Motion to Disqualify or Substitute Judge in Illinois

Importance of Motion to Disqualify or Substitute Judge

“A trial judge is presumed to be impartial[,] and the burden of overcoming this presumption rests with the party asserting bias, who must present evidence of personal bias stemming from an extrajudicial source and evidence of prejudicial trial conduct.” (O'Brien, infra, 393 Ill. App. 3d at 373 (quoting In re Estate of Hoellen (2006) 367 Ill. App. 3d 240, 248.) “By themselves, judicial rulings rarely constitute a valid basis for a motion for substitution due to bias or partiality.” (Beasley v. Stolvoort, 2017 Ill. App. 4th 160680, 11 [Ill. App. Ct. 2017] citing Williams v. Estate of Cole (2009) 393 Ill. App. 3d 771, 777.)

Procedural Steps Involved in Filing a Motion to Disqualify or Substitute Judge

Rule 735 ILCS 5/2-1001(a)(3)(i) [West 2014] provides that: “Each party shall be entitled to a substitution or substitutions of judge for cause.” (Id.)

Further, under 735 ILCS 5/2-1001, subsection (ii): “An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties.” (Spiegel v. Hall, 2020 IL App (1st) 190840, 13 [Ill. App. Ct. 2020] citing 735 ILCS 5/2-1001 [West 2016].)

The Burdens of Proof Required for a Motion to Disqualify or Substitute Judge

“To prevail on a motion for substitution of judge for cause, the moving party must establish, by a preponderance of the evidence, actual prejudice.” (In re Marriage of O'Brien (2009) 393 Ill. App. 3d 364, 373.)

“‘Proving prejudice so as to justify a substitution for cause is a heavy burden and the conclusion of prejudice will not be made lightly.’” (O'Brien, 393 Ill. App. 3d at 373 quoting In re Petersen (2001) 319 Ill. App. 3d 325, 340; Beasley v. Stolvoort, 2017 Ill. App. 4th 160680, 11 [Ill. App. Ct. 2017].)

Recent Cases and Precedents Influencing Motion to Disqualify or Substitute Judge Decisions

“Courts should not construe section 2-1001(a)(2) in a manner that facilitates or encourages a party to ‘judge shop’ until he finds one sympathetic to his cause. Furthermore, although ‘not expressly included in the statute, [the supreme court] has long recognized that courts may take into consideration the circumstances surrounding a motion for substitution of judge and may deny the motion if it is apparent that the request has been made as a delay tactic.’” (Spiegel v. Hall, 2020 IL App (1st) 190840, 14-15 [Ill. App. Ct. 2020][internal citations omitted].)

“While the requirement for voluntary recusal may be the mere appearance of impropriety, actual bias is required for disqualification.” (Spiegel, supra, at 18, citing In re Marriage of O'Brien, 2011 IL 109039, ¶¶ 32, 45 [rejecting the appellant's invitation to replace the actual prejudice standard with the appearance of impropriety standard, which would mean that the mere appearance of impropriety would be enough to force a judge's removal from a case].)