To Substitute or Not to Substitute: Motion to Substitute Judge as of Right and Testing of the Waters

There are three (3) circumstances where a party to a lawsuit may request a substitution of judge: 1) when the judge is a party, interested in the action, the judge’s testimony is material to the action, or the judge is related to or has been counsel for any party; 2) when a party timely exercises its right to a substitution without cause; and 3) substitution for cause. See 735 ILCS 5/2-1001(a)(1-3). This article focuses on a motion to substitute judge without cause as a matter of right. Id. at (a)(2).

“Under section 2-1001(a)(2) of the Code, a litigant is allowed one substitution of judge without cause as of right. The right to substitution of judge is absolute when properly made, and the circuit court has no discretion to deny the motion. However, to prohibit litigants from ‘judge shopping’ and seeking a substitution only after they have formed an opinion that the judge may be unfavorably disposed toward the merits of their case, a motion for substitution of judge as of right must be filed at the earliest practical moment before commencement of trial or hearing and before the trial judge considering the motion rules upon a substantial issue in the case.” Cincinnati Insurance v. Chapman, 975 N.E. 2d 203, 210 (1st Dist. 2012).

A ruling is considered ‘substantial’ in nature when it is directly related to the merits of the case.” In re Marriage of Abma, 308 Ill. App. 3d 605, 610 (1st Dist. 1999); City of Quincy v. Weinberg, 363 Ill. App. 3d 654, 662 (4th Dist. 2006). A ruling on a motion to strike is a substantive issue. Swanson v. Randall, 30 Ill. 2d 194, 198 (Ill. 1964) (denial of the motion to strike constitutes a substantive ruling); Abma, 308 Ill. App. 3d at 610 (same); Federal Nat’l Mortgage Ass’n v. Schildgen, 252 Ill. App. 3d 984, 989 (1st Dist. 1993) (same).

Similarly, a ruling on a party’s motion for default is a substantive ruling. Quincy, 363 Ill. App. 3d at 662 (“the trial court’s default judgment amounted to a substantial ruling” because the “ruling directly related to the merits of the case” and thus, “defendant’s motion for substitution of judge was not timely filed”); Antkiewicz v. Pax Indianapolis, Inc., 254 Ill. App. 3d 723, 727 (1st Dist. 1993) (denial of a motion for default judgment is a substantial issue in the case).

Accordingly, in the event that a party seeks a substitution of judge without cause, the motion may not be successful in obtaining said relief if the movant has tested the waters or if the court has already ruled on a substantial issue. If you are experiencing any issues relating to a motion for substitution of judge, please contact Jennifer Burt at Lavelle Law at 312-888-4111 to aid you through this process.