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“State Supreme Court Eliminates ‘Test the Waters’ Doctrine For Substitutions of Judge as of Right” By: John Aramanda, Charles Harper

In Palos Community Hospital v. Humana, Inc., 2021 IL 126008, the Illinois Supreme Court eliminated the common-law doctrine that a party cannot exercise its statutory right to move to substitute a judge after the party has “tested the waters” to see how the judge might rule.

Having found that the trial court improperly relied on the doctrine to deny a motion to substitute a judge, the Supreme Court vacated all orders after the motion was denied, including the judgment entered after a jury verdict.

Since 1993, Illinois Code of Civil Procedure § 2-1001(a)(2) (735 ILCS 5/2-1002(a)(2)) has permitted any party to make one pre-trial substitution of judge as of right so long as the trial judge had not yet made any ruling on a “substantive issue” in the case. To discourage judge-shopping in the wake of this new right to substitute, which removed the former requirement that the moving party show the judge’s bias or prejudice, a body of appellate case law emerged to suggest that a ruling on a “substantive issue” includes any time a party “had discussed issues with the trial judge, who then indicated a position on a particular point.” Partipilo v.

Partipilo, 311 Ill. App. 3d 394, 398 (1st Dist. 2002). Under this common law doctrine, if a party “tested the waters” to see how the judge might rule, then the party could no longer move to substitute the judge as of right under this code section.

In Palos, plaintiff moved to substitute the judge after the court had indicated it likely would deny the plaintiff’s request to strike the report of the special master for discovery assigned to the case. At two pretrial hearings, the special master’s report was discussed at length. During those hearings, the court affi rmed that precedent existed for the appointment of a special master in discovery, thus indicating its reluctance to grant plaintiff’s motion to strike the special master’s report.

Shortly thereafter, but before the trial court ruled on the request to strike the report, plaintiff filed its motion to substitute judge as of right under § 2-1001(a)(2). Citing its comments at the earlier hearings and applying the test the waters doctrine, the trial court denied the motion. On appeal, the appellate court, also relying on the test the waters doctrine, upheld the trial court’s denial of the motion to substitute.

The Supreme Court reversed, holding that under the cardinal rule of statutory construction, the court must apply the plain language of the statute and give it its plain and ordinary meaning. The court found that § 2- 1001(a)(2) unambiguously permits substitution as of “absolute” right and the trial court has no discretion to deny it. The court distinguished its holding in Bowman v. Ottney, 2015 IL 119000, determining that there, a ruling on a substantive issue had already been made by the time the motion to substitute was filed.

The court also rejected defendant’s reliance on case law predating a 1993 amendment to § 2-1001(a)(2), which required the request to substitute to be made at the earliest possible moment in the case. The 1993 amendment, the court explained, now permits the substitution of judge as of right at any time before trial starts so long as the sitting judge has not ruled on a substantive issue. To leave no doubt, the court expressly held that the test the waters doctrine is incompatible with the plain language of the statute.

As a result, the court vacated every order entered by the trial court after the motion to substitute was denied and remanded for new proceedings, wiping out both the trial court’s denial of cross-motions for summary judgment and a judgment entered in defendant’s favor after a jury trial.

Charles E. Harper is partner in Quarles & Brady’s Chicago office whose practice focuses on dispute resolution and litigation. John A. Aramanda is an associate in the firm’s Litigation & Dispute Resolution Practice Group, also based in Chicago.


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