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.
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).
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. 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).
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. ...