Illinois Supreme Court Finds Law Reducing Size of Civil Juries From 12 to 6 Unconstitutional

October 2016

By Jeffrey F. Clement

In an opinion filed on September 22, 2016 in the case of Kakos v. Butler, 2016 IL 120377, the Supreme Court of Illinois (the "court") held Public Act 98-1132 was facially unconstitutional.

Public Act 98-1132 (the "Act") was enacted in December 2014 and took effect on June 1, 2015. The Act limited the size of a civil jury to 6 persons and increased the amount paid per day to jurors across the state. The Act was generally believed to be favorable to the plaintiffs' bar because smaller juries may tend to award more money damages.

In the trial court, defendants in a medical malpractice suit sought leave to file a 12-person jury demand and to have the Act declared unconstitutional. Cook County Judge Gomolinski ruled the provision reducing the jury size from 12 to 6 was facially unconstitutional based on article I, section 13, of the Illinois Constitution, which protects the right of trial by jury.

On appeal, the court noted the 1970 Illinois Constitution protects the right of trial by jury "as heretofore enjoyed," which means the right as it was enjoyed at the time the constitution was drafted. Under this definition, all "essential common-law features" of a jury trial as then enjoyed were to be preserved and protected.

The court then analyzed whether a 12-person jury was an "essential common-law feature" of a jury trial at the time of the 1970 Illinois Constitution. Based on prior precedent reaching back to 1897, the court concluded it had long included the 12-person size of a jury within its description of the essential features of a jury trial. The court also reviewed transcripts from the convention debates, which showed the drafters did not believe the legislature had the authority to reduce the size of a jury below 12 members and the drafters did not act to the give the legislature such power. Therefore, the court held the right of trial by jury includes the right to demand a 12-member jury. As a result, the Act was facially unconstitutional.

The court's opinion invalidated the entire Act, including the provision calling for higher pay for juries.

Based on the court's ruling, any future legislative effort to reduce the size of juries in Illinois should be unconstitutional. Only a future constitutional amendment could potentially impede the right of a party to demand a 12-person jury.

This is a very positive development for BCM and its clients. BCM represents defendants in civil litigation in a wide range of losses. The Act was generally viewed as being favorable to plaintiffs. Illinois requires unanimous jury verdicts. It is easier for plaintiffs to convince a jury of 6 than a jury of 12 and there is less likely to be a single hold out juror in a jury of 6. As such, the court's ruling requiring a jury of 12 should be beneficial in all Illinois venues.