THE PEOPLE OF THE STATE OF ILLINOIS ex rel. RICHARD M. DALEY, State‘s Attorney of Cook County, Petitioner, v. HONORABLE DONALD E. JOYCE, Judge, et al., Respondents.
Nos. 65487, 65678, 65679 cons.-Writs
Supreme Court of Illinois
December 21, 1988
126 Ill. 2d 209
Judgments vacated; cause remanded with directions.
STAMOS, J., took no part.
CLARK, J., concurring.
MILLER, J., dissenting.
Ralph Ruebner and Ira A. Moltz, both of Chicago, for respondent Samuel Ramirez.
Daniel J. Stohr, of Chicago, for respondent Ephrain Dominguez.
JUSTICE RYAN delivered the opinion of the court:
We have consolidated in this original action a number of cases which were before the circuit court of Cook County. In each of these cases the State has filed in this court a petition for writ of mandamus, prohibition or supervisory order which requests this court to compel the Honorable Donald E. Joyce of the circuit court of Cook County to adhere to the provisions of section 115-1 of the Code of Criminal Procedure of 1963 (
“§115-1. Method of Trial. All 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 such jury trial in writing or, in a criminal prosecution where the only offenses charged are felony violations of the Cannabis Control Act or the Illinois Controlled Substances Act, or both, the State and the defendant waive such jury trial in writing.” (Emphasis added.)
Ill. Rev. Stat., 1986 Supp., ch. 38, par. 115-1 .
In each of these cases the defendant was indicted for a violation of the Illinois Controlled Substances Act. Prior to their trials, the defendants submitted written jury waivers to Judge Joyce. The People indicated they would not waive a trial by jury. Judge Joyce accepted the jury waivers from the defendants and denied the jury requests by the People. The petitions to this court, to compel Judge Joyce to expunge the orders wherein he accepted the defendants’ jury waivers, followed.
We are dealing here with one of the most revered of all rights acquired by a people to protect themselves from the arbitrary use of power by the State. Our courts, when presented with a question involving jury waivers, have often undertaken extensive reviews of the history of trial by jury. (Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783; Patton v. United States (1929), 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253; People v. Spegal (1955), 5 Ill. 2d 211; People v. Scornavache (1931), 347 Ill. 403; People ex rel. Swanson v. Fisher (1930), 340 Ill. 250.) The courts often look to the common law, not only when determining this discrete issue of jury waiver (see, e.g., Scornavache, 347 Ill. at 408, citing Bushell‘s Case (K.B. 1670), 89 Eng. Rep. 2), but also when determining other essential functions of a jury. (See, e.g., People v. Bruner (1931), 343 Ill. 146, citing The Seven Bishops’ Case (K.B. 1688), 87 Eng. Rep. 136, and The King v. Dean of St. Asaph (K.B. 1784), 3 T.R. 428.) When the constitutional guarantees, which we have as citizens, invoke common law princi-
As citizens, our rights to trial by jury are guaranteed by the Federal and State Constitutions. Under Federal constitutional analysis, a Federal Rule of Criminal Procedure, somewhat similar to the statute here, was upheld by the Supreme Court in Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783. While there are dissimilarities between our statute and Rule 23(a) of the Federal Rule of Criminal Procedure, it is clear that to require consent by the government to a jury waiver is permissible under Federal constitutional law.
This court‘s analysis, however, is not limited to Federal constitutional principles. If we find in the language of our constitution, or in the debates or committee reports of the constitutional convention, an indication that a provision of our constitution is intended to be construed differently than similar provisions of the Federal Constitution, then this court should not follow or be bound by the construction placed on the Federal constitutional provision. See People v. Tisler (1984), 103 Ill. 2d 226, 245.
Our 1970 State constitution,
In addition to the provision in our constitution that the right to jury trial as heretofore enjoyed shall remain inviolate, there is also contained in
In the Federal Constitution, however, only in the sixth amendment is trial by jury referred to as a right of the accused. In
In giving the language of our constitution independent meaning, we must consider what the drafters of our present constitution intended to include in the right to trial by jury “as heretofore enjoyed.” It is clear that the committees which reported to the constitutional convention delegates in 1970 recommended no change whatsoever in jury trials in criminal cases. (6 Record of Proceedings, Sixth Illinois Constitutional Convention 26 (hereinafter Proceedings).) The bulk of the debate on the convention floor concerned civil jury cases and whether our State would adopt some of the more innovative practices employed in other States—for example, six-person juries or majority, rather than unanimous, verdicts. (3 Proceedings 1427-32.) It is clear from the committee proposals, the floor debates, and the explanation to the voters that “[t]his section is the same as
“Section 5 of article II of the Illinois constitution provides that ‘The right of trial by jury as heretofore enjoyed, shall remain inviolate.’ We have construed these words 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.” (Emphasis added.)
Thus, it 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. There has been
One year later, the issue of jury waiver was again before our court in People v. Scornavache (1931), 347 Ill. 403. The State there had objected to the defendant‘s jury waiver, a factual circumstance not present in the Fisher case. A sharply divided court, after conducting its analysis of the common law and other States’ positions, held:
“There is, in the absence of statute, no good reason for holding that a right to waive a jury trial means a right to deprive the prosecution of it. If by reason of the nature of the crime, or the publicity of it, or for any sufficient reason, it appears that the judge is, or the people of the county are, prejudiced against the accused he has a right to a change of venue. There is, of course, nothing in the constitution conferring the right of jury trial on the State, but such has for centuries been the established mode of trial in criminal cases. The maintenance of a jury as a fact-finding body occupies that place in government,
as we know it in America, which, in the absence of a statute so providing, requires that such trial be not set aside merely on the choice of the accused.” (Emphasis added.) (People v. Scornavache (1931), 347 Ill. 403, 415.)
Thereafter, our State legislature enacted a statute which provided that in any case where the defendant pleads guilty or waives a jury, the cause shall be heard and determined by the court without a jury. (See 1941 Ill. Laws 574;
In 1955, the definitive ruling on the issue of a defendant‘s constitutional right to a jury trial and waiver of a jury came in People v. Spegal (1955), 5 Ill. 2d 211. This court overruled People v. Scott (1943), 383 Ill. 122, and People v. Scornavache (1931), 347 Ill. 403. In Spegal, this court reaffirmed the reasoning and holding of People v. Fisher and incorporated into the Spegal opinion, with approval, large sections of the dissent that Justice DeYoung had written in People v. Scornavache. In Spegal, the court noted that the right to trial by jury may be waived as any other constitutional provision for the protection of the accused. (Spegal, 5 Ill. 2d at 216.) In Spegal, it was noted that People v. Scornavache was not decided on constitutional grounds, and there was nothing in the 1870 constitution that conferred a right to a jury trial on the State, which fact the majority in Scornavache had acknowledged. The court further stated concerning our State bill of rights, again quoting Justice DeYoung‘s dissent, “‘The framers of the constitution were intent upon preserving these rights for the protection of the individual and they declared them in unequivocal language unhampered by any condition or requirement in the interest of the State.‘” (5 Ill. 2d at 217-18, quoting Scornavache, 347 Ill. at 418 (DeYoung, J., dis-
The holding in People v. Spegal (1955), 5 Ill. 2d 211, was therefore the law in Illinois when the constitutional convention began in 1969. The floor debates during our 1970 constitutional convention make it clear there was no intent to alter the right to trial by jury as it existed at the time the constitution was adopted. That right was an amalgam of the common law, preceding State constitutions and rulings from this court. The State here has argued that it has a constitutional right to a jury trial. This simply turns the concept of our bill of rights on its head. The State has also argued that the language of the Illinois constitutional right to a trial by jury “as heretofore enjoyed” refers only to the right as it existed in the common law. As we have already mentioned, many of our cases have traced the development of the common law jury. They cite Blackstone, Justice Story, and common law cases primarily for the proposition that the jury was seen by Englishmen and colonists alike as a great privilege and liberty they had acquired to protect themselves from tyranny, first from the King and later from his government. (Patton v. United States (1929), 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253; People v. Spegal (1955), 5 Ill. 2d 211; People v. Scornavache (1931), 347 Ill. 403; People ex rel. Swanson v. Fisher (1930), 340 Ill. 250.) From Magna Carta to our revolution, there were five centuries of common law development. Magna Carta was not the only “treaty” between the King and the people. Another was the 1689 Bill of Rights (1 W. & M., sess. 2, ch. 2), which asserted many principles we find in the first 10 amendments to the Federal Constitution. This English revolution of 1689 occurred in part because of the oppressive use by the King of prerogative and ecclesiastical courts and his appointment of common law judges who threatened, intimidated and imprisoned juries in order to reach decisions favorable to the crown. (See generally J. Kenyon, The Stuart Constitution 1603-1688 (1966); D. Keir, The Constitutional History of Modern Britain since 1485 (9th ed. 1969); Three British Revolutions, 1641, 1688, 1776 (Pocock ed. 1980); E. Williams, The Eighteenth-Century Constitution, 1688-1815 (1960).) There is no question that a century later the British government‘s use of admiralty courts, which sat without juries to enforce Parliament‘s trade acts, helped to produce our revolution in 1776.
When we speak of jury rights as they existed in the common law, we are encompassing more than a concept of 12 people unanimously deciding issues of fact. We are speaking also of centuries of struggle where Englishmen and colonists asserted an ancient liberty to protect themselves from the arbitrary power of the State. People ex rel. Swanson v. Fisher (1930), 340 Ill. 250, citing 2 J. Story, Commentaries on the Constitution of the United States §1779.
If we say that our constitutional provisions retaining the right to jury trial “as heretofore enjoyed” refers only to the right to jury trial as it existed at common law, to what stage of the common law development of
In People v. Spegal (1955), 5 Ill. 2d 211, this court settled with finality the issue of an accused‘s right to waive a jury under our 1870 constitution. That case held, again quoting from the dissent in Scornavache:
“The requirement of the prosecution‘s consent to the defendant‘s waiver of a jury trial is sought to be justified in the opinion on the ground that the ‘thing guaranteed’ to the defendant ‘is not the right to waive a jury trial but the right to have such a trial.’ Before there can be the power to waive a jury trial, the right to such a trial must exist. The framers of the constitution were concerned with the essential right out of which the power to waive would arise. They took cognizance of the existence of an accused person‘s right to a jury trial and they safeguarded that right by giving it a
constitutional order and dignity. The power to waive follows the existence of the right, and there is no necessity of guaranteeing the right to waive a jury trial.‘” (5 Ill. 2d at 218, quoting Scornavache, 347 Ill. at 419 (DeYoung, J., dissenting).)
The State asserts that Spegal is based on statutory law and not on constitutional law principles. In Scornavache, the majority held that an accused, by waiving the right to jury trial, could not deprive the prosecution of a jury trial. In response to this holding, the legislature authorized an accused to waive trial by jury. In Spegal, this court, of necessity, explored the constitutional basis for the Scornavache holding, and found it wanting.
The State today has once again advanced the argument that the right to a jury trial does not encompass the right to waive it. The dimension of our constitutionally protected right to a trial by jury under the 1870 constitution is clear under the Fisher and Spegal analyses, and clearly encompassed the right of an accused to waive trial by jury. That right, as it was understood and enjoyed by the people of this State (“heretofore enjoyed“), was adopted and incorporated in our 1970 constitution. Short of a constitutional amendment to that effect, the legislature cannot now deprive an accused in Illinois of any part of that constitutionally protected right. The statute entitled Method of Trial (
Writs denied.
JUSTICE STAMOS took no part in the consideration or decision of this case.
While I agree with the result reached by the majority opinion, much of the majority‘s reasoning strikes me as unconvincing, and most of it as unnecessary. That reasoning flows from the majority‘s continued adherence to an untenable premise: that State constitutional provisions are to be construed in “lockstep” (see McAffee, The Illinois Bill of Rights and Our Independent Legal Tradition: A Critique of the Illinois Lockstep Doctrine, 12 S. Ill. U. L.J. 1 (1987)) with parallel provisions of the Federal Constitution.
It remains a mystery to me how this principle ever came into being, and why once in existence it has remained embedded, seemingly indelible, in the body of our law. I know of no evidence—either in the convention debates, the explanations given to the ratifying voters, or in the committee reports—for the proposition that our Illinois Constitution of 1970 was intended to be construed in some instances not by the supreme court of Illinois but, instead, by the Supreme Court of the United States. If, indeed, this was what was meant, why was it not said? It would have been easy enough for the drafters of the constitution to insert a proviso: “Where similar, State and Federal constitutional provisions are to be construed following the Federal precedents established by the United States Supreme Court.” The lack of such a statement in the plain text of the constitution strongly suggests that the lockstep principle is not good constitutional law.
That the majority itself is uneasy with the lockstep principle can be seen from the qualifier which it attaches to it: a similar State provision can be interpreted differently if such an intent can be derived either from the language of the provision, the convention debates, or the committee reports. Thus the majority has blocked out a
This procedure strikes me as cumbersome. How it works in practice can be seen from the majority opinion. The majority infers from the words “heretofore enjoyed” that the ratifiers of the 1970 constitution did not intend to tamper with the right to jury trial guaranteed in prior State constitutions and under the common law. Since our court held in People v. Spegal (1955), 5 Ill. 2d 211, that a requirement of prosecutorial consent to jury waivers was unconstitutional, it would follow that the jury trial right “heretofore enjoyed” precluded prosecutorial consent. But does it follow? If the lockstep principle applies to the 1870 constitution, Spegal would be overruled by the Supreme Court‘s subsequent decision in Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783, which held that the Federal right to jury trial did not proscribe prosecutorial waivers. Thus the majority must argue that the jury trial right of the 1870 Illinois Constitution is to be interpreted differently than the parallel jury right guaranteed by the sixth amendment to the United States Constitution. But why so? Lacking direct evidence from convention debates or committee reports, the majority is forced to rely on unspecified differences between the “jury experience” of our forebearers in the eighteenth and nineteenth centu-
I cannot help but admire the majority‘s reasoning. The almost Talmudic ingenuity with which the majority construes the words “heretofore enjoyed” is especially impressive. But my admiration is tempered by my sense that these verbal gymnastics are not needed.
The lockstep approach may have some advantages, but simplicity is not one of them. Nor is it clear to me why the majority‘s logic would not apply equally well to other constitutional guarantees such as privacy or search and seizure. As to many of our State constitutional provisions—indeed as to most of them—our court has a long tradition of liberal construction in the service of individual rights. The lockstep approach conflicts with this tradition. Nor has the approach won plaudits from scholars. To the contrary, it has been soundly condemned. See McAffee, The Illinois Bill of Rights and Our Independent Legal Tradition: A Critique of the Illinois Lockstep Doctrine, 12 S. Ill. U. L.J. 1 (1987); Note, Interpreting the Illinois Constitution: Illinois Supreme Court Plays Follow the Leader, 18 Loy. U. Chi. L.J. 1271 (1987).
There is an alternative. Instead of assuming that similar State and Federal provisions are to be construed similarly, we could simply assume that all State constitutional provisions are to be construed independently of their Federal counterparts. By “independently” I do not mean that the State constitutional provision must in every instance be given a broader or more liberal construction. All I mean is that as to our State constitutional provisions, Federal precedents are not stare decisis. They are persuasive and not determinative. Where their reasoning persuades us, we should follow them. Where they do not, we should not. Thus, in this instance, we need only hold that the reasoning of Spegal strikes us as more persuasive than the reasoning of
Using this approach, Federal precedent would be one guide to decision; our prior precedents, the records of our convention, and precedents interpreting similar provisions in the constitutions of our sister States would be others. Subject to the caveat that we could not interpret our State constitution in a way which would offend the Federal constitution, we would be free to make our own reasoned judgments on our State constitution without first having to decide whether the ratifiers of that constitution intended to accord us that privilege.
Several other considerations persuade me that the approach I suggest is the better one. Given the existence of the Federal Bill of Rights, and the application, through the due process clause of the fourteenth amendment, of the bulk of its guarantees to the States, there would be little point in writing parallel guarantees into any State constitution if those guarantees were never to be interpreted more broadly. I cannot understand why anyone would want to spill ink uselessly. By including parallel guarantees in our State constitution, its drafters and ratifiers were, it seems to me, sending a clear message. The message was that they wanted the “double protection” that only State constitutional guarantees could provide. They did not want our State constitution interpreted more broadly in every instance. But they at least wanted the security of knowing that the seven justices of this court would bring to bear on every important constitutional issue their independent resources of wisdom, judgment, and experience. It is precisely because I value these resources so highly that I cannot adhere to the majority‘s reasoning.
While I therefore cannot agree with the majority‘s reasoning, I applaud the result. This case, combined with
This crescendo of recent cases suggests that while the majority may pay lip service to the principle, it has tacitly repudiated it. I believe that is time to square case law and doctrine by making this repudiation explicit. Since the majority opinion, while correct as to its result, does not do this, I must respectfully concur.
JUSTICE MILLER, dissenting:
I cannot accept the majority‘s conclusion that the provision in the Illinois Constitution that guarantees to an accused the right to a jury trial also guarantees to an accused the unconditional right to demand a bench trial. For that reason I must dissent from the court‘s holding that the statute that requires the prosecutor‘s consent to a defendant‘s jury waiver in a variety of criminal cases is unconstitutional.
The Illinois Constitution contains two separate provisions that guarantee the right of an accused to a jury trial.
The majority acknowledges that a different rule prevails in the Federal courts. In Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783, the Supreme Court unanimously upheld the validity of Rule 23(a) of the Federal Rules of Criminal Procedure, which requires that a defendant‘s waiver of a jury in a Federal prosecution be approved by both the court and the government. Reviewing the historical antecedents of our Federal constitutional right to trial by jury, the Court noted that the waiver of jury trials was virtually unknown at English common law until early in the nineteenth century. The American colonial experience provided some evidence that the colonists believed that it was possible to try a criminal defendant without a jury, but there did not appear to be a general recognition of a
“In light of the Constitution‘s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant‘s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury—the very thing that the Constitution guarantees him.” 380 U.S. at 36, 13 L. Ed. 2d at 638, 85 S. Ct. at 790.
The majority, however, believes that a different result must obtain under Illinois law. As the majority recounts, People ex rel. Swanson v. Fisher (1930), 340 Ill. 250, recognized that a jury waiver by a defendant in a criminal case does not deny the trial court jurisdiction over the proceedings. In People v. Scornavache (1931), 347 Ill. 403, a divided court ruled, on grounds of public policy, that a prosecutor may effectively veto an accused‘s waiver and insist that the case be tried before a jury. In 1941 the legislature enacted a statute that empowered an accused alone to waive a jury trial. In People v. Scott (1943), 383 Ill. 122, the court declared the 1941 statute unconstitutional, ruling that the provision encroached on the authority granted to the judicial system by
It would appear, from the text of the jury trial guarantee of
The majority asserts, as one of two grounds for its holding in this case, that Spegal “settled with finality the issue of an accused‘s right to waive a jury under our 1870 constitution.” (126 Ill. 2d at 221.) That conclusion appears to rest on Spegal‘s quotation of a passage from the dissenting opinion in Scornavache:
“The requirement of the prosecution‘s consent to the defendant‘s waiver of a jury trial is sought to be justified in the opinion on the ground that the ‘thing guaranteed’ to the defendant ‘is not the right to waive a jury trial but the right to have such a trial.’ Before there can be the power to waive a jury trial, the right to such a trial must exist. The framers of the constitution were concerned with the essential right out of which the power to waive would arise. They took cognizance of the existence of an accused person‘s right to a jury trial and they safeguarded that right by giving it a constitutional order and
dignity. The power to waive follows the existence of the right, and there is no necessity of guaranteeing the right to waive a jury trial.‘” (Spegal, 5 Ill. 2d at 218, quoting Scornavache, 347 Ill. at 419 (DeYoung, J., dissenting).)
The majority apparently interprets that statement as suggesting that the constitutional guarantee of the right to a jury trial carries with it an implicit guarantee of the right to waive a jury. Under that view, the jury trial provision in the constitution serves double duty, granting not only the right to a jury trial but also the opposite right to demand a bench trial.
The same contention was rejected in Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783. There the Court said:
“The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right. For example, although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial [citation]; although he can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district [citations]; and although he can waive his right to be confronted by the witnesses against him, it has never been seriously suggested that he can thereby compel the Government to try the case by stipulation.” (380 U.S. at 34-35, 13 L. Ed. 2d at 638, 85 S. Ct. at 790.)
Singer‘s reasoning is not restricted to the Federal Constitution and is equally applicable here. The right to demand a jury trial, guaranteed by the Illinois Constitution, does not entail an additional right to demand a bench trial. There is nothing in the language of the jury trial right, standing alone, that also guarantees the opposite right.
Moreover, I do not agree with the majority that the material from the Scornavache dissent quoted in Spegal
“None of these cases, however, goes so far as to assert an inherent power in the judiciary to override the choice of the parties in determining whether a particular case is to be tried by a jury or by the court, or to override the determination of the legislature as to the method of trial to be employed where a jury trial is not required by the constitution.” 5 Ill. 2d at 220.
Later in Spegal the court made clear that it viewed as dispositive the 1941 statute that had been declared unconstitutional in Scott. (5 Ill. 2d at 221-22.) If the Spegal court believed that an accused had a constitutional right to demand a bench trial, then Spegal‘s resurrection of the 1941 law granting that right as a statutory matter was completely unnecessary. For these reasons, I do not agree with the majority—or with the concurring opinion, which makes a similar claim (126 Ill. 2d at 224-25 (Clark, J., concurring))—that Spegal recognized a right under the Illinois Constitution to waive a jury trial and demand a bench trial.
The general jury trial guarantee contained in
The majority‘s sweeping view finds no support, however, in either the constitutional text or the records of the proceedings of the constitutional convention. Apart from the deletion of an outmoded reference to civil trials before justices of the peace,
Even if the phrase “as heretofore enjoyed” in
Nothing in our constitution, in the proceedings of the convention at which it was drafted, or in the prior decisions of this court supports the majority‘s conclusion that the constitutional guarantee of a right to a jury trial also includes a right to demand a bench trial. I would hold that the statutory requirement of prosecutorial consent to an accused‘s waiver of his jury trial right does not violate the jury trial guarantees of the Illinois Constitution. The majority‘s result in this case presents an interesting anomaly. Defendants tried in Federal courts