SPRINGFIELD — Ruling there is “ample evidence” the state constitution preserved the right to larger juries, Illinois’ high court today struck down a trial lawyer-backed law that cut civil juries from 12 to six.
The Illinois Supreme Court’s 14-page decision published this morning also determined the pay raise for jurors linked in the statute to the change in jury size should also fall.
The Code of Civil Procedure still allows six-person civil juries if both parties in a case agree to it. The challenged law simply eliminated the right to a 12-person panel if either side demanded it.
It was approved in the days just after Republican Bruce Rauner defeated Democratic Gov. Patrick J. Quinn two years ago and was seen by many as a gift from Democrats to their allies in the plaintiffs’ bar.
The bill’s opponents said it would become easier for personal-injury lawyers to build a favorable consensus on multimillion-dollar cases.
But the law’s advocates said it was spurred by an inadequate pay rate for jurors, especially when they have to skip work for days on end and incur extra costs just to serve.
The law increased the rate across the state, from a high of $17.20 per day in Cook County to $25 on the first day of service and $50 each day after.
Cutting the size of the juries was the trade-off in order to make the pay raise feasible, supporters said. Additionally, federal courts and other states use six-member juries without issue, they argued.
But Section 1, Article 13 of the state constitution says “[t]he right to trial by jury as heretofore enjoyed shall remain inviolate.”
Chief Justice Rita B. Garman and the high court majority wrote the phrase “as heretofore enjoyed” has long been construed to mean the right as it existed and as enjoyed when the constitution was adopted.
She wrote that the court had not previously determined if size was a protected feature of civil juries, but that it often referred to the size of civil juries when it discussed the essential elements of a constitutional jury in civil lawsuits.
Both sides in the case presented evidence on how jury size could potentially affect outcomes. Opponents of the law said smaller juries decreased the amount of deliberation and diversity on juries. Supporters of the law cited studies relied upon in the federal system that showed smaller juries did not threaten a panel’s effectiveness.
The high court wrote that both sides’ arguments “have some merit” but that its mission was “determining whether the challenged legislation is constitutional, and not whether it is wise.”
On that front, Garman wrote there was “ample evidence that the drafters at the 1970 Constitutional Convention believed they were specifically preserving the right to a 12-person jury” when they approved the constitution.
She cited debates in which the drafters considered, but ultimately rejected, an idea to allow lawmakers to approve juries of between six and 12 people while allowing verdicts with only three-quarters approval rather than unanimous consent.
“Because the size of the jury — 12 people — was an essential element of the right of trial by jury enjoyed at the time the 1970 Constitution was drafted, we conclude jury size is an element of the right that has been preserved and protected in the constitution,” she wrote in the decision.
Finally, the court looked to the transcripts of the debate over the law in the House of Representatives to determine the pay increase could not be upheld while the rest of the law was struck.
Comments from Rep. Kelly McGuire Burke, who sponsored the legislation in that chamber, showed the juror reduction was aimed at being an offset for bumping jurors’ pay. Burke also said the law meant that citizens would be called upon to serve less and be more willing to serve when the time came because of the higher pay.
The comments “reveal the legislation was intended to make jury trials more efficient and to incentivize citizens to participate in jury duty,” Garman wrote.
Thus, raising juror pay while striking the provision that lowered the number of jurors would defeat the purpose, the court stated.
“The cost of jury trials across the state will dramatically increase without any offset,” Garman wrote. “Based on the transcripts of the debates, it is evident that the legislature would not have passed the provision increasing pay independently.”
The decision was backed by five of the justices, as Justices Robert R. Thomas and Thomas L. Kilbride took no part in the case.
The high court opinion today affirmed a December ruling by Cook County Associate Judge William Edward Gomolinski.
The case was spurred by a medical-malpractice lawsuit filed no more than a month after the law went into effect in June 2015, one in which a plaintiff argued doctors caused him permanent foot damage by not operating on a reherniated disk in a timely fashion.
David A. Axelrod, a principal and senior partner at David A. Axelrod and Associates, P.C. who represented the plaintiff in the case and argued in favor of the law, said his side appreciates that the court “gave a full and fair opportunity to consider six-person juries.”
He said that the law’s aim was noble — increasing efficiency and juror pay — and that parties can still agree to have fewer than 12 jurors in certain cases.
Christopher T. Hurley, president of the Illinois Trial Lawyers Association which backed the law, said he respects the process and the court’s decision.
He shrugged off criticism that the law was merely aimed at helping plaintiffs’ lawyers.
“There’s no conclusive studies that have been done which show that a six-person jury is more favorable to one side or another,” he said. He added that the group will always be in favor of legislation that increases pay for jurors.
“I don’t know of any lawyer who would be opposed to that,” he said.
Robert Marc Chemers, a senior equity partner at Pretzel & Stouffer Chtd. who opposed the law and represented the defendants in the case, said his team is “incredibly pleased with the result, as the decision protects one of the most fundamental rights guaranteed to every Illinois citizen.”
The case is James Kakos, etc., et al., appellants, v. Jerry Bauer, etc., et al, No. 120377.