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A
ttorneys who find themselves in a similar position can
now look to the Illinois Supreme Court’s opinion in
Bowman v. Ottney
(filed December 17, 2015,
rehearing
denied
January 19, 2016) for some guidance, although the Court’s
opinion–delivered by Justice Freeman–declines to address the ques-
tion of whether the “test the waters” doctrine is still valid under
the post-1993 amendment of the statute governing substitution
as of right, 735 ILCS 5/2-1001(a)(2)(ii). The Court’s holding is
not a shot in the arm for litigants seeking a substitution of judge.
Case Background
Bowman
involved a medical malpractice case filed against two
defendants–Dr. Michael D. Ottney and Core Physician Resources,
P.C.–in Jefferson County. The case was assigned to Judge Over-
street, who presided over extensive pretrial proceedings over the
ensuing four years, issuing rulings on substantial issues, including
discovery disputes.
Bowman
, 2015 WL 9229316 at *1. [citation
forthcoming]
Bowman then voluntarily dismissed her complaint without
prejudice prior to trial, then re-filed the case four months later–this
time with Ottney as the sole defendant. The re-filed complaint was
also filed in Jefferson County, asserting the same claims against
Ottney as the original complaint, and was again assigned to Judge
Overstreet. The re-filed case was given a new docket number,
however.
Upon re-filing, Bowman immediately moved for substitution
of judge as of right under 2-1001(a)(2)(ii), which provides that a
substitution of judge “in any civil action” may be had as follows:
(2) Substitution as of right. When a party timely exercises his
or her right to a substitution without cause as provided in this
paragraph (2).
(i) Each party shall be entitled to one substitution of judge
without cause as a matter of right.
(ii) An application for substitution of judge as of right shall be
made by motion and shall be granted if it is presented before trial
or hearing begins and before the judge to whom it is presented
has ruled on any substantial issue in the case, or if it is presented
by consent of the parties.
Ottney objected to the motion, claiming it was not timely
because Judge Overstreet had made pretrial rulings on substan-
tial issues during pendency of the original action, and prior to
its voluntary dismissal. To buttress his argument, Ottney further
contended that Bowman had “tested the waters” in the original
action. Ottney also cited an appellate court decision,
Ramos v.
Kewanee Hospital
, 2013 IL App (3d) 120001, ¶ 88, 372 Ill.Dec.
564, 581, 992 N.E.2d 103, 120 (“[a] motion for substitution of
judge may also be properly denied, even if the presiding judge did
not rule on a substantive issue, if the litigant ‘had an opportunity
to test the waters and form an opinion as to the court’s disposition’
of an issue”) (quoting
Cincinnati Insurance Co. v. Chapman
, 2012
IL App (1st) 111792, ¶ 23, 363 Ill.Dec. 401, 975 N.E.2d 203).
The court denied Bowman’s motion for substitution of judge,
but granted her request for certification of the following question
for interlocutory appeal:
In a case which had previously been voluntarily dismissed pursu-
ant to 735 ILCS 5/2-1009 and then subsequently re-filed, does the
trial court have discretion to deny a Plaintiff’s immediately filed
Motion for Substitution of Judge, brought pursuant to 735 ILCS
5/2-1001, based on the fact that the Court had made substantive
rulings in the previously dismissed case?
The appellate court (5th Dist.) allowed the application for leave
to appeal, and answered the certified question in the affirmative.
CBA RECORD
35
Consider this scenario: The most important, high-stakes case in your current
portfolio is right in the heat of discovery, with depositions occurring almost daily.
Looming ahead are dispositivemotions that will either gut the case or place it in a
great position to settle, and the esteemed judgewhowill hear themotions–Judge
Learned Cardozo–has already issued several unfavorable rulings on key discovery
issues that make you a bit nervous about what the future will bring. You want to
consult with your client about the option of seeking a substitution of judge as a
matter of right, but believe that the judge will deny your motion, given that he
has alreadymade substantial rulings in the case. You believe that youmay be able
to get around the issue by dismissing the case without prejudice, re-filing it and
immediately seeking a substitution of judge–but assuming it is again assigned to
Judge Cardozo. You believe, however, that the “test the waters” doctrine may still
bar your ability to substitute judges upon re-filing. You need a clear answer, and
begin scouring the case law in earnest.