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12/21/88 the People of the State of v. Honorable Donald E. Joyce

December 21, 1988






533 N.E.2d 873, 126 Ill. 2d 209, 127 Ill. Dec. 791 1988.IL.1844

Original petitions for writs of mandamus, prohibition or supervisory order.


JUSTICE RYAN delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case. JUSTICE CLARK, Concurring. JUSTICE MILLER, Dissenting.


We have consolidated in this original action a number of cases which were before the circuit court of Cook County. In each of these cases the State has filed in this court a petition for writ of mandamus, prohibition or supervisory order which requests this court to compel the Honorable Donald E. Joyce of the circuit court of Cook County to adhere to the provisions of section 115-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115-1), as amended by Public Act 84-1428, effective July 1, 1987, and proceed to conduct jury trials for the defendants. This statute, entitled Method of Trial, provides:

"§ 115-1. Method of Trial. All prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives such jury trial in writing or, in a criminal prosecution where the only offenses charged are felony violations of the Cannabis Control Act or the Illinois Controlled Substances Act, or both, the State and the defendant waive such jury trial in writing." (Emphasis added.) Ill. Rev. Stat., 1986 Supp., ch. 38, par. 115-1.

In each of these cases the defendant was indicted for a violation of the Illinois Controlled Substances Act. Prior to their trials, the defendants submitted written jury waivers to Judge Joyce. The People indicated they would not waive a trial by jury. Judge Joyce accepted the jury waivers from the defendants and denied the jury requests by the People. The petitions to this court, to compel Judge Joyce to expunge the orders wherein he accepted the defendants' jury waivers, followed.

There are numerous issues presented here involving the constitutionality of this statute. The defendants and the Illinois Attorneys for Criminal Justice, which filed an amicus curiae brief, argue in opposition to the State's petition for mandamus that this statute violates the State's constitutional guarantee of the right to trial by jury. They further contend that Federal and State constitutional guarantees of equal protection and due process are violated, and this statute, as applied to the defendants, is an ex post facto law. The State denies these assertions. Because we determine that this statute deprives the defendants of the full protection guaranteed under article I, section 13, of the 1970 Illinois Constitution, it is unnecessary to rule on the due process, equal protection and ex post facto issues which have also been raised.

We are dealing here with one of the most revered of all rights acquired by a people to protect themselves from the arbitrary use of power by the State. Our courts, when presented with a question involving jury waivers, have often undertaken extensive reviews of the history of trial by jury. (Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783; Patton v. United States (1929), 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253; People v. Spegal (1955), 5 Ill. 2d 211; People v. Scornavache (1931), 347 Ill. 403; People ex rel. Swanson v. Fisher (1930), 340 Ill. 250.) The courts often look to the common law, not only when determining this discrete issue of jury waiver (see, e.g., Scornavache, 347 Ill. at 408, citing Bushell's Case (K.B. 1670), 89 Eng. Rep. 2), but also when determining other essential functions of a jury. (See, e.g., People v. Bruner (1931), 343 Ill. 146, citing The Seven Bishops' Case (K.B. 1688), 87 Eng. Rep. 136, and The King v. Dean of St. Asaph (K.B. 1784), 3 T.R. 428.) When the constitutional guarantees, which we have as citizens, invoke common law principles, the courts look to the common law to help define their meaning. (People v. Brewster (1899), 183 Ill. 143, 150.) However, the courts also realize that blind adherence to the common law is inappropriate when the conditions that gave rise to common law rules no longer exist. People ex rel. Swanson v. Fisher (1930), 340 Ill. 250, 265.

As citizens, our rights to trial by jury are guaranteed by the Federal and State Constitutions. Under Federal constitutional analysis, a Federal Rule of Criminal Procedure, somewhat similar to the statute here, was upheld by the Supreme Court in Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783. While there are dissimilarities between our statute and Rule 23(a) of the Federal Rule of Criminal Procedure, it is clear that to require consent by the government to a jury waiver is permissible under Federal constitutional law.

This court's analysis, however, is not limited to Federal constitutional principles. If we find in the language of our constitution, or in the debates or committee reports of the constitutional convention, an indication that a provision of our constitution is intended to be construed differently than similar provisions of the Federal Constitution, then this court should not follow or be bound by the construction placed on the Federal constitutional provision. See People v. Tisler (1984), 103 Ill. 2d 226, 245.

Our 1970 State constitution, article I, section 13, provides that "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate." (Ill. Const. 1970, art. I, § 13.) Our State constitution of 1870 first employed the phrase "as heretofore enjoyed" when speaking of the inviolate right of trial by jury. (Ill. Const. 1870, art. II, § 5.) Originally, the 1818 constitution, article VIII, section 6, read, "the right of the trial by jury shall remain inviolate" (Ill. Const. 1818, art. VIII, § 6), and the 1848 constitution, article XIII, section 6, in addition stated, "and shall extend to all cases at law, without regard to the amount in controversy" (Ill. Const. 1848, art. XIII, § 6).

In addition to the provision in our constitution that the right to jury trial as heretofore enjoyed shall remain inviolate, there is also contained in article I, section 8, of our constitution language very similar to that contained in the sixth amendment of the Federal Constitution. Article I, section 8, provides that "[i]n criminal prosecutions, the accused shall have the right . . . to have a speedy public trial by an impartial jury . . .." (Ill. Const. 1970, art. I, 8.) Also enumerated in article I, section 8, as rights of the accused, are other rights that are listed in the sixth amendment of the Federal Constitution. Thus, in our State constitution, jury trial is referred to twice in the bill of rights: article I, section 8, and article I, section 13. In both references, trial by jury is a right guaranteed to the people, and not to the State.

In the Federal Constitution, however, only in the sixth amendment is trial by jury referred to as a right of the accused. In article III, section 2, of the Federal Constitution, trial by jury is also mentioned. It is provided in that section: "The trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . .." (U.S. Const., art. III, 2.) This provision is not contained in the Bill of Rights of the Federal Constitution, wherein certain rights are guaranteed to the people. This provision is, instead, contained in the article of the Federal Constitution which defines the judicial powers. Thus, as to the jury trial issue, there is a difference in the language of our State constitution from that of the Federal Constitution, and the difference is one of substance and not merely one of form. In view of this difference, Singer v. United States is not helpful in deciding the issue before us, and we should give our State constitutional provision meaning independent of the construction the Federal courts have placed on the jury trial provisions of the Federal Constitution.

In giving the language of our constitution independent meaning, we must consider what the drafters of our present constitution intended to include in the right to trial by jury "as heretofore enjoyed." It is clear that the committees which reported to the constitutional convention delegates in 1970 recommended no change whatsoever in jury trials in criminal cases. (6 Record of Proceedings, Sixth Illinois Constitutional Convention 26 (hereinafter Proceedings).) The bulk of the debate on the convention floor concerned civil jury cases and whether our State would adopt some of the more innovative practices employed in other States -- for example, six-person juries or majority, rather than unanimous, verdicts. (3 Proceedings 1427-32.) It is clear from the committee proposals, the floor debates, and the explanation to the voters that "[t]his section is the same as Article II, Section 5 of the 1870 Constitution, except that it deletes an outdated reference to the office of Justice of the peace, which has been abolished" (7 Proceedings 2686), that there was no intent to change trial by jury as that right was enjoyed in this State at the time of the 1970 constitutional convention. In People v. Lobb (1959), 17 Ill. 2d 287, 298, we stated:

"Section 5 of article II of the Illinois constitution provides that 'The right of trial by jury as heretofore enjoyed, shall remain inviolate.' We have construed these words to mean the right of a trial by jury as it existed under the common law and as enjoyed at the time of the adoption of the respective Illinois constitutions." (Emphasis added.)

Thus, it is the common law right to jury trial as enjoyed at the time of the adoption of the 1970 constitution to which "heretofore enjoyed" refers. There has been significant debate in this State concerning the issue of a defendant's waiver of a jury after a plea of not guilty. Toward the end of the last century this court stated that a defendant's jury waiver in a felony trial was not permissible because a jury was essential for jurisdiction (People v. Brewster (1899), 183 Ill. 143, citing People v. Harris (1889), 128 Ill. 585), but it had long been held that a jury waiver was permissible in cases of misdemeanors (Zarresseller v. People (1855), 17 Ill. 101). These cases were construing our State constitutions in light of the common law. The United States Supreme Court, in Patton v. United States (1929), 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253, addressed jury waiver and the jurisdictional question in light of the Federal Constitution. The Patton Court also looked at a frequently advanced public policy reason employed in various Federal and State courts to give validity to the proposition that juries were a jurisdictional requirement. The proposition cited by Blackstone, Commentaries on the Laws of England vol. 4, at 189, was that the King has "an interest in the preservation of all his subjects." This proposition later became that the State and the public have an interest in the preservation of the liberties of citizens and will not allow them to be taken away. The Patton Court went on to review the converse of this public policy rationale. Thus, if a defendant could plead guilty and dispense with all the constitutional protections offered with a trial and yet have the court's jurisdiction remain intact, why would waiving just one aspect of the constitutional protection, trial by jury, destroy jurisdiction? Because of this reasoning and because it was clear the State could not force a defendant who pleaded guilty to trial, Patton held that a jury is not required for jurisdiction and a defendant may waive a jury with the government's consent.

Our court, in People ex rel. Swanson v. Fisher (1930), 340 Ill. 251, used similar reasoning when it considered the issues of jury waiver, our State constitution's bill of rights, and jurisdiction. This court noted that each of our State constitutions spoke of a defendant's right to trial by jury. Because the constitution conferred a right, it did not mean the right to be mandatory or peremptory, but a privilege of the accused. (340 Ill. at 257.) The court further stated that if the effect of our State's bill of rights was to make juries indispensable to the court's jurisdiction, then juries would have been indispensable to misdemeanor cases and could not be waived. This had not been the law in Illinois. Therefore, under State constitutional analysis and without reference to any State statute, this court held that a defendant has the power ...

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