People Ex Rel. Daley v. Joyce

533 N.E.2d 873, 126 Ill. 2d 209, 127 Ill. Dec. 791, 1988 Ill. LEXIS 193

• Court: Illinois Supreme Court
• Decided: December 21, 1988
• Docket: 65487, 65678, 65679 cons.
• Status: Published

Opinions

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 1968 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 1), as amended by Public Act 84 — 1428, effective July 1, 1987, and proceed to conduct jury trials for the defendants. This statute, entitled Method of Trial, provides:

“§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.

There are numerous issues presented here involving the constitutionality of this statute. The defendants and the Illinois Attorneys for Criminal Justice, which filed an amicus curiae brief, argue in opposition to the State’s petition for mandamus that this statute violates the State’s constitutional guarantee of the right to trial by jury. They further contend that Federal and State constitutional guarantees of equal protection and due process are violated, and this statute, as applied to the defendants, is an ex post facto law. The State denies these assertions. Because we determine that this statute deprives the defendants of the full protection guaranteed under article I, section 13, of the 1970 Illinois Constitution, it is unnecessary to rule on the due process, equal protection and ex post facto issues which have also been raised.

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 principies, the courts look to the common law to help define their meaning. (People v. Brewster (1899), 183 Ill. 143, 150.) However, the courts also realize that blind adherence to the common law is inappropriate when the conditions that gave rise to common law rules no longer exist. People ex rel. Swanson v. Fisher (1930), 340 Ill. 250, 265.

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 trader 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, article I, section 13, provides that “[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, §13.) Our State constitution of 1870 first employed the phrase “as heretofore enjoyed” when speaking of the inviolate right of trial by jury. (Ill. Const. 1870, art. II, §5.) Originally, the 1818 constitution, article VIII, section 6, read, “the right of the trial by jury shall remain inviolate” (Ill. Const. 1818, art. VIII, §6), and the 1848 constitution, article XIII, section 6, in addition stated, “and shall extend to all cases at law, without regard to the amount in controversy” (Ill. Const. 1848, art. XIII, §6).

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 article I, section 8, of our constitution language very similar to that contained in the sixth amendment of the Federal Constitution. Article I, section 8, provides that “[i]n criminal prosecutions, the accused shall have the right *** to have a speedy public trial by an impartial jury ***.” (Ill. Const. 1970, art. I, §8.) Also enumerated in article I, section 8, as rights of the accused, are other rights that are listed in the sixth amendment of the Federal Constitution. Thus, in our State constitution, jury trial is referred to twice in the bill of rights: article I, section 8, and article I, section IS. In both references, trial by jury is a right guaranteed to the people, and not to the State.

In the Federal Constitution, however, only in the sixth amendment is trial by jury referred to as a right of the accused. In article III, section 2, of the Federal Constitution, trial by jury is also mentioned. It is provided in that section: “The trial of all Crimes, except in Cases of Impeachment, shall be by Jury ***.” (U.S. Const., art. III, §2.) This provision is not contained in the Bill of Rights of the Federal Constitution, wherein certain rights are guaranteed to the people. This provision is, instead, contained in the article of the Federal Constitution which defines the judicial powers. Thus, as to the jury trial issue, there is a difference in the language of our State constitution from that of the Federal Constitution, and the difference is one of substance and not merely one of form. In view of this difference, Singer v. United States is not helpful in deciding the issue before us, and 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.

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 Article II, Section 5 of the 1870 Constitution, except that it deletes an outdated reference to the office of justice of the peace, which has been abolished” (7 Proceedings 2686), 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. In People v. Lobb (1959), 17 Ill. 2d 287, 298, we stated:

“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 significant debate in this State concerning the issue of a defendant’s waiver of a jury after a plea of not guilty. Toward the end of the last century this court stated that a defendant’s jury waiver in a felony trial was not permissible because a jury was essential for jurisdiction (.People v. Brewster (1899), 183 Ill. 143, citing People v. Harris (1889), 128 Ill. 585), but it had long been held that a jury waiver was permissible in cases of misdemeanors (Zarresseller v. People (1855), 17 Ill. 101). These cases were construing our State constitutions in light of the common law. The United States Supreme Court, in Patton v. United States (1929), 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253, addressed jury waiver and the jurisdictional question in light of the Federal Constitution. The Patton Court also looked at a frequently advanced public policy reason employed in various Federal and State courts to give validity to the proposition that juries were a jurisdictional requirement. The proposition cited by Blackstone, Commentaries on the Laws of England vol. 4, at 189, was that the King has “an interest in the preservation of all his subjects.” This proposition later became that the State and the public have an interest in the preservation of the liberties of citizens and will not allow them to be taken away. The Patton Court went on to review the converse of this public policy rationale. Thus, if a defendant could plead guilty and dispense with all the constitutional protections offered with a trial and yet have the court’s jurisdiction remain intact, why would waiving just one aspect of the constitutional protection, trial by jury, destroy jurisdiction? Because of this reasoning and because it was clear the State could not force a defendant who pleaded guilty to trial, Patton held that a jury is not required for jurisdiction and a defendant may waive a jury wdth the government’s consent.

Our court, in People ex rel. Swanson v. Fisher (1930), 340 Ill. 251, used similar reasoning when it considered the issues of jury waiver, our State constitution’s bill of rights, and jurisdiction. This court noted that each of our State constitutions spoke of a defendant’s right to trial by jury. Because the constitution conferred a right, it did not mean the right to be mandatory or peremptory, but a privilege of the accused. (340 Ill. at 257.) The court further stated that if the effect of our State’s bill of rights was to make juries indispensable to the court’s jurisdiction, then juries would have been indispensable to misdemeanor cases and could not be waived. This had not been the law in Illinois. Therefore, under State constitutional analysis and without reference to any State statute, this court held that a defendant has the power to waive a jury trial in a felony prosecution. It also overruled People v. Brewster (1899), 183 Ill. 143, People v. Harris (1889), 128 Ill. 585, and other State cases not in conformity with the holdings in Fisher.

One year later, the issue of jury waiver was again before our court in People v. Scornavaehe (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; Ill. Rev. Stat. 1953, ch. 38, par. 736.) Our court, in People v. Scott (1943), 383 Ill. 122, held if this statute were mandatory, it violated Illinois constitutional separation of powers principles.

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., dissenting).) The court further stated, again quoting from the dissent in Scornavaehe, “ ‘to declare, as the majority-does, that the prosecution’s consent is necessary to make such a waiver effective is inconsistent with the defendant’s acknowledged power, enables the State to nullify his act and reduces his power to waive a jury trial to a shadow.’ ” (5 Ill. 2d at 218, quoting Scornavaehe, 347 Ill. at 418-19 (DeYoung, J., dissenting).) When the Supreme Court decided Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783, and held the requirement of prosecutorial consent was permissible under the Federal rule, it specifically noted that Illinois saw the waiver of a jury as a personal right and cited Spegal and the 1964 Illinois statute. 380 U.S. at 37, 13 L. Ed. 2d at 639, 85 S. Ct. at 491.

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 Storey, 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' (I960).) 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 trial by jury do we refer? As noted above, “as heretofore enjoyed” was first inserted into the constitution of this State in 1870. The right to jury trial had been provided for in the constitution of 1848, the constitution of 1818, and in the Ordinance for the Government of the Territory of the United States Northwest of the Ohio River (Ill. Ann. Stat., Const., Illinois Organic Acts, Ordinance of 1787, art. II, at 338 (Smith-Hurd 1971)). At the time of the insertion of “as heretofore enjoyed,” it would seem logical to believe that the drafters of the 1870 constitution, by that insertion, referred to the nearly 100 years of trial by jury experience that the people of this State and territory had enjoyed, and the colonial experience before that, instead of jumping back into the vague and uncertain jury trial practices developed by the common law. In construing jury trial provisions of the Federal Constitution, it may be appropriate to explore their common law underpinnings. It hardly seems necessary to do so to give meaning to the distinctive provision “as heretofore enjoyed” inserted into our 1870 constitution, and retained in our present constitution.

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 (Ill. Rev. Stat., 1986 Supp., ch. 38, par. 115 — 1 (effective July 1, 1987)) therefore violates article I, section 13, of the 1970 Illinois Constitution and is invalid. The prayer of the petition for a writ of mandamus, prohibition or supervisory order is denied.

Writs denied.

JUSTICE STAMOS took no part in the consideration or decision of this case.