Bowman v. Ottney , 48 N.E.3d 1080 ( 2015 )

2015 IL 119000IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119000)
CONNIE L. BOWMAN, Special Adm’r of the Estate of Char L. Bowman,
Deceased, Appellant, v. MICHAEL D. OTTNEY, D.O., Appellee.
Opinion filed December 17, 2015.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Thomas, Karmeier, Burke, and Theis
concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 Plaintiff, Connie L. Bowman, as special administrator of the estate of Char L.
Bowman, brought a medical malpractice action against defendant, Michael D.
Ottney, D.O., seeking recovery for injuries allegedly caused by the negligent
treatment of decedent, Char L. Bowman. During pretrial proceedings on the claim,
the circuit court of Jefferson County made rulings on substantial issues. Thereafter,
Bowman voluntarily dismissed her complaint and subsequently refiled the suit. The
refiled suit was assigned to the same judge who had presided over the earlier
proceedings, and Bowman immediately moved for substitution of judge as of right
under section 2-1001(a)(2)(ii) of the Code of Civil Procedure (Code) (735 ILCS
5/2-1001(a)(2)(ii) (West 2014)). The circuit court denied the motion, but certified a
question to the appellate court pursuant to Illinois Supreme Court Rule 308 (eff.
Jan. 1, 2015) as to whether a trial court had discretion to deny a motion for
substitution of judge filed by a plaintiff, where the court had ruled on matters of
substance in plaintiff’s previously dismissed suit. A divided panel of the appellate
court answered the certified question in the affirmative. 2015 IL App (5th) 140215.
This court granted Bowman’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan.
1, 2015). For the followings reasons, we affirm the judgment of the appellate court.
¶2 BACKGROUND
¶3 In June 2009, Bowman filed a complaint for medical malpractice against
defendants, Dr. Michael D. Ottney and Core Physician Resources, P.C., seeking
recovery for the allegedly negligent medical treatment of decedent, Char L.
Bowman. Bowman’s complaint, which was filed in Jefferson County, was
docketed as “09 L 28” and was assigned to be heard by Judge David Overstreet. In
the ensuing four years, Judge Overstreet presided over extensive pretrial
proceedings, during which he issued rulings on substantial issues such as the
disclosure of certain materials in discovery. After these rulings but prior to trial,
Bowman voluntarily dismissed her complaint, pursuant to section 2-1009(a) of the
Code (735 ILCS 5/2-1009 (West 2014)). Four months later, Bowman refiled her
cause of action against Ottney, in accordance with section 13-217 of the Code (735
ILCS 5/13-217 (West 2014)). In her second complaint, also filed in Jefferson
County, Bowman named Ottney as the sole defendant and asserted the same claim
as that previously alleged in her 2009 complaint. Bowman’s second complaint was
docketed as “13 L 41” and was assigned to be heard by Judge Overstreet. Bowman
immediately filed a motion for substitution of judge as of right under section
2-1001(a)(2)(ii) of the Code (735 ILCS 5/2-1001(a)(2)(ii) (West 2014)). Ottney
objected to the motion on the ground that it was not timely because Judge
Overstreet had made rulings on substantial issues during the pretrial proceedings on
the 2009 complaint prior to its voluntary dismissal. Citing to the decision in Ramos
v. Kewanee Hospital, 2013 IL App (3d) 120001, Ottney contended that Bowman’s
motion for substitution of judge should be denied because she had “tested the
waters” during the proceedings on her voluntarily dismissed 2009 complaint.
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¶4 The circuit court denied Bowman’s motion for substitution of judge, but
granted her request for certification of the following question for interlocutory
appeal under Rule 308(a):
“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 in the previously dismissed case?”
¶5 The appellate court allowed Bowman’s application for leave to appeal under
Rule 308 and answered the certified question in the affirmative. Relying, in part, on
the analysis in Ramos v. Kewanee Hospital, the majority held that Bowman’s
motion for substitution of judge in the 2013 suit was properly denied under the “test
the waters” doctrine. 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 toward his or her case. Id. ¶ 10. 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. Id. ¶¶ 16-17. One justice dissented, expressing the 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. Id. ¶¶ 24-25 (Stewart, J.,
dissenting) (citing Schnepf v. Schnepf, 2013 IL App (4th) 121142).
¶6 This court allowed Bowman’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
July 1, 2013). We subsequently allowed the Illinois Trial Lawyers Association to
submit an amicus curiae brief in support of Bowman, and the Illinois Association
of Defense Trial Counsel to submit an amicus curiae brief in support of Ottney. Ill.
S. Ct. R. 345 (eff. Sept. 20, 2010).
¶7 ANALYSIS
¶8 In general, we are limited to reviewing the question certified by the trial court.
Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007). A certified
question under Rule 308 necessarily presents a question of law, which we review
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de novo. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 8. In this case, the certified
question requires that we construe section 2-1001(a)(2)(ii) of the Code (735 ILCS
5/2-1001(a)(2)(ii) (West 2014)) and its effect when considered in relation to the
voluntary dismissal and refiling provisions of the Code set forth in sections
2-1009(a) and 13-217 (735 ILCS 5/2-1009(a), 13-217 (West 2014)). We also
review issues of statutory construction de novo. Slepicka v. Illinois Department of
Public Health, 2014 IL 116927, ¶ 13.
¶9 Our primary objective in construing a statute is to ascertain and effectuate the
intent of the legislature. Id. ¶ 14. The most reliable means of achieving that goal is
to apply the plain and ordinary meaning of the statutory language. In re
Commitment of Fields, 2014 IL 115542, ¶ 32. When construing statutory language,
we view the statute as a whole, construing words and phrases in light of other
relevant statutory provisions and not in isolation. In re Parentage of J.W., 2013 IL
114817, ¶ 37. In addition, a court may consider the reason for the law, the problems
sought to be remedied, the purposes to be achieved, and the consequences of
construing the statute one way or another. Chicago Teachers Union, Local No. 1 v.
Board of Education of the City of Chicago, 2012 IL 112566, ¶ 15.
¶ 10 Section 2-1001(a)(2)(ii) provides, in relevant part, that a substitution of judge
“in any civil action” may be had as follows:
“(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.” 735 ILCS
5/2-1001(a)(2)(ii) (West 2014).
Section 2-1009(a) of the Code permits a plaintiff to dismiss his or her action
without prejudice at any time before trial or hearing begins. 735 ILCS 5/2-1009(a)
(West 2014). 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 (West 2014).
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¶ 11 Bowman contends that the circuit court erred in denying her motion for
substitution of judge in the 2013 action, and she advocates for a “bright line” rule
allowing a substitution as of right, even where the motion is presented in a refiled
action after the same judge had made substantive rulings in the previously
dismissed suit. In support, Bowman cites to the language of section 2-1001(a)(2)(ii)
and focuses, in particular, on the phrase “in the case.” According to Bowman, the
plain meaning of this phrase necessarily refers only to the case that is currently
pending before the court. Bowman claims that because Judge Overstreet had not
made any substantive rulings in the refiled 2013 suit, he had no discretion to deny
the motion for substitution of judge.
¶ 12 Ottney responds that section 2-1001(a)(2)(ii) must be construed to allow a court
to consider the overall controversy between the parties. According to Ottney, this
interpretation is the only way to give effect to the purposes of the statute, which
include prevention of “judge shopping.” Ottney contends, therefore, that Judge
Overstreet had discretion to deny the motion for substitution in the 2013 suit
because he had issued rulings on substantial matters in the previously dismissed
suit on Bowman’s 2009 complaint.
¶ 13 In construing section 2-1001(a)(2)(ii), we are guided by its language and
purposes, as well as its statutory history. See Chicago Teachers Union, Local No. 1,
2012 IL 112566, ¶ 15; DeClerck v. Simpson, 143 Ill. 2d 489, 492 (1991).
¶ 14 The version of section 2-1001 that is currently in effect was adopted in 1993,
when the General Assembly rewrote the statute. Prior to the 1993 amendment, the
provisions under which a party could request a substitution of judge were embodied
in the legislative acts governing changes of venue. Ill. Rev. Stat. 1991, ch. 110,
¶¶ 2-1001, 2-1002. Under those provisions, a party seeking a substitution of judge
was required to allege bias or prejudice on the part of the judge presiding in the
cause. Ill. Rev. Stat. 1991, ch. 110, ¶ 2-1001(a)(2). It was recognized, however, that
allowing charges of judicial bias to be made without proof would invite litigants to
engage in “judge shopping” or to seek a substitution as a delay tactic. See Ill. Ann.
Stat., ch. 110, ¶ 2-1001, Historical and Practice Notes, at 142-43 (Smith-Hurd
1983). Yet, requiring proof of a claim of prejudice presented other difficulties by
requiring either that the accused jurist sit as judge in his own cause or that another
judge be brought in on short notice to pass upon the personal views of a colleague.
Ill. Ann. Stat., ch. 110, ¶ 2-1001, Historical and Practice Notes, at 142 (Smith-Hurd
1983). The reconciliation of these conflicting policy concerns was encompassed in
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the statutory provisions “and in the judicial gloss which has been put upon those
sections.” Id. Thus, before section 2-1001 was amended in 1993, Illinois courts
recognized that a litigant was entitled to one “change of venue” on grounds of
judicial bias or prejudice, and that right was considered to be “automatic” because
the substitution request was required to be supported only by generalized
allegations, which need not be proved. See American State Bank v. County of
Woodford, 55 Ill. App. 3d 123, 128 (1977).
¶ 15 In addition, the preamendment version of section 2-1001 specifically provided
that a request for “change of venue shall not be granted unless 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 ***.” Ill. Rev. Stat. 1991, ch. 110, ¶ 2-1001(c). This
requirement served to advance the statutory goals of preventing “forum-shopping”
and promoting judicial efficiency by precluding its use as a delay tactic. Ill. Ann.
Stat., ch. 110, ¶ 2-1001, Historical and Practice Notes, at 143 (Smith-Hurd 1983).
Therefore, even though the right was considered to be “automatic” or “absolute,”
even an initial request for substitution of judge could be denied if it was motivated
by a desire to avoid or delay the proceedings. Hoffmann v. Hoffmann, 40 Ill. 2d 344,
348 (1968). Also, if a litigant 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, County of Cook v. Cook County College Teachers Union
Local 1600, 42 Ill. App. 3d 1056, 1066 (1976).
¶ 16 With the 1993 amendment, section 2-1001 was rewritten to eliminate the
requirement that a party seeking substitution must allege bias or prejudice on the
part of the presiding judge. See 87th Ill. Gen. Assem., Senate Bill 1720, 1992 Sess.;
87th Ill. Gen. Assem., Senate Proceedings, May 19, 1992, at 114. Under the new
provision, 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) (West 2014). After a substantive ruling has
been made, however, subsection (a)(3) permits substitution only “[w]hen cause
exists.” 735 ILCS 5/2-1001(a)(3) (West 2014). Thus, the 1993 amendment did not
alter the restriction to only one substitution as a matter of right, nor did it change the
requirement that the motion be brought before the judge to whom it is presented has
ruled on any substantial issue in the case. These aspects of the previous statute are
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the same today as they were before 1993, and the purpose of the statute remains the
same.
¶ 17 Illinois courts have held that, when properly made, a motion for substitution of
judge as a matter of right is absolute, and the circuit court has no discretion to deny
the motion. Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 23.
In addition, the provisions of section 2-1001 are to be liberally construed to
promote rather than defeat the right of substitution. In re Estate of Wilson, 238 Ill.
2d 519, 553 (2010). Yet, the principle of liberal construction cannot excuse a party
from complying with the statute’s explicit requirements. Id. Moreover, we will
avoid a construction that would defeat the statute’s purpose or yield absurd or
unjust results. Krautsack v. Anderson, 223 Ill. 2d 541, 558 (2006).
¶ 18 In considering the terms of section 2-1001, this court has recognized that a
party “ ‘may not “judge shop” until he finds one in total sympathy to his cause. Any
other rule would spell the immediate demise of the adversary system.’ ” In re
Marriage of O’Brien, 2011 IL 109039, ¶ 30 (quoting American State Bank v.
County of Woodford, 55 Ill. App. 3d 123, 128 (1977)). Consequently, the principle
that section 2-1001(a)(2) should be read as favoring substitution does not require a
construction that permits a party to engage in “judge shopping.” Also, though not
expressly included in the statute, this court has long recognized that courts may
take into consideration the circumstances surrounding a motion for substitution of
judge and may deny the motion if it is apparent that the request has been made as a
delay tactic. In re Estate of Wilson, 238 Ill. 2d at 557 (citing Hoffmann, 40 Ill. 2d at
348, and People v. Peterson, 70 Ill. App. 3d 205, 207-08 (1979)).
¶ 19 In urging that the phrase “in the case” refers only to the case currently pending
before the court, Bowman cites to precedent holding that a case that has been
refiled under section 13-217 is a “new and separate action, not a reinstatement of
the old action.” Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504
(1997); Wilson v. Brant, 374 Ill. App. 3d 306, 311 (2007). According to Bowman,
since the 2013 suit was assigned a different docket number, necessitated the
payment of a new filing fee, and required that she again serve Ottney with process,
it was a “new case” and entitled her to exercise her automatic right to a substitution
of judge without cause and without regard to the prior proceedings on her 2009
complaint. We do not agree.
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¶ 20 Admittedly, refiled cases have been held to be new and separate actions for
some purposes. See Dubina, 178 Ill. 2d at 504 (deciding the finality of orders to
determine the existence of appellate jurisdiction); Wilson, 374 Ill. App. 3d at 311
(considering application of the “mailbox rule” to the filing of a complaint).
However, our task here is to determine whether the legislature intended the phrase
“in the case” to refer only to the currently pending suit for purposes of deciding a
motion for substitution of judge as of right. Our primary goal is to effectuate the
purpose of the statute (Slepicka, 2014 IL 116927, ¶ 14), and we are constrained to
give statutory language meaning that advances, rather than defeats, its purpose.
Therefore, regardless of what has been said in other contexts, we will not construe
section 2-1001(a)(2) in a manner that facilitates or encourages “judge shopping.”
¶ 21 The narrow and literal interpretation of the phrase “in the case” suggested by
Bowman creates a loophole that allows the purpose of the statute to be defeated.
We conclude that the legislature did not intend such a construction. 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 a judge who previously
made substantive rulings in the prior proceeding. Considering the history of section
2-1001 and the goals sought to be achieved, we conclude that section
2-1001(a)(2)(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.
¶ 22 Moreover, Bowman’s argument effectively ignores the very first clause of
section 2-1001(a), which states that “[a] substitution of judge in any civil action
may be had in the following situations.” 735 ILCS 5/2-1001(a) (West 2014).
Although Bowman initiated two lawsuits with distinct docket designations—by
filing a complaint in 2009 and then again in 2013 after the earlier suit had been
voluntarily dismissed—she had only a single cause of action against Ottney based
on his allegedly negligent medical treatment of decedent. See generally River Park,
Inc. v. City of Highland Park, 184 Ill. 2d 290, 309-10 (1998). Thus, our
interpretation is bolstered, rather than hindered, by the plain language of the statute.
¶ 23 We also reject Bowman’s contention that she is entitled to exercise the right to
automatic substitution in the 2013 suit because Illinois Supreme Court Rule 219(e)
provides a defendant with adequate protection against a plaintiff’s attempt to
“judge shop.” Rule 219(e) provides, in relevant part, as follows:
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“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).
¶ 24 We do not agree that Rule 219(e) can be read as a panacea that operates to
protect against the prohibited practice of “judge shopping.” Rather, it reflects this
court’s determination that, where a case has been refiled pursuant to section
13-217, it is not necessarily considered to be an entirely new and unrelated action
for all purposes. As such, Rule 219(e) is a formal recognition of the underlying
purpose of section 2-1001(a)(2)(ii) and is a logical extension of that statute and the
goals sought to be achieved by it.
¶ 25 In this case, Bowman had the opportunity to present a motion for substitution of
judge as of right during the proceedings on her 2009 complaint. For whatever
reason, she declined to exercise that right before Judge Overstreet ruled on
substantial issues in those proceedings. After he did so, Bowman lost her right to
seek a substitution of Judge Overstreet as a matter of right. The fact that she
voluntarily dismissed her complaint and refiled her claim against Ottney four
months later does not change that fact. Bowman cannot use the voluntary dismissal
and refiling provisions to accomplish in the 2013 suit what she was precluded from
doing in the 2009 suit. This is precisely the type of procedural maneuvering that
section 2-1001 is designed to prevent. Consequently, we reject Bowman’s assertion
that the circuit court did not have discretion to deny the motion for substitution of
judge under the circumstances of this case.
¶ 26 Also, we note that, even after Judge Overstreet ruled on matters of substance,
there was nothing preventing Bowman from seeking a substitution for cause under
section 2-1001(a)(3) in either the 2009 or the 2013 litigation. See In re Marriage of
O’Brien, 2011 IL 109039, ¶ 30; In re Marriage of Kozloff, 101 Ill. 2d 526, 532
(1984). However, substantiating such a petition is a heavy burden. Acceptance of
Bowman’s argument would allow a plaintiff to avoid satisfying that burden through
the mechanism of a voluntary dismissal and refiling, thereby thwarting the purpose
of the statute. This we cannot do.
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¶ 27 As a final matter, we observe that the parties have presented arguments relating
to the continued validity of the “test the waters” doctrine, which has been applied in
cases where no substantive rulings were made. Based on our decision set forth
above, that doctrine is inapplicable here and is not explicitly implicated in the
certified question. Accordingly, we need not address its validity in circumstances
that are not presented in this case.
¶ 28 CONCLUSION
¶ 29 For the reasons set forth above, we answer the certified question as follows: in a
case which previously had been voluntarily dismissed and then refiled, a trial court
has discretion to deny an immediately filed motion for 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, we affirm the judgment of
the appellate court and remand the cause to the circuit court.
¶ 30 Certified question answered.
¶ 31 Appellate court judgment affirmed.
¶ 32 Cause remanded.
¶ 33 JUSTICE KILBRIDE, dissenting:
¶ 34 Section 2-1001(a)(2) of the Code of Civil Procedure broadly grants all civil
litigants a right to “one substitution of judge without cause as a matter of right.” 735
ILCS 5/2-1001(a)(2)(i) (West 2014). In other words, the provision entitles every
civil litigant in Illinois to an absolute right to one substitution of judge without
cause. Consistent with this statutory prerogative, this court holds that the provisions
of section 2-1001 are to be liberally construed to promote rather than defeat the
right of substitution. In re Estate of Wilson, 238 Ill. 2d 519, 553 (2010).
¶ 35 The majority here, however, construes section 2-1001(a)(2) in a way to defeat
plaintiff’s right to a single substitution of judge. As explained below, this
construction is not supported by the plain language of the statute. Compounding its
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error, the majority declines to consider a critical issue implicated by the certified
question and fully briefly by both parties in this appeal—whether the “test the
waters” doctrine is still valid following the legislature’s significant revisions of the
substitution statute in 1993. Supra ¶ 27. For these reasons, I cannot join the
majority’s opinion and I respectfully dissent.
¶ 36 The majority effectively rewrites section 2-1001(a)(2) of the Code to create a
new requirement for a motion seeking substitution of judge in Illinois. Specifically,
the majority determines that the statute “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.” Supra ¶ 21.
Thus, the majority concludes that when a case has been voluntarily dismissed and is
subsequently refiled, the trial judge has discretion to deny immediately the motion
for substitution on the basis that the same judge made a substantive ruling in the
previously dismissed case. Supra ¶ 29.
¶ 37 The unambiguous statutory language of section 2-1001(a)(2) does not support
the majority’s construction. In fact, the provision contains absolutely no reference
to a prior voluntarily dismissed case, let alone condition the grant of substitution on
the nature of rulings in a previously dismissed case. Instead, section 2-1001(a)(2)(i)
unequivocally grants every civil litigant a statutory right to a single substitution of
judge without cause. 735 ILCS 5/2-1001(a)(2)(i) (West 2014). The provision
further mandates that the motion for substitution 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.”
735 ILCS 5/2-1001(a)(2)(ii) (West 2014). In relevant part, then, the only statutory
limitation on a civil litigant seeking a substitution of judge is the requirement that
the litigant files the motion for substitution before the judge enters any substantive
rulings in the case. 735 ILCS 5/2-1001(a)(2)(ii) (West 2014).
¶ 38 Here, plaintiff voluntarily dismissed her original medical malpractice action
against defendant (case No. 09-L-28). Subsequently, plaintiff timely refiled her
action (case No. 13-L-41) under section 13-217 of the Code (735 ILCS 5/13-217
(West 2014)). In Illinois, a case refiled under section 13-217 of the Code is
considered a new and separate action, not a reinstatement of the old action. Dubina
v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504 (1997).
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¶ 39 Although the same trial judge presided over both cases, the judge issued
substantive rulings only in case No. 09-L-28. It is undisputed that the judge did not
enter any substantive rulings in plaintiff’s refiled action, case No. 13-L-41. Simply
put, when plaintiff filed her motion for substitution in this case the trial judge had
not entered any substantive rulings in refiled case No. 13-L-41, “the case” for
purposes of section 2-1001(a)(2). See Dubina, 178 Ill. 2d at 504 (an action refiled
under section 13-217 of the Code is considered a new and distinct action not a
continuation of the prior action). Accordingly, under the plain meaning of section
2-1001(a)(2), plaintiff’s motion for substitution of judge should have been granted.
I believe the majority errs in reaching the opposite conclusion.
¶ 40 Unfortunately, the majority also declines to address the conflict in our appellate
court on whether the “test the waters” doctrine is valid in the context of section
2-1001(a)(2) of the Code. Supra ¶ 27. Without question, the doctrine is intertwined
with the certified question presented in this appeal. The appellate court below
disagreed on the doctrine’s application and viability, and the parties have fully
briefed the issue before this court. As the dissenting appellate court justice in this
case rightly observed, “[t]here is a clear disagreement among the appellate districts
on this issue, which should be determined by the supreme court.” 2015 IL App
(5th) 140215, ¶ 24 (Stewart, J., dissenting); see also Schnepf v. Schnepf, 2013 IL
App (4th) 121142, ¶¶ 28-30 (discussing the conflict in the appellate court on the
“test the waters” doctrine).
¶ 41 Although the majority does not address this controversy, I would adopt the
well-reasoned analysis of the Fourth District Appellate Court’s decision in Schnepf
to reject the “test the waters” doctrine. As the Fourth District concluded:
“The ‘test the waters’ doctrine was rendered obsolete 20 years ago by
introduction of the right to a substitution of judge without cause under the new
version of section 2-1001(a)(2). The doctrine not only does nothing to advance
the functioning of section 2-1001(a)(2), it affirmatively frustrates its purpose.
By inviting the trial judge to make the potentially nuanced, subjective
determination of whether he has tipped his hand at some point during the
proceedings, the doctrine undermines the movant’s right to have the fate of his
case placed in the hands of a different judge.” Schnepf, 2013 IL App (4th)
121142, ¶ 50.
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I agree completely with this rationale and would likewise reject the “test the
waters” doctrine here.
¶ 42 Indisputably, section 2-1001(a)(2) of the Code provides every civil litigant an
absolute right to “one substitution of judge without cause as a matter of right.” 735
ILCS 5/2-1001(a)(2)(i) (West 2014). The applicable provisions contain no
reference to a previously dismissed case, let alone condition a civil litigant’s
absolute right to substitution on the nature of rulings in a prior separate and distinct
action. Consistent with this unambiguous legislative pronouncement and this
court’s established policy to promote rather than defeat substitution (In re Estate of
Wilson, 238 Ill. 2d at 553), I would answer the certified question in this case to state
that a trial judge does not have discretion to deny immediately a motion for
substitution based on the fact that the same judge to whom the motion is presented
made substantive rulings in the previously dismissed case. Accordingly, I would
reverse the appellate court’s judgment.
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