(Editor's note: This article has been corrected to reflect that Darren Bailey is a state senator)
CARMI – Circuit judges can’t enforce constitutional requirements for passing legislation, Gov. J.B. Pritzker’s lawyer told White County Circuit Judge Scott Webb at a Jan. 25 hearing for a temporary restraining order on a gun law Pritzker signed on Jan. 10.
The plaintiffs, lead by state Senator Darren Bailey, claim House Speaker Emanuel Welch and Senate President Don Harmon violated a constitutional rule requiring three readings of a bill in each chamber.
Assistant Attorney General Darren Kinkead told Webb he couldn’t invalidate the law because Welch and Harmon certified that they abided by the rule.
Webb asked Kinkead what case says circuit courts can’t entertain egregious constitutional violations.
Webb heard an answer but citizens in the gallery didn’t, because Kinkead argued on Zoom and for the most part spoke too softly to reach the gallery.
Webb could see Kinkead‘s image on a screen in front of him, but the gallery couldn’t see the screen.
Webb asked, “If the House speaker and the Senate president say they’ve read it, there’s no need to put it on the legislators’ desks?"
Kinkead said it was a good question and his voice faded away.
Webb responded, “But there’s no way to enforce it?”
Webb listened and said, “You are saying there’s no way to enforce the three readings doctrine?”
He listened again and said, “The way this was done concerns me greatly.”
Webb said Welch and Harmon pulled the plug on House Bill 5855 and put the number on their bill.
He told Kinkead, “This is different from the cases you gave me and the cases I’ve read.”
“They played fast and loose. That’s egregious,” he said.
“What if the speaker and the president certify something that never happened?” Webb asked.
“Who challenges that and how is it challenged?” he added.
“You’re asking me to say as long as those two sign off on it, I can’t do anything about it,” Webb continued.
“They’re untouchable,” he concluded.
The hearing began with Bryan Drew of Benton asking for an injunction on behalf of about 80 businesses and more than 1,000 individuals, including 2022 Republican governor candidate Bailey.
Drew claimed Welch and Harmon violated not only the three readings rule but also due process, equal protection, and a constitutional provision limiting a bill to a single subject.
He said a bill can’t encompass everything.
He added that in this case, a non substantive bill about insurance turned into a sweeping bill.
Webb asked what the purpose of three readings was and Drew said, “For the people to participate, for the people in this room, so everyone knows what we’re doing.”
“They did not comport with the constitution but they certified that they did,” Drew said.
He told Webb the state would say that only the Supreme Court could review the law.
He added that Webb had every right to review it.
Webb asked what authority Drew had for a due process claim, and Drew said defendants stripped away the right of citizens to sign witness lists and contact legislators.
Webb asked if he bootstrapped a Second Amendment claim into equal protection.
“No, this is in fact a separate issue,” Drew responded.
He said the law specifically exempted seven groups.
“Not everyone’s being treated equally,” he said.
“Where do you go for a reason when there is no legislative record?” Drew asked.
“Where could a court derive any facts?” he added.
“This gamesmanship has caught up with them,” Drew said.
He said the purpose of three readings is that, “They would all discuss it and fight about it and argue.”
“They thought they were being smart," Drew said. "They hung themselves this time for the first time.”
He said they had no facts to support the exemptions.
“They just said you can have it and you can’t,” he added.
Drew said Welch and Harmon exempted military personnel on active duty, and he asked if personnel out of active duty are any less trained.
They also exempted keepers of jails and wardens of prisons.
“I don’t think anyone knows what 'keeper' means,” Drew said.
Drew noted that a warden is a political appointment and doesn’t need weapons or training.
He finished and Kinkead took his turn.
Webb listened and said, “It’s some amorphous kind of thing that I’m having trouble grasping.”
He declared a break.
Among ten citizens in the gallery, none said they could hear Kinkead.
Three said they couldn’t hear him at a previous injunction hearing in Effingham.
Rep. Adam Niemerg of Teutopolis was in the gallery and said, “The stenographer had to ask him to speak up and he was in the courtroom. He’s just a soft talker.”
After the break, Webb asked hard questions and made crisp comments about three readings.
Kinkead apparently argued for direct Supreme Court review as Drew predicted he would.
“They don’t take up issues of first impression out of the blue,” Webb responded.
Kinkead apparently suggested that legislators could enforce the three readings rule by withdrawing their support of the speaker and the president.
Webb said, “The only due process is if the members say they won’t vote for it?”
On rebuttal Drew said, “If a majority agree to violate the constitution, they say there is nothing else to do. Where else do you go?”
Webb took it under advisement and hadn’t ruled as of late Friday afternoon.