Lawmakers: IL lawsuit expansion bill unconstitutional

As business groups and lawsuit reform advocates are urging Illinois Gov. JB Pritzker to veto a constitutionally questionable potential new law they say would allow Illinois courts to hear lawsuits from throughout the country, Illinois Republican state lawmakers have now asked the courts to prevent Pritzker from having the chance to make the legislation law.

On June 18, the state's Republican legislative leaders, together with a group of other GOP state representatives and state senators, filed suit in Sangamon County Circuit Court in Springfield, seeking a court order declaring Illinois Democrats violated the state constitution when they hurriedly rammed the legislation through both houses of the General Assembly at the end of May.

“We are answering the call of job creators, good government watchdog groups, and most importantly, our constituents, to stand up for transparency and against this job-killing legislation,” House Republican Leader Tony McCombie, R-Savanna, said in a prepared statement.

Her Republican counterpart in the state Senate, Sen. John Curran, R-Downers Grove, added: “This special interest proposal was passed by the Democratic Majority using a shady process that clearly violates the substance and spirit of the Illinois Constitution.

“I am calling on Gov. Pritzker to join us in standing up for Illinois taxpayers and promote economic investment in our state by vetoing this anti-business legislation.”

While the lawsuit was filed in county court, the actual intended audience for the legal action will be the Illinois Supreme Court, which is the only court in the country legally authorized to overturn a longstanding legal doctrine that has enable the legislative process increasingly used by Springfield's Democratic governing supermajority to quickly pass controversial and problematic legislation, usually with minimal debate and no real opportunities for public response.

The lawsuit takes aim in this case at the passage of the legislation known as Senate Bill 328.

SB328, backed by the state's powerful trial lawyers, would rewrite the rules concerning who can be sued in Cook County and other Illinois state courts. The legislation would create a new "consent-by-registration" system in Illinois. Under such a system, companies from throughout the U.S. and the world could be dragged into Illinois state courts for certain kinds of claims, whether or not the company has any real presence in Illinois or if any alleged injuries actually occurred in Illinois.

To this point, Illinois courts have operated under different rules, under which Illinois courts are designated as "specific personal jurisdiction" legal venues. Under such a system, plaintiffs attempting to sue companies in Illinois state courts generally must prove that the company had sufficient ties to the state or that an incident that caused the alleged harms happened in the state.

The specific jurisdiction rules, which historically have controlled in most U.S. states, have served to limit the legal exposure of companies which operate across state lines, limiting the ability of trial lawyers to "forum shop" by choosing to file lawsuits in court systems considered to be more friendly to their pursuit of massive verdicts and settlements, often worth many millions or even billions of dollars.

Business and court reform advocates have denounced such tactics as abuses of the nation's legal system in pursuit of big profits for trial lawyers.

However, under SB328, trial lawyers would be allowed to sue any company that has registered to do business in Illinois - a clerical act mandated by law in all 50 states - for "injury or illness resulting from exposure to a substance defined as toxic" under Illinois state law "whether the cause of actions arises within or without the State."

Businesses and reform advocates have warned of a potential flood of new lawsuits, flowing in Illinois' already strained state courts.

And they have warned that the legislation, were it to become law, would only further cement Illinois' widespread and longstanding anti-business reputation, while contradicting Pritzker's repeated assertion that Illinois is "the best state to do business."

Business groups and reform advocates have sent letters to Pritzker and issued public statements calling on the governor to veto the legislation, to prevent Illinois from becoming one of only two states in the country, after Pennsylvania, to impose such a consent-by-registration regime.

They have noted that even in the progressive haven of New York, Pritzker's Democratic colleague, Gov. Kathy Hochul, twice vetoed similar legislation in the Empire State. In veto messages, Hochul said she feared the legislation would damage New York's economy by making businesses more reluctant to invest in the state, for fear of getting dragged into New York state courts to defend against lawsuits that had nothing to do with their business operations in that state.

Opponents of SB328 warn that the legislation would similarly harm Illinois' economy, which is already routinely rated among the worst for economic competitiveness, strength and health by groups like the National Federation of Independent Business (NFIB) and business and finance publications like Wallethub.

Legal observers and opponents of SB328 have also noted the legislation rests on shaky legal ground under the U.S. Constitution, and could be invalidated along with Pennsylvania's consent-by-registration regime under challenges making their way to the U.S. Supreme Court soon.

In the Illinois lawsuit, the Republican lawmakers said they also believe SB328 would harm Illinois' economy, calling it a "dubious piece of legislation."

"It purports to massively expand the general jurisdiction of Illinois Courts over foreign corporations in toxic tort litigation," McCombie, Curran and their fellow state lawmakers wrote in the filed complaint.

"The bill is yet another anti-business measure that is designed to enrich trial attorneys at the hands of businesses, and ultimately workers and taxpayers."

However, they said the lawsuit has nothing to do with the law's potential effects or "lack of substantive merit." Rather, the lawsuit challenges the legislation based on the "unconstitutional manner" by which Democrats passed SB328.

Specifically, the lawsuit takes aim at a controversial legislative tactic known as "gut and replace," and at a controversial legal precedent, known as the "enrolled bill doctrine," which the plaintiffs say have enabled Democrats to bypass constitutional rules for making laws.

As with about two dozen other pieces of legislation passed during the 2025 spring legislative session, Democratic leaders in the General Assembly dropped the legislation that would become SB328 onto the desks of lawmakers in the waning hours of the legislative session.

They then hurriedly voted on the legislation in both the House and Senate with little debate or discussion, sending the measure onto Pritzker for his signature.

Republicans say that violated the state constitution.

Under the Illinois state constitution, no legislation can be passed into law without receiving three separate readings on three separate days in each house of the General Assembly.

However, Democrats in Springfield have become adept at sidestepping those requirements using the "gut and replace" tactic.

Under that tactic, lawmakers first locate so-called "shell bills," or seemingly innocuous legislation that has already moved through most of the constitutionally required "three readings" process.

The so-called "shell bills" have typically already received all but one of those required readings, before being set aside for future use.

Then, typically in the closing moments of a legislative session, members of the supermajority amend those "shell bills" with legislation that completely replaces everything but the title of the bill and allows often controversial legislation to be passed on just one reading and quick votes in both the state House and Senate, before advancing to the governor for a likely quick signature.

In recent years, Illinois Democrats have used that process to quickly enact a variety of controversial and constitutionally questionable laws, including state laws substantially reforming the state's criminal justice system, eliminating cash bail, outlawing so-called "assault weapons," and forbidding Illinoisans from challenging the constitutionality of new state laws, except in courts in Chicago and Springfield, among others.

Critics say the tactic is used by the supermajority Democrats in an an increasingly brazen fashion to stymy any debate and allow no effective opposition to form that might threaten Democrats' legislative priorities.

However, to this point, legal challenges to such legislation for violating the "Three Readings" clause has failed repeatedly, as the Illinois Supreme Court has repeatedly refused to get involved.

Specifically, the Illinois Supreme Court has declined to review or overturn a previous holding, which established the so-called "Enrolled Bill Doctrine." Under that doctrine, the Illinois Supreme Court essentially declared that Illinois' House Speaker and Senate President can simply sign a certification that their respective houses abided by the Three Readings Rule and any other constitutional rules when enacting legislation.

The “Enrolled Bill Doctrine” then requires Illinois state courts to accept that certification and reject challenges to laws based on the Three Readings Rule, no matter any amount of evidence to the contrary.

Republicans on the state Supreme Court and justices on Illinois appeals courts have in recent years repeatedly called on the Democrats who dominate the state Supreme Court to require Democratic lawmakers to follow the state constitution when passing laws.

In recent weeks, Republican lawmakers have now filed two actions seeking to force the courts to take action.

In early June, a group of Republican lawmakers sued over the passage of Illinois' new $55 billion state budget, asserting Democrats had violated the Three Readings Rule in passing that legislation.

And now other Republican lawmakers are asking the court to take action over SB328, also noting neither Democratic legislative leaders, House Speaker Emanuel "Chris" Welch and Senate President Don Harmon, can legitimately claim the legislation was approved in accordance with the constitution's rules.

"... When legislation is introduced and rushed through the General Assembly at the last minute, immediately prior to adjournment, skipping over the truly deliberative process for which legislation is intended, everyone loses," the Republican lawmakers wrote in their lawsuit. "Legislators of both parties as well as the general public are deprived of any real opportunity to know about, or to debate the merits of a piece of legislation.

"This 'gut and replace' practice is not just bad policy. It contravenes the Illinois Constitution.

"... SB328 was passed in contravention of the Three Readings Rule," the lawmakers continued. "While the Speaker and Senate President certified that SB 328 was passed in accordance with constitutional requirements, the plain facts overcome any presumption of constitutionality that may otherwise be afforded SB328 via the Enrolled Bill Doctrine."

They are seeking a court order declaring SB328 violated the state constitution and voiding the legislation.

The Republican lawmakers are represented by attorney John Fogarty Jr., of Chicago.