In the legal world, few matters can be ascertained with unequivocal certainty. But where a statute on its face clearly violates a pristine constitutional provision, it can be said that the constitution will prevail and the statute will fall.

Such is the case here: “The right of trial by jury as heretofore enjoyed shall remain inviolate.”

Those are the simple, clear words of Section 13, titled “Trial by Jury,” of Article I’s Bill of Rights to the 1970 Illinois Constitution.

The predecessor to the above trial by jury provision is Section 5 of Article II’s Bill of Rights of the 1870 Illinois Constitution: “The right of trial by jury as heretofore enjoyed, shall remain inviolate [but the trial of civil cases before justices of the peace by a jury of less than 12 men, may be authorized by law].”

The 1970 constitution did not include the bracketed words because justices of the peace were abolished by the 1962 Judicial Article to the 1870 constitution.

Accordingly, the constitutional right to trial by jury in Illinois has been clearly expressed in virtually the same verbiage at least since 1870, for nearly 150 years, in two constitutions. To be noted is that the 1818 and 1848 constitutions also expressed the right of trial by jury in very similar language as contained in the 1870 and 1970 constitutions.

Enter the 98th Illinois General Assembly.

During the December 2014 lame duck session of the legislature, Senate Bill 3075, as amended, was rushed through the legislature with little debate. (See the Daily Law Bulletin, “Coming in June: 6-person civil juries,” Dec. 22).

That Senate bill, now Public Act 98-1132, quickly signed into law by then-Gov. Patrick J. Quinn, amends, in relevant part, the Code of Civil Procedure in Section 2-1105(b) as follows (bracketed verbiage repealed): “All jury cases [where the claim for damages is $50,000 or less] shall be tried by a jury of 6 [, unless either party demands a jury of 12…].” (New verbiage omitted concerns alternate jurors, fees and jury cases filed before the act’s June 1 effective date.)

Therefore, amended Section 2-1105(b), to be codified at 735 ILCS 5/2-1105(b), will in pertinent part state, “All jury cases shall be tried by a jury of 6.” Thus, civil cases filed after June 1, where a jury is requested, will be tried by a six-person jury rather than a 12-person jury.

Historically, the constitutional mandate of trial by jury in civil cases has meant a trial by 12 persons unless the parties stipulate to less than 12.

George Braden and Rubin Cohn, in “The Illinois Constitution: An Annotated and Comparative Analysis” (1969), prepared for the delegates to the 1969-70 Illinois Constitutional Convention who drafted the 1970 constitution, write at page 26:

“[T]he phrase ‘as heretofore enjoyed’ … is fairly well crystallized now to the effect that it means both the right as it existed at common law and as it had come to be at the time of the adoption of the [c]onstitution. … The provision [in the 1870 constitution] authorizing a jury of fewer than 12 men [in cases tried in justice of peace courts] has not been construed judicially. Its constitutional status is quite uncertain.…”

And at page 27, the authors state that “provision for juries of fewer than 12 [must be carefully evaluated].”

To dispel any notion that the constitutional right to trial by a jury in civil cases means a jury of 12 persons, there is no need to look beyond the Illinois Constitution and its creation. The framers of the 1970 constitution established a written record of their deliberations in the Record of Proceedings of the Sixth Illinois Constitutional Convention, which, in clear and unambiguous terms, re-established and confirmed that a civil jury trial means a jury comprised of 12 persons.

An examination of the record reveals the unequivocal intent of the constitutional framers regarding the number of jurors in civil jury trials. The subject was thoroughly and vigorously debated by the delegates to the constitutional convention. See IV Record 3637-41.

The convention’s Bill of Rights Committee initially agreed that the proposed trial by jury section should be, “The right of trial by jury as heretofore enjoyed shall remain inviolate.” Then-Illinois Supreme Court Chief Justice Robert Underwood, on behalf of the court, wrote on May 14, 1970, that the court deemed “that it would be sound public policy to provide in the new constitution that the General Assembly may, if it sees fit, eliminate or restrict the right to the jury in civil cases.” III Record 1428.

In response to the chief justice’s letter, the committee recommended adding to the proposed trial by jury section “except that the General Assembly may provide in civil cases for juries of not less than six nor more than 12 and for verdicts by not less than three-fourths of the jurors.” III Record 1430. That amendment was agreed to by the delegates on June 2, 1970, on a 58-23 vote. III Record 1432.

However, on Aug. 5, 1970, the delegates reversed themselves and agreed to restore the initial recommendation of the Bill of Rights Committee. The delegates voted separately on less than unanimous verdicts and less than 12 persons. As to removing that part of the exception clause stating that in civil cases the General Assembly may provide “for juries of not less than six nor more than 12,” the delegates voted 61-30 to delete it “and so that portion of the section stands deleted.” IV Record 3641.

Finally, on Aug. 27, 1970, delegate Elmer Gertz, chairman of the Bill of Rights Committee, succinctly stated the committee’s and the convention’s meaning of the constitutional right to trial by jury in civil cases: “[J]uries of less than 12 are by consent of the parties. They are not constitutional or even statutory.… So far as the constitution is concerned, the jury must be one of 12 members in … civil cases unless the parties otherwise agree.” V Record 4241.

On Aug. 30, 1970, the convention delegates agreed that the explanatory text of the proposed constitution, specifically Article I’s Section 13, trial by jury, would be, “The right of trial by jury as heretofore enjoyed shall remain inviolate” and the italicized explanation would be, “This section is the same as Article II, [S]ection 5 of the 1870 [c]onstitution, except that it deletes an outdated reference to justices of the peace, which have been abolished in Illinois.” I Record 699.

As illustrated above, the framers of the 1970 constitution specifically considered and rejected civil juries of less than 12 persons.

Can there be any doubt whatsoever that the trial by jury provision, Section 13 of Article I of the 1970 Illinois Constitution, means a civil jury is composed of 12 persons rather than less than 12?

Can there be any doubt whatsoever that Section 2-1105(b) of the Code of Civil Procedure, as amended by Public Act 98-1132, mandating six-person juries, is blatantly unconstitutional and will be struck down by the courts?