CBA Record April

Relying, in part, on

Ramos

, the majority

held that Bowman’s motion for substitu-

tion of judge was properly denied under

the “test the waters” doctrine. The court

held that the doctrine was applicable, and

that the denial of Bowman’s motion was

appropriate because she had “tested the

waters” during the original suit.

The Illinois Supreme Court then allowed

Bowman’s petition for leave to appeal.

The Supreme Court’s Analysis

Applying traditional principles of statutory

construction, the Supreme Court analyzed

2-1001(a)(2)(ii) in the context of the vol-

untary dismissal and re-filing provisions

of the Code, which are set forth in Code

sections 2-1009(a) and 13-217. Section

2-1009(a) allows an action to be dismissed

without prejudice at any time before trial or

hearing begins, and section 13-217 allows

for the re-filing of an action that has been

voluntarily dismissed within one year from

the date of dismissal.

In support of her argument that the trial

court erred in denying her motion for sub-

stitution of judge, Bowman contended that

a “bright line” rule allowing a substitution

as of right should be drawn, even where

the motion is presented in a re-filed action

after the same judge has made substantive

rulings in the case that was previously dis-

missed. Bowman focused on the specific

“in the case” language contained within

2-1001(a)(2)(ii) (“[a]n 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

***”) (emphasis added). Under Bowman’s

strict interpretation analysis, the statute’s

“in the case” language only applies to the

currently-pending case, meaning that the

substantive rulings made in the original

case should not have been a factor in the

court’s determination.

Ottney countered that 2-1001(a)(2)

(ii) should be construed more broadly

to effectuate the statute’s purpose, which

includes the prevention of “judge shop-

ping.” Ottney’s suggested interpretation

would allow the trial court to consider the

overall controversy between the parties–in

this case giving Judge Overstreet discretion

to deny the motion for substitution, given

that he had issued rulings on substantial

matters in the previously dismissed action.

As a precursor to deciding the issue, the

Court delved into the legislative history

behind the 1993 amendment to 2-1001(a)

(2)(ii). In brief, the 1993 amendment

codified earlier case law holding that a

litigant was entitled to one “change of

venue” on grounds of judicial bias or

prejudice, which right was considered to

be “automatic” because the substitution

request was required to be supported only

by generalized allegations, which need not

be proved.

American State Bank v. County

of Woodford

, 55 Ill.App.3d 123, 128, 13

Ill.Dec. 515, 371 N.E.2d 232 (1977).

Under the new, post-amendment statute,

a litigant is entitled to one substitution

without cause as a matter of right, so long

as the request for substitution is “presented

before trial or hearing begins and before

the judge to whom it is presented has ruled

on any substantial issue in the case.” After

the judge has made substantive rulings in

the case, however, subsection (a)(3) of the

statute permits substitution for cause only.

Thus, the Court concluded:

[T]he 1993 amendment did not alter

the restriction to only one substitu-

tion as a matter of right, nor did

it change the requirement that the

motion be brought before the judge

to whom it is presented has ruled

on any substantial issue in the case.

These aspects of the previous statute

are the same today as they were

before 1993, and the purpose of the

statute remains the same.

Bowman

at *5, ¶ 16.

No “Bright Line” Rule

As a forecast of its resolution of the case,

the Court then acknowledged case law

supporting both the absolute right to a

substitution of judge upon proper motion

and the requirement that the statute be

construed liberally to promote–rather than

defeat–the right of substitution. However,

the Court observed that liberal construc-

tion does not excuse a party from comply-

ing with the requirements of the statute.

Moreover, the Court declared that it would

“avoid a construction that would defeat the

statute’s purpose or yield absurd or unjust

results.”

Bowman

at *5 (citing

Krautsack

v. Anderson

, 223 Ill. 2d 541, 558 (2006)).

The Court declined to adopt Bowman’s

proposed “bright line” rule premised on

the “in the case” language. Although the

case had been assigned a different docket

number, required payment of a new filing

fee, and required that she again serve

Ottney with process, the Court disagreed

with Bowman’s assertion that it was a

“new case” such that she was automatically

entitled to a substitution of judge without

cause. The Court acknowledged that re-

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