State Con Law Case of the Week: A Tale of Two “Heretofores”

Anthony Sanders · April 22, 2022

A couple weeks ago I blogged about a recent Missouri case interpreting the jury trial clause of that state’s constitution. The interpretation turned on the meaning of the phrase “as heretofore enjoyed” in the guarantee that “the right of trial by jury as heretofore enjoyed shall remain inviolate” and whether that included a right to certain kinds of punitive damages. Based on prior caselaw the court stated that the measure of what “as heretofore enjoyed” means is what was guaranteed under the common law at the time of the state’s founding in 1820. This was true even though the “heretofore” language wasn’t in the Missouri Constitution until the state adopted a new one in 1875, and even though the state adopted an even newer constitution in 1945 with the same “heretofore” language. So, I asked (even though the court didn’t touch on this temporal issue) why aren’t we using 1875 or 1945 as the relevant standard of what jury practices are “enjoyed,” not 1820?

I also noted that Missouri is not alone. Many states have jury trial guarantees that use “heretofore” language, and Illinois’ is the most comparable (and seems likely to be the inspiration for Missouri’s change in 1875). The Illinois Constitution’s Article I, Section 13 identically states “[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.”

The Missouri case came out on April 5, 2022, and I posted to this blog on April 8. Well, unbeknownst to me at the time, on April 7 the Illinois Supreme Court also issued an opinion on its “heretofore” clause. And it interpreted the temporal nature of its clause the way I suggested it should be done in Missouri! Now, unless the Illinois justices have Time Lord friends I can’t claim credit for this. But it’s interesting to see their different interpretation of the same language.

No Swearing in Court

The Illinois case, People v. Moon, concerned the prosecution of an individual for battery. A jury was selected and before the trial began the judge asked the court clerk to swear the jurors in. However, the clerk then mistakenly asked the jurors to take the oath that prospective jurors take before jury selection, what’s called the voir dire oath. In other words, there’s two oaths that jurors take as they progress from prospective jurors to the actual ones who serve in the trial and they mistakenly were never given the second one concerning weighing the evidence and applying the law fairly and dispassionately.

After a full trial the jury rendered a guilty verdict, but the defendant then moved for a new trial on the ground that the jury was “unsworn.”  Everyone admitted what had happened and the trial judge took full ownership for the oath-malfunction. But the judge still denied the motion because the defendant failed to show prejudice. The jury were instructed in all other ways on how to apply the law and serve as fair, dispassionate, jurors, so, reasoned the judge, things were good enough. The defendant appealed, lost at the court of appeals, and petitioned the state supreme court, which took the case and reversed.

The court did so because it concluded Article I, Section 13 guaranteed a sworn jury. Most relevant to this post, it analyzed the relevant time period that “as heretofore enjoyed” related to. Illinois has adopted constitutions in 1818, 1848, 1870 (when the “as heretofore enjoyed” language was inserted), and 1970. Quoting an Illinois case from 1959 it said “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.’” Then, quoting a case from 1988, it stated that the latest constitution, of 1970, was the relevant one: “‘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.’” Given that the relevant language wasn’t changed in 1970 one could argue (incorrectly, I think) that the relevant date is still 1870, not 1970. But there’s no suggestion that the relevant date is 1818, the year Illinois joined the Union. This is pretty interesting considering that is the conclusion which the Missouri Supreme Court, with its very similar chronology, made in its case.

The Illinois Supreme Court then analyzed the history of jury oaths and whether they were part of this “heretofore enjoyed” right. I won’t go into it here, but I encourage you to read this section of the opinion. The court concluded that, yes, although it may seem to some as an archaic and perfunctory feature of seating the jury, it is central to ensuring a fair trial. References to juries in older cases frequently referred to the need for a “sworn” jury and implied that the work of the jury doesn’t really begin until they take their oath. Further, the court concluded that having a sworn jury was “essential.” This was key for the defendant as the court stated that the jury trial right is only protected to the extent an aspect of it can be described as “essential” and not some marginal feature.

In the end, the difference between a right being recognized in 1818, 1870, or 1970 didn’t make a difference as the court stated that a sworn jury was required at all of those times. However, it could matter very much, of course, in other contexts, as a lot of things changed with jury trials between 1818 and 1970.

Horizontal Judicial Federalism

Further, the court’s conclusion—alongside its sister court in Missouri concluding the exact opposite just two days earlier—highlights the different paths different state courts can take. Just as state supreme courts do not need to follow the U.S. Supreme Court when interpreting their own constitutions even though they say the same thing as the federal version, they do not need to follow other state’s courts interpreting identical language between the two state constitutions.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.

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