By Michael Strauss, Published in ISBA’s Newsletter Section on Family Law, August 2021 • Volume 65 • Number 2
For years, the common practice has been that once a judge opines at a pretrial conference or just in general on the case, then a party could not successfully replace the judge by way of a substitution of judge as of right. By way of example, a party files to modify parenting time. Prior to the hearing, the judge conducts a pretrial conference and clearly states that judge is not in favor of the pleading and at the hearing will most likely deny it. Historically, the thought was that you could not then substitute that judge after testing the waters. However, that has all changed with the ruling of the Illinois Supreme Court in Palos Community Hospital v. Humana Insurance Company, Inc., 2021 IL 126008 (IL 2021).
In the Palos matter, the hospital filed for fraud, breach of contract, and other relief against the respondent and other parties as well. The judge did make recommendations in this matter. On April 20, 2017, Palos Community Hospital filed a motion to substitute the judge pursuant to 735 ILCS 5/2-1001(a)(2). That statute provides, “(a) A substitution of judge in any civil action may be had in the following situations…(2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2). (i) Each party shall be entitled to one substitution of judge as a matter of right. (ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issues in the case, or if it is presented by consent of the parties…”
On May 4, 2017, the trial court conducted a hearing on the motion to substitute. The trial court stated, “these motions are usually liberally granted, except when the parties have had the opportunity to test the waters” and “that testing the waters ‘remain[ed] an exception to the substitution of judge motion in the First District.” Id. The trial court denied the motion because “[E]ven if no actual ruling was issued, the trial court stated that a substitution motion can be denied when the party ‘had an opportunity to test the waters and form an opinion as to the court’s disposition of an issues’.” Id.
On May 16, 2017, the trial court heard the motion to reconsider filed by Palos Hospital. Palos Hospital also asked for Illinois Supreme Court Rule 308 language to allow for an immediate appeal of the issue if they were once again denied. Palos Hospital correctly pointed out that, “if there was no immediate appeal and a reviewing court later determined that the motion should have been granted, all proceedings after the erroneous denial would be void.” Id. The trial court then denied both the motion to reconsider and the request for 308 language. Palos Hospital inevitably appealed after the case completed and the appellate court affirmed the trial court’s ruling and affirmed the testing the waters exception.
The question that the Illinois Supreme Court address was “whether the test the waters doctrine is a valid basis on which to deny a motion for substitution of judge as a matter of right given the language of section 2-1001(a)(2) of the Code.” Id. The supreme court focused on the language of the statute and found it to be unambiguous. They held “that the test the waters doctrine is incompatible with the plain language of section 2-1001(a)(2).” Id.
The statute is clear. A proper motion to substitute as of right must be filed prior to trial or hearing and before a substantial ruling has occurred. The statute is silent as to recommendations by judges or pretrial conferences. In this matter, no trial or hearing had occurred and no substantial ruling had occurred. Further, “because the legislature has established a statutory right to substitution of judge without cause so long as certain criteria are met, courts are obligated to uphold that right. We therefore hold that every order entered by the trial court after April 20, 2017, when Palos filed its substitution motion, must be vacated.” Id.
The Illinois Supreme Court then ruled as follows, “In sum, we hold that the test the waters doctrine is incompatible with the text of section 2-1001(a)(2). We further hold that the trial court erred in denying Palos’s motion for substitution of judge as of right because its motion satisfied the statutory criteria. Accordingly, we reverse the appellate court’s decision. This action is remanded to the trial court with directions to vacate all orders entered by the court after April 20, 2017, and for further proceedings consistent with this opinion.” Id.
I find two major takeaways from this case. First of all, when denying a motion for substitution of judge, the judge must grant the 308 language. This must be done to avoid potentially court time and resources that may get entirely vacated. Further, it must be done to avoid the attorney fees and costs that both parties will be faced with if and when the ruling is vacated. Second, attorneys and parties must know that if they conduct a pretrial settlement conference with the judge, a party that is unhappy with the result and with the direction that the judge is going can file the substitution and it should be granted. Therefore, it may be best practice to not conduct that settlement conference with the judge until after a substantial ruling has occurred.