I’m coming a bit late to this (national current events having overtaken everything), but a lawsuit filed by House and Senate Republicans was recently tossed out by Sangamon County Circuit Court Judge Jack Davis, II. The suit sought to strike down a new law — Senate Bill 328 — backed by trial lawyers. The Republicans say they will appeal.
The Republican lawsuit claimed that the majority Democrats had violated the Illinois Constitution’s “three readings rule.”
The titles of bills are required to be read aloud on three separate session days in each chamber. In the state’s early days, the entire bills had to be read aloud apparently because so many legislators were illiterate.
Often, though, bills that have already passed one chamber are gutted and replaced with amendments by different legislation, usually after the bills have been moved in the second chamber to third reading. The final bills can then be passed by both chambers in a single day without committee hearings because their titles had already been read three times in each body. And as long as both legislative leaders certify that the bills complied with procedural requirements, known as the “Enrolled Bill Doctrine,” the legislation is considered constitutionally passed.
“This special interest proposal was passed by the Democratic majority using a shady process that clearly violates the substance and spirit of the Illinois Constitution,” said Illinois Senate Republican Leader John Curran when he and others filed the suit in June.
The Republicans noted in their lawsuit that even though the Illinois Supreme Court had shot down other lawsuits attempting to kill legislation based on alleged violations of the Enrolled Bill Doctrine, justices on the state’s top court had sternly warned the legislature in 1992 that their judicial patience was wearing thin: “(T)he General Assembly has shown remarkably poor self-discipline in policing itself,” the court said at the time. “Indeed, both parties agree that ignoring the three-readings requirement has become a procedural regularity.”
But Davis countered that the Supreme Court has since addressed three readings challenges “on several occasions and has, without exception, followed the enrolled bill rule.” All appellate courts have also done the same, he wrote. Davis said he was therefore bound by precedent.
The judge also ruled that the plaintiffs lacked standing to sue because the legislation, allowing out of state businesses to now be sued for “exposure to a substance defined as toxic,” can “never affect plaintiffs.”
Earlier last month, Sangamon County Circuit Court Judge Adam Giganti used the exact same enrolled bill doctrine history cited by Davis to throw out a lawsuit filed by several members of the Illinois Freedom Caucus against the new state budget.
Giganti also ruled that because people involved in actually implementing the budget were not included as defendants in the lawsuit — including the governor, the comptroller, the treasurer and the Illinois Department of Revenue director — then that required dismissal as well under Section 2-615 of the Code of Civil Procedure.
Aside from the obvious press pops that the lawsuits have already attracted and will continue to receive, the object here is to eventually get these lawsuits in front of the Illinois Supreme Court to see if they can convince the justices to finally follow through on their 33-year-old warning.
A 2003 Supreme Court ruling referenced its own 1992 “remarkably poor self-discipline in policing itself” comment in a new case involving a similar constitutional challenge. However, the top court noted that the record of alleged violations had not been “sufficiently developed to support or contradict this claim” of a violation.
“Nevertheless,” the opinion continued, “because this court is ever mindful of its duty to enforce the constitution of this state, we take the opportunity to urge the legislature to follow the three-readings rule. While separation of powers concerns militate in favor of the enrolled-bill doctrine, our responsibility to ensure obedience to the constitution remains an equally important concern.”
So, as I told my blog readers when the Republican lawsuit was filed, “the Republicans are likely hoping that if they keep bringing these cases to the court’s attention, the Supremes will eventually decide that the record has been ‘sufficiently developed’ to support their claim.”
But it’s highly doubtful, to say the least, that the 5-2 Democratic majority will accede to the Republicans’ wishes even then.
Rich Miller also publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.