The Illinois Supreme Court has affirmed a decision of a trial judge who denied a motion for substitution of judge that is usually a matter of right under 735 ILCS 5/2-1001(a)(2)(ii). In this case, the special administrator of the Estate of Bowman, Connie Bowman, filed a medical negligence case against Dr. Michael V. Ottney. There were pretrial rulings on substantive issues involving discovery disclosures. Bowman at that point voluntarily dismissed the lawsuit with the right to refile within one year without prejudice. The underlying lawsuit was brought by the plaintiff Connie Bowman who was the special administrator of the estate of Char Bowman who sought damages against the defendant Ottney.
The refiled lawsuit was then assigned to the very same judge who presided over the earlier proceedings. Again, Bowman moved for substitution of judge as a matter of right. The circuit court judge denied the motion but certified a question to the Illinois Appellate Court, which concluded that the court had discretion to deny a motion for substitution filed by a plaintiff where the court had ruled on matters of substance in the plaintiff’s previously filed but now dismissed lawsuit.
The Illinois Appellate Court affirmed. In doing so, the Supreme Court said Bowman could have moved for substitution of judge as a matter of right during the proceedings on her 2009 complaint, the first lawsuit. She could have done this even after the judge ruled on matters of substance. Bowman could have moved for cause under Section 2-1001(a)(3) in either the 2009 or the 2013 litigation.
The issue for the Supreme Court was this: “In a case which had previously been voluntarily dismissed pursuant to 735 ILCS 5/2-1009 and then subsequently re-filed, does the trial court have discretion to deny a Plaintiff’s immediately filed motion for substitution of judge, brought pursuant to 735 ILCS 5/2-1001, based on the fact that the Court had made substantive rulings on the previously dismissed case?”
The majority in the Illinois Supreme Court, relying in part on the case of Ramos v. Kewanee Hospital, held that Bowman’s motion for substitution of judge in the 2013 suit was properly denied under the “test the waters” doctrine. Ramos v. Kewanee, 2015 IL App (5th) 140215, ¶¶16-17. The majority noted that this doctrine permits the denial of an initial motion for substitution of judge before substantial rulings have been made, if the party presenting the motion has been able to form an opinion as to the court’s disposition towards his or her case. The court held that the doctrine was applicable and justified denial of Bowman’s motion because she had “tested the waters” during her voluntarily dismissed 2009 suit. There was one dissenting justice, who expressed a view that the circuit court judge had no discretion to deny the motion for substitution because all of the statutory prerequisites were met in the refiled action and because the “test the waters” doctrine has been discredited and rejected. (citing Schnepf v. Schnepf, 2013 IL App (4th) 121142.
In this case, the Supreme Court granted the petition for leave to appeal pursuant to Ill.S.Ct.R. 315 (eff. July 1, 2013). In addition, the court allowed the Illinois Trial Lawyers Association to file an amicus curiae brief in support of Bowman and the Illinois Association of Defense Counsel was allowed to file an amicus curae brief in support of Dr. Ottney.
It is important to point out that Section 2-1001(a)(2)(ii) provides that substitution of judge “in any civil action” is allowed as a matter of right without cause. Subsection (ii) states that a motion 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.
On the other hand Section 2-1009(a) of the Code permits the plaintiff to dismiss his or her action without prejudice at any time before trial or hearings begin. 735 ILCS 5/2-1009(a). Section 13-217 allows a plaintiff to refile an action that has been voluntarily dismissed within one year from the date of the dismissal. 735 ILCS 5/13-217.
The current version of 2-1001 went into effect in 1993 when it was rewritten. Prior to the adoption of the 1993 amendment to this Section, a party seeking a substitution of judge was required to allege bias or prejudice on the part of the judge presiding in the cause. Before 1993 simply alleging that there was bias or prejudice was generally enough to allow litigants to engage in what was known then as “judge shopping”. Another problem that would arise would be whether the litigant would be required to show proof of a claim of prejudice when presenting such a motion for substitution of judge. In a case where a litigant had failed to move for the first “change of venue” in a timely fashion, then any relief from a claim of bias or prejudice had to be justified by proof that the bias or prejudice actually existed. Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union Local 1600, 42 Ill.App.3d 1056, 1066 (1976).
The 1993 amendment to Section 2-1001 was written to eliminate the requirement that a party seeking substitution must allege bias or prejudice on the part of the presiding judge. Under the new law, a litigant is entitled to one substitution without cause as a matter of right, as long as the request for substitution 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.” 735 ILCS 5/2-1001(a)(2)(ii). In a case where a substantive ruling has been made however, subsection (a)(3) permits substitution only “[w]hen cause exists.” 735 ILCS 5/2-1001(a)(3).
The Supreme Court stated that contrary to Bowman’s assertion, the voluntary dismissal and refiling of a cause of action does not “reset the clock” with respect to the substitution of judge who previously made substantive rulings in the prior proceeding. Considering the history of Section 2-1001 and the goals sought to be achieved, the Supreme Court concluded that Section 2-1001(a)(ii) must be read as referring to all proceedings between the parties in which the judge to whom the motion is presented has made substantial rulings with respect to the cause of action before the court.
Accordingly, the Supreme Court rejected Bowman’s contention that she is entitled to exercise the right to automatic substitution in the 2013 lawsuit because Illinois Supreme Court Rule 219(e) provides a defendant with adequate protection against a plaintiff’s attempt to “job shop.”
The Illinois Supreme Court Rule 219(e) states:
“Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party.”
Ill.S.Ct.R. 219(e) (eff. July 1, 2002).
Accordingly, the Illinois Supreme Court affirmed the certified question by stating: In a case that previously was dismissed and then refiled, a trial court has the discretion to deny an immediately filed substitution of judge based on the fact that the same judge to whom the motion is presented made substantive rulings in the previously dismissed case. Accordingly, the Supreme Court affirmed the judgment of the appellate court and remanded the case to the circuit court.
Kreisman Law Offices has been handling catastrophic injury cases, medical negligence cases, birth trauma injury cases and hospital negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including, Dixmoor, East Hazel Crest, Elk Grove Village, Buffalo Grove, Berwyn, Bensenville, Barrington, Hanover Park, Lincolnwood, LaGrange Park, Orland Park, Palatine, Palos Park, Park Forest, Park Ridge, Richton Park, Riverside, Winnetka, Willow Springs, South Barrington, Chicago (Humboldt Park, Gold Coast, Garfield Park, Edison Park, Edgewater, Edgebrook, East Garfield Park, Portage Park, Pilsen, Rogers Park, UIC, McKinley Park, Loyola Park, Little Italy, Lincoln Park), Cicero and Des Plaines, Ill.
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