Kakos v. Butler, 120377.

• Decision Date: 22 September 2016
• Docket Number: No. 120377.,120377.
• Citation: 63 N.E.3d 901,407 Ill.Dec. 469
• Parties: James KAKOS, D.D.S., et al., Appellants, v. Jesse BUTLER, M.D., et al. (Jerry Bauer, M.D., et al., Appellees).
• Court: Illinois Supreme Court

63 N.E.3d 901
407 Ill.Dec. 469

James KAKOS, D.D.S., et al., Appellants,
v.
Jesse BUTLER, M.D., et al. (Jerry Bauer, M.D., et al., Appellees).

No. 120377.

Supreme Court of Illinois.

Sept. 22, 2016.

63 N.E.3d 903

David A. Axelrod, Stacey L. Leinheiser, and Lauren C. Kaplan, all of David A. Axelrod & Associates, P.C., of Chicago, for appellants.

Robert W. Smyth, Jr., Karen Kies DeGrand, and Laura K. Coffey, all of Donohue Brown Mathewson & Smyth, LLC, of Chicago, for appellees Jerry Bauer and Jerry Bauer, M.D., S.C.

Pretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers, Timothy A. Weaver, Peter G. Syregelas, Michael A. Barry, and Paula K. Villela, of counsel), for appellees Steven M. Mardjetko and Illinois Bone & Joint Institute, LLC.

Julie A. Teuscher, John N. Seibel, Anne M. Junia, and Matthew A. Eliaser, all of Cassiday Schade LLP, of Chicago, for appellees Olivia Wang, Austin Chen, and Advocate Lutheran General Hospital.

OPINION

Chief Justice GARMAN delivered the judgment of the court, with opinion.

407 Ill.Dec. 471

¶ 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.

63 N.E.3d 904

407 Ill.Dec. 472

¶ 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. Plaintiffs filed a notice of appeal in this court as a matter of right, pursuant to Illinois Supreme Court Rule 302.

¶ 8 ANALYSIS

¶ 9 Plaintiffs maintain that the provision of Public Act 98–1132 that amended section 2–1105(b) does not violate the right of trial by jury because that right does not entitle a litigant to a jury composed of 12 jurors. Plaintiffs also argue the circuit court erred in concluding this provision violates the constitutionally protected separation of powers because the Act does not interfere with this court's authority. This court reviews de novo whether legislation is unconstitutional. Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 22, 388 Ill.Dec. 878, 25 N.E.3d 570 ; Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 227, 341 Ill.Dec. 381, 930 N.E.2d 895 (2010). We presume that challenged legislation is constitutional and seek to construe legislation in a manner that upholds its constitutionality if we can reasonably do so. Hayashi, 2014 IL 116023, ¶ 22, 388 Ill.Dec. 878, 25 N.E.3d 570. It is the challenger's burden to establish the provision is unconstitutional. Best v. Taylor Machine Works, 179 Ill.2d 367, 377, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997) (citing Bernier v. Burris, 113 Ill.2d 219, 100 Ill.Dec. 585, 497 N.E.2d 763 (1986) ). When asserting legislation is facially unconstitutional, the challenger “must establish that no set of circumstances exists under which the Act would

407 Ill.Dec. 473

63 N.E.3d 905

be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ; In re C.E., 161 Ill.2d 200, 210–11, 204 Ill.Dec. 121, 641 N.E.2d 345 (1994).

¶ 10 Right of Trial by Jury

¶ 11 Defendants primarily challenge the Act on grounds that it violates the right of trial by jury as protected by the Illinois Constitution. Both the United States and Illinois Constitutions ensure that civil litigants have the right of trial by jury. This court applies a limited lockstep approach when interpreting cognate provisions of the state and federal constitutions. Under this approach, the court looks to whether the two provisions differ in any substantial manner. “If a provision in the state constitution is similar to a provision in the federal constitution, but differs from it in some significant respect, the language of the [state] provision must be given effect. * * * [I]f a provision of the state constitution is identical to or synonymous with the federal constitutional provision, federal authority on the provision prevails, unless ‘the language of our constitution, the constitutional convention debates and committee reports, or state custom and practice * * * indicate that the provisions of our constitution are intended to be construed differently.’ ” Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, ¶ 10, 405 Ill.Dec. 131, 57 N.E.3d 1229 (quoting Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 83, 372 Ill.Dec. 255, 991 N.E.2d 745, and citing People v. Caballes, 221 Ill.2d 282, 289–90, 303 Ill.Dec. 128, 851 N.E.2d 26 (2006) ).

¶ 12 The seventh amendment to the United States Constitution provides: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” U.S. Const. amend. VII. The United States Supreme Court has held that neither the seventh amendment nor the sixth amendment, which protects the right of trial by jury in criminal cases, requires a 12–person jury. Colgrove v. Battin, 413 U.S. 149, 160, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (seventh amendment); Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (sixth amendment). To reach this conclusion, the Court examined whether the amendments protect the common-law features of a jury trial, including jury size. The Court in Williams identified several features of the sixth amendment that demonstrate that the framers did not intend for the characteristics of a jury at common law to be...