Testing the pretrial waters

Will other courts follow this substitution-of-judge ruling?

All in the Family

Celia Gamrath

Celia Gamrath is a Cook County Circuit Court judge in the Domestic Relations Division. The views expressed in this column are her own and not those of the circuit court.

In domestic relations, lawyers often ask the court for a pretrial conference to settle significant issues or the entire divorce case.

At these conferences, the lawyers discuss facts, law and their clients’ respective positions. The judge facilitates a meaningful conversation and makes recommendations to help the parties reach a settlement.

A multitude of issues are often addressed: valuation, classification and division of property; custody and visitation; child support and permanent maintenance. All of these issues are “substantial,” and if the court made a ruling on any one of them, it would preclude a party from taking a substitution of judge as of right.

But what if a ruling is never made, yet the parties have “tested the water” with the judge and know how the judge will likely rule on a substantial issue? Is a party precluded from exercising his or her right to a substitution of judge without cause? The answer depends on where you are situated. In the 4th District Appellate Court, you are not precluded, but in other parts of Illinois such as Cook County, you are.

735 ILCS 5/1001(a)(2) states that each party is allowed one substitution of judge as a matter of right so long as it is made by motion and presented before trial or hearing begins and before the judge has ruled on any substantial issue in the case.

Technically, if a pretrial conference is conducted prior to trial or hearing and no ruling is made, a party may exercise his or her one substitution of judge as a matter of right. However, Illinois case law has expanded this notion by precluding a party from taking a substitution of judge where the party had the chance to “test the waters” and get a sense of how the judge would rule on substantive matters.

The law looks doubtfully upon second bites of the apple and discourages litigants from judge-shopping to reargue the same point.

Following this theory and appellate precedent, the trial court in Schnepf v. Schnepf, 2013 IL App. (4th) No. 121142 (Sept. 11, 2013), denied the plaintiff’s motion for substitution of judge because the plaintiff had an opportunity to test the waters after hearing the judge’s comments about substantial issues during arguments on other matters. The 4th District Appellate Court reversed the denial of the plaintiff’s motion, declaring that “testing the waters” is not a valid basis to preclude substitution of judge as a matter of right.

According to Schnepf, “testing the waters” was made obsolete 20 years ago by the current version of 735 ILCS 5/2-1001(a)(2), but cases up until now still erroneously recognize the theory.

Under the prior version of Section 1001, there was an inquiry as to whether the motion to substitute was done to delay the case or whether the litigant had an opportunity to test the waters and get a sense of the judge’s reaction to the litigant’s claim.

Under the current version, no such inquiry is required. All that is required is a timely presented motion. So long as a party presents the motion for substitution of judge before a trial or hearing begins and before the judge has ruled on any substantial issue, the motion must be granted.

Under Schnepf, the “test the waters” notion cannot deprive a party of the absolute statutory right to a substitution of judge without cause — at least in the 4th District.

It remains to be seen whether other districts will follow suit. Abandoning “testing the waters” could lead to judge-shopping and stymie pretrial conferences, especially in domestic relations, where the court is intimately familiar with the parties’ positions, involved in their settlement negotiations and is often called upon to give impressions on substantial issues.

Custody, property division and maintenance are substantial issues because they relate directly to the merits of the case; so are motions to dismiss, motions for partial summary judgment and pretrial rulings of law. Motions to continue, extensions of time to answer discovery and briefing schedules are not substantial rulings.

When in doubt, courts tend to grant timely motions for substitution of judge as a matter of right because the consequences of an improper denial are drastic.

Any and all orders entered after the improper denial of a motion to substitute are null and void, which means the case will be reversed, remanded and reassigned to another judge for a second bite of the apple.

A way to avoid this quandary is for litigants and their attorneys to execute a stipulation waiving the right to a substitution of judge prior to the pretrial conference — in a concerted effort to resolve substantial issues, dispose of the case and avoid judge-shopping.