A jury of 12 (Not 6), as heretofore enjoyed: The Illinois Supreme Court strikes down Public Act 98-1132

The Illinois statute limiting the size of a civil jury to six persons is unconstitutional.1 This past September, the Illinois Supreme Court struck down the 2015 statute because it violated the common law right of trial by jury of 12 persons as guaranteed by the Illinois Constitution.

Public Act 98-1132, which became effective on June 1, 2015, changed the existing statute that allowed parties to choose a 12-person jury. The amendment provided, in part, that “[a]ll jury cases shall be tried by a jury of 6.” If a 12-person jury was paid for, then a jury of 12 would be allowed if the party produced proof of payment for 12.2 The prior statute, 735 ILCS 5/2-1105(b), provided, in part, “[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.”3

Kakos v. Butler was a medical negligence and loss of consortium allegations case. Initially, two of the named defendants challenged the constitutionality of Public Act 98-1132. The moving defendants contended that the Act violated their right to trial by jury based on article I, section 13 of the Illinois Constitution,4 and that the Act also violated the separation of powers doctrine5 since the legislature infringed upon the court’s power to regulate and oversee jury trials. The remaining defendants joined in the motions. The Supreme Court’s opinion agreed that the Act violated the Illinois Constitution’s right to trial by jury; the Court did not reach the separation of powers argument.

The Kakos Court observed that U.S. Supreme Court decisions have found that neither the sixth nor seventh amendments to the U.S. Constitution require a twelve person jury. However, Article I, section 13 of the Illinois Constitution does.6

The parties each presented arguments about the effect of the number of jurors on the jury’s execution of its duties. The plaintiffs argued that studies reveal a jury of less than 12 does not impact the jury trial process, while the defendants argued that those study results have been refuted. Interestingly, the Circuit Court cited more recent studies “supporting the conclusion that decreasing the number of jurors corresponds to decreasing diversity of the jury and may impede the deliberative process.”7

Article I, section 13 of the Illinois Constitution states, “The right of trial by jury as heretofore enjoyed shall remain inviolate.” (Emphasis added.) The Kakos Court focused on the term “heretofore enjoyed,” analyzing both case law and the debates at the 1970 Illinois Constitutional Convention before concluding that litigants “enjoyed” the right to a 12-person jury at the time of the Convention.

A number of cases decided prior to 1970 “referred to the size of a jury when describing the essential elements of a constitutional jury in civil lawsuits.”8 The inclusion of the size of the jury in the list of essential elements demonstrated that civil litigants had enjoyed the right to a 12-person jury prior to the 1970 Constitutional Convention.

In addition, the Court found “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.”9 One of the delegates to the Convention proposed an amendment to the Constitution that would have permitted the legislature to “provide for juries of less than twelve but not less than six, and to provide for verdicts in civil cases by not less than three-fourths of the jurors.” Although the delegates initially voted to adopt this amendment, they later voted to delete the language previously approved. The subsequent amendment also proposed to “retain intact the system of jury trials on the state that we have heretofore enjoyed, both in the criminal area and civil area.” The Kakos Court noted: “These discussions indicate that the delegates believed the size of the jury was an essential element of the right as enjoyed at the time they were drafting the constitution and they deliberately opted not to make any change to that element.”

Case law prior to 1970 and the Constitutional Convention’s debates likewise demonstrated that in Illinois, the size of the jury (12 persons) was an essential element of the right to trial by jury. The Court determined that “jury size is an element of the right that has been preserved and protected in the constitution.” The Court further observed that the power to waive a 12-person jury inherently means that there exists a right to a 12-person jury. Therefore, Public Act 98-1132 was declared facially unconstitutional and void ab initio. Consequently, the Court did not need to consider the defendants’ separation of powers argument.

The Kakos Court refused to sever the juror pay language of the Act from the section declaring the size of the jury, since the reduction in the size of the jury along with the increase of pay were “intended to act in tandem.” To maintain the juror pay increase with the availability of a 12-person jury would prove too great a financial burden and frustrate the legislative intent of the statute.

In several places in its decision, the Court noted that the parties may elect to waive the right to a 12-person jury. Based upon the Court’s language, it would seem prudent to explicitly request a 12-person jury when making a jury demand. Failure to do so could be deemed a waiver of the right.


1. Kakos v. Butler, 2016 IL 120377.

2. Public Act 98-1132. The Act also changed the rate of pay statewide for jurors to $25 for the first day, and $50 thereafter.

3. 735 ILCS 5/2-1105(b)

4. Ill. Const. 1970, art. I, §13.

5. Ill. Const. 1970, art. II, §1.

6. See Huber v. Van Schaack-Mutual, Inc., 368 Ill. 142, 144-45 (1938); See also Hartgraves v. Don Cartage Co., 63 Ill. 2d 425, 427 (1976).

7. Kakos v. Butler, 2016 IL 120377 ¶19. Also, the trial court’s Memorandum Order and Opinion for this case issued by Judge William E. Gomolinski provides an informative discussion of commentary and research on the issue of jury size and its impact on the legal process. Therein, citations are made to the following: Dennis M. Dohm, The Record Reflects It: Six-Person Civil Jury Law is Unconstitutional, Chicago Daily Law Bulletin, (Jan. 21, 2015); Robert T. Park, A Constitutional Question About Reduced Jury Size, Illinois State Bar Association Trial Briefs, Vol. 6, No. 7 (Jan. 2015); Michael L. Resis and Britta Sahlstrom, Public Act 98-1132: An Unconstitutional Violation of the “Inviolate” Right to Trial by Jury?, IDC Defense Update, Vol. 16, No. 3 (April 2015); Hon. Deborah Mary Dooling and Hon. Lynn M. Egan, Living with a Six Person Jury, Presentation before the Society of Trial Lawyers Annual Election Meeting (Sept. 15, 2015), Valerie P. Hans, The Power of Twelve: The Impact of Jury Size and Unanimity on Civil Jury Decision Making, Del. L. Rev. 1, 8-9 (2001, Nicole L. Waters, Judicial Council of California, Does Jury Size Matter: A Review of the Literature, National Center for State Courts (2004).

8. See Hartgraves v. Don Cartage Co., 63 Ill. 2d 425 (1976); Liska v. Chicago Railways Co., 318 Ill. 570 (1925); Sinopoli v. Chicago Railways Co., 316 Ill. 609 (1925); Povlich v. Glodich, 311 Ill. 149 (1924), and Bibel v. People ex rel. City of Bloomington, 67 Ill. 172 (1873).

9. Kakos at ¶22.

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December 2016Volume 47Number 5PDF icon PDF version (for best printing)