Late in its September term, the Illinois Supreme Court handed down its unanimous opinion in Kakos v. Butler, holding that Public Act 98-1132, a 2015 statute in which the Illinois legislature limited civil juries to six persons, was facially unconstitutional. Here’s our report on the oral argument, predicting that the Court would strike down the statute.

Before Public Act 98-1132 went into effect, 735 ILCS 5/2-1105(b) stated that claims involving $50,000 or less could be tried to a six-person jury unless either party demanded a 12-person jury. The Act amended the statute to abolish the opt-out by which parties could insist on a full 12-person jury. At the same time, daily juror fees were significantly increased in hopes in boosting participation.

In Kakos, the defendants moved for leave to file a 12-person jury demand, and in the alternative for an order holding that Section 2-1105(b) was facially unconstitutional. In a 27-page opinion, the Circuit Court held that twelve jurors was a substantive part of the jury trial right, beyond the Legislature’s authority to change. The appeal went directly to the Supreme Court as a matter of right.

In an opinion by Chief Justice Garman, the Supreme Court affirmed. The Court began by pointing out that the United States Supreme Court has already held that neither the Seventh nor the Sixth Amendment specifically protected a right to twelve jurors, as opposed to some other number. Proponents of the statute argued that the Illinois constitutional guarantee was coextensive with the Federal amendments. But that argument couldn’t be squared with the plain language of the clause, the Court noted. The Seventh Amendment to the Federal Constitution merely protects the right to “trial by jury.” But the Illinois Constitution says that:

The right of trial by jury as heretofore enjoyed shall remain inviolate.

The Court has historically interpreted the words “as heretofore enjoyed” to mean that the clause was broader in scope than just protecting any jury – certain additional incidents of the right to trial by jury were protected too. So the question was what were fundamental aspects of the right to trial by jury, and which incidents were not. In 1897, the Supreme Court commented that “any less number” than twelve “would not be a common-law jury.” In 1938, the Court upheld the predecessor to Public Act 98-1132 requiring litigants to pay an extra fee for a twelve-person jury, but the Court relied upon precedent validating court fees, not on any conclusions about the size of the jury. The Court cited a host of cases in which it had referred to the right of trial by jury as by definition – both in the civil and criminal context – requiring twelve jurors.

Both parties in Kakos argued about whether the reduction from twelve to six jurors affects the performance of the jury, but the Court said that it doesn’t matter: the only question was whether twelve jurors was part of the right “as heretofore enjoyed.” There was substantial evidence from the Constitutional Convention, the Court held, that it was. The Court noted that Delegate Wilson proposed an amendment to permit reductions in the size of the jury, noting that “As the constitutional provision is now, it is quite inflexible.” But Delegate Lennon moved to amend the text further, deleting Delegate Wilson’s amendment and stripping the legislature of the power to change the size of juries.

The Court held that because the size of the jury – 12 people – was an essential element of the jury trial right at the time the 1970 constitution was adopted, jury size was necessarily an element of the jury trial right as protected by the constitution. Therefore, the provision of Public Act 98-1132 making six-person juries mandatory was facially unconstitutional.

That left the question of severability. The legislature had substantially increased the pay for jurors – and therefore the cost of jury trials – at the same time as it cut the size of juries in half. The Court noted that if it held that the six-person requirement was severable, the cost of jury trials across the state would substantially increase, without any offset in the form of smaller juries. The Court concluded that the legislature would not have adopted the change in juror pay if it had known that the limitation in jury size was unconstitutional. Therefore, the entire statute was invalid.