A litigant files suit, litigates for several years, and then, prior to trial, exercises her right to voluntarily dismiss the action without prejudice. Not long after, she refiles the action and is assigned (apparently by chance) to the same judge. The litigant attempts to exercise her statutory right to one automatic substitution of judge under Section 2-1001(a)(2)(ii) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2)(ii)).
Can the trial court take the first action into account in ruling on the challenge? This morning, the Illinois Supreme Court held in Bowman v. Ottney that the answer was “yes,” writing that a contrary holding would have opened a loophole in the statute likely to encourage judge-shopping. Our detailed report on the facts and underlying court rulings in Bowman is here. Our report on the oral argument is here.
Bowman began in 2009 when the plaintiff, acting as special administrator of a decedent’s estate, sued the defendant doctor and a medical practice for malpractice. The case was litigated for four years, during which the judge made various substantive rulings, including resolving discovery matters. Ultimately, the plaintiff filed a voluntary dismissal without prejudice under Section 2-1009(a) of the Code of Civil Procedure (735 ILCS /2-1009).
Four months later, she refiled, this time naming only the doctor as a defendant. The case was assigned to the judge who had heard the first case. The plaintiff moved for automatic substitution of judge. The defendant objected on the grounds that the judge had made substantive rulings in the first action, making the challenge untimely. The circuit court denied the motion for substitution, but certified a question under Rule 308(a) as to whether under the circumstances a trial court had discretion to take the first case into account in ruling on a substitution motion in the second case. The Appellate Court answered that question “yes,” with one Justice dissenting.
In an opinion by Justice Freeman, the Supreme Court affirmed. The Court noted that Section 2-1001(a)(2)(ii) provides that a litigant is entitled to one substitution so long as the motion is made “before the judge to whom it is presented has ruled on any substantial issue in the case.”
So everything turned on what “in the case” meant. If the refiled action was a different “case,” the plaintiff wins. If “case” was interpreted more broadly, then the defendant did.
Although Section 2-1001(a)(2)(ii) had always been interpreted liberally in favor of the right of substitution, it was equally true that the courts have been wary of constructions which would seem to promote judge-shopping and gamesmanship, the Court wrote. The plaintiff relied on a line of cases holding that the second action after a voluntary dismissal is a separate case, filed under a different docket number and requiring the payment of a new filing fee. But “new” for some purposes didn’t mean “new” for all, the Court concluded.
The problem was that holding that a voluntary dismissal revived the right to automatic substitution of judge invited judge shopping. A litigant dissatisfied with a judge’s rulings could treat the voluntary dismissal as a “do-over,” dismiss the first case, refile and then challenging the judge. The plaintiff had argued that Supreme Court Rule 219(e), which provides that certain orders entered in the previous action could be considered in the refiled action, sufficiently discouraged judge shopping, but the Court concluded that it cut the other way, demonstrating that the new action wasn’t entirely separate for all purposes.
Justice Kilbride dissented, arguing that the statutory language contained no reference to any previously dismissed case and should be interpreted pursuant to its plain language to allow a mandatory substitution after a dismissal.