The Illinois Supreme Court has allowed Attorney General Kwame Raoul’s motion to dismiss Wood River attorney Thomas Maag’s cross-appeal on the three readings rule for lack of jurisdiction and rejected Maag’s motion for leave to respond as moot.
Deputy Solicitor General Alex Hemmer filed the motion with the state’s high court on behalf of Raoul on April 1, seeking to dismiss Maag’s cross appeal or to clarify that briefing will proceed under Rule 343(a). He argued that Maag’s appeal was not based on a final judgment adverse to the plaintiff. Instead, he asserted the plaintiff must wait to seek further review after final judgment of the case, “as is the norm in civil litigation.”
The Supreme Court agreed, allowing the motion on April 12. The court subsequently denied Maag’s motion to file a docketing statement instanter on April 15 and his motion to respond to Raoul’s motion to dismiss on April 19. Both of Maag’s motions were deemed moot.
Maag sought leave to file his docketing statement instanter on April 10. He argued that his office was closed on April 8 in order to observe the total solar eclipse out of town, which was “the same date that a response was apparently due.” His office tendered a response the following day, but it was rejected as untimely.
He wrote that he wished to object to Raoul’s motion to dismiss and comment on the alternative relief requested, asserting that Raoul relied on an “ultimately incorrect understanding of law.”
Maag noted that while he agreed the claim raised in the complaint challenges a violation of federal constitutional rights rather th a violation of the Illinois Constittuion’s three readings rule specifically, the court has subject matter jurisdiction to hear the cross appeal raising the issue of the three readings rule.
Maag argued that the trial court ruled on and denied his three readings rule challenge, and a cross appeal was mandatory to preserve the issue on appeal.
“Defendant has filed a Notice of Appeal. Thus, to preserve the issue on appeal, it is necessary that Plaintiff cross appeal. It would also be in the interests of judicial economy to rule on this issue once, and out to bed whatever the end result is,” he wrote.
“As to whether this matter proceeds under Rule 343(a) or 343(b), is, frankly, contingent on the outcome of this motion,” he continued. “By the plain language of Rule 343(b), it applies if a cross appeal is pending. There is no compelling reason why this Court should deviate from the existing rules on the topic, and Defendant cites to none, other than an argument that Plaintiff is really seeking an affirmance on another ground, but no, Plaintiff wishes this Court to overrule the trial court, and hold not just that a given order is affirmed, but that the order upholding the statute under the three readings rule, would be overturned, resulting in facial unconstitutionality, not just as applied.
Maag asked the court to deny Raoul’s motion and reject his insistence on proceeding under Rule 343(a).
Maag filed his cross-appeal on March 14 on behalf of plaintiff Piasa Armory after Madison County Associate Judge Ronald Foster found that the Firearm Industry Responsibility Act did not violate the three readings rule of the Illinois Constitution. However, he asked the high court to affirm Foster's finding that transfer to Sangamon County under House Bill 3062 is not appropriate.
Piasa Armory LLC, an Alton gun store, filed a constitutional challenge to both the firearm liability law and Gov. J.B. Pritzker's forum law for civil challenges against the state. Within the complaint, Maag argued that the Illinois General Assembly took a shell bill intended to make a punctuational change to the Code of Civil Procedure, gutted it, and replaced all of its text with the firearm liability law.
Foster agreed, but he stated that he must follow Illinois Supreme Court precedent foreclosing such challenges.
“Thus, while plaintiff concedes this court cannot rule in its favor on the issue, it is clear that plaintiff intends to challenge existing law at a higher court,” Foster wrote. “To that end, plaintiff’s Three Readings Rule challenge is denied, and this court’s ruling in this case is in no way based upon the Three Readings Rule. If the precedent of the Supreme Court were different, this court would apply that precedent.”
Hemmer now asks the Illinois Supreme Court to reject Maag's appeal.
Hemmer argues that because Foster did not enter a final judgment that was adverse to the plaintiff when he addressed the three readings rule, the Illinois Supreme Court cannot exercise appellate jurisdiction.
"Plaintiff's notice of appeal suggests that it has filed a cross-appeal in order to preserve the argument that [the firearm liability law] violates the three-readings rule," Hemmer wrote.
However, he argues that Maag did not plead a claim in the complaint that the firearm liability law violates the three readings rule.
He adds that the Illinois Supreme Court has "repeatedly rejected litigants' efforts to appeal mere 'issues' presented by a lower court's decision."
In the alternative, Hemmer asks the court to proceed under Rule 343(a) rather than 343(b)(1). Rule 343 addresses “times for filing and serving briefs.”
More specifically, 343(a) states that “the brief of the appellant shall be filed in the reviewing court within 35 days from the filing of the record on appeal …”
Rule 343(b) addresses cross-appeals and separate appeals, stating that a “cross-appellant shall file a single brief as appellee and cross-appellant at the time his or her brief as appellee is due; the appellant’s answer to the arguments on the cross-appeal shall be included in appellant’s reply brief, which shall be filed within 35 days from the due date of the single brief filed by the cross-appellant; and the cross-appellant may file a reply brief confined strictly to replying to those arguments raised on the cross-appeal within 14 days after the due date of the appellant’s reply brief.”
If the high court concludes that it does have jurisdiction to hear the appeal, Hemmer argues that Rule 343(a) "sets out the appropriate briefing schedule for cross appeals, but - again, presuming plaintiff's three-readings theory is properly before the court - no cross-appeal was needed here, because plaintiff's three-readings theory at most is a basis on which the court can affirm the circuit court's judgment, not a basis on which plaintiff could obtain relief that the court denied ..."
Raoul's appeal after forum law declared unconstitutional
Foster also granted summary judgment for Piasa Armory and denied transfer to Sangamon County, finding Pritzker's forum law unconstitutional as applied to those residing or injured outside of Cook or Sangamon Counties. In its complaint, Piasa Armory opposed the state's forum law, which demands that constitutional challenges be filed in Pritzker's preferred jurisdictions.
The forum law, or House Bill 3062, was passed by the 103rd General Assembly and signed into law by Pritzker on June 6. The law strips circuit courts in 100 of Illinois’ 102 counties of their power to preside over constitutional challenges. Prior to the new law, any party challenging the constitutionality of a controversial law had the authority to file their cases in any of the state’s 25 judicial circuits.
Raoul moved for summary judgment in regards to the venue. Raoul objected to Madison County jurisdiction and filed a motion to transfer.
Because Raoul moved to transfer the suit from Piasa Armory’s preferred venue under the forum law, Foster found that the plaintiff had standing to challenge its constitutionality.
Foster concluded that Piasa Armory demonstrated that both Sangamon and Cook Counties are inconvenient forums.
“The court finds the government interest here minimal at best,” Foster wrote. “Sangamon County is not more important than any other county in this state. The fact that it is the seat of state government is ultimately irrelevant. Based on the record before the court, the General Assembly will not be called as witnesses.”
“The Attorney General is responsible for representing the state and its officers in court in every county,” he added. “Therefore, for all these reasons, transferring this action to Sangamon County would simply make it more difficult for the plaintiff to prosecute its constitutional claims.”
“While this court acknowledges without hesitation that the judges in Sangamon County would impartially handle this case, the reality remains that the greater the distance between the parties, witnesses, the sources of evidence, the more arduous it becomes to access the courthouse,” he continued.
Raoul appealed Foster's ruling on March 13, seeking a reversal.
“By this appeal, defendant requests that the Illinois Supreme Court reverse and vacate the circuit court’s order to the extent it was adverse to him, and grant him any other relief deemed appropriate,” wrote Assistant Attorney General Darren Kinkead.
Piasa Armory's constitutional challenge
Maag filed the lawsuit on Aug. 17 on behalf of the Alton firearms and accessories dealer.
In regards to his venue challenge, Maag claimed Pritzker and the Illinois legislature enacted the rule limiting jurisdiction over constitutional challenges to Cook and Sangamon Counties after “having been successfully sued on multiple occasions in recent years for violating the constitutional rights of citizens of Illinois.”
He wrote that the law is “designed to limit Second Amendment and related challenges to forums that the state considers either more friendly to its position, or sufficiently inconvenient to would-be plaintiffs to deter such actions from being filed in the first place, and abolishes forum non conveniens for those cases, no matter how inconvenient or inaccessible the forum is to the victim of the constitutional violation, and no matter where the effect of the Constitutional violation took place.”
“In fact, one of the great crimes against the colonies of King George III, prior to the Revolution, as noted in the Declaration of Independence was, in essence, fixing venue in far off and inconvenient lands,” Maag wrote.
“The legal rights which a litigant might seek to exercise or protect exist only to the extent they are enforceable through the court system,” he added. “Depriving a litigant of the opportunity to use the courts effectively makes these legal rights worthless, which is the intent of the statute, so as to allow the state to violate the Constitution with relative impunity.”
“By making forums far off and inconvenient, and with possibly no connection to the dispute, the challenged statute substantially increases the likelihood of an inability to bring a successful constitutional challenge, especially by the infirm and impoverished, the weakest among us,” he continued.
Maag also argued that the Illinois Attorney General has satellite offices throughout the entire state and regularly litigates in even Illinois county, meaning it is already intimately familiar with local rules and procedures and equipped to litigate in the preferred circuit court.
“Therefore, any argument that requiring a plaintiff to file suits only in counties of Cook and Sangamon would grossly inconvenience the Attorney General has no basis in fact,” Maag wrote.
Maag also seeks a declaration that House Bill 0218, or the Firearm Industry Responsibility Act, is unconstitutional and an injunction barring its enforcement.
“Under HB0218, a dealer of firearms and firearm accessories, including Piasa Armory, LLC, may potentially be named in a civil action as a defendant by the Attorney General of Illinois for third parties misuse of firearms and firearms products,” Maag wrote.
However, Maag argues that the Protection of Lawful Commerce in Arms Act (PLCAA) immunizes gun dealers from such claims.
He also argues that the liability law is void for vagueness for failing to specify what speech is targeted and is inconsistent with the nation’s historical tradition.
Madison County Circuit Court case number 23-LA-1129