Illinois state law says that litigants — “as a matter of right” — have the ability to substitute the judge assigned to their case without cause.

Except when the trial judge says they can’t.

Now, the state’s highest court will weigh in on “judge shopping” — the reason trial courts have denied motions to substitute judges when litigants are suspected of trying to pair their case with a judge they believe is friendly to their cause.

The Illinois Supreme Court on Wednesday took up the case, pitting a law that allows parties to request a new judge against an older doctrine that aims to prevent them from “testing the waters” to find favorable judges.

It’s one of three civil and five criminal cases the Supreme Court agreed to hear. Altogether, the high court denied 211 cases outright and denied four others while giving instructions to the lower courts.

A split 5th District Appellate Court panel in January said that a trial judge was within his rights to deny a plaintiff’s motion to switch judges — even though the plaintiff followed the law saying each party “shall be entitled to one substitution of judge without cause as a matter of right.”

Connie Bowman filed a medical-malpractice suit in Jefferson County in 2009. In March 2013, with the case assigned to 1st Judicial Circuit Judge David K. Overstreet’s courtroom, she moved to voluntarily dismiss the case.

In August of that year, she refiled a new complaint with similar claims to the first. By the court’s random assignment, the new lawsuit was also assigned to Overstreet.

Bowman filed a motion under Section 2-1001(a) of the Code of Civil Procedure requesting a new judge. The defendant, Dr. Michael D. Ottney, filed an objection and argued Overstreet had already made substantive decisions in the first case.

That meant the judge had already “tipped his hand” on the issue, he argued, and if the plaintiff was allowed to get a new judge, she would get a second chance on some already-decided issues in the case.

Overstreet denied Bowman’s motion for a new judge in February 2014. But he also certified a question for the appellate court: Can a judge reject that type of motion under those circumstances?

In an opinion published in January, 5th District Appellate Justice Thomas M. Welch wrote that Bowman’s second action was distinct from her first one, and that she correctly followed the guidelines laid out in the Civil Code for seeking a new judge.

In addition to giving litigants “one substitution of judge without cause as a matter of right,” Section 2-1001(a) of the code says the request should be filed “before the judge to whom it is presented has ruled on any substantial issue in the case.”

But the court also wrote that multiple courts concluded motions for a new judge could be denied even in the absence of a previous substantive decision “if the litigant has had the opportunity to ‘test the waters’ and form an opinion as to the court’s disposition toward his or her case.”

Welch wrote that the Supreme Court, in the 1984 case In re Marriage of Kozloff, frowned upon the notion that resourceful litigants could use the rule to repeatedly ask for a new judge until they found one they believed to be sympathetic.

But the 4th District Appellate Court, in the 2002 case Illinois Licensed Beverage Association v. Advanta Leasing Services, said the right to substitute judges “is absolute, and the trial court does not have the discretion to consider whether the movant had the opportunity to ‘test the waters.’”

A later 4th District decision in the 2013 case Schnepf v. Schnepf further held that the logic spelled out in Kozloff was limited to post-decree petitions.

However, both the 3rd District and 5th District panels have previously looked down upon “testing the waters” or “judge-shopping,” holding that courts have some flexibility to determine what counts as a new action in the context of a request for a new judge.

What those cases have in common “is that the courts were able to rule that the policy behind the rule defeats the seemingly bright-line language of the statute because the case at bar was not a new and distinct cause of action; thus, the motion could be declared untimely pursuant to the statute,” Welch wrote.

In the 3rd District case specifically, Ramos v. Kewanee Hospital in 2013, the court said that even in an action that is distinct, judges can deny substitution requests by looking broadly at the circumstances of a case to determine whether a party has had the ability to glean a judge’s position.

“Our best guess is that the [S]upreme [C]ourt would not endorse the exercise of the right to voluntary dismissal as an end run around the prohibition against judge shopping,” that court wrote.

The panel in the current case agreed, saying that both of Bowman’s claims were identical, and while Overstreet didn’t make any substantive rulings in Bowman’s pending suit, he did in the dismissed case — “affording the plaintiff her opportunity to ‘test the waters’ with Judge Overstreet.”

“Thus, even if no substantial rulings were made by the trial court in the plaintiff’s second action, the motion may be considered untimely because it was made after the plaintiff had an opportunity to form an opinion as to Judge Overstreet’s reaction to her cause of action.”

He noted that the case only came to fruition because of the trial court’s random assignment to the same judge twice.

“Frankly, the plaintiff’s strategy was thwarted by chance; a purely coincidental reassignment to Judge Overstreet brings this matter to our attention today,” Welch wrote.

Justice S. Gene Schwarm concurred in the opinion, while Justice Bruce D. Stewart authored a one-page dissent.

Stewart wrote that the majority admitted that people are entitled to a substitution of judge and that the statute governing substitution should be broadly construed.

“Nevertheless, the majority casts aside these principles and follows a Third District case in which the court expressly grounded its decision upon its ‘best guess’ that the [S]upreme [C]ourt would approve denial of a motion for substitution under similar circumstances,” Stewart wrote.

He said the “comprehensive and thoughtful” 4th District opinion in Schnepf should be followed but noted there is a split among state appeals panels.

“There is a clear disagreement among the appellate districts on this issue, which should be determined by the [S]upreme [C]ourt,” he wrote.

The case is Connie L. Bowman v. Michael D. Ottney, No. 11900.

John J. Hopkins, of John J. Hopkins & Associates in Alton, who represented Bowman, said, "We’re cautiously optimistic and hopeful that we’ll get the relief we requested."

Brad A. Elward, of Heyl, Royster, Voelker & Allen, P.C. in Peoria, represented Ottney. He could not be reached for comment.

The other cases the high court accepted Wednesday are:

  • People v. Marquis Thomas, No. 118589.
  • People v. Damen Price, No. 118613.
  • People v. Stanley McDonald, No. 118882.
  • Christopher B. Burke Engineering Ltd. v. Heritage Bank of Central Illinois, No. 118955.
  • People v. Taron R. Burns, No. 118973.
  • People ex rel. Patrick McGuire, et al., v. Vincent Cornelius, No. 118975.
  • People v. Jesus Cotto, No. 119006.