Illinois Supreme Court Upholds Constitutional Right to Jury of Twelve

In a 5-0 opinion, the Illinois Supreme Court held that the right to a trial by jury includes the right to demand a 12-member jury. Kakos v. Butler, 2016 L 120377. The Court held that Public Act 98-1132, which sought to limit the size of a civil jury to 6 persons, was facially unconstitutional. The court further held that because the provision regarding jury size could not be severed from the remainder of the Act, the statute was entirely invalid.

To achieve its twin goals of decreasing jury size and increasing juror pay, Public Act 98-1132 amended two statutes. First, it amended section 2-1105(b) of the Illinois Code of Civil Procedure by eliminating the ability of either party to request a jury of twelve. 735 ILCS 5/2-1105(b) (West 2012) (amended by Pub. Act 98-1132 (eff. June 1, 2015)) (“All jury cases shall be tried by a jury of 6.”). Second, the Act amended section 4-11001 of the Counties Code to provide a uniform and increased rate of pay for jurors. 55 ILCS 5/4-11001 (West 2012).

At the trial level, the plaintiffs filed a complaint at law alleging multiple counts of medical negligence and loss of consortium. The defendants requested a 12-person jury, and sought a declaration that Public Act 98-1132 was unconstitutional insofar as it required a jury of six. The Circuit Court agreed, and held that Public Act 98-1132 was facially unconstitutional, and that section 2-1105(b), as amended, was void. The plaintiffs filed a notice of appeal as of right pursuant to Illinois Supreme Court Rule 302.

After acknowledging that the United States Constitution does not guarantee a right to trial by a jury of 12, the Court turned its attention to Article I, section 13 of the Illinois Constitution, which states that:

“The right of trial by jury as heretofore enjoyed shall remain inviolate.”
Ill. Const. 1970, art. I, § 13 (emphasis added). The Court recognized that it has long interpreted the phrase “as heretofore enjoyed” as preserving “the right of a trial by jury as it existed under the common law and as enjoyed at the time of the adoption of the respective Illinois Constitutions.” Kakos, 2016 L 120377, ¶ 14. Although the Court acknowledged that section 13 does not preserve all features of a common-law jury trial, it nonetheless concluded that the size of the jury “was an essential element of the right of trial by jury at the time the 1970 Constitution was drafted,” and as such that right was “preserved and protected in the Constitution.” Id., ¶ 28. In support of its conclusion, the Court noted that “transcripts from the constitutional convention debates disclose that the delegates did not believe that the legislature had the authority to reduce the size of a civil jury.” Id., ¶ 23. The Court considered these transcripts as “ample evidence that the drafters at the 1970 Constitutional Convention believed that they were specifically preserving the right to a 12-person jury when they adopted the current Constitution.” Id., ¶ 22. Consequently, the Court held that Public Act 98-1132, as it amended section 2-1105(b), is unconstitutional and void ab initio.
Finally, the court considered whether it could sever the unconstitutional provision from the remainder of the Act. However, it concluded that the two provisions — a decrease in jury size and an increase in jury pay — were designed to act “in tandem.” Id., ¶ 33. In reviewing the transcripts of the legislative debates regarding Public Act 98-1132, the court found it evident that the legislature would not have passed the provision increasing pay independently. Accordingly, the Court concluded “that the provision reducing the size of the jury cannot be severed from the remainder of Public Act 98-1132 and that the entirely [sic] of the Act is invalid.” Id., ¶ 34.

Please contact Simon Baker at with any questions. A full copy of the decision is available here.