CBA Record

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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