A state appeals court has again publicly called on the Illinois Supreme Court to clamp down on unconstitutional lawmaking by the Democrats who dominate the Illinois General Assembly.
In the ruling, a three-justice panel of the Illinois Fifth District Appellate Court in southern Illinois invited plaintiffs to again try to persuade the Illinois Supreme Court to address mounting legislative abuses enabled under a state Supreme Court-granted legal exemption.
One of the three justices went further, however, urging the state high court to at last correct lawmakers for repeatedly and flagrantly abusing that exemption to ram through a growing number of controversial new laws without following the lawmaking rules spelled out in the state constitution.
On May 2, Illinois Fifth District Justice Mark M. Boie took Illinois' Democratic lawmakers and the state Supreme Court to task in a special concurring opinion tacked on to a decision otherwise disposing of a lingering state court legal challenge to Illinois' law banning so-called "assault weapons."
"The Illinois Legislature's disregard for constitutional procedure is alarming in and of itself, made more so by the fact that the (gun ban law) directly impacts the fundamental right to keep and bear arms," Boie wrote.
In the decision, the panel upheld the ruling of a judge in Effingham County to dismiss the legal challenge brought by a firearms shop and hundreds of gun owners, who were seeking to overturn the so-called Protect Illinois Communities Act (PICA).
The PICA law was enacted by Gov. JB Pritzker and Illinois' Democratic legislative supermajority in January 2023. Generally, that law bans the sale or purchase of a long list of semiautomatic firearms, which the state has labeled as dangerous and especially lethal "assault weapons." As well as various other firearm accessories, the law also prohibits so-called "large capacity" ammunition magazines typically associated when using such weapons.
The law further requires the current owners of such weapons to register them with the Illinois State Police.
Those who do not comply could face steep fines or imprisonment.
The law was swiftly met with a host of legal challenges in court.
Most of the lawsuits challenged the law on the basis that it violates the Second Amendment, particularly as that amendment has been interpreted in recent U.S. Supreme Court decisions.
To this point, federal judges in Chicago and the U.S. Seventh Circuit Court of Appeals have declined to block the law from taking effect. The federal appeals court has also undone an injunction blocking the law entered by a Southern Illinois federal judge, who ruled the Illinois law unconstitutionally infringes on Illinoisans' Second Amendment right to keep and bear arms.
In the rulings all but upholding the Illinois law, the other federal judges said they believed Illinois is constitutionally allowed to ban any firearms it deems to be too "dangerous" or too like weapons used by the U.S. military.
The cases currently sit before the Seventh Circuit court.
However, the fate of the Illinois law could ultimately be determined by the U.S. Supreme Court much sooner, should the high court decide to rule on whether a similar "assault weapons" ban law in Maryland is constitutional. The U.S. Fourth Circuit Court of Appeals upheld that law months ago, and the U.S. Supreme Court has not yet decided if it will hear the appeal.
However, in Illinois, at the same time the federal lawsuits were filed, other challenges were brought in Illinois state court, challenging the law solely as unconstitutional under the Illinois state constitution. Particularly, those lawsuits asserted the law violates Illinois gun owners' and gun sellers' rights to equal protection, because the law carves out exemptions for police officers and other "trained professionals" to own and use otherwise banned "assault weapons."
The state court lawsuits also asserted the PICA law was enacted unconstitutionally. The lawsuits specifically accused lawmakers of violating the Illinois state constitution's so-called Three Readings Rule.
Under the state constitution, lawmakers are specifically required to give all legislation at least three separate readings – one each on three different days – in each chamber of the Illinois General Assembly before voting on any new laws.
However, under the judicial holding known as the “Enrolled Bill Doctrine,” the Illinois Supreme Court allows Illinois’ House Speaker and Senate President to simply sign a certification that the three readings rule and other constitutional rules were followed.
This “enrolled bill doctrine” then requires courts to accept that certification and reject challenges to laws based on the three readings rule, no matter any amount of evidence to the contrary.
In this instance, PICA was enacted using a legislative process known as "gut and replace." Under that process, an existing piece of innocuous legislation, known as a “placeholder bill,” is amended by deleting every bit of text it had contained. It is then further amended to replace that text with much more consequential, and often controversial, legislation. Often, this takes place late at night or in the dark hours of the morning, without fanfare.
The new legislation, sometimes totaling hundreds or even thousands of pages, is then dropped on the desks of legislators, who are expected to vote on the legislation with mere hours for discussion or debate.
In the case of the PICA law, Democratic lawmakers opted to use a "placeholder" bill that supposedly had to do with insurance regulations in Illinois. Instead, they amended that law - which had supposedly already received the first two of three required "readings" - to delete everything to do with insurance and instead ramrod through the law banning "assault weapons" and "large capacity magazines" with minimal debate, within hours of introduction.
Nonetheless, Illinois House Speaker Emanuel "Chris" Welch and Senate President Don Harmon signed the enrolled bill doctrine statement, claiming the law had received the required three readings and should be deemed constitutional.
Illinois Democrats have followed the same "gut and replace" strategy to hastily enact a growing host of other controversial and constitutionally questionable laws, including the so-called SAFE-T Act and its abolition of cash bail; a state law forbidding Illinoisans from challenging state laws, unless those challenges are filed in courts in Chicago and Springfield; and a state law intended to block mostly Republicans from the state legislative ballot in the 2024 General Election.
In 2023, the Illinois Supreme Court took up one of two primary legal challenges to the "assault weapons" ban, opting to hear arguments in a case out of Macon County, led by Illinois State Rep. Dan Caulkins.
In its ruling on that case, the Democrat-dominated Illinois Supreme Court rejected the challenge, but did not address whether the law violated Illinoisans' constitutional rights to keep and bear arms.
Rather, the high court said the law did not violate Illinois gun owners' rights to equal protection.
And the court also refused to address whether the gun ban law violated the Three Readings rule. The majority claimed a procedural error on the part of the plaintiffs in the case did not allow the high court to consider if state lawmakers had all but ignored clear constitutional legislative rules when bulldozing the law through the legislature.
That punt on the Three Readings question drew sharp dissents from the court's two Republican justices, who said their Democratic colleagues were all but abdicating the court's job of determining the constitutionality of laws to the state's most powerful Democratic lawmakers.
“To turn a blind eye to repeated violations of the constitution suggests ‘that the courts must perpetually remain in ignorance of what everybody else in the state knows,'" wrote Justice Lisa Holder White in her dissent at the time.
“When, as in this case, the work of the legislature directly impacts a fundamental right, which this court has said the right to keep and bear arms is, the people of Illinois deserve nothing less than the procedural requirements of the constitution be followed by their elected representatives and senators.”
Following the ruling in the Caulkins case, however, the Effingham County judge said he had no choice but to dismiss the similar legal challenge to the gun ban law brought by Accuracy Firearms and its co-plaintiffs.
That dismissal was upheld by the Fifth District appellate court, in a decision authored by Justice James M. Moore and joined in full by Justice Judy Cates.
In the ruling, Moore and Cates said they believed the ruling in Caulkins tied their hands.
However, they said they were "not unsympathetic to the concerns raised by the plaintiffs to the enrolled-bill doctrine."
"We further note that our ruling in this case provides the plaintiffs with the opportunity to attempt to present this issue to the one court does have the authority to decide if it is the appropriate time for this issue to be revisited: the Illinois Supreme Court," Moore wrote.
Boie joined with his colleagues, in part.
He partially dissented on the question of whether Accuracy Firearms and the gun owners should get another chance to argue the law unconstitutionally violates their rights to equal protection, as applied to them.
But Boie went further on the question of the Three Readings Rule and echoed Holder White and other Illinois appellate justices, who have said the state Supreme Court's refusal to rein in lawmakers create a situation in which courts must "turn a blind eye" to clear and "grave" violations of the Illinois state constitution.
Boie noted attorneys for the state defendants, including Pritzker, Welch and Harmon, argued the gun ban law, under the legislation known as HB5471, had been "rigorously debated" in "multiple hearings."
Boie said that argument runs counter to reality.
"HB5471 was completely gutted and changed by its amendments of January 8 and 9, 2023. The Insurance Code bill that was voted on by the House in 2022 bore no resemblance whatsoever to the firearms bill that passed the House on one vote in 2023," Boie wrote.
He further noted the bill was approved in the state Senate at night after comments from just six members, limited to five minutes each.
"While this court is required to follow Supreme Court precedent, we are not obliged to abide such flagrant misrepresentation of the facts."
Boie said he could not let the current case move forward without comment "on the Legislative and Executive branches of our state government’s continued disregard for the procedural rules and processes involved in passing laws in this state, then hiding behind and citing our supreme court precedent ... to justify their actions."
Boie urged the state Supreme Court to conduct a "realistic assessment of the enrolled bill doctrine in light of the numerous records before our courts that clearly rebutted the presumption accepted" the state Supreme Court that their fellow Democrats had followed the state constitution's rules.