Substitution of Judge for Cause

Published in Chicago Lawyer Magazine, December 2011/January 2012
By Daniel R. Stefani

Since the Illinois Marriage and Dissolution of Marriage Act specifically states that there shall be no trial by jury, the issue of substitution of judges is of particular importance to our area of law. On August 24, 2011, the Supreme Court of Illinois rendered the opinion in In Re Marriage of O’Brien, 2011 WL 3359713 (Ill.). The opinion has not yet been released for publication in the permanent law reports and is therefore subject to revision or withdrawal. The majority held only that the actual prejudice standard applies to a petition seeking a substitution of judge for cause. Justice Garman filed a specially concurring opinion and Justice Karmeier and Justice Kilbride also filed a specially concurring opinion which agreed with affirming the Appellate Court but disagreed with the applicable standard to be applied by the Court.

The husband filed a petition for substitution of judge asking that the Honorable Judge Joseph Waldeck, who presided over the hearing relating to the wife’s domestic battery charges as well as their subsequent divorce action, be removed for cause. The husband asserted that Judge Waldeck was “prejudiced and biased” against him as a result of (1) the Judge’s involvement in the earlier domestic battery case; (2) the Judge’s membership in a health club where the wife worked part-time and his exchange of greetings with her at the club on “more than one occasion”; and (3) the fact that the husband had observed the wife waving to Judge Waldeck in the courtroom in an inappropriate manner indicating familiarity with and friendliness toward the Judge.

Judge Starck presided over the substitution hearing and the wife testified that she worked part-time and did accounting work for a fitness club where Judge Waldeck was a member and that during the pendency of the divorce case she saw the Judge as she was walking to her car in the club’s parking lot and they exchanged hellos without any further conversation. The wife testified that several weeks later a similar encounter occurred. The wife testified that she devoted merely two hours per week to the club business and that most of it was done in her home. She also did not exercise at the club. The husband further claimed that during the pendency of the divorce during a court appearance, the wife rose to leave the courtroom and the husband claimed that she looked toward the bench with her “head tilted” in a “very cutesy way” and waved to Judge Waldeck.

The trial court denied the husband’s petition granting the wife’s request for a directed finding. The Appellate Court of Illinois, Second District, affirmed the trial court’s decision and held that Judge Waldeck’s limited contact with the wife had no effect on his ability to preside over the couple’s dissolution action. The Appellate Court then voiced some concern regarding whether a litigant seeking a substitution of judge for cause must always prove actual prejudice. The Court noted that some reviewing courts in Illinois require that litigants demonstrate the Judge’s subjective bias as well as evidence of prejudicial trial conduct, while others use an objective standard based on the appearance of impropriety.

The husband contended to the Supreme Court that the trial court’s ruling should be reversed because the court erred in using an actual prejudice standard in making its ruling versus also applying the appearance of impropriety standard. The husband also argued that the actual prejudice standard was unconstitutional in light of the U.S. Supreme Court case of Capperton v. AT Masicole Company.

The Supreme Court rejected the husband’s argument to also include the appearance of impropriety standard. The Court distinguished a petition for substitution for cause and the Illinois Supreme Court Rules relating to instances where a judge should recuse him/herself. Specifically, the Court stated that they have included a direction for recusal under the Code of Judicial Conduct; however, the General Assembly has never seen fit to include that lower appearance of impropriety standard in providing for a substitution of judge once a substantive ruling in a case has been made. The Court further pointed out that the husband’s argument overlooks that recusal and substitution for cause are not the same thing. Specifically, recusal rests exclusively within the determination of the individual judge and substitution for cause requires a separate impartial judge to conduct a hearing on whether the judge at issue had actual prejudice.

The Court further reviewed the Capperton decision and distinguished it in part because it did not involve the substitution of the trial judge; rather, it concerned whether due process required that a State Supreme Court Justice recuse him/herself from hearing an appeal involving a political backer who had contributed millions of dollars to that Justice’s election. One of the critical concerns in Capperton was that the recusal motions were decided by the very person who was accused of bias. That was not the case in the O’Brien decision which was a substitution for cause hearing held by a different judge.

In a special concurring opinion, Justices Karmeier and Kilbride suggest that the Court should recognize, as in prior Supreme Court cases, the objective standards set forth in Supreme Court Rule 63(c)(1) (and appearance of impropriety) as a basis for a petition for substitution of judge for cause, as well as the actual prejudice standard.