In re Estate of Wilson ( 2010 )

Docket No. 108487.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re ESTATE OF MARY ANN WILSON (Arnetta Williams,
Appellant, v. Karen A. Bailey, Appellee).
Opinion filed October 21, 2010.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Justices Thomas, Kilbride, and Garman concurred in the judgment
and opinion.
Justice Freeman specially concurred, with opinion, joined by
Justice Burke.
Chief Justice Fitzgerald took no part in the decision.
OPINION
The issue in this case is whether a circuit judge who is the subject
of a petition for substitution for cause under section 2–1001(a)(3) of
the Code of Civil Procedure (735 ILCS 5/2–1001(a)(3) (West 2006))
must refer the petition to another judge for a hearing automatically,
upon the filing of the petition, even when the petition, on its face, fails
to comply with threshold procedural and substantive requirements. In
the matter before us, the circuit judge did not believe that automatic
referral was necessary in such circumstances and denied the motion
for substitution. The appellate court reversed and remanded in a
published opinion (389 Ill. App. 3d 771), expressly rejecting precedent
from other districts which held that the circuit court may evaluate the
sufficiency of a petition for substitution before referring it to another
judge for a hearing on whether cause for substitution exists. See In re
Estate of Hoellen, 367 Ill. App. 3d 240 (2006); Alcantar v. Peoples
Gas Light & Coke Co., 288 Ill. App. 3d 644 (1997). One justice
dissented, arguing that where a petition is insufficient on its face, the
statute does not require that it be automatically referred to another
judge for a hearing. We granted leave to appeal. 210 Ill. 2d R. 315. For
the reasons that follow, we reverse the appellate court’s judgment and
affirm the judgment of the circuit court.
BACKGROUND
The events giving rise to this appeal began in May of 2006, when
Isaac Heard, Sr., brother of Mary Ann Wilson (Mrs. Wilson), filed a
petition in the circuit court of Cook County pursuant to sections
11a–3 and 11a–8 of the Probate Act of 1975 (755 ILCS 5/11a–3,
11a–8 (West 2006)) alleging that Mrs. Wilson was a disabled person
and requesting that Arnetta Williams, one of Mrs. Wilson’s cousins,
be appointed guardian of her estate and person.1 At the time Heard
filed his petition, Wilson was 86 years of age. She is now 90.
Heard’s decision to initiate the guardianship proceedings was the
culmination of a series of events dating back to 2003, when social
service agencies began receiving requests to assist Mrs. Wilson with
various problems she was having, including the lack of heat in her
home and the need for assistance with bill paying, medication, meals
and home care. In early 2006, the City of Chicago Department on
Aging began sending a public health nurse to Mrs. Wilson’s home
after receiving a report that money was being taken from her. The
nurse, named Sherry Ponce De Leon, first visited the premises on
January 4, 2006. She performed a “well-being” check on Mrs. Wilson
and Wilson’s elderly companion, a man named Clifford Service. Based
on her observations, nurse Ponce De Leon recommended that the
1
Heard resided in North Carolina. Williams subsequently replaced him as
petitioner. See In re Estate of Williams (Williams I), 373 Ill. App. 3d 1066,
1067 n.1 (2007).
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couple undergo competency evaluations by a doctor specializing in
gerontology.
Over the next four months, the Department on Aging received
more than 20 additional calls and reports concerning the welfare of
Mrs. Wilson and Mr. Service. Arnetta Williams, Mrs. Wilson’s cousin,
visited Wilson’s home on April 15, 2006, and found that she had been
abandoned, left in feces, unable to walk or talk, and in a state of
starvation. Williams relayed her discovery to Mr. Heard, Mrs.
Wilson’s brother, so that he would be aware of the situation.
On May 3, 2006, the Department on Aging and Williams both
contacted nurse Ponce De Leon with a report that Mrs. Wilson and
Mr. Service were locked in Wilson’s house. When Ponce De Leon
reached the house, she was met by Williams, two uniformed police
officers, and a certified nursing assistant from the United States
Department of Veterans’ Affairs (the VA). The nursing assistant
reported that neither Wilson nor Service had their medication. While
nurse Ponce De Leon noticed that there was food in the house, she
observed that both Wilson and Service appeared frail and confused
and were not oriented to date and place. The two complained that
they had not received medical care and that someone was taking their
pension checks.
Mr. Service was able to leave the house on his own. Mrs. Wilson
required assistance from nurse Ponce De Leon, the VA nursing
assistant, and one of the police officers. Nurse Ponce De Leon drove
the two to the Saints Mary and Elizabeth Medical Center in the City
of Chicago, where they were examined.2 A physician advised nurse
Ponce De Leon that Mrs. Wilson had a heart murmur and was
dehydrated. Mr. Service was also dehydrated. Both received fluids
intravenously and both were eventually admitted to the hospital. Mrs.
Wilson was diagnosed with failure to thrive, aphasia (the inability to
communicate through speech), organic brain syndrome and
abandonment. She remained at the hospital for a month.
Five days after Wilson and Service were hospitalized, Mr.
2
This facility has two campuses. There is some discrepancy in the record
as to which of the two facilities initially treated Wilson and Service. That
question, however, is not material to the litigation.
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Service’s son, David, petitioned the court to adjudge Mrs. Wilson a
disabled person and to appoint him as her plenary guardian. That
petition, which was later dismissed, was followed by the guardianship
petition filed by Mrs. Wilson’s brother, Mr. Heard. As noted
previously, it was Heard’s petition which gave rise the proceedings
currently before us.
Upon the filing of Mr. Heard’s petition, the circuit court appointed
Sandra Thiel to serve as Mrs. Wilson’s guardian ad litem. The court’s
order directed the guardian ad litem to interview Wilson, advise her
of her rights under section 11a–11 of the Probate Act (755 ILCS
5/11a–11 (West 2006)), and to attempt to ascertain Wilson’s views
regarding the adjudication of disability, the proposed guardian, and
various other matters relevant to the guardianship.
The guardian ad litem reported to the court the circumstances of
Mrs. Wilson’s admission to the hospital. She also related her
impressions of Mrs. Wilson based on a personal interview. She
described Mrs. Wilson this way:
“very frail, thin and weak. She did not know where she was,
her address, if she ever had any children, why she was in
hospital, how she got there, her age, date of birth, or what
medication she was taking.”
The guardian ad litem reported that a psychological evaluation had
described Mrs. Wilson as
“oriented only to name, cannot give her medical history, her
face is expressionless, concentration impaired; impression:
organic brain syndrome with agitation.”
According to the guardian ad litem, Mrs. Wilson was also diagnosed
by a specialist with a probable urinary tract infection. The hospital
physician treating her opined that she required 24-hour nursing care.
In the course of her investigation, the guardian ad litem
discovered that Mrs. Wilson had apparently signed powers of attorney
for both health care and finance prior to her hospitalization. The
documents designated a woman named Karen Bailey as Mrs. Wilson’s
agent. Bailey’s relationship to Mrs. Wilson was initially unknown, and
the guardian ad litem recommended that the powers of attorney be
temporarily suspended.
Following receipt of the guardian ad litem’s report, the circuit
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court conducted a hearing on May 15, 2006, at which the guardian ad
litem and Arnetta Williams each appeared. At the conclusion of the
hearing, the court entered an order appointing Arnetta Wilson
temporary guardian of Mrs. Wilson’s estate and person to pursuant to
section 11a–4 of the Probate Act (755 ILCS 5/11a–4 (West 2006)),
and granting her authority to arrange for Mrs. Wilson’s medical care
and placement in a nursing home, to investigate Wilson’s financial
circumstances and mail, to investigate the powers of attorney
discovered by the guardian ad litem, and to obtain access to Wilson’s
medical records. The court also suspended, until further order, the
powers of attorney naming Bailey as Mrs. Wilson’s agent and
authorized Williams to collect from Karen A. Bailey a signature stamp
bearing Mrs. Wilson’s name.
The record shows that at the time of these events, Karen Bailey
was employed as executive secretary for a member of the Cook
County board of commissioners. Bailey claimed that the health care
and finance powers of attorney naming her as Mrs. Wilson’s agent
were executed by Mrs. Wilson in Bailey’s employer’s office on
January 16, 2004. The record also contains a will, purportedly
executed by Mrs. Wilson on the same date, which named Bailey as the
executor of Wilson’s estate and left to Bailey Wilson’s entire estate.
It was eventually discovered that the dates on the documents were
fraudulent. Email records obtained by subpoena and admitted into
evidence established that the power of attorney and will forms were
actually purchased by Bailey, online, from a company called Legacy
Writer, Inc., in 2006. Bailey bought and downloaded the forms no
earlier than February 6, 2006, more than two years after Bailey claims
Wilson signed them. It appears from the record that they may not
actually have been obtained by her until April 20, 2006, just weeks
before these proceedings commenced.
Bailey’s misconduct was brought to the attention of prosecutors,
who initiated criminal proceedings against her. As a result of her
wrongdoing with respect to Mrs. Wilson and Mrs. Wilson’s finances,
Bailey was ultimately convicted of multiple felony counts of theft (720
ILCS 5/16–1(a) (West 2006)) and financial exploitation of an elderly
person (720 ILCS 5/16–1.3(a) (West 2006)). Bailey was sentenced to
11-year sentences on each of six counts (the court vacated judgment
on two additional counts), the sentences to run concurrently. She is
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currently incarcerated at the Illinois Department of Corrections’
Decatur Correctional Center.3
Shortly after the court entered its rulings on May 15, 2006, Bailey
retained counsel, who filed a combined “emergency motion to vacate
order of temporary guardian for disabled person and estate” and
motion for “injunctive relief and accounting.” The motion asserted,
inter alia, that complaints regarding Bailey’s treatment of Mrs. Wilson
were unfounded and that the real culprit, if there was one, was
Williams herself. Specifically, the motion intimated that, after being
named Mrs. Wilson’s temporary guardian, Williams may have acted
improperly with respect to $200,000 in cash Mrs. Williams allegedly
kept in her home.4
Bailey’s motion took issue with respect to Williams’ actions with
regard to Clifford Service, the elderly man with whom Mrs. Wilson
was living at the time Wilson was hospitalized. The reason Bailey
professed an interest in Mr. Service is that Service was the father of
David Service, whom she had recently married. Bailey complained
that Williams, in her capacity as temporary guardian, had dispossessed
Mr. Service from Wilson’s home when she had no right to do so.
Williams, through her attorney, filed objections to Bailey’s
motions, denying her claims and contending that Bailey was guilty of
unclean hands and had committed deliberate and willful malfeasance
“in total disregard of [her] fiduciary obligations to [Mrs. Wilson].”
Bailey, in turn, moved to amend her motions in order to challenge, on
procedural grounds, the validity of Thiel’s appointment as guardian ad
litem and Williams’ appointment as temporary guardian.
The court conducted a hearing on various outstanding matters on
June 8, 2006. By the time the hearing commenced, Mrs. Wilson had
been transferred to a nursing home known as Halsted Terrace.
Williams advised the court that Wilson’s mental and physical health
3
Because of the felony convictions, Baily will no longer be eligible to serve
as executor of Wilson’s estate following Wilson’s death. See 755 ILCS
5/6–13(a) (West 2006).
4
Bailey never attempted to substantiate her initial charges against
Williams, and the record contains nothing which suggests that Williams
engaged in any form of wrongdoing.
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had improved and that she was receiving occupational and physical
therapy. Williams was pleased with Wilson’s progress.
The court then asked Williams if she had been able to discover
anything about Wilson’s assets. Williams reported that she had
secured Wilson’s home and, within two days of her appointment as
temporary guardian, had changed the locks to prevent entry by
others.5 Williams described the premises as “dirty, stinky” with a fly
problem that had not been present earlier. She also noted that some
paperwork which had been missing earlier had returned.
Williams told the court that in the course of her investigation, she
had “discovered some very disturbing things.” Chief among these was
that a substantial account maintained by Wilson at a bank had been
emptied by Bailey. The account originally included $187,000. Bailey
had withdrawn $25,400 of that in August of 2005 and deposited it in
her personal account at a credit union. Three months later, Bailey
moved the remaining balance to an account at a different bank. The
account retained Wilson’s name, but Bailey ultimately withdrew all
but $3,000 of it.
Following Williams’ testimony, the court gave Bailey’s attorney
an opportunity to present his views on the case. The lawyer did not
address the substance of Williams’ contentions. His position was that
the court’s actions were tantamount to termination of his client’s
authority under the powers of attorney executed by Mrs. Wilson and
that the termination had not been conducted in accordance with
statutorily required procedures. Without proper termination, Bailey’s
counsel argued, the court lacked jurisdiction to appoint Williams as
guardian and Thiel as guardian ad litem. Bailey’s lawyer further
asserted that a separate hearing should be conducted to ascertain
whether his client had acted in Mrs. Wilson’s best interests. He also
claimed that his client had not received adequate notice.
Notwithstanding his challenge to the court’s authority to proceed,
Bailey’s lawyer allowed the court to question Bailey, under oath,
regarding the financial concerns raised by Williams. Bailey testified
5
The record shows that between the time Mrs. Wilson and Mr. Service
were taken to the hospital on May 3 and the time Williams was able to
change the locks approximately two weeks later, the only people with access
to the premises were Bailey and David Service.
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that when she first took charge of Mrs. Wilson’s assets in January of
2004, the value of Wilson’s estate may have been in excess of
$200,000, although she was not sure. On further questioning, she
stated that the value may have been $250,000.
Bailey stated that Mrs. Wilson owned the home in which she and
Service had been living and that the home had an estimated value of
$45,000.6 Bailey assumed responsibility for seeing that Wilson’s bills
were paid on time. She advised the court that the bills were all paid
and were never in arrears.
According to Bailey, Mrs. Wilson had married Mr. Service,
Bailey’s father-in-law, in 2005. Bailey claimed that Mrs. Wilson had
actually lived with her father-in-law for 15 years prior to the marriage.
After the point was raised by Williams, Bailey did not explain why no
one in Mrs. Wilson’s family knew of the marriage. No documentation
of the marriage was ever adduced.
When asked about Mrs. Wilson’s mental state, Bailey indicated
that she had been responsible for taking Mrs. Wilson to the doctor.
Bailey initially claimed that no one had suggested that Mrs. Wilson
was suffering from dementia until January of 2006, when a doctor
allegedly advised her that Wilson had dementia, but that the dementia
was slight and simply “all part of being old.” Later, Bailey indicated
that an employee from the Department of Aging had told her about
Wilson’s dementia in November of 2005. When confronted with the
fact that Mrs. Wilson had actually been diagnosed as suffering from
severe dementia, Bailey claimed that this was the first she had heard
of it.
The court next asked Bailey about the withdrawals from Mrs.
Wilson’s accounts. Bailey stated that she had made the $25,400
withdrawal in November of 2005 because Mrs. Wilson and Mr.
Service had asked her to do so. According to Bailey, Wilson and
Service had put the money in a box in the closet of Wilson’s home
because neither one of them believed in banks. Bailey described the
box as “a lock box from a safe-deposit” and stated that it already
contained approximately $50,000 at the time of she added the $25,400
from the withdrawal. Bailey said that during the previous 10 years, she
6
The value of Wilson’s home was ultimately determined to be significantly
greater than this estimate.
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had frequently checked the contents of the box to make sure it was
safe.
According to Bailey, approximately $151,000 was left in the bank
account after the $25,400 withdrawal. Bailey testified that Mrs.
Wilson directed her to close the account because Mrs. Wilson “had
started getting disturbing phone calls from her nephew in California.”
Bailey stated that she took the account balance, in cash, and put it in
the same box in Wilson’s closet containing the other money.
Bailey told the court that Mrs. Wilson always carried $10,000 in
her purse. When the court questioned whether Bailey’s oversight and
disposition of Mrs. Wilson’s funds was appropriate for a power of
attorney, Bailey stated that she could only go by the instructions Mrs.
Wilson gave her and denied that Mrs. Wilson was suffering from
dementia at the time the withdrawals were made.
Bailey stated that the last time she checked the box in Mrs.
Wilson’s closet was May 1, 2006, before Mrs. Wilson and Mr. Service
were removed from the house. She claimed that aside from an
employee of the Department on Aging, the only persons who knew of
the box in the closet were her and a caretaker who was sent by the VA
to look after Mr. Service. According to Bailey, the closet was locked
and the caretaker was never on the premises when she or her husband
was not also present.
The court next asked those present in the courtroom whether
anyone had any idea where Mrs. Wilson’s money was. Bailey stated
that “[t]he last time it was in the closet.” Williams and the guardian ad
litem pointed out, however, that numerous checks drawn on Mrs.
Wilson’s funds had been made payable to Bailey and negotiated by
her. These included a check dated August 12, 2005, for $7,500, a
check dated August 16 for $3,000, a check dated August 30 for
$1,000, a check dated September 8 for $2,000, a check dated October
17 for $7,500, and another check from October in the amount of
$3,000. According to Bailey, these sums were used to build an
addition on her own home and to have the home rewired in
anticipation of having Mrs. Wilson move in with her. When asked why
the checks were not made payable to the vendors, Bailey explained
that “they take cash.”
The court expressed doubt about Bailey's testimony that Wilson
was first diagnosed with slight dementia in January 2006, stating: “So
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you’re telling me she was not diagnosed with dementia until January
of ’06? You’re telling me this under oath,” and “It’s unusual, I mean,
it could happen from January to May [between the purported
diagnosis and Heard’s petition for disability], four months’ time
dementia goes from slight to severe.”
After Bailey testified that the $25,400 was added to $50,000
already in the box and repeated that she acted only in accordance with
Wilson’s direction, the court remarked, “The concept of POA [power
of attorney] seems to be lost on you.” When Bailey testified that the
remaining $151,000 in the investment account was subsequently
withdrawn and placed in the box, the court told Bailey’s attorney, “I
don’t know how you can ever argue this is appropriate activity by any
Power of Attorney.”
When Bailey insisted she could “only go by the direction,” the
court remarked that “[t]aking direction from your demented principal”
is “not what the Power of Attorney does.” Bailey stated she “checked
this box all the time to make sure that [the] money was still there” and
had last looked in it on May 1, which was just before Wilson and
Service were transported to the hospital on May 3. She also testified
that the part-time caretaker “knew nothing about the money” and that
the box was kept in a locked closet. When Bailey stated she was
“there all the time when the caretaker was there” and David
interjected that he was usually there as well, the court responded,
“Folks, I don’t believe that.”
During the court’s examination of Bailey, Williams commented
that the family was never notified that Wilson and Service had been
married in 2005 and she twice remarked that she was “very
concerned” by Bailey's depletion of Wilson's assets. The guardian ad
litem added, “We have a lot of checks endorsed and deposited in
various places.” Bailey's attorney countered that it was not unheard of
for a person to distrust banks and keep large sums of money at home,
and the court responded, “If a person who is without disability wants
to keep cash in the house go right ahead, but if you're acting as an
agent or Power of Attorney, I think that's questionable.”
After examining Bailey, the court asked if Williams wanted to file
a written response to Bailey's emergency motion for a temporary
restraining order, and Williams' attorney declined. The proceedings
continued:
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“[Williams’ attorney]: We can’t operate with this Power
of Attorney with this lady having control of the funds and
person[ ].
THE COURT: [Bailey’s] request for TRO is denied.
[Williams’ attorney]: Thank you.”
This ruling left open the portion of the motion seeking to vacate
the appointments of a guardian ad litem and temporary guardian and
thus restore Bailey’s authority under the powers of attorney. The
proceedings continued:
“THE COURT: All right. So let's move along here. We
need an accounting from your client.
[Ms.Bailey]: I would not have wrote–
[Bailey’s attorney]: Are you denying it without a hearing
on it?
THE COURT: I’ve had her under oath for how long now?
You want someone to be reinstated who can't even identify
where $120,000 is?
***
It’s appealable if you want to take it up. Do you want to
further argue it? Counsel, you want me to reinstate a Power
of Attorney. That would be ridiculous for this Court to
reinstate a Power of Attorney where I have a very strong
suggestion that hundreds of thousands of–
[Ms. Bailey]: I would not have wrote checks in my name
if I was trying to do anything [improper]. I can only go by
what [Wilson] was telling me. I can only– they’re not showing
you where all her bills had to be paid.
THE COURT [to Bailey’s attorney]: At some point maybe
she will account for every penny, that could possibly be, ***
that could happen, but until I get an accounting for every
penny, maybe everything she says is true, all the money can be
accounted for, but if it can’t be, I will be remiss to allow her
to go back to control her money at this point, okay.
[Bailey’s attorney]: *** I will discuss that with my client
to see whether she wants to exercise her rights in that regard.
THE COURT: Again, I need an accounting from your
client. So this Court is demanding an account[ing] on the
Power of Attorney.”
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Before concluding the hearing, the court allowed the parties to
address the question of Mr. Service, Bailey’s father-in-law. Williams
asserted that Service’s alleged marriage to Mrs. Wilson was a sham,
arguing that neither Mrs. Wilson nor Mr. Service had the capacity to
enter into a marriage contract. She also disputed Bailey’s claim that
Mr. Service had resided with Mrs. Wilson for 15 years, pointing out
that he owned his own home.
Bailey professed concern that Mr. Service “has nowhere to go.”
The court asked why Mr. Service could not live with her or in his own
home. Bailey explained that Service did not want to live with her and
her husband and represented that his own home had been vacant for
over a decade, a claim which Williams disputed.
In the course of the proceeding, Bailey advised the court that Mr.
Service was currently living in a nursing home. There being no
indication that he could not continue to live there during the pendency
of the proceedings, the court took no further action regarding his
placement.
At the conclusion of the hearing, the court entered a written order
denying the emergency injunctive relief Bailey had requested to
terminate the appointment of Williams as temporary guardian and the
appointment of Theil as guardian ad litem and to permit Bailey to
continue to exercise her powers of attorney. In a separate order filed
the same day, the circuit court ordered Bailey to file an accounting by
June 27, 2006. The court also granted the guardian ad litem leave to
file an emergency petition for revocation of Bailey’s authority as Mrs.
Wilson’s agent and for an accounting.
The guardian ad litem’s emergency petition alleged that Mrs.
Wilson lacked the capacity to make any personal or financial decisions
on her own and that Bailey had not acted for Mrs. Wilson’s benefit.
The petition was supported by a report from Mrs. Wilson’s physician,
who stated that Mrs. Wilson suffered from severe dementia and was
totally incapable of caring for herself or her affairs.
The June 27 deadline set by the court for filing of an accounting
came and passed, but Bailey filed no accounting. Instead, she moved
for leave to amend her emergency motion to vacate the order
appointing a temporary guardian and for other injunctive relief and an
accounting. She also moved to dismiss the guardian ad litem’s
emergency petition to revoke her authority as agent for Mrs. Wilson
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and for an accounting.
Supplemental pleadings filed by Bailey indicated that after the
previous court hearing, she had been permitted to reenter Mrs.
Wilson’s home, accompanied by police, to determine whether the cash
she described as having been stored in the lock box was still on the
premises. When the money could not be located, it was reported as
stolen.
Another hearing was convened by the court on June 29, 2006. At
the court’s request, Williams reported that Mrs. Wilson was still at the
Halsted Terrace nursing home. She continued to receive physical and
occupational therapy. Her mobility had improved and she was able to
make a specific food request, for apple pie. Williams reported that she
was able to visit Wilson “at least five days out of seven,” and that she
was delighted with Wilson’s progress.
After hearing complaints by Bailey that she had not been permitted
to visit Mrs. Wilson, the court admonished the parties that it had not
ordered any restrictions on visitation and that if such restrictions were
desired, the temporary guardian would have to specifically request
them from the court.
The court next proceeded to the question of the accounting.
Bailey’s attorney advised the court that he had not been able to
communicate effectively with his client on the subject and that
materials she had compiled were not in proper form. In addition, he
asserted that the documents Bailey would need to complete a proper
accounting were still in Mrs. Wilson’s house, possession of which had
been taken over by Williams. The hearing also included a discussion
by the parties regarding the status of Mr. Service, Service’s lack of
any ownership interest in Wilson’s home, the home’s condition, and
the status of various outstanding requests for relief.
Another hearing was conducted the following week, on July 5,
2006. At the conclusion of that hearing, the court entered orders
finding that Mrs. Wilson was “demented and unable to care for
herself” and appointing Williams as plenary guardian of Mrs. Wilson’s
person and estate; denying most of the injunctive and other relief
sought by Bailey and setting any remaining requests for relief for a
status hearing; continuing the suspension of Bailey’s authority under
the powers of attorney; allowing replacement counsel to file a
supplemental appearance on Williams’ behalf; and ordering Bailey to
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file a proper accounting on or before July 21, 2006.
Before this next accounting deadline was reached, Bailey filed an
interlocutory appeal. The basis for her appeal was her claim, asserted
earlier, that the circuit court had lacked jurisdiction to suspend her
powers of attorney and appoint a temporary guardian and guardian ad
litem. The appellate court unanimously rejected this jurisdictional
challenge. It further held that circuit court had correctly denied
Bailey's motions for a temporary restraining order and preliminary
injunction “because she did not and could not articulate the required
elements for such relief.” Wilson I, 373 Ill. App. 3d at 1077. It
therefore affirmed the judgment of the circuit court.
Proceedings in the circuit court were not stayed during the
pendency of the appeal, and the litigation continued as the
interlocutory matters were under review. On September 6, 2006,
counsel for Wilson took Bailey’s deposition. In the course of that
deposition. Bailey admitted taking a total of $42,500 from Wilson for
the addition on her own home, a project she had mentioned
previously. She further testified that she had used Wilson’s funds to
buy a stove and refrigerator, pay her cell phone bill and auto insurance
premiums, pay attorney fees for her divorce,7 pay real estate taxes for
property in Kankakee owned by her husband’s family, purchase a
truck for her husband, and cover the funeral expenses of her
husband’s stepbrother. Bailey testified that Wilson’s money was also
used to purchase a television and more than $10,000 worth of
furniture, to buy clothing, and to pay for such things as a traffic ticket,
auto body repairs, and a motel room in Minnesota.
Bailey identified some expenses she attributed to the care of Mrs.
Wilson and the maintenance of Wilson’s home, but these were modest
and none were documented by her at the deposition. Bailey could not,
in fact, substantiate any of the payments she had made with Wilson’s
funds. Indeed, with a few limited exceptions, she was unable to even
recall when and to whom Wilson’s money had been disbursed.
Within 48 hours of giving her deposition, Bailey filed an amended
emergency motion to vacate the court’s initial May 15 order
7
The divorce enabled her to marry Mr. Service’s son, David. That marriage
occurred sometime after the date when, she claimed, Mr. Service married
Mrs. Wilson.
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appointing Thiel as guardian ad litem and Williams as temporary
guardian. Shortly thereafter, Bailey also filed a motion to compel
Williams to grant her permission to visit Mrs. Wilson outside of
Williams’ presence and supervision.
While these matters were pending, Williams petitioned for
approval from the court to sell Mrs. Wilson’s home. According to the
petition, Wilson was now in the South Shore Nursing and
Rehabilitation Center, it was unlikely she would ever be able to live
independently again, the house was vacant, her liquid assets had been
depleted, and proceeds from the sale were necessary to pay her
current and future expenses.
In addition to seeking permission to sell the house, Williams
sought leave to file, instanter, an inventory of Wilson’s estate. The
inventory showed that $7,732.36 remained in Wilson’s bank accounts
and that she owned a 10-year-old automobile valued at $3,300.
Wilson received approximately $18,516 per year in United States Civil
Service retirement benefits and $15,345 in Railroad Retirement
Benefits payable to her as the widow of Charles Wilson, her deceased
husband.8 In addition, Williams indicated that Wilson had a possible
cause of action against Bailey for recovery of her property.
On September 13, 2006, the circuit court entered an order
granting Williams’ motion for leave to file the inventory instanter,
permitting Williams to file her request to list the house for sale and
setting that matter for a status hearing on October 17, 2006. The
court also set for a status hearing on October 17 the matter of the
accounting Bailey had been ordered to provide, a petition for fees filed
by the guardian ad litem, and the question of Bailey’s request for
unsupervised visitation with Mrs. Wilson. In addition, the court ruled
that Bailey’s attorney would be permitted to review documents under
Williams’ control at the office of Williams’ lawyer on September 18,
2006.
Shortly thereafter, Williams brought a citation proceeding
8
The existence of these Railroad Retirement benefits was cited as further
support of the claim that Wilson would not knowingly have married Mr.
Service. Evidence presented in the trial court indicated that when she was
still competent, Wilson understood that if she remarried, the Railroad
Retirement benefits would cease.
-15-
pursuant to section 16–1 of the Probate Act (755 ILCS 5/16–1 (West
2006)) alleging that Bailey had depleted Mrs. Wilson estate by
approximately $313,610 while acting as her agent under the powers
of attorney and that more than $295,000 of that sum was used by
Bailey to enrich herself. The citation petition was supported by
Bailey’s deposition and a detailed list of checks written or cashed by
Bailey using Wilson’s bank accounts, cross-referenced with Bailey’s
deposition responses. According to these documents, Bailey was
responsible for spending a total of $297,708.95 of Wilson’s money for
purposes that Bailey could not show were related, in any way, to
Wilson or her care. Williams asked that the court require Bailey to
provide for a complete accounting of all the funds she had received
from Wilson after exercising authority under the powers of attorney,
that it order Bailey to “provide full and complete records to trace the
disbursement and distribution of all [such] funds from date of receipt
to present,” and that it enter an order enjoining Bailey from disposing
of her own money, accounts, or property during the interim. A
separate motion for preliminary injunctive relief aimed at freezing
Bailey’s assets was filed by Williams on October 17.
Contemporaneously with the citation proceeding, Williams filed
her response to Bailey’s amended emergency motion to vacate. She
also made a formal motion to revoke Bailey’s powers of attorney
pursuant to section 2–10 of the Durable Power of Attorney Law (755
ILCS 45/2–10 (West 2006)).9 In addition, Williams asked that Mrs.
9
In circumstances comparable to those present here, our appellate court has
held that a trial court’s decision to appoint a plenary guardian constitutes an
implicit revocation of an existing power of attorney pursuant to section 2–10
of the Illinois Power of Attorney Act (755 ILCS 45/2–10 (West 2006)).
Based on this reasoning, the appellate court rejected an argument that an
order appointing a guardian is void where a prior power attorney has not
been formally set aside. See In re Estate of Doyle, 362 Ill. App. 3d 293, 299
(2005). When Bailey attempted to assert a voidness challenge similar to the
one rejected in In re Estate of Doyle, Williams countered with a citation to
that case. Rather than rest her position on that authority, however, she
elected to also file pleadings requesting express revocation of Bailey’s
powers of attorney. Her purpose in seeking express revocation was to “avoid
the opportunity for further redundant motion practice.”
-16-
Wilson’s supposed marriage to Mr. Service be declared invalid. As she
had earlier, Williams argued that at the time the marriage was claimed
to have occurred, neither Wilson nor Service was competent to enter
into a marriage contract.
As we have indicated, the circuit court had scheduled a hearing on
various pending matters for October 17, 2006. On the eve of that
hearing, Bailey filed a series of papers with the court, including a
document entitled “Motion for Substitution of Judge.” Although not
specified in the document itself, Bailey subsequently indicated that it
was predicated on section 2–1001(a)(3) of the Code of Civil
Procedure (735 ILCS 5/2–1001(a)(3) (West 2006)), which governs
motions for substitution of judges, for cause, in civil actions pending
in the circuit court. That statute provides, in part, that
“[e]very application for substitution of judge for cause
shall be made by petition, setting forth the specific cause for
substitution and praying a substitution of judge. The petition
shall be verified by the affidavit of the applicant.” 735 ILCS
5/2–1001(a)(3)(ii) (West 2006).
Bailey’s motion did not seek to bar the trial judge from all
participation in the case. It merely asked that “the motion to revoke
powers of attorney” be transferred for a hearing before a different
judge. As grounds for that motion, Bailey asserted that the trial judge
had indicated that “she did not believe Karen Bailey” after questioning
her on matters “of an adverse nature” at the June 8, 2006, hearing.
According to the motion, it was Bailey’s belief that the judge “would
be predisposed not to believe her at a hearing on the pending motion
of Arnetta Williams to revoke the powers of attorney and [that she]
would not receive a fair and impartial hearing.” The motion was
signed by Bailey and Bailey’s lawyer in their capacity “as Agent of the
Power of Attorney.” It was not verified by affidavit or otherwise.
Approximately two weeks later, on November 2, 2006, Bailey
filed a document labeled “amended motion for reassignment of case.”
It included no substantive allegations regarding the basis for the
motion. It merely stated that Bailey “has filed a Motion for
Substitution of Judge” and that “735ILCS 5/2–100(iii) [sic] provides
that ‘*** upon the filing of a petition for substitution of judge for
cause, a hearing whether the cause exists shall be conducted as soon
as possible by a judge other than the judge named in the petition
-17-
***.’ ”
Williams filed a response to Bailey’s motion to substitute which
included a summary of the case, a transcript of the June 8, 2006,
hearing, and an overview of the applicable law. Based on these
materials, Williams argued that Bailey’s request for substitution
should be denied because: (1) it was not asserted until over four
months after the events on which it was based, (2) it was filed without
the statutorily required verification, (3) the bias or prejudice it claimed
did not stem from an extrajudicial source and was therefore
insufficient, as a matter of law, to justify a substitution of judge, and
(4) Bailey waited to file it until the day numerous pending matters
were scheduled for a hearing and it is “nothing more than a
transparent attempt to delay the proceedings with the ancillary goal of
engaging in a little judge shopping.”
After Bailey filed a written reply to Williams’ response, the circuit
court held a hearing on the matter. Bailey, the appellant in the
appellate court, failed to include either a transcript or bystander’s
report of that hearing in the record on appeal. The record shows only
that after the hearing, the circuit court entered a written order denying
Bailey’s motion.
Various proceedings followed. Williams sought and was granted
leave to sell Mrs. Wilson’s home, the only remaining thing of
significant value in Wilson’s estate, in order to pay Wilson’s current
and future expenses. Williams was also authorized to initiate
annulment proceedings, and the marriage between Wilson and Service,
if one ever took place, was ultimately annulled by court order under
a separate docket number. The attorney for Williams, Wilson’s
plenary guardian, filed two requests for attorney fees and expenses,
both of which were allowed. The court also awarded fees to the
guardian ad litem. In addition, the court permitted Mr. Service to visit
her.10
On November 20, 2006, the judge commenced a hearing on
Williams’ formal motion to revoke Bailey’s powers of attorney and on
Williams’ demand that Bailey provide an accounting. The hearing took
place over approximately 10 days between November 20, 2006, and
March 29, 2007. During the course of the hearing, testimony was
10
The record suggests that Mr. Service in now deceased.
-18-
presented by Bailey;11 Donald Devitt, an employee of an organization
known as Metropolitan Family Services; David Service; Williams;
nurse Ponce De Leon; and Charlene Valentine, an employee of the
Department of Aging.
Bailey’s testimony, though extensive, shed little additional light on
what she had done with Mrs. Wilson’s money after withdrawing it
from Wilson’s accounts. Much of what she had to say paralleled
evidence submitted earlier, e.g., that she had used substantial sums for
improvements to her own home, for funeral expenses for one of her
husband’s relatives, to purchase a truck for her husband, and to pay
for her own taxes, insurance, attorney fees for her previous divorce,
and other expenses. She admitted using Mrs. Wilson’s money to buy
herself a Chrysler PT Cruiser automobile, which she later traded for
a Mercedes, and explained that $1,200 was paid to her boss because
her boss had previously advanced funds to help pay for her husband’s
relative’s funeral. In addition, more than $200,000 was withdrawn by
Bailey from Mrs. Wilson’s accounts and could not be traced at all. In
most cases, Bailey simply claimed that she had no recollection of what
she had done with the money, including $85,000 withdrawn on a
single day in January of 2006.
Following Bailey’s testimony, including her cross-examination, the
proceedings adjourned. They did not resume for approximately two
months. At that time, counsel for Bailey was granted leave to
withdraw and was replaced by successor counsel, who filed a jury
demand, which was denied. Successor counsel also attempted,
unsuccessfully, to raise various issues pertaining to the guardian’s
petition for fees and expenses and whether a need remained for the
guardian ad litem.
When the proceedings resumed, Bailey was recalled to the stand
to give rebuttal testimony. Her new lawyer elicited from her that when
she first began working for the Cook County board of commissioners,
11
Although Bailey previously stated that she was married to Mr. Service’s
son, David Service, she identified herself at this hearing as Karen Bailey
Arnold. She did not explain the new name. During the hearing on the motion
to revoke her powers of attorney, she indicated that she had separated from
David and was in the process of getting a divorce from him, but since the
divorce was not finalized, she could not yet have legally remarried.
-19-
she had undergone criminal background checks and checks for drug
use and that everything came out fine. Bailey recounted how she had
first met Wilson and stated that her husband’s father, Mr. Service, had
been best friends with Wilson’s husband, who was now deceased.
According to Bailey, Service came to live with the Wilsons when Mr.
Wilson was ill and continued to live at Mrs. Wilson’s house following
Mr. Wilson’s death. Bailey stated that she had known Mrs. Wilson for
approximately a dozen years and had begun acting under a power of
attorney from her in 2004.
Bailey described how the powers of attorney were executed by
Mrs. Wilson in her boss’ office in the presence of “at least 5 or 6
people.” She asserted that money in Wilson’s possession had actually
come from Mr. Service and the estate of Service’s deceased wife. She
stated that she, Bailey, was not a wealthy woman. Notwithstanding
her previous testimony regarding, e.g., the substantial home
improvements she had paid for in cash, she claimed she had not made
any large cash purchases in the past two years. In response to
questioning regarding her inability to produce receipts related to
expenditures she claimed to have made on Mrs. Wilson’s behalf,
Bailey asserted that the receipts had been kept in a box at Wilson’s
house and that the box had been stolen, along with cash and items of
personal property.
Following Bailey’s rebuttal testimony, her lawyer called as a
witness Donald Devitt. Devitt testified that he is an elder abuse case
worker for Metropolitan Family Services and that his duties include
responding to reports of abuse, neglect, and exploitation of elderly
persons. Devitt testified that he visited Mrs. Wilson’s home on five
occasions between January and March of 2006 in response to
complaints that Bailey and David Service were abusing Mr. Service.
The days he visited, he found conditions in the home to be safe and
sanitary and observed adequate food on the premises.
Most of Mr. Devitt’s contact was with Mr. Service. He had little
direct communication with Mrs. Wilson during his visits to her home.
When he attempted to speak directly to Mrs. Wilson, Mr. Service
would typically answer for her. Devitt testified that he did not
complete his investigation because he was never able to obtain a full
financial accounting. He stated, however, that he observed no signs
that Mrs. Wilson had been physically abused and that when he spoke
-20-
to her at the hospital after her removal from the house, she appeared
coherent. He also expressed the opinion that Wilson and Service
“appeared well cared for [and] had the necessities for daily living.”
Following Devitt’s testimony, Bailey’s attorney called David
Service as his next witness. David testified that he is a professional
musician and had just performed with Bailey’s boss, who is also a
professional musician. David stated that in addition to being a
musician, he trains horses and is licensed to buy and sell them. When
asked whether he and Bailey were in the process of getting a divorce,
as Bailey had claimed, he denied it.
David related that he has known Mrs. Wilson since he was a child.
He backed Bailey’s claim that his father and Mrs. Wilson had lived
together for many years and had married within the last two years.
David testified that his father and Mrs. Wilson commingled their funds
and that those funds were the source of payment for the room addition
disclosed by Bailey. David stated that he helped care for his father at
Wilson’s house and that after his father and Wilson were removed
from the premises, his father eventually ended up living alone in an
apartment complex for senior citizens.
David testified that his father objected to being removed from
Wilson’s house and was not in distress when he and Mrs. Wilson were
taken to the hospital. David testified that a power of attorney
executed by his father had been prepared long before 2006,
notwithstanding the evidence showing that the forms had not been
purchased by Bailey prior to February of 2006. He also claimed that
in 2004, he was among the persons who witnessed Wilson sign forms
giving Bailey powers of attorney with respect to Wilson’s property
and health care, again contradicting the evidence which demonstrated
that the forms Wilson had signed had not even been purchased by
Bailey until 2006. He initially denied using any of Wilson’s assets, but
eventually admitted that he had used checks drawn on her account to
buy himself a four-door pickup truck.
Bailey’s attorney next called Williams as an adverse witness. On
questioning from counsel, Williams described her work history, her
relationship with Wilson, and the circumstances under which she
became involved in Wilson’s care. She described how she had hired
a professional photographer to document the home’s condition before
she began cleaning it up. She testified that she never saw a box with
-21-
a lot of cash in it, had never heard anyone claim that such a box
existed before the court proceedings commenced, and did not believe
that there was such a box.
Williams described going to Mrs. Wilson’s house on the evening
of May 3, 2006, after reporting Wilson’s poor living conditions to the
City. She had hired a plumber to restore running water to the sink in
Wilson’s bathroom, but the plumber had not been able to gain entry
to the premises. When the plumber arrived, Clifford Service advised
him that he was locked inside and could not open the door. Williams
reported that a caregiver was supposed to have been on the premises
around the clock but that on this day, no one was there. Williams
denied telling anyone from the City that she wanted Mrs. Wilson
removed from the home and hospitalized.
Following Williams testimony, Bailey’s lawyer recalled her to the
stand to identify some financial records. In explaining why the records
remained incomplete, she repeated her previous claim that the
originals had been kept in a box which had since gone missing. The
documents she was able to produce pertained, for the most part, to
matters Bailey had previously addressed. With respect to the truck her
husband had bought with a check drawn on Wilson’s account, Bailey
added a new detail, namely, that Wilson had wanted the family to have
the truck so that she would be able to visit a horse David Service had
purchased for her.12 Bailey also identified one of the checks issued to
David as payment for horse feed. In addition, Bailey claimed that
many of the checks she had cashed represented funds which Wilson
wanted to take out of the bank and keep in a secret box in her home.
Included among the documents were cash register receipts for
miscellaneous items purchased by Bailey between 2005 and 2006 from
various retail stores, including Target, Wal-Mart, Kohl’s, Sears,
Lowe’s, Burlington Coat Factory, JC Penney, and K’s Merchandise
City. Among the items listed on the receipts were two sets of bedroom
furniture which were apparently part of a donation to a women’s
12
Later, Bailey went so far as to claim that her husband took Wilson to
visit the horse at least three or four times a week over the past seven or eight
years. She later increased this to “maybe four or five times a week.” Still
later, she asserted that during this period, Wilson, who had undergone hip
replacement surgery, actually rode the horse five times a week.
-22-
shelter in Joliet; four “mega meal dinners” at Ryan’s; computer
software; and numerous items of men’s and women’s clothing, as well
as a variety of food items and toiletries. The documents also included
a few utility bills, receipts for two refrigerators, a receipt for auto
body work, and a number of other items. In all, the expenditures
reflected by these receipts from merchants represented but a tiny
fraction of the total funds taken from Wilson’s accounts. Bailey
admitted she did not separate out expenditures made on behalf of Mr.
Service rather than Wilson. She explained this by saying that “no one
ever told me that I had to separate them.”
After Bailey’s rebuttal testimony concluded, the proceedings
adjourned. At a subsequent hearing, the court approved the sale of
Wilson’s home and granted the guardian’s request for an award of
fees. It then heard testimony from nurse Ponce De Leon. Ponce De
Leon stated that she was a public health nurse employed by the City
of Chicago’s Department on Aging. She recounted the history of her
visits to Wilson’s house beginning in 2006. Ponce De Leon thought
that the complaints her agency had received regarding Wilson’s care
had originated with Williams. She stated that on May 3, when Mrs.
Wilson and Mr. Service were removed from the home, she asked the
police to be present. The rooms of the house she observed were
“okay” in terms of cleanliness, there was heat, food was in the
refrigerator, and she did not notice any foul odors.
Ponce De Leon told the court that Mrs. Wilson complained that
she and Mr. Service did not have their medications and that Mr.
Service asked that he and Mrs. Wilson be taken to the hospital. Ponce
De Leon asked the police office on the scene to witness her
conversation with Wilson and Service and reported that during that
conversation, Mr. Service told Wilson, “You are finally going to get
help.” According to Ponce De Leon, Service repeated this assurance
to Wilson. Ponce De Leon also recalled Service and Wilson
complaining that someone was taking their checks. In Ponce De
Leon’s opinion, Wilson and Service appeared frail. Mr. Service was
confused. Neither one was oriented. Ponce De Leon reported that
after the two were admitted to the hospital for treatment, Wilson told
her that someone had been slapping her.
The final witness to testify was Charlene Valentine, nurse Ponce
De Leon’s supervisor at the Department on Aging. Valentine
-23-
recounted that Mr. Service and Mrs. Wilson first came to her attention
in 2004 on a referral from Ingles Hospital. The referral indicated that
Service was
“in pain, bills and resides with girlfriend. May not have
operating heat. Possible confusion. No other means of
support. The girlfriend, Mary Wilson, is in the home and may
have issues as well.”
Valentine went to the home to check on the pair. As a result of her
visit, she ordered various services for them including meals on wheels,
the assistance of a homemaker, and help with getting their heat
restored. According to Valentine, the utilities had been disconnected.
These developments occurred on January 6, 2004.
Between that date and 2006, the Department on Aging received
numerous calls requesting assistance for Mrs. Wilson and Mr. Service.
Among the contacts was a request in April of 2005 from a social
worker at Rush University Medical Center asking that Wilson be
evaluated. The social worker’s report was that Wilson “may not be
eating adequately. Not taking medications. There is a garbage odor in
the home and client is confused.”
Valentine’s understanding was that despite the recommendations
for services, Mrs. Wilson and Mr. Service were not receiving
homemaker assistance, meals on wheels or other help in the house.
Health care workers made repeated reports between 2003 and 2006
that they could not get into the house to see Wilson and Service. Two
calls for help were made by Mrs. Wilson herself, one in 2004
following her hip surgery, and a second in 2005 requesting
homemaking and other services. A call in 2006 reported that Service
and Wilson were having money taken away from them.
Following Valentine’s testimony, Bailey was recalled to the stand
to provide more testimony regarding the funds withdrawn from Mrs.
Wilson’s accounts. In this round of testimony, Bailey asserted that
$21,000 of the funds paid to her from Wilson’s accounts actually
represented the repayment of a loan she had made to Wilson. She
identified checks written on Mrs. Wilson’s account and used to pay
for a $200 traffic ticket issued to her (Bailey) by the Village of Orland
Park, her AAA auto club membership fees, her cell phone bill,
attorney fees from her prior divorce lawyers, her real estate taxes, and
the funeral expenses for her husband’s stepbrother. She also
-24-
confirmed the authenticity of numerous other checks she had issued
to herself or David Service from Mrs. Wilson’s accounts.
At the conclusion of the evidence and after hearing closing
arguments, the circuit court granted William’s petition to revoke
Bailey’s powers of attorney and for an accounting, formally revoked
Bailey’s powers of attorney, found that Bailey had breached her
fiduciary duties to Mrs. Wilson, and ordered Bailey to repay Wilson’s
estate the sum of $297,708.95. The court’s written judgment was filed
March 29, 2007. Bailey promptly appealed, arguing: (1) that the
circuit court committed reversible error when it failed to refer her
motion for substitution of judge to another judge for a hearing, (2)
that Williams’ petition to revoke her powers of attorney and for an
accounting should have been dismissed, (3) that the circuit court’s
judgment revoking Bailey’s powers of attorney was against the
manifest weight of the evidence, and (4) that the dollar amount of the
judgment entered by the circuit court was not supported by the
record.
In a published opinion, a divided appellate court vacated the
circuit court’s judgment and remanded the cause for further
proceedings. Two of the three judges on the appellate court panel
agreed with Bailey that her petition for substitution should have been
automatically referred to another judge for consideration as soon as
it was filed. Because the petition was not referred to a different judge,
the majority reasoned that all subsequent actions taken by the trial
judge in the case were void. It therefore vacated the circuit court’s
judgment and remanded for further proceedings. In light of this
disposition, it did not reach any of the other grounds for reversal
urged by Bailey. 389 Ill. App. 3d at 786.
The dissenting justice rejected the majority’s reasoning. In his
view, automatic referral to another judge is not required in every case.
It is necessary only where the petitioner is able to make a threshold
showing of bias supported by the statutorily required affidavit.
Because the dissenting justice believed that that neither of those
conditions had been satisfied in this case and that circumstances
suggested “that the purpose of the petition may have been merely to
delay the proceedings,” he would have affirmed the circuit court’s
denial of the petition for substitution. As with the majority, he did not
reach the additional issues raised by Bailey as grounds for reversal.
-25-
389 Ill. App. 3d at 787-94 (O’Malley, J., dissenting).
Following entry of the appellate court’s judgment, Williams
petitioned our court for leave to appeal (210 Ill. 2d R. 315), which we
allowed. We also allowed the Cook County public guardian leave to
file a brief as friend of the court.
ANALYSIS
Because the appellate court’s judgment rests on the interpretation
and application of section 2–1001(a)(3) of the Code of Civil
Procedure (735 ILCS 5/2–1001(a)(3) (West 2006)), we begin our
review with an examination of that statute. Statutory construction
presents a question of law which we review de novo. Acme Markets,
Inc. v. Callanan, 236 Ill. 2d 29, 35 (2009).
Section 2–1001(a)(3) authorizes each party in a civil case to seek
substitution of the trial judge for cause and sets forth the requirements
governing such requests. It provides, in relevant part:
“(ii) Every application for substitution of judge for cause
shall be made by petition, setting forth the specific cause for
substitution and praying a substitution of judge. The petition
shall be verified by the affidavit of the applicant.
(iii) Upon the filing of a petition for substitution of judge
for cause, a hearing to determine whether the cause exists
shall be conducted as soon as possible by a judge other than
the judge named in the petition. The judge named in the
petition need not testify but may submit an affidavit if the
judge wishes. If the petition is allowed, the case shall be
assigned to a judge not named in the petition. If the petition is
denied, the case shall be assigned back to the judge named in
the petition.” 735 ILCS 5/2–1001(a)(3)(ii), (a)(3)(iii) (West
2006).
Section 2–1001(a)(3), is the civil counterpart to section 114–5(d)
of the Code of Criminal Procedure of 1963 (725 ILCS 5/114–5(d)
(West 2006)), which states:
“[A]ny defendant may move at any time for substitution of
judge for cause, supported by affidavit. Upon the filing of such
motion a hearing shall be conducted as soon as possible after
its filing by a judge not named in the motion ***.” 725 ILCS
5/114–5(d) (West 2006).
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The courts of this state have held that the provisions of both
statutes are to be liberally construed to promote rather than defeat the
right of substitution, particularly where the “cause” claimed by the
petitioner is that the trial judge is prejudiced against him. People v.
Jones, 197 Ill. 2d 346, 352 (2001); see In re Estate of Gagliardo, 391
Ill. App. 3d 343, 346-47 (2009). The courts have also recognized,
however, that a party’s right to have a petition for substitution heard
by another judge is not automatic. See People v. Damnitz, 269 Ill. App.
3d 51, 55 (1994); Alcantar v. Peoples Gas Light & Coke Co., 288 Ill.
App. 3d 644, 649 (1997); City of Quincy v. Weinberg, 363 Ill. App. 3d
654, 662 (2006); In re Estate of Hoellen, 367 Ill. App. 3d 240, 248
(2006); Williams v. Estate of Cole, 393 Ill. App. 3d 771, 776 (2009).
Principles of liberal construction do not excuse the obligation of parties
to adhere to express statutory requirements. See People v. Van Pelt,
18 Ill. App. 3d 1087, 1089 (1974). Trial courts are required to refer a
petition to another judge for a hearing on whether cause for
substitution exists only if the party seeking that relief is able to bring
himself or herself within the provisions of the law. See Hoffmann v.
Hoffmann, 40 Ill. 2d 344, 347-48 (1968).
In order to trigger the right to a hearing before another judge on
the question of whether substitution for cause is warranted in a civil
case pursuant to section 2–1001(a)(3), the request must be made by
petition, the petition must set forth the specific cause for substitution,
and the petition must be verified by affidavit. 735 ILCS
5/2–1001(a)(3)(ii) (West 2006). The requirements in criminal cases are
similar. See 725 ILCS 5/114–5(d) (West 2006).
In the case before us, Bailey’s request for substitution satisfies only
the first of these three requirements. It was made by petition. The
remaining requirements were not met. The petition was not verified by
affidavit, and it did not adequately allege cause for substitution.
To meet the statute’s threshold requirements, a petition for
substitution must allege grounds that, if true, would justify granting
substitution for cause. In re Estate of Hoellen, 367 Ill. App. 3d at 248,
quoting Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d
at 649. Where bias or prejudice is invoked as the basis for seeking
substitution, it must normally stem from an extrajudicial source, i.e.,
from a source other than from what the judge learned from her
participation in the case before her. A judge’s previous rulings almost
-27-
never constitute a valid basis for a claim of judicial bias or partiality.
See Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d at
649; Williams v. Estate of Cole, 393 Ill. App. 3d at 777. As our court
noted in Eychaner v. Gross, 202 Ill. 2d 228, 281 (2002), quoting
Liteky v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 491,
114 S. Ct. 1147, 1157 (1994):
“ ‘[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion
that derives from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as
to make fair judgment impossible.’ ” (Emphases in original.)
In the case before us, the sole “cause” alleged as grounds for
substitution was that, based on previous remarks she had made
following Bailey’s testimony, the trial judge might be “predisposed not
to believe [Bailey] at a hearing on the pending motions of *** Williams
to revoke the powers of attorney.” An assessment of a party’s
credibility as a witness based on the evidence presented in the course
of the proceedings is a matter “ ‘which is clearly within the purview of
the trial court’ ” and does not rise to the level of deep-seated favoritism
or antagonism that would make fair judgment impossible. See
Eychaner v. Gross, 202 Ill. 2d at 281, quoting McCormick v.
McCormick, 180 Ill. App. 3d 184, 194 (1988). For this reason, even if
we took Bailey’s allegations as true, they would not suffice to establish
“cause” for substitution within the meaning of section 2–1001(a)(3) of
the Code of Civil Procedure (735 ILCS 5/2–1001(a)(3) (West 2006)).
Accordingly, the trial court had no obligation under the statute to refer
the matter to another judge for a hearing. See People v. Damnitz, 269
Ill. App. 3d at 55; Alcantar v. Peoples Gas Light & Coke Co., 288 Ill.
App. 3d at 649-50; In re Estate of Hoellen, 367 Ill. App. 3d at 249;
Williams v. Estate of Cole, 393 Ill. App. 3d at 776-77.
In her brief, Bailey also asserts that in questioning her as she did at
-28-
the June 8, 2006, hearing, the trial judge disregarded her role as a judge
and impermissibly assumed the role of an advocate. This contention is
wholly without merit. As a preliminary matter, no such allegation was
contained in the petition for substitution itself, and Bailey has not
explained how the trial court can be faulted for denying a petition to
substitute based on an allegation she did not make.
Bailey’s argument also overlooks the nature of these proceedings.
The case was brought as a guardianship proceeding under article XIa
of the Probate Act of 1975 (755 ILCS 5/11a–1 et seq. (West 2006)).
The court’s role in guardianship proceedings differs from its customary
function in civil and criminal proceedings. See, e.g., In re Patricia S.,
222 Ill. App. 3d 585, 592 (1991) (applying comparable provisions of
the Juvenile Court Act). It has a specific statutory obligation to inquire,
itself, into any matters it deems appropriate regarding a respondent’s
circumstances. See 755 ILCS 5/11a–11(e) (West 2006). The trial court
here did no more than that. While it is true that the court expressed
skepticism regarding Bailey’s testimony and the propriety of her
conduct, it can scarcely be claimed, given the facts of this case, that the
court’s skepticism was in any way unjustified.
Finally, if Bailey had any complaints regarding the court’s conduct
of the trial proceedings, it was incumbent upon her to voice those
objections in the trial court in the first instance. She failed to do so. The
record shows that Bailey testified willingly during the hearing and that
neither she nor her lawyer made any objection to the manner in which
she was questioned by the court. Bailey is therefore precluded from
raising such objections now. See People v. A Parcel of Property
Commonly Known As 1945 North 31st Street, Decatur, Macon County,
Illinois, 217 Ill. 2d 481, 504 (2005); Drews v. Gobel Freight Lines,
Inc., 144 Ill. 2d 84, 104 (1991).
Beyond the lack of an affidavit and the failure to allege a legally
sufficient basis for finding “cause,” Bailey’s request for substitution
was properly rejected by the trial court for two additional reasons.
First, it came too late. As with its criminal counterpart, section
2–1001(a)(3) of the Code of Civil Procedure (735 ILCS
5/2–1001(a)(3) (West 2006)) does not contain a specific time frame
within which requests for substitution of judge must be asserted. We
have held, however, that motions for substitution based on cause in
both civil and criminal cases must be asserted at the “earliest practical
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moment” after the cause for the request has been discovered. See In re
Marriage of Kozloff, 101 Ill. 2d 526, 532 (1984); People v. Jones, 197
Ill. 2d at 356. That clearly did not happen here. The hearing which was
the basis for Bailey’s petition for substitution took place on June 8,
2006. Thereafter, numerous matters were filed, hearings were held, and
orders were entered. Throughout this period, Bailey made no
complaint that considerations of bias should prevent the trial judge
from continuing to preside over the case. Bailey did not petition for
substitution until October 16, 2006, more than four months later.
Bailey has offered no justification for this delay.
Second, we have long recognized that courts may take cognizance
of the circumstances surrounding a motion for substitution of judge and
inquire into the good faith of the motion. Where it is apparent that the
request is not made in good faith but for purposes of delay, the denial
of a motion to substitute does not constitute error. See Hoffmann v.
Hoffmann, 40 Ill. 2d at 348; People v. Peterson, 70 Ill. App. 3d 205,
207-08 (1979). This is such a case.
As we have just noted, numerous proceedings were held before
Bailey filed her petition based on the trial court’s actions at the June 8
hearing. In none of those instances was the trial court’s alleged bias an
issue. What differentiated the impending October hearing from prior
hearings, where the issue of bias was never raised, is that, by this time,
Williams had taken Bailey’s deposition and filed it with the court in
support of her citation proceeding. The deposition strongly
corroborated concerns expressed by the trial judge at the June 8, 2006,
regarding Bailey’s mishandling of Mrs. Wilson’s affairs. With this
development, Bailey surely understood, if she had not understood
earlier, that her prospects of prevailing were rapidly diminishing.
The petition for substitution offered the possibility that, at least
temporarily, attention would be shifted away from the merits of the
case and that she might gain additional time to devise some way to
forestall being stripped of her powers of attorney and having to answer
for expenditures she was never able to document or justify. If the
timing of the petition had some explanation other than delay, it is not
evident in the record. Bailey herself has certainly suggested none. The
petition’s lack of detail and the fact that no one was willing to attest to
the veracity of its allegations bolster our conclusion that it was nothing
more than a last-minute effort to derail the proceedings. Under these
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circumstances, it was not error for the trial judge to deny the petition
for substitution without referring it to another judge for a hearing on
the merits of whether cause for substitution could be established.
Neither In re Marriage of Schweihs, 272 Ill. App. 3d 653 (1995),
nor Jiffy Lube International, Inc. v. Agarwal, 277 Ill. App. 3d 722(1996), two appellate court decisions cited by the appellate court
majority in this case, supports a contrary conclusion. Both addressed
section 2–1001(a)(3) of the Code of Civil Procedure (735 ILCS
5/2–1001(a)(3) (West 2006)), but neither involved the question
presented by this case. In Schweihs, the statute had recently been
amended to assume its current form, and the pivotal issue was the
standard of review governing determinations, on the merits, as to
whether cause exists to warrant substitution of the trial judge. The
court concluded that such determinations would not be set aside unless
contrary to the manifest weight of the evidence. See In re Marriage of
Schweihs, 272 Ill. App. 3d at 659. That, of course, is not an issue here.
The standard of review governing determinations on the merits is not
pertinent to this case because in this case the merits were not reached.
Threshold deficiencies in Bailey’s petition prevented it from being
transferred to another a judge for a determination as to whether she
could establish cause for substitution. In re Marriage of Schweihs is
therefore inapposite.
In Jiffy Lube International, Inc. v. Agarwal, 277 Ill. App. 3d 722(1996), the court applied the plain language of section 2–1001(a)(3) of
the Code of Civil Procedure (735 ILCS 5/2–1001(a)(3) (West 2006))
to conclude held that the defendant’s motion for substitution of judge
should not have been heard by the judge named in the petition. In so
doing, however, it did not hold, directly or indirectly, that petitions for
substitution were in some way exempt from the threshold requirements
we have discussed in this opinion. To the contrary, referencing our
prior opinion in In re Marriage of Kozloff, 101 Ill. 2d 526 (1984), the
court recognized that a petition for substitution could be dismissed as
untimely where it was not filed at the earliest practical moment after
the prejudice was discovered. It went on to conclude, however, that a
timeliness challenge could not be successfully asserted in the case
before it because, under facts of the case, the petition was timely. Jiffy
Lube International, Inc. v. Agarwal, 277 Ill. App. 3d at 727.
The appellate court majority also believed there was support for its
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position in the language of section 2–1001(a)(3) (735 ILCS
5/2–1001(a)(3) (West 2006)) itself. In the appellate court’s view, “the
statute clearly and unambiguously states, without condition or
equivocation, that when a civil litigant asserts his or her rights under
this law, the action is to be transferred for hearing before another
member of the judiciary.” 389 Ill. App. 3d at 782. Citing the rule of
statutory construction that courts have no authority to depart from the
plain language of a law by reading into it exceptions, limitations, or
conditions that the legislature did not express, the court reasoned that
section 2–1001(a)(3) “does not authorize an Illinois judge accused of
bias or prejudice in a civil proceeding to control the disposition of a
petition seeking change of judge for cause.” 389 Ill. App. 3d at 782.
While the appellate court initially suggested that a trial court’s
obligation to refer a petition to another judge was only triggered if the
petition was “in proper form,” it stated, immediately thereafter, that a
trial judge who is the subject of a motion to substitute should not even
consider the basic question of “whether the petition is supported by a
sworn statement containing facts personally known to the declarant and
the declarant’s signature.” In the appellate court’s view, that was
among the “questions that are properly addressed by a judge whose
impartiality is not in dispute.” 389 Ill. App. 3d at 782.
The appellate court is entirely correct that courts should normally
apply the language of statutes as written. What the appellate court’s
analysis overlooks is that there is an important exception to this
principle. When undertaking the interpretation of a statute, we must
presume that when the legislature enacted the law, it did not intend to
produce absurd, inconvenient or unjust results. Brucker v. Mercola,
227 Ill. 2d 502, 514 (2007). Accordingly, where a plain or literal
application of a statute would produce such results, the literal reading
must yield. People v. Hanna, 207 Ill. 2d 486, 498 (2003).
Such is the case here. If it were literally true that a hearing on
whether there was cause for substitution had to be conducted by
another judge “[u]pon the filing of a petition for substitution” (735
ILCS 5/2–1001(a)(3)(iii) (West 2006)), an unscrupulous litigant could
effectively bring an immediate halt to any pending civil case, at any
time, without regard to when the basis for the petition for substitution
was discovered, without regard to whether the petition set forth the
specific cause for which substitution was requested, and without regard
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to whether the petition was accompanied by the affidavit of the
applicant or met any other procedural requirements to which civil
proceedings are normally subject. The disruption this could create for
the conduct of litigation is self-evident.
Empowering litigants to unilaterally halt pending trial proceedings
without first meeting any threshold timing, pleading, or procedural
requirements would be unprecedented in our system of justice. Neither
Bailey nor the appellate court majority has cited any other instance in
which it is permitted. If the General Assembly had intended to permit
it here, it would not have included the pleading and affidavit
requirements in the preceding subsection of the statute (see 735 ILCS
5/2–1001(a)(3)(ii) (West 2006)). The view urged by Bailey and
adopted by the appellate court renders those requirements all but
meaningless. In so doing, it contravenes the long-established principle
that statutes should be construed, if possible, so that effect may be
given to all of their provisions; so that no part will be inoperative or
superfluous, void or insignificant; and so that one section will not
destroy another. Gay v. Kohlsaat, 223 Ill. 260, 270 (1906).
The potential for abuse which would result from the appellate
court’s view of the law cannot be avoided under the theory that
questions of timing, specificity, and adherence to procedural
requirements may still be addressed by the judge to whom the petition
for substitution is referred. That is so for two reasons. First, such an
approach would, itself, require deviation from the literal terms of the
statute. The statute does not, after all, call for the second judge to
conduct a hearing on the petition for substitution in general. What the
second judge is to consider is more specific. The hearing before that
judge is simply “to determine whether the cause [for substitution]
exists.” 735 ILCS 5/2–1001(a)(3)(iii) (West 2006). Such an inquiry
goes directly to the ultimate merits of the petitioner’s claim of cause,
a matter on which the threshold timing, pleading, and procedural
requirements have no direct bearing.
Second, if a petition’s adherence to basic timing, pleading, and
procedural requirements could not be challenged until the matter was
referred to a second judge, the potential for abuse would remain. Any
case could still be stopped at any time, no matter how frivolous the
charge of “cause” for substitution might be. Even if the second judge
acted expeditiously to resolve challenges to the petition’s timing,
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sufficiency, and compliance with procedural requirements, the
underlying proceedings will have been interrupted and delayed. This is
more than a question of inconvenience. Such delays can have critical
significance, particularly in cases such as this one, where parties or
witnesses are old or infirm or their personal welfare is in immediate
jeopardy.
The provision in section 2–1001(a)(3)(iii) (735 ILCS
5/2–1001(a)(3)(iii) (West 2006)) calling for the hearing on cause to be
conducted by a judge other than the judge named in the petition was
added by the General Assembly effective January 1, 1993. At that time,
a comparable statute governing criminal cases was already in effect and
had been construed by the courts of Illinois on numerous occasions.
The statute was section 114–5(d) of the Code of Criminal Procedure
of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 114–5(d)), codified prior to
1987 amendments as section 114–5(c) of the Code (Ill. Rev. Stat.
1985, ch. 38, par. 114–5(c)).13 As with sections 2–1001(a)(3)(ii) and
(a)(3)(iii) (735 ILCS 5/2–1001(a)(3)(ii), (a)(3)(iii) (West 2006)), that
statute allowed litigants to move for substitution of judge for cause at
any time, supported by affidavit. The statute further provided that
“[u]pon the filing of such motion a hearing shall be conducted as soon
as possible after its filing by a judge not named in the motion ***.” Ill.
Rev. Stat. 1991, ch. 38, par. 114–5(d); Ill. Rev. Stat. 1985, ch. 38, par.
114—5(c).
The language in section 114–5(d) is virtually identical to that later
employed by the General Assembly in section 2–1001(a)(3)(iii) of the
Code of Civil Procedure (735 ILCS 5/2–1001(a)(3)(iii) (West 2006)).
Significantly, that language was never understood to impose on trial
judges an obligation to automatically refer out every motion for
substitution which came before them, regardless of whether the motion
complied with procedural and or substantive requirements. To the
contrary, as the statute was interpreted by the courts, a trial judge
could deny a motion to substitute without referring it to another judge
for a hearing if the motion was not made at the earliest practical
13
The 1987 amendment did not change the substantive provisions of the
statute. It extended the right to seek substitution of a judge for cause to the
State. Previously, only defendants enjoyed that right. See People ex rel.
Baricevic v. Wharton, 136 Ill. 2d 423, 430 (1990).
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moment after discovery of the cause alleged in the motion (People v.
Taylor, 101 Ill. 2d 508, 518 (1984)); was not accompanied by the
requisite affidavit (see People v. Clay, 124 Ill. App. 3d 140, 147
(1984)); lacked specificity (see People v. Marshall, 165 Ill. App. 3d
968, 975 (1988), cited with approval in People v. Johnson, 159 Ill. 2d
97, 123 (1994)), or was not made in good faith but rather for purposes
of delay (People v. Peterson, 70 Ill. App. 3d at 207-08). Moreover, the
courts consistently recognized that in order for alleged bias or
prejudice of a trial judge to trigger disqualification, it must have
stemmed from an extrajudicial source and resulted in an opinion on the
merits on some basis other than what the judge learned from his
participation in the case. See People v. Butler, 137 Ill. App. 3d 704,
720 (1985); People v. Massarella, 80 Ill. App. 3d 552, 565 (1979).
We presume that when the legislature adopted section
2–1001(a)(3) (735 ILCS 5/2–1001(a)(3) (West 2006)) in its present
form, it was aware of the case law construing the parallel provisions in
section 114–5(d) of the Code of Criminal Procedure of 1963 (Ill. Rev.
Stat. 1991, ch. 38, par. 114–5(d)). See Roth v. Illinois Insurance
Guaranty Fund, 366 Ill. App. 3d 787, 794 (2006) (where statutes are
enacted after judicial opinions are published, it must be presumed that
the legislature acted with knowledge of the prevailing case law).
Because the statutes deal with similar subject matter, we further
assume that by using the same language in section 2–1001(a)(3) as it
did in section 114–5(d), the legislature intended for it to be construed
and applied similarly. See Board of Education of City of Chicago v. A,
C & S, Inc., 131 Ill. 2d 428, 468 (1989); Wade v. City of North
Chicago Police Pension Board, 226 Ill. 2d 485, 512 (2007).
Accordingly, just as section 114–5(d) permits trial judges to assess
whether motions for substitution for cause in criminal cases meet
certain threshold procedural and substantive requirements before
referring them to another judge for a hearing on the merits, we believe
that the legislature intended for section 2–1001(a)(3) of the Code of
Civil Procedure to permit trial judges to assess whether motions for
substitution for cause meet the same threshold procedural and
substantive requirements in civil cases.
Courts in the federal system have reached the same conclusion
when construing and applying analogous provisions of federal law.
Federal district courts are governed by 28 U.S.C. §144, which
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authorizes parties to obtain a substitution of judge on the grounds that
the original trial judge has a personal bias or prejudice against them or
in favor of an adverse party. As with a motion to substitute under
section 2–1001(a)(3) of the Code of Civil Procedure, a motion seeking
relief under 28 U.S.C. §144 must be supported by affidavit. The statute
further provides that whenever a timely and sufficient affidavit is made
and filed, the “judge shall proceed no further therein, but another judge
shall be assigned to hear such proceeding.” 28 U.S.C. §144.
If 28 U.S.C. §144 were construed in the same narrow and literal
manner as Bailey urges us to construe section 2–1001(a)(3) of the
Code of Civil Procedure, a trial judge’s obligation to remove himself
from the proceedings would be automatic. Such a construction,
however, has been consistently rejected. Recognizing the need to
protect against delay and disruption of the judicial process (see United
States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972)) and frivolous
attacks on the courts’ dignity and integrity (Rademacher v. City of
Phoenix, 442 F. Supp. 27, 28 (D. Ariz. 1977)), federal courts have,
instead, adopted an approach which parallels that taken by the courts
of Illinois. They have held that while the statute may appear, on its
face, to require automatic disqualification once the affidavit has been
filed (see Easley v. University of Michigan Board of Regents, 853 F.2d
1351, 1355-56 (6th Cir. 1988)), the filing of an affidavit does not, in
fact, command automatic disqualification of a judge. Rather, the judge
against whom the motion is directed may properly deny the motion (1)
if it was not asserted at the earliest moment after the movant acquired
knowledge of the facts demonstrating the basis of the claim and cannot
show good cause for any delay (United States v. Sykes, 7 F.3d 1331,
1339 (7th Cir. 1993)); (2) if it was not accompanied by the statutorily
required affidavit (see United States v. Berger, 375 F.3d 1223 (11th
Cir. 2004); United States v. Branch, 850 F.2d 1080, 1083 (5th Cir.
1988)); or (3) if the affidavit is not legally sufficient (Toth v. Trans
World Airlines, Inc., 862 F.2d 1381, 1387-88 (9th Cir. 1988)). The
federal courts have further held that to be legally sufficient, the affidavit
must allege facts which, if taken as true, would convince a reasonable
person that the judge is biased. United States v. Thompson, 483 F.2d
527, 528 (3d Cir. 1973). The facts must be stated with particularity as
to time, place, persons, and circumstances. Mere rumors or conclusions
will not suffice. Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.
-36-
1987). Moreover, as in Illinois, the bias must be personal rather than
judicial and must stem from an extrajudicial source, that is, from some
source other than what the judge learned in the course of his
participation in the proceedings before him. United States v. Balistrieri,
779 F.2d 1191, 1199 (7th Cir. 1985), citing United States v. Grinnell
Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 793, 86 S. Ct. 1698, 1710
(1966). The favorable or unfavorable disposition a judge has
demonstrated toward a party based on facts presented in the current
proceeding will not rise to the level of bias or prejudice necessary to
trigger the statute except in extreme situations where the judge has
displayed a clear inability to render a fair judgment. See Liteky v.
United States, 510 U.S. 540, 551, 127 L. Ed. 2d 474, 488, 114 S. Ct.
1147, 1155 (1994).
This standard is rarely met, for the hurdle litigants must meet in
order to obtain relief under 28 U.S.C. §144 is, if anything, more
rigorous than that required by the courts of this State under the law of
Illinois. In contrast to the liberal construction principles governing
petitions for substitution under sections 2–1001(a)(3) of the Code of
Civil Procedure and section 114–5(d) of the Code of Criminal
Procedure of 1963, 28 U.S.C. §144 is to be strictly construed against
the party seeking to have the case heard by a different judge. See
United States v. Balistrieri, 779 F.2d at 1199. The original judge has
a duty to review the request for substitution to assess whether it is
sufficient. Where the request is not sufficient, it is the judge’s duty to
deny the request and continue to preside over the case. Sine v. Local
No. 992 International Brotherhood of Teamsters, 882 F.2d 913, 914
(4th Cir. 1989); Simmons v. United States, 302 F.2d 71, 75 (3d Cir.
1962).
Consistent with Illinois precedent involving motions for substitution
in criminal proceedings and with the approach taken by the federal
courts, other decisions by our appellate court have uniformly
recognized that a petition for substitution of judge under section
2–1001(a)(3) of the Code of Civil Procedure (735 ILCS
5/2–1001(a)(3) (West 2006)) may be denied by the trial judge without
referring it to another judge for a hearing on the merits of whether
cause for substitution exists if, as in this case, the petition fails to meet
threshold requirements. See Williams v. Estate of Cole, 393 Ill. App.
3d 771, 776 (2009); In re Estate of Hoellen, 367 Ill. App. 3d 240, 248
-37-
(2006); City of Quincy v. Weinberg, 363 Ill. App. 3d 654, 662 (2006);
Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d 644, 649
(1997). Before the appellate court majority issued its opinion here, no
judicial authority in Illinois had taken a contrary view. For the reasons
we have explained, the appellate court majority’s position is untenable.
We therefore agree with the conclusion of the dissenting appellate
court justice that the circuit court did not err when it denied Bailey’s
motion for substitution.
In reaching this conclusion, we are not unmindful of the potential
conflict posed by permitting the judge whose partiality is being
questioned from making the initial determination as to whether a
motion for substitution is sufficient to trigger the requirement that it be
referred to another judge for consideration on the merits. We believe,
however, that this concern is more theoretical than real. In many, if not
most, cases, evaluation of the threshold requirements will turn on
objective considerations: when was the basis for the claim of cause
discovered, when was the petition filed, was the petition verified by
affidavit, does the “cause” alleged in the petition stem from some
extrajudicial source? Depending on the circumstances, inquiry into
whether the petition was filed in good faith rather than for purposes of
delay or whether its allegations, if true, would be sufficient to establish
“cause” for substitution within the meaning of section 2–1001(a)(3)
may require a more complex and nuanced analysis. We are confident,
however, judges will undertake their review of substitution petitions
conscientiously and in accordance with the law. Judges are assumed to
be impartial, after all (see Raintree Homes, Inc. v. Village of Long
Grove, 209 Ill. 2d 248, 263 (2004)), and they have a powerful
incentive to err on the side of caution. If they deny a petition for
substitution under circumstances where the appellate court
subsequently determines that the petition should have been allowed, all
of their subsequent rulings in the case will be invalidated. See Curtis v.
Lofy, 394 Ill. App. 3d 170, 176 (2009) (orders entered after motion for
substitution has been improperly denied are void).14
14
The appellate court in this case took the view that the trial judge’s initial
refusal to refer the petition to another judge for a hearing on the merits was
a triggering event which rendered everything that followed void. 389 Ill. App.
3d at 786. An argument could be made, however, that the erroneous denial
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The determination that the trial court did not err in denying Bailey’s
petition for substitution does not end this appeal, for Bailey raised
additional challenges to the circuit court’s judgment which the
appellate court did not reach. The briefs filed by the parties in the
appellate court regarding the additional issues have been included in the
record before us and we are fully conversant with both the applicable
law and the relevant facts. Under these circumstances, and considering
Mrs. Wilson’s advanced age, her declining health and the considerable
period of time this matter has already been pending in court, we believe
that it would best serve the interests of justice and judicial economy for
us to proceed directly to the remaining issues without further remand.
In all, Bailey has raised three arguments in addition to her claim
that the trial court erred in denying her motion for substitution. The
first is that the circuit should have granted her motion to dismiss
Williams’ emergency motion to revoke her powers of attorney and for
an accounting. In support of this argument, Bailey asserts, inter alia,
that the guardian ad litem “substantially interfered with the trial court
proceedings”; that the trial court denied Bailey, the Services, and
Wilson “even the most basic opportunity to be heard”; that the trial
court assumed an “inappropriate dismissive and condescending
attitude” to Bailey’s original lawyer; and that the trial court rushed to
judgment in disregard of various procedural requirements, resulting in
“tragic” consequences for Mrs. Wilson, Mr. Service and Bailey. These
conclusory accusations are wholly unsupported by the record or
pertinent legal authority. In view of what actually transpired in the trial
of a motion for substitution should render subsequent orders voidable rather
than void. There is support for this view. See Musolino v. Checker Taxi Co.,
110 Ill. App. 2d 42, 46-47 (1969). An argument could also be made that the
triggering event for voidness (or voidability) should not be the trial court’s
initial decision to deny a petition to substitute, but rather the ultimate
determination that cause for substitution existed and that the case should, in
fact, have been heard by a different judge. After all, if it turns out that there
was, in fact, no cause for substitution (and, by extension, that no basis
existed for removing the original trial judge from the case), the rationale for
invalidating the initial trial judge’s order is eliminated. Because resolution of
these arguments is not necessary to the disposition of the case before us, we
express no view on them here.
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court, the details of which were set out at length earlier in this opinion,
and considering the gravity of Bailey’s own misconduct, we will only
remark that Bailey’s attempt to place any responsibility on the guardian
ad litem or the court for what happened to her, to Mr. Service or to
Mrs. Wilson is stunning in its audacity.
Bailey’s final two arguments are that the circuit court’s judgment
revoking Bailey’s powers of attorney was against the manifest weight
of the evidence, and that the dollar amount of the judgment entered by
the circuit court was not supported by the record. These claims are also
completely without merit. A trial court's finding is not against the
manifest weight of the evidence unless an opposite conclusion is clearly
evident. If the record contains any evidence to support the trial court's
judgment, the judgment should be affirmed. Department of
Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill. 2d
471, 488 (2004).
Our review of the record leaves no question that there was ample
evidence to support the circuit court’s judgment in this case, including
its determination regarding the dollar amount Bailey is obligated to
repay. To reject the circuit court’s judgment, as Bailey urges us to do,
would require this court to reweigh the evidence and make its own,
independent assessment of the various witnesses’ credibility. This we
may not do. See, e.g., In re Rodney T., 352 Ill. App. 3d 496, 503
(2004); In re Marriage of Pfeiffer, 237 Ill. App. 3d 510, 513 (1992).
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
reversed. The judgment of the circuit court is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
CHIEF JUSTICE FITZGERALD took no part in the consideration
or decision of this case.
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JUSTICE FREEMAN, specially concurring:
I agree that the judgment of the circuit court must be affirmed, but
I do so for reasons other than those expressed in court’s opinion. As
I explain below, the appellate court correctly held that the trial court
erred in not automatically referring the petition for substitution for
cause (735 ILCS 5/2–1001(a)(3) (West 2006)) to another judge. The
error, however, is harmless and reversal is not required. It is for that
reason that I concur in the court’s judgment.
This case concerns nothing more than a routine question of
statutory interpretation. As such, the best place to begin is with the
language of the statute. Section 2–1001(a)(3) provides:
“A substitution of judge in any civil action may be had in
the following situations:
***
(3) Substitution for cause. When causes exists.
(i) Each party shall be entitled to a substitution or
substitutions of judge for cause.
(ii) Every application for substitution of judge for
cause shall be made by petition, setting forth the
specific cause for substitution and praying a
substitution of judge. The petition shall be verified by
the affidavit of the applicant.
(iii) Upon the filing of a petition for substitution of
judge for cause, a hearing to determine whether the
cause exists shall be conducted as soon as possible by
a judge other than the judge named in the petition. The
judge named in the petition need not testify but may
submit an affidavit if the judge wishes. If the petition is
allowed, the case shall be assigned to a judge not
named in the petition. If the petition is denied, the case
shall be assigned back to the judge named in the
petition.” 735 ILCS 5/2–1001 (West 2006).
The plain language of section 2–1001(a)(3) does not authorize an
Illinois judge accused of bias or prejudice in a civil proceeding to
control the disposition of the petition seeking substitution of judge for
cause. The statute sets forth only what the petition must contain: the
specific cause for substitution must be identified and the petition must
be verified by an affidavit. The statute provides, upon the filing of a
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petition, for a “hearing” to be conducted “as soon as possible” by
another judge. Subsection (iii) does not speak in terms of the filing of
a “sufficient” or an “adequate” petition. Notably, the statute does not
speak in terms of “threshold requirement[s]” (slip op. at 27, 31, 37, 38)
needed to “trigger” (slip op. at 27, 38) the hearing. Nor does the
statute refer to “threshold deficiencies” that prevent another judge from
hearing the matter. Slip op. at 31. And the statute certainly does not
expressly set forth the bifurcated process that the court embraces
today. See slip op. at 35 (referring to the establishment of a “threshold
procedural” stage and “substantive” stage). In construing a statute, this
court is not free to depart from the plain language of the statute by
reading into it exceptions, limitations or conditions that are not there.
Town & Country Utilities, 225 Ill. 2d at 117.
Rather than address the statutory language at issue, the court
instead begins its analysis by stating that Illinois courts have long
recognized that a party’s right to have a second judge adjudicate the
motion is “not automatic” despite the fact that this court has never
addressed the precise question presented today. The appellate court
cases cited by the court are People v. Damnitz, 269 Ill. App. 3d 51(1994), Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d
644 (1997), City of Quincy v. Weinberg, 363 Ill. App. 3d 654 (2006),
In re Estate of Hoellen, 367 Ill. App. 3d 240 (2006), and Williams v.
Estate of Cole, 393 Ill. App. 3d 771 (2009). Slip op. at 37-38. Quincy
does not address the specific question raised in this case so I do not
believe it is helpful in addressing the parties’ contentions. Both
Williams and Hoellen rely on Alcantar, which in turn relies on
Damnitz. Notably, none of these cases interpret the actual language of
section 2–1001(a)(3). For this reason alone, these cases are
unpersuasive since the primary principle of statutory construction is to
ascertain and give effect to the intent of the legislature and the
language of the statute itself is considered the most reliable indicator
of the legislature’s intent. Town & Country Utilities, Inc. v. Illinois
Pollution Control Board, 225 Ill. 2d 103, 117 (2007).
Cases like Alcantar and Damnitz hold generally that, because some
source of extrajudicial source must trigger a claim of bias, it is
therefore proper for the challenged judge to initially screen section
2–1001(a)(3) petitions for sufficiency. As mentioned earlier, Alcantar
merely cited to Damnitz in support of this holding. Damnitz found
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support for its conclusion that the challenged judge could make an
initial determination on the sufficiency of the allegations because
judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion, citing a United States Supreme Court case, Liteky v.
United States, 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147(1994). Although the Supreme Court did say that such claims ordinarily
would not support such claims, it allowed that they might.
Accordingly, this court has stated the rule from Liteky in the following
manner:
“ ‘[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion
that derives from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as
to make fair judgment impossible.’ (Emphases in original.)”
Eychaner v. Gross, 202 Ill. 2d 228, 281 (2002), quoting Liteky
v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 491,
114 S. Ct. 1147, 1157 (1994).15
As noted, the court in Damnitz based its holding that a threshold
inquiry by the challenged judge is warranted on the fact that ordinarily
most bias charges stemming from conduct during trial will not support
a finding of actual prejudice. But given Liteky’s acknowledgment that
there can be instances of where a successful bias motion stems from a
15
Indeed, the language from Liteky establishing this point is quoted in the
court’s opinion today: “[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to *** may [support a bias or
partiality challenge] if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.’ ” (Emphases
in original.) Slip op. at 28, quoting Liteky, 510 U.S. at 555, 127 L. Ed. 2d
at 474, 114 S. Ct. at 1157.
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non-extrajudicial source (i.e., judicial conduct from current or prior
proceedings), a challenged judge should not be allowed to make an
initial screening determination regarding a for-cause motion’s
sufficiency. Simply stated, if some allegations of bias stemming from
judicial rulings may be successful, then the challenged judge should not
be in the position to decide whether the petition may be “advanced” to
a second judge.
In light of the above, the appellate court’s holding, that an Illinois
judge accused of bias or prejudice cannot control the disposition of a
petition seeking change of judge for cause, is faithful to the language
of section 2–1001(a)(3). However, practical reasons also support this
holding. Under the court’s “threshold” inquiry procedure, the following
situation becomes a possibility: A motion for substitution for cause is
filed. The challenged judge screens it in the “threshold” stage and rules
that the petition does not contain allegations that are “sufficient”
enough to “trigger” a hearing. The movant returns with another motion
that she believes is “more sufficient.” The challenged judge again rules
that the petition lacks the needed sufficiency to “trigger” a transfer for
a hearing. The possibility therefore exists that a potentially biased judge
is able to thwart the case from being reassigned to a second judge to
hear the for-cause allegations. This can have an impact on the litigation.
The movant may be forced to consider settling so as to avoid going to
trial in front of a judge she believes is biased against her. Or, she may
take the chance and proceed to trial before that judge. If she ultimately
loses the case, she can challenge the substitution for cause ruling on
appeal. If she is successful, the litigants will be forced to go through an
entire new trial, with all of its attendant costs, including that of appeal.
These costs, plus judicial resources, are saved if, at the first instance,
a judge who receives a for-cause motion, sends it to another judge for
a ruling whether it be a ruling based on lack of verification, insufficient
pleadings, or lack of cause.
In contrast, the court today interprets section 2–1001(a)(3) to
require three things before the right to a hearing before another judge
is “triggered”: “the request must be made by petition, the petition must
set forth the specific cause for substitution, and the petition must be
verified by affidavit.” Slip op. at 27. The court then states that Bailey’s
petition only met one of the requirements–it was in fact a petition–but
that it did not meet the other requirements as it was neither verified by
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affidavit nor did it “adequately” allege cause for substitution. Slip op.
at 27. The statute, however, does not require “adequate” or “sufficient”
allegations of cause–the statute requires only that the specific cause for
the substitution be alleged. I note that, in this regard, the court
specifically states that section 2–1001(a)(3) is analogous to section 144
of the federal code. Slip op. at 35-36. But a comparison of the two
statutes reveals that they are not the same. Section 144 requires a
“timely and sufficient affidavit” be filed by the party asserting the
challenge before the matter is assigned to another judge to “hear” the
proceeding. Section 2–1001(a)(3) does not contain either a timeliness
or a sufficiency component to it.
Further, relying on Alcantar, the court states:
“[E]ven if we took Bailey’s allegations as true, they would not
suffice to establish ‘cause’ for substitution within the meaning
of the [statute].” Slip op. at 28.
Thus, according to the opinion, a challenged judge is allowed to make
an initial determination of whether “cause” has been alleged and is
under no obligation to refer the matter to another judge for hearing.
The statute however states that “upon” the filing of a petition, a
hearing to determine whether “the cause exists shall be conducted.”
Thus, the language of the statute expressly provides that whether cause
exists is to be left to another judge.16 The court then proceeds to hold
that any questioning done by the judge here was done pursuant to her
role in guardianship proceedings. The court states:
“While it is true that the court expressed skepticism regarding
Bailey’s testimony and the propriety of her conduct, it can
scarcely be claimed, given the facts of this case, that the court’s
16
I must point out that, in discussing the sufficiency of the allegations
contained in the petition, the court states that Bailey argues that the trial
judge “disregarded her role as a judge and impermissibly assumed the role
of an advocate. This contention is wholly without merit. As a preliminary
matter, no such allegation was contained in the petition for substitution
itself.” Slip op. at 29. This, however, is not entirely accurate. Bailey does
assert this in her brief to this court, but the allegation in the motion is that the
judge in question “without a hearing placed Karen Bailey under oath and
asked questions of an adverse nature.” It is clear then, that the motion did
contain an allegation that the judge was not acting as a neutral person.
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skepticism was in any way unjustified.” Slip op. at 29.
This language is troubling. Does this mean that the challenged judge
can, in making her “threshold” determination, look beyond the
allegations for reasons to deny the motion? In this case, when the
motion was presented to the trial judge, she did not know that facts
would later be adduced in evidence and that would later justify this
initial finding. It must be pointed out that what prompted the for-cause
motion in this case was the judge’s sua sponte questioning of Bailey
during a status hearing set to in order to decide a hearing date on
Bailey’s motion. During her sua sponte questioning of Bailey, the judge
asked Bailey’s attorney if he understood why she [the judge] “would
have some concerns?” When the attorney replied that there were
witnesses who could corroborate Bailey’s testimony at an evidentiary
hearing, the judge stated: “Quite possibly if it were to go to hearing.”
The question here is, whether given her sua sponte questions, the judge
could have been impartial at the future hearing. That the evidence later
revealed that her skepticism at the status hearing was justified is of no
moment to the question of whether section 2–1001(a)(3) required her
to send the motion to another judge.
The court’s opinion has other problems beyond its expansive
statutory construction. The court states that beyond the lack of an
affidavit and the failure to allege legally sufficient basis for finding
cause, Bailey’s request came “too late.” As I have already pointed out,
the statute does not specify when such a motion is to be filed. Case law
holds that it should be filed as soon as possible to the discovery of the
alleged bias. But when that occurs can be a question of fact. Again, this
would require the challenged judge to rule on a subjective question of
whether something was filed “in time.” The court also states that in this
vein, the challenged judge can look into and inquire into the good faith
of the motion. Slip op. at 30. How can good faith be considered a
threshold matter and why would a judge accused of bias be the one to
make that call?
Apparently aware that its holding contravenes the statute’s plain
language, the court admits that the appellate court was “entirely”
correct that “courts should normally” apply the language of the statute
as written. Slip op. at 32. What the appellate court overlooked, the
court states, is that there is an important exception to this rule–when
undertaking the interpretation of a statute, a court must presume that
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the legislature did not intend to produce an absurd or unjust result. Slip
op. at 32. The court identifies the “absurd” result as follows:
“If it were literally true that a hearing on whether there was
cause for substitution had to be conducted by another judge
[upon filing of the petition], an unscrupulous litigant could
effectively bring an immediate halt to any pending civil case, at
any time, without regard to when the basis for the petition for
substitution was discovered, without regard to whether the
petition set forth the specific cause for which substitution was
requested, and without regard to whether the petition was
accompanied by the affidavit of the applicant or met any other
procedural requirements to which civil proceedings are
normally subject. The disruption this could create for the
conduct of litigation is self-evident.” Slip op. at 32-33.
I strongly disagree with this analysis. Initially, a trial judge has Rule
137 sanctions available to punish the “unscrupulous” litigants who file
frivolous pleadings. See Fischer v. Brombolich, 246 Ill. App. 3d 660,
664 (1993) (recognizing Rule 137 is designed to “penalize litigants
who plead frivolous or false matters or bring suit without any basis in
law”). Second, “unscrupulous” litigants often use many legitimate tools
of litigation to ensure delay in cases. For example, motions for
extensions of time, continuances, and stays, are routinely used in
Illinois courtrooms daily to as delay tactics. Accordingly, the answer
to the court’s “disruption” argument is that trial judges should sanction
such behavior, not that this court rewrite a statute which is to be given
a liberal construction to “promote rather than defeat the right of
substitution.” People v. Jones, 197 Ill. 2d 346 (2001).
Additionally, and again apparently aware that it is inconsistent to
hold that subjective determinations such as timeliness and good faith
and sufficiency of allegations are in fact objective, “threshold” matters
that the challenged judge can make in the first instance, the court
states:
“In reaching this conclusion, we are not unmindful of the
potential conflict posed by permitting the judge whose partiality
is being questioned from making the initial determination as to
whether a motion for substitution is sufficient to trigger the
requirement that it be referred to another judge for
consideration on the merits. We believe, however, that this
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concern is more theoretical than real. In many, if not most,
cases, evaluation of the threshold requirements will turn on
objective considerations: when was the basis for the claim of
cause discovered, when was the petition filed, was the petition
verified by affidavit, does the ‘cause’ alleged in the petition
stem from some extrajudicial source? Depending of the
circumstances, inquiry into whether the petition was filed in
good faith rather than for purposes of delay or whether its
allegations, if true, would be sufficient to establish ‘cause’ for
substitution within the meaning [of the statute] may require a
more complex and nuanced analysis. We are confident,
however, judges will undertake their review of substitution
petitions conscientiously and in accordance with the law.
Judges are assumed to be impartial, after all [citation], and they
have a powerful incentive to err on the side of caution. If they
deny a petition for substitution under circumstances where the
appellate court subsequently determines that the petition should
have been allowed, all of their subsequent rulings in the case
will be invalidated.” (Emphasis added.) Slip op. at 38.
First, only one of the “objective considerations” listed above is truly
objective: Is there a verification? Every other one is subjective. Even
whether a purported affidavit meets the affidavit requirements of
Supreme Court Rule 191 and is, in fact, an “affidavit” can be difficult
to determine. See Robidoux v. Oliphant, 201 Ill. 2d 324 (2002).
Indeed, it was asked at oral argument if a certification under section
1–109 of the Code of Civil Procedure could in some circumstances
satisfy the affidavit requirement. These types of questions indicate that
having a second judge handle a for-cause petition’s entire litigation is
more efficient than the nebulous two-step inquiry that the court today
embraces. Indeed, I see no reason why “complex and nuanced”
questions are to be resolved by the judge whose impartiality is in
question. This holding virtually guarantees litigation on appeal on these
questions, as this case demonstrates. Would it not be a better practice
for this court to set a policy that works to reduce appealable questions
by having these petitions go to another judge whose impartiality is not
in question as a matter of course? I note in this area that again, Illinois
practice differs from the federal practice alluded to in today’s
opinion–in most federal jurisdictions, an appeal may be taken
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immediately from the challenged judge’s finding of insufficiency of the
allegations under section 144. See SCA Services, Inc. v. Morgan, 557
F.2d 110, 117 (7th Cir. 1997) (explaining appellate review of section
144 motions). In Illinois, in contrast, an appeal from the denial of the
motion for substitution (no matter which judge rules) comes with the
case when it is finally disposed of.
A final thought on the language I have quoted above. I agree with
the court in that I have the utmost confidence in our trial judges. But,
even the most conscientious judges can make mistakes in cases in
which his or her impartiality is not in question. Thus, I would avoid
putting a challenged judge in such a situation by holding that a for-
cause petition should be reviewed by a second judge once it has been
filed. I note too that many judges in the circuit court already utilize this
practice in order to avoid any questions of impropriety or overreaching
on their part.
Today’s decision discourages conscientiousness and rewards
expediency. In the wake of the United States Supreme Court’s decision
in Caperton v. A.T. Massey Coal Co., __ U.S. __, 173 L. Ed. 2d 1208,
129 S. Ct. 2252 (2009), questions regarding whether section
2–1001(a)(3) comports with due process have already been raised.
Indeed, that question and the related question of what constitutes
“cause” under the statute are currently before this court in In re
Marriage of O’Brien, No. 109039, which was argued in January 2010.
In O’Brien, the issue is whether actual bias is the only type of “cause”
sufficient to warrant transfer to another judge or if cause also
encompasses the appearance of impropriety standard contained in
Canon 3(C)(1) of the Code of Judicial Conduct. The court’s decision
today indicates that actual bias is the standard to be used and
apparently answers at least one of the questions at issue in O’Brien.
Although I agree with the appellate court that the trial judge
committed error by not having sent the matter to a second judge, I
cannot agree with appellate court’s conclusion that a new trial is
warranted. According to the appellate court, whether a for-cause
petition sets out detailed facts, whether the petition is supported by a
sworn statement containing facts personally known to the declarant and
the declarant's signature, whether the allegations are true, and whether
the allegations amount to demonstrated judicial prejudice or bias; are
all questions that are properly addressed by a judge whose impartiality
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is not in dispute. While I generally agree with this statement, the
problem for Bailey here is that her petition contained no sworn
statement or affidavit purporting to contain facts personally known to
the declarant, as is required under section 2–1001(a)(3) for the
impartial second judge to review. A for-cause motion may be denied
strictly on the basis of the lack of an affidavit notwithstanding the
charges of bias contained within the body of the petition. M. Loeb
Corp. v. Brychek, 98 Ill. App. 3d 1122, 1128-29 (1981). In light of this
fact, the trial judge’s error in not having the motion heard by a second
judge can be considered harmless since the second judge would have
been duty-bound to dismiss the petition for lack of an affidavit. It is on
this basis, and not the rationale offered in the court’s opinion, that I
would hold that reversal on this issue is not warranted.
JUSTICE BURKE joins in this special concurrence.
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