The routine goes something like this:
Word reaches the Capitol that a judge somewhere in the state has stricken down yet another state law.
Staff lawyers run to figure out how to appeal. Lawmakers start working on re-enacting the stricken law. And everybody points the blame at someone else.
It’s a familiar sight in Illinois.
In the last two years, five important laws passed by the General Assembly have been found unconstitutional in court. In two cases, the state Supreme Court has complained about substantive problems with the laws; the other three involved a procedural rule.
Most recently, a Cook County court found fault with the way lawmakers passed a law to implement part of the state’s new budget in 1995, giving rise to fears that a higher court could make lawmakers refund some tax money collected or reclaim money spent.
It also raises questions about whether Illinois’ legislature knows how to pass laws that will pass constitutional muster.
“What you see around here is not what you read in the civics books,” said Rep. Tom Dart (D-Chicago), a lawyer and chairman of the House Judiciary Committee. “Sometimes the thinking is, `Constitution be damned.’ “
The recent decisions have angered many lawmakers, prompting at least one to predict a coming “showdown” with the judiciary over what they perceive to be judges’ willingness to micromanage legislation.
Others are surprised by the spate of reversals because for years the legislature has been given wide latitude by the courts in passing laws. A line in the state Constitution requiring that lawmakers not combine several unrelated measures in one bill frequently went unheeded.
But last year a Cook County judge found unconstitutional a law requiring police to notify the public when child-sex offenders move to their area, largely because the legislature had packaged the proposal with other unrelated proposals before passing it into law.
The Illinois Supreme Court upheld the decision last spring. And with that precedent set by the high court, lower courts have been applying it to other laws.
In March, an Appellate Court suspended the so-called truth-in-sentencing law, legislation requiring murderers to spend 100 percent of their prison sentences behind bars and other violent felons to serve 85 percent. The reason: The law included an unrelated provision pertaining to hospitals.
In April, Cook County Circuit Court Judge John A. Ward knocked down part of the 1995 budget law because it enfolded a host of taxing and spending plans, including those affecting hospitals, nursing homes and tobacco distributors.
Budget experts think about worst-case scenarios and shudder.
“I think arguably the hospitals, the nursing homes and the tobacco industry can seek relief,” said Sen. Steve Rauschenberger (R-Elgin), the Senate’s top budget negotiator for the GOP.
“Which means we’d have to begin refunding the tobacco tax, and probably adjust the rates for hospitals and nursing homes. And we’d have to try to back-collect the hospital assessment, I guess.”
State budget architects say they fear that if the 1995 budget is invalid, so might be the budgets of every year for more than a decade.
Even though Ward’s decision has caused headaches, legal experts argue that the single-subject rule has good reasons to exist.
“It’s to stop the sort of nonsense that goes on in Congress, where they put things together that clearly some members would not vote for except they become part of a package,” said Dawn Clark Netsch, a former lawmaker and Northwestern University law professor emeritus who helped rewrite the state Constitution in 1970.
“It was being forgotten about,” Netsch said. “And now it’s getting to be observed to such an extent that the court is saying, `Our Constitution says it. Maybe we better remind them of it and clean things up a bit.’ “
Two other recently stricken laws had nothing to do with the single-subject rule. Republican sponsors say they were cases where the Supreme Court decided to meddle in legislative affairs.
In November, the state high court struck down a plan to redraw the state’s judicial districts passed by the Republican General Assembly. The court said the state Constitution implicitly forbids subdividing Cook County’s judicial districts, as the map had done.
Republicans had drawn the map in hopes of helping their party win another seat on the Supreme Court, now composed of four Democrats and three Republicans.
A month later, the court found unconstitutional a tort reform law, partly because they thought it tread on the judiciary’s turf by setting a $500,000 cap on awards for pain and suffering. Courts should be able to decide the awards, the justices said.
Republican lawmakers are still fuming.
“The Supreme Court has started to micromanage the General Assembly more than ever before,” said Sen. Kirk Dillard (R-Hinsdale), a sponsor of the tort reform and truth-in-sentencing legislation. “We are headed for a branch-of-government showdown between the Illinois General Assembly and the Illinois Supreme Court should this continue.”
As fodder, lawmakers hold the judges’ raises in their hands, not to mention their office budgets.
“I have a stack of (message) slips from my local judges all begging for a pay raise,” Dillard said. “So, there’s a lot of things the legislature has the final say on that controls, in the real world, judicial behavior.”
Of course, as Dillard noted, holding raises hostage would hurt Republican judges as well as Democrats.
And Republicans are resolute in their belief that Democratic judges are mostly to blame. Certainly, Republican laws have had particular trouble in Democratic domain, the Cook County courts.
But some contend the trend has nothing to do with politics, and that it is not limited to Illinois. Here, as elsewhere, tort reform advocates have been talking about campaigning against certain judges at election time.
“You have judges who have forgotten their role is to interpret the law,” said Victor Schwartz, a lawyer based in Washington, D.C., and an advocate of tort reform.
“They think their role is to make law,” he said. “We elect people to make law because we can throw them out in two years if we don’t like the law they make.”
