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
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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

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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.

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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 artful-

pleading 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

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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.

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

Court.

Dated: May 21, 2020 Respectfully Submitted,

KWAME RAOUL /s/ Thomas J. Verticchio

Attorney General of Illinois

R. Douglas Rees, #6201825 Thomas J. Verticchio, #6190501

Christopher G. Wells, #6304265 Assistant Chief Deputy Attorney General
Darren Kinkead, #6304847 Office of the Illinois Attorney General
Isaac Freilich Jones, #6323915 100 West Randolph Street, 12th Floor
Office of the Illinois Attorney General Chicago, Illinois 60601
100 West Randolph Street (312) 814-5354
Chicago, Illinois 60601 tverticchio@atg.state.il.us

Counsel for the Governor

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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