8035396680_31ed820eb3_zIn the closing days of its May term, the Illinois Supreme Court agreed to decide a question with potential implications for virtually every civil case: does a trial court have discretion to consider whether a litigant trying to exercise their “one free challenge” of the judge had an opportunity to test the judge’s views in earlier litigation?

Bowman v. Ottney comes to the Court from the Fifth District Appellate Court. The plaintiff filed suit against the defendant for medical malpractice. After the judge made certain substantive rulings, the plaintiff voluntarily dismissed her action. Five months later, the plaintiff filed a new action, alleging virtually the same claims. Purely by coincidence, the second action was assigned to the same judge who had presided over the first action.

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 case. The Circuit Court opted to certify a question to the Appellate Court under Supreme Court Rule 308, asking whether the court had discretion to consider the earlier action in evaluating the plaintiff’s motion.

To answer the question, the Appellate Court looked to the Supreme Court’s decision in In re Marriage of Kozloff, where (in somewhat different factual circumstances) the Supreme Court expressly condemned challenges following substantive rulings as creating the potential for abuse of the venue act.

The Court noted that the districts of the Appellate Court are split on whether an opportunity to “test the waters” is relevant to the right to challenge. The Fourth District has flatly held that the right to challenge is absolute. The Fifth District has never squarely decided whether courts have discretion to consider earlier litigation, but has condemned “judge-shopping.” Only the Third District has squarely decided that trial courts have discretion to consider all the circumstances surrounding the litigation in evaluating a challenge (Ramos v. Kewanee Hospital).

Ultimately, the Appellate Court opted to follow the Third District, read in light of the Supreme Court’s comments in Kozloff. The Court remanded the matter back to the trial court, answering the certified question by holding that trial courts have discretion to consider previous litigation in addressing a Section 2-1001 challenge.

We expect a decision in Bowman in eight to ten months.

Image courtesy of Flickr by Michael Coghlan (no changes).