Caulkins v. Pritzker , 2023 IL 129453 ( 2023 )

2023 IL 129453IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 129453)
DAN CAULKINS et al., Appellees, v. JAY ROBERT PRITZKER, in His Official Capacity
as Governor of the State of Illinois, et al., Appellants.
Opinion filed August 11, 2023.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville and Cunningham concurred in the
judgment and opinion.
Justice Holder White dissented, with opinion, joined by Justice Overstreet.
Justice O’Brien dissented, with opinion.
OPINION
¶1 The Protect Illinois Communities Act (Act) restricts firearms and related items
that the Act defines as “an assault weapon, assault weapon attachment, .50 caliber
rifle, or .50 caliber cartridge” (collectively, assault weapons) (720 ILCS 5/24-1.9(b)
(West 2022)) and “large capacity ammunition feeding device[s],” commonly
known as large capacity magazines (LCMs) (id. § 24-1.10(b)). Certain restrictions
do not apply to (1) law enforcement agencies and individuals who complete
firearms training as part of their employment in law enforcement, corrections, the
military, and private security (trained professionals) (id. §§ 24-1.9(e), 24-1.10(e))
and (2) individuals who possessed assault weapons or LCMs before the restrictions
became effective (grandfathered individuals) (id. §§ 24-1.9(d), 24-1.10(d)).
¶2 The circuit court of Macon County entered declaratory judgment for plaintiffs
on two claims that the restrictions are facially unconstitutional because the
exemptions deny the “law-abiding public” equal protection (Ill. Const. 1970, art. I,
§ 2) and constitute special legislation (id. art. IV, § 13) under the Illinois
Constitution. Defendants appeal directly to this court. Ill. S. Ct. R. 302(a)(1) (eff.
Oct. 4, 2011).
¶3 Plaintiffs defend the judgment on equal protection and special legislation
grounds and allege for the first time that, regardless of the exemptions, the
restrictions violate the second amendment to the United States Constitution. U.S.
Const., amend. II. They further argue that Public Act 102-1116 (eff. Jan. 10, 2023),
which added sections 24-1.9 and 24-1.10 to the Criminal Code of 2012 (720 ILCS
5/1-1 et seq. (West 2022)), violates the three-readings requirement of the Illinois
Constitution and that the circuit court erred in ruling to the contrary. Ill. Const.
1970, art. IV, § 8(d).
¶4 First, we hold that the exemptions neither deny equal protection nor constitute
special legislation because plaintiffs have not sufficiently alleged that they are
similarly situated to and treated differently from the exempt classes. Second,
plaintiffs expressly waived in the circuit court any independent claim that the
restrictions impermissibly infringe the second amendment. Third, plaintiffs’ failure
to cross-appeal is a jurisdictional bar to renewing their three-readings claim.
Accordingly, we reverse the circuit court and enter judgment for defendants on the
equal protection and special legislation claims. We express no opinion on the
potential viability of plaintiffs’ waived claim concerning the second amendment.
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¶5 I. BACKGROUND
¶6 A. The Act
¶7 The Act amended the Criminal Code of 2012 to restrict access to assault
weapons and LCMs. Pub. Act 102-1116, § 25 (eff. Jan. 10, 2023) (adding 720 ILCS
5/24-1.9, 24-1.10). The Act, effective January 10, 2023, prohibits the purchase and
sale, manufacture, delivery, and import of firearms defined by the statute as “assault
weapons,” except sales to persons in other States or to those authorized to acquire
them under the Act’s enumerated exemptions for certain professionals. 720 ILCS
5/24-1.9(b) (West 2022). The Act also prohibits possession of assault weapons
beginning on January 1, 2024.
¶8 However, the Act contains two exemptions relevant here. A “grandfather”
provision permits persons who lawfully possessed assault weapons before January
10, 2023, to continue to possess them as long as they provide an endorsement
affidavit to the Illinois State Police by January 1, 2024. Id. § 24-1.9(c), (d). Those
who inherit a lawfully owned assault weapon may retain it upon providing an
endorsement affidavit. Id. § 24-1.9(d)(2)(ii). An endorsement affidavit, which is
executed electronically as a form through a Firearm Owner’s Identification (FOID)
card account (430 ILCS 65/4.1 (West 2022)), identifies the weapon and affirms that
the individual owned it before January 10, 2023. 720 ILCS 5/24-1.9(d) (West
2022).
¶9 The Act also restricts the manufacture, delivery, sale, and purchase of LCMs,
except the restriction on possession took effect on April 10, 2023, and the Act does
not require endorsement affidavits for LCMs. Id. § 24-1.10(b)-(d).
¶ 10 In addition to the “grandfather” provision, the Act exempts seven enumerated
classes from the restrictions on possession and purchase. Four of the exemptions
apply to law enforcement agencies, peace officers, corrections officials, and active
and retired law enforcement officers qualified under the federal Law Enforcement
Officers Safety Act of 2004 (18 U.S.C. §§ 926B, 926C (2018)), as recognized under
Illinois law. Those included in this law-enforcement exemption are required by law
to receive firearms training and qualifications. 720 ILCS 5/24-1.9(e)(1)-(4), 24-
1.10(e)(1)-(4) (West 2020).
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¶ 11 Three other exemptions apply to members of the armed services, the reserve
forces, and the Illinois National Guard; licensed private security guards; and guards
at nuclear facilities, all of whom also receive firearms training by virtue of their
employment. The Act permits them to possess assault weapons and LCMs, but only
to the extent required by their official duties. Id. §§ 24-1.9(e)(5)-(7), 24-1.10(e)(5)-
(7).
¶ 12 B. The Complaint
¶ 13 Plaintiffs are a business, two separately named individuals, and a voluntary
unincorporated association, consisting of hundreds of individuals and businesses.
All plaintiffs allege they “possess or otherwise desire to deliver, sell, import, or
purchase” assault weapons as defined by section 24-1.9(a) “and/or manufacture,
deliver, sell, or purchase” LCMs as defined by section 24-1.10(a).
¶ 14 Plaintiff Decatur Jewelry is a licensed pawn broker engaged in intrastate and
interstate commerce involving “the sale, possession, and transfer of firearms.”
Decatur Jewelry, which as a pawn broker holds certain assault weapons as security,
alleges sections 24-1.9 and 24-1.10 criminalize the return of those weapons to their
rightful owners.
¶ 15 Dan Caulkins and Perry Lewin are residents and citizens of Illinois who also
“possess or otherwise desire to deliver, sell, import, or purchase” assault weapons
“and/or manufacture, deliver, sell or purchase” LCMs.
¶ 16 Law-Abiding Gun Owners of Macon County is an association of “similarly
interested members associated for the purpose of protecting the Second
Amendment and Property rights of law-abiding gun owners.” Members must
possess a valid FOID card.
¶ 17 The complaint alleged six counts seeking declaratory and injunctive relief, and
the parties filed opposing motions for summary judgment. Plaintiffs moved for
summary judgment only on counts IV and V, which alleged violations of the Illinois
Constitution’s equal protection and special legislation clauses.
¶ 18 Count IV, the equal protection claim, alleged the trained professionals are
“seemingly a protected class based upon their occupations” and “are wholly exempt
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based on their employment status.” The claim alleged that “[c]reating an exempt
status for those persons is not only irrational and completely lacking anything
approaching common sense, there are no set of facts wherein it can survive a
constitutional attack based upon equal protection regardless of the standard of
review.” Count IV alleged, “At issue is the infringement of a right to bear arms as
guaranteed by the Illinois Constitution” such that the restrictions “are indisputably
in violation of the Plaintiffs [sic] equal rights to be treated the same as their fellow
citizens who are similarly situated in regard to their individual and fundamental
constitutional rights to bear arms for self-defense.” Count IV sought a judgment
declaring sections 24-1.9(a) and 24-1.10(a) unconstitutional under the equal
protection clause.
¶ 19 Count V, the special legislation claim, alleged “the 2nd Amendment protects
the additional right to commercial and non-commercial sale of arms,” while
sections 24-1.9 and 24-1.10 “create an economic franchise for those excepted from
its criminal provisions to engage commerce, commercial and non-commercial, in
gun sales on a broader basis not available to all who own ‘assault weapons’ or desire
to purchase, gift, receive or sell ‘assault weapons.’ ” Count V sought a judgment
declaring sections 24-1.9 and 24-1.10 unconstitutional for creating special
classifications according to the excepted class, which enjoys “an economic
franchise” in violation of the special legislation clause.
¶ 20 To the extent the complaint made isolated references to the right to keep and
bear arms under either the second amendment or article I, section 22, of the Illinois
Constitution, it was to claim that plaintiffs, as members of the law-abiding public
with valid FOID cards, are similarly situated to the exempt classes for equal
protection and special legislation purposes. Neither count IV nor count V alleged
the restrictions violate the second amendment.
¶ 21 C. The Judgment
¶ 22 The circuit court determined that Accuracy Firearms, LLC v. Pritzker, 2023 IL
App (5th) 230035, ¶ 65, which had upheld a temporary restraining order on an equal
protection challenge to sections 24-1.9 and 24-1.10, entitled plaintiffs to summary
judgment on their equal protection and special legislation claims. The circuit court
ruled that the rights to bear arms under the state and federal constitutions are
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fundamental rights; therefore, the challenged legislation was subject to strict
scrutiny, which the legislation did not satisfy.
¶ 23 The circuit court did not consider whether plaintiffs were similarly situated to,
but treated differently from, the exempt classes. Instead, the circuit court ruled the
restrictions (1) denied plaintiffs equal protection by infringing on their gun rights
(count IV) and (2) constituted special legislation by conferring an arbitrary right
upon those eligible for the exception while excluding plaintiffs (count V). The court
entered judgment for defendants on the remaining counts, including plaintiffs’
claim that the Act violates the three readings clause of the Illinois Constitution. Ill.
Const. 1970, art. IV, § 8(d).
¶ 24 Defendants filed a notice of direct appeal under Illinois Supreme Court Rule
302(a)(1) (eff. Oct. 4, 2011). We granted the state’s attorneys of 33 counties leave
to submit a brief amici curiae in support of plaintiffs, pursuant to Illinois Supreme
Court Rule 345 (eff. Sept. 20, 2010).
¶ 25 II. ANALYSIS
¶ 26 A. Standard of Review
¶ 27 This appeal arises from plaintiffs’ summary judgment motion for declaratory
relief on the equal protection and special legislation claims. 735 ILCS 5/2-701(a)
(West 2022).
“[S]ummary judgment should be granted only where the pleadings, depositions,
admissions and affidavits on file, when viewed in the light most favorable to
the nonmoving party, show that there is no genuine issue as to any material fact
and that the moving party is clearly entitled to judgment as a matter of law.”
Pielet v. Pielet, 2012 IL 112064, ¶ 29.
See 735 ILCS 5/2-1005 (West 2022). We review a summary judgment de novo.
Pielet, 2012 IL 112064, ¶ 30.
¶ 28 We also review a constitutional challenge to a statute de novo because it
presents a question of law. People v. Masterson, 2011 IL 110072, ¶ 23. Legislative
enactments have a strong presumption of constitutionality, and this court must
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uphold the constitutionality of a statute when reasonably possible. Id. Plaintiffs,
who are on the side challenging the constitutionality of sections 24-1.9 and 24-1.10
of the Act, bear the burden to prove the statutes’ invalidity. Id.¶ 29 Plaintiffs mount a facial challenge, which is the most difficult type of
constitutional challenge. An enactment is invalid on its face only if no set of
circumstances exists under which it would be valid. People v. One 1998 GMC, 2011
IL 110236, ¶ 20. A facial challenge requires a showing that the statute is
unconstitutional under any set of facts; the specific facts related to the challenging
party are irrelevant. People v. Garvin, 219 Ill. 2d 104, 117 (2006).
¶ 30 B. The Second Amendment
¶ 31 As a preliminary matter, we address plaintiffs’ argument that, regardless of how
the exemptions implicate equal protection and special legislation, the restrictions
themselves violate the right to keep and bear arms under the second amendment to
the United States Constitution (U.S. Const., amend. II). Notably, plaintiffs do not
assert the restrictions violate the corresponding right to arms set forth in article I,
section 22, of the Illinois Constitution (Ill. Const. 1970, art. I, § 22). Plaintiffs’
references to the Illinois right to arms are isolated and made only in opposition to
subjecting the classifications to rational-basis scrutiny in the equal protection
context. Plaintiffs contend in their brief that the second amendment—not article I,
section 22—provides an independent basis for affirming the judgment.
¶ 32 Plaintiffs frame the second amendment as a threshold issue, asserting that, if
the right to keep and bear arms does not tolerate the restrictions, the court need not
decide whether the exemptions deny equal protection or constitute special
legislation. Citing the principle that a reviewing court may sustain the decision of
the circuit court on any grounds called for by the record (Landmarks Preservation
Council of Illinois v. City of Chicago, 125 Ill. 2d 164, 174 (1988)), plaintiffs ask
this court to affirm the summary judgment because defendants did not demonstrate
that the restrictions are consistent with the historical tradition of firearm regulation.
¶ 33 The second amendment states, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const., amend. II. “At its core, the second amendment protects the
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right of law-abiding citizens to keep and bear arms for self-defense in the home.”
Guns Save Life, Inc. v. Ali, 2021 IL 126014, ¶ 28 (citing District of Columbia v.
Heller, 554 U.S. 570, 635 (2008)). The United States Supreme Court has stated, “it
is clear that the Framers and ratifiers of the Fourteenth Amendment counted the
right to keep and bear arms among those fundamental rights necessary to our system
of ordered liberty.” McDonald v. City of Chicago, 561 U.S. 742, 778 (2010);
Johnson v. Department of State Police, 2020 IL 124213, ¶ 37.
¶ 34 Unlike equal protection, the second amendment does not concern the end that
the government seeks to achieve and whether the means of doing so is an
appropriate fit. See N.Y. State Rifle & Pistol Ass’n v. Bruen, 507 U.S. ___, ___, 142
S. Ct. 2111, 2127 (2022). Instead, second amendment claims involve a fact-
intensive inquiry asking (1) whether a plaintiff has shown that the regulated items
fall in the category of “bearable arms” (id. at ___, 142 S. Ct. at 2132) that are
“commonly used” for self-defense today (id. at ___, 142 S. Ct. at 2138) and, if so,
(2) whether the restrictions are consistent with “this Nation’s historical tradition of
firearm regulation” (id. at ___, 142 S. Ct. at 2126).
¶ 35 For two reasons, these issues were never raised or considered below. First,
plaintiffs omitted a second amendment claim from the complaint and expressly
disclaimed it in their pleadings. Second, equal protection and second amendment
challenges are analyzed under different standards.
¶ 36 A summary judgment motion is confined to the issues raised in the complaint,
and a plaintiff may not raise new issues not pleaded in his complaint to support or
defeat a motion for summary judgment. 800 South Wells Commercial LLC v.
Cadden, 2018 IL App (1st) 162882, ¶ 43; Filliung v. Adams, 387 Ill. App. 3d 40,
51-52 (2008) (the purpose of a complaint is to define the claims in controversy, and
if a party does not seek to amend his complaint, he cannot raise new claims in a
summary judgment motion); Steadfast Insurance Co. v. Caremark Rx, Inc., 373 Ill.
App. 3d 895, 900 (2007) (“A party cannot seek summary judgment on a theory that
was never pled in the complaint.”).
¶ 37 The complaint did not allege the restrictions violate the second amendment to
the United States Constitution, and none of the six counts were labeled that way.
Counts I and II sought a declaratory judgment that the Act violates the Illinois
Constitution’s single-subject rule and three-readings requirement, respectively. Ill.
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Const. 1970, art. IV, § 8(d). Count III sought a declaratory judgment that the
legislature’s noncompliance with these rules denied plaintiffs due process. Id. art.
I, § 2. Count VI alleged Decatur Jewelry had suffered a due process violation and
a regulatory taking. And the complaint generally requested an injunction to enjoin
enforcement of sections 24-1.9 and 24-1.10. Plaintiffs did not move for summary
judgment on any of these claims, and none can be liberally construed as alleging a
violation of the second amendment. Bryson v. News America Publications, Inc.,
174 Ill. 2d 77, 110 (1996) (“A complaint must be liberally construed, to the end that
controversies may be quickly and finally determined according to the substantive
rights of the parties.”); 735 ILCS 5/1-106 (West 2022).
¶ 38 The complaint mentioned the second amendment and article I, section 22, only
in passing. Count IV cited article I, section 22, as it pertains to equal protection,
and count V cited the second amendment as it pertains to special legislation. Both
counts alleged the exemptions are subject to strict scrutiny because they impact a
fundamental right. But invoking the right to keep and bear arms in the context of
scrutinizing the Act’s classifications is not the same as alleging the restrictions
violate the second amendment. Plaintiffs directed counts IV and V at the
exemptions, not the restrictions themselves.
¶ 39 Furthermore, plaintiffs repeatedly disclaimed any second amendment violation.
First, they explained in their memorandum for injunctive relief that “[t]his current
litigation is not testing the contours of [weapons’] classification, per se—that
debate is engaged in federal court—and a more fact intensive dispute regarding
historical understandings of the Second Amendment.” (Emphasis added.)
¶ 40 Second, plaintiffs’ summary judgment motion invoked the second amendment
only to demonstrate they were similarly situated to the exempted classes for equal
protection purposes. Acknowledging the difference between the equal protection
clause and the second amendment, plaintiffs asserted “The question presented is
not whether a weapon classification survives constitutional challenge. Rather, the
question presented is whether citizens qualified to acquire and possess firearms and
firearm ammunition can be treated differently in the application of the weapon
classification.” (Emphasis added.)
¶ 41 Plaintiffs made clear below that this dispute concerns equal protection and
special legislation, but plaintiffs now attempt to piggyback a second amendment
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claim onto those allegations to circumvent the fact-intensive Bruen analysis. The
theory under which a case is tried in the circuit court cannot be changed on review,
and an issue not presented to or considered by the circuit court cannot be raised for
the first time on review. In re Marriage of Schneider, 214 Ill. 2d 152, 172 (2005).
Allowing a party to change his theory of the case on review would weaken the
adversarial process and the system of appellate jurisdiction and could also prejudice
the opposing party, who did not have an opportunity to respond to that theory in the
circuit court. Id.¶ 42 The record demonstrates plaintiffs omitted a stand-alone second amendment
claim from the complaint and expressly disclaimed it in the circuit court, resulting
in waiver. Allowing plaintiffs to argue a novel theory that was neither pleaded nor
argued below would prejudice defendants and amount to improper advocacy on
plaintiffs’ behalf. Plaintiffs chose not to present their case to the circuit court in
second amendment terms, and we hold them to their decision. Plaintiffs are
procedurally barred from challenging the weapon classification as violating the
second amendment.
¶ 43 Moreover, even if we accepted plaintiffs’ distorted view of the complaint or
excused their unambiguous waiver, genuine questions of material fact would
preclude summary judgment on a second amendment claim. Ascertaining whether
the restrictions unconstitutionally infringe on the public’s right to keep and bear
arms requires consideration of whether the regulated items are bearable arms that
are commonly used for self-defense and whether the regulations are consistent with
this nation’s historical traditions. Unsurprisingly, the record contains no
evidence—beyond news articles—relevant to these questions because plaintiffs
never raised them in the circuit court. Even if the complaint alleged a second
amendment claim, the record does not support affirming the judgment on that basis.
As plaintiffs expressly disclaimed a second amendment claim below, we offer no
opinion on the potential viability of such a claim.
¶ 44 C. Equal Protection and Special Legislation
¶ 45 This appeal concerns plaintiffs’ assertion that the exemptions in sections 24-1.9
and 24-1.10 deny them equal protection. Article I, section 2, of the Illinois
Constitution states that “[n]o person shall be deprived of life, liberty or property
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without due process of law nor be denied the equal protection of the laws.” Ill.
Const. 1970, art. I, § 2.
¶ 46 The equal protection clause guarantees that similarly situated individuals will
be treated in a similar manner, unless the government can demonstrate an
appropriate reason to treat those individuals differently. In re M.A., 2015 IL
118049, ¶ 24. The equal protection clause does not forbid the legislature from
drawing distinctions in legislation among different categories of people as long as
the legislature does not draw those distinctions based on criteria wholly unrelated
to the legislation’s purpose. Id. The analysis applied to equal protection claims is
the same under both the United States and Illinois Constitutions. Jacobson v.
Department of Public Aid, 171 Ill. 2d 314, 322 (1996).
¶ 47 The threshold question in the equal protection analysis is whether the claimant
is “similarly situated” to the comparison group. “ ‘Evidence of different treatment
of unlike groups does not support an equal protection claim.’ ” M.A., 2015 IL
118049, ¶ 25 (quoting In re Derrico G., 2014 IL 114463, ¶ 92). Two classes are
similarly situated only when they are alike in all relevant respects. Id. ¶¶ 25, 33;
In re Destiny P., 2017 IL 120796, ¶ 15.
¶ 48 The determination of whether two classes are similarly situated is not made in
the abstract. Rather, the court must consider the purpose of the particular
legislation. M.A., 2015 IL 118049, ¶¶ 26, 29. Assessing similarity
“is not a contextless comparison of the classes within the broader group. To
meaningfully assess whether a claimant is similarly situated to all others in all
relevant respects, we examine the positions of the claimant and all others in
light of the broad purpose and operation of the statute. Whether a claimant is
‘similarly situated’ to other persons cannot be decided based solely on the very
classification challenged as violating equal protection. Stated another way, a
classification does not pass equal protection muster simply because the
Legislature created two classes. To do so would beg the question and render the
equal protection principle meaningless.” Fletcher Properties, Inc. v. City of
Minneapolis, 947 N.W.2d 1, 22 (Minn. 2020).
¶ 49 The special legislation clause supplements the equal protection clause, and in
many cases, the two clauses provide the same protection. In re Estate of Jolliff, 199
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Ill. 2d 510, 519 (2002). The legislature enjoys broad discretion in making statutory
classifications, but the special legislation clause prohibits the legislature from
conferring a benefit or privilege upon one group while excluding other similarly
situated groups. Id. The special legislation clause is intended to prevent legislative
classifications without a sound and reasonable basis from discriminating in favor
of a select group. Id. Plaintiffs concede the equal protection analysis in this action
also applies to their special legislation challenge, as a special legislation challenge
is generally judged under the same standards that apply to an equal protection
challenge. Moline School District No. 40 Board of Education v. Quinn, 2016 IL
119704, ¶ 24.
¶ 50 1. Legislative Purpose
¶ 51 To assess whether plaintiffs are similarly situated to but treated differently from
the exempt groups, we examine the relative positions of the two classes in light of
the broad purpose and operation of the statute. The Act does not state a legislative
purpose motivating the restrictions and exemptions in section 24-1.9 and 24-1.10.
Defendants infer from the statutory scheme that the Act is intended to reduce the
number of assault weapons and LCMs in circulation because they are often used by
perpetrators of mass shootings.
¶ 52 Plaintiffs respond that inferring a legislative purpose where none is expressed
amounts to improper speculation. They rely on Accuracy Firearms, which held the
legislature’s failure to articulate an express legislative purpose for the Act obviated
the requirement for the equal-protection claimants to allege they were similarly
situated to the exempt groups. Accuracy Firearms, 2023 IL App (5th) 230035, ¶ 61.
The majority held,
“Here, it is extremely relevant that no purpose of the legislation and no basis
for the classifications was provided at the time plaintiffs’ pleadings were filed.
As such, any allegation regarding similarity would be speculative, at best. ***
As the basis for the exempted classification was unavailable, it is undeniable
that a specific allegation as to how any plaintiff might be similarly situated to
one of the exempted classes would be pure conjecture, beyond the fact that each
plaintiff and all those now in an exempted class were similarly situated, and
indeed possessed the same rights, prior to January 23, 2023.” Id.- 12 -
¶ 53 The Accuracy Firearms court was misguided in dispensing with the threshold
question of whether the equal-protection claimants were similarly situated to the
exempt groups. It is axiomatic that an equal-protection claimant must show he is
similarly situated to the comparison group, and assessing the similarity requires an
analysis of the legislation’s purpose. Masterson, 2011 IL 110072, ¶ 25. Sometimes,
the legislative purpose is unclear, but that does not excuse the claimant from
showing similarity. Justice Powell once observed in the equal protection context
that “a legislative body rarely acts with a single mind” and “compromises blur
purpose.” Schweiker v. Wilson, 450 U.S. 221, 244 n.6 (1981) (Powell, J., dissenting,
joined by Brennan, Marshall, and Stevens, JJ.). “Therefore, it is appropriate to
accord some deference to the executive’s view of legislative intent, as similarly we
accord deference to the consistent construction of a statute by the administrative
agency charged with its enforcement.” Id. “Ascertainment of actual purpose to the
extent feasible, however, remains an essential step in equal protection.” Id.¶ 54 When assessing a claimant’s similarity to the comparator class, a court may
glean legislative purpose from the statutory scheme and the classifications
themselves. See Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975) (an
examination of the legislative scheme and its history may demonstrate that the
purpose asserted by the government could not have been a goal of the legislation).
¶ 55 Here, the trained professionals comprise seven enumerated categories of
individuals who are exempt from the purchase and possession restrictions based on
their employment status and training. Four of the exemptions apply to law
enforcement agencies, peace officers, corrections officials, and certain current and
retired law enforcement officers. Those who qualify are required by law to receive
firearms training and qualifications. 720 ILCS 5/24-1.9(e)(1)-(4), 24-1.10(e)(1)-(4)
(West 2022).
¶ 56 Specifically, the restrictions on the purchase or possession of assault weapons
and LCMs do not apply to “ ‘Peace officers’ ” (id. §§ 24-1.9(e)(1), 24-1.10(e)(1)),
who are defined as
“(i) any person who by virtue of his office or public employment is vested by
law with a duty to maintain public order or to make arrests for offenses, whether
that duty extends to all offenses or is limited to specific offenses, or (ii) any
person who, by statute, is granted and authorized to exercise powers similar to
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those conferred upon any peace officer employed by a law enforcement agency
of this State” (id. § 2-13).
¶ 57 The exemption also applies to “Qualified law enforcement officers and
qualified retired law enforcement officers,” defined under the federal Law
Enforcement Officers Safety Act of 2004 (18 U.S.C. §§ 926B, 926C (2018)), as
recognized under Illinois law, as employees of a governmental agency who are (or
were) authorized by law to engage in or supervise the prevention, detection,
investigation, or prosecution of, or the incarceration of any person for, any violation
of law and has statutory powers of arrest or apprehension under section 807(b) of
Title 10 of the United States Code (article 7(b) of the Uniform Code of Military
Justice) (10 U.S.C. § 807(b) (2018)). 720 ILCS 5/24-1.9(e)(2), 24-1.10(e)(2) (West
2022). Qualified law enforcement officers must be authorized by the agency to
carry a firearm, must not be the subject of any disciplinary action that could result
in suspension or loss of police powers, must meet agency standards that require the
employee to regularly qualify in the use of a firearm, must not be under the
influence of alcohol or another intoxicating or hallucinatory drug or substance, and
must not be prohibited by federal law from receiving a firearm. 18 U.S.C. § 926B
(2018). Qualified retired law enforcement officers, though no longer authorized to
engage in law enforcement, must have met these requirements before their
separation from service, and they are further defined in part as having 10 years’
aggregate service and continuing to maintain, at their expense, training on the
standards for qualification in firearms for active law enforcement officers. Id.
§ 926C.
¶ 58 The exemption similarly allows acquisition and possession of restricted items
by federal, state, or local law enforcement agencies for the purpose of equipping
peace officers, qualified law enforcement officers, and qualified retired law
enforcement officers. 720 ILCS 5/24-1.9(e)(3), 24-1.10(e)(3) (West 2022). Finally,
the exemption applies to wardens, superintendents, and keepers of prisons,
penitentiaries, and jails. Id. §§ 24-1.9(e)(4), 24-1.10(e)(4).
¶ 59 Three other exempt classes include members of the armed services, reserve
forces of the United States, or the Illinois National Guard; licensed private security
guards and their employers; and guards at nuclear facilities, who all receive
firearms training by virtue of their employment. Id. §§ 24-1.9(e)(5)-(7), 24-
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1.10(e)(5)-(7). The Act permits these three groups to possess assault weapons and
LCMs, but only while “performing their official duties.” Id. §§ 24-1.9(e)(5)-(7),
24-1.10(e)(5)-(7).
¶ 60 The Act’s grandfather provision permits persons who lawfully possessed an
assault weapon before January 10, 2023, to continue to possess it as long as they
provide an endorsement affidavit. Id. § 24-1.9(d). The affidavit must contain the
person’s FOID card number and an affirmation that the affiant possessed the assault
weapon before the Act’s effective date or inherited the assault weapon from an
authorized person. Id. The provision restricts the transfer of an assault weapon to
only an heir, an individual residing in another state and maintaining it in another
state, or a federally licensed firearms dealer. Id. The grandfather provision similarly
permits possession and restricts transfer of LCMs, but an endorsement affidavit is
not required. Id. § 24-1.10(d).
¶ 61 The grandfather provision restricts where assault weapons and LCMs may be
taken. A grandfathered individual may possess the restricted items only (1) on
private property owned or immediately controlled by the person; (2) on private
property that is not open to the public with the express permission of the person
who owns or immediately controls such property; (3) while on the premises of a
licensed firearms dealer or gunsmith for the purpose of lawful repair; (4) while
engaged in the legal use of the assault weapon or LCM at a properly licensed firing
range or sport shooting competition venue; or (5) while traveling to or from these
locations, provided that the assault weapon or LCM is stored unloaded and enclosed
in a case, firearm carrying box, shipping box, or other container. Id. §§ 24-1.9(d),
24-1.10(d).
¶ 62 Although the legislature did not state an express goal of the Act, the statutory
scheme plainly implements firearms restrictions in furtherance of public health,
safety, and welfare, with exceptions for those (1) who have undertaken specialized
training as part of their employment in law enforcement, the military, or security or
(2) who have a reliance interest in retaining possession of items legally acquired
before such acquisition was prohibited and who adhere to new restrictions on
possession and transfer. The Act attempts to balance public safety against the
expertise of the trained professionals and the expectation interests of the
grandfathered individuals.
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¶ 63 The restrictions and exemptions are consistent with defendants’ representation
that “the Act seeks to accomplish the legislative goal of reducing the number of
assault weapons and LCMs in circulation, because they are often used by
perpetrators of mass shootings,” and the method of accomplishing that goal is
“limiting the number of firearms and magazines most likely to result in a mass
shooting—by restricting the sale, purchase, and possession of new ones.” This
legislative purpose informs our analysis of whether plaintiffs have alleged they are
similarly situated to but treated differently from the exempt groups.
¶ 64 2. The Trained Professionals
¶ 65 Plaintiffs argue they were denied equal protection because “[t]he facial
classification under the Act criminalizes acquisition or possession by some law-
abiding citizens qualified to acquire or possess a firearm/bearable arm under the
Second Amendment and immunizes from criminal penalty other law-abiding
citizens qualified to acquire or possess under the Second Amendment. All are FOID
card holders.”
¶ 66 Plaintiffs also make a parallel argument that the statutes constitute special
legislation. Plaintiffs contend “the similarly situated comparator here are law-
abiding gun-owners holding valid FOID cards qualified to acquire or possess
firearms (bearable arms) in the home for defense under the preexisting fundamental
right codified by the Second Amendment.”
¶ 67 Plaintiffs’ position is that as “law-abiding gun owners” they are similarly
situated to the trained professionals because “[a]ll are FOID card holders” with
second amendment rights. Plaintiffs’ position has intuitive appeal, but an
examination of the FOID Act’s requirements demonstrates plaintiffs and the trained
professionals are not similar in all relevant respects. See 430 ILCS 65/0.01 et seq.
(West 2022).
¶ 68 A FOID card applicant must submit to the Illinois State Police evidence of
eligibility, based on his or her age, citizenship, criminal history, and several other
factors. See id. § 4(a). But FOID card eligibility does not entail any kind of firearms
training or qualification in furtherance of public safety. A FOID card holder does
not have a duty to maintain public order; to make arrests for offenses; or to prevent,
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detect, investigate, prosecute, or incarcerate a person for a violation of law. By
contrast, each of the seven categories of trained professionals must undergo
specialized firearms training pertaining to their employment to maintain their
exempt status under the Act. This training supports the presumption that they
exercise greater responsibility in the safe handling and storage of firearms. “The
charge of protecting the public, and the training that accompanies that charge, is
what differentiates the exempted personnel from the rest of the population.” Shew
v. Malloy, 994 F. Supp. 2d 234, 252 (D. Conn. 2014), aff’d in part and rev’d in part
sub nom. New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (2d Cir.
2015). “Similarly, members of the military and government agency personnel who
use the otherwise banned firearms and magazines in the course of their employment
should also have an advantage while maintaining public safety ***.” Id. Because
FOID card holders are not similar in all relevant respects to the trained
professionals, plaintiffs have not sufficiently alleged the similarly situated element,
and their equal protection and special legislation challenges to the classification
fail.
¶ 69 3. The Grandfathered Individuals
¶ 70 Plaintiffs next argue they are denied equal protection because the grandfathered
individuals are afforded preferential treatment. Plaintiffs and the grandfathered
individuals can retain their previously acquired restricted items but may acquire no
more. Plaintiffs allege they “possess or desire to” acquire additional assault
weapons and LCMs as prohibited by sections 24-1.9 and 24-1.10 of the Act.
¶ 71 The complaint alleges plaintiffs’ possession in the disjunctive. To the extent
plaintiffs allege they do not already possess restricted items, they are prohibited
from acquiring new ones, while the grandfathered individuals may retain theirs. But
unlike plaintiffs who do not already possess restricted items, the grandfathered
individuals have a reliance interest based on their acquisition before the restrictions
took effect. By pointing out that those who already possess restricted items may
retain them under the grandfather provision, the complaint makes clear that
plaintiffs are not similarly situated to the exempt class. See Purze v. Village of
Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002) (holding, in a challenge to a
zoning decision, that the plaintiff was not similarly situated to others who received
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different treatment for different reasons); Jucha v. City of North Chicago, 63 F.
Supp. 3d 820, 831 (N.D. Ill. 2014) (grandfather provision rendered the claimant
dissimilar to the comparator).
¶ 72 To the extent plaintiffs allege they already possess restricted items, plaintiffs
may retain them but may not acquire more, which matches the restrictions placed
on those who are grandfathered under the Act. The statutes treat plaintiffs who
already possess assault weapons and LCMs the same as the grandfathered
individuals.
¶ 73 Plaintiffs also argue “[t]he grandfathered possess the assault weapon because
of the codified preexisting fundamental right to keep and bear arms for self-defense
at home, not because of a legislative act upon which reliance was placed.” Plaintiffs
essentially contend the restrictions infringe plaintiffs’ second amendment rights,
while the exemptions protect the grandfathered individuals’ second amendment
rights. This is tantamount to arguing the restrictions violate the second amendment,
which plaintiffs expressly disclaimed below.
¶ 74 Plaintiffs’ equal protection challenge to the grandfather provision lacks merit,
and by the same token, plaintiffs’ special legislation claim fails because sections
24-1.9 and 24-1.10 do not improperly discriminate in favor of the grandfathered
group and against plaintiffs.
¶ 75 D. Three Readings
¶ 76 Finally, plaintiffs argue count II of their complaint provides an independent
basis for affirming the judgment. Count II alleged that Public Act 102-1116, which
added sections 24-1.9 and 24-1.10 to the Criminal Code of 2012, violates the three-
readings requirement of the Illinois Constitution. The Constitution provides a “bill
shall be read by title on three different days in each house.” Ill. Const. 1970, art.
IV, § 8(d). Count II alleged that the legislature did not follow this procedure and
that therefore the Act should be invalidated in its entirety. See Friends of the Parks
v. Chicago Park District, 203 Ill. 2d 312, 328 (2003) (three readings violation
would invalidate entire public act).
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¶ 77 As mentioned, a reviewing court may affirm the judgment on any grounds
called for by the record, regardless of whether the circuit court made its decision
on the proper ground. Landmarks Preservation Council of Illinois, 125 Ill. 2d at
174. But a party seeking to modify a partially adverse judgment must file a cross-
appeal within 30 days of the judgment. Id. (“findings of the circuit court adverse to
the appellee do not require that the appellee cross-appeal if the judgment of the
circuit court was not, at least in part, against him”); Material Service Corp. v.
Department of Revenue, 98 Ill. 2d 382, 387 (1983) (an appellee’s failure to cross-
appeal from the part of the judgment denying a claim for interest precluded
consideration of the issue); see Ill. S. Ct. R. 303(a)(3) (eff. July 1, 2017).
¶ 78 Here, the circuit court invalidated sections 24-1.9 and 24-1.10 but upheld the
remainder of the Act, including provisions that are unrelated to this action. Besides
adding sections 24-1.9 and 24-1.10, Public Act 102-1116 amended section 2605-
35 of the Illinois State Police Law of the Civil Administrative Code of Illinois to
clarify that the Division of Criminal Investigation may investigate human
trafficking, illegal drug trafficking, and illegal firearms trafficking. See Pub. Act
102-1116, § 5 (eff. Jan. 10, 2023) (amending 20 ILCS 2605/2605-35(a)(7)). Public
Act 102-1116 also amended section 1-10 of the Illinois Procurement Code to
exempt the Illinois State Police’s purchase of software to enforce the Firearm
Owners Identification Card Act (430 ILCS 65/0.01 et seq. (West 2022)) and related
statutes. See Pub. Act 102-1116, § 7 (eff. Jan. 10, 2023) (adding 30 ILCS 500/1-
10(b)(21)). And Public Act 102-1116 amended sections 40, 45, and 55 of the
Firearms Restraining Order Act to increase the initial duration of such orders to up
to one year. See Pub. Act 102-1116, § 15 (eff. Jan. 10, 2023) (amending 430 ILCS
67/40, 45, 55).
¶ 79 The judgment was partially adverse to plaintiffs because it did not invalidate
the entire Act as requested in count II. Plaintiffs’ failure to cross-appeal from the
part of the judgment denying relief on their three-readings claim is a jurisdictional
bar to them arguing the Act is unconstitutional on that basis. Landmarks
Preservation Council of Illinois, 125 Ill. 2d at 174.
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¶ 80 III. CONCLUSION
¶ 81 First, we hold the circuit court erroneously entered summary judgment for
plaintiffs on their equal protection and special legislation claims. Plaintiffs are not
similarly situated to the trained professionals. To the extent plaintiffs claim they
possess restricted items, they are not treated differently from the grandfathered
individuals. To the extent plaintiffs claim they do not possess restricted items, they
are dissimilar to the grandfathered individuals, who have a reliance interest in
retaining them.
¶ 82 Second, we hold that plaintiffs waived any second amendment challenge to the
restrictions, as the complaint did not state a claim and plaintiffs explicitly and
repeatedly disclaimed any such argument in the circuit court. Third, we hold
plaintiffs’ failure to cross-appeal from the denial of relief under count II bars them
from renewing their three-readings claim here. For these reasons, the judgment of
the circuit court of Macon County is reversed.
¶ 83 Judgment reversed.
¶ 84 JUSTICE HOLDER WHITE, dissenting:
¶ 85 This great nation was founded on the premise that the right of law-abiding
citizens to bear arms is essential to what it means to be a free people. The right of
law-abiding citizens to possess firearms and to arm themselves to protect their
families, their homes, and themselves must not be infringed. Belief in the
previously mentioned precepts in no way diminishes the fact that all law-abiding
citizens desire safe communities where schools, workplaces, houses of worship,
and public gatherings are free from gun violence. The tension between the
previously mentioned tenets are why this case is of such importance to the people
of the state of Illinois. However, if this court is to adhere to the Illinois Constitution,
we cannot address the question of the firearm restrictions at issue in this case.
Important as this case is, constitutionally embedded process matters. Where the
legislature fails to honor our constitutionally mandated process, this court is duty
bound to adhere to our constitution and require the legislature to do the same. In
my view, this court can and should consider the issue of the three-readings rule as
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well as the continued adherence to the enrolled-bill doctrine. In doing so, I would
find the clear violation of the rule renders Public Act 102-1116 (eff. Jan. 10, 2023)
unconstitutional in its entirety, thereby obviating the need to address the firearm
restrictions at issue in this appeal. Thus, I respectfully dissent.
¶ 86 A. Plaintiffs’ Claim on the Three-Readings Rule
¶ 87 As the majority notes and as this court has often found, “a reviewing court can
uphold the decision of the circuit court on any grounds which are called for by the
record regardless of whether the circuit court relied on the grounds and regardless
of whether the circuit court’s reasoning was correct.” Ultsch v. Illinois Municipal
Retirement Fund, 226 Ill. 2d 169, 192 (2007); see also Material Service Corp. v.
Department of Revenue, 98 Ill. 2d 382, 387 (1983) (stating “[i]t is the judgment and
not what else may have been said by the lower court that is on appeal to a court of
review”).
¶ 88 In this case, plaintiffs alleged in count II of their complaint that Public Act 102-
1116, which added sections 24-1.9 and 24-1.10 to the Criminal Code of 2012 (720
ILCS 5/24-1.9, 1.10 (West 2022)), violated the three-readings requirement of the
Illinois Constitution. In their summary judgment motion, defendants argued they
were entitled to summary judgment on the three-readings claim because the
enrolled-bill doctrine foreclosed plaintiffs’ challenge. The circuit court entered
judgment in defendants’ favor on the three-readings claim, as it was duty bound to
follow this court’s precedent involving the enrolled-bill doctrine. The court did,
however, find in plaintiffs’ favor on their equal protection and special legislation
claims.
¶ 89 Defendants appealed. In light of the circuit court’s favorable ruling on the three-
readings rule, they had no reason to raise the issue in their initial brief. Plaintiffs,
however, did raise this issue in their responsive brief, arguing the violation of the
three-readings rule presented an independent basis in the record to affirm the circuit
court’s judgment. In their reply brief, defendants argued there was no violation of
the three-readings rule and the enrolled-bill doctrine foreclosed plaintiffs’
challenge. Defendants also addressed the three-readings rule and the enrolled-bill
doctrine in their oral argument to this court.
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¶ 90 The majority says the circuit court invalidated certain sections of the Protect
Illinois Communities Act (Act) (see Pub. Act 102-1116 (eff. Jan. 10, 2023)) and
upheld others and thus contends the three-readings-rule issue is not now before us
because plaintiffs should have cross-appealed from the denial of relief on that
claim. However, plaintiffs are properly before this court, and both parties have had
ample opportunity to address the procedural requirements of the Illinois
Constitution and their impact on the validity of the Act here. Moreover, if the
invalidated sections are before us (by way of the State’s appeal), then a finding of
a three-readings-rule violation on those sections (as we may affirm on any basis in
the record) requires a similar finding as to the entire Act because the Act was passed
as one. Thus, I would find the long-standing principle cited above in Ultsch and
numerous other cases allows us to consider the three-readings issue.
¶ 91 B. The Three-Readings Rule and the Enrolled-Bill Doctrine
¶ 92 Article IV, section 8, of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8)
sets forth the requirements for the passage of bills in the legislature. Section 8(d)
states as follows:
“(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.” (Emphases added.) Id. § 8(d).
¶ 93 For years, this court has followed the enrolled-bill doctrine. Friends of the
Parks v. Chicago Park District, 203 Ill. 2d 312, 328 (2003). “This doctrine provides
that once the Speaker of the House of Representatives and the President of the
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Senate certify that the procedural requirements for passing a bill have been met, a
bill is conclusively presumed to have met all procedural requirements for passage.”
Id. at 328-29. Under this precedent, this court has said it “will not invalidate
legislation on the basis of the three-readings requirement if the legislation has been
certified.” Id. at 329.
¶ 94 In People v. Dunigan, 165 Ill. 2d 235, 252 (1995), the defendant argued the
public act at issue was not validly enacted because the legislature failed to comply
with the three-readings requirement. This court refused to consider the argument,
concluding the enrolled-bill doctrine precluded “this court from inquiring into the
legislature’s compliance with the procedural requirements for passage of bills.” Id.
at 253. This court cited the Committee on the Legislature of the Constitutional
Convention, which explained the enrolled-bill doctrine would prohibit the judiciary
from invalidating statutes on the ground that the legislature failed to comply with
the procedural requirements in article IV, section 8, of the Illinois Constitution. Id.The court went on to state: “Whether or not a bill has been read by title on three
different days in each house is a procedural matter, the determination of which was
deliberately left to the presiding officers of the two houses of the General
Assembly.” Id. at 254.
¶ 95 Justice Heiple dissented from that portion of the majority opinion that adopted
and relied on the enrolled-bill doctrine. Id. at 256-58 (Heiple, J., concurring in part
and dissenting in part). He stated, in part, as follows:
“The interpretation of a constitutional provision depends, in the first instance,
on the plain meaning of its language. Next, it depends on the common
understanding of the citizens who, by ratifying the constitution, have given it
life. A court looks to the debates of the convention delegates only when a
constitutional provision is ambiguous. (Kalodimos v. Village of Morton Grove
(1984), 103 Ill. 2d 483, 492-93.) There is no ambiguity in the provision
requiring the legislature to read a bill on three different days in each house, the
provision that a bill receive a majority vote in each house, or the provision
requiring the Speaker of the House and the President of the Senate to sign each
bill to certify that the procedural requirements for passage have been met.
If it were deemed desirable to foreclose inquiries into the regularity of the
passage of bills, language similar to the enrolled-bill doctrine could have been
- 23 -
included within the constitution. There is no such language. Moreover, the
Illinois Constitution was adopted at a referendum. It did not become the law of
the State by either the discussions of the delegates or by their votes. The
constitutional convention merely submitted the document to the public for a
vote. There is no way that a voter could interpret the language of the constitution
to mean that procedural requirements for the passage of a bill could be
overridden by the signatures of two State officers. In truth, the signatures of the
officers are merely prima facie evidence that the General Assembly has abided
by the requirements of the constitution. In other words, it raises a rebuttable
presumption that the requirements for passage have been met.
A literal adherence to this so-called enrolled-bill doctrine means that a bill
need never be read or presented in either house, need never receive a majority
vote, and need never even be voted on. Two people, the Speaker of the House
and the President of the Senate, need merely sign and certify a bill and, unless
vetoed by the Governor pursuant to article IV, section 9, the bill becomes
ipso facto the law of Illinois. Contrary to today’s ruling, I believe that the
constitutional requirements for the enactment of a bill should be followed and
enforced. While separation of powers is a valid doctrine and a presumption of
legislative regularity is its proper corollary, this court should reserve the right
of review to ensure the General Assembly’s compliance with constitutional
mandates.” Id. at 257-58.
¶ 96 Since that case, this court has noted the legislature has “shown remarkably poor
self-discipline in policing itself in regard to the three-readings requirement.”
Friends of the Parks, 203 Ill. 2d at 329 (citing Geja’s Cafe v. Metropolitan Pier &
Exposition Authority, 153 Ill. 2d 239, 260 (1992) (noting that “ignoring the three-
readings requirement has become a procedural regularity”); Cutinello v. Whitley,
161 Ill. 2d 409, 425 (1994). That lack of legislative self-discipline continues to this
day. See Orr v. Edgar, 298 Ill. App. 3d 432, 447 (1998) (leaving to this court “the
issue of whether the state legislature may disregard constitutional requirements and
maintain the legality of its actions under the auspices of the enrolled bill doctrine”);
New Heights Recovery & Power, LLC v. Bower, 347 Ill. App. 3d 89, 100 (2004);
McGinley v. Madigan, 366 Ill. App. 3d 974, 992 (2006); Doe v. Lyft, Inc., 2020 IL
App (1st) 191328, ¶¶ 51-55; Accuracy Firearms, LLC v. Pritzker, 2023 IL App
(5th) 230035, ¶¶ 36-46; First Midwest Bank v. Rossi, 2023 IL App (4th) 220643,
- 24 -
¶¶ 220-41; Rowe v. Raoul, 2023 IL 129248, ¶ 8 (noting the plaintiffs raised a three-
readings rule claim in the circuit court 1).
¶ 97 In Friends of the Parks, 203 Ill. 2d at 329, this court noted it is “ever mindful
of its duty to enforce the constitution of this state” and “urge[d] the legislature to
follow the three-readings rule.” The court went on to state that, “[w]hile separation
of powers concerns militate in favor of the enrolled-bill doctrine [citation], our
responsibility to ensure obedience to the constitution remains an equally important
concern.” Id.; see also Field v. Clark, 143 U.S. 649, 670 (1892) (stating it is “the
duty of this court, from the performance of which it may not shrink, to give full
effect to the provisions of the Constitution relating to the enactment of laws”). In
Geja’s Cafe, 153 Ill. 2d at 260, this court declined the invitation to abandon the
enrolled-bill doctrine, feeling “the doctrine of separation of powers is more
compelling.” However, this court deferred to the legislature “hesitantly” and
“reserve[d] the right to revisit this issue on another day to decide the continued
propriety of ignoring this constitutional violation.” Id.¶ 98 Recently, in a case involving the very Act at issue in this case, the Fifth District
in Accuracy Firearms addressed the serious concerns raised by the plaintiffs there
as to the legislature’s repeated failure to adhere to the requirements of article IV,
section 8(d), and the three-readings rule.
“Unfortunately, the Illinois Supreme Court’s warnings regarding past
legislative nonconformance with constitutional boundaries (see Friends of the
Parks, 203 Ill. 2d at 328-29) appear to have gone unheeded and, instead, are
now interpreted as the judiciary’s acceptance of, or the judiciary’s acquiescence
in, the legislature’s continued failure to adhere to constitutional procedures
when enacting legislation. While compliance with the enrolled-bill doctrine
presumes the legislative procedure adhered to constitutional requirements
(see Geja’s Cafe, 153 Ill. 2d at 259), such presumption is readily overcome by
evidence revealing the contrary posted on the General Assembly website.
We question the sagacity of continued adherence to the Illinois Supreme
Court precedent in light of the legislature’s continued blatant disregard of the
1
The Rowe plaintiffs did not raise the three-readings issue in their appeal to this court.
- 25 -
court’s warnings and the constitutional mandates. The three-reading
requirement ensures that the legislature is fully aware of the contents of the bills
upon which they will vote and allows the lawmakers to debate the legislation.
Equally relevant to the three-reading rule is the opportunity for the public to
view and read a bill prior to its passage, thereby allowing the public an
opportunity to communicate either their concern or support for proposed
legislation with their elected representatives and senators. Taken together, two
foundations of the bedrock of democracy are decimated by failing to require the
lawmakers to adhere to the constitutional principle.
To be sure, Illinois is not the only state that has faced or endured repeated
ethical lapses associated with gut and replace legislation. However, other states
have addressed this issue and demand compliance with the state constitutional
mandates. See Washington v. Department of Public Welfare of Pennsylvania,
188 A.3d 1135 (Pa. 2018); State ex rel. Ohio ALF-CIO v. Voinovich, 69 Ohio
St. 3d 225, 1994-Ohio-1, 631 N.E.2d 582; Bevin v. Commonwealth ex rel.
Beshear, 563 S.W.3d 74 (Ky. 2018); League of Women Voters of Honolulu v.
State, 499 P.3d 382 (Haw. 2021).
Our lawmakers take an oath of office to ‘ “support the constitution of the
United States, and the constitution of the state of Illinois.” ’ 25 ILCS 5/2 (West
2020); Ill. Const. 1970, art. XIII, § 3. The same is required for the circuit court
judiciary (705 ILCS 35/2 (West 2020)) as well as the appellate and supreme
courts and certain members of the executive branch (Ill. Const. 1970, art. XIII,
§ 3). Allowing lawmakers to continue to ignore constitutional mandates under
the enrolled-bill doctrine, knowing full well the constitutional requirements
were not met, belittles the language of the oaths, ignores the need for
transparency in government, and undermines the language of this state’s
constitution.” Accuracy Firearms, 2023 IL App (5th) 230035, ¶¶ 42-45.
¶ 99 Given the legislature’s repeated failures, continued adherence to the enrolled-
bill doctrine should no longer be countenanced. The doctrine “is contrary to modern
legal thinking, which does not favor conclusive presumptions that may produce
results which do not accord with fact.” Association of Texas Professional Educators
v. Kirby, 788 S.W.2d 827, 829 (Tex. 1990); D&W Auto Supply v. Department of
Revenue, 602 S.W.2d 420, 424 (Ky. 1980) (stating the doctrine “frequently ***
- 26 -
produces results which do not accord with facts or constitutional provisions”).
Moreover, “[t]he rule disregards the primary obligation of the courts to seek the
truth and to provide a remedy for a wrong committed by any branch of
government.” D&W Auto Supply, 602 S.W.2d at 424.
¶ 100 Although this court has, in the past, found separation of powers to be a reason
to decline abandoning the doctrine, it has not found it to be an absolute bar. This
court has repeatedly reminded the legislature that it must comply with the bill-
passage requirements of the constitution and, if it does not, this court reserves the
right to act.
¶ 101 No doctrine can exempt from judicial review the requirements of the
constitution. “It is emphatically the province and duty of the judicial department to
say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
“ ‘We may not abdicate this responsibility under the guise of our deference to
a co-equal branch of government. While it is appropriate to give due deference
to a co-equal branch of government as long as it is functioning within
constitutional constraints, it would be a serious dereliction on our part to
deliberately ignore a clear constitutional violation.’ ” City of Philadelphia v.
Commonwealth, 838 A.2d 566, 581 (Pa. 2003) (quoting Consumer Party of
Pennsylvania v. Commonwealth, 507 A.2d 323, 333 (Pa. 1986)).
See also D&W Auto Supply, 602 S.W.2d at 424 (disagreeing with “the premise that
the equality of the various branches of government requires that we shut our eyes
to constitutional failings and other errors of our coparceners in government”).
¶ 102 This court cannot cede the constitutionality of a statute to the Speaker of the
House of Representatives and the President of the Senate. To turn a blind eye to
repeated violations of the constitution suggests “that the courts must perpetually
remain in ignorance of what everybody else in the state knows.” Power, Inc. v.
Huntley, 235 P.2d 173, 181 (Wash. 1951) (en banc); see also D&W Auto Supply,
602 S.W.2d at 423 (“To countenance an artificial rule of law that silences our voices
when confronted with violations of our constitution is not acceptable to this
court.”).
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¶ 103 As Justice Heiple suggested and as other courts have advocated, “the signatures
of the officers are merely prima facie evidence that the General Assembly has
abided by the requirements of the constitution. In other words, it raises a rebuttable
presumption that the requirements for passage have been met.” Dunigan, 165 Ill.
2d at 28 (Heiple, J., concurring in part and dissenting in part); Association of Texas
Professional Educators, 788 S.W.2d at 829 (stating “the present tendency favors
giving the enrolled version only prima facie presumptive validity, and a majority
of states recognize exceptions to the enrolled bill rule”). That “presumption may be
overcome by clear, satisfactory and convincing evidence establishing that
constitutional requirements have not been met.” D&W Auto Supply, 602 S.W.2d at
425.
¶ 104 Given the record here, including taking judicial notice of the history of the
legislation on the General Assembly’s website, I would find the presumption is
clearly overcome in this case. See Board of Education of Richland School District
No. 88A v. City of Crest Hill, 2021 IL 126444, ¶ 5 (“ ‘Illinois courts often take
judicial notice of facts that are readily verifiable by referring to sources of
indisputable accuracy’ such as court records or public documents, including records
on [a] government website.” (quoting People v. Johnson, 2021 IL 125738, ¶ 54)).
¶ 105 In this case, House Bill 5471 (HB 5471) (102d Ill. Gen. Assem., House Bill
5471, 2022 Sess.) was first introduced in the Illinois House of Representatives on
January 28, 2022, as “an Act concerning regulation,” seeking to amend the Illinois
Insurance Code (215 ILCS 5/1 et seq.). The synopsis for HB 5471, which was
approximately 10 pages in length, indicated the subject of the bill focused on
providing the e-mail address of the public adjuster as well as other provisions
regarding an insurance contract. 102d Ill. Gen. Assem., House Bill 5471, 2022 Sess.
A second reading of HB 5471 occurred on March 1, 2022. Id. Then, along with 43
other bills voted on at the same time as a group, HB 5471 received its third reading
(as a bill for an act concerning regulation) on March 4, 2022, receiving 104 yeas
and 0 nays. Id.¶ 106 On March 7, 2022, HB 5471 arrived in the Illinois Senate and received its first
reading before being referred to the assignments committee. The second reading
took place on November 30, 2022. Id.- 28 -
¶ 107 On January 8, 2023, the President of the Senate filed Senate floor amendment
No. 1, which, in its 110 pages, completely stripped the insurance provisions of HB
5471 and replaced them with the “Protect Illinois Communities Act.” On January
9, 2023, amendments 2, 3, 4, and 5, all of which addressed amendment 1, were
presented in the Senate and passed on its third reading with 34 yeas and 20 nays.
Id.¶ 108 In its new form, HB 5471 was sent back to the House on January 10, 2023. HB
5471, as amended, was not read three times prior to voting on the bill. On January
10, 2023, the House voted to concur with Senate amendments 3, 4, and 5 with 68
yeas and 41 nays on each one. That same day, the Speaker of the House of
Representatives and the President of the Senate certified that the procedural
requirements of the constitution had been met, and Governor Pritzker signed the
111-page Act into law. Id.¶ 109 Here, it is abundantly clear that the Protect Illinois Communities Act was not
before the House or the Senate on three different days in each house. On January 8
and 9, 2023, the original Insurance Code bill was gutted, and the new amendments,
including the restrictions on assault weapons and large-capacity magazines, were
considered and approved in the Senate. The new bill setting forth the Protect Illinois
Communities Act then only spent one day in the House before it was passed and
signed into law.
“[T]he three readings requirement serves three important purposes: it
(1) provides the opportunity for full debate on proposed legislation; (2) ensures
that members of each legislative house are familiar with a bill’s contents and
have time to give sufficient consideration to its effects; and (3) provides the
public with notice and an opportunity to comment on proposed legislation.”
League of Women Voters of Honolulu v. State, 499 P.3d 382, 396 (Haw. 2021).
See also Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 396
(1951) (Jackson, J., concurring, joined by Minton, J.) (noting the three-readings
requirement is intended “to make sure that each House knows what it is passing
and passes what it wants”). On the contrary, the practice of gutting and replacing
legislation “discourages public confidence and participation,” “deprives the public
of notice,” and “is antithetical to the intent of the three readings requirement.”
League of Women Voters, 499 P.3d at 405.
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¶ 110 In this case, the Insurance Code bill that received votes on three different days
in the House in 2022 was in no way the firearms bill that passed the House on one
vote in 2023. That is undeniable. And concluding that simply reading the title of a
completely different bill on three different days suffices to pass constitutional
muster is an affront to the people of this state and renders the three-readings
requirement essentially meaningless. No such conclusion—whether expressed or
implied—should receive the imprimatur of this court.
¶ 111 Article IV, section 8, of the Illinois Constitution requires a bill be read by title
on three different days in each house. Three different days in each house is all it
would have taken for the legislators to consider the firearms bill before passage and
thereby comply with the procedural requirements of the constitution. And three
different days in each house is all it would take for the House and Senate to conduct
the legislative process again if this court were to find a violation of the three-
readings rule and declare the Act unconstitutional.
¶ 112 When, as in this case, the work of the legislature directly impacts a fundamental
right, which this court has said the right to keep and bear arms is (Guns Save Life,
Inc. v. Ali, 2021 IL 126014, ¶ 28), the people of Illinois deserve nothing less than
the procedural requirements of the constitution be followed by their elected
representatives and senators.
¶ 113 Because the procedural requirements of the constitution were not met in the
passage of HB 5471, I would find the Act unconstitutional in its entirety. Thus,
until this court has before it a validly passed act of the legislature, we should make
no determination on the Act at issue in this case. Accordingly, I respectfully dissent.
¶ 114 JUSTICE OVERSTREET joins in this dissent.
¶ 115 JUSTICE O’BRIEN, dissenting:
¶ 116 I respectfully dissent because I do not find that the classifications at issue in this
legislation further its claimed purpose and it is thus violative of the special
legislation provision in our state constitution.
¶ 117 The special legislation clause states:
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“The General Assembly shall pass no special or local law when a general
law is or can be made applicable. Whether a general law is or can be made
applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV,
§ 13.
¶ 118 “This court has consistently held that the purpose of the special legislation
clause is to prevent arbitrary legislative classifications that discriminate in favor of
a select group without a sound, reasonable basis.” Best v. Taylor Machine Works,
179 Ill. 2d 367, 391 (1997). Under the clause, the General Assembly may not confer
“a special benefit or exclusive privilege on a person or a group of persons to the
exclusion of others similarly situated.” Id.¶ 119 We employ a two-part test to determine whether a law is special legislation.
Piccioli v. Board of Trustees of the Teachers’ Retirement System, 2019 IL 122905,
¶ 18. The first determination is whether the classification discriminates in favor of
a select group to the exclusion of a group similarly situated. Id. If the classification
does discriminate, we next determine whether the classification is arbitrary. Id. We
use the same standards applicable to equal protection challenges to decide if a
classification is arbitrary. In re Estate of Jolliff, 199 Ill. 2d 510, 520 (2002).
¶ 120 Unlike the majority, I would find that the plaintiffs are similarly situated in light
of the purpose of the legislation. In re M.A., 2015 IL 118049, ¶ 29 (“The
determination whether individuals are similarly situated generally can only be made
by considering the purpose of the particular legislation.”). We do so by considering
whether the classification is “based upon reasonable differences in kind or situation,
and whether the basis for the classifications is sufficiently related to the evil to be
obviated by the statute.” Best, 179 Ill. 2d at 394.
¶ 121 The majority finds that the plaintiffs are not similarly situated to the exempted
classifications and ends its analysis on that basis. To make the similarly situated
determination, this court must view the classifications in light of the purpose of the
legislation and the evils it seeks to remedy. In re Belmont Fire Protection District,
111 Ill. 2d 373, 380 (1986). The majority acknowledges that the legislation itself
does not state a purpose but concludes that the defendants infer the intent of the
Protect Illinois Communities Act (Act) (see Pub. Act 102-1116 (eff. Jan. 10, 2023))
is “to reduce the number of assault weapons and LCMs in circulation” because they
are often used in mass shootings. Supra ¶ 51. The majority correctly reiterates that,
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to determine whether the plaintiffs are similarly situated, the legislative purpose of
the Act must frame its analysis. Supra ¶ 53.
¶ 122 The majority, however, did not consider whether the classifications further the
legislative purpose of reducing the number of assault weapons and large capacity
magazines (LCMs) and consequently the number of mass shootings. I find they do
not and will not reasonably remedy the evils the legislation was designed to combat.
Importantly, exempting the professionals and grandfathered groups does nothing to
prevent the proliferation of out-of-state assault weapon possession or prevent those
weapons from being used for mass shootings in this state or elsewhere. The
legislation does not prevent weapon manufacturers, some located within this state,
from continuing to sell assault weapons and LCMs to out-of-state residents, who
may then potentially perpetrate a mass shooting. Because 60% of the weapons used
in crimes in Illinois come from out of state, the legislation does not further its
purported goal of reducing the number of weapons in the state. See Violence
Prevention and Public Safety, Office of the Ill. Attorney Gen., https://illinois
attorneygeneral.gov/Safer-Communities/Violence-Prevention-and-Community-
Safety/Crime-Connect/ (last visited Aug. 7, 2023) [https://perma.cc/JWG4-5874].
¶ 123 Similarly, the enumerated professional groups who are exempted based on their
firearm training and roles as societal protectors are presumably not apt to engage in
mass shootings, and their ability to possess assault weapons and LCMs does not
reduce either the number of assault weapons and LCMs or the threat of mass
shootings. They may continue to possess and purchase the items the legislation bans
nearly everyone else from possessing and purchasing. Moreover, not all the
professionals are limited in the possession and use of their assault weapons to on-
duty conduct, which places them in the same circumstance as members of the
general public who may also have weapons training. For example, retired peace
officers may continue to purchase and possess assault weapons despite that they no
longer have any peacekeeping responsibilities or obligations. They are no different
from private citizens who hold Firearm Owner’s Identification cards, like the
plaintiffs in this case, but are granted special treatment. Our constitution’s
prohibition against special legislation does not allow a law to afford special
treatment to one group of citizens without a rational basis to do so. The special
legislation provision in the constitution prohibits the different treatment of people
based on criteria unrelated to the legislation’s purpose. Best, 179 Ill. 2d at 391.
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¶ 124 The professional group, albeit the recipients of firearm training, are not
necessarily trained in assault weapons. Moreover, other nonexempted professionals
and the general population may also have firearm and/or assault weapon training.
According to an affidavit submitted by Caulkins in support of the plaintiffs’
combined motion for declaratory judgment and/or temporary or permanent
injunction, in his opinion, his gun shop customers are as skilled with their firearms
as the exempted professional class. Limiting the possession and purchase of assault
weapons to this group does not contribute to the reduction of mass shootings.
¶ 125 The grandfathered group, created because of their reliance interest in prior
ownership of the banned weapons and magazines, are allowed to maintain their
weapons, which also does little to reduce the number of assault weapons and LCMs
or mass shootings. According to the plaintiffs, there are numerous Illinois residents
who currently own assault weapons. Any one of these assault weapons owners
could perpetrate a mass shooting.
¶ 126 When considering the challenged classifications in light of the purpose of the
law, neither of the classifications furthers the purpose. In this way, I find the
plaintiffs are similarly situated in light of the purposes of the legislation and the
evils it was designed to remedy. It is not enough that the legislature classified the
groups; the classifications must be based on “reasonable differences in kind or
situation, and whether the basis for the classifications is sufficiently related to the
evil to be obviated by the statute.” Id. at 394. The classifications must be founded
on a rational or substantial difference of situation or condition. Cutinello v. Whitley,
161 Ill. 2d 409, 427 (1994) (Freeman, J., dissenting).
¶ 127 Here, the classifications afford special treatment to two groups of individuals
without a viable connection between the exempted groups and reasons for the
legislation. When considered in light of the offered purpose for the legislation, to
reduce the number of weapons in order to reduce the number of mass shootings,
the exempted classifications are in all aspects like the general population.
¶ 128 In dissenting, I do not pass judgment on the intent of the legislation. Rather, I
only consider whether it meets the constitutional requirements under the equal
protection and special legislation provisions of our Illinois Constitution. When we
limit people’s rights, even the rights we might not like, we have to do so in a way
that honors the constitution.
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“Unless this court is to abdicate its constitutional responsibility to determine
whether a general law can be made applicable, the available scope for
legislative experimentation with special legislation is limited, and this court
cannot rule that the legislature is free to enact special legislation simply because
‘reform may take one step at a time.’ ” Grace v. Howlett, 51 Ill. 2d 478, 487
(1972) (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,
489 (1955)).
Under the special legislation clause, the constitutional test is “whether a general
law can be made applicable.” Id. I would find a general law could be made
applicable.
¶ 129 Because the majority fails to undertake this appropriate analysis and finds the
plaintiffs are not similarly situated, I respectfully dissent. I would find the
legislation violates the constitutional prohibition against special legislation.
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