Seventy-seven of 78 retention judges rated qualified by Chicago Bar Association? Not so fast, my friend!

Updated 10/16/24

Another college football weekend in the books -- and, while Lee Corso was again absent from the ESPN College Game Day desk, when it comes to the CBA judicial retention evaluations, his famous catchphrase comes to mind....

Lee Corso Not So Fast GIFfrom Lee Corso GIFs

FWIW reported on October 3 (post updated October 4) that 77 of 78 Cook County judicial retention hopefuls had been rated qualified by the Chicago Bar Association. That total included Judges Shannon O’Malley and E. Kenneth Wright Jr.

This is no longer the case.

Now, and apparently since sometime on October 11, if you click on the CBA Judicial Voters Guid or the 21-page General Election Smart Guide that is linked from that page, you will see that the ratings for Judges O'Malley and Wright are listed as "pending."

Why?

On October 2, Injustice Watch published a story about O'Malley and Wright, "Two Cook County judges claim homestead exemptions in Will County." The story, by Kelly Garcia and David Jackson, makes the case that neither Judge O'Malley nor Judge Wright actually live in Cook County.

The story notes that Wright has a condo in River North and a single-family home in Morgan Park, but that he has claimed a homeowners exemption since before he became a judge and, more recently, a senior citizen exemption, on a home in Joliet. O'Malley has an apartment in Schaumburg and a home in a Will County section of Aurora, according to the article. O'Malley or persons speaking on his behalf told Injustice Watch that he does not live with his wife in Aurora. But, the article continues,

When Injustice Watch telephoned his Aurora home on a recent afternoon, his wife answered and turned to her husband.

“Hey, Phil [the name by which Shanon O'Malley was formerly known], it’s the reporter,” she was heard saying.

In the background, O’Malley said: “Don’t tell her I live here.”

He declined to come to the phone.

The casual reader (FWIW must have some of these) may wonder why it is such a big deal where a judge lives.

The answer? It's a big deal because the Illinois Constituion sets certain, limited requirements for judicial service in Section 11 of Article VI of the Illinois Constitution. This provides, in pertinent part (emphasis mine):

No person shall be eligible to be a Judge or Associate Judge unless he is a United States citizen, a licensed attorney-at-law of this State, and a resident of the unit which selects him.

Section 12(a) of Article VI of the Illinois Constitution states, in pertinent part, "A person eligible for the office of Judge may cause his name to appear on the ballot as a candidate for Judge at the primary and at the general or judicial elections by submitting petitions."

We don't have many objective means to measure judges. Temperament, certainly, but even scholarship and diligence and impartiality aren't really easy to quantify. (The judge who rules in your favor has all these sterling qualities, and more, in abundance... but the judge who rules against you? Maybe not so much.) Contrary to what some believe (I'm thinking of you, Injustice Watch) getting reversed isn't always necessarily an indication of judicial ineptitude. Appellate courts aren't infallible; they can be wrong, too. But we certainly can expect, and require, that judges will at least meet the bare constitutional requirements for holding the job.

And, yes, that a judge actually lives where he or she claims to live also goes to that individual's character and respect for the law.

These things are kind of important in a judge.

These things are so important that, when it was discovered that a judge lied about where he lived, falsely claiming to live in Cook County's 10th Judicial Subcircuit, in his parents' house, when in fact he and his family lived in the western suburbs, it was one of the bases cited by the Illinois Courts Commission in its decision removing that judge from the bench. See, In re Golniewicz, 02 CC 01, 4 Ill. Cts. Com. 9 (2004).

The Illinois Supreme Court later cited Golniewicz in Goodman v. Ward, 241 Ill.2d 398 (2011). Chris Ward wanted to run for judge in the 4th Subcircuit of the 12th Judicial Circuit (Will County). But, while he was a Will County resident, when he filed his nominating papers, he was not in fact a resident of the 4th Subcircuit. Therefore, the court held, that he was not eligible to have his name put on the ballot (241 Ill.2d at 412-12) (empahses in original):

Pursuant to section 12, eligibility for judicial office is therefore a prerequisite to running for that office. Under section 11, eligibility requires that one be a "resident of the unit which selects him" Ill. Const. 1970, art. VI, §11. While there may be contexts in which the language of article VI, section 11, is "arguably ambiguous" (Thies v. State Board of Elections, 124 Ill. 2d 317, 323, 529 N.E.2d 565, 124 Ill. Dec. 584 (1988)), the situation presented by this case is not among them. Giving sections 11 and 12 their plain and ordinary meaning, it is therefore clear that under our Constitution, candidates for the office of circuit, appellate or supreme court judge must be residents of the unit from which they seek election before they may cause their names to appear on the ballot for the primary election. See Maddux v. Blagojevich, 233 Ill. 2d 508, 514 n.3, 911 N.E.2d 979, 331 Ill. Dec. 749 (2009). If they are not residents, they are simply ineligible to run. If they attempt to run when they do not meet the constitutionally mandated residency requirement and manage to win the election, they will be subject to removal from office by the Illinois Courts Commission. In re Golniewicz, 4 Ill. Cts. Com 9, 39-40 (2004).

There is a third candidate on the retention ballot who ran into trouble for possibly fibbing about her place of residence: Beatriz Santiago was censured by the Illinois Courts Commission in 2016 for telling a mortgage lender that a home located just outside the 6th Subcircuit (from which she was elected) was in fact her primary residence, where she lived and where she intended to live, when it actually was not her primary residence. She had lived there before she ran for judge but, she said, she had moved back into the 6th Subcircuit, living with her folks, in order to be eligible to make the run. Her defense to a claim that she was consititutionally ineligible to serve as a judge in Cook County's 6th Subcircuit was that she was only guilty of bank fraud... and, she said, she didn't do that on purpose either. I think because the residency question had been thoroughly litigated before her election, and it had then been determined that she really had moved back in with her folks, the Courts Commission was willing to accept this explanation. (2016 FWIW coverage here.)

The point is, residency is a big deal. It is not just a matter of ratings; it is a potentially disqualifying, career-ending matter.

But first things first: There is a pending election and ratings to be determined.

The Chicago Council of Lawyers has already amended it findings in light of the Injustice Watch article concerning Judges Wright and O'Malley.

In its findings with regard to Judge Wright, the Council stated, in pertinent part,

It was recently reported that Judge Wright claims a senior homestead tax exemption on a residence in Will County, Illinois, while maintaining residency in Cook County for purposes of meeting residency requirements to be a judge of the Circuit Court of Cook County. Judge Wright fully participated in the Alliance’s investigation process concerning this matter, and reported that he has corrected his tax exemption status.

Judge Wright's forthright handling of the matter, coupled with a strong history of professionalism on the bench, leads the Council to find him Qualified for retention.

On the other hand, with regard to Judge O'Malley, as FWIW has previously reported, the Council found him not qualified for retention, even before the question of residency was raised. On its website, the CCL now states that it "takes no position on the question of Judge O’Malley’s residency because we are recommending against his retention for judicial performance reasons."

What one bar association does with late-breaking news, such as the residency questions involving Judges Wright and O'Malley, should not be taken as a prediction of how others, including the Chicago Bar Association, will choose to respond.

It is an indication of the increasing influence of Injustice Watch that its news coverage prompts the reopening of bar association candidate evaluations. More, certainly, to come.

Because service in the Illinois General Assembly did not come with enough perks already....

Reminiscent of the late Sydney J. Harris, here's a thing I learned en route to looking up other things....

Effective January 1, 2025, the Illinois Supreme Court has amended Supreme Court Rule 795 (CLE accreditation standards and hours), by adding a new subsection (d)(13), which provides:

Service as Elected or Appointed Member of the Illinois General Assembly. An attorney elected or appointed to the Illinois General Assembly earns three hours of general MCLE credit by attending at least one day of one qualifying legislative session. A "qualifying legislative session" is any official regular, special, or veto session of the Illinois General Assembly for which the member is present in the Illinois House of Representatives or Illinois Senate chambers or any official committee or subcommittee meeting of the Illinois House of Representatives or Illinois Senate for which the representative or senator is present. Credit for this attendance is limited to 3 hours for each qualifying legislative session and is capped at 12 hours in each two-year reporting period. There is no carryover of these credits to another two-year reporting period and no professional responsibility credit is available. The attorney must report the credit earned from this activity to the MCLE Board using the Board's online submission process no later than the reporting deadline for the reporting period in which the attorney earned the credit. Newly admitted attorneys do not earn Illinois MCLE credit under this provision.

It's not a complete get-out-of-CLE-free pass for lawyer-legislators: Hauling one's carcass down to Springfield and staying the day provides only a maximum of 12 of the required 30 CLE hours in any one reporting period (and only three in any given session) -- and the honorable member must still enter his or her attendance in the now-usual online manner (the dozen hours are not assumed or automatically conferred). Moreover, these are general credits only, meaning attendance doesn't count toward the various professional resopnsibility hours requirements.

Still... was there really a burning need for this? Were significant numbers of lawyer-legislators working so diligently on the people's business that they were failing to attend to their own CLE requirements? One guesses that Someone Important must have asked for this... but FWIW does not have the investigative resources to find out who that Someone Important might be.

Weeping Angels amend Election Code... but why?

In a rational polity, legislatures would not act on anything important without investigation (extensive committee hearings, for example) and deliberation. Important legislation would take time... to ripen, to refine, to polish... to consider consequences. Public input and opinion would be sought or, if necessary, guided and shaped by wise legislative leaders.

That's not how we do things in Illinois, of course.

Not for anything important. When our General Assembly does something important, or at least something it thinks is important, it materializes a statute out of seeming nowhere, in an eyeblink, and zips it through the process before anyone on the Outside has a chance to know it is happening.

That's how we know P.A. 103-0586 must be important. It must be really important because it sprang into existence, fully formed, out of less than nothing, in the course of 48 hours or less -- and was signed by the Governor the very next day.

In fact, P.A. 103-0586 must be really, really important because the Springfield Weeping Angels chose to rush this statute through before the end of the current legislative term.

Those of you familiar with these legislative shenanigans can skip ahead a few paragraphs, when we get to the specifics of what P.A. 103-0586 is trying to accomplish. But, for the rest of you, a brief look at the legislative history of SB2412 may prove entertaining. Or terrifying.

As introduced, SB2412 was apparently a substantive attempt to amend the Children and Family Services Act. It was filed in February 2023, and, in due course, referred to committee. It passed through committee unanimously and, by March 29, 2003, it passed its third and final reading in the State Senate 57-0. Not controversial. Also, not anything that would be on the radar of anyone tasked with monitoring changes to Illinois election law.

SB2414 arrived in the House without apparent incident. But on May 16, 2023, Assistant Majority Leader Robert "Bob" Rita introduced an "amendment" to SB2412. Here is that amendment:

You've heard of "shell bills" perhaps. This is what one looks like. This is what the Weeping Angels seem to need in order to weave their magic.

On account of this brilliant piece of legislative drafting (deleting "and" and then inserting "and" back in -- it sort of makes my heart swell with patriotic pride at the craftsmanship of of it all) the newly 'amended' bill had to go back to committee... where it passed on what looks like a party line vote. Then it was set up for a Second Reading in the House. With legislation, though, it's the third time that's the charm, and the legislative history reveals that SB2412 was set up for its third reading/final action through May 31, 2023.

And then nothing happened.

Except... on May 31, 2023 it was "re-referred" to the Rules Committee. Ready for whenever it might be needed.

Whenever came 11 months and one day later: On May 1, 2024 SB2412 got a new sponsor, Assistant Majority Leader Jay Hoffman, from downstate Belleville, and all new language (via House Floor Amendment No. 2, an amendment filed by the aformentioned Rep. Hoffman). In fact, it got the language it has now. And on May 1, it went back to committee, and back out of committee. Still on May 1, the amendment was adopted on the floor of the House and the newly amended SB2412 passed on its third and final reading, 67-4. Forty abstentions were recorded; apparently the Republican members of the House walked out, rather than vote against the bill.

SB2414 went back to the Senate at this point, where the two "amendments" to the innocuous, not-election-related proposal that it had been when it was last in the State Senate were adopted, in sequence. Senate Republicans apparently boycotted these votes (recorded as 35-3-18). All of this on May 2.

And, as already noted, the Governor signed SB2412, now P.A. 103-0586, on May 3, effective immediately.

In Springfield, don't blink!

So... what does P.A. 103-0586 purport to do?

Well, this is where it gets interesting: Some of it appears to be fairly standard election year theatrics. Some of it appears to be a helpful reform to our very congested election calendar. And the middle part of it -- the one that apparently triggered the Republican boycott -- prevents political parties from putting candidates on the ballot in the general election where no candidate of that party came forward in the primary.

The election year theatrics are found in Articles 2, 3, and 4 of the new law. These articles certify three advisory referendum questions for the statewide November ballot:

1. Should any candidate appearing on the Illinois ballot for federal, State, or local office be subject to civil penalties if the candidate interferes or attempts to interfere with an election worker's official duties?


2. Should the Illinois Constitution be amended to create an additional 3% tax on income greater than $1,000,000 for the purpose of dedicating funds raised to property tax relief?


3. Should all medically appropriate assisted reproductive treatments, including, but not limited to, in vitro fertilization, be covered by any health insurance plan in Illinois that provides coverage for pregnancy benefits, without limitation on the number of treatments?

Nothing binding here... just a means of potentially ginning up turnout from among constituencies that the Democratic majority would like to see at the polls on Election Day. (Just a side note here for our elected leaders: Do you see how easy it would be to put a referendum on the ballot calling for fair election maps drawn by a nonpartisan commission?)

The potentially helpful part of the statute is in the amendments to §§7-11 and 7-12 of the Election Code, 10 ILCS 5/7-11 and 7-12, moving up petition filing dates by 28 days. This would allow more time for election boards to consider challenges to nominating petitions and potentially allow for their disposition prior to the start of early voting. Perhaps, in the next election cycle, we can avoid any necessity to 'halt early voting' whilst appeals proceed on petition challenges.

I believe this will move the entire election calendar up by those same 28 days. Petition signing may begin 28 days sooner, perhaps. But that is my hunch, not yet backed up with research or authoritative opinion. Actual election lawyers are looking into this carefully, I am sure. Persons interested in running for office in 2026 should be paying careful attention to this as well... and, of course, should be consulting an election lawyer sooner rather than later. (At least 28 days sooner, I would say.)

The controversial part of P.A. 103-0586 appears to be the amendments to §7-61 and §8-17 of the Election Code (10 ILCS 5/7-61 and 10 ILCS 5/8-17) and related statutes. Clearly, judging by the partisan outrage, the Legislature did this for somebody specific... or to someone specific. Maybe both. Those of us on the Outside are unlikely to find out the particulars.

Before P.A. 103-0586, where no candidate ran in the primary, or was nominated as a write-in, the leaders of that party could thereafter appoint someone to 'fill in the blank' on the ballot. If you clicked on the news link a few paragraphs above, you may have noticed that this practice was referred to as 'slating.' Apparently.

Obviously, 'slating' Downstate and slating in County Cook are different things.

There were hoops that had to be jumped through by the person so appointed, and apparently these have grown more complicated over time. Entropy increases is a law of physics. When it comes to legislation, it is complexity that increases.

Probably most FWIW readers have never even heard of this practice. Since I've been on this beat, this was done exactly once in a Cook County judicial race, in 2014, in the 4th Subcircuit. I wrote about it then.

But the new act purports to preclude political parties from nominating candidates for election without going through a primary.

The operative language appears to be in §8-17 of the Election Code which, on its face, seems to be about candidates who die on or before the primary. It previously provided, and continues to provide, a procedure for parties to replace a candidate who dies before or after the primary, or declines his or her nomination, or withdraws from the general election.

But §8-17 used to allow this procedure to be used "should the nomination for any other reason become vacant." That language is now stricken by P.A. 103-0586. Further, the second sentence in that second paragraph now reads, "However, if there was no candidate for the nomination of the party in the primary, no candidate of that party for that office may be listed on the ballot at the general election."

So... assuming the law holds up against an expected legal challenge (on the grounds that the rules of the election are being changed in the middle of the election cycle, and not just for the future)... all currently unopposed candidates will remain unopposed (pending, if you really want to be technical, the vanishly small possibility that some independent candidate might somehow qualify for the November ballot).

Again, however, the provisions now amended by P.A. 103-0586 have only been used once in Cook County judicial races in many years. There was a rumor that the Republicans were going to field a candidate in, oddly enough, the 4th Subcircuit, but, from what I heard, the prospective candidate in question decided against running this time... even before the Weeping Angels struck. It seems highly unlikely that all this legislative effort was made to prevent a contest in the 4th Subcircuit.

But you can bet your mortgage this was done for a reason. Probably to help a specific person, presumably an incumbent, or to prevent a specific person from slipping onto the November ballot. But who?

BREAKING: PLA denied in Ashonta Rice case

The Illinois Supreme Court has today denied a Petition for Leave to Appeal filed on behalf of Ashonta Rice, bringing her 2024 judicial campaign to an end.

The complete text of today's Order is as follows:

This cause coming to be heard on the motion of Petitioner, Ashonta Rice, responses having been filed, and the Court being fully advised in the premises;

IT IS ORDERED that the emergency motion for accelerated docket is treated as a motion for expedited consideration of the petition for leave to appeal. The motion for expedited consideration of the petition for leave to appeal is allowed. The petition for leave to appeal is denied.

Order entered by the Court.

Neville and Cunningham JJ., took no part.

FWIW has also learned that a motion to publish the Rice decision has been filed in the Appellate Court. If granted, that would convert the Appellate Court's recent Rule 23 Order into a published opinion.

Stay tuned.

Appellate Court issues Rule 23 Order in Ashonta Rice case

FWIW readers already knew that Ashonta Rice's 2024 countywide judicial campaign came to an almost certain end in the Appellate Court on February 16. Important as that disposition was for Ms. Rice and her supporters, most FWIW readers seemed to know about the Order as soon as it was issued. For FWIW readers, I thought the bigger story there might be how baffled the media seemed to be by the resultant (and brief) pause in the early voting process.

In the linked post, for the benefit of the increasing number of outsiders who come to this site as the Primary draws near, I explained that the Appellate Court would follow up the Order announcing Rice's electoral fate with an explanation of the reasons for its decision in due course.

Due course arrived last Friday. The Appellate Court's Rule 23 Order in Rice v. Cook County Officers Electoral Board, 2024 IL App (1st) 240230-U is linked in this sentence.

My initial take here is this: The court determined that whether the candidate's surname was Rice or Akiwowo was a question of fact. The hearing officer determined that the candidate's surname was Akiwowo in 2023, not Rice. The Electoral Board accepted this finding and the Appellate Court stated (¶21) that it could not find that this determination was against the manifest weight of the evidence. The standard of review (¶13) was outcome determinative here.

The court unanimously agreed that Rice's nominating papers were fatally defective under §7-10.2 of the Election Code, 10 ILCS 5/7-10.2. Justice Freddrenna Lyle filed a one-paragraph statement specially concurring in the result (¶37). She expressed concern that Rice did not engage in the sort of behavior that the Legislature was apparently concerned with, according to the legislative history of the 2007 amendment to §7-10.2. She expressed concern about the ways in which this statute is being used against female candidates, but she agreed that the factual determination of the candidate's actual surname in 2023 was not clearly erroneous and, for that reason, the result had to be affirmed.

Justice David R. Navarro, who wrote the Appellate Court's Rule 23 Order, suggested (¶32) that Rice might have had a way to successfully navigate between the Scylla and Charybdis of Oberholzer v. Cook County Electoral Board, 2020 IL App (1st) 200218-U, and Ruffin v. Feller, 2022 IL App (1st) 220692, that I wrote about in this post. The Order also invites legislative clarification of §7-10.2 (¶30) to make the statute less particularly hazardous for married (or divorcing) female candidates. I hope this may happen.

If any FWIW readers know of any such legislative attempts, send me an email, or leave a comment on this post.

*  *  *

Meanwhile... as an aside... Rice was issued as a Rule 23 Order. In reaching its decision in Rice, the Appellate Court necessarily adressed the Oberholtzer case, which was also issued as a Rule 23 Order.

Illinois Supreme Court Rule 23 provides a means by which our Appellate Court can dispose of cases "which do not qualify for disposition by opinion." We don't need 9,000,000 cases that all stand for the same proposition of well-settled law. Some cases would add only lint to the splendid tapestry of our common law. In other words, some cases really are routine and it made sense to have a means for disposing of these cases without unduly lengthening the shelves of the law library.

Published, precedential opinions are to be issued by our Appellate Court "only when," in the words of Rule 23(a), "a majority of the panel deciding the case determines that at least one of the following criteria is satisfied: (1) the decision establishes a new rule of law or modifies, explains or criticizes an existing rule of law; or (2) the decision resolves, creates, or avoids an apparent conflict of authority within the Appellate Court."

One might think that a case interpreting a newly-amended statute would qualify for publication. But both of the First District cases that interpret the name-change amendments to §7-10.2 of our Election Code, Oberholtzer and Rice, are unpublished.

The rule used to provide that Rule 23 Orders were not precedential and not to be cited, by any party for any purpose "except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case."

Effective January 1, 2021, however, the Supreme Court amended Rule 23(e)(1) by deleting the absolute prohibition against citing Rule 23 Orders except in the special circumstances listed above and adding this sentence:

However, a nonprecedential order entered under subpart (b) of this rule on or after January 1, 2021, may be cited for persuasive purposes.

For the non-lawyers in the audience: Every citation a lawyer offers is meant to be persuasive. But when a lawyer cites a published opinion, we may additionally argue that the cited case compels the result we seek in this one; we can argue that the court is constrained by our cited precedent to do as we urge. With a Rule 23, in theory, and only for Rule 23's issued after January 1, 2021, we are permitted only to argue that this wise disposition would be best followed in the case at bar. The court doesn't have to follow our cited Rule 23, we must concede, but we can still argue why, in our opinion, the court should follow it.

The Appellate Court in Rice discussed Oberholtzer extensively, as it really had to, Oberholtzer being the only available case addressing the name-change amendment to §7-10.2. But the Rule 23 in Oberholtzer was issued in February 2020 -- and is therefore supposedly not precedential, and not to be cited, even as persuasive authority, the 2021 amendment to Rule 23 notwithstanding.

Rule 23(f) allows any party to file a motion to publish -- to turn, in other words, any non-precedential order into a precedential, published opinion. I suppose it would be unwieldy to extend the privilege of seeking publication to non-parties as well as parties. But perhaps the Supreme Court, as part of its administrative function, could establish a method by which Rule 23 Orders like Oberholtzer and Rice, which address issues clearly not covered by published opinions, could be converted into published opinions. A prospective candidate seeking to understand the law concerning name changes should be left in doubt about how our courts have previously interpreted the statute in question.

(Stepping down from soapbox....)

Decision expected Monday in Gallagher and Murray case

Thursday's argument in Gallagher and Murray v. Cook County Officers Electoral Board drew a pretty large crowd to Judge Marcia O'Brien Conway's Daley Center Courtroom. Both sides suggested they could make their arguments in 10 minutes, and neither did, but the extra time was well spent, listening to three good attorneys making excellent arguments in the best traditions of civility and professionalism.

I do not mean to sound flip or frivolous. Obviously this is a matter of great importance, particularly to the candidates, both those that have been removed from the ballot, and their erstwhile opponents, who stand to lose their uncontested path to election if the Electoral Board is reversed in this case. Still, it was a pleasure to watch and listen to Ed Mullen, for Judges Gallagher and Murray, and Burt Odelson and Michael Kasper, for the objectors, as they made their respective cases.

The news here is that Judge Conway took the matter under advisement, indicating that she will make a ruling Monday. According to conversations I had with counsel and with knowledgeable observers, however Judge Conway rules, whoever she rules against will take the case to the Appellate Court. FWIW will report Judge Conway's decision as soon as possible.

Unsuprisingly, the parties' arguments were consistent with those made before the Electoral Board. This is as it must be, of course. In reporting here those items from Thursday's argument that caught my particular attention, I do not mean to suggest any deviation from the prior course laid out by either side or any undue or new emphasis placed on these items.

As would be expected, Mullen used the words 'substantial' or 'substantially' many times in laying out his case, noting that the word 'substantially' is even used in the very first sentence of §7-10 of the Election Code, 10 ILCS 5/7-10. Odelson agreed that the word is used there, but only to modify a petition form that has actully been long abandoned.

I could not possibly immerse myself in the cases to the degree that counsel in this case have; often enough, one or more of them was counsel in the cases cited. But, it seems to me that 'substantial compliance' here applies, or does not, regardless of where the word 'substantially' appears in the statute. The presence or absence of that word in the statute does not appear, in my reading to date, to have been dispositive in any of the many cases in which 'substantial compliance' with various provisions of the Election Code have been deemed sufficient. I believe Mullen made this point in his final rebuttal.

I suppose I should not have been surprised that the parties differ on the applicable standard of review. The candidates assert that review of the Electoral Board's decision should be de novo. The objectors, on the other hand, suggested that the issue here presents a mixed question of law and fact.

This potentially makes a huge difference: Citing Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.2d 200, 209-211 (2008), the Supreme Court in Corbin v. Schroeder, 2021 IL 127052, ¶32, explained, "Our standard of review of the Electoral Board’s decision depends on the question presented. Id. at 209-10. Where the appeal presents a question of fact, we will not overturn the Electoral Board’s decision unless it is against the manifest weight of the evidence. Id. at 210. Where the appeal presents a question of law, we proceed de novo. Id. And where the appeal concerns the Electoral Board’s determination on a mixed question of law and fact, that decision will not be disturbed unless it is clearly erroneous."

Here is an example of where framing may be dispositive. There are no disputed facts here. The circulator's oath says what it says. If that means the issue is one of statutory construction only, de novo review will apply. Hutchinson v. Illinois State Board of Elections, 2022 IL App (1st) 220678, ¶23 ("proper interpretation of a statute is a question of law that we review de novo").

On the other hand, as the Supreme Court stated in Beggs v. Board of Education of Murphysboro Community Unit School Dist. No. 186, 2016 IL 120236, ¶50, "A mixed question of fact and law examines the legal effect of a given set of facts. [Citation.] Put another way, a mixed question asks whether the facts satisfy the statutory standard or whether the rule of law as applied to the established facts is or is not violated." So, just because the facts are undipsuted, it does not necessarily mean that the question to be determined is solely a question of law.

The Supreme Court took another stab at explaining the distinction in Goodman v. Ward, 241 Ill.2d 398, 406 (2011): "Our court has held that where the historical facts are admitted or established, the controlling rule of law is undisputed and the issue is whether the facts satisfy the statutory standard, the case presents a mixed question of fact and law for which the standard of review is 'clearly erroneous.' Cinkus, 228 Ill.2d at 211. We have also held, however, that where the historical facts are admitted or established, but there is a dispute as to whether the governing legal provisions were interpreted correctly by the administrative body, the case presents a purely legal question for which our review is de novo. Hossfeld v. Illinois State Board of Elections, 238 Ill.2d at 423."

In Goodman, a case involving the residency of a judicial subcircuit candidate in Will County, the Supreme Court concluded that the de novo standard of review would apply. While there is older case law that says that, even under de novo review, "some 'deference' should be given 'to the interpretation given by the agency charged with the administration of the statute'," Rita v. Mayden 364 Ill.App.3d 913, 919 (2006) ("THE COACH" case), and while this idea has surfaced in more recent cases as well (e.g., Akin v. Smith, 2013 IL App (1st) 130441, ¶3)(Electoral Board's interpretation is entitled to "some deference, as it is the entity charged with interpreting the Electoral Code," citing Rita), Goodman suggests otherwise. In Goodman, the Supreme Court stated that the "de novo standard [is one] we have characterized as 'independent and not deferential'," (241 Ill.2d at 406) (internal quotation marks edited).

At Thursday's argument, Michael Kasper provided the court with some deep background about the General Assembly's adoption of the 4th, 2022-only circulator's oath language.

He explained that this was included in the legislation that became P.A. 102-0692 because the Illinois State Board of Elections Candidate's Guide had included a form petition in which date range language was used. This language was quickly added into the legislation to prevent disputes arising where candidates and their attorneys followed the ISBE petition format -- 'covering' the ISBE's error, as my notes of Kasper's argument reflect, although that is my understanding and summarization of what I got from his argument on this point, not in any way a direct quote.

I can't verify everything that Kasper said on the provenance of P.A. 102-0692. But we know that the first day for circulation of petitions in the 2022 election cycle was January 13. I can confirm that P.A. 102-0692 sprang to life full grown, as Senate Amendment 2 to HB 1953, on January 5, 2022. The legislative history shows that the 'amendment' was adopted by the Senate on January 5, and also by the House that same day, and signed into law by the Governor on January 7.

It is interesting stuff, certainly. But is it truly significant in this case?

The objectors insist that Gallagher and Murray were trying to update an abandoned 2022-only circulator's oath option for their 2024 petitions. But Gallagher and Murray say that is not what they were doing. Their position is that the date range set out in their circulator's oath substantially complied with the third option for such oaths under §7-10 -- and I think their case will stand or fall on whether the last and final court to hear their case agrees or disagrees with that position.

Substantive issues involved in the Gallagher and Murray appeal from the Electoral Board's decision removing them from the March primary ballot

Let's look at the decision to knock Judges Carolyn Gallagher and Leonard Murray off the ballot in their respective Appellate Court primaries.

It is short and to the point, much shorter, in fact, than the hearing officer's report. But, remember, the Electoral Board's decision is the one that counts, and it is now before the Circuit Court on judicial review (it will be up in court on January 25).

Any serious discussion of the Electoral Board's decision requires consideration of the relevant provisions of §7-10 of the Election Code, 10 ILCS 5/7-10. This lengthy statute, which specifies the form that nominating petitions must take in order to be valid, was twice amended in anticipation of the 2022 primary, first by P.A. 102-0015 (discussed more at this June 2021 FWIW post) and, later, by P.A. 102-0692.

The specific provisions of §7-10 that are relevant to this controversy are set out below. As it happens, none of the amendments to §7-10 provided by P.A. 102-0015 are included in these excerpted provisions; only those added by P.A. 102-0692 are relevant to this discussion. These are set out in red below:

At the bottom of each sheet of such petition shall be added a circulator statement signed by a person 18 years of age or older who is a citizen of the United States, stating the street address or rural route number, as the case may be, as well as the county, city, village or town, and state; and certifying that the signatures on that sheet of the petition were signed in his or her presence and certifying that the signatures are genuine; and either (1) indicating the dates on which that sheet was circulated, or (2) indicating the first and last dates on which the sheet was circulated, or (3) for elections where the petition circulation period is 90 days, certifying that none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition, or (4) for the 2022 general primary election only, certify that the signatures on the sheet were signed during the period of January 13, 2022 through March 14, 2022 or certify that the signatures on the sheet were signed during the period of January 13, 2022 through the date on which this Statement was sworn or affirmed to and certifying that to the best of his or her knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the political party for which a nomination is sought. Such statement shall be sworn to before some officer authorized to administer oaths in this State.

Obviously, Gallagher and Murray were not running in the 2022 primary. They were hoping to run in 2024. But, quoting the Electoral Board's decision, the circulator's certification language on their petitions stated "that the sheets 'were signed in my presence, during the period of September 5, 2023 through December 4, 2023'."

As it happens, it was exactly 90 days between September 5, 2023 and December 4, 2023. September 5 was the first date on which petitions could have been lawfully circulated; December 4 was the last day for filing petitions during the regular judicial filing period. (Gallagher's and Murrays petitions were in fact filed on November 27, the first day on which petitions could have been filed.)

But, obviously, the circulator's statements did not indicate the specific dates on which each sheet was circulated, nor did it indicate the first and last days on which each sheet was circulated.

Had the circulator's statement parroted the third option, saying only that "none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition," there would have been no grounds for objection. But, because the circulator's oath used specific dates instead of the exact language provided for in §7-10, the objectors claimed that the oath was fatally defective -- and the petitions invalid accordingly.

While the hearing officer rejected this argument, the Electoral Board (which, remember, was not bound to accept the hearing officer's view) found it persuasive:

The Illinois Supreme Court in the case of Jackson-Hicks v. East St. Louis Board of Election Commissioners, [2015 IL 118929] found that the provisions contained in section 7-10 of the Election Code are mandatory, and where the language of the statute is clear and unambiguous, strict compliance is required. The Objectors are correct that the language contained in the petition sheets is not specifically provided for in section 7-10, and that the legislature could have, but did not, extend the option of providing a range of dates of circulation that was allowed for the 2022 election cycle. The language on these petitions does not substantially comply with the statute.

In Jackson-Hicks, the mayor of East St. Louis was removed from the ballot because, after 48 invalid signatures were stricken from his nominating petitions, the mayor had no more than 123 valid signatures, fewer than the minimum 136 required for that race under the relevant statute (§10-3 of the Election Code). The mayor argued that, with 123 signatures, his petitions 'substantially complied' with the signature requirement. But the Supreme Court disagreed (2015 IL 118929, ¶23):

Generally speaking, requirements of the Illinois Election Code are mandatory, not directory (Purnell v. Municipal Officers Electoral Board, 275 Ill. App. 3d 1038, 1039 (1995); Kellogg v. Cook County Illinois Officers Electoral Board, 347 Ill. App. 3d 666, 670 (2004)). Consistent with the principles governing the mandatory-directory dichotomy, a candidate’s failure to comply with mandatory provisions of the Election Code governing nomination papers will therefore render the nomination papers invalid ( Powell v. East St. Louis Electoral Board, 337 Ill.App.3d 334, 338 (2003)), and require that the candidate’s name be removed from the ballot (Knobeloch v. Electoral Board, 337 Ill.App.3d 1137, 1141 (2003).

On the other hand, the Jackson-Hicks court recognized (2015 IL 118929, ¶36) that the Appellate Court has found, "in certain circumstances, substantial compliance can satisfy even a mandatory provision of the Election Code. See, e.g., Akin v. Smith, 2013 IL App (1st) 130441, ¶ 3 (missing language in notarial jurats on statements of candidacy did not warrant exclusion of candidates from ballot); Atkinson v. Roddy, 2013 IL App (2d) 130139 (objection to nominating papers properly rejected even though candidate filed statement of economic interest in wrong county); Samuelson v. Cook County Officers Electoral Board, 2012 IL App (1st) 120581 (single nonconforming page of petition did not result in disqualification of candidacy); Siegel v. Lake County Officers Electoral Board, 385 Ill.App.3d 452, 461 (2008) (good faith error in date listed by candidate in statement of candidacy and resolution to fill vacancy not sufficient to warrant removal of candidate from ballot)." However, the Supreme Court found that these cases (or other, similar cases, such as Zurek v. Cook County Officers Electoral Board, 2014 IL App (1st) 140446) were "of no relevance" in the case before it.

In the view of the Supreme Court, those Appellate Court cases involved situations where the "candidate met the basic requirements of the Election Code, but did so in a technically deficient manner." The case before it, however, involved "basic requirements" and the candidate's failure "to meet a threshold requirement completely" (2015 IL 118929, ¶37).

I therefore believe that the question to consider, in handicapping Gallagher's and Murray's chances on appeal in their case, is whether the courts will see their failure to chose one of the three options specified in the quoted language of §7-10 will be considered "basic" or just a 'technical deficiency.'

How does one try and figure that?

The cheap and easy, "bucks and clicks" way to do it would be to say that, since Gallagher and Murray are not the Party-endorsed candidates, the courts will see their misstep as basic... and fatal... and uphold the Electoral Board.

But such an approach denies the legitimacy of the objectors' arguments. And there is a solid, technical, statutory construction argument at issue here: For years, the Election Code has specified three, and only three, ways in which to phrase a circulator's oath. None of them involved specifying the range of dates during which petitions could be circulated, as the circulators of Gallagher's and Murray's petitions did here.

For the 2022 election cycle -- and only the 2022 election cycle -- the legislature did authorize a circulator's oath using the first-day-for-circulating, last-day-for-filing range that Gallagher and Murray used here.

Gallagher's and Murray's best argument (and this is my opinion only, and I don't have the benefit of the parties' briefs) is presumably that their date range language was substantially consistent with the third option always prescribed by the statute ("certifying that none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition"). They merely 'did the math.'

That is a serious, substantive argument, and it may well carry the day on appeal. But the likely rejoinder is serious and substantive, too: If the date range language was always consistent with the third option, the General Assembly would not have needed to add a temoporary date range option for the 2022 election cycle only. Judging by what I heard when the case was argued before the Election Board on January 10, the argument would probably go something like this: The legislature clearly thought that the date range option was inconsistent with the three options previously specified by §7-10 before the amendments for the 2022 primary. If this wasn't the case -- if the date range option wasn't inconsistent with the existing statutory language -- there would be no reason to add it as an option for 2022. So the language must have been insufficient before P.A. 102-0692 and the 2022 election cycle. And, inasmuch as the date range option was made sufficient only for the 2022 election cycle, it is again invalid in 2024.

This is really a question of statutory construction.

And, where that is the question, there are some pretty clear general rules that presumably apply: "The primary rule of statutory construction is to ascertain and give effect to the legislature’s intent. Bettis v. Marsaglia, 2014 IL 117050, ¶13. 'The most reliable indicator of legislative intent is the statutory language, given its plain and ordinary meaning.' 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶21." Bueker v. Madison County, 2016 IL 120024, ¶13. The best indication of legislative intent "is found in the statutory language, given its plain and ordinary meaning." Price v. Philip Morris, Inc., 2015 IL 117687, ¶30. Legislative intent should be sought primarily from the language used in the statute. Abrahamson v. Illinois Dept. of Professional Regulation, 153 Ill. 2d 76, 91 (1992). "Statutory construction begins with the plain meaning of the language employed, and ends there when the meaning is clear." People v. Porter, 156 Ill.2d 218, 222 (1993).

In Jackson-Hicks, the Supreme Court did not overrule or invalidate the many cases that applied principles of substantial compliance to Election Code cases. But it did say that, 'generally speaking,' the provisions of the Election Code are mandatory, not directory, and therefore it is possible that the courts interpreting Jackson-Hicks may be increasingly unlikely to forgive even small missteps under principles of 'substantial compliance.' The Supreme Court’s judicial construction of a statute becomes part of the statute itself. Hernandez v. Lifeline Ambulance, LLC, 2020 IL 124610, ¶38; see also, Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶19.

On the other hand, much as I am a sucker for a good, technical, down-and-dirty-in-the-text construction argument, and, indeed, much as I have raised such arguments many times in insurance policy construction and statutory construction cases in the course of my career, I have found that courts are not always receptive to the same.

On more than one occasion, I have seen my carefully-crafted consturction arguments swept aside with the court saying, in effect, that may be what the legislature said, but we know what the legislature really meant.... (I try to accept my lot cheerfully... but, in retirement, the practical effect of many such failed arguments over the years is the difference between clipping coupons from bonds and clipping coupons from the weekly shopper.)

But never mind any of that. The point is that there is ample precedent to support whatever outcome the courts reach in this case and I offer no prediction on the outcome.

In the final analysis, however, all may depend on whether the courts agree with the Electoral Board that allowing "careless and needless rewriting" in circulator's oaths will hamper the Electoral Board's work. Most lawyers have the luxury of time in pondering legal questions; deadlines can't always be extended, and never indefinitely, but they often can be, and frequently more than once.

It just doesn't work that way with elections. The calendar is inflexible. The law requires ballots to be ready by particular dates -- and, with the increased availability of vote-by-mail options, that date seems earlier in every election cycle. There isn't a lot of time for an Electoral Board to consider a lot of fine distinctions; insistence on strict compliance with the persnickety provisions of the Election Code may serve the status quo... and it unquestionably does... but it also provides the surest way for the Board to discharge its function in the limited time allotted. To those of us on the outside, the Electoral Board's statement that "allowing multiple variations in the circulator's affidavit could irreparably damage the integrity of the election process" may seem overheated, even hyperbolic. But we are not ordinarily under time constraints similar to those imposed on the election authorities.

In Jackson-Hicks, the Supreme Court seems to have considered the time pressures under which election authorities operate. Toward the end of the opinion, the Court imagines (2015 IL 118929, ¶40) what could happen were it to approve allowing approval of a nominating petition with fewer than the required number of signatures: "[T]here would be no way to insure consistency from one electoral jurisdiction to another, from one election to another, or even from one race to another. Local election officials could establish how many signatures are sufficient on a case-by-case basis according to a standard that is not only subjective and variable, but which lacks any obvious limits. Will 90% of the statutory minimum turn out to be enough? 75%? Less than that? Candidates will be left to speculate, and significant delay and uncertainty will inevitably result as objectors seek redress from the courts to review whether the signature cutoff was fairly and properly set by local election officials in particular cases."

The Jackson-Hicks court stated (2015 IL 118929, ¶41) "consideration of the consequences flowing from one interpretation of the law or another is not inappropriate speculation on an abstract or hypothetical proposition. Rather, it is an important factor under the analytical rubric established by this court for assessing whether a provision of the Election Code is mandatory or directory." So it is not impossible that a court may consider the concerns that the Electoral Board itself has raised about the potential consequences of having to assess the various forms of circulator oaths that may arise in the future if an oath is approved now that departs from those prescribed by statute. It certainly would not be improper were a court to do so.

On the other hand, a court may see a substantive difference between a prescribed minimum number of signatures on the one hand, and the use of a date range (that accurately 'does the math') on the other. So the outcome in this case will turn on statutory construction... and framing, too.

Has §7-10.2 of the Election Code become a Catch-22 for married women running for judge?

Updated 1/19/24 to add additional authorities

Looking more at the decision knocking Ashonta Rice off the Cook County judicial ballot....

When Mary Smith marries John Jones, she may become known as Mary Jones. At one time, perhaps as late as my parents' generation, this was almost universally the case. Since then... well, things have changed.

But not uniformly. Suppose Mary Smith had been practicing law for some years before marrying the aforementioned Mr. Jones. While, in every term of the Supreme Court, one can find examples of newly married women obtaining Orders changing their surnames on the Master Roll to conform with their newlywed status, our hypothetical Mary may be quite content to be known in the parish, or at her childrens' school, as Mary Jones, but insistent on remaining Mary Smith in her professional life.

Chances are, moreover, that there are still other settings in which Mary may use a combination of her married and maiden names, sometimes hyphenated, sometimes not. On certain bank accounts, perhaps, or on her voter's registration or driver's license. Maybe, just because they don't much like it, she makes her in-laws address her as Smith-Jones. There may be as many reasons for using all these variations on Mary's surname as there are settings in which her surname might be used -- but, in each case, it is still the same Mary.

I am certain that, if you consider your own circle of acquaintance, you will readily think of women, lawyers or not, who use their maiden names in some contexts, their married names in others, and/or hyphenated or merely adjacent names in still others. Welcome to the 21st Century.

Which brings us to §7-10.2 of the Election Code.

This section of the Code was amended in 2007 to require that:

If a candidate has changed his or her name, whether by a statutory or common law procedure in Illinois or any other jurisdiction, within 3 years before the last day for filing the petition or certificate for that office, whichever is applicable, then (i) the candidate's name on the petition or certificate must be followed by "formerly known as (list all prior names during the 3-year period) until name changed on (list date of each such name change)" and (ii) the petition or certificate must be accompanied by the candidate's affidavit stating the candidate's previous names during the period specified in (i) and the date or dates each of those names was changed....

Failure to make the required disclosure would, henceforth, be grounds for removal from the ballot.

The apparent impetus for the insertion of this second sentence into §7-10.2 was the decision of a Park Ridge lawyer of German heritage to change his name to a more ballot-friendly Irish moniker. He did not just swap surnames, he changed his first and middle names as well.

Unfortunately for this person's judicial ambitions, the press got hold of the story... and, knowing that the papers were ready to pounce, he never did file. (He did, however, change his name back to the one his parents gave him.) (As I recall, not all the press coverage was negative. An Irish paper, the Irish Times, I think, wrote a rather good-humored article, welcoming the new Irishman.)

Whatever.

That near-occasion of candidacy was the reason for the statutory amendment. Perhaps the amended statute has since deterred others from attempting similar ploys. But if the purpose of the amendment was to keep people from assuming a more-electable name and then seeking election, it has certainly failed at least once. The way a candidate can entirely evade the past-names-disclosure provision is to keep his or her head down, and his or her new name out of the media, for more than three years.

I thought I had discerned all the pitfalls of §7-10.2 when I wrote about it in 2013.

As is all too frequently the case, I was wrong.

Section 7-10.2 was successfully deployed in the 2020 election cycle to knock Caroline Patricia Jamieson off the ballot. Caroline Patricia Jamieson had previously sought election to the bench, in the 2018 Democratic primary, as Caroline Jamieson Golden. The candidate's last name was Jamieson at birth; she had acquired the surname Golden by marriage. She'd used Golden on the Master Roll of Attorneys. She had been elected to her local suburban school board as Caroline Golden. On the other hand, she certainly had not changed her name; she'd done nothing like the Park Ridge attorney who'd inspired the name change amendment to §7-10.2. Instead, she chose to resume using a name she'd put aside some years back. But it was not a new name.

I wrote about that case, which went all the way to the Appellate Court (see, Oberholtzer v. Cook County Officers Electoral Board, 2020 IL App (1st) 200218-U), in some detail in February 2020. But I think that case can be quickly summarized this way: The candidate wasn't ruled off the ballot because she'd failed to disclose a change of name (second sentence of §7-10.2) but, rather, because she'd not used her actual "surname" in contravention of the first sentence of §7-10.2: Unlike our hypothetical Mary Smith and/or Mary Jones and/or Mary Smith-Jones, this candidate had (in the opinion of the judges deciding her case) not used both her married name and given name interchangeably, depending on circumstance and situation, but had really only used her married name. (Except, of course, that the challenge to her nominating petitions was based on an alleged violation of the name change provision, the second sentence of §7-10.2... and aren't petition challenges supposed to be limited strictly to the grounds asserted?)

I thought the answer to that parenthetical question is (and should have been in that case) "yes": In McCaskill v. Mun. Officers Electoral Board for the City of Harvey, 2019 IL App (1st) 190190, ¶32, the Appellate Court said it would not "create an objection never raised in the objector's petition before the Board," citing Wiesner v. Brennan, 2016 IL App (2d) 160115, ¶17, for the proposition that "all objections to nominating papers must be contained within objector's petition; no new objections may be raised or considered thereafter").

But, regardless, this brings us back, finally, to where we started, with the new case knocking Ashonta Rice off the ballot.

As the linked decision shows, the objection to Rice's nominating papers was grounded in that second sentence of §7-10.2, arguing her papers were fatally defective because they did not disclose that Ashonta C. Rice was "formerly known as" Ashonta C. Rice-Akiwowo.

The objectors submitted documentary evidence showing that Rice had used the surname Rice-Akiwowo or sometimes just Akiwowo after her 2012 marriage. FWIW readers will recall that Rice had run for a 15th Subcircuit vacancy, in 2018, as Rice-Akiwowo.

According to the linked decision, Rice filed a dissolution of marriage action in 2022. And therein lies the dispositive datum, in the opinion of those that matter, although I see this as nothing more than a red herring: An interim order was entered in that case (which is apparently still pending) entitled "Agreed Name Change Order," the operative language of which, according to the hearing officer's report and recommendation was, "Petitioner/Counter-Respondent, Ashonta C. Akiwowo is hereby granted leave to resume the use of her maiden name of RICE." Expert testimony was presented to suggest that this kind of a name change order, though common as part of the final disposition of a dissolution action, was, at this stage of the case, merely an interlocutory order subject to change at any time. Therefore, the exception to the name-change rule in the second sentence of §7-10.2, which is also contained in that very lengthy second sentence, excepting name changes "resulting from... dissolution of marriage" would not apply.

The objectors, the hearing officer, and the Electoral Board all took this interim order as proof that the candidate knew she was changing her name... which is why the first part of that second sentence of §7-10.2 would be implicated.

The hearing officer specifically noted that, after the name change order was entered, Rice changed her driver's license to Ashonta Rice. She changed her voter registration to Ashonta Rice. She changed her name back to Ashonta Rice with the Social Security Administration, too.

Well, of course she did: After Oberholtzer, and after Ruffin v. Feller, 2022 IL App (1st) 220692, any careful female lawyer with judicial aspirations and without official backing would and should anticipate some sort of name-based petition challenge. (In Ruffin, a divorced candidate for the office of Cook County Sheriff was ruled off the ballot. She had been granted leave to resume use of her maiden name as part of the final dissolution orders, but never re-registered to vote in her maiden name from the former marital residence, which she continued to occupy. Therefore, the Electoral Board ruled, and the Appellate Court affirmed, that, at the time of the signing of her statement of candidacy, there was no registered voter at the address given by the name of "Latonya Ruffin.")

As noted at the outset here, most married women, including women who marry and then divorce, proceed through life known by different names to different persons, in different settings, for different purposes, without much difficulty or confusion. But somehow female political candidates in Cook County are treated differently, as if, in bearing the various names that society bestows, they are trying to deceive the public like a candidate who really does change his or her name from one thing to something completely different, so the public might think the candidate was someone he or she was not.

Rice may not have helped her cause.

According to the hearing officer's report, when asked about the provenance of the name change order, Rice claimed that she could not "recall" who suggested it.

Fine. Rice would not be the first attorney who turned out to be a less than stellar witness on her own behalf. I can think of one excellent attorney that I had to present twice, in different cases, who could not turn off the lawyer-analyzing-everything portion of her brain and just answer the questions posed. She was playing chess, when only checkers was required, and she came off as evasive or uncertain.

I did not see Ashonta Rice testify, of course, and I don't know if she had the problem my friend did. But, if she did, it is no shame. Lawyers are not generally called upon to be witnesses; it is not part of our required skill set. The ability to come across as a good witness is certainly not required to be a good judge.

On the other hand, a fact finder, whether judge, jury, or hearing officer, can only evaluate what they see and hear. And if the testimony comes off badly, the witness' credibility will be damaged, perhaps fatally.

What Rice could have said, or at least what I think the truth is generally in these cases, if for some reason not actually so in Rice's case, is that, thanks to §7-10.2, a married woman candidate is now forced to navigate between Oberholzer and Ruffin, a modern-day Scylla and Charybdis. Heads I win, tails you lose. Catch-22.

I would agree that the §7-10.2 exception for name changes obtained in dissolution actions should not have applied in Rice's case -- but only because the first part of the second sentence of §7-10.2, prohibiting candidates from changing their names, also did not apply.

It is clear that Rice used her married name, or some hyphenated combination of given and married names, in a number of contexts. She ran for judge in 2018 as Rice-Akiwowo.

But, professionally, and unlike the candidate in the Oberholtz case who sometimes used her maiden name as a middle name but never as her surname until her last judicial run, Rice apparently always practiced law as Ashonta C. Rice. That is certainly the name she used when she applied for associate judge in 2015, in 2017, and in 2021.

Moreover, she was Ashonta C. Rice when she was slated by the Cook County Democratic Party as its 10th alternate in 2019, and again in 2021, when the Party slated her as its fourth alternate. (To be clear, in this election cycle, had she been allowed on the ballot, she would have been running against the Party's slated candidate.)

Rice never abandoned the surname Rice. She never put it to one side. She did not have to change her name 'back' to what it always was.

But, of course, that's only my opinion. And, if you have paying any attention here at all, my opinion is not the one that counts.

When the drafters of the amendment to §7-10.2 came up with a provision to prevent future German guys from pretending to be Irish, I very much doubt that they also intended it to weaponized against married women whose varying surnames conform to our current social customs. I am virtually positive that, even if that was their intention, such an intention was not communicated to the female members of the General Assembly who approved the amendment. Pending further amendment, or clarifying court action, however, this is where matters now stand.

Staying out of Judges Jail: New Code of Judicial Conduct provisions that may be of assistance

Last Friday's article about a judge getting reassigned to Judges Jail, apparently on account of 'liking' someone else's Tweet, prompted a lot of attention and also some concern, among other judges, as to how and why the judge's online actions, whatever they were, may have potentially violated the Code of Judicial Conduct.

Although I have asked for more information from the Chief Judge's Office about the precise conduct that triggered the Executive Committee's action, I haven't received anything new. So I can not talk about that particular case at this time.

But I could, and did, reach out to an actual expert to follow up on the question of how judges generally can avoid getting into similar difficulties in future.

Jim Grogan is the former Chief Counsel of ARDC; he continues to teach ethics and professional responsibility at Loyola University Chicago Law School and, as most FWIW readers probably know, he remains a much-in-demand speaker on legal and judicial ethics at CLE presentations around the country.

While he's very entertaining in person, Grogan's rapid-fire delivery and seemingly inexhaustible fund of relevant anecdotes loses something when reduced to writing... especially when I'm doing the reducing. In our recent conversation, Grogan did try to speak more slowly and use smaller words so that I could follow along (we went to law school together, so he has long known how necessary this is), but what follows are more like slides for a Grogan presentation, with Ben Stein serving as a last-minute fill-in (Bueller? Bueller? Bueller?).

(And, yes, large swaths of text are excised from the following, and the deletions are not always specifically indicated. This is meant to get you to the most relevant language without getting bogged down along the way. Some things you really should be able to figure out from context....)

2023 ILLINOIS CODE OF JUDICIAL CONDUCT

Relevant Provisions Dealing with Social Media

Preamble & Scope

(4) The Code governs a judge's personal and judicial activities conducted in person, on paper, and by telephone or other electronic means. A violation of the Code may occur when a judge uses the Internet, including social networking sites, to post comments or other materials such as links to websites, articles, or comments authored by others, photographs, cartoons, jokes, or any other words or images that convey information or opinion. Violations may occur even if a judge's distribution of a communication is restricted to family and friends and is not accessible to the public. Judges must carefully monitor their social media accounts to ensure that no communication can be reasonably interpreted as suggesting a bias or prejudice; an ex parte communication; the misuse of judicial power or prestige; a violation of restrictions on charitable, financial, or political activities; a comment on a pending or impending case; a basis for disqualification; or an absence of judicial independence, impartiality, integrity, or competence.

*  *  *

RULE 1.3: AVOIDING MISUSE OF THE PRESTIGE OF JUDICIAL OFFICE

A judge shall not misuse the prestige of judicial office to advance the personal or economic interests* of the judge or others or allow others to do so.

COMMENTS

[1] It is improper to use or attempt to use the judge's position to gain personal advantage or deferential treatment of any kind. For example, it would be improper to allude to judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge must not use the judicial title in letterhead, e-mails, or any other form of communication, including social media or social networking platforms, to gain an advantage in conducting personal business.

*  *  *

RULE 2.1: GIVING PRECEDENCE TO THE DUTIES OF JUDICIAL OFFICE

The duties of judicial office, as prescribed by law*, shall take precedence over all of a judge's personal and extrajudicial activities.

COMMENTS

[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities, including their use of social media or participation on social networking platforms, to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

*  *  *

RULE 2.8: DECORUM, DEMEANOR, AND COMMUNICATION WITH JURORS

COMMENTS

[2] Commending or criticizing jurors for their verdict, including on social media or social networking platforms, may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case.

*  *  *

RULE 2.9: EX PARTE COMMUNICATIONS

COMMENTS

[3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, or other persons who are not participants in the proceeding and communications made or posted on social media or social networking platforms. A judge must make reasonable efforts to ensure that law clerks, court staff, court officials, and others under the judge's direction and control do not violate this Rule.

*  *  *

RULE 2.10: JUDICIAL STATEMENTS ON PENDING AND IMPENDING CASES

(A) A judge shall not make any public statement about a matter pending* or impending* in any court.

(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office. * * *

COMMENTS

[4] Judges who are active on social media or social networking platforms should understand how their comments in these forums might be considered "public" statements implicating this Rule. Judges should be aware of the nature and efficacy of privacy settings offered by social media or social networking platforms.

*  *  *

RULE 2.11: DISQUALIFICATION

COMMENTS

[7] A judge's use of social media or social networking platforms may create the appearance of a relationship between the judge and litigants or lawyers who may appear before the judge. Whether a relationship would cause the judge's impartiality to "reasonably be questioned" depends on the facts. While the labels used by the social media or social networking platform (e.g., "friend") are not dispositive of the nature of the relationship, judges should consider the manner in which the rules on disqualification have been applied in traditional contexts and the additional ways in which social media or social networking platforms may amplify any connection to the judge.

*  *  *

RULE 3.1: EXTRAJUDICIAL ACTIVITIES IN GENERAL

COMMENTS

[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge's official or judicial actions, are likely to appear to a reasonable person to call into question the judge's integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, gender identity, religion, national origin, ethnicity, pregnancy, disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge's extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.

*  *  *

RULE 3.7: PARTICIPATION IN EDUCATIONAL, RELIGIOUS, CHARITABLE, FRATERNAL, OR CIVIC ORGANIZATIONS AND ACTIVITIES

COMMENTS

[3A] A judge may not use social media or social networking platforms to promote the activities of educational, religious, charitable, fraternal, or civic organizations when the judge would be prohibited from doing so using another means of communication. For example, just as a judge may not write or telephone nonfamily members or judges over whom the judge has supervisory authority to encourage them to attend organizations' fundraising events, a judge may not promote those events via social media or social networking platforms.

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RULE 4.1: POLITICAL AND CAMPAIGN ACTIVITIES IN PUBLIC ELECTIONS

COMMENTs

[2A] Except as may be specifically authorized in the context of judicial election campaigns, Rule 4.1 prohibits judges and judicial candidates from "publicly" endorsing or making "speeches" on behalf of political candidates or organizations. Comments by judges active on social media or social networking platforms may be considered "public" for purposes of this Rule.

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Rule 3.1 was the one cited by the Cook County Circuit Court Executive Committee in its recent Order removing Judge Ahern. But, clearly, as Grogan's list demonstrates, there are other provisions that must be considered by a prudent jurist prior to posting anything. Anywhere.

I asked Grogan to summarize. Well, he said, a judge can express an opinion regarding Barbie or Oppenheimer. Pro or con. But a judge needs to refrain from commenting on the news of the day. A candidate for judge, even a sitting judge seeking a different judicial office, has a little more latitude to express opinions than a judge not coming before the voters. But, he said, while a judicial candidate might more freely express some kinds of opinions, because the Supreme Court says he or she has that right, a judicial candidate is nevertheless courting discipline if he or she misrepresents facts, such as, for example, his or her opponent's involvement, or degree of involvement in a particular case.

My mother was not a scholar of legal or judicial ethics. But she might have expressed things this way: If you have to think about whether posting something may run afoul of a rule, maybe you should think again about posting in the first place. Here, certainly, Grogan leads by example: He doesn't have a Facebook account. He doesn't have a Twitter (or 'X') handle. He's undoubtedly happier for it, too.

And for those who do practice regularly in our criminal courts...

The Supreme Court entered this Order yesterday, changing the effective date of a host of revisions to the Supreme Court Rules which would have gone into effect on January 1, 2023 but, now, pursuant to Rowe v. Raoul, 2023 IL 129248, will go into effect on September 18.

Why the "Weeping Angels" method of passing legislation works in Illinois -- and what may be done about it

I have here complained, futilely, from time to time, about the breathtaking speed with which significant leglislation zips through the Illinois Leglislature, in the closing hours of a legislative session, in the dead of night, free of all public scrutiny.

I have even offered a case study or two, illustrating the process. This one remains my favorite:

This was how SB 825 began its legislative life before massively mutating into PA 102-0015, a behemoth more than 440 pages long, which (among many other things) moved last year's primary from March to June. And, as laid out in my linked June 3, 2021 article, it almost all happened on May 31 of that year, as the legislative session was ending.

Indeed it seems that this is the only way the General Assembly actually passes major legislation these days.

I was reminded of that unhealthy reality when, earlier this month, I listened to the oral arguments before the Illinois Supreme Court in the SAFE-T Act case, Rowe v. Raoul, No. 129248 (you can find the parties' briefs and more on the Supreme Court's high profile cases page). One of the Appellees' attorneys made a snide, though passing, reference to the fact that the SAFE-T Act was also passed in the dead of night, in the dying moments of the legislative session. It was just a statement of fact, apparently not urged as a grounds for affirmance.

The legislative cognoscenti must chortle when they see well-meant, earnest articles like "How to Support or Oppose a Bill in Illinois," which appeared recently in a BGA newsletter, or the recent article in the Chicago Daily Law Bulletin about pending legislative deadlines. As if any of that stuff matters, they must chuckle, knowing there are any number of shell bills locked and loaded, ready for 100% "amendment" when the time comes.

So how do they get away with this? Why is it allowed?

The bitter and the cynical may see this as just another consequence of one-party rule.

But these late-night, last minute legislative lalapaloozas are entirely unnecessary if merely steamrolling The Other Side is the goal. That's what veto-proof majorities are for.

Nor should anyone think for a nanosecond that The Other Side would not take advantage of the same procedure if the situation were reveresed. If some member of The Other Side could be found, he or she might sputter furiously that they would never do such a thing. But don't be fooled: Using and abusing the levers of power wherever and whenever possible are among the last areas of true, bipartisan agreement. Tactics are only wrong or bad when THEY do it; when WE do it, it's just smart politics. See, e.g., gerrymandering.

It has been ever thus ever since the Optimates and the Populares battled, eventually quite literally, for control in the Roman Republic. There was some precedent, however shaky, in the mos maiorum, the tangled web of myth and history that served as Rome's unwritten constitution, for every office created or abolished, for every prosecution undertaken or thrwarted, and for every increasingly violent outrage perpetrated by The Other Side. Just as there was precedent for every even more violent response to said outrage. This is why the Founding Fathers immersed themselves in Roman history: They were seeking to put the American Republic on a firmer, safer, more lasting footing. More specifically, this is a primary reason why we have written constitutions in this country; it wasn't just the constitutional excesses of King George that animated the Founders, they were also thinking of those committed by Lucius Cornelius Sulla, Gaius Marius, and (of course) Marius' nephew, Julius Caesar. It's a shame we don't study that stuff anymore.

But we do still (allegedly) study constitutions.

And the place to start, when trying to understand why the Weeping Angels method of passing legislation is permitted, is Article IV, Section 8 of the 1970 Illinois Constitution. Section 8 provides:

 (a)  The enacting clause of the laws of this State shall be: "Be it enacted by the People of the State of Illinois, represented in the General Assembly."
 (b) The General Assembly shall enact laws only by bill. Bills may originate in either house, but may be amended or rejected by the other.
 (c) No bill shall become a law without the concurrence of a majority of the members elected to each house. Final passage of a bill shall be by record vote. In the Senate at the request of two members, and in the House at the request of five members, a record vote may be taken on any other occasion. A record vote is a vote by yeas and nays entered on the journal.
 (d) A bill shall be read by title on three different days in each house. A bill and each amendment thereto shall be reproduced and placed on the desk of each member before final passage.
   Bills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject. Appropriation bills shall be limited to the subject of appropriations.
    A bill expressly amending a law shall set forth completely the sections amended.
    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.

One might think that the first sentence of §8(d) would outlaw the Weeping Angels approach -- a wholly new, mutated bill, one that has gone, say, from a single page to more than 440 pages, could not be read, even by title, on three different days in each house, especially if the 100% amendment and final passage take place on the same day. But then the impact of the last sentence of §8(d) must be considered: "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." Even in cases of obvious disregard for the three-readings rule, once these worthies sign off, is all inquiry into constitutional infirmity foreclosed? Must Illinois indefinitely suffer the Weeping Angels method of passing legislation?

The answer given by the case law -- for now -- is most definitely "yes." But there may be hope for the future.

Let's address the settled law first.

In Benjamin v. Devon Bank, 68 Ill.2d 142 (1977), the Illinois Supreme Court considered the constitutionality of a provision tucked in an appropriations bill that would have prevented funds appropriated by the bill from being used "for the opening and staffing of an Unemployment Insurance, Employment Service or Work Incentive office if the office space or facility rented is located within 500 feet of a school in any city with a population over 1,000,000."

So... this was a provision designed to torpedo the opening of one particular office in one Chicago neighborhood, an office which the State had already leased shortly before the appopriations bill was thus amended. The North Town Community Council and a few of its members sued to enjoin the opening of the office, citing this provision. It was almost as if the whole thing was set up in advance....

The Circuit Court of Cook County held the appropriations act and "particularly" the anti-office-opening provision to be "valid and effective and issued the injunction." (68 Ill.2d at 148.)

On direct appeal, the Supreme Court reversed.

The Court's ultimate reason for reversal was that the office-torpedoing provision [§5.1] "purported to change the existing general substantive law, that it was therefore itself substantive in nature, and could not be included in the appropriation bill" (68 Ill.2d at 148). Section 5.1 was in direct conflict with this sentence of §8(d) of Article IV: "Appropriation bills shall be limited to the subject of appropriations."

But the published opinion represents the Supreme Court's second stab at a disposition. In its original opinion the Court "held that section 5.1 violated section 8(d) of article IV for the reason that it was a restriction on the location of facilities to be used by the Department of Labor and was not limited to the subject of appropriations" (68 Ill.2d at 144). After granting plaintiffs' petition for rehearing, the Supreme Court allowed "a majority of the party leadership of both houses of the General Assembly, the leadership on the appropriations committees, and other concerned members of both houses representing both major political parties" to appear as amici (68 Ill.2d at 144, emphasis mine).

The aggrieved legislators argued that "the 'certification' or 'enrolled bill' provision of article IV, section 8(d) [the last sentence of that provision, quoted above] precludes judicial inquiry concerning compliance with [all] the requirements enumerated in section 8(d)" (68 Ill.2d at 145).

To evaluate this contention, the Supreme Court reviewed the relevant proceedings of the 1970 Constitutional Convention (68 Ill.2d at 145-147). This is the key quotation (68 Ill.2d at 145):

Presently [under the 1870 Constitution] Illinois has the 'journal entry' rule as distinguished from an 'enrolled bill' rule. It is proposed that Illinois adopt the 'enrolled bill' rule.

The 'journal entry' rule means that a piece of legislation can be challenged in the courts by pointing to a defect in its passage as reflected in the journal. Under this rule, a statute [duly] passed by the General Assembly and signed by the Governor may be attacked in the courts, not necessarily on its merits, but on some procedural error or technicality found in the legislative process. The 'journal entry' rule, as a result, leads to complex litigation over procedures and technicalities.

The 'enrolled bill' rule would provide that when the presiding officers of the two houses sign a bill, their signatures become conclusive proof that all constitutional procedures have been properly followed. The 'enrolled bill' rule would not permit a challenge to a bill on procedural or technical grounds regarding the manner of passage if the bill showed on its face that it was properly passed. Signatures by the presiding officers would, of course, constitute proof that proper procedures were followed.

The bipartisan legislative amici argued that §8(d) should be read as five procedural requirements, so that the signatures of the House Speaker and Senate President were sufficient to preclude judicial inquiry on any of those topics.

The Benjamin court, however, noted that Con-Con's Committee on the Legislature did not consider all the requirements of §8(d) to be merely procedural. It quoted the committee's report on the "single subject" rule (68 Ill.2d at 147):

"Since the judicial branch may review challenges that the 'single subject' rule has been violated, both members of the General Assembly and the public retain sufficient protection from a provision in a bill which may be unrelated to the overall thrust of the bill." 6 Proceedings 1386.

The Benjamin court explained that the purpose of the "enrolled bill" rule "is to preclude impeachment of a bill 'certified' in accordance with section 8(d) by use of the Senate and House journals to show legislative noncompliance with constitutionally mandated procedural requirements. Examination of the journals is not necessary, however, to test the General Assembly's compliance with either the "single subject" or the "subject of appropriations" requirement of section 8(d), and we have reviewed statutes to determine legislative compliance with these requirements."

The Supreme Court returned to the "enrolled bill" rule in Polich v. Chicago School Finance Authority, 79 Ill.2d 188 (1980), a rare case which the court accepted as an original action pursuant to Supreme Court Rule 381.

Among the many constitutional defects urged by several objectors to the Legislature's creation of the Chicago School Finance Authority in P.A. 81-1221 was that it "could not, as required by article IV, section 8, of the Constitution, have been read 'on three different days in either house for the reason that it is obvious that it came into existence and 'traversed the whole legislative process in one day, January 11, 1980'" (79 Ill.2d 208-209).

Sound familiar?

The Supreme Court summarized the objectors' complaint on these grounds as follows (79 Ill.2d at 209):

House Bill 1264 [as] filed in March 1979 dealt solely with the retirement age of certain school personnel. It was at that time entitled "An Act to amend the School Code." It was read on three different days in the House, passed the House, and was sent to the Senate. In the Senate it received a first reading and was assigned to committee. On January 9, 1980, the bill was discharged from committee and given its second reading in the Senate. On January 11, 1980, everything but the title and the enacting clause was deleted from House Bill 1264 and the contents of what became Public Act 81-1221 were substituted. On that same date House Bill 1264 was given two readings in the Senate, passed the Senate, and was sent to the House, which passed it as received. Subsequently it was approved by the Governor. Petitioners argue that the foregoing procedure "is such a wilful and gross violation of article IV, section 8(d) that no categorization of these actions as being merely 'procedural' and as somehow absolved by the 'enrolled bill' rule seems adequate under the circumstances."

Quoting the Con-Con proceedings set out in the Benjamin case, the Polich court stated (79 Ill.2d 211-212), "This case is distinguishable from Benjamin in that the alleged defect argued by petitioners would require examination of the Journal, whereas in Benjamin, failure to comply with the constitutional provision was apparent from the face of the bill. The enrolled bill rule is clearly applicable here, and we hold the legislation was properly enacted."

The enrolled bill rule was reaffirmed in People v. Dunigan, 165 Ill.2d 235 (1995) (rejecting a three-readings rule challenge to an habitual criminal statute), and in Geja's Cafe v. Metropolitan Pier and Exposition Authority, 153 Ill.2d 239 (1992) (rejecting a challenge to an amendment to the Metropolitan Pier and Exposition Authority and a tax ordinance enacted by the Authority pursuant to that amendment).

But the Geja's Cafe court fired a warning shot across the Legislature's bow. While the court declined plaintiffs' "persuasive argument" urging the Court to "abandon the enrolled bill doctrine because history has proven that there is no other way to enforce the constitutionally mandated three-readings requirement," the Court also cautioned that, if "the General Assembly continues its poor record of policing itself, we reserve the right to revisit this issue on another day to decide the continued propriety of ignoring this constitutional violation" (153 Ill.2d at 260).

The Geja's Cafe court noted that the Framers of the 1970 Constitution did not anticipate that the Weeping Angels method of passing legislation would become dominant. In Geja's Cafe, the Supreme Court stated that the Framers "enacted the enrolled bill doctrine on the assumption that the General Assembly would police itself and judicial review would not be needed because violations of the constitutionally required procedures would be rare. '[W]e determined, in accordance with many other states that have adopted the enrolled bill rule and have found no difficulties, that * * * if they were to commit any fraud or chicanery, the legislature would certainly take care of them.' 4 Proceedings 2881." However, the Court stated, "it is apparent... that the General Assembly has shown remarkably poor self-discipline in policing itself. Indeed, both parties agree that ignoring the three readings requirement has become a procedural regularity." (153 Ill.2d at 260.)

Things have not improved in the subsequent 30 years, as the Supreme Court has, from time to time, noticed.

In Cutinello v. Whitley, 161 Ill.2d 409, 425 (1994), the Court refused to revisit the enrolled bill rule, although requested to do so, because "judicial review of legislative procedure would raise a substantial separation of powers concern." More recently, in Friends of Parks v. Chicago Park District, 203 Ill.2d 312, 786 N.E.2d 161, 171 (2003), the Court stated, "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. [Citations.] 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 (see Cutinello, 161 Ill.2d at 425, 204 Ill.Dec. 136, 641 N.E.2d 360), our responsibility to ensure obedience to the constitution remains an equally important concern."

In Doe v. LYFT, Inc., 2020 IL App (1st) 191328, the Appellate Court was asked to answer two certified questions, namely, "(1) whether section 25(e) [of the Transportation Network Providers Act] exempts ridesharing companies from the heightened duty of care and standard of vicarious liability that apply to common carriers and (2) if so, whether section 25(e) violates the Illinois Constitution's ban on special legislation (Ill. Const. 1970, art. IV, § 13) or whether the Act itself was passed in violation of the Illinois Constitution's three-readings rule (Ill. Const. 1970, art. IV, § 8 (d))" (2020 IL App (1st) 191328, ¶1).

This was anything but an academic inquiry: Plaintiff Doe alleged that she was sexually assaulted by a knife-brandishing Lyft driver who was supposed to be driving her home. But when she sued Lyft, the company moved to dismiss arguing that it had no vicarious liability for the driver's conduct. Doe countered that Lyft could be liable as a common carrier which owed its passengers a heightened and nondelegable duty of care. But Lyft, in reply, invoked §25(e) which "declares that transportation network companies (or TNCs) and their drivers 'are not common carriers, contract carriers or motor carriers, as defined by applicable State law, nor do they provide taxicab or for-hire vehicle service.'" (2020 IL App (1st) 191328, ¶¶3-8.)

Doe noted that the bill that ultimately became the Transportation Network Providers Act began life in the Illinois Senate as "an unrelated bill to amend the Illinois Public Accounting Act." In this guise, SB 2774 sailed through the Senate and thence to the House, where it was read twice. (2020 IL App (1st) 191328, ¶52.) The opinion does not state whether SB 2774 was shelved for any period of time following its second reading in the House or, if so, for how long, but it does say that, after its second reading in the House, SB 2774 was amended by removing everything after the enacting clause and substituting the text of what eventually became the Transportation Network Providers Act. The newly reconstituted SB 2774 was read once more before being passed by the House and then returned to the Senate where it was debated and passed the same day" (2020 IL App (1st) 191328, ¶52, emphasis mine).

The Doe court rejected the three-readings challenge to the constitutionality of §25(e), relying, as it was bound to do, on the enrolled bill rule (2020 IL App (1st) 191328, ¶¶53-55). The Appellate Court noted that the Supreme Court "has lamented the General Assembly's 'remarkably poor self-discipline in policing itself in regard to the three-readings requirement' [Citation] and has 'reserve[d] the right to revisit' the enrolled-bill doctrine if the legislature's noncompliance persists [Citation]. Whether that time has come is a question only the supreme court can answer" (2020 IL App (1st) 191328, ¶55). But, the Doe court noted, "Doe has appropriately preserved the issue" for Supreme Court review.

And, for a time, it seemed as if the Supreme Court might be poised to revisit the enrolled bill rule; it accepted a PLA in the Doe case (No. 126605). But the case was settled before the Supreme Court disposed of the appeal.

So the enrolled bill rule still protects Weeping Angels legislation.

But maybe not forever.

Weeping Angels legislation may provide a nifty way to pass bills without pesky scrutiny from the press or public. Maybe, in some cases, this method provides an expedient means to pass socially significant, progressive legislation that might otherwise stall in a contentious legislative process. But the repeated and flagrant violation of the Illinois constitution can only undermine public confidence in the legislature. And courts that continue to countenance these constitutional shenanigans risk a loss of public confidence as well.

Violation of the three readings requirement should be raised as an additional grounds, where applicable, when the validity of any statute is challenged. As for the rest of us, we should at least demand that our elected representatives adhere to the express requirements of the Illinois Constitution that each has sworn to uphold. That shouldn't be too much to ask, right?