the clerk of the state court, and thereafter to CLOSE this case.

IT IS SO ORDERED. Dated: June 29, 2020.

Digitally signed
by Judge Sison
Date: 2020.06.29
16:57:45 -05'00' ______________________________ GILBERT C. SISON United States Magistrate Judge

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 </s> CAROLYN TAFT GROSBOLL Clerk of the Court
(217) 782-2035 TDD: (217) 524-8132

SUPREME COURT OF ILLINOIS

SUPREME COURT BUILDING 200 East Capitol Avenue
SPRINGFIELD, ILLINOIS 62701-1721

August 11, 2020

FIRST DISTRICT OFFICE 160 North LaSalle Street, 20th Floor Chicago, IL 60601-3103 (312) 793-1332 TDD: (312) 793-6185

Sarah Ann Hunger Deputy Solicitor General Office of the Illinois Attorney General 100 West Randolph Street, 12th Floor Chicago, IL 60601

In re: Pritzker v. McHaney 126261

Dear Sarah Ann Hunger:

Enclosed is a certified order entered August 11, 2020, by the Supreme Court of Illinois in the above-captioned cause.

Very truly yours,

Clerk of the Supreme Court
cc: Clay County Circuit Court Hon. Michael D. McHaney Nadine Jean Wichern Sangamon County Circuit Court Thomas Guy DeVore

State of Illinois Supreme Court

I, Carolyn Taft Grosboll, Clerk of the Supreme Court of the State of Illinois, and keeper of the records, files and Seal thereof do hereby certify the following to be a true copy of an order entered August 11, 2020, in a certain cause entitled:

126261

)

)

Governor Jay Robert Pritzker, in his

)

official capacity,

)

)

Movant

)

)

v.

)

)

Hon. Michael D. McHaney, Judge of the )

Fourth Judicial Circuit,

)

)

Respondent

)

)

Darren Bailey

)

Motion for Supervisory Order Clay County Circuit Court 20CH6

Filed in this office on the 10th day of August A.D. 2020.
IN TESTIMONY WHEREOF, I have set my hand and affixed the seal of said Supreme Court, in Springfield, in said State, this 11th day of August, 2020.
Clerk, Supreme Court of the State of Illinois

126261 IN THE SUPREME COURT OF ILLINOIS

Governor Jay Robert Pritzker, in his official capacity,
Movant
v.
Hon. Michael D. McHaney, Judge of the Fourth Judicial Circuit,
Respondent
Darren Bailey

) ) ) ) Motion for Supervisory Order ) Clay County Circuit Court ) 20CH6 ) ) ) ) ) ) ) ) )

O R D E R This cause coming to be heard on the motion of movant, Jay Robert Pritzker, due notice having been given, and the Court being fully advised in the premises; IT IS ORDERED that the emergency motion for supervisory order is denied. On the Court’s own motion, pursuant to Supreme Court Rule 384, Darren Bailey v. Governor Jay Robert Pritzker, in his official capacity, Clay County No. 20 CH 6, is transferred to the Circuit Court of Sangamon County and consolidated with Riley Craig et al. v. Governor Jay Robert Pritzker, etc., Sangamon County No. 20 MR 589.

Order entered by the Court.

FILED
August 11, 2020 SUPREME COURT
CLERK

 </s>  </s>  </s> 
[CONTENT] April 23, 2020 | Illinois State Representative | Illinois Circuit Court | Illinois |||  ||| The Illinois Supreme Court | COVID-19 | April 23, 2020 | Illinois State Representative | the Clay County Circuit Court ||| Illinois | the Illinois Emergency Management Agency Act | the end of April |||  |||  |||  ||| Illinois | COVID-19 ||| March 9, 2020 | COVID-19 ||| 30 days ||| March 20 | Illinois ||| April 8 ||| April 1 | COVID-19 | April 30 ||| March 20 | April 8 | 30 days |||  |||  |||  ||| The same day | Michael McHaney ||| McHaney ||| McHaney ||| Fifth | District Appellate Court | the Illinois Supreme Court ||| May 1 ||| May 13 |||  ||| April 30 ||| Illinois | the Department of Health ||| May 18 ||| May 21 | the U.S. District Court | the Southern District | Illinois |||  |||  ||| First Amendment | Fourteenth Amendment | Republican | Form of Government | Article IV, Section 4 ||| Magistrate | Gilbert C. Sison ||| Later that day ||| Defendant | Illinois ||| Defendant | the United States Constitution | Plaintiff | first | Plaintiff |||  ||| A day later | May 22 | the U.S. Department of Justice ||| First ||| DOJ ||| DOJ ||| June 29, 2020 | Sison ||| Sison | Illinois ||| Sison | 28 | decades ago | 28 | § | 1331 ||| Sison ||| 2020 ||| WL 3498428 ||| Three days later | McHaney ||| McHaney | second | third | first | 30-day ||| McHaney ||| McHaney | Illinois ||| COVID-19 ||| July 7 | COVID-19 |||  ||| August 5, 2020 ||| August 7 ||| the Illinois Supreme Court | August 11 ||| Court | Craig v. Pritzker</i> | 20 | 589 | the Sangamon County Circuit Court | Raylene D. Grischow ||| the Clay County Circuit Court's | July 2 ||| October 12, 2020 [SUMMARY] COVID-19 Summary: In this case filed on April 23, 2020 by an Illinois State Representative, an Illinois Circuit Court judge issued a temporary restraining order enjoining the Governor of Illinois from enforcing the state's stay at home order against the plaintiff. Later, the judge declared that both the Governor's extension of the stay at home order and the order itself exceeded his authority. The Illinois Supreme Court transferred this case to consolidate it with other COVID-19-related litigation, and the Governor is seeking to vacate the original judge's declaratory judgment.<hr>

On April 23, 2020, an Illinois State Representative filed this lawsuit suit in the Clay County Circuit Court. Represented by private counsel, the plaintiff sued the Governor of Illinois under state law, asserting that the governor lacked authority under the Illinois Emergency Management Agency Act (the Act) to extend the state's stay at home order through the end of April. The plaintiff sought a declaration that the extended stay at home order was "in excess of the authority granted . . . under the act." The plaintiff also sought to enjoin the Governor from enforcing the extended stay at home order against the plaintiff. 

This case arose from Illinois' response to the COVID-19 pandemic. On March 9, 2020, the Governor issued a proclamation under the Act declaring that the COVID-19 pandemic was a public health emergency rising to the level of a disaster. The Act conferred on the Governor emergency powers for 30 days following the declaration. Under his emergency powers, the Governor issued an executive order on March 20 requiring that Illinois residents only leave their home for essential activities or business. This executive order was effective until April 8. On April 1, the Governor declared that the COVID-19 pandemic was a "continuing public health emergency" and issued an executive order extending the stay at home requirement until April 30. 

The plaintiff asserted that under the Act, the Governor lacked the authority to extend the March 20 executive order beyond April 8, which was 30 days after the initial disaster declaration. The plaintiff further alleged that the executive order "limit[ed] [the plaintiff's] constitutionally protected freedoms in that it ordered him to stay at home, or at his place of residence, as well as limited his ability to travel within the state." 

The plaintiff also filed a motion for a temporary restraining order (TRO), asserting that the executive order was causing irreparable harm by ordering him to stay at home and avoid travel. 

The same day, Judge Michael McHaney granted the the plaintiff's motion for a TRO and enjoined the Governor from enforcing the stay at home order against the plaintiff. Judge McHaney found that the plaintiff "has a clearly ascertainable right in need of immediate protection, namely his liberty interest to be free from [defendant's] executive order of quarantine in his own home." Judge McHaney also concluded that the plaintiff had a reasonable likelihood of succeeding on the merits, would suffer irreparable harm if a TRO were not issued, and had no adequate remedy at law.

The Governor immediately appealed to the Fifth District Appellate Court and filed an emergency motion for direct appeal to the Illinois Supreme Court. Before the appellate court could rule, the plaintiff consented to the vacating of the TRO, and the matter was remanded to the circuit court on May 1. 

On May 13, the plaintiff filed an amended complaint. The plaintiff maintained his argument that the Governor exceeded his authority in extending the stay at home order. In addition, the plaintiff asserted that the April 30 disaster proclamation was void because the continuing public health emergency failed to meet the statutory definition of a disaster. The plaintiff further argued that the governor "had no Illinois constitutional authority to restrict citizen's movement or activities and/or forcibly close the business premises" and that this authority was delegated to the Department of Health.

On May 18, the plaintiff filed a motion for summary judgment. 

On May 21, the Governor removed the case to the U.S. District Court for the Southern District of Illinois. He asserted that the district court had federal question jurisdiction because the "action seeks redress for alleged deprivations of [plaintiff's] federal constitutional rights caused by actions taken under color of state law." He asserted that the action sought to redress the "alleged deprivation of [plaintiff's] . . . First Amendment right to free exercise of religion, his Fourteenth Amendment right to procedural due process, his right to interstate travel, and the right to a Republican Form of Government conferred by Article IV, Section 4 of the United States Constitution." The case was assigned to Magistrate Judge Gilbert C. Sison.

Later that day, the plaintiff filed an emergency motion to remand the case. The plaintiff argued that the matter raised "nothing but questions concerning Defendant's authority under certain Illinois statutes" and asserted that the defendant was "intent on forum shopping and want[ed] nothing more than to derail state court proceedings." Plaintiff further contended that "Whether or not Defendant’s actions infringe on rights existing under the United States Constitution is irrelevant to and mentioned nowhere in Plaintiff’s complaint or first amended complaint" and that "the core of Plaintiff’s causes of action, is not 'capable of resolution in federal court without disrupting the federal-state balance.'” Plaintiff additionally sought expedited relief and attorneys' fees. 

A day later, on May 22, the U.S. Department of Justice (DOJ) filed a statement of interest supporting the plaintiff's motion "because the plaintiff makes no federal claim." First, the DOJ asserted that the defendant misread the amended complaint and that "plaintiff has elected to proceed on only state law claims, and removal is thus improper." Moreover, the DOJ contended that the Governor exceeded his authority when issuing the executive orders. Lastly, the DOJ argued that while the case had federal implications, these implications were not sufficient to support removal. 

On June 29, 2020, Judge Sison remanded the case. While calling the decision "a close call," Judge Sison reasoned that the "most straightforward reading" of the amended complaint was that the plaintiff sued under the Illinois declaratory judgment statute seeking resolution of state-law questions about the extent of the Governor's power; any implicit federal constitutional issues were "not central" to the case. Judge Sison also rejected the Governor's argument that 28 U.S.C. § 1343(a)(3) (a largely defunct statute that allows civil rights plaintiffs to sue in federal court regardless of the amount in controversy, useful decades ago when 28 U.S.C. § 1331 had an amount in controversy requirement) conferred broader jurisdiction than § 1331. However, Judge Sison rejected the plaintiff's motion for fees, finding that removal was non-frivolous since the complaint referred to constitutional rights. 2020 WL 3498428. 

Three days later, Judge McHaney granted partial summary judgment for the plaintiff. Judge McHaney declared that the Governor's second and third disaster proclamations were void because they arose from the same "occurrence or threat" that gave rise to the first proclamation yet extended beyond the Act's 30-day limit. Judge McHaney also declared that the proclamations' substantive provisions were invalid because the Act did not give the Governor "any authority to restrict a citizen's movement or activities." In addition, Judge McHaney held that the decision applied to all citizens of Illinois. But he declined to issue an injunction and denied summary judgment on the plaintiff's claims that COVID-19 did not meet the Act's definition of a disaster.

On July 7, the Governor moved to dismiss the plaintiff's remaining claim that COVID-19 was not a disaster under the Act. 

Meanwhile, the plaintiff felt that the Governor had not complied with the circuit court's summary judgment ruling. So, he filed a motion to hold the Governor in civil contempt on August 5, 2020. In response, the circuit court on August 7 issued the Governor a show cause order. The Governor sought a supervisory order from the Illinois Supreme Court, which stayed the contempt hearing on August 11 but refused to issue a supervisory order. Instead, the Court ordered this case consolidated with <i>Craig v. Pritzker</i>, No. 20 MR 589, in the Sangamon County Circuit Court before Judge Raylene D. Grischow. 

After consolidation, the Governor promptly filed a motion to vacate the Clay County Circuit Court's July 2 summary judgement decision for lack of jurisdiction. That motion is pending as of October 12, 2020; the case is ongoing. 