Cook County Circuit Court Judge Calls Out 6-Person Civil Jury Law: Unconstitutional

In a recent Chicago Daily Law Bulletin article, retired Cook County Circuit Court Judge Hon. Dennis Dohm wrote that the clear language found in Illinois’ 1970 Constitution, Section 13 titled “Trial by Jury,” of Article I’s Bill of Rights states that “the right of trial by jury as heretofore enjoyed shall remain inviolate.”

Judge Dohm compared that language of the 1970 Illinois Constitution to the State’s 1870 Constitution on jury trials, which stated, “The right of trial by jury as heretofore shall remain inviolate [but the trial of civil cases before justices of the peace by a jury of less than 12 men may be authorized by law].” The 1970 Constitution language as shown above includes none of that language that is shown in brackets. Justices of the peace were abolished by the 1962 Judicial Article to the 1870 Illinois Constitution.

It may be of historical note that in 1818 and 1848, Illinois had enacted constitutions that likewise stated that the right of trial by a jury was mandated by similar language as found in the 1870 and 1970 constitutions.

Judge Dohm points out significantly that the December 2014 “lame duck” session of the Illinois General Assembly passed Senate Bill 3075, as amended, with little debate. That bill became public act 98-1132 and was signed by then Gov. Patrick Quinn. In essence, the bill amended the Code of Civil Procedure Section 2-1105(b), which now reads: “All 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. . . ]” Jurors were also allowed by this act higher rates of pay, which were left out of the citation above.

In other words, the new statute provides that all civil cases shall be tried by a jury of 6, rather than a 12-person jury, unless otherwise agreed by the parties and allowed by the court. The effective date of the statute is June 1, 2015.

To the point, Judge Dohm stated there is no reason to go beyond the Illinois Constitution (1970) where it is written without controversy and in unambiguous terms that a civil jury trial should be composed of 12 persons. A closer review also shows that the subject of jury trials was debated by the delegates to the 1970 Constitutional Convention and shows up in the records of that convention.

Then Illinois Supreme Court Justice Robert Underwood wrote that the Constitution should also allow the General Assembly to eliminate or restrict the right to jury in civil cases. The committee at the constitutional convention responded by suggesting what the judge had proposed in the trial by jury section should include language that states “except that the General Assembly may provide in civil cases for juries of not less than 6 or more than 12 and for a verdict by not less than 3-4 so the jurors.”

Considering that change to the language on civil juries, the delegates reversed themselves and agreed to restore the initial recommendation of the Bill of Rights Committee. That language proposed by Justice Underwood was defeated by a delegate vote of 61-30 to delete it.

The chairman of the Bill of Rights Committee, Elmer Gertz, my criminal law professor at the John Marshall Law School in 1973, succinctly stated that the committee’s and the convention’s meaning of the constitutional right to trial by jury in civil cases would remain: [J]uries of less than 12 by consent of the parties. They are constitutional or even statutory. . . . So far as the constitution is concerned, the jury must be 12 members in . . . civil cases unless the parties otherwise agreed.” V Record 4241.

In conclusion to Judge Dohm’s Jan. 21, 2015 Chicago Daily Law Bulletin article is that the amendment to Section 2-1105(b), Public Act 98-1132 mandating 6-person juries is unconstitutional and must be struck down. It remains to be seen what the courts will do with this act when challenged. Judge Dohm’s article makes a lot of sense.

Robert Kreisman of Kreisman Law Offices has been handling jury trials in medical malpractice cases, nursing home abuse cases and catastrophic injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Rosemont, Niles, North Riverside, Oak Forest, Olympia Fields, Orland Hills, Orland Park, Palos Hills, Palos Park, Prospect Heights, Tinley Park, Stickney, Stone Park, South Chicago Heights, Glenwood, Hanover Park, Bartlett, Bedford Park, Barrington Hills, Berkeley, Blue Island, Brookfield, Buffalo Grove, Burr Ridge, Cicero, Country Club Hills, Countryside, Crete, Dixmoor, East Hazel Crest, Markham, Maywood, Wilmette, Willow Springs, Chicago (Englewood, Pilsen, West Loop, Goose Island, Old Town, Lakeview, Edgewater, Pulaski Park), Glenview and Vernon Hills, Ill.