Illinois state bar association SEPTEMBER 2015 vol 61 no. 2 Trial Briefs

The newsletter of the Illinois State Bar Association’s Section on Civil Practice & Procedure

Substitution of judge as of right is in need of a time restriction By robert I. Berger and Jin Yan

Under the Code of Civil Procedure, would make in conjunction with his in cases months and even years into those each party to a civil action is entitled attorney, and there may be something cases. to one substitution of judge as of right that the lawyer feels that, for a particular The authors offer the following and without the need to show cause.1 reasons, he does not want this judge to hypothetical of abusive manipulation of This statutory entitlement is intended hear that particular issue. And that’s the the substitution statute. Suppose there are to preserve a party’s right to a fair and purpose of the bill.3 multiple parties represented by the same impartial adjudication of its claims by Illinois courts have held that the statute counsel in a case. Those parties could, one allowing that party to remove a case from should be liberally construed to effect by one, take serial motions for substitution a judge that it does not want to preside rather than defeat the right to substitute of judge to delay the entry of a substantial over the case. Twenty-three years after judge.4 So long as a motion for substitution ruling. Whenever a matter is set for its enactment, however, the substitution of judge as of right is properly noticed and hearing on a fully briefed and ready to be statute is too often used as a tactic to delay presented before a judge has “ruled on argued motion for summary judgment, proceedings months and even years into a any substantial issue in the case,” the right counsel could file a last minute motion lawsuit. To prevent such abuse of judicial to substitution is absolute and the judge for substitution of judge as of right, which process, the statute should be amended to has no discretion to deny the motion.5 would cause the case to be transferred. place reasonable limitations on when this In fact, orders entered after a motion It could then take weeks for the pending right can be exercised. for substitution of judge as of right is motion to be set on the new judge’s call, improperly denied are null and void.6 and just as the new judge is up to speed Background The right to a change of judge without on the facts and issues in the case and is Before 1993, a party seeking to a showing of cause is a rare privilege. prepared to rule on the motion, counsel substitute a judge had to file a supporting In federal court, a motion to disqualify could file another motion for substitution affidavit demonstrating that the judge a judge must allege bias or prejudice.7 of judge as of right on behalf of a different 2 was prejudiced against it. The Code of Among the states, only six others have a party to further delay ruling. Civil Procedure was amended in 1992 to similar substitution of judge statute.8 Given Given the absence of any time eliminate this uncomfortable requirement. the power this right confers, it is critical to restriction on a substitution of judge as of In sponsoring the amendment, Senator reduce the prospects for its abuse. right can be taken, a party can lay in the Thomas Dunn explained its purpose as weeds and wait until a substantial motion follows: Using A Substitution Of Judge As is presented, fully briefed, and set for What this bill does is to give you the Of Right For Delay hearing, and then, on the day of hearing, right as a litigant, the right to substitute Notwithstanding its intended purpose, for the first time present its motion to out a judge without stating a matter of the right to a substitution of judge without substitute judge as of right. Depending on prejudice. And what I would say to you a showing of any cause has sometimes how many parties there are on any one is that that is a judgment call that, in all been misused by litigants and attorneys side, this practice can go on numerous probability, an individual—a litigant— to intentionally delay substantial rulings times, leading to delays of several weeks or Trial Briefs ▼ September 2015 / vol 61 / no. 2 even months each time. within 10 days of receiving notice of the the case. This rule will also eliminate serial Even though Illinois appellate courts reassignment.11 Minnesota requires a filings. have repeatedly held that a motion for motion for substitution of judge to be While it is difficult to predict all of substitution of judge as of right may noticed within 10 days of receiving notice the ways in which a substitution of judge be denied where the motion is brought of which judge will be presiding at the as of right can and will be exploited for merely to delay or avoid trial, contesting a trial or hearing.12 Montana requires the strategic purposes, the suggestions made motion brought for vexatious purposes is motion be filed by a plaintiff within 30 days in this article will eliminate abusive delay nonetheless an uphill battle.9 The law favors of service of the summons or an adverse and the burdens of transferring a case to a a substitution of judge as of right – granting party’s appearance and by a defendant new judge deep into the life of a case while a properly noticed motion is mandatory within 30 days of service.13 helping to effectuate the true purpose of the while denying an improperly brought Requiring a motion for substitution right. ■ motion is merely permissive. Judicial of judge as of right to be brought at the ______economy also weighs in favor of granting a outset of a case, as these states do, not only Robert I. Berger is a litigation partner in motion for substitution of judge as of right effectuates the purpose of the right but also Chicago office of Schiff Hardin LLP. Jin Yan is a because an improper denial would void all brings other advantages. Eliminating the litigation associate in the Chicago office of Schiff Hardin LLP. subsequent orders. As a result, judges are possibility that midway or even late into more apt to grant a motion for substitution a case, the parties will be assigned a new 1. 735 ILCS 5/2-1001(a)(2)(i) (1992). of judge as of right without even allowing judge, who has no prior knowledge of the 2. See generally Gerald L. Angst and Dennis briefing on the issue of whether the motion dynamics between the parties, the lawyers, M. Coghlan, Substitution of Judges: Recent Statute Codifies and Modifies Existing Law, 82 Ill. B.J. 240, is brought solely for purposes of delay. the facts or the legal issues, increases the 241 (May 1994). Regrettably, the burdens of an likelihood that the case will be resolved 3. Illinois Senate Transcript, 87th General improperly taken substitution of judge as of expeditiously and conserves both litigant Assembly, May 19, 1992 at 114. right are asymmetrical. A party incorrectly and judicial resources. 4. 735 ILCS 5/2-1001(a)(2)(ii); Cincinnati Ins. Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 23 denied a substitution of judge can With these benefits in mind, the authors (1st Dist. 2012). appeal and obtain a reversal of all orders propose the following amendments. A 5. Schnepf v. Schnepf, 2013 IL App (4th) subsequently entered against it. There is motion for substitution of judge as of right 121142, ¶ 27 (4th Dist. 2013); Rodisch v. no precedent granting that same relief to a must be filed within 28 days of a party’s Commacho-Esparza, 309 Ill. App. 3d 346, 350 (2d Dist. 1999). party prejudiced by an incorrectly granted appearance (or complaint, if a plaintiff is 6. Aussieker v. City of Bloomington, 355 Ill. 10 motion for substitution of judge. the moving party). This rule would preserve App. 3d 498, 500 (4th Dist. 2005). a party’s right to move for substitution of 7. 28 U.S.C. § 144 (2014); see also 28 U.S.C. § Amending The Substitution Of judge as of right while preventing that party 455 (2014). Judge Statute 8. The six other states are Wisconsin, from sitting on the right or allowing it to Minnesota, Missouri, Montana, Alaska, and New Twenty-three years after the Code strategically time the exercise of the right Mexico. See Wis. Stat. § 801.58(1) (2015); Minn. of Civil Procedure was first amended to coincide with hearings on substantial Stat. § 63.03 (2001); Mo. Rev. Stat. § 51.05 (2011); to provide for the right to substitute a matters. If a motion for substitution of Mont. Code Ann. § 3-1-804 (2009); Alaska Stat. § judge without cause, the statute should 22.20.022 (1971); N.M. Stat. § 38-3-9 (1985). judge as of right is granted and the case 9. Chicago Transparent Prods., Inc. v. Am. Nat’l be amended to curtail the unintended is transferred to another judge, then any Bank & Trust Co. of Chicago, 337 Ill. App. 3d 931, and improper uses of that right to cause other party entitled to file a motion for 943 (1st Dist. 2002); Nasrallah v. Davilla, 326 Ill. delay. Three of the six states that confer substitution of judge as of right from the App. 3d 1036, 1040 (1st Dist. 2001). an equivalent right place reasonable time 10. See U.S. Bank Nat’l Ass’n v. In Retail Fund new judge must do so within 14 days of the Algonquin Commons, LLC, 2013 IL App (2d) restrictions on the exercise of that right. transfer order. Where two different motions 130213, ¶ 25 (2d Dist. 2013) (“We know of no Similar time restrictions should be adopted to substitute judge are filed within the same authority, however, suggesting that the erroneous by Illinois legislators. requisite timeframe and against the same grant of a motion for substitution—as is alleged Wisconsin requires a plaintiff to move here—has a like effect [of voiding subsequent judge, the substitution should be charged to orders]”) (emphasis in original). for substitution of judge within 60 days both movants since each party will receive 11. Wis. Stat. § 801.58(1). of filing the complaint and requires a a change from the particular judge that 12. Minn. Stat. § 63.03. subsequent request for a substitution the party does not want to preside over 13. Mont. Code Ann. § 3-1-804(1)(a). after the case is reassigned to be made

This article originally appeared in the Illinois State Bar Association’s Trial Briefs Newsletter, Vol. 61 #2, September 2015. It is reprinted here by, and under the authority of, the ISBA. Unauthorized use or reproduction of this reprint or the ISBA trademark is prohibited.