section ten a public ninety eight eleven thirty two which provides for such a person varies and also cases whether or not that's constitutional under i recall one section thirteen of the illinois constitution there are three questions ultimately before this court the first question is whether under the constitution a six person jury is constitutional if so the second question is whether or not the general assembly has the authority to constitution did jury trial require twelve people or isn't that a lesser number six people sufficient to serve the purposes of the jury the defense says the exact number of twelve the sake of saying and we suggest it is not the purpose of a jury has been discussed in any number of cases by this court but specifically in the case of people i spoke daily versus joyce this court talked about the history of juries and the purpose of curious and specific research going all the way back to the english revolution of sixteen eighty nine but the purpose was to protect fair we're speaking also centuries of struggle or englishman and columnist a certain ancient liberty to protect protect themselves from the arbitrary power of the state we suggest and have from that particular county and so consequently the issue of is the public is the person is the citizen being protected susan is still being protected by a jury of six as what was twelve and it sounds like a kind of a policy argument could the general assembly reduce it to three or two or one i don't use so i'm not exactly sure what the exact right number would be but i think it's up to the general assembly and i'm going to issue the general s a couple minutes but i think it's up to the general assembly to determine what the right number is so that we can have a jury that is a jury of her peers clearly one would not that's not a jury that's essentially becomes a bench trial  initially provided for amendment or a change the language and the right to a jury trial and then that was voted down and later on in the language was it remained the same as it had been from the eight hundred seventy constitution but my response to that would be and as i think we all know there were many many years of suffer it until woman words title to zero and then ultimately by statute in spite of the fact that everybody knew and this court had actually said twelve men was what constituted a consequently i would suggest that whatever they may have  argued that in the earlier constitution said trial by jury by twelve men and this court i believe finding that that the aspect of the gender of the jurors has something to do with qualifications that the jurors but then we know that through the years over and over and over again in many different contexts this court reaffirms states in many different contexts that the right to trial by jury is a jury of twelve people in a number of cases the court uses that expression a jury of twelve how do we deal with the fact that this principle of twelve has seemed to be deeply embedded in this i would have to answer that those things first i would suggest that in none of those cases wealthy issue whether or not a six person jury satisfies the constitution before the court in each one of those cases and we can go through each of the cases and i did in my reply brief there was a different issue for example whether or not the state had a right to a jury trial in one of the cases and whether or not when a party has made a jury demand for level was insufficient but in no case in the history of the state of illinois has it ever been consider the issue ever be considered by this court is six sufficient to satisfy the constitution there is dicta in a number of cases that says a jury should consist of twelve but there is also in a number of cases language it specifically says that a jury trial does not have to remain stacked that the elements of a jury trial can in fact be changed over time so long as the basic purpose of the jury remains the same and the basic purpose of the jury is to protect the public against the government as i read earlier the second thing i would say about that jury shelby six people even if there's a choice of twelve when in a small claims case john smith or jane smith goes and biles a case or actually at the time this was passed initially was only for two hundred dollars being held inviolate and so consequently we suggest that this is that there's now fifty years of history in this state in which juries are six have been sitting in civil cases and nobody's ever suggested that those six person jury is don't satisfy the constitution and so consequently we would suggest that inspired of the fact that prior to one nine hundred seventy there are cases that go through a list the elements of the jury and say size is one of those that's correct but i'm with all due respect i'm not sure in a sense i think that might miss the point at least the argument by making which is that once this court says uses the word shelby six  experience that from my perspective when i've tried cases whether it's you don't try two hundred dollar cases but one is a multimillion dollar case i'm not really thinking well  is there a constitutional element to it when i picking a jury of six and that's what the courts require and i've tried cases in federal court and in other states where it was six people and not well then that's a jury and that serves the same purpose that the illinois  has said is the purpose or juries which is the protection of the public from government intervention and gotten an a and improper exercise of government power you've talked quite a bit about the purpose of the jury constitutional right i'm not suggesting otherwise and there's a number of cases from this more this is just specifically say there can be a waiver but those same bases which are pretty much in the criminal context all say that it has to be a knowing waiver and essentially th the only one who has the right to jury trial in a criminal case unlike of parties or all parties in a civil case the defendant has to be specifically advise what is that your right to a jury trial whether it's a twelve or six or ten people or whatever which to the individual who was saying i'm going to take six instead of twelve and consequently from that perspective when i as a litigant go into court and i choose this all i know is i picking a jury of six and it's less expensive and i'm not understanding at any time that by picking six instead of twelve i'm giving up my right to twelve that's security to me under the constitution so that's  suggest it's not a knowing waiver on the latest in my last couple minutes on the issue of the authority of the legislature there's a number of cases from this court that indicate that and so forth but the legislature as well as the the constitution specifically set out the worry which is why the one man was proposed and then we tried if you look at the language of the constitution the constitution doesn't say specifically and the case so long as they don't conflict with what the supreme court has issued and supreme court rules so then the question is what happens if they do conflict and here they are in and i understand my time is up but i want to get to your question when they do conflict and there's a number of cases say for example the best case and the consul case where this court determined that the just the rules with respect to medical records interfered with and conflicted with that a jury trial from a constitutional perspective which we believe it should consist of six people that that serious by the requirements of the constitution then with respect to the of legit conflict between the supreme court will two eighty five number of injuries or the property as said it's twelve it is essential elements were specifically hours on the clock the all the things about twelve active historical accident it's remain uninterrupted for more than eight hundred years there is no justification and none has been offered by the players for cutting the umbilical persons on nine hundred seventy with full justice burke you ask there was any discussion going to the page about juries of less than six the only discussions or there was no power and that a jury of less than stuff less than twelve would be by consent because it was neither statutory nor constitutional chairman elmer girths that indicated at that time pretty clearly engaged the specific issue is the production size of the jury and it is what happened to it i've heard today we were told it was withdrawn i've seen expressions some place it was passed but not a defeated i think we have part of the transcript of the one nine hundred seventy constitutional convention are hundreds and they went back and forth and i imagine there was a lot of horse trading going on with respect where they were was that because the the framers decided not to include language in the constitution that the number could be changed that that was implicit that the legislature had the power to change the number we w submit that history has shown that the lives that the framers in one nine hundred seventy did not have the power to change the constitution to reduce the number of your and they did not have that power in december of two thousand and fourteen when this you don't look on a constitutional analysis you don't look to trends in legal scholars you don't look to decisions from other states in fact the plaintiffs themselves have abandoned the argument that look to the other states page eleven of their reply b that a jury of six satisfies the illinois absolution in a civil case there's no decision on that however this courts rule two eighty five recognizes that there is a right to trial by jury of twelve if you want  otherwise in a small claims it's a jury of six either the plaintiff or the defendant they request a jury of twelve not the amendment to two eleven o five b of the code of civil procedure says all jury trials in taylor machine that came down one month later in december of ninety seven over one hundred pages that basically was the death knell of tort reform at that time so the law as it is it's pretty clear in illinois if there's a conflict between the statute such as  and this court has held a number of occasions that when looking at the illinois constitution the decisions from the supreme court of the united states or decisions involving the sixth or seventh amendments with respect to jury ri provision meaning into and into the construct of federal courts and placed on the jury trial provisions of the federal constitution there are different the recognition by a panel of this or in one nine hundred thirty nine  from the standpoint that this court said there is a difference between the substance of right to trial by jury and the procedural aspects of that right who sits on the jury is a procedural men or women how many steps is a substantive right now would be twelve because anything less this report said was an improper and the elements were specifically recognized by that work at that time as being twel submit to the court that the legislature cannot alter the substance of a trial of twelve no matter how reasonable the restriction imposed and you get into a reasonable the restriction as it goes to a substantive substance of aspect of the right it may be reasonable to have sex but that fails to recognize that twelve is the substance of aspect of the right to trial by jury is recognize the last one hundred years have held their procedural components exercising the right to trial by jury and the court held if a reasonable reached the constitutional restriction on procedure to have a time requirement for making a jury and not if it doesn't go the substantive right of a jury of twelve the construction preserves the substance of the right not the details of the methods to exercise the right and again the public policy behind question has no place in the constitutional analysis this court and all of the support and best recent terror machines that declare the statute invalid when it violates the constitution no matter  beneficial the legislation may appear to be whatever the purpose behind having six person jury is in civil cases in illinois rankly is a relative if it was tied to have less people and pay them more have less people and it's less of a strain on employers or whatever it doesn't matter because if it's the public policy behind it is not factored into it where as here it is a substantive right that the legislature did not have the power down and approve the decision of the circuit court of the pound and that is the doctrine of separation of powers i don't think there's any question that the enactment of ninety eight hash thirty two was an impermissible encroachment on this court's sphere of authority with respect to rule making governing trials in this in this state the legislature plan promulgated laws which involve procedure so far as the laws complement the authority of this court for that have only a peripheral effect on ordered ministration otherwise according to a and all this court him on this court has the primary constitutional authority with respect this port said you're entitled to a trial by jury of twelve in a small claim if one of the parties wants it otherwise it will be sex they can't stand together and if they can't stand together this or through almost prevail that seven page memorandum opinion and order striking the amendment finding it unconstitutional and i think he should be commended matter how this court decides for taking the time and the efforts of putting twenty seven page person jury is in fact constitutional under the one nine hundred seventy constitution article one section thirteen and in every single case it has talked about the elements of the jury the issue was never before this court as to how many jurors were necessary and whether or not a six person jury was necessary in order or tokers injury was necessary in order to satisfy the constitution the only case that specifically on a civil basis talks about the issue of twelve since  seventy constitution has been passed is the hartleys case in the heart various case the defendant had filed a jury demand of twelve and towards the end of the trial one of the jurors got sick and had to leave the jury and the defendant agree to proceeding with the eleven that that in fact was a violation of the right to a jury trial at that time because at that time there was a an appearance or manager a demand that said well the court did not say constitutional and have been allowed under the my constitution since one nine hundred sixty four in the state at that point in time a few years before that justice of the peace or published and this court took it on itself to make the determination that the jur two but i'm talking about the powers in the reason why we have juries and first place and the question for i believe for this court in term of the constitutionality of nine eleven thirty two and the six person jury is whether or not the six person  fulfills the purpose of juries that go all the way back to the fifteenth century and the purpose of juries as this court has issued has determined as well as the u s supreme court as the term it is to protect against government intervention and when this corey after hundreds of years of history that only men could sit on jury determined that they actually that didn't make sense and that women were paf i to be jurors as well it was considered a substantive issue at that point in time until nine hundred thirty ip which provided for cases ed up till two thousand and fifteen when the men was made the provided for cases up to fifty thousand dollars where this court was only saying ten thousand dollars that you could have a jury of six so the case cited by this court where this court said quote if a statue conflicts with the role of the judiciary a court will seek to reconcile that legislation with a judicial role wherever reasonably possible clearly there is no conflict for