Aussieker v. City of Bloomington

822 N.E.2d 927, 355 Ill. App. 3d 498, 291 Ill. Dec. 52

• Court: Appellate Court of Illinois
• Decided: January 27, 2005
• Docket: 4-04-0540
• Status: Published

Opinions

JUSTICE STEIGMANN

delivered the opinion of the court:

In this case, we consider whether each plaintiff in a multiple-plaintiff civil case is entitled to one motion for substitution of judge as of right under section 2 — 1001(a)(2) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2 — 1001(a)(2) (West 2002)). We conclude that the answer is yes, and we reverse the trial court’s order denying plaintiff Arnold R. Zimmer’s motion for substitution of judge as of right.

I. BACKGROUND

On April 26, 2004, plaintiffs, 17 taxpayers and real estate owners, filed a declaratory judgment action against defendant, the City of Bloomington, alleging that the city did not exercise appropriate diligence in soliciting bids for the construction of a municipal arena. On April 27, 2004, the city filed a motion to dismiss, and a hearing was scheduled for April 30, 2004. Before the hearing was held, plaintiff James D. Elder filed a motion to substitute Judge Charles Reynard under section 2 — 1001(a)(2) of the Civil Code (735 ILCS 5/2— 1001(a)(2) (West 2002)). On April 30, 2004, the trial court granted Elder’s motion, and the case was later reassigned to Judge Donald D. Bernardi.

The trial court set a hearing on the city’s motion to dismiss for May 14, 2004. On May 12, 2004, plaintiffs filed a response to the city’s motion. Also on that day, Zimmer filed a motion for substitution of judge as of right under section 2 — 1001(a)(2) of the Civil Code. On May 13, 2004, the city filed an objection to Zimmer’s motion, alleging that (1) the motion was brought for the purpose of delay and should therefore be denied and, alternatively, (2) Zimmer had not preserved his right to file a second motion for substitution of judge by informing the court that he was not joining in Elder’s motion for substitution of judge.

On May 14, 2004, the trial court first conducted a hearing on Zimmer’s motion for substitution of judge and denied it. Specifically, the court found that the 17 named individual plaintiffs constituted one party and thus were collectively entitled to only one motion for substitution of judge under section 2 — 1001(a)(2) of the Civil Code. The court further explained that multiple plaintiffs can be distinguished from multiple defendants who are considered separate parties entitled to multiple motions for substitution under Illinois law. The court then conducted a hearing on the city’s motion to dismiss plaintiffs’ complaint and granted that motion with leave to refile within 21 days.

This appeal followed.

II. THE TRIAL COURT’S DENIAL OF ZIMMER’S MOTION FOR SUBSTITUTION OF JUDGE

Plaintiffs argue that the trial court erred by denying Zimmer’s motion for substitution of judge because each plaintiff in a multiple-plaintiff civil action is entitled to one motion for substitution of judge as of right under section 2 — 1001(a)(2) of the Civil Code (735 ILCS 5/2 — 1001(a)(2) (West 2002)). We agree.

When interpreting a statute, an appellate court must ascertain and give effect to the legislature’s intent, and the best indication of such intent is the language of the statute itself. People v. Olsson, 335 Ill. App. 3d 372, 374, 780 N.E.2d 816, 818 (2002). When the statutory language is clear and unambiguous, a court must give effect to its plain and ordinary meaning without resort to other tools of statutory construction. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 255, 807 N.E.2d 439, 444, (2004). Further, undefined words in a statute are given their plain and ordinary meaning. In re Estate of Poole, 207 Ill. 2d 393, 406, 799 N.E.2d 250, 258 (2003).

Section 2 — 1001(a) (2) (i) of the Civil Code provides that “in any civil action *** [e]ach party shall be entitled to one substitution of judge without cause as a matter of right.” 735 ILCS 5/2 — 1001(a)(2)(i) (West 2002). This statute is “ ‘to be liberally construed, and where the conditions are met, the trial court has no discretion to deny the request unless it is shown that the motion was made simply to delay or avoid trial.’ ” Illinois Licensed Beverage Ass’n, Inc. v. Advanta Leasing Services, 333 Ill. App. 3d 927, 932, 776 N.E.2d 255, 259-60 (2002), quoting Sahoury v. Moses, 308 Ill. App. 3d 413, 414, 719 N.E.2d 1157, 1158 (1999). If the motion requesting substitution of judge is filed before the presiding judge has made a substantial ruling, the right to substitution is absolute. Scroggins v. Scroggins, 327 Ill. App. 3d 333, 336, 762 N.E.2d 1195, 1198 (2002). Additionally, any order entered after a motion for substitution of judge is improperly denied is void. Advanta, 333 Ill. App. 3d at 932, 776 N.E.2d at 260. The Fifth District has held that each individual defendant in a multiple-defendant action is deemed to be a separate party, and each such party has an independent right to one substitution of judge under section 2 — 1001(a)(2) of the Civil Code. Boatman v. A.P. Green Refractories Co., 223 Ill. App. 3d 121, 124, 584 N.E.2d 1066, 1068 (1991); Beahringer v. Hardee’s Food Systems, Inc., 282 Ill. App. 3d 600, 601, 668 N.E.2d 614, 615 (1996).

In this case, defendant attempts to distinguish multiple plaintiffs from multiple defendants for purposes of applying section 2 — 1001(a)(2) of the Civil Code. We are not persuaded. The statute refers to “each party” without differentiating between plaintiffs and defendants, and the statute is silent with respect to situations involving multiple plaintiffs and multiple defendants. See 735 ILCS 5/2— 1001(a)(2)(i) (West 2002). Because the statute does not define the word “party,” it must be given its plain and ordinary meaning. The word “party” is defined as “[o]ne by or against whom a lawsuit is brought.” Black’s Law Dictionary 1154 (8th ed. 2004). Each of the 17 plaintiffs in this case is bringing a lawsuit against the city and, according to the plain and ordinary meaning of the word “party,” each plaintiff should be entitled to file a motion for substitution of judge under section 2 — 1001(a)(2) of the Civil Code.

Both Boatman and Beahringer lend support to our holding that section 2 — 1001(a)(2) of the Civil Code applies to each plaintiff in this case. Although these cases only discuss multiple defendants, they do not rule out the application of section 2 — 1001(a)(2) to situations involving multiple plaintiffs. See Boatman, 223 Ill. App. 3d 121, 584 N.E.2d 1066; Beahringer, 282 Ill. App. 3d 600, 668 N.E.2d 614.

The trial court’s misinterpretation of the statute regarding its treatment of multiple parties is further shown by consideration of section 114 — 5(b) of the Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/114 — 5(b) (West 2002)). This section, which has existed since the enactment of Illinois’s modern code of criminal procedure in 1963, addresses the issue of multiple defendants in a criminal case regarding motions for substitution of judge as a matter of right and states as follows:

“Within 24 hours after a motion is made for substitution of judge in a cause with multiple defendants!!,] each defendant shall have the right to move in accordance with subsection (a) of this [s]ection for a substitution of one judge. The total number of judges named as prejudiced by all defendants shall not exceed the total number of defendants. The first motion for substitution of judge in a cause with multiple defendants shall be made within 10 days after the cause has been placed on the trial call of a judge.” 725 ILCS 5/114— 5(b) (West 2002).

The references to multiple defendants and the implementation of a time limit in which a defendant may file a substitution-of-judge motion demonstrate the legislature’s ability to restrict motions for substitution of judge as a matter of right in cases involving multiple parties when the legislature wishes to do so. The city here is effectively arguing that we should construe section 2 — 1001(a)(2) of the Civil Code as if it read along the lines of section 114 — 5(b) of the Criminal Code. We decline to do so. Construing the statute as defendant suggests would amount to judicial legislating. We further note that the legislature has revised section 2 — 1001 of the Civil Code three times in the last 20 years, and despite this legislative attention, the General Assembly has not opted to add the multiple-party provision it placed in section 114 — 5(b) of the Criminal Code 40 years ago.

We thus hold that under section 2 — 1001(a)(2) of the Civil Code (735 ILCS 5/2 — 1001(a)(2) (West 2002)), each plaintiff in a multiple-plaintiff civil case is entitled to one motion for substitution of judge as of right. Accordingly, we conclude that the trial court erred by denying Zimmer’s motion to substitute judge.

In so concluding, we note that the city makes policy-related arguments in support of its contention that section 2 — 1001(a)(2) of the Civil Code should be interpreted as distinguishing between multiple plaintiffs and multiple defendants. In particular, the city asserts the following: (1) if plaintiffs in a multiple-plaintiff civil case have the right under section 2 — 1001(a)(2) to file multiple motions to substitute judge without alleging grounds, the potential exists that defendants will be denied their right to obtain prompt justice, as guaranteed by article I, section 12, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 12), and (2) fundamental differences exist between plaintiffs and defendants in civil cases. Whatever merit the city’s assertions may have, our duty is to apply statutes as they are written. The city should address its proposed change in the law to the institution in this state charged with making public policy — the General Assembly.

III. STANDING OF COPLAINTIFFS

Because we agree with Zimmer that the trial court erred by denying his motion for substitution of judge, all of the trial court’s subsequent orders are null and void as to Zimmer. The other 16 plaintiffs, citing the null-and-void rule as discussed in Advanta, 333 Ill. App. 3d at 932, 776 N.E.2d at 260, assert that they are entitled to the same benefit of this rule as Zimmer — that is, that all of the trial court’s orders entered after the court erroneously denied Zimmer’s motion for substitution of judge are null and void as to them. They are mistaken.

The other 16 plaintiffs have no standing to raise this claim because the trial court’s erroneous ruling did not affect them. Indeed, Elder, one of the other 16 plaintiffs, filed a motion for automatic substitution of judge before Zimmer, and Elder’s motion was granted. Under these circumstances, a ruling reversing the trial court’s dismissal of Elder’s complaint on the sole ground that the court erroneously denied Zimmer’s motion for substitution of judge simply makes no sense.

Further, we note that the theory underlying this claim of the other 16 plaintiffs — namely, that the trial court’s erroneous ruling adversely affecting Zimmer should be viewed as similarly adversely affecting each of his 16 coplaintiffs — runs counter to those plaintiffs’ fundamental argument with which we began this case, asserting that each of the 17 plaintiffs in this case is a separate party who may separately assert rights statutorily afforded to parties in a civil case and who is entitled to be treated separately from his or her coplaintiffs.

IV CONCLUSION

For the reasons stated, we affirm the trial court’s judgment dismissing the complaints of each of the plaintiffs except for Zimmer, and we reverse the trial court’s judgment as to Zimmer and remand for further proceedings consistent with the views expressed herein.

Affirmed in part and reversed in part; cause remanded with directions.