The Journal of The DuPage County Bar Association

Back Issues > Vol. 13 (2000-01)

Substitution of Judge
By Hon. Charles M. Travis

There are occasions when an attorney believes that his/her client will not receive a fair and impartial trial or hearing before a particular judge and seeks to go before another judge. This article deals with the issue of when and under what circumstances is a party is entitled to substitute the judge before whom the case is assigned for another judge. A summary of the requirements is contained at the conclusion of this article.

DUE PROCESS REQUIRES A FAIR TRIAL

The provision for substitution of judges is a safeguard used to protect the guarantee of a fair and impartial trial and should be liberally construed to that end. People v. Posey, 206 Ill. App. 3d 1017, 151 Ill. Dec. 661, 564 N.E.2d 1323 (1 Dist. 1990).

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, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625 (1955). Neither judge nor jury may be predisposed as to the outcome of a case. Witherspoon v. Illinois, 391 U.S. 510, 521, 20 L. Ed. 2d 776, 784, 88 S. Ct. 1770, 1776 (1968). The courts of Illinois have held that a fair trial is a fundamental right in all criminal prosecutions, and if this right is violated, it is a denial of due process. People v. Finn, 17 Ill. 2d 614, 162 N.E.2d 354 (1959). "Every procedure which * * * might lead [a judge] not to hold the balance nice, clear and true between the State and the accused denies the latter due process of law." Tumey v. Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 756, 47 S. Ct. 437, 444 (1927).

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 505 F.2d 139, 147, (7th Cir. 1974), cert. denied 421 U.S. 910, 43 L. Ed. 2d 775, 95 S. Ct. 1562 (1975); United States v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967), cert. denied sub nom.; Mastro v. United States, 390 U.S. 946, 19 L. Ed. 2d 1134, 88 S. Ct. 1029 (1968).

STATUTORY REFERENCE FOR SUBSTITUTION

The statutory reference for substitution of judge in civil cases is 735 ILCS 5/2-1001 et seq. and in criminal cases it is 725 ILCS 5/114-5. The criminal section provides as follows:

Sec. 114-5. Substitution of judge. (a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.

(b) Within 24 hours after a motion is made for substitution of judge in a cause with multiple defendants each defendant shall have the right to move in accordance with subsection (a) of this Section for a substitution of one judge. The total number of judges named as prejudiced by all defendants shall not exceed the total number of defendants. The first motion for substitution of judge in a cause with multiple defendants shall be made within 10 days after the cause has been placed on the trial call of a judge.

(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 a 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.

(d) In addition to the provisions of subsections (a), (b) and (c) of this Section the State or any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; provided, however, that the judge named in the motion need not testify, but may submit an affidavit if the judge wishes. If the motion is allowed, the case shall be assigned to a judge not named in the motion. If the motion is denied the case shall be assigned back to the judge named in the motion.

EITHER PARTY MAY REQUEST A SUBSTITUTION OF JUDGE

The right to seek a substitution of judge under section 114 5(c), extends BOTH to the State as well as the Defendant, however that right is not seeking a particular judge, only an impartial one.

No due process right exists to defeat this substitution motion by either side against the request of the other, because each has only the right of impartiality. If the State moves for substitution of judge, and the defendant feels that the substituted judge could not be impartial towards him, he can always make his own motion to substitute under section 114 5(a) or for cause under section 114 5(d).

BASIS TO REQUEST A SUBSTITUTION OF JUDGE

A Motion for substitution of judge may be presented to the trial judge under the following conditions.

1. SUBSTITUTION OF JUDGE AS A MATTER OF RIGHT

If the requirements of subsection (a) of section 114 are met, the defendant has an absolute right to have the case transferred to another judge. People v. Aldridge, 101 Ill. App. 3d 181, 56 Ill. Dec. 596, 427 N.E.2d 1001 (1 Dist. 1981). The motion for substitution of judge can be brought only once and must comply with section (a), as follows:

A. That the Motion must be in writing-

(i) (Defendant’s motion for substitution of judge did not comply because it was not "in writing"; the requirement is clear and unmistakable. People v. Bach, 74 Ill. App. 3d 893, 30 Ill. Dec. 527, 393 N.E.2d 563 (1 Dist. 1979));

B. The Motion must specifically allege that the judge is so prejudiced against the defendant that the defendant cannot receive a fair trial;

(i) An accused does not have an absolute right to a substitution of judge without alleging actual prejudice. People v. Campbell, 129 Ill. App. 3d 819, 84 Ill. Dec. 913, 473 N.E.2d 129 (4 Dist. 1984);

(ii) When brought as a matter of right, it is not necessary that a defendant enumerate facts to support a general allegation of prejudice. People v. Morrow, 100 Ill. App. 2d 1, 241 N.E.2d 680 (1 Dist. 1968);

(iii) It is improper for the judge to inquire into the factual basis for the claim of prejudice;

C. The motion must be brought within ten days of the matter being placed on the judge’s trial court. People v. Ayala, 142 Ill. App. 3d 93, 96 Ill. Dec.;

D. The Motion must be brought before, that judge makes a ruling of substance in the case. (The automatic right to substitution of judge afforded defendants by subsection (a) of this section is terminated when that judge makes a ruling of substance in the case. People v. Agnew, 108 Ill. App. 3d 79, 63 Ill. Dec. 808, 438 N.E.2d 950 (4 Dist. 1982), aff’d, 97 Ill. 2d 354, 73 Ill. Dec. 544, 454 N.E.2d 641 (1983), 491 N.E.2d 154 (1 Dist. 1986); and

E. The Motion must be verified by the party/defendant . It should be noted that the substitution of judge is at the request of the party and not the attorney.

2. SUBSTITUTION OF JUDGE FOR CAUSE

A. The Motion must be in writing – same as substitution of judge as a matter of right;

(i) The Motion must specifically allege by AFFIDAVIT of the party/defendant that the judge is so prejudiced against the party/defendant that he cannot receive a fair trial; and

(ii) The Motion may be brought at any time but must be brought as soon as the basis for cause becomes known;

If a defendant does not move for a substitution of judge upon an allegation of the judge’s predisposition against him, he has waived consideration of the issue. People v. Harris, 220 Ill. App. 3d 848, 163 Ill. Dec. 1, 580 N.E.2d 1342 (1 Dist. 1991), cert. denied, 143 Ill. 2d 643, 167 Ill. Dec. 404, 587 N.E.2d 1019 (1992).

JUDGES OBLIGATION UPON BEING PRESENTED WITH A MOTION FOR SUBSTITUTION OF JUDGE

1. SUBSTITUTION OF JUDGE AS A MATTER OF RIGHT.

A. Review the motion for substitution of judge to determine whether it is in compliance with the statute.

B. The judge before whom the motion for substitution of judge is brought has an obligation to ascertain that the motion is in compliance with the Act. (There is nothing in the language of subsection (a) of this section which prevents a judge from determining in the first instance whether the motion for substitution is in proper form or is filed within the time limit set forth in the statute. People v. Saunders, 135 Ill. App. 3d 594, 90 Ill. Dec. 378, 482 N.E.2d 85 (2 Dist. 1985)).

If the motion for substitution of judge on account of the prejudice of the judge is in compliance with the Act, the right of the party to a substitution of judge is absolute and the trial judge loses all power and authority over the case except to make the necessary orders to effectuate the change. The denial of the motion may constitute reversible error. People v. Davis, 10 Ill. 2d 430, 140 N.E.2d 675 (1957). The case must be assigned to another judge. If the substitution of judge is requested for cause, the matter must be transferred to another judge for purposes of conducting a hearing on the issue of prejudice.

2. SUBSTITUTION OF JUDGE FOR CAUSE

Any party/defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.

A. Determinations of Prejudice Must be by the Finding of Another Judge. It is improper and an abuse of discretion for the trial judge to rule on defendant’s motion for substitution of judge when the motion sufficiently indicated the judge could be prejudiced and defendant’s affidavits attached to the motion supported this allegation. People v. Brim, 241 Ill. App. 3d 245, 181 Ill. Dec. 707, 608 N.E.2d 958 (4 Dist. 1996), appeal denied, 151 Ill. 2d 568, 616 N.E.2d 568 (1993).

B. Defendant’s right to substitute judges for cause is not absolute, but requires substantiation to ensure that his claim of prejudice is not frivolously made. People v. Washington, 121 Ill. App. 3d 479, 76 Ill. Dec. 894, 459 N.E.2d 1029 (1st Dist. 1984). Movant has the burden of showing prejudice on the part of the judge which disqualifies that judge to hear his case. People v. Winchell, 45 Ill. App. 3d 752, 3 Ill. Dec. 848, 359 N.E.2d 487 (3d Dist. 1977).

C. A motion for substitution of judge for cause must contain an affidavit which supports the claim of prejudice. People v. Van Pelt, 18 Ill. App. 3d 1087, 311 N.E.2d 184 (3 Dist. 1974).

D. A motion to transfer a case to a new judge, due to the alleged prejudice of the assigned judge, must be made at the earliest practical moment after any potential prejudice is discovered, even though a motion for substitution of judge is to receive a liberal rather than a strict construction. People v. Crete, 133 Ill. App. 3d 24, 88 Ill. Dec. 355, 478 N.E.2d 846 (2d Dist. 1985), aff’d, 113 Ill. 2d 156, 100 Ill. Dec. 573, 497 N.E.2d 751 (1986).

E. Even if a petition for substitution of judge is presented the day of the trial in a criminal case, if prejudice is alleged, so long as the trial judge had heard no matters pertaining to the merits nor indicated his views thereon, the petition for a substitution is filed within the boundaries of this section and in apt time. People v. Arnold, 76 Ill. App. 2d 269, 222 N.E.2d 160 (1st Dist. 1966).

F. Defendant who, on the day his case is set for trial, is informed as to the identity of the judge on whose call the case is set, must be given a reasonable opportunity to file a written motion under this section. People v. Agnew, 97 Ill. 2d 354, 73 Ill. Dec. 544, 454 N.E.2d 641 (1983).

3. TO GRANT OR DENY THE MOTION FOR SUBSTITUTION OF JUDGE

The rules governing change of venue for prejudice of the judge are predicated upon a good faith allegation of prejudice of the court, and not for the purposes of delay. People v. Peterson, 70 Ill. App. 3d 205, 26 Ill. Dec. 121, 387 N.E.2d 951 (2d Dist. 1979).

A. Compliance is Jurisdictional. Compliance with the formal requisites of the substitution of judges provision in the Code of Criminal Procedure is jurisdictional.

B. Liberal Construction. Recent cases have liberally construed section 114 5(a) so as to permit rather than deny a substitution, holding that a motion for substitution of judges is timely filed if it is filed within 10 days of the date defendant could be "charged with knowledge" of the assignment of the case to the trial judge. People v. Massarella 80 Ill. App. 3d 552, 563, 400 N.E.2d 436 (1979); People v. Oatis, 69 Ill. App. 3d 736, 741, 387 N.E.2d 1052 (1979); People v. Flowers, 47 Ill. App. 3d 809, 811, 365 N.E.2d 506 (1977).

A liberal construction of the statute is intended to protect the right to a fair and impartial trial under due process of law. People v. Kostos, 21 Ill. 2d 451, 454, 173 N.E.2d 469,471 (1961). However, such a construction dictates a substitution motion must not only be made properly within the time allowed by the statutory provisions, (People v. Wolfe, 124 Ill. App. 2d 349, 354, 260 N.E.2d 424, 427 (1970)), but also prior to judicial action on the merits of the action, however, does not necessitate a finding that such a motion was timely filed in all cases. People v. Norcutt, 44 Ill. 2d 256, 262, 255 N.E.2d 442, 446 (1970).. A litigant is precluded from testing judicial attitude on an issue and later asserting prejudice when the judge fails to support the litigant. People v. Chambers , 9 Ill. 2d 83, 89, 136 N.E.2d 812, 815 (1956).

C. Delay of Trial. Although the provisions regarding the substitution of judges are to be liberally construed, (Board of Education v. Morton Council, West Suburban Teachers Union, Local 571 , 50 Ill. 2d 258 (1972),), abuse of these statutory rights should not be permitted by the court, and remedies have been found for abuses under the former statute. For instance, when motions for substitution of judge were made solely for the purpose of delaying or avoiding trial, the court properly denied the motions. Hoffman v. Hoffman , 40 Ill. 2d 344, 348 (1968); People v. Beamon, 24 Ill. 2d 562, 564 (1962); People v. Walker, 119 Ill. 2d 465, 116 Ill. Dec. 675, 519 N.E.2d 890 (1988). The trial court may take cognizance of the circumstances surrounding the motion for substitution of judge, and may determine in the appropriate case that the motion is not in good faith but for delay. People v. Smith, 88 Ill. App. 3d 897, 43 Ill. Dec. 840, 410 N.E.2d 973 (1 Dist. 1980). Where defendant admitted in open court to having known two weeks before trial that the trial judge in question would preside at his trial, but defendant’s motion for substitution was not filed until the day of trial, defendant’s motion was not timely made. People v. Boalbey, 90 Ill. App. 3d 738, 46 Ill. Dec. 113, 413 N.E.2d 553 (3 Dist. 1980). Defendant’s motion for substitution was not timely where it was made on the day of trial. People v. Pinchott, 55 Ill. App. 3d 601, 13 Ill. Dec. 267, 370 N.E.2d 1294 (4 Dist. 1977).

D. Ruling not substantive. Where the judge entered an order directing the release of defendant on his own recognizance under bond; this action of the judge is not a ruling on a substantive matter. See People v. Crete , 133 Ill. App. 3d 24, 478 N.E.2d 846 (1985).

E. Before any substantive ruling by the trial judge. The purpose of requiring that a motion to substitute judge be filed before the judge has considered a substantive issue in the cause is to preclude counsel from first ascertaining the attitude of the trial judge on a hearing related to some of the issues of the cause, and then, if the court’s judgment is not in harmony with counsel’s theory, to assert the prejudice of the court as a ground for allowing the change. People v. Evans, 1 Ill. App. 3d 158, 273 N.E.2d 71 (4 Dist. 1971).

F. Untimely following a Plea Bargain. When a petition for change of venue on account of the prejudice of the judge comes only after the conclusion of a conference in which the defendant attempts to obtain an agreed sentence by plea bargaining, such petition is filed too late; were the court to hold otherwise, a petition for a change of venue could, in effect, be used as a vehicle to permit a defendant to shop among the judges of a court for the one most leniently disposed to a plea of guilty. People v. Jones, 2 Ill. App. 3d 575, 277 N.E.2d 144 (2 Dist. 1971). A motion for change of venue comes too late when it is made after a conference in chambers in which counsel seeks to elicit from the judge his attitude with respect to the credibility of a prospective witness. People v. Cazaux, 119 Ill. App. 2d 11, 254 N.E.2d 797 (1 Dist. 1969).

G. Filing alone is insufficient. It is not sufficient merely to file a petition for substitution of judge, it must be brought to the attention of the trial court in ample time. People v. Tucker, 3 Ill. App. 3d 273, 278 N.E.2d 141 (1 Dist. 1971).

H. Amended Petitions. Where petitioner filed his motion for substitution of judge within the statutory 10 day period, but filed an amended petition containing the required allegation of prejudice after that deadline had passed, petitioner failed to meet the minimal requirement for an automatic substitution. People v. Burns, 188 Ill. App. 3d 716, 136 Ill. Dec. 13, 544 N.E.2d 466 (4 Dist. 1989), appeal denied, 129 Ill. 2d 566, 140 Ill. Dec. 674, 550 N.E.2d 559 (1990).

I. Opportunity to timely comply. Where a court is confronted at the earliest practical moment with a motion for substitution of a trial judge because of alleged prejudice, it is both arbitrary and erroneous to deny the motion without granting the defendant an opportunity to comply with the formal requirement of the statute. People v. Harston, 23 Ill. App. 3d 279, 319 N.E.2d 69 (2 Dist. 1974).

J. Lack of Specificity. The right to substitution of judges is not absolute and defendant, in order to avail himself of such right, must comply with this section; furthermore, lack of specificity in a motion for substitution is a valid reason for denial in the absence of a hearing. People v. Amos, 204 Ill. App. 3d 75, 149 Ill. Dec. 411, 561 N.E.2d 1107 (1 Dist. 1990)

5. PREJUDICE

A. Defined. "Prejudice" is a condition of the mind that imports the formation of a fixed anticipatory judgment as distinguished from opinions which yield to evidence. People v. Washington, 121 Ill. App. 3d 479, 76 Ill. Dec. 894, 459 N.E.2d 1029 (1 Dist. 1984).

B. Proof. The appropriate quantum of proof is to show prejudice by a preponderance of the evidence. People v. Mercado, 244 Ill. App. 3d 1040, 185 Ill. Dec. 150, 614 N.E.2d 284 (1 Dist.), appeal denied, 152 Ill. 2d 571, 190 Ill. Dec. 902, 622 N.E.2d 1219 (1993). Ordinarily, prejudice is not proved by direct and positive evidence; it is proved by circumstances, environment, association, relationship, and conduct of the person who entertains it. People v. Robinson, 18 Ill. App. 3d 804, 310 N.E.2d 652 (1 Dist. 1974).

C. Difference of opinion. Reviewing court judges should be wary of condemning, as motivated by prejudice, those actions of trial judges which may represent only a difference of opinion as to the seriousness of a particular offense in the context of community conditions. People v. Vance, 76 Ill. 2d 171, 28 Ill. Dec. 508, 390 N.E.2d 867 (1979).

D. Burden upon the party bringing the motion. The trial court does not have the burden of justifying its retention of the case; the defendant can obtain a substitution of judge only through a showing of actual prejudice. People v. Nickols, 41 Ill. App. 3d 974, 354 N.E.2d 474 (3 Dist. 1976).

E. Prejudice from extra-judicial source. Moreover, the alleged bias or prejudice of a trial judge to be disqualifying must be shown to have stemmed from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 793, 86 S. Ct. 1698. (1966).

F. Prior Adverse Rulings. The fact that a judge has ruled against defendant in a prior case is not alone sufficient reason to disqualify that judge from sitting in subsequent cases involving the same defendant. People v. Taylor, 101 Ill. 2d 508, 79 Ill. Dec. 151, 463 N.E.2d 705, cert. denied, 469 U.S. 866, 105 S. Ct. 209, 83 L. Ed. 2d 140 (1984).

G. Fear of Prejudice.The mere fact that defendant fears that a judge is prejudiced against him is insufficient cause to grant a motion for substitution. People v. Massarella, 80 Ill. App. 3d 552, 36 Ill. Dec. 16, 400 N.E.2d 436 (1 Dist. 1979).

CONCLUSION

The basis upon which a party may request a substitution of judge is found in the Constitutional guarantee of procedural due process effectuated by a fair trial in a fair tribunal with an absence of any actual bias.

The substitution of judge can be brought by any party in both criminal and civil cases. The statutory reference in civil cases is 735 ILCS 5/2-1001 et seq.; in criminal cases it is 725 ILCS 5/114-5.

Compliance with the formal requisites of the Act is jurisdictional. The motion for substitution of judge as of right can be brought only once. The party bringing the motion as of right must present it in writing, within 10 days of the matter being placed on the judge’s call and before any substantive rulings have been made by the judge. The motion must allege prejudice of the judge and be verified by the party. Upon the presentment of a timely motion in proper form, the judge is divested of jurisdiction. The judge is precluded from inquiring into the basis for the allegation of prejudice. The sole exception is where it is clear that the motion is brought for the sole purpose of delay or to avoid trial, the judge may deny the motion.

A motion for substitution of judge for cause can be brought at any time, but at the earliest practicable moment after the discovery of the basis for cause. The formal requirement of a writing includes the necessity for an affidavit of the party specifically stating the basis for the claim of prejudice. Upon the motion being presented, the trial judge will determine whether the formal requirements of the Act have been complied with and whether the motion is brought for the sole purpose of delay or to avoid trial. If the formality of the Act have been met and there is no finding that the substitution of judge is for purpose of delay or to avoid trial, the judge is precluded from taking any action other than to transfer the case to another judge who will decide the issue of prejudice. A determination on the issue is considered of such a nature that it will take precedence over most other matters being heard by the judge to whom it is assigned. If no prejudice is determined the case is returned to the judge from whom the substitution was requested. Otherwise it is assigned to another judge. Substitution of judge for cause is not limited to one judge.

Hon. Charles M. Travis is a Circuit Judge in Cook County assigned to the Third Municipal District in Rolling Meadows, IL. He received his Bachelor of Science degree from Monmouth College in 1963 and his Juris Doctor degree from the University of North Dakota in 1971.


 
 
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