On September 22, 2016, the Illinois Supreme Court issued its decision in Kakos v. Butler, striking down a 2015 state law that limited civil juries in Illinois to only six persons instead of 12. According to the Court, Public Act 98-1132 (the “Act”) was unconstitutional on its face and denied Illinois litigants their right afforded by the Illinois Constitution to demand a trial by jury.

Prior to the Act, the Illinois Code of Civil Procedure provided that “[a]ll 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.” The Act removed litigants' right to demand a 12-person jury.

In late 2015, the Cook County trial court that first heard the Kakos case ruled that the Act violated the defendant’s right to a trial by jury afforded by the Illinois Constitution and held that the Act was invalid and void. The plaintiff disagreed. He argued that the Illinois Constitution does not entitle litigants to a 12-person jury and exercised his right to appeal the issue directly to the Illinois Supreme Court, skipping the intermediate appellate court.

In considering the constitutional challenge, the Illinois Supreme Court first compared the Illinois Constitution against the U.S. Constitution. Ultimately, the Court interpreted “the right of trial by jury protected by the Illinois Constitution differently than the rights protected by the federal constitution.” The Court explained that the Seventh Amendment to the federal Constitution, which protects the right of trial by jury in civil cases, does not require a 12-person jury. U.S. Supreme Court precedent, the Court explained, establishes that the framers of the federal Constitution did not intend the Seventh Amendment to protect the common-law features of a jury trial, which includes jury size. In contrast, the Illinois Constitution “plainly indicates that [its] drafters intended for certain characteristics of a jury trial to be maintained.” The Court further reasoned that, unlike the federal constitution, the Illinois Constitution preserved “the essential features of trial by jury as known to common law . . . .” The Court then reviewed a long line of its own previous decisions and concluded that “the size of the jury is an essential feature of the common-law right to trial by jury . . . .” The court emphasized that there is “ample evidence that the drafters at the 1970 Constitutional Convention believed they were specifically preserving the right to a 12-person jury when they adopted the current constitution.”

Based on its determination that “the size of the jury—12 people—was an essential element of the right of trial by jury enjoyed at the time that the 1970 Constitution was drafted,” the Illinois Supreme Court found that the Act was unconstitutional in curtailing this common-law right.

Although the Illinois Supreme Court’s decision solidifies the right of civil litigants in Illinois to have their cases heard by a 12-person jury, litigants still have the right to waive this constitutionally protected right, which could result in a 6-person jury.

For more information on Kakos v. Butler, its implications for litigants in Illinois, or other issues involving civil litigation in Illinois or Missouri, please contact Corey M. Schaecher, Justin M. Ladendorf, or any other member of Lewis Rice’s Litigation Department.