Kakos v. Butler, 2016 IL 120377

Plaintiffs (Dr. Kakos and wife) sued multiple medical defendants for medical negligence; several defendants moved to demand a 12-person jury and challenged Public Act 98‑1132 as unconstitutional.
Public Act 98‑1132 (eff. June 1, 2015) amended 735 ILCS 5/2‑1105(b) to require six‑member juries in all civil cases (eliminating either‑party demand for 12) and amended jury pay in the Counties Code to $25 first day/$50 thereafter.
The Cook County circuit court consolidated related challenges and held the provision mandating six‑member civil juries facially unconstitutional under Ill. Const. art. I, § 13 (right to jury) and also ruled it violated separation of powers.
Plaintiffs appealed directly to the Illinois Supreme Court; the Supreme Court reviewed constitutionality de novo and presumed legislative acts constitutional absent clear showing otherwise.
The Supreme Court analyzed whether the 1970 Illinois Constitution’s phrase "the right of trial by jury as heretofore enjoyed" preserved the common‑law features of a jury (including 12 jurors) and considered contemporaneous convention debates about whether the legislature could reduce jury size.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Illinois Constitution preserves a right to a 12‑member civil jury	Plaintiffs: the constitutional right does not guarantee 12 jurors; legislature can set 6	Defendants: "as heretofore enjoyed" preserves common‑law features, including 12 jurors	Court: Right to demand a 12‑member jury is preserved; statute reducing jury to 6 is unconstitutional
Whether the Act is facially unconstitutional	Plaintiffs: statute valid; no grant of exclusive 12‑juror right	Defendants: statute invalid in all applications because it eliminates 12‑juror demand	Court: Act is facially unconstitutional because no circumstances make the ban on 12‑member demands valid
Whether the size change is an unprotected procedural modification vs. fundamental right	Plaintiffs: federal precedents permit <12 juries; studies support smaller juries	Defendants: historical practice and convention debates show 12 is an essential common‑law feature	Court: Illinois drafters intended to preserve common‑law characteristics; 12 is fundamental here
Severability of the unconstitutional provision from remainder of the Act	Plaintiffs: at least jury‑pay provision can stand independently	Defendants: provisions interdependent; legislature intended them to operate together	Court: Not severable; because pay increase and jury‑size reduction were linked, entire Act invalidated

Colgrove v. Battin, 413 U.S. 149 (U.S. 1973) (held federal Seventh Amendment does not require a 12‑member civil jury)
Williams v. Florida, 399 U.S. 78 (U.S. 1970) (held Sixth Amendment does not require 12 jurors in criminal cases; examined jury features)
Ballew v. Georgia, 435 U.S. 223 (U.S. 1978) (recognized limits to jury size in criminal cases; held juries smaller than six unconstitutional)
Salerno, 481 U.S. 739 (U.S. 1987) (facial‑invalidity standard: challenger must show no set of circumstances where the statute is valid)
Best v. Taylor Machine Works, 179 Ill. 2d 367 (Ill. 1997) (severability and presumption of constitutionality principles)
People v. Lobb, 17 Ill. 2d 287 (Ill. 1959) (interpreting "as heretofore enjoyed" to preserve common‑law jury rights)
Hill v. Cowan, 202 Ill. 2d 151 (Ill. 2002) (void ab initio principle for unconstitutional statutes)