Saying the Illinois Supreme Court has all but thumbed its collective nose at the U.S. Supreme Court, as well as the U.S. and Illinois state constitutions, a downstate Illinois representative has asked the nation's highest court to review and overturn the Illinois Supreme Court's decision that ended gun owners' state court challenges to Illinois' law banning so-called "assault weapons."

On Nov. 14, Illinois State Rep. Dan Caulkins, a Republican, of Decatur, along with other Macon County gun owners, filed a petition with the U.S. Supreme Court, saying that court offers the only recourse remaining to Illinois residents in addressing alleged injustices perpetrated by allegedly biased justices, who allegedly ruled under the sway of Gov. JB Pritzker and the state's two most powerful lawmakers.

"When the judicial branch abdicates its role to enforce the state constitution (effectively ceding its independence to the other branches) one fairly questions whether the form of government to which the citizens consented becomes an illusion," Caulkins' legal team wrote in the petition. "And, in this case, the effects transcend politics to invade the protection of fundamental rights codified in the Second Amendment, which that state judiciary is bound to protect under the United States Constitution."

Illinois State Rep. Dan Caulkins, R-Decatur | Repcaulkins.com

The petition particularly centers on accusations against Illinois Supreme Court Justices Elizabeth Rochford and Mary K. O'Brien, who notably refused to step aside from hearing Caulkins' challenge to the gun ban when it landed before the state high court earlier this year.

The petition asserts the refusal to recuse stands in violation of U.S. Supreme Court decisions directing judges - and particularly, elected state supreme court justices - to step aside from hearing cases involving parties who donated significant amounts of money to their campaign funds.

In this instance, both Rochford and O'Brien received millions of dollars from Gov. Pritzker, a campaign organization run by Pritzker, and from campaign committees led by Illinois House Speaker Emanuel "Chris" Welch, D-Hillside, and State Senate President Don Harmon, D-Oak Park.

"Nothing could be more injurious to the judiciary than the perception that its independence is for sale," Caulkins and his co-plaintiffs wrote.

Further, the petition notes that Justices Rochford and O'Brien both received strong endorsements from anti-gun groups, who proclaimed that banning "assault weapons" represented their highest policy goal in Illinois. Typically, such endorsements come after candidates for office pledge to those groups their intent to ensure the enactment of such gun bans, Caulkins and his co-plaintiffs said.

In this case, the petitioners claim it shows the justices had likely pre-determined the outcome to the cases, and had then essentially worked backward, to find ways to justify the constitutional viability of a state law that otherwise should have been found to have violated Illinoisans' constitutional rights.

"The integrity of the judiciary is eroded, one step at a time, until a hard stop is placed on the serial practices of the Illinois Supreme Court," the Caulkins petition said.

Different constitutions, different challenges

The petition comes three months since the Illinois Supreme Court ruled the state's "assault weapons" ban did not violate the Illinois state constitution.

The gun ban, contained in the law titled the Protect Illinois Communities Act, was enacted by Pritzker and the state's Democratic legislative supermajority in January 2023. Generally, the law bans the sale or purchase of a long list of semiautomatic firearms, which the state has labeled dangerous and especially lethal “assault weapons” and so-called “large capacity” ammunition magazines typically employed when using such weapons, as well as other accessories.

The law also requires the current owners of such weapons to register them with the Illinois State Police. Anyone who doesn’t comply with the law could face steep fines or imprisonment.

Pritzker and other supporters of the law say it is needed to restrict the ability of people to acquire the “assault weapons” and reduce the risk of future mass shootings, such as the massacre carried out by a lone gunman possessing an “assault rifle” at the Fourth of July parade in Highland Park in 2022.

The law was quickly challenged in multiple courts. 

Most of the lawsuits challenged the law on the basis that it violates Illinoisans' Second Amendment rights to keep and bear arms, particularly as interpreted by recent U.S. Supreme Court decisions.

Those challenges, consolidated in federal court, remain pending. However, the U.S. Seventh Circuit Court of Appeals recently rejected plaintiffs' request to block the state from enforcing the law while those challenges continue. In that 2-1 decision, two judges with a history of upholding other gun bans reasoned that the new Illinois gun ban can be considered constitutional because the state should be free to ban any weapons it believes are too dangerous and too similar to those used by the U.S. military, in the name of protecting the public.

Plaintiffs in those cases have indicated they are likely to also appeal that ruling to the U.S. Supreme Court, as they assert the ruling all but flaunts the most recent Supreme Court decisions concerning Second Amendment rights.

However, while the Second Amendment-based court challenges were playing out, other challengers, including Caulkins, filed suit in Illinois state courts, saying the law also violated the Illinois state constitution.

Those challenges asserted the law violated Illinoisans' state constitutional rights to equal protection, because the law allows some people, including those who already owned the otherwise banned weapons, current and retired police officers, private security guards, and others, to continue owning and using such weapons, while denying that right to everyone else.

The challenges further accused Welch and Harmon of ignoring mandates within the state constitution governing how Illinois state lawmakers must approve new laws. 

Specifically, the lawsuits say the state legislative leaders violated the so-called "Three Readings Rule," which requires lawmakers in each house of the General Assembly to read each new law on three separate days before taking a vote. In this instance, they said lawmakers relied on the so-called "Enrolled Bill Doctrine," an allowance granted by Illinois Supreme Court decades ago, preventing the courts from considering if the rules were followed, so long as the House Speaker and Senate President merely assert they were, no matter the evidence to the contrary.

After a Macon County judge ruled the law unconstitutional, Pritzker and Illinois Attorney General Kwame Raoul appealed to the Illinois Supreme Court, which ruled on Aug. 11.

The Illinois Supreme Court decision was notable for several reasons.

First, the majority decision was authored by Justice Rochford, even though the former Lake County judge was one of the court's most junior members, having only been elected to the high court in November 2022.

Next, while the ruling was nominally 4-3, only the court's two Republicans actually dissented in support of the plaintiffs. 

Justice O'Brien - also one of the court's newest justices - separately dissented, but on the grounds that the gun ban wasn't severe enough, because it allowed too many people to keep their firearms.

The decision also explicitly refused to address any Second Amendment-related questions. Rochford and the majority noted the plaintiffs in the case went to lengths to avoid such a direct challenge to the law under the Second Amendment, to avoid having their cases consolidated with those pending in federal court.

Finally, the decision came after both Rochford and O'Brien specifically rejected a demand from Caulkins and his co-plaintiffs to recuse themselves from the case.

Recusal refusal

That demand was presented in a formal motion for recusal. That motion pointed to the U.S. Supreme Court’s 2009 decision in Caperton v Massey.

In that case, the nation’s highest court determined a West Virginia Supreme Court justice had violated the due process rights of litigants before that court when he refused to step aside from hearing a case, despite having received big campaign support from a businessman involved in the case.

In that decision, the U.S. Supreme Court said no one needed to prove “actual bias.” Rather, it was enough, they said, that there was a “serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

In this case, Caulkins and the other Macon County gun owners said campaign donations from Pritzker, Welch and Harmon amounted to a similar problem: They could not receive a fair hearing from a court on which two justices had received big campaign support from the governor, who is also one of the top defendants in the case.

In the petition to the U.S. Supreme Court, Caulkins and his fellow Macon County plaintiffs said Rochford's and O'Brien's recusal refusal all but defied the Caperton holding, setting a dangerous precedent and fueling a belief among many in Illinois that their state government - including the Illinois Supreme Court - is wholly controlled by Pritzker, Welch and Harmon, in violation of the separation of powers supposedly guaranteed by the state and U.S. constitutions.

In refusing to recuse, Rochford and O'Brien said the Macon County plaintiffs did not demonstrate they were actually biased and could not prove they actually had stated support for the "assault weapons" ban. 

They said the campaign donations alone also did not demonstrate that they were under Pritzker's sway or require them to recuse themselves.

Rochford said Caulkins was using "sinister aspersions" in an attempt "to show bias based upon inference and supposition, to create the appearance of impropriety where none exists.”

The petition acknowledges that Rochford and O'Brien have the right, as candidates for office, to seek and receive campaign contributions without needing to constantly step aside in all manner of cases.

But they said, in this instance, the size of the donations from Pritzker alone - a combined $2.5 million to Rochford and O'Brien - and the constitutional stakes of the case, involving a law loudly and proudly supported by the governor, when combined with Rochford's and O'Brien's own perceived support for "assault weapons" bans, meant Illinoisans' rights to fair hearing before an impartial court were denied.

"Justices Rochford and O’Brien were free to accept contributions to conduct a campaign for election," the petition said. "However, the candidates were not exonerated from the consequences of their decision to accept unreasonable and disproportionate contributions implying bias, that is, an obligation under Caperton to recuse as Judges to assure that the due process rights of litigants are protected and the public interest in an independent, impartial judiciary is preserved.

"If anything, the personal interest of the judge seeking office must yield to the public interest in an independent judiciary once elected."

The petition also asked the U.S. Supreme Court to rebuke the Illinois Supreme Court for its repeated refusal to enforce the state constitution's legislative process rules, allegedly abdicating its role as a co-equal branch of government.

The petition was filed by attorneys Jerrold H. Stocks, Brian D. Eck and Patrick C. Sullivan, of the firm of Featherstun Gaumer Stocks Flynn & Eck, of Decatur. They are the same attorneys who represented Caulkins and his co-plaintiffs before the Illinois Supreme Court.

Illinois Attorney General Kwame Raoul and others will be given the opportunity to respond to the petition and its accusations.