Substitution of a Judge

There are certain instances in a case when a Judge has to be substituted because of cause.  However, a Judge can be substituted merely by right without any other explanation in accordance with 735 ILCS 5/2-1001.

In domestic relations, an attorney may make the recommendation to their client to substitute a Judge as of Right because of the Judges history of ruling and a possible unfavorable result for their client, the attorney’s history with a particular Judge and how it could negatively influence a case or even the particular Judge’s courtroom polices and the possible delay it may cause to their case. Each party is entitled to one substitution of a judge without cause as a matter of right.

A Judge can be substituted without cause when a party timely makes a request; the attorney making the request must make the request by a motion and will usually be made if it is presented before trial or hearing begins and is presented to the judge whom has originally been assigned the case.

A Judge may also be substituted when the Judge is a party or interested in the action, or his or her testimony is material to either of the parties to the action or he or she is related to or has been counsel for any party in regard to the matter in controversy.  In any such situation a substitution of judge may be awarded by the court with or without the application of either party.

If a petition is made to substitute a Judge for cause, a motion shall be properly filed and a hearing should occur as to whether a cause exists before another Judge.  If the petition is allowed the case should be assigned to another Judge and if it is denied, the case shall be assigned back to the Judge named in the petition.

Removing a judge “for cause,” is not easy, and it’s not meant to be.  If every party to a lawsuit could make a charge of unfairness against a judge and demand a change, then there would be a constant parade of judges in and out of cases.  After all, in each ruling a judge makes, one side is happy, and one side is not.  And the party on the losing side generally greets the decision with a feeling of being short-changed.

But judges are presumed to be impartial, and able to put personal feelings and experiences aside when presiding over a case.  So to remove a judge for cause, you will have to point to more than just some facts that could possibly lead to bias and unfairness.  You have to make the case that this judge is in fact biased against you and you are unable to have a fair trial without removing him or her.

It is always a good idea to discuss the Judge you are assigned with your attorney and if you are pro se and have come concerns regarding the Judge you were assigned, make sure to file the motion for substitution prior to the Judge hearing anything substantial as it is going to difficult to have them substituted after that.

Leave a Reply