*1 suсh, the As AFSCME court’s determination that the reclassification not arbitrary or capricious merely was not dicta. al., A. Plaintiffs-Appellants, CHARLES AUSSIEKER et v. THE CITY OF BLOOMINGTON,Defendant-Appellee.
Fourth District No. 4 — 04—0540 Argued Opinion January 27, December 2005. part. J., dissenting in APPLETON, concurring specially concurring part. MYERSCOUGH, J., PC., appel- Mоrel, Bloomington, for (argued), Morel of John L. John L. lants. *2 Counsel, Bloomington, ap- for Corporation Greenburg (argued),
J. Todd pellee. opinion of the court: delivered the
JUSTICE STEIGMANN multiple- plaintiff in a each In this we consider whether judge one for substitution of plaintiff civil case entitled to motion 1001(a)(2) Procedure of the Code of Civil right under section 2— 2002)). (Civil Code) (735 1001(a)(2)(West We conclude that ILCS 5/2 — yes, denying the trial court’s order the answer is and we reverse judge as plaintiff Arnold Zimmer’s for substitution of R. motion right.
I. BACKGROUND owners, 26, 2004, estate April plaintiffs, taxpayers On real defendant, City against declaratory judgment filed a action Bloomington, city appropriate thаt did not exercise alleging soliciting municipal for the of a arena. diligence bids construction 27, 2004, dismiss, hearing filed a April city On a motion to held, 30, for April hearing was scheduled Before Judge Reynard Elder James D. filed a motion substitute Charles (735 1001(a)(2) ILCS under section of the Civil (West 2002)). 30, 2004, granted April On trial court motiоn, reassigned Judge and the case was Donald D. Elder’s later Bernardi. dismiss hearing city’s
The trial court set a motion to on 12, 2004, 14, response city’s 2004. On filed a May May day, motion. Also on that Zimmer filed a motion for substitution of Code. On judge as of under section the Civil motion, objection alleging an May city and should purpose the motion was for the preserved and, alternatively, Zimmer had not therefore denied by informing judge to file a second he motion joining the court that was not in Elder’s for substitution May hearing on Zim- On the trial court first conducted mer’s motion for substitution of it. Specifically, found court that the 17 nаmed individual constituted party and thus were collectively entitled to motion substitution of under section of the Civil Code. explained The court further multiple plaintiffs can be distin- guished from multiple separate defendants who are considered entitled to motions for substitution under Illinois law. court then a hearing city’s conducted on the motion to dismiss plaintiffs’ complaint granted motion leave refile 21 days. within
This appeal followed. THE II. TRIAL COURT’S DENIAL OF ZIMMER’S MOTION
FOR SUBSTITUTION OF JUDGE argue Plaintiffs that the trial court erred by denying Zimmer’s multiple- motion because plaintiff civil action entitled to
as of of the Civil Code 1001(a)(2)(West 2002)). agreе. We 5/2 — interpreting statute, When an appellate must ascertain give legislature’s intent, effect to the and the best indication intent language People Olsson, such is the statute itself. statutory When the language unambiguous, give is clear and a court its must effect to *3 plain meaning statutory and resort ordinary without to other tools of Homes, Grove, Long v. 2d Village construction. Raintree Inc. 209 Ill. of (2004). 255, 439, 248, 444, Further, in a 807 N.E.2d undefined words given plain ordinary meaning. statute are their and In re Estate of (2003). Poole, 393, 406, 250, 207 Ill. 2d 799 N.E.2d 258 1001(a)(2)(i) provides Section of the Civil Code that “in 2— *** civil action shall be entitled of [e]ach substitution 1001(a)(2)(i) as a judge right.” without cause 735 ILCS 5/2 — “ (West 2002). construed, liberally This is ‘to and statute where met, deny conditions are the trial has no request discretion it simply unless is shown that the motion was made or avoid ” Ass’n, Leasing Inc. v. Advanta Beverage trial.’ Illinois Licensed (2002), Services, 255, App. 333 Ill. 3d 776 N.E.2d 259-60 414, 1157, Moses, 413, Sahoury App. 308 Ill. 3d 719 N.E.2d quoting v. (1999). requesting judgе 1158 If the motion is filed ruling, presiding judge right before the has made a substantial 333, Ill. Scroggins Scroggins, App. is 327 3d substitution absolute. (2002). 336, 1195, any order Additionally, 1198 entered judge improperly a motion for of is is void. substitution
501 The Fifth District Advanta, 932, at N.E.2d at 260. App. Ill. 3d 776 333 action multiple-defendant defendant in a has held that each individual has an and each such separate party, be a is deemed to under section independent v. A.P. Green of the Civil Code. Boatman 2— Refractories 1066, (1991); Beahr N.E.2d Co., App. 3d 600, 601, 668 Inc., Ill. 3d Systems, App. inger v. Hardee’s Food 614, 615 N.E.2d distinguish multiple attempts plaintiffs
In this defendant applying section multiple purposes dеfendants from persuaded. not The statute of the Civil Code. We are and differentiating party” refers to “each between defendants, respect to situations involv- statute silent multiple 735 ILCS ing multiple defendants. See 5/2— (West 2002). 1001(a)(2)(i) does not define Because statute The given plain ordinary meaning. “party,” it must be its word against a lawsuit “party” “[o]ne is defined whom word 2004). (8th Dictionary 1154 ed. Each of the brought.” Black’s Law city and, bringing against in this a lawsuit accord- case is each ing plain ordinary meaning “party,” word should be entitled to file a motion for substitution of 1001(a)(2) of Code. Beahringer support holding Both lend to our Boatman in this applies section of the Civil Code defendants, do Although multiple they discuss case. these cases rule to situations application not out of section 2— involving plaintiffs. Boatman, 3d multiple See 1066; Beahringer, N.E.2d regarding its misinterpretation trial court’s statute sec- multiple by consideration of treatment of is further shown 5(b) (Criminal tion of the Code Criminal Procedure of Code) (725 5(b) (West 2002)). section, has This the enactment modern code of criminal existed since of Illinois’s in a multiple defendants procedure addresses the issue matter regarding criminal motions for substitution of and states as follows: hours after a motion is made “Within defendants!!,] each defendant shall a cause with (a) [s]ection to move in accordancewith subsection judges named of one The total number a substitution *4 prejudiced by as shall not exceedthe total number all defеndants judge in a cause first motion for substitution of defendants. The days multiple within 10 with defendants shall made been placed judge.” cause has 5(b) (West2002). on the trial of a call 725 ILCS 5/114— The multiple references defendants and the implementation of a time limit in defendant file a substitution-of-judge mo- tion demonstrаte the legislature’s ability to restrict motions for cases involving multiple legislature when the wishes to so. city effectively do The here is 1001(a)(2) arguing that should we construe section of the Civil 2— 5(b) as if it along Code read the lines of section the Criminal 114— Construing sug- Code. We decline to do so. the statute as defendant gests would judicial legislating. amount to We further note that the legislature has revised 2—1001 section Civil Code three times years, attention, the last 20 and despite legislative the General Assembly opted has not add the multiple-party provision it placed 5(b) years section of the ago. Criminal Code hold We thus that under section (West 2002)), in a multiple- 5/2 — civil case entitled one motion for substitution of as right. Accordingly, we conclude that the trial by denying court erred motion substitute
In concluding, city so policy-related argu we note makes ments in support of its contention that section Civil Code be interpreted distinguishing multiple should as between multiple particular, city In defendants. asserts following: a multiple-plaintiff if to file motions substitute alleging grounds, potential exists defendants justice, guaranteed will be denied their obtain prompt as (Ill. I, article Illinois section Constitution of Cоnst. I, 12), § art. exist fundamental differences between in civil as city’s defendants cases. Whatever merit have, apply they sertions our is to are duty statutes as written. city change should address its proposed law institu charged making policy tion this state General As public with —the sembly.
III. OF STANDING COPLAINTIFFS agree we Zimmer that the trial court erred Because denying judge, all of the trial court’s The other 16 subsequent orders are null void as to Zimmer. Advanta, plaintiffs, citing the null-and-void rule as discussed are they 3d at at assert that entitled is, all of the trial the same benefit of this rule Zimmer—that *5 erroneously after the court orders entered court’s They are to them. null and void as are mistaken. this claim because standing no to raise plaintiffs other Elder, Indeed, affect them. ruling did not
the trial court’s erroneous plaintiffs, filed a motion automatic one other granted. Under these Zimmer, motion was and Elder’s before Eldеr’s court’s dismissal of circumstances, ruling reversing the trial Zim- erroneously denied ground that complaint on sole sense. simply makes no mer’s motion of the other theory underlying this claim Further, we note that ruling adversely erroneous trial court’s plaintiffs namely, — adversely affecting similarly as affecting Zimmеr be viewed should plaintiffs’ fundamen- counter to those coplaintiffs each of —runs that each of began asserting this argument tal with we assert may separately in this is a who plaintiffs separate case parties in a who is entitled rights statutorily afforded separately coplaintiffs. frоm her to be treated his or
IV CONCLUSION stated, judgment trial For the reasons affirm the court’s we Zimmer, dismissing complaints except for plaintiffs of each of the remand judgment the trial court’s as to Zimmer and we reverse herein. proceedings expressed for further consistent with the views direc- cause with part part; Affirmed and reversed remanded tions. APPLETON, specially concurring
JUSTICE part: holds the other agree majority opinion with that standing any complain have no error the denial However, my agreement the motion for substitution. the reasons for opinion me which reverses portion cause to dissent from that the order Zimmer. on the motion substitution as filed, fil- payment When cause it of one was fee. matter ing Only charged one fee was because —no By filing complaint, one many party. how individuals —are one yoke together party. as one As the plaintiffs chosе themselves provides: any may join plaintiffs, as whom persons “All in one action or respect arising relief out of the same transaction of or severally!,] exist, jointly, alleged whether series of transactions alternative, or in the if persons whenever those had separatе any question actions common or law fact would If arise. upon any the application it appear joinder shall may action, embarrass may or the trial of the the court order separate any trials enter expedient. other order that be Judgment may be enterеd for or more of the who relief, found be entitled to for the relief to which he or (West2002). they may she or he entitled.” 5/2—404 Viewing joined plaintiffs party, giving rise to interpreta- tion that such party” “one is entitled to of judge cause, supported the approach supreme used our court under the old statute regarding peremptory challenges. Peremp- tory challenges, judges, like substitution of are not creatures of the law Gedman, common but of statute. Curtis 338 Ill. App. Prior to the enactment of section 2—1106 Civil Code *6 (West 2002)), ILCS allowing peremptory challenges in 5/2 —1106 excess of the multiple joined parties, maximum for the court interpreted peremptory challenges the award of aas number of chal- lenges allowed a to each side of case no matter the number of particular
or defendants occupying a side. See North American Oyster Restaurant & v. McElligott, House 227 Ill. 81 N.E. (1907); Co., Chicago Schmidt v. & Ry. Northwestern 405, 407-08 an by
Absent expression legislature of an intent to the I contrary, allowing the statute an believe automatic or no-fault side, right applies to each no mat- ter populous how the side hold be. To otherwise would allow upon havoс to be a justice. wreaked the administration of On case of public interest such as this where of the resolution create a very injury public real to the and the effective administration of government, ruling open majority’s presents an invitation to approximately 1,000 in judges mischief. There are trial the State of Il- 1,001 plaintiff litigants linois. If a committed attracted and each fellow change judge, justice entitled to a the administration of would game spins become an endless of roulette the wheel where forever with no winner established. MYERSCOUGH, concurring dissenting
JUSTICE in part part: part majority opinion
I which holds that аgree with the (735 1001(a)(2)(i) ILCS (West 1001(a)(2)(i) 2002)), multiple-plaintiff a right. as of for substitution is to one motion entitled payment Appleton, made Justice argument Contrary matter how “the fee not made because filing is —no (Appleton, at 503 many party.” individuals —are Instead, dissenting part). J., specially concurring fee оn the nature filing fees either base the pertaining statutes in a lawsuit recognize itself that each individual the action or party. example, For exempt by more than one “party” payment a is population based on the of the circuit court are the fees of clerk the action. on the nature of action is filed and county which the 2002). (West Further, 105/27.1, 27.1a, numer- 27.2, ILCS 27.2a See 705 filing party” upon payment fee “each require ous statutes if more required fee shall be exception that “no additional represented pleading, paper[,] other party single thаn one in a 2002) (West fee); (court-security appearance.” ILCS 5/5—1103 fee) (court-automation (document-storage fee), ILCS 27.3c 105/27.3a (West 2002). joined party, not as one Clearly, plaintiffs are viewed therefore each is entitled to (735 1001(a)(2)(i) language plain
cause under the of section 2— (a)(2)(i) (West 2002)). 5/2—1001 havoc on the administration of interpretation
Such will not wreak 1,001 litigants justice. Appleton points Justice situation where change (Apple- 3d at 504 would be entitled to However, ton, part). J., concurring specially (West through 2—806 the class action statutes ILCS 5/2 —801 2002)) provide reprеsentative the means for a sue as a where, among requirements, class other “class so numerous 801(1) joinder is impracticable.” of all members 735 ILCS 5/2 — (West 2002). cases, only representative(s) the named would be In such a matter of “party” considered a entitled to a substitution of right. dissent, howevеr, majority’s holding affirming from the *7 complaints remaining plaintiffs. of each of the
dismissal argues improper after the majority that the trial court’s orders entered denial are null and void of Zimmer’s motion plaintiffs. disagree. remaining as to Zimmer not the judge brought, any proper Once all should have been orders entered the motion F., 2d granted nullity. Dominiquе are a In re (1991); Commacho-Esparza, Rodisch 346, 351-52, (granting 3d trial after 722 N.E.2d new judge improperly denied the C.M.A., judge); also, e.g., see In re Petition (holding that “once motion for substitution of brought, cause is power loses all case”). and authority such, over the As orders entered after the impropеr denial of Zimmer’s motion for were null and void. The majority’s result separation leads to a of Zimmer’s case from that coplaintiffs, of his contrary to the wishes together who suit and which does not further justice. administration WHEATON,
ELIZABETH Special Indiv. and as Larry Adm’r of the Estate of Wheaton, Deceased, Plaintiff-Appellant, SUWANA, v. M. STEVENS
Defendant-Appellee. Fifth District No. 5 — 02—0693 Opinion January 11,