Supreme Court Summaries
Opinions filed August 4, 2011
In re Marriage of O’Brien, 2011 IL 109039
Appellate citation: 393 Ill. App. 3d 364.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Justices Thomas, Burke, and Theis concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion.
Justice Karmeier specially concurred, with opinion, joined by Chief Justice Kilbride.
In this Lake County marital dispute, the supreme court ruled on the proper standard to use in ruling on a petition to substitute a judge for cause after a substantive ruling has been made in a case.
In bringing his appeal from a 2006 marriage-dissolution judgment, the ex-husband here complained, not only of a maintenance award which was made, but of the fact that the proceedings were presided over by a judge as to whom the husband had unsuccessfully filed a petition to substitute for cause. This petition had complained that, in 2003, the challenged judge presided over an evidentiary hearing in a domestic battery case in which the husband was ultimately acquitted by a different judge. The petition also alleged that the wife had exchanged greetings with the challenged judge in a parking lot and had waved at him in a courtroom. The petition to substitute for cause was ruled on by a different circuit judge, who denied it. The appellate court affirmed, and the cause came before the Illinois Supreme Court on a certificate of importance.
The husband complained on appeal that the refusal to substitute had been based on erroneous application of an actual prejudice standard, which he conceded he could not meet. He argued for a standard which looks to the appearance of impropriety, found in the Judicial Code, which is part of the supreme court’s rules. Rule 63(C)(3), which utilizes this standard, deals with the question of when a judge should voluntarily recuse himself, a decision which is made solely by the judge in question.
In this decision, the Illinois Supreme Court noted that recusal is different from substitution of a judge for cause after a substantive ruling, which is initiated by petition under section 2–1001(a)(3) of the Code of Civil Procedure. The Code does not define cause, but Illinois courts have construed cause to mean actual prejudice shown by prejudicial trial conduct or personal bias. This interpretation has been consistently applied by the courts, not just to the current statute, but to every former version. The General Assembly has never seen fit to include the Judicial Code’s lower standard of appearance of impropriety in the statute on substitution of judge for cause after a substantive ruling, and the Illinois Supreme Court, in this decision, declined the husband’s invitation to do so.
On June 8, 2009, shortly before the appellate court’s July 14, 2009, ruling in this case, the United States Supreme Court filed a decision in Caperton v. A.T. Massey Coal Co., which the husband argued supported his position. Although it raised due process concerns, that opinion dealt with recusal rather than substitution for cause and also concerned a situation which the United States Supreme Court viewed as extreme. Caperton does not call for a different result here.
The Illinois Supreme Court found no reason to disturb the maintenance award, and the judgments of the circuit and appellate courts were affirmed.