On Monday December 21st, a Cook County, Illinois trial judge declared unconstitutional the recent Illinois legislation enacted that reduced the number of jurors in all civil trials from twelve persons to six. The legislation that was struck potentially exposed businesses involved in litigation in Illinois to higher risk, as a smaller jury often favors the plaintiff. Constitutional challenges to the new law were widely anticipated. It is unclear whether other trial judges throughout the state will similarly rule, but given the significance of this ruling, it is likely to be appealed.

Public Act 98-1132 was a last-minute Amendment to 735 ILCS 5/2-1105 and was signed into law one year ago by outgoing Illinois Governor Pat Quinn. It added language providing that all jury cases shall be tried by a jury of six, and specifically deleted language providing the opportunity for any party to demand a jury of twelve. The bill took effect June 1, 2015. Previously, cases in which alleged damages exceeded $50,000 were tried by a jury of twelve, while in cases where alleged damages were lower than $50,000, either party could demand a jury of twelve.

On December 21, 2015, pursuant to defense motion in the Cook County civil case Kakos v. Butler, Cook County Judge William Gomolinski declared Public Act 98-1132 to be an impermissible infringement of the right to trial by jury and unconstitutional on its face, in direct conflict with the Bill of Rights to the Illinois Constitution, which provides that “[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” The opinion thoroughly examines both the historical roots of specific constitutional language as well as the judicial decisions interpreting this language as guaranteeing the right to a twelve-person jury.

Evolution of case law in this area could be significant to companies facing Toxic and Mass Tort litigation in Illinois.