ILLINOIS LAW UPDATE: PA 98-1132 Found to be Unconstitutional

The Cook County Circuit Court has just ruled in Kakos v. Butler et al. (Ct. No. 2015-L-6691) case that the Illinois Legislature’s amendment of 735 ILCS 5/2-1105 is unconstitutional on its face and cannot reasonably be construed in a manner that would preserve its validity. The court held that the amendment was an infringement of the right to a trial by jury under the Illinois Constitution. The court looked extensively at the Illinois legislative history of the right to a 12-person jury and found that the legislature has always treated the 12-person jury as the fair and accepted standard from which deviations were permitted under certain circumstances. The court went back to the Illinois Constitutions of 1818, 1848 and 1970 for its analysis and found that the right was protected under each of those constitutions as a right that existed at common law. The court held that the fact that parties had to consent to a unanimous verdict of less than 12 jurors was indicative of the right to a jury of 12. The court specifically addressed the People v. Williams case cited by the plaintiffs as the one case that directly challenged the right to a jury of 12. In that case the court ordered that a 6-person jury to determine the defendant’s fitness to stand trial was upheld. However, the court here also noted that the court in Williams distinguished the defendant’s pretrial fitness from the actual criminal trial in which the defendant was entitled to a 12-person jury. People v. Williams, 205 Ill. App.3d 715, 720-21 (1st Dist. 1990).

The court also addressed the plaintiff’s argument that the Ballew v. Georgia decision made clear that the Constitution did not mandate a 12-person jury. Ballew v. Georgia, 435 U.S. 223, 243-44 (1978). However, the court here also noted that the opinion in Ballew contains a thorough discussion of the available data on the effects of jury size, noting that the data suggests that smaller juries are less likely to foster effective group deliberation, to reach accurate results, and to reflect the diversity within a community and allow minority viewpoints to be heard. 435 U.S. 232-37. The court then noted that Illinois protections are even broader than those of the Federal Constitution and that where the language, convention debates, or committee reports of our state constitution indicate that a provision of the state constitution was intended to be construed differently from the U.S. Constitution, our courts will not be bound by the construction of the corresponding federal provision. (citing People ex rel. Daley v. Joyce, 126 Ill.2d 209, 213 (1988). The court said it was clear that the Illinois delegates intended the right to be different from that of the federal constitution and since the right has consistently been interpreted under the state constitution in this way, our legislature has no authority to curtail this right, short of amending the language of the constitution.

Finally, the court held that by enacting PA 98-1132, the legislature unconstitutionally infringed on the power of the judiciary to regulate conduct at trials and thus violated separation of powers under the Constitution. In response to the plaintiff’s public policy argument that the legislature amended the statute to decrease the number of jurors that would need to be compensated and/or have their lives disrupted by jury service. The court held that the issue here is not whether the legislature’s decision was well intentioned. Rather, the problem is that the legislature acted beyond the scope of its powers in enacting this amendment by contradicting the right specifically provided for by the Illinois constitution. Further, the court explained that a statute that violates the constitution is invalid regardless of how beneficial its effects may be and thus, the legislature’s intentions cannot save this amendment.

While this bodes well for reinstatement of the right to a 12-person jury in Illinois, the plaintiffs in this case will likely seek further appeal on this matter.