Illinois Supreme Court Strikes a Blow for the Illinois Defense Bar— 6-Person Juror Law Held Unconstitutional

November 17, 2016 / Writing and Speaking

Introduction

In Volume 4 of our 2014 CM Report, CM partners Scott Ritchie and Sava Vojcanin alerted our friends in the industry to a new piece of legislation reducing the number of jurors in trials from 12 to 6. As Scott and Sava reported, this legislation reducing the number of jurors was opposed by the Defense Bar—and for good reason, as Scott and Sava pointed out in their report:

[S]imple math suggests that finding unanimity among 6 jurors compared to 12 is easier. It is for this reason that the Plaintiffs’ Bar has advocated this legislation. There is clearly a perception in the Plaintiffs’ Bar that with the burden of proof in civil cases they would rather have to persuade only 6 jurors than 12 jurors.

On September 22, 2016, the Illinois Supreme Court rejected the attempt of the plaintiffs’ personal injury bar to obtain smaller juries that would grant larger damage awards. The Illinois Supreme Court ruled 5-0 that the law was unconstitutional because the Illinois Constitution does not allow the legislature to alter the size of civil juries from 12 members.

The Supreme Court’s Analysis

The proponents of this legislation reducing the size of juries down to 6 maintained that this plaintiffs-favored legislation did not violate any of defendants’ rights because there is no right under the Illinois Constitution to a jury composed of 12 jurors. Defendants, however, maintained there was such a right and bore a heavy burden before the Illinois Supreme Court in making this facial challenge that the statute was unconstitutional, as defendants had to show that there were no set of circumstances existing under which the Act would be valid. The Supreme Court’s decision made clear that defendants met this heavy burden.

The Supreme Court began its analysis by focusing on Article I, Section 13 of the Illinois Constitution, which states: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” According to the Court, the construction of the phrase “as heretofore enjoyed” was the linchpin of its analysis on whether the plaintiffs favored legislation was constitutional. The Supreme Court found that it had long interpreted the phrase “as heretofore enjoyed” to mean “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.”

The Court reached back to a decision it issued in 1897, in which it identified certain features of a trial which could not be “dispensed with or disregarded” and among those features was a jury of 12. The Court noted that since that time, in other decisions, when juries were discussed, the Supreme Court often referred to the size of a jury as being comprised of 12 members—be it in civil or criminal trials.

Given this backdrop of common law, the Supreme Court next determined whether the drafters of the 1970 Constitution intended to maintain the right of a 12-person jury under the 1970 Constitution. In answering this question, the Supreme Court turned to the debates of the 1970 Constitutional Convention and found that from the debates there was “ample evidence that the drafters of the 1970 Constitutional Convention believed they were specifically preserving the right to a 12-person jury when they adopted the current Constitution.”

Plaintiffs, however, tried to salvage this plaintiff-favored legislation by contending that not all common law features of a jury trial were preserved in the 1970 Illinois Constitution. Plaintiffs argued that in describing the jury feature, the Supreme Court had on occasion used the phrase “12 men.” Plaintiffs argued that since the Supreme Court never held that “12 men” did not also refer to men and women, the fact that the Supreme Court used the “number 12” in its descriptions of a jury did not mean that the “number 12” was an essential element of a jury trial.

The Supreme Court gave short shrift to this attempt to salvage this legislation, holding that plaintiffs’ argument provided no support that the legislature could change the size of a jury without infringing on the right of trial by jury.

Learning Point: This unanimous decision by the Illinois Supreme Court preserving a defendant’s right to 12 jurors shows that the plaintiffs’ personal injury bar doesn’t always get everything it wants in this State. The unanimous nature of this decision and the Supreme Court’s strong language that a jury of 12 people was an essential element of the right of a trial by jury has persuaded the plaintiffs’ personal injury bar to “throw in the towel” on any further attempts to pass future legislation establishing 6-person juries. The plaintiffs’ personal injury bar has recognized that any such attempts would be a waste of time given this Supreme Court decision.

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