In an important ruling that sets up a direct appeal to the Illinois Supreme Court, a Cook County judge held yesterday in a medical malpractice case (Kakos v. Butler, et al., No. 15 L 6691) that the Illinois statute cutting the size of civil-case juries from twelve to six jurors is unconstitutional on its face.  As a result, the case will bypass the appellate court and go directly to the Illinois Supreme Court for a decision on the constitutionality of the amended statute.   The Illinois legislature had amended the statute, 735 ILCS 1105(b), effective June 1, 2015, replacing twelve-person juries in civil cases with six-person juries.  The amended statute effectively eliminates 12-person juries in all civil cases.

In the ruling, Judge William Gomolinski held the legislature had no the authority under Section 1, Article 13 of the 1970 Illinois Constitution to reduce the number of jurors in civil cases from twelve to six.  Article 1, Section 13 of the Illinois Constitution provides that “[t]he right to a trial by jury as heretofore enjoyed shall remain inviolate.”  Although the phrase does not expressly mention 12-person juries, Judge Gomolinski found it necessarily includes a right to a jury of twelve based on the history of the Illinois Constitution and the civil jury trial right in Illinois.  The decision turns on the meaning of the phrase “heretofore enjoyed.”  Judge Gomolinski noted that the right to a 12-person jury had existed in Illinois for over 100 years as of 1970, and that the drafters of the 1970 Constitution had expressly considered and rejected the idea of reducing the size of civil-case juries from twelve to six jurors.  In other words, the drafters of the 1970 Constitution intended to guarantee the right to a 12-peson jury in civil cases, and that right can only be changed by constitutional amendment.  Judge Gomolinski found the legislature’s attempt to change the number of jurors in civil cases “fundamentally at odds” with the intent of the Illinois Constitution and therefore unconstitutional.

The case will likely reach the Illinois Supreme Court soon, with a decision to follow possibly in late 2016.