The Illinois Supreme Court on Wednesday heard arguments in a case centered on whether a state law passed in 2023 violates the due process rights of Illinoisans outside Sangamon and Cook counties.

A 2023 law restricts certain types of lawsuits – namely challenges to a law’s constitutionality – to courts in those two counties. The law came in response to challenges to the state’s COVID-19 response, a state law ending cash bail and the state’s ban on assault weapons, among others.

These lawsuits – often filed in jurisdictions with sympathetic judges – became a way for some conservatives to make a name for themselves at the state level. Former governor candidate and state Sen. Darren Bailey, R-Xenia, and former attorney general candidate Thomas DeVore both backed high-profile lawsuits challenging the constitutionality of state laws.

“There has been considerable judge shopping as a tactic that has been used by litigants to secure sweeping court orders blocking state policies by steering cases to judges perceived to be sympathetic to these causes,” the bill’s sponsor, Rep. Jay Hoffman, D-Swansea, said during debate over the bill two years ago.

The practice of choosing where to file a lawsuit based on a judge’s record or political leanings is sometimes called “forum shopping” or “venue shopping.”

In March 2024, the Judicial Conference of the United States – which makes policy for federal courts – moved to require random judge assignments for civil cases in federal court that might bar or mandate government action.

The case before the Illinois Supreme Court was brought by Piasa Armory, an East Alton gun store. It challenged the constitutionality of an unrelated firearms regulation, the Firearm Industry Responsibility Act, which was also signed into law in 2023. That law subjects firearms groups to civil penalties for violating consumer protection laws.

Piasa Armory almost immediately filed a lawsuit challenging that law in Madison County, about a 30-minute drive from the gun store. The state then tried to move the case to Sangamon County – about 90 minutes from East Alton – citing the then-new law.

But a Madison County judge rejected the state’s attempt to move the case, saying that the law violated the due process rights of residents of other counties by “depriving” them of their ability to mount their best possible case.

“The Circuit Court did so on the thinnest possible record,” Deputy Solicitor General Alex Hemmer argued on behalf of the state. “Two declarations asserting that it would be more quote ‘convenient’ to litigate this case in Madison County rather than here in Sangamon County, an additional hour away. That showing cannot be enough to establish that a venue rule violates the due process clause.”

Hemmer said the court should “at minimum” rule narrowly against Piasa Armory based on the record of the case, although the state “would welcome” an opinion on the law’s constitutionality.

More broadly, the state argued that the law falls within the bounds of other laws that restrict where certain types of lawsuits can be filed. These “venue statutes” are generally constitutional under a 1990 Illinois case Williams v. Illinois State Scholarship Commission. That case carves an exception for laws that are “so arbitrary and unreasonable as to deprive defendants of due process.”

“The Supreme Court has never held — or even hinted — that a State could impair a litigant’s right of access to courts simply by setting venue in an inconvenient forum,” the state argued in a written brief.

In oral arguments, Hemmer also hinted at the policy implications of striking down the law, noting that the large number of COVID-related constitutional cases caused “chaos and uncertainty.”

Piasa Armory, represented by Thomas Maag, pointed to the same decision and the same federal legal test around due process as to why the state’s venue law is inappropriate.

“It is far more difficult to litigate hours away from your home forum than it is in your home forum, especially when there’s no compelling interest or reason to force you to litigate in a foreign jurisdiction or in a foreign county,” Maag said Wednesday.

Maag’s written briefs also noted that the Williams court case allows a court to strike down venue statutes when “constitutional provisions are violated.”

Several advocacy groups filed “friend of the court” briefs presenting arguments about a related legal doctrine allowing judges to dismiss cases that could be more conveniently heard somewhere else that some hope to see overturned.

The case is now under review by the court, which has not indicated when it will release a decision.

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