Madison - St. Clair Record

Wednesday, August 21, 2019

Plaintiffs don't get to change judges simply because they withdraw, refile suit, high court rules

By Dana Herra | Jan 5, 2016


The Illinois Supreme Court has shot down a plaintiff’s attempt to change judges after she dropped a lawsuit and then re-filed it, saying her attempt to “reset the clock” on the process was a loophole those who wrote the rules did not intend to be exploited.

State law allows each party to a lawsuit to request one substitution of judge without cause, as long as the motion is made before the judge has ruled on matters of substance in the case. The question before the Supreme Court was whether that remains true if the judge had ruled on matters of substance in an earlier version of the same case.

The question arose out of Case No. 13-L-41, a medical malpractice suit brought by Connie L. Bowman against doctor Michael D. Ottney.

Bowman, represented by John J. Hopkins of Alton, first filed the suit in Jefferson County in 2009, as Case No. 09-L-28, and the case was assigned to Circuit Judge David Overstreet.

Ottney was represented by attorneys with the firm of Heyl, Royster, Voelker & Allen - Brad A. Elward, Richard K. Hunsaker and Sara A. Ingram.

After several years of pretrial proceedings, during which Overstreet ruled on a number of matters, Hopkins dropped the case, according to court documents.

Suit against Ottney was re-filed again a few months later, citing the same allegations, but starting the case anew. It was again assigned to Overstreet, and Hopkins moved for a substitution of judge. Though the court denied the motion, it certified a question to the appellate court as to whether the trial court could deny a motion made under such circumstances.

The appellate court, with one dissenting vote, ruled that the court was correct in its decision; the Supreme Court, also with one dissenting vote, agreed.

The circuit court and appellate court rulings were based largely on the “test the waters” doctrine, which prohibits a party to a lawsuit from requesting a new judge if they have had an opportunity to form an opinion of the judge’s disposition in the case. The lone dissenting judge in the appellate decision said the “test the waters” doctrine has been discredited and rejected.

In their Dec. 17 decision, a majority of the state Supreme Court justices in a 6-1 decision declined to even take on the “test the waters” question, finding that it was moot because the doctrine has been applied in cases where no substantive rulings have been made, making them dissimilar to this case.

The majority opinion was authored by Justice Charles E. Freeman.

In his dissenting opinion, Justice Thomas Kilbride disagreed, calling the doctrine “a critical issue.” He quoted the appellate court opinion that the doctrine was rendered obsolete by the amendment granting parties the right to substitute a judge without cause.

“Although the same trial judge presided over both cases, the judge issued substantive rulings only in Case No. 09-L-28,” Kilbride wrote. “It is undisputed that the judge did not enter any substantive rulings in plaintiff’s refiled action.”

In the motion for substitution, Hopkins had argued that the language in the statute that refers to “in the case” clearly refers to only the current case; since the first lawsuit had been dropped, and the new suit was a new case with a new docket number, he claimed Overstreet’s decisions in the first suit had no bearing.

“Admittedly, refiled cases have been held to be new and separate actions for some purposes,” the majority wrote. “The narrow and literal interpretation of the phrase ‘in the case’ suggested by Bowman creates a loophole that allows the purpose of the statute to be defeated. We conclude that the legislature did not intend such a construction.”

If the plaintiff had wanted a new judge, the justices wrote, she could have moved for a substitution during the 2009 case; even after Overstreet had ruled on matters of substance, she could have sought a substitution for cause, though the burden would have been much higher.

In his dissenting opinion, Kilbride wrote that the court’s decision “effectively rewrites” the law “to create a new requirement for a motion seeking substitution of judge in Illinois.”

The case was remanded back to the lower court.

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Heyl Royster Illinois Supreme Court John J. Hopkins and Associates

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