In Re Estate of Wilson , 329 Ill. Dec. 119 ( 2009 )

PRESIDING JUSTICE O’MALLEY,

dissenting:

I respectfully dissent from the majority’s opinion. The majority interprets the language of section 2 — 1001(a)(3) as requiring an automatic transfer of any petition for substitution of judge. I believe such an interpretation is incorrect because it ignores one subsection of the statute or renders it superfluous. It further would allow an automatic transfer no matter how inadequate or frivolous a petition for substitution of judge might be. With regard to subsection (ii), the majority also found that even if it were to consider the sufficiency of the petition presented to the circuit court in the case at bar, it would find the petition to be adequate. I disagree with this conclusion and find Bailey’s petition to be insufficient on its face. This insufficiency was only remedied where the majority examined the record, supplying information omitted by Bailey. Further, this opinion also ignores the fact that along with a factually sufficient petition, an affidavit must be provided.

I. SUFFICIENCY OF THE PETITION

I would hold that a threshold showing of bias along with an affidavit in support of the petition is required before the matter is transferred to another judge for a hearing. Although I acknowledge that a hearing before another judge may only take a few hours in most cases, the majority’s automatic transfer rule gives wayward litigants incentive “to roll the dice” on a motion for substitution to delay proceedings potentially starting anew with another judge should the petition be granted. I would suggest that if even a small percentage of litigants choose to avail themselves of the new automatic transfer rule in Cook County where the dockets are already clogged, there will undoubtedly be new delays and delay tactics created.

The petition submitted to the circuit court, in its entirety, is as follows:

“1. The petitioner, Karen Bailey, was appointed power of attorney of Estate and Healthcare by Mary Wilson, principal on January 16, 2004.

2. The power of attorney of Karen Bailey has been suspended by the court.

3. Arnetta Williams had been appointed guardian of Mary Anne [sic] Wilson, alleged disabled person over objection of petitioner.

4. Arnetta Williams has filed a motion to vacate the power of attorney of Karen Bailey.

5. After reviewing to [sic] transcript, of previous proceedings before the court, the petitioner, Karen Bailey, does not believe that she will be accorded a fair and impartial hearing before the Honorable Maureen Connors for the following reasons:

(A) A crucial issue in the determination by Judge Connors as to whether Karen Bailey should continue as agent of the power of attorney is the withdrawal of money by Bailey from an investment account and placing the money in a locked box in a locked closet in the home of Mary Anne [sic] Wilson at the direction of Mary Anne [sic] Wilson and her husband.

(B) On June 8, 2006, Judge Connors without a hearing placed Karen Bailey under oath and asked questions of an adverse nature.

(C) At the conclusion of the questions by the court, Judge Connors stated that she did not believe Karen Bailey after hearing her answers.

(D) Karen Bailey believes that Judge Connors would be predisposed not to believe her at a hearing on the pending motion of Arnetta Williams to revoke the powers of attorney and would not receive a fair and impartial trial.

WHEREFORE, Karen Bailey, agent of the power of attorney for Mary Anne [sic] Wilson, respectfully requests] this Honorable court to grant the motion for substitution of Judge and transfer the matter of the motion to revoke powers of attorney to be heard by another judge.”

Although Bailey has filed a petition, she has failed to do two of the three things which are required by subsection (ii) where she submitted a conclusory petition, unsupported by specific facts, and failed to provide the required affidavit.

The argument contained in Bailey’s appellate brief, in its entirety, is as follows:

“While the motion must allege grounds that, if taken as true, would justify granting a substitution for cause, the right to a substitution of a judge as of right is absolute. Alcanter v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d 644, 648 (1997); Illinois Licensed Beverage Association Inc. v. Advanta Leasing Services, 333 Ill. App. 3d 927, 932 (2002). Orders entered after a motion for substitution of judge has been improperly denied are void. Illinois Licensed Beverage Association Inc. v. Advanta Leasing Services, 333 Ill. App. 3d 927, 934 (2002).”

Bailey’s argument on appeal relates to motions for substitution as of right and does not even address a substitution of judge for cause. She gives no details whatsoever as to the circuit court’s actions that showed bias against her.

I disagree with the majority’s position that a hearing before a different judge is automatic for two reasons. First, it does not seem reasonable that the legislature would have included section 2 — 1001 (a)(3) (ii) of the Code if it really did not mean to require specific allegations and an affidavit in support of the petition. Second, two First District cases, Estate of Hollen and Alcantar, specifically addressed section 2 — 1001(a)(3) of the Code and the question of whether a hearing before a different judge was automatic. In each instance, this court concluded that it was not. I see no reason to depart from these rulings.²

Section 2 — 1001(a)(3) states:

“(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.” (Emphasis added.) 735 ILCS 5/2 — 1001(a)(3) (West 2006).

The statute, read as a whole as it must be, has two distinct sections. I view subsections (ii) and (iii) as addressing first the facial sufficiency of the petition and then the process by which the petition is decided on its merits, respectively. I agree that the judge against whom bias is alleged should not rule on the merits of the petition, but I see no reason why a judge cannot be trusted to rule upon the facial sufficiency of the submissions. Both subsections use the mandatory “shall” language, which leads me to believe that both sections must be followed and this court has no discretion to dispense with the requirements of subsection (ii). However, based on the majority’s ruling, a hearing before a different judge is automatic without regard to whether the petitioner has done anything required in subsection (ii). This interpretation would ensure that a petitioner would get a hearing before a different judge even if alleging bias based on an irrational reason such as the judge’s race or gender or just a bad feeling. It seems logical to me that minimal requirements are written into the statute to address patently frivolous claims and potential abuses of the provision as a delay tactic. I do not believe, and Illinois law does not support the interpretation, that the legislature intended transfer to another judge to be automatic or controlled by the whim of a creative or desperate litigant.

Nor can the statute reasonably be read in a manner where specific allegations and an affidavit are not required, as the majority does here. The majority’s reading of the statute appears to assume that section 2 — 1001(a)(3)(ii) does not apply because the opinion not only discounts Bailey’s failure to cite specific causes but excuses her failure to support her petition with an affidavit. See, e.g., Fisher v. Waldrop, 221 Ill. 2d 102, 112 (2006) (reviewing court should avoid a statutory interpretation that renders any term meaningless or superfluous). In Estate of Hoellen, we analyzed the very language of the statute that was added by amendment on January 1, 1993, and held that “a party’s right to have a petition heard by another judge is not automatic. 735 ILCS 5/2 — 1001(a)(3) (West 2004) (as amended by Pub. Act 87 — 949, §1, eff. January 1, 1993). In ‘order to be entitled to a hearing before another judge on whether a substitution for cause is warranted, the motion must allege grounds that, if taken as true, would justify granting a substitution for cause.’ ” In re Estate of Hoellen, 367 Ill. App. 3d 240, 248 (2006), quoting Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d 644, 649 (1997); 735 ILCS 5/2 — 1001(a)(3) (West 2004) (as amended by Pub. Act 87 — 949, §1, eff. January 1, 1993). I would affirm this case based on Hoellen and Alcantar because the interpretation of section 2 — 1001 in those cases gives meaning to both subsections (ii) and (iii).

It is well established in Illinois that a circuit court judge is presumed to be impartial and the burden of overcoming this presumption rests with the party asserting bias, who must present evidence of personal bias stemming from an extrajudicial source and evidence of prejudicial trial conduct. Hoellen, 367 Ill. App. 3d at 248-49, citing In re Marriage of Hartian, 222 Ill. App. 3d 566, 569 (1991). In her petition, Bailey did not cite to any specific statement or indicate what the judge said that was indicative of bias, prejudice or partiality and did not support her motion with an affidavit. The majority here dispenses with not only the requirements of subsection (ii) but also the longstanding presumption of impartiality enjoyed by judges in Illinois by reading section 2 — 1001 as allowing automatic transfer for a hearing.

The majority cites to In re Marriage of Schweihs, 272 Ill. App. 3d 653 (1995), for support of its departure from Estate of Hoellen and Alcantar. Schweihs does not stand for the proposition that the amendment to section 2 — 1001(a) of the Code requires an automatic hearing before a different judge once prejudice or bias is alleged. In fact, the Schweihs court did not address whether a threshold analysis was to be undertaken at all. The Schweihs court reviewed the ruling in the circuit court on the merits of specific allegations of prejudice and misconduct. The only conclusion the Schweihs court drew from the newly amended statute was that a reviewing court would no longer apply the deferential abuse of discretion standard to the new judge deciding the merits of the allegations because a different judge would not be intimately familiar with the proceedings, as was the judge against whom prejudice was alleged. The court in Schweihs stated:

“After the new statute governing motions for substitution of judge went into effect on January 1, 1993, a judge facing a petition for substitution for cause needed to refer the petition to ‘a judge other than the judge named in the petition.’ [Citation.] This court no longer owes the trial court the extreme deference appropriate under the prior statute, because the trial judge deciding the petition no longer has ‘unique insight into the thought processes of the judge who is alleged to be biased.’ [Citation.] The trial court, like any other fact finder, must weigh the evidence to determine whether the named judge showed prejudice. We find that under the revised statute, as with the similarly revised section of the Code of Criminal Procedure of 1963 [citation], we now will not reverse a determination on allegations of prejudice unless the finding is contrary to the manifest weight of the evidence.” Schweihs, 272 Ill. App. 3d at 659.

Relative to Jiffy Lube International, Inc. v. Agarwal, 277 Ill. App. 3d 722, 727 (1996), the majority concedes that no “threshold” analysis was conducted in that case. More importantly, however, the petitioner in the Jiffy Lube case alleged prejudice and supported his allegations with specifics, namely, that the party had filed a complaint against the trial judge with the Judicial Inquiry Board. Jiffy Lube, 277 Ill. App. 3d at 727. The Second District Appellate Court reversed the circuit court’s denial of the motion to substitute, stating:

“The petition in the case at bar was heard and denied by *** the same judge from whom defendant sought the substitution. Such a procedure is not in compliance with the statute, which mandates that such a petition shall be heard by a judge other than the judge named in the petition.” Jiffy Lube, 277 Ill. App. 3d at 727.

I unquestionably agree with the outcome of the Jiffy Lube decision, but I find it to be of little instructive value on the issue before us. First, in Jiffy Lube, there was clearly a specific cause of prejudice articulated in the underlying motion for substitution of judge, which, if taken as true, would without a doubt be a basis for substitution of the judge. The filing of a Judicial Inquiry Board complaint against the judge before whom the case was pending was an extrajudicial occurrence that strongly called into question the judge’s ability to remain fair, objective and impartial. There is no comparison to that factual scenario and Bailey’s claim that the judge here found her testimony to be unbelievable. I agree; it was improper for the judge in Jiffy Lube to deny transfer of the petition. Second, there is no citation, analysis or mention of section 2 — 1001(a)(3)(ii) at issue in Jiffy Lube.

Based on the language of sections 2 — 1001(a)(3)(ii) and (a)(3)(iii) and the Estate of Hoellen and Alcantar cases, I would not depart from the two-step analysis that circuit courts have applied prior to today’s decision.

II. THE MAJORITY’S THRESHOLD ANALYSIS

The majority holds, in the alternative, that even if it applied the threshold analysis under subsection (ii), it would find that Bailey’s petition sufficiently pleaded bias supported by specific causes. I strongly disagree with any after-the-fact investigation of the record for purposes of filling in the blanks left by Bailey. She apparently did not find anything in the record sufficiently supportive of her claim of bias that would merit inclusion in her petition or in her briefs on appeal. However, the majority has done that for her in this case in addition to excusing her failure to submit an affidavit in support of her motion without any apparent rationale. While examination of the record is indispensable to resolving every case, it is not this court’s responsibility to examine the record for the purpose of filling in the omitted specific causes required by the statute. I cannot help but note that this implies a certain amount of advocacy that benefits only Bailey, yet the majority has criticized the circuit court for its advocacy on Williams’ behalf. In my view, it is not this court’s function to revive a statutorily insufficient petition. We may not further ignore the statutory mandate that the petition be supported by affidavit of the movant.

It is important to note that all of the statements upon which the majority relies in deciding that Bailey’s petition was sufficient were not found in Bailey’s motion for substitution of judge or in her briefs on appeal. For example, the court’s doubt of Bailey’s representation that Wilson’s level of dementia was slight, the court’s suggestion that Bailey misunderstood her authority under a power of attorney, the court’s belief that putting over $150,000 in cash in a closet was improper, and the court’s view that Wilson may have been left alone are not mentioned anywhere in Bailey’s motion or in the briefs on appeal. I would further suggest that they were not included in the motion by Bailey because those facts were very unfavorable to her.

The proceeding on June 8, 2006, which was the hearing for Bailey’s motion for a TRO against the GAL and Williams, was the basis for Bailey’s motion for substitution of judge. At this point, the judge was being asked to return control of Wilson’s money and healthcare to the woman who allegedly took several hundred thousand dollars and built an addition on her own home, purchased horses, a Ford F-350 Super Duty pickup truck, allegedly for an 86-year-old woman, paid taxes on property that Wilson did not own and deposited cash taken from Wilson’s retirement fund into her personal checking account before abandoning Wilson at a time when she no longer had the ability to use language as a form of communication. I have no quarrel with the circuit court’s decision to inquire of Bailey before deciding whether to give her control over Wilson’s purse strings and health and to remove the GAL and the temporary guardian.

It is well-settled law in this state that the court is not required to sit mute and that the circuit court may question a witness in order to elicit the truth or to bring enlightenment on material issues which seem obscure. See People v. Palmer, 27 Ill. 2d 311, 314 (1963); People v. Byers, 11 Ill. App. 3d 277, 279 (1973); People v. Trefonas, 9 Ill. 2d 92 (1956); Olsen v. Staniak, 260 Ill. App. 3d 856, 864 (1994); People v. Green, 17 Ill. 2d 35 (1959); People v. Bradley, 128 Ill. App. 3d 372, 382 (1984).

I do not find the circuit court’s inquiry of Bailey to be adversarial, hostile or sarcastic when read in its entirety and in light of the troubling facts that had been disclosed to the court by the GAL, the temporary guardian and Bailey herself. Though it is true that the circuit court indicated that it did not believe Bailey, I do not view this expression as an indication of the court’s bias, but rather, the circuit court’s finding based on Bailey’s testimony and credibility. See Liteky v. United States, 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994) (judicial rulings alone almost never constitute valid basis for a bias or partiality motion). Also, although the majority finds it significant that the court’s questioning of Bailey spanned 15 pages in the transcript, it makes no mention of the approximately 2,000 remaining pages of record that clearly demonstrate the circuit court’s patience, fairness and willingness to hear all parties’ claims and concerns throughout the trial. Instead the majority relies on its own ability to discover the portions of the record that it found would have been relevant had they been included and properly alleged in a motion for substitution of judge, which did not occur here.

Moreover, the questioning undertaken by the circuit court that Bailey complains of concerned the immediate welfare and protection of the alleged disabled person and her estate. Bailey was seeking to regain control of Wilson’s finances and healthcare though a TRO and emergency motion when she was examined by the court. In this case “the immediate welfare and protection of the alleged disabled person and his or her estate shall be of paramount concern, and the interests of the petitioner, any care provider, or any other party shall not outweigh the interests of the alleged disabled person.” 755 ILCS 5/1 la — 4 (West 2006).

Here, I would hold that Bailey did not meet the threshold showing of bias or prejudice required to transfer the motion to another judge under Estate of Hoellen and Alcantar. The motion for substitution made no reference to any evidence of personal bias stemming from an extrajudicial source, or other specific improper conduct, statement, gesture or other indication of partiality or bias, and was not supported by affidavit. Respondent simply stated that the circuit court placed respondent under oath, asked questions of an adverse nature and indicated that it did not believe respondent. Respondent refers to actions in which the circuit court was not only permitted, but indeed required, to take given the physical and financial circumstances under which Wilson was brought to the attention of the court. Moreover, this was not a case where the judge summarily denied Bailey’s motion for substitution of judge. The judge allowed a brief in support of the motion, a response and a reply to the response before a hearing was had on the motion. In addition, when taken together with the timing of the petition and the short shrift that respondent gave the motion in both the lower court and on appeal, the circumstances suggest that the purpose of the petition may have been merely to delay the proceedings.

III. CONCLUSION

Based on the evidence in the record and the previous decisions of this court, I would affirm the circuit court’s ruling that respondent’s motion for substitution of judge for cause was insufficient on its face because it was not verified by affidavit of the movant and it did not support the allegation of personal bias or prejudice with a specific fact or facts demonstrating bias. Accordingly, I dissent.

2 The majority opines that Hoellen, Alcantar and Damnitz are not consistent with the language in section 2 — 1001(a)(3) and are distinguishable based on their specific allegations of bias. I recognize that Damnitz was a criminal case, addressing a criminal statute, and I agree that it is not applicable here. Hoellen and Alcantar, however, are the only two cases that have ever addressed section 2 — 1001(a)(3)(ii) specifically and have been relied upon in this state for the last 12 years.