To be lawful or not to be lawful? That is the question. Whether ‘tis nobler under the law to suffer the slings and arrows of state court, or take flight in a sea of judicial troubles, and by moving the suit to federal court, thereby end them.
And that is the latest subject of the ongoing suit filed in Clay County last month by Darren Bailey, a Republican house representative, who is attempting to get a court to rule that Gov. J.B. Pritzker’s emergency orders, at least after the first 30 days, are not allowed under Illinois law.
The governor, whom Bailey sued, now seeks to have the suit moved from the Clay County court to the federal court whose district encompasses Clay County. Federal judges have so far been upholding the emergency proclamations.
So, when and how do pending lawsuits filed in a state court get moved to federal court?
In the U.S., there are two great court systems — those created in each state pursuant to each state’s own constitutions, and the federal courts created by the U.S. Congress as authorized under the U.S. Constitution.
The U.S. Congress has passed laws which give the federal courts’ power or authority (called “jurisdiction”) to hear certain types of cases. Without jurisdiction for a lawsuit, a court cannot entertain that lawsuit. Congress also has rules about how and when lawsuits originally filed in a state court can be transplanted to a federal court.
Among these transplant rules are if the suit involves a claim arising under the federal constitution, federal laws or treaties. Also, a federal court can have jurisdiction if the party suing (the plaintiff) and the party getting sued (the defendant) are citizens of different states and involves a money claim of $75,000 or more.
Neither of those situations is present in the Bailey claim. Ah, but there is yet another arrow in the jurisdictional quill of the governor – jurisdiction based on remedying the deprivation “under color of any State law… of any right, privilege or immunity secured by the Constitution of the United States or any Act of Congress providing for the protection of civil rights, including the right to vote.”
To move a pending case from state to federal court, the defendant files a notice of the switch in the federal court to which the defendant seeks to move the state case. The notice has to contain a plain statement on the basis for federal jurisdiction. Once that is done (and the plaintiff doesn’t object) the case picks up where it substantively was, but only now it continues in the federal court.
Ah, but Bailey has objected to such jurisdictional arrow shot by the governor. Bailey asserts that there is no claim pending in his suit alleging a deprivation of any federal constitutional right or law. Argument on this point will be heard by the federal judge sometime in the middle of June. If the judge agrees with Bailey, the case goes back to Clay County. If not, it stays with the fed.
While the legal chess is played, SARS-Cov-2 continues to thrive.
Many people yearn desperately to be free of quarantine and to generate income again.
Unlike Hamlet’s father, however, the virus remains more than a mere ghost.