It’s time the Illinois Supreme Court steps up and revisits the issue of “repeated ethical lapses associated with gut-and-replace legislation,” which was used to create two controversial state laws that have since drawn national attention: bans on so-called “assault weapons” and cash bail.
That was the sentiment of the three-justice panel of the Illinois Fifth District Appellate Court in Mount Vernon, which recently upheld an Effingham County judge’s temporary restraining order (TRO) to stop the state from enforcing its new "assault weapons" ban. The appellate court agreed that the law violated plaintiffs’ rights to keep and bear arms.
It’s also the sentiment of Greenville attorney Tom DeVore, who originated at least three lawsuits against the ban on so-called "assault weapons." He plans to continue his quest to win not only an order striking down the gun ban, but one declaring lawmakers violated the state constitution in the way they approved the bill, and many other pieces of legislation, in general.
Joe Tabor
| Illinois Policy Institute
Temporary restraining orders issued by four southern Illinois judges will protect thousands of gun owners and gun shops listed as plaintiffs in separate lawsuits filed by DeVore and a group of additional plaintiffs in Macon County led by State Rep. Dan Caulkins (R-Decatur) from enforcement of the "assault weapons" ban, for now.
But within its opinion, the Fifth District panel declared it lacked the power to overrule the Illinois Supreme Court’s authority regarding other areas of constitutionality, such as how the ban on "assault weapons" was pushed through the Illinois General Assembly in the first place, a process known as "gut-and-replace" legislation.
DeVore said the Illinois Supreme Court has acknowledged in prior rulings that the kinds of tactics now commonly used by Illinois state lawmakers to push through sweeping controversial legislation is "violating the Illinois Constitution."
But in those prior rulings, DeVore said the high court has "still deferred to the legislature [and said], ‘You need to start policing yourselves better or we’re going to intervene.'"
House Bill 5471, which became the "assault weapons" ban known as the “Protect Illinois Communities Act” once it was signed into law, was in the General Assembly for a total 347 days, Devore said. But for 344 days, it didn’t mention banning any firearms or gun accessories of any kind.
Rather, for most of its existence, the legislation that was ultimately used to ban "assault weapons" and related accessories addressed proposed changes to Illinois' insurance code.
“On the 345th day, [on a Sunday] at 3 p.m. in the afternoon, [Senate] President [Don] Harmon gutted it and replaced it from a very innocuous insurance code change to an assault weapons ban,” said DeVore. “And by Tuesday night, Governor Pritzker had signed it. There was no time for objection, response, push back on that bill.”
The purpose of gut-and-replace bills is obvious, said DeVore, a former Republican candidate for Illinois Attorney General.
“They’re trying to minimize and mitigate any opportunity for those who disagree with the policies ... to build any kind of momentum to push back on it,” he said.
These types of bills are well documented.
The Illinois Policy Institute reported that “members of the Illinois General Assembly voted on nearly 300 bills that had been amended the same day or the day before in the 2019-2020 session alone. And hundreds of bills were voted on within one day of being gutted and replaced in each of the past five General Assemblies.”
“It’s [the] kind of legislation passed in back-room deals and not out in the open,” said Joe Tabor, director of policy research at the Illinois Policy Institute. “I think it’s one of many problems with the legislature, but it’s one of the ones that’s more fundamental … . There are plenty of hundreds of pages of bills that are passed like this. The budget is commonly passed like this. It’s kind of endemic.”
Passing the buck
While the Fifth District court ruled that the TRO applied to count IV of DeVore’s initial five-point complaint, specifically that the weapons ban violated the equal protection clause for the right to keep and bear arms under the Illinois Constitution, the court denied the TRO applied to counts I, II and III of DeVore’s complaint, which alleged the weapons ban was unconstitutional because it violated the single subject rule, violated the three-readings rule and denied plaintiffs due process of law.
Specifically, Count II alleged the act violated the three-readings rule found in article IV, section 8 of the Illinois Constitution, which stipulates each bill must “be read by title three different days in each house.”
As the Fifth District recounted in its opinion, HB 5471 was first introduced to the House on Jan. 28, 2022, as a nine-page document seeking to amend provisions of the Illinois Insurance Code.
On March 4, it received three readings in the House; and three days later, it reached the Senate and underwent its first reading. A second reading took place Nov. 30.
Amendments were made on Jan. 8 and 9, passed by the Senate, and returned to the House on Jan. 10.
The amended bill, now a 111-page document, was not read three times prior to voting, but it was passed by the House and signed by Governor J.B. Pritzker that same day.
However, the Fifth District wrote that it could not overrule or modify a precedent set by the Illinois Supreme Court, one the appellate court said was made in the 2003 case Friends of the Parks v. Chicago Park District.
“… the Illinois Supreme Court has unequivocally stated that ‘Illinois follows the enrolled-bill doctrine,’” the Fifth District wrote. “As the court explained, the enrolled-bill doctrine ‘provides that once the Speaker of the House of Representatives and the President of the Senate certify that the procedural requirements for passing a bill have been met, a bill is conclusively presumed to have met all procedural requirements for passage.’”
The Fifth District took note that in Friends of the Parks, the Illinois Supreme Court stated that in prior decisions, the high court had already seen how “the legislature had shown remarkably poor self-discipline in policing itself in regard to the three-readings requirement.”
“Plaintiffs posited that, in light of these pronouncements, the circuit or appellate courts, being part of the judicial branch, have the power to invalidate the enrolled-bill doctrine and demand actual, rather than presumed, compliance with the three-readings rule,” the Fifth District wrote. “We cannot agree.”
Circuit and appellate courts are “bound by the decisions of the Illinois Supreme Court and must follow those decisions,” the Fifth District wrote.
“Accordingly, in this case, the circuit court did not have the authority to decide if or when the Illinois Supreme Court should revisit the issue raised by the plaintiffs in count II, and this court does not have that authority either,” the court wrote. “Put another way, plaintiffs simply could not prevail on count II unless and until the Illinois Supreme Court overrules or abrogates its existing, binding precedent with regard to the enrolled-bill doctrine.”
In their appeal to the Effingham County judge’s TRO, Attorney General Kwame Raoul and Solicitor General Jane Elinor Notz did not defend the actions of state lawmakers, and never denied lawmakers may have violated, at a minimum, the spirit of the three-readings requirement by using gut-and-replace legislation.
Instead, they merely asserted the enrolled bill doctrine “precludes litigation challenging certified legislation for failure to comply with the three readings requirement," because it is enough that the Democratic leaders who pushed through the laws simply attested the rules had been followed.
The Attorney General's office said that, "while the Illinois Supreme Court reserved its right to revisit this issue, circuit courts cannot declare ‘precedent a dead letter.'"
Until the state Supreme Court says otherwise, "the enrolled bill doctrine unambiguously remains good law" and lower courts commit "serious error by not applying it.’”
While the Fifth District conceded that point, the court said it believed these cases present the right time for the Supreme Court to take another look at the legislature’s apparent refusal to legislate within their “constitutional boundaries.”
“We further note that our ruling herein provides plaintiffs with the opportunity to attempt to present this issue to the one court with authority to determine if now is the appropriate time to revisit this: the Illinois Supreme Court itself," the Fifth District wrote.
In coming weeks, the Illinois Supreme Court will get a chance to do just that.
DeVore plans to bring his arguments to the Illinois Supreme Court later this year. And attorneys representing Caulkins' group likely will seek a decision from the state high court sooner.
Caulkins' attorneys are scheduled to seek an order from a Macon County judge granting them summary judgment, or a quick win without a trial, based solely on written arguments, by the end of March, on their similar claims that Illinois lawmakers violated the state constitution in approving the "assault weapons" ban. That could tee up a date before the Illinois Supreme Court not long after.
DeVore sought to prevent Caulkins' group from moving ahead with that approach.
DeVore said he would prefer a more drawn out process, to allow him time to secure evidence and question state legislative leaders, including Speaker of the House Chris Welch and Harmon under oath "nailing down the fact that they knowingly certified these bills knowing that the three-readings rule was not [upheld]."
Under that strategy, DeVore said, the Supreme Court would "be faced with the actual legal record where (the legislative leaders) acknowledge they certified this knowing" they had not abided by their constitutional obligations.
In a report published by The Center Square, DeVore said he feared that Caulkins' case, which he called "poorly developed," would result in a ruling from the Illinois Supreme Court "that would then bind our case," forestalling DeVore's efforts to gather evidence and force testimony from the lawmakers, and potentially dooming the efforts to secure a ruling from the Illinois Supreme Court on the state constitutional questions at play in the legal challenges now pending.
DeVore sought to combine Caulkins' case with his three cases currently pending in Effingham County, to give him a measure of control over how the questions may advance to the Illinois Supreme Court. He also asked the state high court to put Caulkins' case on hold while his cases play out.
However, the state Supreme Court on Feb. 23 denied both of those requests.
Just how and whether the state high court will ultimately answer the constitutional questions remains to be seen.
However, the Illinois Supreme Court grew to a 5-2 Democratic majority after two Democratic justices were elected in November, backed by a Democratically controlled governor’s office and the leaders of both legislative chambers – all of whom are defendants in the lawsuits seeking to strike down both the "assault weapons" ban and cash bail ban laws.
The Illinois Attorney General’s office declined to comment on the ongoing litigation, nor whether the Supreme Court would – or should – revisit the enrolled bill doctrine and related state constitutional issues presented in those challenges.
Shell bills vs. gut-and-replace
In discussing the difference between longstanding legislative tactics and the alleged constitutional abuses of the legislative process seen in Springfield, Tabor said there is also a distinction to be made between a shell bill and a so-called "gut-and-replace bill."
“A shell bill is a bill that is filed that has no substantive changes to a law whatsoever,” he said. “Oftentimes it’s removing a word and adding that same word back into the code. That is basically used kind of as a failsafe so that if … in the middle of a session it looks like there is legislation that is needed, then lawmakers can take these bills that have already been filed and amend them.
“That is similar but distinct from a gut-and-replace bill, which is where there’s a bill – and it could be a shell bill – that was drafted to do one thing, and then lawmakers will take whatever that language is, cut it all out and put in completely new, unrelated language.”
The SAFE-T Act, passed into law in January 2021, was a gut-and-replace bill that, in part, was meant to abolish cash bail.
“They took a separate bill, took everything out of it and amended it with the 764-page SAFE-T Act bill and then passed it the same day,” Tabor said.
“Shell bills are frankly less of a concern to me than the gut-and-replace bills that are rushed through,” Tabor said. “Gut-and-replace bills, sometimes using shell bills, are how lawmakers get around … that three-day reading requirement. That is a concern for transparency and hoping that legislators actually read what they’re voting on.”
DeVore said this is not a partisan problem; he’d be having the same conversation if Republicans held a majority in either chamber.
“These procedural games are what I’m interested in,” he said. “If they want to pass this law, put forth a bill, read it three times in the House, vote on it; read it three times in the Senate, vote on it; then have it signed … . Citizens that disagree with it, they would have six days, hypothetically, to start pushing buttons with their legislators saying, ‘We don’t like this.’
“I think that’s why it’s time for the Supreme Court to step in and say we’re not going to defer to the legislature any longer. The buck stops here.”
Illinois vs. other states
There are other states that don’t engage in the gut-and-replace practice, said Tabor.
New York requires bills to be read in their final form. The Idaho Supreme Court also ruled that state's version of the three-readings rule implied a bill must be read as amended on three separate days, Tabor said.
In Alaska, if an amendment changes the subject of a bill, the three readings must start over. And Pennsylvania’s Supreme Court interpreted the state’s reading requirement much more strictly, he added.
Most recently, in 2021, the League of Women Voters and Common Cause in Hawaii “won a legal battle against the practice of replacing bills with unrelated language and inserting lots of pages of legislation,” Tabor said.
According to the Illinois Policy Institute, the Hawaii Supreme Court held the state constitution’s three-day reading requirement “necessitates that the substance of a bill must bear some resemblance to earlier versions in order to constitutionally pass the third and final reading.”
“So, there are other states that have won legal victories there,” Tabor said. “But in Illinois, it just seems to be that they’re able to kind of get by with a technicality. They’re technically complying with the constitution without complying with the spirit of the requirement.”
Jonathan Bilyk contributed to this report.