Question of the day
Monday, Aug 14, 2023 - Posted by Rich Miller
* From the Illinois Constitution…
A bill shall be read by title on three different days in each house. […]
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.
That second bit triggers the enrolled-bill doctrine. In other words, the courts are to assume the procedure is valid because those two people certify that it’s valid.
* And that brings us to the majority opinion in a 2003 Illinois Supreme Court case: Friends of the Parks vs. Chicago Park District…
Under this [enrolled-bill doctrine] precedent, we will not invalidate legislation on the basis of the three-readings requirement if the legislation has been certified. In this case, plaintiffs acknowledge that Public Act 91-0935 was certified, thus precluding judicial review.
We noted in Geja’s Cafe and again in Cutinello that the legislature had shown remarkably poor self-discipline in policing itself in regard to the three-readings requirement. The same poor self-discipline is alleged to have occurred in this case. The record below has not, however, been sufficiently developed to support or contradict this claim. Nevertheless, because this court is ever mindful of its duty to enforce the constitution of this state, we take the opportunity to urge the legislature to follow the three-readings rule. While separation of powers concerns militate in favor of the enrolled-bill doctrine, our responsibility to ensure obedience to the constitution remains an equally important concern.
* From the Republican dissent in Caulkins vs. Pritzker, which quoted former GOP Justice Heiple in a 1995 dissent…
The interpretation of a constitutional provision depends, in the first instance, on the plain meaning of its language. Next, it depends on the common understanding of the citizens who, by ratifying the constitution, have given it life. A court looks to the debates of the convention delegates only when a constitutional provision is ambiguous.
There is no ambiguity in the provision requiring the legislature to read a bill on three different days in each house […]
If it were deemed desirable to foreclose inquiries into the regularity of the passage of bills, language similar to the enrolled-bill doctrine could have been included within the constitution. There is no such language. … There is no way that a voter could interpret the language of the constitution to mean that procedural requirements for the passage of a bill could be overridden by the signatures of two State officers. In truth, the signatures of the officers are merely prima facie evidence that the General Assembly has abided by the requirements of the constitution. In other words, it raises a rebuttable presumption that the requirements for passage have been met.
* The bill in question, HB5471, was introduced January 28, 2022 as an Insurance Code tweak dealing with public adjusters. It passed the House unanimously on March 4. On that same day, two Republican co-sponsors (Reps. McCombie and Hammond) withdrew their names from the bill, which sat idle until the veto session, when the Senate moved it to Second and then Third Reading.
Senate Floor Amendment 3, which contained the assault weapons ban, was introduced on January 9, as well as two technical amendments. The three amendments were approved for floor consideration by the Assignments Committee the very same day and the bill passed the Senate a little after 6 o’clock that evening.
The bill arrived in the House on January 10, where it was placed on the concurrence calendar. The Rules Committee sent the bill to the floor that same day, where it was approved by the House later that afternoon.
The bill was certified that day by the House Speaker and Senate President and sent to the governor, who signed it that evening.
In other words, a major bill with great import was introduced and passed by both chambers in somewhere around 24 hours.
* Back to the Republican dissent in Caulkins vs. Pritzker…
In this case, the Insurance Code bill that received votes on three different days in the House in 2022 was in no way the firearms bill that passed the House on one vote in 2023. […]
Article IV, section 8, of the Illinois Constitution requires a bill be read by title on three different days in each house. Three different days in each house is all it would have taken for the legislators to consider the firearms bill before passage and thereby comply with the procedural requirements of the constitution. And three different days in each house is all it would take for the House and Senate to conduct the legislative process again if this court were to find a violation of the three- readings rule and declare the Act unconstitutional.
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.
Because the procedural requirements of the constitution were not met in the passage of HB 5471, I would find the Act unconstitutional in its entirety. Thus, until this court has before it a validly passed act of the legislature, we should make no determination on the Act at issue in this case. Accordingly, I respectfully dissent.
* The Question: Should the General Assembly follow what the Republican dissent termed the “plain meaning” of the Illinois Constitution, or should the enrolled-bill doctrine continue as-is? Take the poll and then explain your answer in comments, please.
- JS Mill - Monday, Aug 14, 23 @ 11:08 am:
Pretty hard for “conservatives” to hang their efforts on plain language anymore since the conservative justices of the highest court in the land have completely abandoned plain language.
- vern - Monday, Aug 14, 23 @ 11:12 am:
I voted for the enrolled bill doctrine. This passage from the dissent sticks in my craw:
“And concluding that simply reading the title of a
completely different bill on three different days suffices to pass constitutional muster is an affront to the people of this state and renders the three-readings requirement essentially meaningless.”
If the dissenting justices want to split hairs about the three readings rule, they can’t waive away the plain meaning of “by title.” Procedural nudniking works in both directions, but to no one’s benefit. If the final language is public, the votes are taken in public, and a majority votes for the bill, that’s good enough for me.
- Been There - Monday, Aug 14, 23 @ 11:13 am:
I voted for the enrolled-bill doctrine. There will always be a need to pass legislation at the last minute. I think what is more important is whether there have been sufficient hearings on the subject. The past few years they have been using the subject matter hearings more and more. Which is fine by me as long as both sides have time to participate.
- Suburbanon - Monday, Aug 14, 23 @ 11:23 am:
I remember the day Governor Thompson and the Illinois House “stopped time” in order to save the White Sox stadium funding bill to meet a midnight deadline. Crazy but necessary. I voted for enrolled bill doctrine.
- H-W - Monday, Aug 14, 23 @ 11:26 am:
A difficult choice here, between the two options listed.
I am a progressive who routinely votes for progress, and democrats. But as I mentioned Friday, I believe Justice Holder-White is correct in calling attention to this problem.
The bill the House certified upon three readings (a shell bill, more-or-less) in 2022 is not the same bill that the Senate wrote via amendments. They are fundamentally different bills, that happen to bear the same title “HB5471.”
I see the problem as one of allowing past practices of abusing the rules to establish informal precedence, so as to continue to abuse the rules of order.
Three readings of a bill in the House that did present gun legislation, was sent forward to the Senate, where gun regulations were introduced. That bill was approved in the Senate, and then sent back to the House for reconciliation with the bill the House had authored.
Due to the super majority, there was little doubt that the bill as amended would pass. However, it is fundamentally not the same bill, and so the new provisions were never fully vetted by the House, and given sufficient time (e.g., and additional three readings).
I am not opposed to the legislation that passed. But I also have no doubt it would have passed properly, if treated as a fundamentally new bill, introducing new “plain meaning.”
Because the new language was not fully vetted and properly vetted in my opinion, the process smacks of an abuse of power. That said, I would prefer that the rules committees and the leadership of both chambers acknowledge this skirting of the problem as significant, and effect new rules to make sure the same process does not occur going forward.
- Central Illinois Centrist - Monday, Aug 14, 23 @ 11:32 am:
Take your feelings about the current makeup of the GA and the names in the Speaker/President offices out of it.
How can anyone say 1) going against the constitution and 2) jamming thousand page long bills down the minorities throat in 24 hours is good governance?
Passing any legislation, especially major legislation in 3 calendar days is still fast governing, and can still be considered last minute.
3 days barely allows citizens without a team of partisan staff an opportunity to read, comprehend, and formulate a response to proposed legislation. 24 hours is impossible.
Voting for enrolled bill doctrine on this poll is voting against citizens of this state, pure and simple
- Norseman - Monday, Aug 14, 23 @ 11:39 am:
I respectfully disagree with the wording of the question, but I agree with the enrolled bill doctrine which applies the principles upon which the state judiciary rule upon the procedures of the General Assembly.
What we’re talking about is the amendment process. Since the passage of the Constitution, the amendment process has worked the way it did for this bill. Legislation can be amended during the 2nd reading of the originating chamber and the opposite chamber. An amendment adopted in the opposite chamber is accepted or rejected by the originating chamber. An amendment in the originating chamber does not get read for 3 days in that chamber, only in the opposite chamber. An amendment in the opposite chamber only gets read on 2nd and 3rd days in one chamber. Concerning the dearth conference committee reports nowadays, I won’t get into that.
While I pulled my hair out dealing with last minute amendments, I would advocate a different approach that should be adopted by the General Assembly.
Essentially, these MAGA GOP justices want their branch to invalidate acts of another branch based upon a practice that has been in effect since the passage of the Constitution. That IMHO is wrong. If this were taken to it’s logical conclusion, then think about all the laws now in effect that could be challenged under this new MAGA doctrine. Think it through folks. Think it through.
- H-W - Monday, Aug 14, 23 @ 11:44 am:
My prior post should have read “Three readings of a bill in the House that did NOT present gun legislation, was sent forward to the Senate.”
- Who else - Monday, Aug 14, 23 @ 11:45 am:
==Voting for enrolled bill doctrine on this poll is voting against citizens of this state, pure and simple==
I get this argument, but I don’t agree with it. Bills addressing large issues are often amended up to the moment they get called precisely because stakeholders are heavily involved in negotiating and compromising. That’s proof of opportunity for participation.
It’s also true that the constitutional requirement is not that all amendments of bills are read three separate days. As much as a dislike a slippery slope argument, I’m going to make one here–if we go with the Republican version of this argument, how much of an alteration to a bill would be required to restart the three day clock?
- Lucky Pierre - Monday, Aug 14, 23 @ 11:46 am:
Four of the six conservatives on the US Supreme Court are originalists.
They interpret the constitution based on the original intent or plain language of the constitution
- Rich Miller - Monday, Aug 14, 23 @ 11:50 am:
===They interpret the constitution based on===
Sure Jan.
- What about? - Monday, Aug 14, 23 @ 12:22 pm:
I think people are missing a major point of the Constitutional requirement for reading legislation over three separate days. The people have the right to petition their representatives, which they cannot reasonably do when legislation is blasted through at the last minute. There are practically no legislative emergencies, just an inability to plan for completing the process within the rules.
- TNR - Monday, Aug 14, 23 @ 12:36 pm:
== They interpret the constitution based on the original intent or plain language of the constitution ==
Good to see Lucky Pierre is oppose to pension reform. After all, it would blatantly violate the plain language of the constitution’s contracts clause.
- Demoralized - Monday, Aug 14, 23 @ 12:39 pm:
==Four of the six conservatives on the US Supreme Court are originalists.==
What does that have to do with this post? We’re talking about the Illinois constitution. I mean, I know it’s insanely difficult for you to actually address the topic at hand but you could at least attempt to make an effort every once in a while instead of your usual unrelated commentary.
==They interpret the constitution based on the original intent or plain language of the constitution==
I think you’re full of it and you know it.
- Demoralized - Monday, Aug 14, 23 @ 12:40 pm:
==The people have the right==
The people elected legislators to represent them. You don’t like the way you are being represented then vote for someone else.
- Occasional Quipper - Monday, Aug 14, 23 @ 12:47 pm:
Vote for plain meaning. If they don’t want to follow the 3 separate days rule then the legislators should push for a constitutional amendment to change that requirement. Right now they just ignore it and pass hundreds of shells bills every GA just in case they want to abuse the constitution at their whim. The real issue is that the legislators constantly procrastinate hoping to get a better deal for themselves, knowing that they can always just use a shell bill if they run out of time.
- TNR - Monday, Aug 14, 23 @ 12:52 pm:
This is a tough call. But I’m not sure this case is the hill the enrolled bill doctrine should die on. The proposals and statute changes within the amendment to HB 5471 were well vetted and debated in numerous committee hearings and elsewhere. No one was surprised by anything in the bill by the time the vote was called. However, that is often not the case with budget bills, where hundreds of pages worth of appropriations are introduced and passed within a couple of hours and before the public really knows what’s in it. That clearly violates the spirit, if not the letter, of the constitution’s three-reading framework. To the General Assembly’s credit, that did not happen this year, but it does most. Maybe eliminate the doctrine for budget bills only, or is that too cute?
- JS Mill - Monday, Aug 14, 23 @ 1:05 pm:
=Voting for enrolled bill doctrine on this poll is voting against citizens of this state, pure and simple=
No, it is upsetting the minority in their attempt to rule a state that very clearly rejects their politics.
=They interpret the constitution based on the original intent or plain language of the constitution=
You mean the same folks that ignored these words (the first words of the 2nd Amendment so they are the most important):
“A well regulated Militia, being necessary to the security of a free State,”
and applied some contrived and made up “test” to interpret the constitution?
LOL, your nonsense is getting more nonsensical.
- Anyone Remember - Monday, Aug 14, 23 @ 1:21 pm:
Voted for enrolled bill. “Three days” I generically support. However, can see Illinois cousins of Ohio’s Issue 1 supporters claim “three days” required for amendments. That’s a rabbit hole think we should avoid.
- duck duck goose - Monday, Aug 14, 23 @ 1:39 pm:
The “plain language” of the constitution was followed. Article 4, section 8(d) requires only that the bill title be read on three days. It then goes on to say the the bill and all amendments must be reproduced and provided to members before final action.
The title to HB 5471 is “An Act concerning regulation” That title appears to have been read at least three times on different days. What the dissent appears to be arguing is that the amendment should have been read separately. That’s not what the plain language of the constitution says. There is no requirement that bill titles change with amendments. Here, the “plain reading” crowd is trying to sneak in additional language to the constitutional requirement.
It may or may not be a good idea to slow down amendments, but it’s not what the constitution requires.
- Juice - Monday, Aug 14, 23 @ 2:04 pm:
Voted enrolled-bill doctrine.
(Though I disagree with the premise of the question.)
The law, as passed, did meet both the plain language of the constitution as well as the delegates and the voters who supported it in 1970.
Prior to the new constitution, bills were required to be read in their entirely in each chamber on three separate days. One of the reasons for that was there used to be far more legislators who were illiterate than there are today. The other reason was to ensure that bills, once introduced, were required to have at least some time for the deliberative process to occur. The requirement was not for the purpose of increased transparency or an invitation for public comment. (Keep in mind that this was well before the internet and even before fax machines were widely available. So widely distributing that actual text of legislation within three days would have been nearly impossible.)
While many may not like how this particular link of sausage was made, there was clearly deliberation between the two chambers on the contents of this legislation. And it met the constitutional requirement by being read by only its title “an act concerning regulation” on three separate days in both chambers of the General Assembly.
As to the enrolled-bill doctrine itself, prior to the adoption of the 1970 constitution, Illinois operated under the journal-entry doctrine. The journal for each chamber was the only official record as to whether a piece of legislation had been appropriately passed by its respective chamber. This led to a lot of litigation where clerical errors often led to the courts becoming involved in questions of the process of the legislature.
The enroll-bill provision was adopted precisely so that the Speaker and Senate President’s signature would be sufficient to determine that the procedural requirements of the legislature were met. This was done for the express purpose of eliminating perceived judicial interventions in the protocols of the General Assembly after laws had already been enacted.
I do think amending the constitution so that the three readings requirement is in place each time a bill arrives in a chamber, as opposed to just when it is first in that chamber, could merit some discussion. But its pretty clear that is not what the constitution currently requires.
- Perrid - Monday, Aug 14, 23 @ 3:00 pm:
It makes no sense that the court can’t question a matter of public record just because an elected official deems it so. Now, you should give officials a lot of the benefit of the doubt, the burden of proof should be on the plaintiff, but I don’t buy that the court can’t do anything to stop the GA from blatantly ignoring the Constitution.
- Oswego Willy - Monday, Aug 14, 23 @ 3:14 pm:
This is a great, complex, wonky, legal question, and I like it. I love discussing the idea of the wheels of legislation meeting constitutional muster… and in context of “sausage making”
My take surrounds by this simplicity.
Institution Standing.
Here’s why.
===Under this [enrolled-bill doctrine] precedent, we will not invalidate legislation on the basis of the three-readings requirement if the legislation has been certified. In this case, plaintiffs acknowledge that Public Act 91-0935 was certified, thus precluding judicial review.===
You have two chambers passing legal (legal in the process) bills and both chambers, and a signature by the governor stating “This bill, meeting the constitutional requirements, and now signed, is the law. This includes the manner described in the constitution to the process.”.
It’s why my beef, or take, to where the suit failed… it’s a fallback to process… while also acknowledging the process itself exists in an entirety to run both chambers. It’s attacking the fundamentality of the bodies to work, and work within the amendment aspects, or any given aspect of his bills (sausages) are finally made.
The imperfect timeline to the rigidness of timeline “verbatim”, sure let’s argue the wonky truth, but it’s existence is still truth to making laws.
- Southern Belle - Monday, Aug 14, 23 @ 5:05 pm:
Im wondering why it was necessary to call this the “Republican Dissent,” and not just the Dissenting Opinion. I also noticed that when legislator’s releases were posted on this issue Rich, you made no editorial comments on the Democrats statements, but made them on Republican statements. You should do better!
- Rich Miller - Monday, Aug 14, 23 @ 5:11 pm:
===but made them on Republican statements. You should do better!===
On two, yes because there were some blatant mischaracterizations.
Also, the two dissenters above were, indeed, both Republicans. Is that something you have a problem with? I didn’t note on another post that a former Rep. scheduled to stand trial in November was a Republican. Is that OK with you?
Some people need to get a life.
- Rich Miller - Monday, Aug 14, 23 @ 5:14 pm:
Also, I just checked the voting and it’s 61-39 in favor of the GOP dissent.
lol
- Demoralized - Monday, Aug 14, 23 @ 5:17 pm:
==you made no editorial comments on the Democrats statements, but made them on Republican statements==
Another victim heard from
- Norseman - Monday, Aug 14, 23 @ 7:20 pm:
=== 61-39 in favor of the GOP dissent ===
If their erroneous (I’ve already been through why they’re wrong) dissent became judicial doctrine, I suspect upwards to half, if not more, of the laws passed since the the implementation of the IL Constitution would be declared unconstitutional. That would include a lot of GOP sponsored laws, criminal laws, etc.
- Candy Dogood - Tuesday, Aug 15, 23 @ 1:33 am:
Voted in favor of the enrolled bill doctrine.
The constitution is fine, but the enrolled bill doctrine prevents unnecessary shenanigans that might attempt to challenge the legitimacy of the actions taken by our legislature. As noted above, we don’t need to go through the argument of what counts as a reading next. Reading every word of every bill three times also seems like a process which would make a mockery out of our legislative process as in order to get anything done there would need to be a constant droning of bills being read.
- From the middle - Tuesday, Aug 15, 23 @ 10:28 am:
Anyone who favors the enrolled bill doctrine is ignoring the Constitution and the reason for requiring 3 readings. Put politics aside and require all to comply. I agree this argument is necessary due to lack of ability to do it right, and desire to ram bills through at last minute to avoid public scrutiny. Used to be major amendments to same subject, not it is whatever leader wants. What happened to germane requirement where at least the legislature feigned common sense control of process.
- Anyone Remember - Tuesday, Aug 15, 23 @ 11:43 am:
From the middle - Is your position if an amendment simply corrects the name of an agency, it requires 3 days in each house?
- Norseman - Tuesday, Aug 15, 23 @ 12:19 pm:
=== Is your position if an amendment simply corrects the name of an agency, it requires 3 days in each house? ===
That has to be their position. There is no way to parse 3 days into meaning yes for big stuff and no for the little stuff.