CONNIE L. BOWMAN, Special Adm‘r of the Estate of Char L. Bowman, Deceased, Appellant, v. MICHAEL D. OTTNEY, D.O., Appellee.
No. 119000
SUPREME COURT OF THE STATE OF ILLINOIS
December 17, 2015
2015 IL 119000
Opinion filed December 17, 2015.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Thomas, Karmeier, Burke, and Theis concurred
Justice Kilbride dissented, with opinion.
OPINION
¶ 1 Plaintiff, Connie L. Bowman, as special administrator of the estate of Char L. Bowman, brought a medical malpractice action against defendant, Michael D. Ottney, D.O., seeking recovery for injuries allegedly caused by the negligent treatment of decedent, Char L. Bowman. During pretrial proceedings on the claim, the circuit court of Jefferson County made rulings on substantial issues. Thereafter, Bowman voluntarily dismissed her complaint and subsequently refiled the suit. The refiled suit was assigned to the same judge who had presided over the earlier proceedings, and Bowman immediately moved for substitution of judge as of right under
¶ 2 BACKGROUND
¶ 3 In June 2009, Bowman filed a complaint for medical malpractice against defendants,
¶ 4 The circuit court denied Bowman‘s motion for substitution of judge, but granted her request for certification of the following question for interlocutory appeal under
“In a case which had previously been voluntarily dismissed pursuant 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 to735 ILCS 5/2-1001 , based on the fact that the Court had made substantive rulings in the previously dismissed case?”
¶ 5 The appellate court allowed Bowman‘s application for leave to appeal under
¶ 6 This court allowed Bowman‘s petition for leave to appeal.
¶ 7 ANALYSIS
¶ 8 In general, we are limited to reviewing the question certified by the trial court. Barbara‘s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007). A certified question under
¶ 9 Our primary objective in construing a statute is to ascertain and effectuate the intent of the legislature. Id. ¶ 14. The most reliable means of achieving that goal is to apply the plain and ordinary meaning of the statutory language. In re Commitment of Fields, 2014 IL 115542, ¶ 32. When construing statutory language, we view the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation. In re Parentage of J.W., 2013 IL 114817, ¶ 37. In addition, a court may consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another. Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 15.
¶ 10
“(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.”
735 ILCS 5/2-1001(a)(2)(ii) (West 2014) .
¶ 11 Bowman contends that the circuit court erred in denying her motion for substitution of judge in the 2013 action, and she advocates for a “bright line” rule allowing a substitution as of right, even where the motion is presented in a refiled action after the same judge had made substantive
¶ 12 Ottney responds that
¶ 13 In construing
¶ 14 The version of section 2-1001 that is currently in effect was adopted in 1993, when the General Assembly rewrote the statute. Prior to the 1993 amendment, the provisions under which a party could request a substitution of judge were embodied in the legislative acts governing changes of venue. Ill. Rev. Stat. 1991, ch. 110, ¶¶ 2-1001, 2-1002. Under those provisions, a party seeking a substitution of judge was required to allege bias or prejudice on the part of the judge presiding in the cause. Ill. Rev. Stat. 1991, ch. 110, ¶ 2-1001(a)(2). It was recognized, however, that allowing charges of judicial bias to be made without proof would invite litigants to engage in “judge shopping” or to seek a substitution as a delay tactic. See Ill. Ann. Stat., ch. 110, ¶ 2-1001, Historical and Practice Notes, at 142-43 (Smith-Hurd 1983). Yet, requiring proof of a claim of prejudice presented other difficulties by requiring either that the accused jurist sit as judge in his own cause or that another judge be brought in on short notice to pass upon the personal views of a colleague. Ill. Ann. Stat., ch. 110, ¶ 2-1001, Historical and Practice Notes, at 142 (Smith-Hurd 1983). The reconciliation of these conflicting policy concerns was encompassed in the statutory provisions “and in the judicial gloss which has been put upon those sections.” Id. Thus, before section 2-1001 was amended in 1993, Illinois courts recognized that a litigant was entitled to one “change of venue” on grounds of judicial bias or prejudice, and that right was considered to be “automatic” because the substitution request was required to be supported only by generalized allegations, which need not be proved. See American State Bank v. County of Woodford, 55 Ill. App. 3d 123, 128 (1977).
¶ 15 In addition, the preamendment version of section 2-1001 specifically provided that a request for “change of venue shall not be granted unless 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 ***.” Ill. Rev. Stat. 1991, ch. 110, ¶ 2-1001(c). This requirement served to advance the statutory goals of preventing “forum-shopping” and promoting judicial efficiency by precluding its use as a delay tactic. Ill. Ann. Stat., ch. 110, ¶ 2-1001, Historical and Practice Notes, at 143 (Smith-Hurd 1983). Therefore, even though the right was considered
¶ 16 With the 1993 amendment, section 2-1001 was rewritten to eliminate the requirement that a party seeking substitution must allege bias or prejudice on the part of the presiding judge. See 87th Ill. Gen. Assem., Senate Bill 1720, 1992 Sess.; 87th Ill. Gen. Assem., Senate Proceedings, May 19, 1992, at 114. Under the new provision, a litigant is entitled to one substitution without cause as a matter of right, as 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.”
¶ 17 Illinois courts have held that, when properly made, a motion for substitution of judge as a matter of right is absolute, and the circuit court has no discretion to deny the motion. Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 23. In addition, the provisions of section 2-1001 are to be liberally construed to promote rather than defeat the right of substitution. In re Estate of Wilson, 238 Ill. 2d 519, 553 (2010). Yet, the principle of liberal construction cannot excuse a party from complying with the statute‘s explicit requirements. Id. Moreover, we will avoid a construction that would defeat the statute‘s purpose or yield absurd or unjust results. Krautsack v. Anderson, 223 Ill. 2d 541, 558 (2006).
¶ 18 In considering the terms of section 2-1001, this court has recognized that a party ” ‘may not “judge shop” until he finds one in total sympathy to his cause. Any other rule would spell the immediate demise of the adversary system.’ ” In re Marriage of O‘Brien, 2011 IL 109039, ¶ 30 (quoting American State Bank, 55 Ill. App. 3d at 128). Consequently, the principle that section 2-1001(a)(2) should be read as favoring substitution does not require a construction that permits a party to engage in “judge shopping.” Also, though not expressly included in the statute, this court has long recognized that courts may take into consideration the circumstances surrounding a motion for substitution of judge and may deny the motion if it is apparent that the request has been made as a delay tactic. In re Estate of Wilson, 238 Ill. 2d at 557 (citing Hoffmann, 40 Ill. 2d at 348, and People v. Peterson, 70 Ill. App. 3d 205, 207-08 (1979)).
¶ 19 In urging that the phrase “in the case” refers only to the case currently pending before the court, Bowman cites to precedent holding that a case that has been refiled under
¶ 20 Admittedly, refiled cases have been held to be new and separate actions for some purposes. See Dubina, 178 Ill. 2d at 504 (deciding the finality of orders to determine the existence of appellate jurisdiction); Wilson, 374 Ill. App. 3d at 311 (considering application of the “mailbox rule” to the filing of a complaint). However, our task here is to determine whether the legislature intended the phrase “in the case” to refer only to the currently pending suit for purposes of deciding a motion for substitution of judge as of right. Our primary goal is to effectuate the purpose of the statute (Slepicka, 2014 IL 116927, ¶ 14), and we are constrained to give statutory language meaning that advances, rather than defeats, its purpose. Therefore, regardless of what has been said in other contexts, we will not construe
¶ 21 The narrow and literal interpretation of the phrase “in the case” suggested by Bowman creates a loophole that allows the purpose of the statute to be defeated. We conclude that the legislature did not intend such a construction. Contrary to Bowman‘s assertion, the voluntary dismissal and refiling of a cause of action does not “reset the clock” with respect to the substitution of a judge who previously made substantive rulings in the prior proceeding. Considering the history of
¶ 22 Moreover, Bowman‘s argument effectively ignores the very first clause of
¶ 23 We also reject Bowman‘s contention that she is entitled to exercise the right to automatic substitution in the 2013 suit because
“Voluntary Dismissals and Prior Litigation. A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party.”
Ill. S. Ct. R. 219(e) (eff. July 1, 2002) .
¶ 24 We do not agree that
¶ 25 In this case, Bowman had the opportunity to present a motion for substitution of judge as of right during the proceedings on her 2009 complaint. For whatever reason, she declined to exercise that right before Judge Overstreet ruled on substantial issues in those proceedings. After he did so, Bowman lost her right to seek a substitution of Judge Overstreet as a matter of right. The fact that she voluntarily dismissed her complaint and refiled her claim against Ottney four months later does not change that fact. Bowman cannot use the voluntary dismissal and refiling provisions to accomplish in the 2013 suit what she was precluded from doing in the 2009 suit. This is precisely the type of procedural maneuvering that
¶ 26 Also, we note that, even after Judge Overstreet ruled on matters of substance, there was nothing preventing Bowman from seeking a substitution for cause under
¶ 27 As a final matter, we observe that the parties have presented arguments relating to the continued validity of the “test the waters” doctrine, which has been applied in cases where no substantive rulings were made. Based on our decision set forth above, that doctrine is inapplicable here and is not explicitly implicated in the certified question. Accordingly, we need not address its validity in circumstances that are not presented in this case.
¶ 28 CONCLUSION
¶ 29 For the reasons set forth above, we answer the certified question as follows: in a case which previously had been voluntarily dismissed and then refiled, a trial court has discretion to deny an immediately filed motion for substitution of judge based on the fact that the same judge to whom the motion is presented made substantive rulings in the previously dismissed case. Accordingly, we affirm the judgment of the appellate court and remand the cause to the circuit court.
¶ 31 Appellate court judgment affirmed.
¶ 32 Cause remanded.
¶ 33 JUSTICE KILBRIDE, dissenting:
¶ 34
¶ 35 The majority here, however, construes
¶ 36 The majority effectively rewrites
¶ 37 The unambiguous statutory language of
¶ 38 Here, plaintiff voluntarily dismissed her original medical malpractice action against defendant (case No. 09-L-28). Subsequently, plaintiff timely refiled her
¶ 39 Although the same trial judge presided over both cases, the judge issued substantive rulings only in case No. 09-L-28. It is undisputed that the judge did not enter any substantive rulings in plaintiff‘s refiled action, case No. 13-L-41. Simply put, when plaintiff filed her motion for substitution in this case the trial judge had not entered any substantive rulings in refiled case No. 13-L-41, “the case” for purposes of
¶ 40 Unfortunately, the majority also declines to address the conflict in our appellate court on whether the “test the waters” doctrine is valid in the context of
¶ 41 Although the majority does not address this controversy, I would adopt the well-reasoned analysis of the Fourth District Appellate Court‘s decision in Schnepf to reject the “test the waters” doctrine. As the Fourth District concluded:
“The ‘test the waters’ doctrine was rendered obsolete 20 years ago by introduction of the right to a substitution of judge without cause under the new version of
section 2-1001(a)(2) . The doctrine not only does nothing to advance the functioning ofsection 2-1001(a)(2) , it affirmatively frustrates its purpose. By inviting the trial judge to make the potentially nuanced, subjective determination of whether he has tipped his hand at some point during the proceedings, the doctrine undermines the movant‘s right to have the fate of his case placed in the hands of a different judge.” Schnepf, 2013 IL App (4th) 121142, ¶ 50.
I agree completely with this rationale and would likewise reject the “test the waters” doctrine here.
¶ 42 Indisputably,