                                                                              Digitally signed by
                          Illinois Official Reports                           Reporter of Decisions
                                                                              Reason: I attest to the
                                                                              accuracy and integrity
                                                                              of this document
                                  Supreme Court                               Date: 2016.12.01
                                                                              12:06:11 -06'00'




                           Kakos v. Butler, 2016 IL 120377




Caption in Supreme   JAMES KAKOS, D.D.S., et al., Appellants, v. JESSE BUTLER,
Court:               M.D., et al. (Jerry Bauer, M.D., et al., Appellees).



Docket No.           120377


Filed                September 22, 2016


Decision Under       Appeal from the Circuit Court of Cook County; the Hon. William E.
Review               Gomolinski, Judge, presiding.



Judgment             Affirmed and remanded.


Counsel on           David A. Axelrod, Stacey L. Leinheiser, and Lauren C. Kaplan, all of
Appeal               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.
     Justices                   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

¶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 of Cook County 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

           1
            Defendants Butler and Spine Consultants, LLC, were dismissed from the underlying litigation by
       the circuit court pursuant to section 2-1010 of the Code of Civil Procedure after plaintiffs filed their
       appeal in this court (735 ILCS 5/2-1010 (West 2012)).

                                                      -2-
                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; Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 227 (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. It is the challenger’s burden to establish the provision is unconstitutional. Best v. Taylor
       Machine Works, 179 Ill. 2d 367, 377 (1997) (citing Bernier v. Burris, 113 Ill. 2d 219 (1986)).
       When asserting legislation is facially unconstitutional, the challenger “must establish that no
       set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481
       U.S. 739, 745 (1987); In re C.E., 161 Ill. 2d 200, 210-11 (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.

                                                    -3-
       “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 (quoting Hope Clinic for Women, Ltd. v. Flores, 2013 IL
       112673, ¶ 83, and citing People v. Caballes, 221 Ill. 2d 282, 289-90 (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 (1973) (seventh amendment); Williams v. Florida,
       399 U.S. 78, 103 (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 preserved in the
       United States Constitution, including the lack of a vicinage requirement and the lack of any
       express language tying the jury concept to “accustomed requisites.” Williams, 399 U.S. at
       96-97; but see id. at 116 (Marshall, J., dissenting); id. at 117 (Harlan, J., dissenting). In
       Colgrove, the Court again found that the framers were “concerned with preserving the right of
       trial by jury in civil cases where it existed at common law, rather than the various incidents of
       trial by jury” and thus that there was “no intention on the part of the Framers ‘to equate the
       constitutional and common-law characteristics of the jury.’ ” (Emphasis omitted.) 413 U.S. at
       155-56 (quoting Williams, 399 U.S. at 99); but see id. at 166-67 (Marshall, J., dissenting,
       joined by Stewart, J.).
¶ 13        Article I, section 13, of the Illinois Constitution, on the other hand, reveals an intent on the
       part of the drafters to maintain common-law characteristics of jury trials. Ill. Const. 1970, art. I,
       § 13. Article I, section 13, provides: “The right of trial by jury as heretofore enjoyed shall
       remain inviolate.” Id. The phrase “as heretofore enjoyed” plainly indicates that the drafters
       intended for certain characteristics of a jury trial to be maintained. For this reason, we construe
       the right of trial by jury protected by the Illinois Constitution differently than the rights
       protected by the federal constitution. People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 214-15
       (1988) (“[The] difference in the language of our State constitution from that of the Federal
       Constitution *** is one of substance and not merely one of form. In view of this difference,
       *** 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.”).
¶ 14        This court has long interpreted the phrase “as heretofore enjoyed” 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.” People v. Lobb, 17 Ill. 2d 287, 298 (1959); see People v.
       Sanders, 238 Ill. 2d 391, 399 (2010) (“The court had previously construed those words to mean
       the right to trial by jury as it existed under the common law ***.”); Joyce, 126 Ill. 2d at 215

                                                     -4-
       (“[I]t 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.” (Emphasis in original.)); Reese v. Laymon,
       2 Ill. 2d 614, 618 (1954) (“As construed by the courts, the provision means the right of trial by
       jury as it existed at common law, and as enjoyed at the adoption of the respective
       constitutions.”); People v. Bruner, 343 Ill. 146, 149 (1931) (“The word ‘heretofore’ evidently
       relates to the past, and to determine the true meaning of the words ‘the right of trial by jury as
       heretofore enjoyed,’ it is necessary to have recourse to the common law of England.”);
       Sinopoli v. Chicago Railways Co., 316 Ill. 609, 616 (1925) (“The provision in each
       [constitution] means the same thing, which is the right of trial by jury as it existed at common
       law and was enjoyed at the adoption of the respective constitutions.”); George v. People, 167
       Ill. 447, 455 (1897) (“The right protected by each constitution was the right of trial by jury as it
       existed at common law.”). This provision does not, however, preserve all features of a
       common-law jury trial. Lobb, 17 Ill. 2d at 299. “The cardinal principle is that the essential
       features of trial by jury as known to the common law must be preserved and its benefits
       secured to all entitled to the right. *** The question of the constitutionality of any particular
       modification of the law as to trial by jury resolves itself into a question of what requirements
       are fundamental and what are unessential ***.” People v. Kelly, 347 Ill. 221, 225 (1931).
¶ 15        In 1897, the Illinois Supreme Court addressed the meaning of the phrase “heretofore
       enjoyed” in order to determine whether a prisoner had a constitutional right to have his term of
       punishment fixed by a jury. George, 167 Ill. at 456-57. The court “found that the right of trial
       by jury [comprises] certain specified things, which cannot be dispensed with or disregarded on
       the trial of a person charged with a felony.” Id. Among these things, a “jury of twelve men
       must be empaneled, and any less number would not be a common law jury.” Id. at 457. The
       jury must also be “indifferent,” “summoned from the vicinage or body of the county in which
       the crime was alleged to have been committed,” and “unanimously concur in the verdict.” Id.
¶ 16        In 1938, the court considered the constitutionality of a statute that required a civil litigant to
       pay a fee for a 6-member jury and an additional fee for a 12-member jury. Huber v. Van
       Schaack-Mutual, Inc., 368 Ill. 142, 144-45 (1938). The appellant asserted that the additional
       fee violated his right of trial by a jury of 12. Id. The court concluded that the appellant’s
       “constitutional right to have the issues of fact tried by a jury of twelve ha[d] not been violated.”
       Id. at 145. The court did not discuss whether the right of trial by jury includes the right to a jury
       of 12. Instead, it relied upon precedent upholding the constitutionality of court fees for a jury
       trial. Id. at 144 (citing Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431 (1910), and
       Williams v. Gottschalk, 231 Ill. 175 (1907)). While the court did not directly rule on the issue
       before us today, the Huber decision strongly implies that the court considered the size of the
       jury to be an essential element of the right of trial by jury.
¶ 17        Since that time, this court has not directly addressed whether the size of the jury is an
       essential common-law characteristic protected by the Illinois Constitution. However, the court
       has often referred to the size of a jury when describing the essential elements of a constitutional
       jury in civil lawsuits. See Hartgraves v. Don Cartage Co., 63 Ill. 2d 425, 427 (1976) (“The
       right to trial by jury is guaranteed by the 1970 Illinois Constitution [citation], and this court has
       long determined that a jury is comprised of 12 members.”); Liska v. Chicago Railways Co.,
       318 Ill. 570, 583 (1925) (“[The right of trial by jury] is the right to have the facts in controversy
       determined, under the direction and superintendence of a judge, by twelve impartial jurors who
       possess the qualifications and are selected in the manner prescribed by law.”); Sinopoli, 316 Ill.

                                                      -5-
       at 619-20 (“The essential thing in the right of trial by jury is the right to have the facts in
       controversy determined under the direction and superintendence of a judge by twelve impartial
       jurors having the qualifications and selected in the manner required by law, whose verdict must
       be unanimous and shall be conclusive, subject to the right of the judge to set it aside if in his
       opinion it is against the law or the evidence and to grant a new trial.”); see also Povlich v.
       Glodich, 311 Ill. 149, 152 (1924) (“The statute authorized the assessment of damages by a jury,
       which means twelve men. In all actions governed by the common law a less or greater number
       is not a jury unless by the consent of the parties.”); Bibel v. People ex rel. City of Bloomington,
       67 Ill. 172, 175 (1873) (“If we construe[d] the word jury *** as used in the sense in which that
       term is understood in all constitutions and statutes when not expressly qualified, then it means
       a jury of twelve men ***.”).
¶ 18        The court has also referred to the right to a jury of 12 in criminal trials. See, e.g., Kelly, 347
       Ill. at 227 (“The three essentials of a jury at common law are, that it should be composed of
       twelve men, that they should be impartial and that their verdict should be unanimous.”);
       George, 167 Ill. at 457 (“A jury of twelve men must be empaneled, and any less number would
       not be a common law jury.”); see also People v. Ward, 32 Ill. 2d 253, 258-59 (1965); People v.
       Kolep, 29 Ill. 2d 116, 126 (1963); Lobb, 17 Ill. 2d at 298; People v. Schoos, 399 Ill. 527, 536
       (1948); People v. Scudieri, 363 Ill. 84, 87 (1936); Joyce, 126 Ill. 2d at 220. Thus, there is
       substantial evidence that the size of the jury is an essential feature of the common-law right to
       trial by jury “as heretofore enjoyed” under Illinois law.
¶ 19        Both parties present arguments addressing how the size of a jury does or does not affect the
       performance of a jury in support of their respective positions. Plaintiffs cite the studies relied
       upon by the federal court to conclude that a jury of less than 12 people does not threaten the
       effectiveness or authenticity of a jury trial. See Williams, 399 U.S. at 101 nn. 48, 49 (citing a
       number of studies regarding the effect of 6-person juries and group decision making).
       Defendants argue the results of these studies have since been refuted. The circuit court cited
       newer studies “supporting the conclusion that decreasing the number of jurors corresponds to
       decreasing diversity of the jury and may impede the deliberative process.”
¶ 20        Defendants further note that the United States Supreme Court has cast some doubt on the
       studies relied upon in Williams and Colgrove. In Ballew v. Georgia, the Court recognized a
       number of studies that indicate progressively smaller juries are less likely to foster effective
       group deliberation and that a positive correlation exists between group size and the quality of
       both group performance and group productivity. 435 U.S. 223, 232-39 (1978). Based on these
       studies, the Court held that a jury of less than 6 would violate a criminal defendant’s jury trial
       right. Id. at 239. However, the Court maintained its holding from Williams that a jury less than
       12 does not inherently violate the right protected in the sixth amendment. Id.
¶ 21        We recognize that both defendants’ and plaintiffs’ positions have some merit but remain
       concerned with whether the right to a 12-person jury was “heretofore enjoyed” at the time the
       1970 Constitution was drafted. “Our task is limited to determining whether the challenged
       legislation is constitutional, and not whether it is wise.” Best, 179 Ill. 2d at 390 (citing Bernier,
       113 Ill. 2d at 230).
¶ 22        There is ample evidence that the drafters at the 1970 Constitutional Convention believed
       they were specifically preserving the right to a 12-person jury when they adopted the current
       constitution. Delegates debated allowing the legislature to reduce the size of civil juries to less


                                                      -6-
       than 12 members and allowing the legislature to require less than unanimous verdicts in civil
       trials. Transcripts from the constitutional convention debates disclose that the delegates did not
       believe that the legislature had the authority to reduce the size of a civil jury prior to the 1970
       convention.
¶ 23        Delegate Wilson proposed an amendment to allow the General Assembly to “provide for
       juries of less than twelve but not less than six and to provide for verdicts in civil cases by not
       less than three-fourths of the jurors.” 3 Record of Proceedings, Sixth Illinois Constitutional
       Convention 1430 (statements of Delegate Wilson). He explained that the amendment was
       intended to provide the legislature greater flexibility to address delays and backlogs. Id. “The
       amendment itself does not do anything as far as the right of trial by jury in civil cases is
       concerned,” Delegate Wilson explained, “but it does vest in the legislature the authority which
       the legislature presently does not have to provide for juries of less than twelve but not less than
       six and to provide for verdicts in civil cases by not less than three-fourths of the jurors.” Id.
       When asked whether reducing the size of juries and abolishing the unanimous verdict
       requirement would make jury trials more efficient, Delegate Wilson clarified that the proposed
       amendment would not itself reduce the size of juries or abolish the unanimous verdict
       requirement. Id. at 1432. “The amendment only gives this power to the legislature, to be
       exercised by the legislature if, as, and when the legislature sees fit. As the constitutional
       provision is now, it is quite inflexible. The hands of the legislature are tied.” Id. (statements of
       Delegate Wilson). The delegates initially voted to adopt this amendment. Id.
¶ 24        After the second reading, however, Delegate Lennon proposed an amendment “to retain
       intact the system of jury trials in the state that we have heretofore enjoyed, both in the criminal
       area and in the civil area.” 4 Record of Proceedings, Sixth Illinois Constitutional Convention
       3637. “The language that I seek to delete,” he explained, “would, in effect, provide a means for
       the legislature to reduce our twelve-man system of jury trials down to a number as low as six
       and to provide for verdicts by three-quarters of the jurors in those civil cases.” Id. The majority
       of delegates voted to adopt Delegate Lennon’s amendment, effectively reversing the adoption
       of Delegate Wilson’s amendment and returning the provision to its original form. Id. at 3641.
       After these changes were made, Delegate Gertz, chairman of the Bill of Rights committee,
       suggested there was no need to schedule a transition regarding the right to jury trial provision,
       because the constitutional right had not been changed. 5 Record of Proceedings, Sixth Illinois
       Constitutional Convention 4241. “As I understand it,” he explained, “juries of less than twelve
       are by consent of the parties. They are not constitutional or even statutory, except insofar as the
       statute says that the parties may consent to smaller juries. So far as the constitution is
       concerned, the jury must be one of twelve members in criminal or civil cases unless the parties
       otherwise agree.” Id. (statements of Delegate Gertz). These discussions indicate that the
       delegates believed the size of the jury was an essential element of the right as enjoyed at the
       time they were drafting the constitution and they deliberately opted not to make any change to
       that element. See 7 Record of Proceedings, Sixth Illinois Constitutional Convention, Proposed
       1970 Constitution for the State of Illinois—Official Text With Explanation 2686 (“This
       section is the same as Article II, Section 5 of the 1870 Constitution, except that it deletes an
       out-dated reference to the office of justice of the peace, which has been abolished.”); see also
       Joyce, 126 Ill. 2d at 215 (discussing the debate regarding the right of trial by jury at the 1970
       Constitutional Convention and concluding 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”).

                                                    -7-
¶ 25        Plaintiffs assert the right as it existed at the time of the 1970 Constitutional Convention did
       not include a 12-juror requirement. For support, they cite the predecessors to section 2-1105(b)
       and Illinois Supreme Court Rule 285 that were in effect when the 1970 Constitution was
       drafted: section 64(2) of the Civil Practice Act and former Rule 9-1(E). In 1970, section 64(2)
       provided that “All jury cases where the claim for damages does not exceed $10,000 shall be
       tried by a jury of 6, unless either party demands a jury of 12.” Ill. Rev. Stat. 1969, ch. 110,
       ¶ 64(2). This provision did not foreclose a litigant’s right to seek a jury of 12. Nothing in this
       provision implies the legislature had authority to prohibit a litigant from demanding a jury of
       12. Similarly, Rule 9-1(E), which was adopted in 1964 and has remained substantively
       unchanged since, provided:
                    “A small claim shall be tried by the court unless a jury demand is filed by the
                plaintiff at the time the action is commenced or by the defendant not later than the date
                he is required to appear. There shall be 6 jurors unless either party demands 12. A party
                demanding a jury shall pay a fee of $12.50 unless he demands a jury of 12, in which
                case he shall pay a fee of $25, or, if another party has previously paid a fee for a jury of
                6, $12.50.” Ill. S. Ct. R. 285 & Committee Comments (“This is paragraph E of former
                Rule 9-1, effective January 1, 1964, without change.”).
       Neither does this rule foreclose a litigant’s right to seek a jury of 12, and the fact that the rule
       had been adopted before the 1970 Constitution was drafted is not evidence that this court
       believed the right to a trial by jury was satisfied by a jury of less than 12. In cases in which the
       parties did not seek a jury of 12, it was understood that the parties had waived their right to do
       so. See Hartgraves, 63 Ill. 2d at 427-28 (“[T]his court has long determined that a jury is
       comprised of 12 members. [Citations.] The parties can, however, consent in open court to a
       unanimous verdict of a jury of less than 12.”); see also Huber, 368 Ill. at 144-45 (discussing the
       constitutionality of a provision that allowed litigants to consent to a jury of 6 and pay a lesser
       fee than if they demanded a jury of 12); Povlich, 311 Ill. at 152 (“a less or greater number [than
       12] is not a jury unless by the consent of the parties”).
¶ 26        Plaintiffs also point to the court’s decision in People ex rel. Denny v. Traeger, 372 Ill. 11
       (1939), as evidence that not all common-law features of a jury trial were preserved in the 1970
       Illinois Constitution. In Traeger, the court addressed whether women could serve on juries. Id.
       The court had, in several opinions, referred to juries of “twelve men” when discussing the
       essential elements of the right of trial by jury. See, e.g., Huber, 368 Ill. at 144; People v.
       Pierce, 369 Ill. 172, 175 (1938); Scudieri, 363 Ill. at 87; Kelly, 347 Ill. at 227; Sinopoli, 316 Ill.
       at 618; George, 167 Ill. at 457; Bibel, 67 Ill. at 175. In fact, the jury trial provision as written at
       the time Traeger was decided included the term “men.” Ill. Const. 1870, art. II, § 5 (“The right
       of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before
       justices of the peace by a jury of less than twelve men may be authorized by law.”). The court
       explained that the term “men” had been used elsewhere in the 1870 Constitution and
       concluded it would be “absurd and lead to ridiculous conclusions” if the term “men” in these
       contexts was not interpreted in a generic sense. Traeger, 372 Ill. at 16-17. There is no similar
       reason for interpreting the court’s repeated use of the number 12 in its descriptions of the
       essential elements of a jury trial as some number less than 12.
¶ 27        Furthermore, the court in Traeger determined that the sex of a juror is a matter of juror
       qualification, not an essential element of the right of trial by jury. Id. at 13-14. Qualifications


                                                      -8-
       have changed continuously over time as the legislature and court have recognized the abilities
       of different people to serve as jurors and the importance of having a diverse group of people
       serve as jurors. Id. (discussing how, at one time, it was required that jurors be “selected from
       the villa or place where the offense was committed or the dispute arose,” that they be “drawn
       from the body of the county,” that they be “freeholders,” and that they meet “certain standards
       of personal property ownership and tax payments”). “It is settled that no one set of
       qualifications of jurors was engrafted upon the law by any of the constitutional guarantees.” Id.
       at 14. Size of the jury is a common-law feature of the jury trial itself, not a juror qualification.
       Accordingly, Traeger provides no support for plaintiffs’ argument that the legislature could
       change the size of the jury without infringing on the right of trial by jury.
¶ 28       Because the size of the jury—12 people—was an essential element of the right of trial by
       jury enjoyed at the time the 1970 Constitution was drafted, we conclude jury size is an element
       of the right that has been preserved and protected in the constitution. The provision of Public
       Act 98-1132 amending section 2-1105(b) and reducing the size of a jury in civil trials is thus
       unconstitutional.
¶ 29       Legislation is facially unconstitutional if no set of circumstances exist under which it
       would be valid. Salerno, 481 U.S. at 745; In re C.E., 161 Ill. 2d at 210-11. There is no set of
       circumstances in which the provision of Public Act 98-1132 amending section 2-1105(b) could
       be valid. Even if a litigant wanted a jury of 6, it is the litigant’s right to waive the right to 12
       jurors. See People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 78 (2009) (“It is undisputed that
       because a defendant can waive his entire right to a trial by jury [citation], he can also waive his
       constitutional right to a jury panel composed of 12 members.” (citing Scudieri, 363 Ill. at 87,
       and Pierce, 369 Ill. 172)). “The power to waive follows the existence of the right ***.” Joyce,
       126 Ill. 2d at 222 (quoting People v. Spegal, 5 Ill. 2d 211, 218 (1955), quoting People v.
       Scornavache, 347 Ill. 403, 419 (1931) (DeYoung, J., dissenting, joined by Dunn and Duncan,
       JJ.)). Therefore, the Act as it amends section 2-1105(b) is facially unconstitutional and void
       ab initio. See Hill v. Cowan, 202 Ill. 2d 151, 156 (2002).
¶ 30       Because we have concluded that the Act and section 2-1105(b), as amended, are
       unconstitutional based on the right of trial by jury, we need not consider defendant’s
       alternative argument that the Act violates the separation of powers.

¶ 31                                              Severability
¶ 32       The circuit court limited its order and opinion to the provision of the Act that amended
       section 2-1105(b). However, we must consider whether this unconstitutional provision can be
       severed from the remainder of the Act. “Whether or not an act is severable is a question of
       legislative intent.” Best, 179 Ill. 2d at 460. To determine whether a provision is severable, we
       consider “whether the valid and invalid provisions of the Act are ‘so mutually connected with
       and dependent on each other, as conditions, considerations or compensations for each other, as
       to warrant the belief that the legislature intended them as a whole, and if all could not be
       carried into effect the legislature would not pass the residue independently ***.’ ” Id. (quoting
       Fiorito v. Jones, 39 Ill. 2d 531, 540 (1968)).
¶ 33       Transcripts from the legislative debates regarding Public Act 98-1132 reveal the legislation
       was intended to make jury trials more efficient and to incentivize citizens to participate in jury
       duty. 98th Ill. Gen. Assem., House Proceedings, Dec. 2, 2014, at 37, 63; 98th Ill. Gen. Assem.,


                                                    -9-
       Senate Proceedings, Dec. 3, 2014, at 35-36. To meet these goals, the legislature reduced the
       size of the jury in civil cases and raised the amount paid to each juror. The two provisions were
       intended to act in tandem. 98 Ill. Gen. Assem., House Proceedings, Dec. 2, 2014, at 37 (“In
       order to offset the cost of increased payment for jurors, the Bill reduces the number of jurors in
       a civil case from 12 jurors to 6.” (statements of Representative Burke)); id. at 37-38 (“By being
       called upon less often and being compensated better, jurors will be more willing to serve.”
       (statements of Representative Burke)); id. at 45, 58, 61-62 (discussing how the jury size
       provision was included to offset the cost of increasing jury pay).
¶ 34       If the provision raising the amount to be paid to each juror remains valid while the
       provision reducing the size of the jury is invalidated, then the legislative purpose will be
       frustrated. The cost of jury trials across the state will dramatically increase without any offset.
       Based on the transcripts of the debates, it is evident the legislature would not have passed the
       provision increasing pay independently. See Best, 179 Ill. 2d at 460. Therefore, we conclude
       that the provision reducing the size of the jury cannot be severed from the remainder of Public
       Act 98-1132 and that the entirety of the Act is invalid.

¶ 35                                             CONCLUSION
¶ 36       Defendants challenge the constitutionality of Public Act 98-1132 insofar as the Act
       prohibits a civil litigant from demanding a jury composed of 12 members. The 1970
       Constitution protects the right of trial by jury “as heretofore enjoyed,” which means the right as
       it was enjoyed at the time the constitution was drafted. While there is some flexibility within
       this definition, it is clear that the drafters intended for the essential common-law features of a
       jury trial as then enjoyed to be preserved and protected. This court has long included the
       12-person size of a jury within its descriptions of the essential features of a jury trial.
       Additionally, transcripts from the convention debates make clear that the drafters did not
       believe the legislature had the authority to reduce the size of a jury below 12 members and the
       drafters did not act to give the legislature such power.
¶ 37       Based on this evidence, we conclude the right of trial by jury includes the right to demand
       a 12-member jury. Because Public Act 98-1132 bars a litigant from exercising this right, we
       hold the Act and the statute it amended (735 ILCS 5/2-1105(b) (West 2012)) facially
       unconstitutional. Furthermore, because the provision regarding jury size cannot be severed
       from the remainder of the Act, which addresses juror pay, we hold the Act is entirely invalid.
       The judgment of the circuit court is affirmed, and this cause is remanded for further
       proceedings in light of this opinion.

¶ 38      Affirmed and remanded.




                                                   - 10 -
