The New Venue Statute: Fueling Age Old Debate Between Legislative and Judicial Authority

Plaintiffs who have traditionally filed lawsuits in the counties where their clients reside no longer have that choice if the basis for bringing the suit challenges the constitutionality of a state law and names the state of Illinois as a defendant. The plaintiff’s choice of a proper forum has now been restricted by a new venue provision enacted by the legislature, and effective immediately.

On June 6, 2023, Gov. JB Pritzker signed House Bill 3062, and, with the stroke of a pen, a new venue statute went into effect (Pub. Act 102-5, §2, (eff. June 5, 2023) (adding 735 ILCS 5/2-101.5)). The new law applies a forum selection clause to lawsuits brought against the “State, or any of its officers, employees, or agents acting in an official capacity” where the cause of action seeks declaratory or injunctive relief involving any state statute, rule or executive order based on an alleged violation of the Illinois Constitution or the Constitution of the United States. The new law provides that these causes of action must now be filed in either Sangamon County (Springfield) or Cook County (Chicago). It does not apply to claims arising out of collective bargaining disputes between the state and its employees. Notably, the doctrine of forum non conveniens is specifically excluded from actions subject to this section.

A sponsor of the Bill, Senate President Don Harmon, indicated that it was passed to prevent plaintiff’s attorneys from “forum shopping” by filing their cases in counties where they presumably find judges who are more sympathetic to their cause. (https://www.chicagolawbulletin.com/new-law-limits-venue-constitutional-l...). In recent years, there have been numerous cases filed in various counties throughout Illinois against the State, or its officers, challenging COVID-19 restrictions and restrictions on gun rights. These lawsuits have yielded differing results, depending on where the cause of action was filed. And, the Attorney General’s office has found itself defending identical lawsuits in numerous counties throughout the state. See e.g., JL Properties Group B., LLC v. Pritzker, 2021 IL App (3d) 200305; Fox Fire Tavern, LLC v. Pritzker, 2020 IL App (2d) 200623; Accuracy Firearms, LLC. v. Pritzker, 2023 IL App (5th) 230035; Guns Save Life, Inc. v. Raoul, 2019 IL App (4th) 190334.

The new venue statute not only creates an exception to the general venue statute (735 ILCS 5/2-101 (West 2020)), it also expressly excludes the common law doctrine of forum non conveniens, providing that “the doctrine of forum non conveniens does not apply” to actions brought pursuant to this law. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the United States Supreme Court discussed the common law doctrine of forum non conveniens. The court identified the important factors to be considered, such as relative ease of access to sources of proof, attendance of witnesses, the possibility of viewing the premises, among others. The court also identified public interest factors, such as the relationship of the case to the chosen forum. But above all else, the court concluded that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Gilbert, 330 U.S. at 508-09.

In Torres v. Walsh, 98 Ill. 2d 338 (1983), the Illinois Supreme Court adopted the doctrine of intrastate forum non conveniens in Illinois, asdescribed in Gulf Oil. Since Torres, Illinois courts have expanded the doctrine, noting it is an“equitable doctrine founded in considerations of fundamental fairness and sensible and effective judicial administration.” First American Bank v. Guerrine, 198 Ill. 2d 511, 515 (2002). Under this doctrine, trial courts evaluate the relevant private and public interest factors to determine whether a forum other than plaintiff’s chosen forum is more convenient to all parties. “The plaintiff has a substantial interest in choosing the forum where his rights will be vindicated, and the plaintiff’s forum choice should rarely be disturbed unless the other factors strongly favor transfer.” 198 Ill. 2d 517. Accordingly, “[t]he burden is on the defendant to show that relevant private and public interest factors ‘strongly favor’ the defendant’s choice of forum to warrant disturbing plaintiff’s choice.” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 444 (2006). Under the new venue statute, however, plaintiff has only one of two choices in selecting a forum, regardless of where the plaintiff resides or the cause of action arose.

In Peile v. Skelgas, Inc., 163 Ill. 2d 323 (1994), our supreme court considered the existing tensions between the legislature and the judiciary as it related to a venue statue, 735 ILCS 5/2-108 (West 1992). The court reiterated, “The Illinois Constitution clearly empowers this court to promulgate procedural rules to facilitate the judiciary in the discharge of its constitutional duties. [Citation.] Because the constitution also authorizes the legislature to enact procedural statutes, this court and the legislature may share concurrent authority to promulgate rules of procedure.” 163 Ill. 2d at 334. Illinois Supreme Court Rule 187 (eff. Jan. 1, 2018) is an example of the Illinois Supreme Court’s authority to provide a procedural framework for filing a motion pursuant to the doctrine of forum non conveniens. The specific reference in the new law to the inapplicability of the forum non conveniens doctrine may represent a novel question in the age-old debate regarding  the authority of the legislature vis-à-vis the  authority granted to the judiciary. As the Peile court cautioned, “[w]here possible, this court seeks to reconcile conflicts between procedural rules of the court and the procedural enactments of the legislature, but if a statute conflicts with a rule that involves a matter within the judicial authority, the statute must yield to the rule.” 163 Ill. 2d at 334.

In the new venue statute, the legislature selected either Sangamon County or Cook County for filing certain actions against the State. The statute provides no criteria for deciding between the two counties. And the doctrine of forum non conveniens does not apply. A constitutional challenge to this new statute has already been filed in Madison County. (Gary E. Myers v. Brendan Kelly, No. 2023 CH 35 (Cir. Ct. Madison County)). The plaintiff filed the action in his home forum and seeks injunctive relief, thus triggering the new venue statute. No decision has been rendered yet on whether the Madison County plaintiff will be required to transfer his case. And, it remains unclear what rules will be used to determine whether Sangamon County or Cook County is the proper forum for transfer. But the current focus of the litigation is on the constitutionality of the new venue statute. The new statute may reignite an age-old debate between plaintiffs and defendant over the right to choose the forum for litigation. Does this new statute tread upon or conflict with the constitutional authority granted to the judiciary under the Illinois constitution? For now, that question remains unanswered.