For more than 20 years, the law under Illinois Code of Civil Procedure §2-1001(a)(2) has been that a party may move for substitution of judge one time without cause as a matter of right. 735 ILCS 5/2-1001(a)(2)
Before 1993, the Code of Civil Procedure required that a petition be filed expressly alleging that the trial judge was prejudicial for some specific reason in that particular case. In 1993, an amendment to the statute was made that stated “one substitution of judge without cause as a matter of right” if the motion “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.”
The case centered on a dispute between four siblings about the ownership of a family farm in Pike County, Ill. The validity of a §2-1001(a)(2) motion was contested. In this case, John Schnepf, one of the parties, filed a 2-1001(a)(2) motion before the trial started and before the judge ruled on any substantial issue. But the judge presiding concluded that her comments during arguments on other matters “certainly indicated some issues that I have problems with” and that “the parties had an opportunity to test the waters” and thus, Schnepf’s motion to substitute judges was denied.
The “test-the-waters” doctrine was made obsolete 20 years ago by the new version of §2-1001(a)(2).
Under the prior law, the automatic substitution of a judge first required an inquiry as to whether the motion was done to delay the case or whether the movant had an opportunity to test the waters and form an opinion as to the court’s reaction to the claim.
The Schnepf court here stated that “under the present version, it is not necessary to allege that the judge is prejudiced against the defendant. Under the present version of Section 2-1001(a)(2), the right to a substitution without cause must be ‘timely exercised’, a party timely exercises his right if his motion ‘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.’ 735 ILCS 5/2-1001(a)(2)(ii).”
Accordingly, since the “test-the-waters” doctrine was rendered obsolete 20 years ago by the introduction of the right to a substitution of a judge without cause under the new section of the Illinois Code of Civil Procedure, the trial court should not be allowed to preempt the statute, which gives an absolute right for substitution without cause. The statute could circumvent the statute deliberately by engaging in some sort of courtroom argument in an effort to cause the judge to unwittingly express an opinion on the merits of the case. That will not be allowed, according to the Illinois Appellate Court in this case. Accordingly, the appellate court reversed the trial judge’s refusal to allow substitution of judge.
Schnepf v. Schnepf, 2013 IL App. (4th) No. 121142 (Sept. 11, 2013).
Kreisman Law Offices has been representing individuals, families and Illinois businesses for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Rolling Meadows, Mundelein, Rosemont, Richton Park, Mount Prospect, Hoffman Estates, Orland Park, Arlington Heights, Chicago Heights, Naperville, St. Charles, Huntley, Hoffman Estates, Berwyn, Cicero, Palatine, Tinley Park, Chicago (Beverly), Lincoln Square and Des Plaines, Ill.
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