I Want a New Judge: Illinois Law on Substitution and Recusal

If you have a lawsuit pending in a courtroom before a judge and want to change judges, do you have any recourse? Must the judge have acted improperly to be removed from the case?  In Illinois, the answer to these questions is: yes, and not necessarily, in that order.

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To begin, once a case is filed, it is automatically assigned to a courtroom (or “calendar,” to use Cook County parlance) in the particular courthouse. Cases are assigned to courtrooms, not judges. Judges are frequently re-assigned to new courtrooms for various reasons, including due to retirement, recent elections, and appointments to fill vacancies.  Therefore, often a change of judges will occur for no reason other than an administrative change in judicial assignments.

 

However, the Illinois Code of Civil Procedure also provides for four scenarios when a judge can be substituted in a civil case.  The first scenario is when the judge is personally connected to the case.  This includes situations where: the judge is a party in the case or otherwise interested in the case; the judge’s testimony is material to the case; the judge is related to a party in the case; or the judge has been the attorney for one of the parties regarding the pending legal issues. In these cases, the judge may be substituted with or without a party bringing the issue before the court.

 

The second scenario relates only to a defendant in a contempt proceeding arising from that defendant’s attack of the judge’s character or behavior outside of court. In such cases pending before the judge whose character or conduct the defendant condemned, the defendant may be concerned that he will not receive a fair trial in front of that same judge. He may file a written petition for substitution of the judge before the contempt trial.

 

The third scenario where a judge may be substituted requires no reason at all, really. It’s called “substitution of judge as a matter of right” or “without cause.”  Each party to a case is entitled to one of these substitutions of judge.  The only caveat is that the litigant must file the motion with the court before any hearings, trials, or substantial rulings have been entered in the case. Practically speaking, “substantial rulings” typically include any order entered by a judge for reasons other than basic continuances. If a party files a motion for substitution of judge as a matter of right within these parameters, it must be granted – or the other side can simply agree to the substitution. However, once a party has used his one substitution as a matter of right, or once a judge has made a substantial ruling in the case, no more motions for substitution from that party will be allowed, unless it is for cause.

 

The final and most infrequently granted type of substitution of judge is “for cause.”  Judges are tasked with upholding judicial duties without bias or prejudice. A request for substitution of judge for cause requires allegations that the judge has acted improperly by showing his or her personal bias or prejudgment of the case. There are no limits on the number of motions for substitution for cause in a case, but the burden of proof required is extremely highs, and meeting that burden is difficult.  In seeking a substitution for cause, a party must specifically state the reason for the substitution and request that the judge be removed from the case.  Another judge must thereafter conduct a hearing as soon as possible to determine whether there is evidence of bias or prejudice. If the petition for substitution is granted, the case will be reassigned to a different judge. If the petition is denied, then the case goes back to the judge whom the party was seeking to remove.

 

Lastly, judges may recuse themselves as the judge in cases where there may be a potential personal bias or other personal involvement in the case without either party bringing an issue to the court’s attention. Illinois Supreme Court Rule 63(c)(1) actually requires a judge to disqualify himself or herself in a case the judge’s “impartiality might reasonably be questioned.” These include cases where:

  • the judge has a personal bias or prejudice about a party or a lawyer in the case;
  • the judge has personal knowledge about disputed facts in the case;
  • the judge was previously a lawyer for one party in the case;
  • within the last 3 years, the judge practiced law in a private firm with an attorney now representing one party in the case;
  • for 7 years after the last date the judge represented a party to the case when the judge was a private attorney;
  • the judge has been a key witness in the case;
  • the judge knows that she, her spouse, parent, child, or other family member has an economic interest in the case that could substantially affect the case; or
  • the judge, her spouse, or a person with a third degree relationship with the judge is a party, lawyer, key witness, or has interest in the case that could affect the case.

 

If you want to discuss the possibility of a judicial substitution in an Illinois family court with a knowledgeable attorney, contact us today for a free consultation.