dissenting:
I respectfully dissent. The Jones Act gives only the plaintiff the right to demand a jury trial. The majority and defendants cite no state or federal authority for the position that a defendant in a Jones Act case has a statutory right to a jury trial in state court. The majority’s decision is contrary to the overwhelming weight of both federal and state court decisions. Allen v. Norman Brothers, Inc., 286 Ill. App. 3d 1091, 678 N.E.2d 317 (1997), appeal denied, 174 Ill. 2d 553, 686 N.E.2d 1157 (1997); Gibbs v. Lewis & Clark Marine, Inc., 298 Ill. App. 3d 743, 700 N.E.2d 227 (1998); Hanks v. Luhr Brothers, Inc., 303 Ill. App. 3d 661, 707 N.E.2d 1266 (1999), appeal denied, 184 Ill. 2d 556, 714 N.E.2d 527 (1999), cert. denied, 528 U.S. 966, 145 L. Ed. 2d 314, 120 S. Ct. 402 (1999); Hearn v. American River Transportation Co., 303 Ill. App. 3d 619, 707 N.E.2d 1283 (1999), appeal denied, 184 Ill. 2d 557, 714 N.E.2d 527 (1999); Craig v. Atlantic Richfield Co., 19 F.3d 472 (9th Cir. 1994), cert. denied, 513 U.S. 875, 130 L. Ed. 2d 133, 115 S. Ct. 203 (1994); Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1490 (5th Cir. 1992), cert. denied, 506 U.S. 975, 121 L. Ed. 2d 375, 113 S. Ct. 467 (1992); Rachal v. Ingram Corp., 795 F.2d 1210 (5th Cir. 1986).
As indicated above, however, several federal courts have found that only a plaintiff has a right to a jury trial. “[Fjederal court decisions interpreting a federal act are actually binding upon Illinois courts.” (Emphasis in original.) Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 276, 746 N.E.2d 254, 266 (2001). It is improper for this state appellate court to interpret a federal statute contrary to interpretations made by federal appellate courts. Sun-dance, 195 Ill. 2d at 276, 746 N.E.2d at 266.
Moreover, the right to a jury trial in Jones Act cases is substantive, not procedural. Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 363, 96 L. Ed. 398, 404, 72 S. Ct. 312, 315 (1952); Allen v. Norman Brothers, Inc., 286 Ill. App. 3d 1091, 678 N.E.2d 317 (1997), appeal denied, 174 Ill. 2d 553, 686 N.E.2d 1157 (1997); Gibbs v. Lewis & Clark Marine, Inc., 298 Ill. App. 3d 743, 750, 700 N.E.2d 227, 233 (1998). Federal substantive law governs this issue and holds that only the plaintiff in a Jones Act case has the right to demand a trial by jury. Craig, 19 F.3d 472; Linton, 964 F.2d 1480; Rachal, 795 F.2d 1210. It may be that the majority of this court disagree with the federal courts’ interpretation of the Jones Act, but it is not their place to substitute their interpretation for federal courts’ interpretation of a federal statute. Sundance, 195 Ill. 2d 527, 746 N.E.2d 254.
Even if the Jones Act statute itself does not prohibit a Jones Act defendant from requesting a jury trial, nothing in the statute gives the defendant a “right” to a jury trial. Furthermore, nothing in Illinois state law guarantees a defendant in all types of cases a jury trial, except in those cases where the right existed at common law. The majority opinion, while not expressly stating so, appears to agree that Jones Act claims did not exist at common law. Therefore, Jones Act defendants are not guaranteed the right to a jury trial by the Illinois Constitution. Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 643 N.E.2d 734 (1994).
The majority look to the Jones Act to try to find a “right” to a jury trial for the defendant. Making their own interpretation of a federal statute, directly contrary to what federal courts have held, the majority find a “right” to a jury trial in the language of the Jones Act. As discussed above, a state appellate court “overruling” direct federal authority in interpretation of a federal statute is improper.
The majority next look to state procedure (735 ILCS 5/2 — 1105 (West 2000)) for support of their position. Section 2 — 1105(a) says, “A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer.” 735 ILCS 5/2 — 1105 (West 2000). This statute merely provides the procedure by which a party may advise the court of its desire for a jury trial. Roszell v. Gniadek, 348 Ill. App. 341, 343-44, 109 N.E.2d 222, 224 (1952). It says nothing whatsoever about whether a party is entitled to a jury trial in any given action.
Accordingly, I would answer the certified question in the negative.