A constitutional question about reduced jury size

Public Act 98-1132 (“the Act”) was passed during the General Assembly’s fall veto session and signed into law by Governor Quinn on December 19, 2014. The Act goes into effect June 1, 2015.

The Act increases juror pay from $4 per day plus mileage to a flat $25 for the first day’s service and $50 for each day’s service thereafter.1 The Act provides jurors no additional compensation for travel, and allows each county board to set a higher level of compensation.2 The Act does not change current law that allows a juror to be reimbursed “for the actual cost of day care incurred by the juror during his or her service on a jury.”

While more fairly compensating jurors for their service is a matter of general concern, trial lawyers will be more keenly interested in the Act’s change to 735 ILCS 5/2-1105(b), which provides: “All jury cases shall be tried by a jury of 6.”

Under existing law, a case involving a claim for damages under $50,000 may be tried by either a jury of six or 12 members, while a case involving a claim for more than $50,000 is tried to a jury of 12 persons.3

The Act further provides: “If alternate jurors are requested, an additional fee established by the county shall be charged for each alternate juror requested.” The Act does not specify when the party must request alternate jurors or pay the fee set by the county.4 It is also uncertain what will happen if a party requests alternate jurors in a county that has not adopted an alternate juror fee.

There are also state constitutional concerns about the Act. The Illinois Constitution, Article I, Section 13 says: “The right of trial by jury as heretofore enjoyed shall remain inviolate.”5 According to Merriam-Webster on-line, inviolate means “not harmed or changed.”6

Where Illinois has had 12-member civil juries for almost 200 years does cutting the number of jurors in half “harm” or “change” of the “right of trial by jury as heretofore enjoyed?”

The Illinois Supreme Court looked at the quoted constitutional provision protecting the right to a jury trial in Sinopoli v. Chicago Railways Co.,7 where it said (emphasis added):

The essential thing in the right of trial by jury is the right to have the facts in controversy determined under the direction and superintendence of a judge by 12 impartial jurors having the qualifications and selected in the manner required by law, whose verdict must be unanimous and shall be conclusive, subject to the right of the judge to set it aside, if in his opinion it is against the law or the evidence and to grant a new trial.8

From a policy standpoint, a jury composed of 12 persons is twice as representative of the community and likely twice as diverse as a six-person jury in terms of age, sex, race and other demographics. Further, as a matter of group dynamics, the larger the jury, the less likely one strong juror will control or dominate the deliberation process.

With these considerations in mind, will the Illinois courts hold that substantially reducing the number of jurors leaves the jury trial “as heretofore enjoyed” inviolate?

Federal law and the law of many states allow juries of less than 12 members. Rule 48(a) of the Federal Rules of Civil Procedure provides: “A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused…”

In Iowa, for example, civil juries of eight members are sworn. If not all selected jurors are able to serve due to illness or other cause, the remaining jurors with a minimum of six can decide the case. After six hours of deliberation, a case may be decided by a majority consisting of all jurors but one.9 Likewise, Wisconsin allows for civil juries of six to 12 members10 with less-than-unanimous verdicts.11

Of course, the Illinois Constitution applies to neither the federal courts nor the courts of Iowa, Wisconsin or other states.12

In future litigation the Illinois courts will undoubtedly determine whether the Act is consistent with or a violation of the requirement of Article I, Section 13, regarding the inviolate preservation of the civil jury trial. ■

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1. Counties Code §4-11001 (55 ILCS 5/4-11001).

2. According to an article in the January 7, 2015, issue of the Aurora Beacon-News, Kane County expects the increased juror fees in the new law will cost the county millions. http://beaconnews.chicagotribune.com/2015/01/07/kane-deals-state-decision-increase-jurors-pay-rate/ (last visited Jan. 9, 2015).

3. Under current law, either plaintiff or defendant may elect a 12-peson jury upon payment of the appropriate fee. Under the Act, if a party to a case tried after June 1, 2015, has paid the fee for a 12-member jury, that party can demand a 12-person jury upon presenting proof of payment. (735 ILCS 5/2-1005(b).)

4. Most likely the request must be made and the fee paid either when a jury demand is filed or at the time of trial, although another alternative could be specified by statute or rule.

5. The Illinois Constitution of 1870 contained exactly the same language. The Illinois Constitutions of 1818 and 1848 contained the same provision but without the phrase “as heretofore enjoyed.” People v. Pittman, 326 Ill.App.3d 297, 761 N.E.2d 171, 173-74 (1st Dist. 2001).

6. http://www.merriam-webster.com/dictionary/inviolate (last visited Jan. 8, 2015).

7. 316 Ill. 609, 619-20, 147 N.E. 487 (1925).

8. The Sinopoli court held that changes in the manner of appellate review of orders granting or denying motions for a new trial did not impermissibly change the right of trial by jury as constitutionally guaranteed. 316 Ill. at 621-22.

9. See Rules 1.915(9), 1.917(2) and 1.931 of the Iowa Rules of Civil Procedure.

10. Wis. Stat. § 756.06(2)(b).

11. Wis. Stat. § 805.09(2).

12. The 7th Amendment to the U.S. Constitution provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,….” In Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211, 219, 36 S.Ct. 595, 60 L.Ed. 961 (1916), the Supreme Court held that it was well settled that the 7th Amendment does not apply to the states. In Hardware Dealers’ Mutual Fire Ins. Co. of Wisconsin v. Glidden Co., 284 U.S. 151, 158, 52 S.Ct. 69, 76 L.Ed. 214 (1931), the Supreme Court held that the due process provision of the 14th Amendment does not require civil jury trials.