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Another day, another lawsuit

Monday, Jan 23, 2023 - Posted by Rich Miller

* Serious COVID flashback vibes

On Monday, former Republican nominee for Attorney General Tom DeVore and former Illinois State Senator and Republican nominee for governor Darren Bailey filed a lawsuit in White County, challenging Democratic Gov. JB Pritzker’s assault weapons ban, after an Effingham County Judge issued a temporary restraining order late Friday night while the lawsuit proceeds.

The lawsuit raises the same claims as the one filed last week in Effingham County and names Gov. JB Pritzker, State Senate President Don Harmon, D, Illinois House Speaker Christopher Welch, D, and Attorney General Kwame Raoul, D, as defendants.

The lawsuit names over 1,600 plaintiffs, including Bailey; 68 federal firearms dealers and 92 counties, and is based on alleged violations of the Illinois Constitution. One alleged violation is of the Equal Protection Clause, because the Assault Weapons Ban provides exemptions for certain groups – for instance, active and retired law enforcement are exempted from the ban, as well as active military and private security guards.

Retired military, however, much like the general population, are not exempted from the ban. DeVore argues that these exemptions create unconstitutional classes of citizens where legislators have decided who is subject to the ban and who is not.

A hearing is scheduled for this Wednesday at 9:00 am at the White County Courthouse.

The complaint is here.

* Meanwhile, from the appeal filed today by the attorney general’s office of that aforementioned Effingham ruling

The circuit court’s determination that plaintiffs had a clear right in need of protection and were likely to succeed on the merits was based on an incorrect view of the law. Accordingly, the court necessarily abused its discretion.

First, the court incorrectly held that the Act likely violates the single-subject rule. That rule prevents “the combination of unrelated subjects in one bill to obtain support for the package as a whole, when the separate parts could not succeed on their individual merits.” Kane Cnty. v. Carlson, 116 Ill. 2d 186, 214 (1987). It “does not impose an onerous restriction on the legislature’s actions” but “leaves the legislature with wide latitude in determining the content of bills.” Johnson v. Edgar, 176 Ill. 2d 499, 515 (1997). Indeed, the legislature must “go very far to cross the line to a violation of the single subject rule.” Id. at 515-16. […]

Rather than examine the provisions of the Act, it looked primarily to the Act’s title and concluded that because the title did not explicitly mention firearms, the Act violated the single-subject rule. SR2010. As support, the court relied on People v. Boclair, 202 Ill. 2d 89 (2002). But in Boclair, the Illinois Supreme Court rejected the circuit court’s approach: the Court explained that “an act’s title is not necessarily dispositive of its content or its relationship to a single subject,” and on this basis “reject[ed]” the “heavy reliance on [the act’s] title to support [the single- subject] claim.” Id. at 109. The circuit court also incorrectly suggested that the Act violates the single-subject rule because it references human and illegal drug trafficking alongside illegal firearms trafficking. SR2010. On the contrary, the trafficking provision relates to the regulation of firearms because all of the crimes identified are frequently perpetrated with firearms. […]

Second, the circuit court wrongly held that plaintiffs were likely to succeed on their claim that the Act violates the three-readings requirement in Article IV, section 8(d) of the Illinois Constitution. But section 8(d) further provides: “The Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met.” Ill. Const. art. IV, § 8(d). This is known as the “enrolled bill doctrine”; it “mean[s] that, upon certification by the Speaker and the Senate President, a bill is conclusively presumed to have met all procedural requirements for passage,” including the three-readings requirement.

The Illinois Supreme Court has consistently held that the enrolled bill doctrine precludes litigation challenging certified legislation for failure to comply with the three-readings requirement. E.g., Friends of Parks v. Chi. Park Dist., 203 Ill. 2d 312, 328-29 (2003) (collecting cases). The circuit court recognized that the enrolled bill doctrine foreclosed this claim, but declared it was “time to revisit this practice,” and concluded plaintiffs were likely to succeed on this claim based on the Illinois Supreme Court’s decades-old remark that it “‘reserve[d] the right to revisit this issue.’” SR2011 (quoting Geja’s Cafe, 153 Ill. 2d at 260). But while the Illinois Supreme Court reserved its right to revisit this issue, circuit courts cannot declare “precedent a dead letter.” Yakich v. Aulds, 2019 IL 123667, ¶ 13. Because the enrolled bill doctrine unambiguously remains good law, “the [circuit] court committed serious error by not applying it.”

Third, the circuit court’s conclusion that plaintiffs are likely to succeed on their procedural due process claim represents another misapplication of the law. A plaintiff may not base a due process claim on the alleged violation of a different constitutional provision. See People v. Patterson, 2014 IL 115102, ¶ 97; In re A.C., 2016 IL App (1st) 153047, ¶ 60. But that is precisely what plaintiffs are doing here: their due process claim rests entirely on the legislature’s alleged failure to comply with the single-subject and three-readings clauses of the Illinois Constitution.

Furthermore, plaintiffs have failed to identify an individual property interest, which is a necessary element of a procedural due process claim. Vill. of Vernon Hills v. Heelan, 2015 IL 118170, ¶ 31. Plaintiffs have no such interest in the single-subject or three-readings clauses. Not only that, Illinois courts have recognized that the legislative process itself affords any process due. […]

The circuit court recognized these obstacles, yet declined to apply them based on its conclusion that the enrolled bill doctrine should be eliminated. SR2012. But as explained, only the Illinois Supreme Court may overrule its own interpretation of the Illinois Constitution, and the enrolled bill doctrine’s place within it.

There’s lots more. But that appellate court is gonna be a very hostile environment, to say the least.

…Adding… With a hat tip to a commenter, you gotta check this out. It’s like he didn’t prepare for the assignment and was called to the front of the class to explain the topic…


       

19 Comments »
  1. - Give Us Barabbas - Monday, Jan 23, 23 @ 5:44 pm:

    Of course this performative obstructionism was headed up by Tweedle-and, well… you know. Seriously don’t these nuisance suits count as barratry?


  2. - Big Dipper - Monday, Jan 23, 23 @ 5:45 pm:

    I believe that the Fifth District is the most-often reversed, so if it is hostile it may be just a temporary setback.


  3. - very old soil - Monday, Jan 23, 23 @ 5:51 pm:

    Is Mr. Bailey paying Mr. DeVore’s fee. Is that $200 or $160,000


  4. - Former Downstater - Monday, Jan 23, 23 @ 6:17 pm:

    Is Devore capable of a lawsuit based on anything other than an extremely pedantic reading of the law?


  5. - Commonsense in Illinois - Monday, Jan 23, 23 @ 6:25 pm:

    Mr. DeVore should go back to chasing ambulances…probably more lucrative.


  6. - Dotnonymous - Monday, Jan 23, 23 @ 6:32 pm:

    If you made DeVore hug a tree…he’d sue you for a splinter.


  7. - TheInvisibleMan - Monday, Jan 23, 23 @ 6:51 pm:

    The video Mark Maxwell just posted on Twitter of Bailey responding to an interview question, perfectly sums up the thought ‘process’ that led to this.


  8. - Huh? - Monday, Jan 23, 23 @ 7:50 pm:

    Once again, beetle has difficulty stringing words together into a coherent sentence.


  9. - Candy Dogood - Monday, Jan 23, 23 @ 8:10 pm:

    I wouldn’t wish Darren Bailey being part of one’s group project on my worst enemy.


  10. - northsider (the original) - Monday, Jan 23, 23 @ 8:33 pm:

    I wonder if all 1600 plaintiffs have signed retainer agreements.


  11. - Anonymusings - Monday, Jan 23, 23 @ 8:46 pm:

    ===probably more lucrative.

    More lucrative than 1/2 a million dollars for these two lawsuits - paid up front?


  12. - Shibboleth - Monday, Jan 23, 23 @ 8:57 pm:

    Meanwhile, as people fight to expand individual gun ownership, another mass shooting.

    https://www.msn.com/en-us/news/crime/7-people-dead-after-another-mass-shooting-in-california-report/ar-AA16FCRW?ocid=msedgntp&cvid=e9be629cb4834985aedd8634a815f061


  13. - Thoughts - Monday, Jan 23, 23 @ 9:24 pm:

    It would be interesting for someone to tabulate the amount of money that Devore and Bailey have cost the taxpayers on all of their lawsuits. The filing fees, the cost attributable to the judges and clerks, attorney general staff, outside counsel, etc.


  14. - Amalia - Monday, Jan 23, 23 @ 9:58 pm:

    Bailey and gun word salad. I’m in zero mood for this tonight, after a shooting in Chicago and another big one in California. Here’s what I want now….several of these shootings involve legally purchased weapons. I want to immediately highlight from where/or whom the gun was purchased. see, legal purchase, illegal use. and if there is an illegal use and it’s traceable, publicize that well. for each and every traced shooting. they start legal, they end up lethal. in. no. mood.


  15. - Rudy’s teeth - Monday, Jan 23, 23 @ 10:40 pm:

    Darren Bailey…your fifteen minutes are up.


  16. - RNUG - Monday, Jan 23, 23 @ 11:03 pm:

    The State court actions are just a circus side show,but enjoy the popcorn. A lot of the initial ruling for the TRO will get overturned. And eventually the IL SC weighs in. But even the IL SC won’t get the final word; the case in the Federal system will see to that.

    Which reminds me; I need to drop into my neighborhood firearms shop later this week to pick up one 10 round pistol magazine to be completely compliant with the new law.


  17. - truth seeker - Tuesday, Jan 24, 23 @ 7:54 am:

    any one have any stats as to how many times 223 or 7.62 rounds were fired in 2022 or 2021 at crime scenes i.e. how many shootings involved these weapons how many shootings state wide……. 40% 50% or higher of the crime scenes had these types of weapons fireds?


  18. - CJA - Tuesday, Jan 24, 23 @ 8:32 am:

    Amalia,
    And the goal would be to …?


  19. - Mike Sorensen - Tuesday, Jan 24, 23 @ 4:02 pm:

    Amalia, I would ask this: What other legal purchases resulting in illegal uses would you like to go after the seller for?

    In Aug 2022, a driver killed 5 and injured 40 at the Waukesha Christmas parade in Nov. 2021. Should the dealer that sold the vehicle be held accountable?


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