Cook County Judge William Gomolinski ruled that the language in the Illinois Constitution, Section 1, Article 13, “The right to trial by jury as heretofore enjoyed shall remain inviolate,” prevails and thus the law adopted for 6-person juries is unconstitutional. What the judge wrote in his opinion was that the right to a jury as it existed in 1970, with 12 jurors, cannot be changed without a constitutional amendment. That does not mean that the parties, should they agree, could not limit the jury size to a smaller number. However, litigants — according to Judge Gomolinski’s opinion — have a constitutional right to demand a 12-person jury in their cases.
The change to the Illinois jury system was proposed and passed during the last days of former Gov. Patrick J. Quinn’s second term in office. The law went into effect June 1, 2015.
In this particular case, a medical-malpractice case filed in Cook County on June 30, 2015, the defense counsel filed an appearance on behalf of his defendant clients, a doctor and a neurosurgery professional corporation, and requested a 12-person jury. A motion was filed for leave to file a 12-person jury demand with the court. The motion was assigned by the presiding judge in the law division to Judge Gomolinski. The opinion of Judge Gomolinski referred to the 1870 Illinois constitutional convention when a 12-person jury was a given right although the parties as now could waive their rights to a 12-person jury if they agreed on a smaller jury size.
Judge Gomolinski’s opinion included, “[O]ur state jury trial right is substantively different from the one afforded by the federal Constitution, and our [S]upreme [C]ourt has found that state protections to be broader.” The U.S. Supreme Court has upheld the constitutionality of 6-person juries in criminal prosecutions for Sixth Amendment purposes, finding that such rulings do not negate the state constitution’s language.
The Gomolinski opinion then turned to the Illinois constitution’s separation of powers, noting that the legislature in adopting the law, unconstitutionally infringed on the judiciary’s power to oversee the courts regardless of the jury right provision.
The trial court ruling was certified on the question of constitutionality allowing the case to be appealed directly to the Illinois Supreme Court where it will be reviewed.
James Kakos, et al. v. Jesse Butler, et al., No. 15 L 6691 (Cook County, Ill.).
Kreisman Law Offices has been handling civil jury trials for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including, Bolingbrook, Joliet, Riverdale, Rosemont, Inverness, Elk Grove Village, Elmhurst, Wheaton, Aurora, Waukegan, Chicago (Lakeview, Lincoln Square, Rogers Park, Bucktown, Wicker Park, Jackson Park), Deerfield and Wheeling, Ill.
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