People ex rel. Birkett v. Dockery

• Decision Date: 08 October 2009
• Docket Number: No. 107555.,107555.
• Citation: 235 Ill.2d 73,919 N.E.2d 311
• Parties: The PEOPLE of the State of Illinois ex rel. Joseph E. BIRKETT, State's Attorney of Du Page County, Petitioner, v. Hon. Peter J. DOCKERY, Judge of the 18th Judicial Circuit, et al., Respondents.
• Court: Illinois Supreme Court

919 N.E.2d 311

235 Ill.2d 73

The PEOPLE of the State of Illinois ex rel. Joseph E. BIRKETT, State's Attorney of Du Page County, Petitioner, v. Hon. Peter J. DOCKERY, Judge of the 18th Judicial Circuit, et al., Respondents.

No. 107555.

Supreme Court of Illinois.

October 8, 2009.

Joseph E. Birkett, State's Attorney, Wheaton (Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, and Patrick Delfino, Lawrence M. Bauer and Cynthia N. Schneider, Office of the State's Attorneys Appellate Prosecutor, Elgin, of counsel), for the petitioner.

Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and Josette Skelnik, Assistant Appellate Defender, Office of the State Appellate Defender, Elgin, for respondents.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion.

Pursuant to Supreme Court Rule 381(a) (188 Ill.2d R. 381(a)), the State's Attorney of Du Page County successfully moved for leave to file a complaint seeking a writ of mandamus in this court. The State seeks to compel respondent, Honorable Peter J. Dockery, judge of the circuit court of Du Page County (the court), to vacate his order granting defendant William Krolik's motion for trial before a jury of six members and to try this case before a jury of 12. For the reasons that follow, we deny the writ of mandamus.

BACKGROUND

Defendant was charged by indictment with one count of attempted home invasion (720 ILCS 5/8-4(a), 12-11 (West 2008)) and two counts of attempted armed robbery (720 ILCS 5/8-4(a), 18-2 (West 2008)). Prior to trial, defendant requested, over the State's objection, that the court empanel a jury of six members.

At the hearing on defendant's motion, the State argued defendant had no right to request a jury panel of fewer than 12, directing attention to section 115-4(b) of the Code of Criminal Procedure of 1963, which provides that a jury in criminal trials "shall" consist of 12 members (725 ILCS 5/115-4(b) (West 2008)). According to the State, a circuit court may grant a request to empanel a jury of fewer than 12 only where the State agrees to proceed with a lesser number.

Defendant maintained that the legislature provided that a jury "shall" consist of 12 members simply to guarantee that number of jurors if the defendant elects a jury trial. In defendant's view, nothing in the statute forecloses a defendant from requesting a lesser number. Defendant pointed to the committee comments to section 115-4(b), which provide that a defendant "may waive any part of such right and agree to a trial by a jury of less than 12 members." The defendant therefore argued that as long as he agreed to a trial by a panel of fewer than 12, the State's agreement was unnecessary.

The court ruled that it had discretion to permit defendant to proceed with a six-person jury, and that the consent of the State was not required. The State then instituted this action. See 188 Ill.2d R. 381(a); Ill. Const.1970, art. VI, § 4(a).

ANALYSIS

Mandamus "is `an extraordinary remedy appropriate to enforce as a matter of public right the performance of official duties by a public officer where no exercise of discretion on his part is involved.'" People ex rel. Birkett v. Jorgensen, 216 Ill.2d 358, 362, 297 Ill.Dec. 289, 837 N.E.2d 69 (2005), quoting Madden v. Cronson, 114 Ill.2d 504, 514, 103 Ill.Dec. 729, 501 N.E.2d 1267 (1986). Accordingly, "[m]andamus will lie only when the movant shows a "`clear, affirmative * * * duty of the [public official] to act, and clear authority in the [public official] to comply with the writ,'" not when the act in question concerns an exercise of an official's discretion. [Citation.]" People ex rel. Devine v. Sharkey, 221 Ill.2d 613, 616-17, 304 Ill.Dec. 348, 852 N.E.2d 804 (2006). Mandamus is employed to compel a public official to perform a ministerial duty (People ex rel. Madigan v. Snyder, 208 Ill.2d 457, 464, 281 Ill.Dec. 581, 804 N.E.2d 546 (2004)), and the exercise of judicial discretion is not subject to mandamus review (International Harvester Co. v. Goldenhersh, 86 Ill.2d 366, 369, 56 Ill.Dec. 78, 427 N.E.2d 158 (1981)).

In order to determine whether the State's request for a writ of mandamus will lie, we must examine whether a circuit court's empaneling of a 12-member jury is a purely ministerial action, or whether the court has discretion to consider a defendant's motion to empanel a jury of fewer than 12. To this end, we review a defendant's right to trial by jury.

The right to a jury trial in criminal cases is guaranteed by both the federal and the state constitutions. The sixth amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const., amend. VI. Two provisions of our state constitution also guarantee this right. The right is generally guaranteed to all citizens by article I, section 13, of the Illinois Constitution of 1970, which provides that "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate." Ill. Const.1970, art. I, § 13. In addition, article I, section 8, of the Illinois Constitution of 1970 specifically provides that "[i]n criminal prosecutions, the accused shall have the right * * * to have a speedy public trial by an impartial jury." In People ex rel. Daley v. Joyce, 126 Ill.2d 209, 127 Ill.Dec. 791, 533 N.E.2d 873 (1988), we held that there is a difference in the substance of the right to jury trial afforded under the state and federal provisions (Joyce, 126 Ill.2d at 214, 127 Ill.Dec. 791, 533 N.E.2d 873) and that our state protections are broader (Joyce 126 Ill.2d at 222, 127 Ill.Dec. 791, 533 N.E.2d 873).

The constitutional right to a jury trial is codified in section 115-1 of the Code of Criminal Procedure (725 ILCS 5/115-1 (West 2008)), which provides that "[a]ll 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 a jury trial in writing." Where a defendant elects a trial by jury, the legislature has provided in section 115-4(b) of the Code that "[t]he jury shall consist of 12 members." 725 ILCS 5/115-4(b) (West 2008). The committee comments to section 115-4(b) explain:

"There are scholars who feel that the idea of a jury having twelve members can be traced back as far as the early tenth century. [Citation.] The Committee saw no reason to change this ancient practice. Since the defendant may waive his constitutional right to a jury trial he may waive any part of such right and agree to a trial by a jury of less than twelve members (People v. Scudieri, 363 Ill. 84, 1 N.E.2d 225 (1936)). There is no intent to lessen or abrogate that right in subsection (b)." 725 ILCS Ann. 5/115-4, Committee Comments—1963, at 23 (Smith-Hurd 2008).

It is undisputed that because a defendant can waive his entire right to a trial by jury (see People ex rel. Swanson v Fisher, 340 Ill. 250, 258-65, 172 N.E. 722 (1930)), he can also waive his constitutional right to a jury panel composed of 12 members. People v. Scudieri, 363 Ill. 84, 87, 1 N.E.2d 225 (1936) (no error in proceeding to trial with a jury of 11 after defendant agreed to the lesser number); see also People v. Pierce, 369 Ill. 172, 15 N.E.2d 845 (1938) (same). Indeed, our courts have consistently held that a criminal defendant may waive participation of the full number of jurors and proceed with fewer than 12. See, e.g., People v. LaFond, 343 Ill.App.3d 981, 985, 278 Ill.Dec. 800, 799 N.E.2d 518 (2003) (where after the jury has retired to deliberate and one juror becomes unable to serve, defendant may agree to proceed to verdict with fewer than 12); People v. Matthews, 304 Ill. App.3d 415, 419-20, 237 Ill.Dec. 894, 710 N.E.2d 524 (1999) (defendant may waive the right to a jury of 12 and proceed with a lesser number, as long as the waiver is affirmatively shown on the record); People v. Ernst, 219 Ill.App.3d 51, 54, 161 Ill.Dec. 828, 579 N.E.2d 376 (1991) (collecting cases holding that a defendant may waive his right to a jury of 12 and proceed with a lesser number).

The dispute here rests on the narrow issue of whether the State has what amounts to a veto power over a defendant's request to proceed to trial with a jury composed of fewer than 12 members. The parties disagree over (i) the meaning of section 115-4(b) of the Code, which provides that a jury "shall" consist of 12 members, and (ii) whether the court has discretion under it to seat fewer than 12 jurors where the State objects to a defense request to seat a fewer number.

As in all cases of statutory construction, our goal is to ascertain and give effect to the intent of the legislature, and the language of the statute is the best indication of that intent. Maddux v. Blagojevich, 233 Ill.2d 508, 513, 331 Ill.Dec. 749, 911 N.E.2d 979 (2009). Where the statutory language is clear and unambiguous, we must give it effect without resort to other tools of interpretation. County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill.2d 546, 556, 243 Ill.Dec. 224, 723 N.E.2d 256 (1999). We may also consider the purpose behind the enactment and the evils sought to be remedied, as well as the consequences from construing the statute in one manner over the other. County of Du Page v. Illinois Labor Relations Board, 231 Ill.2d 593, 604, 326 Ill. Dec. 848, 900 N.E.2d 1095 (2008). Construing a statute is a question of law, and our review is de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 205, 229 Ill.Dec. 522, 692 N.E.2d 295 (1998).

We initially reject the State's request that the language of section 115-4(b) be given the same construction as Rule 23(b) of the Federal Rules of Criminal Procedure. The State notes that the language of the federal rule is consistent with that of our statute, and points out that under Rule 23 both parties must stipulate to proceeding with a jury of fewer than 12. See ...