The City of Evanston has filed its reply to the Fitton-driven nonsense. These crisis actors are simply too late — five years too late — in complaining.

The able USDC Judge Kness will soon so rule. Here is the latest, a powerful argument, from my city’s counsel — and a bit of it:

…Bifurcation of discovery is the means by which this Court can best fulfill its constitutional avoidance obligation. As discussed above, the timeliness of Plaintiffs’ injury of being “able and ready” to apply to the Program but being deterred from doing so is a separate inquiry from whether Plaintiffs actually could have truthfully applied to the Program. Bifurcating discovery is the mechanism by which this Court can avoid deciding Plaintiffs’ case on a constitutional issue and instead terminate Plaintiffs’ case through the straightforward issue of timeliness. Plaintiffs’ rejoinder that constitutional avoidance “says nothing about how a court should sequence discovery” (see ECF No. 59 at 9), misses the point: courts routinely consider the avoidance principle in exercising their case-management discretion. See Ameritech Corp. v. McCann, 403 F.3d 908, 911 (7th Cir. 2005) (noting that “federal courts are supposed to explore all nonconstitutional grounds of decision first, to ensure against unnecessary constitutional adjudication” and then reexamining a lower court decision “in the right order” by analyzing non-constitutional grounds for adjudication prior to addressing the constitutional issues). The Seventh Circuit has long recognized the “well established rule” that constitutional questions should not be reached where a case may be resolved on other grounds. See Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1342 (7th Cir. 1977).

Nor is Evanston’s statute of limitations defense a constitutional question in disguise: an affirmative defense based on the accrual and expiration of a limitations period is a paradigmatic non-constitutional ground for resolving a case. See, e.g., Davis v. Borgen, 349 F.3d 1027, 1029 (7th Cir. 2003) (noting that a district court should not issue a certificate of appealability on a constitutional question where the underlying case was essentially resolved by a nonconstitutional issue like the claim being untimely)….

The motion to intervene filed by the United States (“the Government”) after Evanston moved to bifurcate discovery does not change the priority of bifurcating discovery as to the Plaintiffs. See ECF No. 48. As addressed in its opposition to the intervention motion and response to Plaintiffs’ motion to stay briefing on the Motion, Evanston contends that the Government’s motion is untimely and bifurcation is appropriate as to Plaintiffs’ claims regardless, so intervention is no basis to deny the Motion. See ECF No. 56 at 4; ECF No. 60 at 4–9. Both plaintiffs and intervenors must bring their claims in a timely manner. See Flower Cab Co. v. Petitte, 1987 WL 14715, at *4–6 (N.D. Ill. July 21, 1987)….

UPDATED: Monday, August 3, 2026 — Mr. Boutros, the
Trumpian AUSA — has claimed this evening that he (as the USA) can intervene, even when he’s missed the statute of limitations. The law is clear: he is completely wrong on it. So I won’t quote it — but just link it for a complete record. End updated portion.

Now you know. Onward, grinning. Yep. That’s (eventually) game… over.

नमस्ते