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Substitution of judge as of right: when is it too late? Substituting a judge as of right - even fairly well into your case - is easier than you might think, and easier in some appellate districts than others. But there are limits, based on the courts' sometimes confusing interpretation of the SOJ statute. Here's a review.


Most civil litigators are aware of 735 ILCS 5/2-1001(a) (2), substitution of judge as of right ("SOJ as of right"), in the Illinois Code of Civil Procedure. But many litigators are confused about when they can exercise this right--i.e., how long do they have to move for a SOJ as of right before it's too late?

The answer to this question, unfortunately, is not as straightforward as the statute seems to imply. The statute provides as follows:

Section 2-1001. Substitution of judge.

(a) A substitution of judge in any civil action may be had in the following situations ....

(2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2).

(i) Each party shall be entitled to one substitution of judge without cause as a matter of right.

(ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties.

(iii) If any party has not entered an appearance in the case and has not been found in default, rulings in the case by the judge on any substantial issue before the party's appearance shall not be grounds for denying an otherwise timely application for substitution of judge as of right by the party. (1)

At first blush, the statute seems clear cut. It states that to exercise the substitution as of right, the party must be "timely" in making the motion. The motion will be "timely" if "it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case."

Furthermore, the statue carves out a generous exception to rulings on "substantial issues" in subparagraph (iii) for a party that has not entered an appearance and is not in default.

In other words, a party who has not yet had an opportunity to participate in a case does not automatically lose his or her option to substitute one judge with out stating a cause and as a matter of right simply because that judge has already ruled on a substantial issue in the case prior to that party's appearance. (2)

But cases interpreting the statutory language have complicated the question of when an SOJ as of right is truly available. First, courts have ruled on what a "substantial issue" is and is not under the statute, and those decisions must be reviewed. Second, some courts refuse to allow SOJ as of right when litigants have had the opportunity at pretrial conferences to "test the waters" about how the judge views the case, or where the judge during these pretrial conferences has "tipped his hand" about how he feels. And third, substitution can be challenged based on the claim that the motion was brought to delay or avoid trial.

This article reviews all three of these potential challenges and the case law they have generated, with the goal of clarifying when SOJ of right is available and what the statute's main pitfalls are so they can be avoided.

Substantial rulings

Many lawyers believe that once a pleading is filed or a continuance granted, SOJ as of right is unavailable. Fortunately, this is not true. To reiterate, substitution must be sought before a trial or hearing and before the judge has ruled on any "substantial issue" in the case, unless you fall under the exception of section 2-1001(a)(2)(iii) (i.e., the party has not entered an appearance and is not in default).

So, what is a substantial ruling? The courts have defined it as one that "directly relates to the merits of the case," (3) an amorphous rule whose real meaning emerges from the specific cases, as in this example.
 [W]e nonetheless find that the temporarycustody
 order was not a substantive ruling.
 We do not hold that the temporarycustody
 order can never be a substantive
 ruling. In many cases, it may be a substantive
 ruling. On these facts, however, where
 the court heard only limited evidence by
 the State, the temporary-custody order did
 not constitute a substantive ruling. (4)

Here are more examples to illustrate the point. In In re Estate of Hoellen, (5) the court stated that
 a trial court's ruling on a discovery motion
 is considered 'substantial' when it pertains
 to evidentiary matters and reveals the
 court's interpretation of a supreme court
 rule or the court's opinion as to the admissibility
 of extrinsic evidence.

In Rodisch v Commacho-Esparza, (6) the court noted that previous cases have found the
 existence of a ruling on a substantial
 issue ... where the trial court made a ruling
 on a motion to dismiss; where the
 trial court made pretrial rulings of law; or
 where the movant participated in discussions
 concerning the issues during which
 the trial court indicated a position on at
 least one issue.

According to Rodisch, other more minor rulings, such as setting dates for holding a pretrial conference, answering interrogatories, or responding to a motion for summary judgment are not considered substantial issues "even though the pretrial discussions necessarily involved certain aspects of the merits of the case."

In summary, a pretrial motion or conference may disqualify the party's use of the motion to SOJ as of right if it leads the judge to apply law to the issues of the case or if the judge gives her position on the issues even if she does not formally make a ruling. Thus, as the above cases have pointed out, there need not be an actual ruling on an issue in the case for the SOJ motion to fail, despite the statutory language.

Instead, the critical point seems to be whether the judge has discussed substantive law as it relates to the issues of the case. As one court put it, "a request for judge substitution may be untimely if it is made after pretrial conferences at which substantive issues were discussed but not decided." (7)

The "testing the waters" and "tipping of the hand" tests

The above discussion of "substantial issues" segues into a related problem. What if a judge "tips his hand" and, therefore, gives a litigant the opportunity to "test the waters" as to the outcome of their case with that particular judge? Can the litigant still substitute the judge as of right? That, it turns out, depends on which appellate district you're in.

The third and fifth districts bar litigants who have had an opportunity to "test the waters" or see the judge "tip his hand" from getting an SOJ as of right. However, the fourth district has explicitly rejected this requirement, while the second district appears to have abandoned it (without explicitly rejecting it) and the first district appears poised to reject the requirement and align itself with the fourth district.

The fourth district. The fourth district has clearly established that it will not subject litigants to any "testing of the waters" or "tipping of the hand" tests. In Illinois Licensed Beverage Assn, Inc v Advanta Leasing Services, (8) the fourth district held that "a movant's right to substitution of judge as of right is absolute, and the trial court does not have discretion to consider whether the movant had an opportunity to 'test the waters.'"

The first district. Last year, the first district sought to join the fourth district and abandon the "testing the waters" and "tipping of the hand" standards when it approvingly quoted the fourth district holding in Bemis v State Farm Fire and Cas Co. (9) This was a clear departure from the first district's previous holding in Hoellen, when it found that a motion for SOJ as of right was untimely because "the respondent had an opportunity to test the waters and form an opinion as to the court's disposition toward his case." (10)

However, early this year the Illinois Supreme Court issued a supervisory order vacating the decision in Bemis and correcting, nunc pro tunc, its own previous supervisory order in the case. (11) The supreme court did not issue an opinion and it was a very complex case dealing with substitution of judge as of right as it relates to Supreme Court Rule 384 (Transfer and Consolidation of Multicircuit Actions).

It would be a stretch to assume that the supreme court vacated the Bemis decision based on the first district's stance on "testing the waters." Thus, while Bemis is no longer good law, it can be inferred that the first district is looking to align itself with the fourth district and allow all individuals who fulfill the statutory requirements the opportunity to SOJ as of right, regardless of whether they had the right to form an opinion of how the judge might rule in their case.

The second district. Unlike the fourth district, which explicitly rejected the "testing of the waters" standard, the second district simply ignored whether or not litigants have had the opportunity to form an opinion before substituting a judge as of right. In Rodisch, a case where the trial judge had made a "recommendation and suggestion" concerning the settlement of a case, the second district did not even mention the "testing of the waters" or "tipping of the hand" standards when it reversed and remanded the denial of an SOJ as of right. (12)

The third and fifth districts. The third and fifth districts, however, still consider of utmost importance that a litigant seeking an SOJ as of right not have had the opportunity to form an opinion as to how the judge might rule in their case. Their reasoning is that a party with knowledge of how a judge might rule would engage in "judge shopping" to obtain the best possible outcome.

Although preventing "judge shopping" is a worthy policy, the "test" used to enforce it does not specify how to decide when a party has "tested the waters" or a judge has "tipped his hand" in a particular case.

As it stands, the third and fifth districts may consider "all the circumstances surrounding the pretrial proceedings" (13) when deciding whether a party has "tested the waters." For example, in In re Estate of Gay, the third district found that even if no substantial rulings had been made, "the motion for substitution of judge was untimely because it was made after [appellant] had an opportunity to form an opinion as to the judge's reaction. The trial judge's suggestions and comments during the pretrial conferences gave her a unique ability to determine the court's attitude concerning certain issues." (14)

When it comes to applying the "tipping of the hand" test, the trial judge may rely on his own recollection "regarding the substance of pretrial conferences" as long as those recollections do not contradict or impeach the record. (15) Therefore, in order to argue against a judge's reliance on his memories of what he said off record (and defeat a motion for SOJ as of right), the challenger must show that those memories contradict the record.

Which is to say, "any corrections of or additions to the record which contradict the clear and unambiguous contents of the record must be supported by something other than the 'clear memory' of the judge." (16) It "must be proved by the production of some note or memorandum from the record or Quasi records of the court, or by the judge's minutes, or by the papers on file in the cause." (17)

So far, the third and fifth district do not seem to be poised to move away from the ambiguous "testing of the waters" and "tipping of the hand" standards, but some judges have criticized these tests. In her concurring opinion in Gay, Justice McDade expressed the dilemma presented by the "tipping the hand" or "testing the waters" approach to a motion for SOJ as of right:
 I concur in the decision of the majority
 because the result is clearly supported
 by existing case law. I write
 separately to indicate my belief that
 "tipping the hand" is too subjective
 and elusive a standard to be susceptible
 in cases such as this to any meaningful
 kind of assessment by the trial
 court or review by the appellate court.
 It is a standard that can, as is evident
 in this case, be easily manipulated by
 the parties. While the trial court's decision
 seems to have been consistent
 with the law, the standard itself seems
 to me to leave us poised at the top of
 a slippery slope.

 In the present case ... I do not believe
 the judge did anything more
 than engage in sound case and courtroom
 management, and I do not see
 any objective way to characterize his
 conduct as "tipping the hand."

 The second problem for me is that
 our standard of review is de novo ....
 We have no objective basis for making
 a meaningful judgment and are,
 therefore, totally reliant on the judge's
 own subjective recollection and reconstruction
 in reviewing his decision.
 This standard seems totally inappropriate
 for de novo review.

 There is, for me, one additional
 concern with the use of the "tipping
 the hand" standard. It appears that
 an acknowledgment that one has
 "tipped his hand" is tantamount to a
 concession that he has prejudged the
 case and is, therefore, biased. It seems
 to me that such a finding ought to
 mandate a recusal rather than militating
 against it. As it now stands, if
 the judge has not formed an opinion
 and given the parties some inkling of
 what that opinion is, then a party is
 able to take a recusal as a
 matter of right; if, on the
 other hand, the judge has
 formed an opinion before
 the evidence has been presented
 and has tipped his
 hand to that effect, he must
 remain as the judge in the
 case. While I understand
 and appreciate the need
 to discourage forum shopping,
 this result makes no
 sense to me, even though
 it is supported by existing
 precedents. (18)

SOJ motions made to delay or avoid trial

As the fifth district wrote recently, "[w]here a party files a motion for a substitution of judge as a matter of right in a timely manner and in compliance with the statute's requirements, the movant's right to relief is absolute and the trial court does not have discretion to deny it." (19) But, as with most things in the law, the right is not really absolute and can be overcome if "it is shown that the motion was made simply to delay or avoid a trial" (20)

However, the good news is, the "provisions of the [SOJ as of right] statute are to be liberally construed" and are to be interpreted to "effect rather than defeat the right of substitution" (21) Therefore, it will not be easy to show that there were ulterior motives to the request for SOJ as of right.

To illustrate this point, in Sahoury v Moses (22) the court found that a litigant was entitled to an SOJ as of right even when he suspiciously sought it "one week before a trial, and after the trial date ha[d] been pending for four months."


To conclude, the problem of this statute does not lie in its procedural requirement to petition for SOJ as of right before trial or hearing. Rather, it is in the often vague and contradictory casemade tests described above.

The consequence is a lack of clear guidelines that would have helped prevent a party from unknowingly entering dangerous waters. Therefore, the moral of this story is to petition for substitution of judge at the "earliest practical moment." (23)

(1.) 735 ILCS 5/2-1001.

(2.) In re Marriage of Charles Paclik, 371 Ill App 3d 890, 895, 864 NE2d 274, 278 (5th D 2007).

(3.) In re Estate of Gay, 353 Ill App 3d 341, 343, 818 NE2d 860, 862 (3d D 2004).

(4.) In re Austin D., 358 Ill App 3d 277, 281, 831 NE2d 1215, 1221 (4th D 2005).

(5.) Hoellen, 367 Ill App 3d 240, 246, 854 NE2d 774, 781 (1st D 2006).

(6.) Rodisch, 309 Ill App 3d 346, 351, 722 NE2d 326, 330 (2d D 1999) (Citations omitted).

(7.) Gay at 343, 818 NE2d at 863.

(8.) Illinois Licensed Beverage Assn, Inc v Advanta Leasing Services, 333 Ill App 3d 927, 934, 776 NE2d 255, 261 (4th D 2002).

(9.) 388 Ill App 3d 687, 693, 905 NE2d 285, 290 (1st D 2009).

(10.) Hoellen at 247, 854 NE2d at 781.

(11.) Bemis v State Farm Fire and Cas Co, 919 NE2d 349 (Ill S Ct 2010).

(12.) Rodisch at 352, 722 NE2d at 330.

(13.) Gay at 344, 818 NE2d at 864.

(14.) Id.

(15.) Id.

(16.) Hartgraves v Don Cartage Co, 63 Ill 2d 425, 432, 348 NE2d 457, 461 (1976).

(17.) Id at 428, 348 NE2d at 458.

(18.) Gay at 345-46, 818 NE2d at 864-65 (McDade concurring).

(19.) Paclik at 896, 864 NE2d at 279.

(20.) Id.

(21.) Beahringer v Hardee's Food Systems Inc, 282 Ill App 3d 600, 601, 668 NE2d 614, 615 (5th D 1996).

(22.) Sahoury, 308 Ill App 3d 413, 414, 719 NE2d 1157, 1158 (1st D 1999).

(23.) Hoellen at 246, 854 NE2d at 781.

Marie C. Fahnert and Tracey Daniels are family law and appellate lawyers in Chicago. They are graduates of Northwestern School of Law.
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Title Annotation:Illinois
Author:Fahnert, Marie C.; Daniels, Tracey
Publication:Illinois Bar Journal
Date:Aug 1, 2010
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