Challenge To Stay-At-Home Order Belongs In State Court, DOJ Says

Jonah Meadows
·5 min read

FAIRVIEW HEIGHTS, IL — Justice Department attorneys asked a federal judge Friday to reject Illinois Gov. J.B. Pritzker's attempt to move a legal challenge to his exercise of emergency powers back to state court.

Steven Weinhoeft, U.S. attorney for the Southern District of Illinois, filed a statement of interest in Bailey v. Pritzker — the suit brought by State Rep. Darren Bailey against the governor in Clay County Court.

Weinhoeft argues recent executive orders issued by Pritzker are unsupported by state law, federal courts lack jurisdiction, the representative's complaint does not raise any federal questions and any constitutional issues it implicates do not justify moving it out of state court. Judges, according to the federal prosecutor, are generally deferential to state actions aimed at protecting public health during pandemic.

"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," Weinhoeft argued in the statement, which was jointly signed by Assistant Attorney General Eric Dreiband, Deputy Assistant Attorney General Alexander Maugeri, Special Counsel for Religious Discrimination Eric Treene and a pair of line prosecutors.

"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 [Bailey's] claims, which, because of the sweeping nature of the Orders, may affect millions of lives and raise significant constitutional concerns in other litigation," he said.

"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."

According to Department of Justice release, the statement of interest was filed as part of an effort launched last month by U.S. Attorney General William Barr to ensure local policies do not violate civil liberties during the COVID-19 pandemic.

It says the "sweeping limitations on nearly all aspects of life" contained in Pritzker's stay-at-home orders rely on authority granted by the Illinois Emergency Management Act. But Bailey argues that governor's repeated extensions of a disaster declaration beyond 30 days goes beyond what the law allows.

"The Governor of Illinois owes it to the people of Illinois to allow his state's courts to adjudicate the question of whether Illinois law authorizes orders he issued to respond to COVID-19," Eric Dreiband, Assistant Attorney General for the Civil Rights Division in the U.S. Department of Justice, said in a release.

"The United States Constitution and state constitutions established a system of divided and limited governmental power, and they did so to secure the blessings of liberty to all people in our country," Dreiband said. "Under our system, all public officials, including governors, must comply with the law, especially during times of crisis. The Department of Justice remains committed to defending the rule of law and the American people at all times, especially during this difficult time as we deal with COVID-19 pandemic."

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After earlier legal wrangling in Bailey's case saw the Illinois Supreme Court decline to intervene and the presiding judge refuse a request for a change of venue, the Illinois Attorney General's Office, which represents the governor in such cases, filed notice Thursday to remove the case from state court and get it in front of a federal judge.

"The law gives a defendant the right to remove a case to federal court when a plaintiff files a complaint in state court alleging a violation of rights that are enshrined the U.S. Constitution, and we have done so in several other cases challenging the governor's executive orders," a spokesperson for Illinois Attorney General Kwame Raoul said.

The state attorney general's office has also moved legal challenges to Pritzker's stay-at-home order on behalf of the owners of a pair of biker bars and a downstate hair salon. And two federal judges have already ruled in the governor's favor, finding his order does not violate constitutional religious freedoms.

The Justice Department filing came the same day Clay County Circuit Judge Michael McHaney had been due to hear a motion for summary judgement in favor of the downstate legislator. If McHaney had ruled in Bailey's favor, as his past rulings suggested he would, the governor would have been able to state appellate court.

In a separate case Friday, McHaney granted a temporary restraining order to James Mainer, the owner of HCL Deluxe Tan in Clay City, exempting him and his business from the governor's stay-at-home order until the next hearing on the case, currently set for June 5.

An initial hearing on Bailey's now-federal case is scheduled Tuesday before Magistrate Judge Gilbert Sison.

This article originally appeared on the Across Illinois Patch