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During the May term, the Illinois Supreme Court heard oral argument in Kakos v. Bauer, a constitutional challenge to Public Act 98-1132, the 2015 statute mandating six-person juries in civil cases in Illinois. Based upon the pattern of questioning, it appears fairly likely that the Court is inclined to affirm the judgment and strike down the statute. The opinion of the Cook County Circuit Court holding that the 6-person jury statute is facially unconstitutional is here.

Before Public Act 98-1132 went into effect, 735 ILCS 5/2-1105(b) stated that claims involving $50,000 or less in controversy may be tried to a jury unless either party demanded a 12-person jury. The Act amended the statute to abolish the opt-out by which parties could insist on a full 12-person jury. At the same time, daily juror fees were significantly increased.

In Kakos, the defendants moved for leave to file a 12-person jury demand, and in the alternative for an order holding that Section 2-1105(b) was facially unconstitutional. The defendants argued that the abolition of 12-person juries violated Article I, Section 13 of the Illinois Constitution, which protects the right to a jury trial. The trial court agreed with the defendants. In a 27-page opinion, the Court held that twelve jurors was a substantive part of the jury trial right, beyond the Legislature’s authority to change. Even if that weren’t so, the Court further held, the statute also fell on separation of powers grounds, since the state Constitution vests the power to regulate the conduct of trials exclusively in the state Supreme Court. The appeal went directly to the Supreme Court as a matter of right.

Counsel for the plaintiff began the oral argument at the Supreme Court. Counsel explained that there were two issues in the case: first, was section 2-1105 constitutional, and second, even if there wasn’t a 12-person jury right, could the General Assembly (as opposed to the Supreme Court) make the change? Counsel noted that Section 13 of Article I doesn’t specify a number of jurors. The defendants argued that the number twelve was sacrosanct, but counsel insisted that a six person jury serves exactly the same purpose as having a dozen jurors. The issue, counsel argued, is whether the citizen is being protected, and the answer with six jurors is still yes. Justice Karmeier asked whether the General Assembly could reduce the jury to three, or two, or even one juror. Counsel said it was up to the General Assembly to determine what number still amounted to a jury of one’s peers. Justice Burke commented that the plain language of Section 13 protects the jury right as “heretofore enjoyed,” and asked what that means. Counsel responded that at the time the 1970 constitution was adopted, the court had already determined that a jury of six was okay. Justice Burke asked whether any of the 1970 constitutional convention debates supported smaller juries, and counsel said no, the language was carried over from an earlier version of the constitution. Counsel noted that when the 1870 constitution was approved, it was widely accepted that a jury was twelve men. During the 1920 constitutional convention, there was some discussion of whether women had the ability or the right to sit on a jury. Ultimately, the General Assembly opened juries to both genders by statute, and in 1937, the Supreme Court okayed that statute. Whatever the Convention thought in 1970, counsel argued, doesn’t mean that the General Assembly doesn’t have the authority to tweak the interpretation of the jury trial right. Justice Theis commented that the Court has reaffirmed over and over the notion that a trial by jury is twelve people. Isn’t that principle deeply embedded in the Court’s jurisprudence? Counsel answered that the Court had never decided expressly whether six jurors were eonough. Counsel noted that some dicta over the years has suggested that only the basic purpose of the jury must remain the same – details can evolve. The Chief Justice asked where the Court had purportedly approved a six-person jury – in Rule 285? Counsel said yes, and noted that Rule 285 was already in place at the time of the 1970 constitutional convention. There’s now fifty years of precedent for six people sitting in civil cases. Chief Justice Garman pointed out that under Rule 285, the only way one can get to six jurors is if both sides agree, but counsel suggested that in a sense, that misses the point; the Court has put its imprimatur on a six person jury, which serves the same purpose as twelve. Justice Karmeier said that counsel was talking about the purpose of the jury, but wasn’t the issue what the constitution meant? Counsel agreed that the issue was construing the constitution. Chief Justice Garman asked whether there was any evidence that the constitutional convention delegates in 1970 believed that the legislature could reduce the size of a jury. Counsel responded that it wasn’t clear, and the text doesn’t say. He concluded by briefly turning to the second issue, noting that the Court has held before that the General Assembly has the power to pass laws affecting the operation of the judicial system.

Counsel for the defendants followed, arguing that numerous decisions have confirmed that a jury must be twelve. Every court which has ever looked at the possibility of smaller juries (without an opt-out) has held that they are not permitted. Justice Theis noted that at the constitutional convention, an amendment was offered which engaged these specific issues – what happened? Counsel answered that ultimately, the bottom line at the convention was that juries had to be twelve. Public policy and other states’ decisions upholding six person juries are irrelevant, counsel argued – the Illinois constitution has always had the same operative language, and every case that has ever considered the matter has found twelve to be essential. Counsel also suggested that the new statute can’t be squared with Rule 285’s provision for a default of six in small claims absent objection, and where a statute and Supreme Court Rule conflict, the rule trumps the statute. Counsel argued that the plaintiffs were citing federal constitutional decisions, but the Court has held that Federal law is irrelevant with respect to this provision, since the Illinois jury trial right is broader in scope than the federal right. Counsel agreed that the legislature has made changes over the years on the procedural side, such as the timing of a jury trial demand, but the number of the jury is a substantive component of the right. Counsel argued that public policy discussions were irrelevant too – it didn’t matter whether a six person jury might arguably serve the same purpose. Counsel concluded with the separation of powers issue, noting that the legislature is limited to passing statutes on judicial procedure which either complement the authority of the Supreme Court or have only a peripheral impact on court administration. The primary authority to regulate judicial proceedings is exclusively vested in the Supreme Court. The 6-person jury statute, according to counsel, is not one which complements the Court’s authority.

Counsel for the plaintiffs concluded by again arguing that the Supreme Court has never had to decide whether six person juries are permissible. Juries of six have been allowed since 1964 through Rule 285. The question for the Court is whether the six person jury fulfills the purpose of juries. The point is to protect the citizens against the improper use of government power. The legislature has concluded that six is enough to serve that purpose. According to counsel, although the legislature can’t impair the essentials of the jury trial right, it has the power to legislate about the issue. Counsel noted that the predecessor statute amended by Public Act 98-1132 had differed from Rule 285 – the Rule provided for optional six-person juries in cases involving $10,000 or less, but the previous statute set that threshold at $50,000. Counsel denied that Supreme Court rules automatically trumped statutes, and suggested that Rule 285 could be interpreted in a way as to be consistent with the six-person jury statute.

We expect Kakos to be decided in three to four months.

Image courtesy of Flickr by Steve Cornelius (no changes).