Editor's Note: This republished article has been updated and revised from a previous version to reflect the passage of the legislation by the Illinois House of Representatives on May 25 and to include more reaction and comments on the legislation. It further includes contributions from reporter Greg Bishop, of The Center Square, who reported on the floor debate over the bill in the House.
Stung by losses in downstate courts, Illinois' Democratic supermajority in Springfield has approved a new law that would force Illinoisans who want to challenge constitutionally questionable laws and official state actions to only file those lawsuits in courts in Chicago or Springfield.
And that, in turn, could spur yet another round of legal challenges against another controversial constitutionally questionable state law.
Kankakee County State's Attorney Jim Rowe
| Jim Rowe Kankakee County State's Attorney Facebook page
On May 25, the Illinois House of Representatives approved legislation that would rewrite the rules on where Illinois residents are allowed to file lawsuits challenging the constitutionality of state laws or seeking court orders blocking state officials from enforcing such laws or taking constitutionally questionable actions. The Illinois Senate approved the measure introduced by powerful Senate President Don Harmon, D-Oak Park, on May 19.
The legislation will now advance to Gov. JB Pritzker for his expected signature.
To this point, Illinoisans who believe Illinois lawmakers or other officials have passed laws or taken actions that violate the state constitution or their constitutional rights have been authorized to file such challenges in any court in any of the state’s 25 judicial circuits, covering the state’s 102 counties. Such courts are known as courts of general jurisdiction, meaning they are authorized to consider legal disputes involving any subjects not specifically reserved for the Illinois Supreme Court.
But under the legislation, docketed as amendments to a bill known as House Bill 3062, the Democratic supermajority in the Illinois General Assembly wish to make 23 of those circuit courts off limits for lawsuits challenging the constitutionality of Illinois laws or actions taken by Illinois state officials.
Instead, such lawsuits could only be brought in Cook County or Sangamon County courts.
Taken together, the law's various amendments would apply to actions “brought against the State … asserting a cause of action for a violation of the Constitution of the State of Illinois” or to actions “brought against the State of any of its officers, employees, or agents acting in an official capacity … seeking declaratory or injunctive relief against any State statute, rule, or executive order based on an alleged violation of the Constitution of the State of Illinois or the Constitution of the United States.”
The legislation, however, would specifically exempt any legal claims “arising out of collective bargaining disputes” between the state and unionized state workers.
The legislation further makes clear that it would not matter how far away from Chicago or Springfield plaintiffs may live, or the difficulties involved for those attempting to press their constitutional rights claims, as the legislation states that “the doctrine of forum non conveniens does not apply” to such actions. The doctrine of forum non conveniens is a legal doctrine that ordinarily allows judges to dismiss certain lawsuits if they conclude the lawsuit has been filed in the wrong jurisdiction, or one that places too heavy of a travel burden on one of the parties.
A spokesperson for Harmon did not respond to questions from The Cook County Record concerning the need or purposes of such legislation, or why state lawmakers are refusing to allow elected judges in other parts of the state to hear constitutional questions, seemingly in venues empowered as courts of general jurisdiction under the state constitution, including in some of the state’s most populous counties.
However, the legislation comes as the state continues to defend against a strong of lawsuits challenging the constitutionality of a series of controversial state laws and actions – defense efforts complicated by the need to tackle multiple lawsuits, bringing similar claims, in multiple different courts, often in courthouses far from the Illinois Attorney General’s offices in Chicago and Springfield.
In 2020 and 2021, a blitz of lawsuits throughout the state challenged Covid response-related executive orders from Gov. JB Pritzker, asserting the governor had violated the state constitution by claiming emergency powers to close schools, businesses and churches, require masks, require certain groups of people to receive vaccines, shut down youth and high school sports, and more.
In more recent years, Pritzker, Harmon, Illinois Attorney General Kwame Raoul and other Illinois officials have defended against lawsuits filed in county circuit courts accusing the state of violating the state constitution by enacting legislation abolishing cash bail and by enacting laws banning the sale and purchase of so-called “assault weapons.”
While a number of those disputes have landed in federal court, the fights over cash bail and the “assault weapons” ban also have ultimately landed before the state Supreme Court, after judges in county courts agreed the laws were unconstitutional and issued orders barring the state from enforcing them.
In many of those actions, the state has sought orders from the state Supreme Court transferring the cases from the local county courts in which they were filed to courts in Springfield or Cook County.
State officials, including Pritzker and Raoul, have accused those suing state officials of “venue shopping” by filing their lawsuits in downstate courts. And they have accused at least one of the attorneys, former Republican Attorney General candidate Tom DeVore, of being a “grifter” for representing clients in many of those lawsuits.
During debate on the floor of the House, the legislation's chief House sponsor State Rep. Jay Hoffman, D-Swansea, said the legislation was needed to prevent "venue shopping," and to save Raoul's office hassle and money in essentially fighting the same lawsuits filed in different courts, particularly since the lawsuits will likely end up either in Chicago or Springfield before the Illinois Supreme Court.
Hoffman called those challenges, brought by people asserting Pritzker and state lawmakers were violating their rights, "frivolous."
Republicans scoffed at that notion.
During floor debate, they noted the Democratic supermajority has just in this spring legislative session empowered Raoul and his office to open up new avenues for lawsuits against crisis pregnancy centers and against gun manufacturers.
If the Attorney General was really stretched so thin, Raoul's Democratic allies should not have given him further ability to increase his workload, Republicans said.
State Rep. Dan Caulkins, R-Decatur, who brought a lawsuit in Macon County challenging Illinois’ gun ban, said the bill is similar to the tyranny of King George III of England, during the time of the American Revolution.
“The Democrats today are doing the very same thing. They pass unconstitutional laws to make law-abiding citizens criminals and then they make those same citizens travel hundreds of miles to go to a kangaroo court that they control,” Caulkins said.
Opponents like Caulkins have noted the law would make it much more difficult for Illinoisans to challenge the actions of their state government, while allowing state officials to argue their case in front of more friendly judges.
In Cook County, for instance, every spot on the county’s judicial bench is currently held by Democrats.
Kankakee County State’s Attorney James Rowe, one of a group of county state’s attorneys who have led the legal challenge to the abolition of cash bail, said the proposed legislation represents a nakedly partisan attempt to squelch challenges to the actions of the state’s Democratic legislative supermajority.
“HB 3062 is nothing more than a dangerous effort to protect unconstitutional laws passed in Springfield,” Rowe said in an emailed statement. “Make no doubt about it, if this bill passes, it will make it more difficult for the people of Illinois to uphold our constitution and protect ourselves when the state violates our constitutional rights.
“The legislators advancing this bill have forgotten that they work for the people. Each of them took an oath to uphold the constitution, this law attacks our Constitution.”
Other lawyers contacted by The Cook County Record have indicated the law could become the latest new state law subject to a constitutional challenge.
John Fitzgerald, an attorney with the firm of Tabet DiVito & Rothstein, of Chicago, said he harbored “serious doubts” over the question of whether HB3062 could hold up in court.
Fitzgerald has been recognized as a top lawyer in Illinois, including serving as president of the Appellate Lawyers Association, a professional association of lawyers who practice before state and federal courts of appeal in Illinois, including the Illinois Supreme Court.
Fitzgerald’s practice includes a focus on constitutional and governmental litigation. He has prominently represented Illinois road construction contractors and related associations in successful lawsuits over the interpretation of Illinois’ constitutional amendment addressing transportation funding.
Fitzgerald said he believed it to be constitutionally questionable for the legislature to single out “a particular type of litigation against the State” and then tell Illinois citizens they “may file that type of lawsuit only in two of Illinois’ 102 counties.”
While state lawmakers may argue the law is intended to prevent “venue shopping,” but Fitzgerald said the state may be the one using its power to attempt to secure favorable courtrooms.
“This legislation would be on firmer ground if it applied to any litigation against the state,” Fitzgerald said. “Why should a constitutional claim and a non-constitutional claim against the same defendant be treated differently for venue purposes?
“The state may say that it has a legitimate interest in preventing forum shopping, but that interest must exist in all types of litigation, not just this one. Ultimately, this looks like forum shopping by the state, and that is not entitled to any deference.”
Rowe also predicted the law could be ticketed for another court challenge.
“If it passes in its current form, I would anticipate a constitutional challenge to the law,” Rowe said. “If they really want to address their concerns for constitutional challenges, they should simply stop passing unconstitutional laws.”
That sentiment was echoed by State Sen. Neil Anderson, R-Andalusia, who said the legislation represents “another attempt by the Democratic party and the Governor to try and overstep their authority when things don’t go their way.”
“They don’t like how the courts are ruling on their ill-conceived and unconstitutional laws, so they are trying to require cases against them to be heard in more politically ‘favorable’ courts,” Anderson said. “Instead of further impeding on the foundation of our Constitution, the Governor and the Democratic party should simply just stop passing such egregious legislation that is constantly the subject of litigation.”
DeVore did not respond to request for comment from The Cook County Record.
However, in a Facebook post, DeVore said he "wholeheartedly" agreed with a speech from State Sen. Jason Plummer, R-Vandalia. In that speech on the floor of the State Senate, Plummer said: "The reality is we're trying to legislate venue shopping in this state because certain constitutional officers ... are having a lot of their decisions challenged by the people that they're supposed to serve.
"... I think some people in this body are starting to forget who works for who. The judiciary does not work for the legislature. The legislature does not work for the constitutional officers. And the judiciary, and the legislature, and the constitutional officers work for the people of Illinois. And it's time they start showing respect to the people of Illinois, stop limiting their rights, quit taking their rights away, and frankly, when we take their rights away, at least give them the decency and respect to allow their concerns about their rights being taken away to be heard in a local courthouse.
"This is an affront to democracy," Plummer said.