During its September term, the Illinois Supreme Court heard oral argument in Bowman v. Ottney, a case from the Fifth District which poses the question of whether a litigant can lose its “one free challenge” to the trial judge based upon events in an earlier phase of the litigation, prior to a voluntary dismissal. Our detailed summary of the underlying facts and lower court opinions in Bowman is here.

Bowman began when plaintiff filed suit against the defendant for medical malpractice. The lawsuit continued for four years, with the trial judge making several substantive rulings, and ultimately, the plaintiff took a voluntary dismissal of her action. Five months later, she filed a new action, realleging virtually the same claims. Purely by coincidence, the second action was assigned to the same judge as the first.

The plaintiff filed a motion for substitution of judge under Section 2-1001(a) of the Code of Civil Procedure (735 ILCS 5/2-1001(a).) The defendant objected, arguing that the judge’s substantive rulings in the first case barred the challenge in the new action. The Circuit Court certified a question to the Appellate Court under Supreme Court Rule 308, and the Appellate Court held that courts have the discretion to consider earlier incarnations of the action in evaluating a motion for substitution.

Counsel for the plaintiff, special administrator for the estate of her daughter, began the argument, suggesting that the case presented an opportunity for a long overdue clarification in a murky area of civil procedure. Counsel argued that because this was neither a divorce case nor a petition for Section 2-1401 relief, every case cited by the defendant was distinguishable. Counsel noted that both cases supporting the view that an earlier version of the action was relevant to a challenge came from small counties, where it was far more likely that a party might get the same judge twice in a row. Justice Karmeier asked whether the second case was a random assignment, rather than an automatic reassignment. Counsel answered that there was no evidence it was anything other than random. Chief Justice Garman asked what the plain meaning of Section 2-1001(a) – “in this case” – was. Counsel said that “in this case” meant the case currently before the court. Justice Theis asked whether there were any differences in the two complaints. Counsel said the distinctions were somewhat cosmetic; the doctor’s employer was a defendant in the first case, and the hospital was not named in the second action. Justice Theis asked whether it was the same cause of action, with the same evidence and issues in both cases, and counsel agreed. Justice Theis noted that the judge in the first action had made two important decisions about admissibility and experts. Counsel said that was so, but the thing was – this was still a new case. Justice Theis asked whether the case had a new number, and counsel said yes. Justice Theis asked whether counsel would have moved to substitute judges if they’d drawn a different assignment, and counsel said no. Chief Justice Garman noted that if the plaintiff had shown prejudice, she could have sought substitution regardless of the first action. Counsel answered that the burden to show prejudice is fairly high, but the plaintiff believes she’s entitled to the automatic challenge. The Chief Justice asked whether the end result was that a litigant who takes a voluntary dismissal has two chances to get a new judge without ever showing prejudice. Counsel answered that parties get only one challenge per filing, and only one chance to voluntarily dismiss – so judge shopping isn’t a problem. No dispositive motion was on file in the case, nor was the action set for trial. The court in Dubina v. Mesirow Realty Development, Inc. said that a newly refiled case after a voluntary dismissal was a new case, counsel argued. Justice Kilbride asked whether counsel had paid a new filing fee, and he answered yes. Affirming the Appellate Court, counsel argued, would effectively overrule the line of cases saying that a newly refiled case was a new case. Counsel also argued that the Court should take the opportunity to formally disapprove the “testing the waters” doctrine. Justice Freeman asked whether there was any significance to the fact that In re Marriage of Kozloff was decided before the most recent amendments to Section 2-1001. Counsel answered that not only was Kozloff decided before the most recent amendments, it was a divorce case. There was no question that a refiled action was the same case in a divorce. Justice Karmeier asked, if the plaintiff had moved to substitute before any substantive rulings had been made, and then taken a voluntary dismissal, and received the same judge on refiling, would the plaintiff need to file a new motion to substitute? Counsel answered that he assumed that reassignments were done by the clerk without the knowledge of the judges.

Counsel for the defendant followed, arguing that the case came down to a simple question – should section 2-1001 get a strict reading? Justice Thomas asked whether counsel agreed with Dubina that the newly refiled case is a separate action, and if so, what should the Court do with the plain language of the statute? Counsel pointed out that Supreme Court Rule 219 allows the judge to look back to the events in a prior case so that a party isn’t running away from adverse discovery rulings. The reason for that rule was to discourage judge shopping. The same rationale could apply to allow the court to look back at previous litigation in evaluating a motion to substitute. Counsel said he wasn’t seeking a ruling that there was never a renewed right to challenge after a dismissal; defendant was merely asking for a ruling that the trial court had the discretion to look back. The Chief Justice asked what the plain meaning of Section 1001’s language “in the case” is. Counsel answered that the phrase needed interpretation – does it mean the same numerical filing, or the same litigation on the same matter? This is the same litigation, counsel argued, and “in the case” can be read broadly enough to encompass that. Justice Thomas asked what such a ruling would do to Section 2-1401 jurisprudence. Counsel answered that a refiled case was only a new case for some purposes, and there’s precedent for that in the Court’s law. Justice Theis asked whether one could argue that Rule 219, with its provisions that the trial court could consider discovery and orders entered in the pre-dismissal litigation, already addressed the problem of judge shopping. Counsel agreed that Rule 219 was related to judge shopping concerns. Justice Thomas suggested that Rule 219 cut both ways. Counsel suggested that Justice Thomas was talking about the argument raised in an amicus brief that everything the defendant was concerned about could be resolved via Rule 219(e). Counsel argued that it wasn’t patently clear how much Rule 219(e) was involved. Justice Theis suggested that the earlier case had triggered Rule 219 – so how does the Court get to a ruling that the trial judge had discretion to consider the first case? Counsel answered that there were multiple ways to affirm – Section 2-1001 could be read broadly, or the testing the waters doctrine could be applied. Counsel suggested that the notion of judge shopping related to being able to get an idea about a judge’s inclinations based on substantive rulings. At minimum, counsel argued, if the “in the case” language in Section 2-1001 were read strictly, a form of the testing the waters doctrine would be important. The third way to justify an affirmance, counsel argued, was to rely on the general power and discretion in a trial judge to control his or her docket. Chief Justice Garman asked whether, if the Court agrees with the defendant, it has to overrule Schnepf v. Schnepf. Counsel answered that that was the only case which would likely fall, whereas if the plaintiff won, it would put a number of cases in jeopardy, including the entire “testing the waters” line of cases.

Counsel for the plaintiff concluded with rebuttal, arguing that discretion was what the case was all about. The Rule doesn’t give the court any discretion. Justice Theis suggested that Rule 219 seemed to embody a view that parties couldn’t use the voluntary dismissal to avoid prior rulings. Counsel answered that the ability to look back applies to the new judge, who has to be properly in the case. Justice Theis asked whether it was true that the first case had been pending for more than four years before the voluntary dismissal. Counsel said it was, but what went on in the past was only relevant to the new judge. Words have to matter, counsel concluded. The only way the Court could possibly reverse, according to counsel, was to overrule Dubina. Counsel closed by suggesting that if a refiled case could be relevant to the ability to challenge a judge, why couldn’t a completely different case on a different cause of action be grounds for applying the testing the water doctrine in a small county?

We expect Bowman to be decided in four to six months.

Image courtesy of Flickr by Dave Conner (no changes).