Citing more than 145 years of state history, a Cook County judge has ruled that the legislature had no authority to cut the size of civil-case juries from 12 to six last year.
The change to Illinois’ jury system was rapidly proposed and passed in the waning days of former Gov. Patrick J. Quinn’s time in office.
Members of the plaintiff’s bar who championed the bill touted it as a trade-off that allowed the courts to raise juror compensation for the first time in decades.
But the defense bar was quick to argue the change tipped the scales in plaintiffs’ favor by requiring them to persuade only six minds toward consensus rather than 12.
The move was largely seen as a parting gift by Quinn, fresh off his loss to Gov. Bruce Rauner in the November 2014 election, toward his allies with the plaintiff’s bar.
In a 27-page ruling issued Monday, Cook County Associate Judge William Edward Gomolinski ruled that language in Section 1, Article 13 of the 1970 state constitution — “The right to trial by jury as heretofore enjoyed shall remain inviolate” — means that the right to a jury as it existed in 1970, with 12 jurors, cannot be changed without a constitutional amendment.
That’s not to say a case can’t operate with a smaller juror size if the parties agree to it, Gomolinski ruled. But litigants maintain a constitutional right to demand a 12-person jury in their case.
Gomolinski wrote that, with the exception of eliminating civil cases before justices of the peace in 1962, “the right to a trial by [j]ury in Illinois has been a continuous, unbroken right spanning well over a century of this state’s history.”
The ruling comes as part of an underlying medical-malpractice case filed in Cook County Circuit Court on June 30 — 29 days after the law took effect.
Plaintiff James Kakos alleges that a group of doctors failed to operate on a reherniated disk in a timely manner, causing him permanent foot damage.
In August, Robert W. Smyth Jr., a partner at Donohue, Brown, Mathewson & Smyth LLC, sought to file an appearance on behalf of his defendant clients, Dr. Jerry Bauer and the Park Ridge-based Center of Brain and Spine Surgery S.C., along with a 12-person jury demand.
Smyth said he and other defense attorneys were filing simple jury-demand motions with the circuit clerk requesting 12-person juries.
“Those motions were just denied en masse,” he said.
Smyth then moved for leave to file a 12-person jury demand with the court.
He said Circuit Judge James P. Flannery Jr., presiding judge in the Law Division, recognized there should be uniform treatment of the motions and assigned Gomolinski to handle the legal arguments.
Smyth said he’s not sure why his client’s case was picked among the whole lot to decide the matter.
David A. Axelrod of David A. Axelrod & Associates P.C., representing Kakos, said discovery in this particular suit has proceeded normally while the court has handled the jury-demand motion.
In Monday’s ruling, Gomolinski noted that debate from the Constitutional Convention shows delegates expressly considered changing the jury system from what had been in place since 1870.
One proposal in 1970 to limit jury sizes for injury cases was scrapped after delegates decided “it would be discriminatory to single out this category of cases as undeserving of the full jury trial right guaranteed by the constitution” Gomolinski wrote.
The 1870 constitution did allow parties at trial to use a smaller jury if both sides agreed to it — essentially waiving their rights to a 12-person jury.
“This was far different from removing the option of a -person jury entirely, changing the nature of the jury trial right rather than merely allowing parties to agree to alternatives,” Gomolinski wrote.
Smyth said the court correctly looked at the full scope of state history.
“The Illinois constitutions from the very beginning … every single one had a provision for the right to a jury,” Smyth said.
And the description in those iterations included the “heretofore enjoyed” wording.
“With that mystic language, the court had to decide what that really meant,” Smyth said.
And the Supreme Court has long seen that people “heretofore enjoyed” 12-person juries, he said.
Kakos, defending the state law, argued that the state has already redefined the composition of juries since 1870 — noting the inclusion of women and minorities as jurors.
“However, reading ‘men’ to mean ‘persons’ is far removed from reading ‘’ to mean ‘six, and no more,’” Gomolinski wrote. “One involves the application of present-day norms of equality and fairness, while the other is simply factually incorrect.”
Limiting jury size to six members goes against the constitutional drafters’ wishes because they explicitly discussed it and rejected the idea, Gomolinski wrote.
He also cited several Illinois Supreme Court cases that defined the right to trial by jury as one guaranteeing the right to 12 impartial jurors.
Gomolinski was not persuaded by arguments that the U.S. Supreme Court has upheld the constitutionality of six-person juries in criminal prosecutions for Sixth Amendment purposes, finding that such rulings do not negate the state constitution’s language.
“[O]ur state jury trial right is substantively different from the one afforded by the federal Constitution, and our [S]upreme [C]ourt has found the state protections to be broader,” he wrote.
Gomolinski wrote that the Con-Con delegates knew they were creating a right different from the federal standard, and that they need not be bound by the federal provision.
“While it is very possible that there is no special significance to or basis for the number  as the ideal number of fact-finders and decision-makers, this is what our constitution currently provides, and it may not be altered by statute as our legislature has done here,” he wrote.
Gomolinski then turned to separation-of-powers issues, noting that the legislature unconstitutionally infringed on the judiciary’s power to oversee the courts regardless of the jury right provision.
The trial court ruling certifies the question of constitutionality, allowing the case to be appealed directly to the Illinois Supreme Court.
Axelrod said he intends to appeal the ruling. Given how differently the plaintiff and defense bars view the new law, he said the issue was bound to reach the high court soon after taking effect. He believes the law will ultimately be upheld.
“It just means the process is ongoing. And this was obviously an issue the defense bar would raise as being unconstitutional.”
The case is James Kakos, et al., v. Jesse Butler, et al., 15 L 6691.
At least one six-person jury trial has been completed in Cook County — a $14 million bad-faith verdict against the Illinois State Medical Insurance Exchange Mutual Insurance Co. for rejecting several opportunities to settle a client’s underlying medical-malpractice suit within policy limits.
That lawsuit was originally filed in 2012, but was voluntarily dismissed on May 26 with leave to refile. And it was refiled 16 days later as Hana v. ISMIE Mutual Insurance Co., 15 L 5975, after the six-person jury law’s June 1 effective date.
Discovery was closed in August and the case was certified for a weeklong trial in November.