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?
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