On September 22, 2016, the Illinois Supreme Court filed its opinion in Kakos v. Butler, 2016 IL 120377, holding that Public Act 98-1132, which amended 735 ILCS 5/2-1105 to limit the size of civil juries to 6 persons, was unconstitutional because it deprived civil litigants of their constitutional right to a trial by jury. This was a 5–0 decision, with two justices abstaining, on direct appeal from a ruling by Judge William Gomolinski of the Circuit Court of Cook County.
Although the United States Supreme Court had held that the federal Constitution did not guarantee a right to a 12-person jury, the Kakos Court found it significant that the Illinois Constitution protected “the right to trial by jury as heretofore enjoyed.” The Court said that this phrase and transcripts from the 1970 Constitutional Convention showed an intent to preserve the longstanding common-law custom of selecting 12-person juries. The Illinois Supreme Court had also previously recognized a right to 12-person juries in criminal matters. Having found that the Act infringed litigants' right to trial by jury, the Court did not consider the defendants' alternative argument that the Act violated the separation of powers. The Court also struck down the provision of the Act that increased juror pay, holding that it was meant to operate in tandem with the provision reducing the size of juries and could not be severed.
The Kakos decision is a good development for defendants in preserving their right to 12-person juries. The plaintiffs' bar had supported the law reducing the size of juries because smaller juries reflect less diversity of experience and opinion, and they are likely to reach unanimous verdicts more easily. In cases where parties filed demands for 6-person juries under the amended § 2-1105, defendants should now have the opportunity to move to amend their jury demands or to seek leave to file a 12-person jury demand in accord with applicable local rules and administrative orders.