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Kakos v. Butler

Supreme Court of Illinois

September 22, 2016

JAMES KAKOS, D.D.S., et al., Appellants,
v.
JESSE BUTLER, M.D., et al. Jerry Bauer, M.D., et al., Appellees.

          CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Karmeier, Burke, and Theis concurred in the judgment and opinion. Justices Thomas and Kilbride took no part in the decision.

          OPINION

          GARMAN CHIEF JUSTICE

         ¶ 1 Plaintiffs filed a complaint at law alleging multiple counts of medical negligence and loss of consortium against defendants. Defendants filed a motion requesting a 12-person jury and seeking a declaration that Public Act 98-1132 (eff. June 1, 2015) (Act) is unconstitutional. Public Act 98-1132 limits the size of a civil jury to 6 persons and increases the amount paid per day to jurors across the state.

         ¶ 2 The circuit court found the provision regarding the size of a jury facially unconstitutional based on article I, section 13, of the Illinois Constitution, which protects the right of trial by jury. Ill. Const. 1970, art. I, § 13. The circuit court also held this provision violates the separation of powers. Plaintiffs appealed to this court as a matter of right. Ill. S.Ct. R. 302(a) (eff. Oct. 4, 2011).

         ¶ 3 BACKGROUND

         ¶ 4 Plaintiffs, Dr. Kakos and his wife, filed a complaint alleging nine counts of medical negligence and nine counts of loss of consortium against defendants: doctors Butler, Bauer, Mardjetko, Wang, and Chen and their respective employers, Spine Consultants, LLC; Center of Brain and Spine Surgery, S.C.; Illinois Bone and Joint Institute, LLC; and Advocate Health and Hospitals Corporation.[1] The facts regarding these allegations are irrelevant for purposes of this appeal.

         ¶ 5 Defendants Bauer and the Center of Brain and Spine Surgery filed their appearance and moved for leave to file a 12-person jury demand and "to declare Public Act 98-1132, which amended 735 ILCS 5/2-1105(b), as unconstitutional." The remaining defendants joined the motion. The circuit court consolidated this motion with motions challenging the constitutionality of the Act filed in several other cases.

         ¶ 6 Public Act 98-1132 amended two statutes: section 2-1105(b) of the Code of Civil Procedure (735 ILCS 5/2-1105(b) (West 2012)) and section 4-11001 of the Counties Code (55 ILCS 5/4-11001 (West 2012)). It was enacted in December 2014 and both provisions took effect June 1, 2015. Prior to the Act, section 2-1105(b) provided:

"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. If a fee in connection with a jury demand is required by statute or rule of court, the fee for a jury of 6 shall be ½ the fee for a jury of 12. A party demanding a jury of 12 after another party has paid the applicable fee for a jury of 6 shall pay the remaining ½ of the fee applicable to a jury of 12." 735 ILCS 5/2-1105(b) (West 2012).

         The amendment eliminated the ability of either party to request a jury of 12:

"All jury cases shall be tried by a jury of 6. If alternate jurors are requested, an additional fee established by the county shall be charged for each alternate juror requested. For all cases filed prior to the effective date of this amendatory Act of the 98th General Assembly, if a party has paid for a jury of 12, that party may demand a jury of 12 upon proof of payment." 735 ILCS 5/2-1105(b) (West 2014) (amended by Pub. Act 98-1132 (eff. June 1, 2015)).
Prior to the passage of this Act, section 4-11001 of the Counties Code provided that each county would pay to each juror either $4, $5, $10, or some higher amount per day of necessary attendance depending on the class of the county. 55 ILCS 5/4-11001 (West 2012). The Act amended the section to provide one rate of pay across the state: $25 for the first day and $50 thereafter.

         ¶ 7 The circuit court heard arguments on the consolidated motion and entered a memorandum order and opinion, in which it held that the provision of Public Act 98-1132 that amended section 2-1105(b) violates the right of trial by jury and the separation of powers. Thus, the circuit court held this provision is facially unconstitutional and that section 2-1105(b) as amended is void. ...


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