delivered the opinion of the court:
This is a direct appeal by the State from a ruling by a judge of the circuit court of Cook County holding section 114 — 5(c) of the recently enacted substitution-of-judge statute unconstitutional (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(c) (as amended, effective July 1, 1987)). The stаtute provides:
“(c) Within 10 days after a cause has been placed on the trial call of a judge the State may move the court in writing for a substitution of that judge on the ground that such judge is prejudiced against the State. Upon the filing of such а motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The State may name only one judge as prejudiced, pursuant to this subsection.” (Ill. Rev. Stat. 1987, ch. 38, par. 114-5(c).)
The trial judge ruled thаt this statute violated the principles of separation of powers and due process of law.
The State brought this appeal under Supreme Court Rule 603 (107 Ill. 2d R. 603). Neither party raised the issue of whether an interlocutory ruling such as this one is appealable under Rule 603. (See Ill. Ann. Stat., ch. 110A, par. 603, Historical & Practice Notes (Smith-Hurd 1985); see also Ill. Const. 1970, art. VI, §§4(b), 6.) We find it unnecessary to consider this question, as we view this case as an appropriate one for the exerсise of our supervisory authority. Ill. Const. 1970, art. VI, §16; Brokaw Hospital v. Circuit Court of McLean County (1972),
The defendant, Vincent Williams, was arraigned on August 11, 1987, for attempted murder, aggravated battery and armed violence. The case was assigned to a judgе for trial. On August 18, 1987, the People presented a written motion pursuant to section 114 — 5(c) of the Code of Criminal Procedure of 1963 for substitution of judge. The judge denied the motion on constitutional grounds. He ruled the statute violated the separation of. powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1), and interfered with the exercise of judicial powers granted to the judiciary in article VI, section 7(c) and section 16, of our Constitution (Ill. Const. 1970, art. VI, §§7(c), 16), because it allows the State’s Attorney to impermissibly interfere with the judicial power to assign judges to hear cases and gives the State unbridled discretion to reject the assignment of any judge to a particular case. The trial judge further ruled that this would result in the State’s ability to intimidate certain judges by constantly seeking their removal from assigned cases and would encroach upon the independence of the judiciary to administer its own judicial function. Furthermore, the judge held that the statute violatеs a defendant’s due process rights, because it allows the State to forum shop for a judge that may be biased against the defense. We disagree with the judge’s analysis and reverse his ruling.
The Illinois Constitution provides: “The legislative, executivе and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.) Our court has often referred to the principles established in Field v. People ex rel. McClernand (1839),
“The first and second sections of the first article of the constitution [Ill. Const. 1818, art. I, §§1, 2] divide the powers of government into three departments, the legislative, executive, and judicial, and declare that neither of these departments shall exercise any of the powers properly belonging to either of the others, except as expressly permitted. This is a declaration of а fundamental principle; and although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connection or dependence, the one upon the other; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in which this maxim was understood by the authors of our government, and those of the general and state governments, is evidenced by the constitutions of all. In every one, there is a theorеtical or practical recognition of this maxim, and at the same time a blending and admixture of different powers. This admixture in practice, so far as to give each department a constitutional control over the othеr, is considered, by the wisest statesmen, as essential in a free government, as a separation.”
In 1974, our court reaffirmed these general principles in City of Waukegan v. Pollution Control Board (1974),
As we noted in Walker, all legislation carries with it a strong presumption of constitutionality. (People v. Walker (1988),
Thе defendant in this case contends that section 114 — 5(c) directly conflicts with our Rule 21(b). Rule 21(b) states:
“(b) General Orders. The chief judge of each circuit may enter general orders in the exercise of his general administrative authority, including orders providing for assignment of judges, general or specialized divisions, and times and places of holding court.” 107 Ill. 2d R. 21(b).
The defendant argues that section 114 — 5(c) interferes with the right of the chief judge of each circuit to provide for the assignment оf judges by giving the prosecution a “veto power” over any assignments made. This argument is answered by our holding in Walker, where we stated:
“The automatic-substitution-of-judge provision makes clear that its protections may be invoked only aftеr assignment is made and then only ‘within 10 days after’ the case has been placed on the trial calendar of the assigned judge. (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 5(a).) Thus, we are unable to say that section 114 — 5(a) conflicts with the judicial authority of assignment.” (Emphasis in original.) (People v. Walker (1988),119 Ill. 2d 465 , 477.)
Similar to section 114 — 5(a), section 114 — 5(c) may be utilized only after assignment of the case to a particular judge. Consequently, we hold that 114 — 5(c) does not conflict with Rule 21(b).
In addition to not conflicting with a rule of this court, section 114 — 5(c) does not violate separation of powers principles by impermissibly infringing on the role of the judiciary. In People v. Joseph (1986),
It is urged upon us that Joseph should control the present case. In Joseph, we found that the Post-Conviction Hearing Act violated the separation of powers doctrine, bеcause it unduly infringed on the power of the judiciary to assign judges pursuant to Supreme Court Rule 21(b) and in fact precluded the assignment of an entire class of circuit judges. (People v. Joseph (1986),
The defendant further contends that section 114 — 5(c) violates his due process rights. Both the United States and the Illinois Constitutions guarantee litigants procedural due process. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Procedural due process requires a fair trial in a fair tribunal, with an absence of any actual bias. (In re Murchison (1955),
Nevertheless, while the balance between the State and the defendant must be “nice, clear and true,” due process requires only an impartial judge, not a choice of judge. A litigant does not have the right under due process to have his case heard by a particular judge. (United States v. Braasch (7th Cir. 1974),
Furthermore, although the provisions regarding the substitution of judges are to be liberally construed (Board of Education v. Morton Counсil, West Suburban Teachers Union, Local 571 (1972),
Finally, we note that several of our sister States allow the State to substitute a judge utilizing statutes similar to our section 114 — 5(c). See, e.g., State of Arizona v. City Court of Tucson (1986),
For the reasons stated above, the ruling of the circuit court of Cook County holding section 114 — 5(c) unconstitutional is reversed, and the cause is remanded for further proceedings.
Reversed and remanded.