specially concurring:
I agree that the judgment of the circuit court must be affirmed, but I do so for reasons other than those expressed in court’s opinion. As I explain below, the appellate court correctly held that the trial court erred in not automatically referring the petition for substitution for cause (735 ILCS 5/2 — 1001(a)(3) (West 2006)) to another judge. The error, however, is harmless and reversal is not required. It is for that reason that I concur in the court’s judgment.
This case concerns nothing more than a routine question of statutory interpretation. As such, the best place to begin is with the language of the statute. Section 2 — 1001(a)(3) provides:
“A substitution of judge in any civil action may be had in the following situations:
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(3) Substitution for cause. When causes exists.
(i) Each party shall be entitled to a substitution or substitutions of judge for cause.
(ii) Every application for substitution of judge for cause shall be made by petition, setting forth the specific cause for substitution and praying a substitution of judge. The petition shall be verified by the affidavit of the applicant.
(iii) Upon the filing of a petition for substitution of judge for cause, a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition. The judge named in the petition need not testify but may submit an affidavit if the judge wishes. If the petition is allowed, the case shall be assigned to a judge not named in the petition. If the petition is denied, the case shall be assigned back to the judge named in the petition.” 735 ILCS 5/2 — 1001 (West 2006).
The plain language of section 2 — 1001(a)(3) does not authorize an Illinois judge accused of bias or prejudice in a civil proceeding to control the disposition of the petition seeking substitution of judge for cause. The statute sets forth only what the petition must contain: the specific cause for substitution must be identified and the petition must be verified by an affidavit. The statute provides, upon the filing of a petition, for a “hearing” to be conducted “as soon as possible” by another judge. Subsection (iii) does not speak in terms of the fifing of a “sufficient” or an “adequate” petition. Notably, the statute does not speak in terms of “threshold requirement[s]” (238 Ill. 2d at 553, 559, 566-67, 567) needed to “trigger” (238 Ill. 2d at 553, 567) the hearing. Nor does the statute refer to “threshold deficiencies” that prevent another judge from hearing the matter. 238 Ill. 2d at 558-59. And the statute certainly does not expressly set forth the bifurcated process that the court embraces today. See 238 Ill. 2d at 564 (referring to the establishment of a “threshold procedural” stage and “substantive” stage). In construing a statute, this court is not free to depart from the plain language of the statute by reading into it exceptions, limitations or conditions that are not there. Town & Country Utilities, 225 Ill. 2d at 117.
Rather than address the statutory language at issue, the court instead begins its analysis by stating that Illinois courts have long recognized that a party’s right to have a second judge adjudicate the motion is “not automatic” despite the fact that this court has never addressed the precise question presented today. The appellate court cases cited by the court are People v. Damnitz, 269 Ill. App. 3d 51 (1994), Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d 644 (1997), City of Quincy v. Weinberg, 363 Ill. App. 3d 654 (2006), In re Estate of Hoellen, 367 Ill. App. 3d 240 (2006), and Williams v. Estate of Cole, 393 Ill. App. 3d 771 (2009). 238 Ill. 2d at 555, 566-67. Quincy does not address the specific question raised in this case so I do not believe it is helpful in addressing the parties’ contentions. Both Williams and Hoellen rely on Alcantar, which in turn relies on Damnitz. Notably, none of these cases interpret the actual language of section 2 — 1001(a)(3). For this reason alone, these cases are unpersuasive since the primary principle of statutory construction is to ascertain and give effect to the intent of the legislature and the language of the statute itself is considered the most rehable indicator of the legislature’s intent. Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 117 (2007).
Cases like Alcantar and Damnitz hold generally that, because some extrajudicial source must trigger a claim of bias, it is therefore proper for the challenged judge to initially screen section 2 — 1001(a)(3) petitions for sufficiency. As mentioned earlier, Alcantar merely cited to Damnitz in support of this holding. Damnitz found support for its conclusion that the challenged judge could make an initial determination on the sufficiency of the allegations because judicial rulings alone almost never constitute a valid basis for a bias or partiality motion, citing a United States Supreme Court case, Liteky v. United States, 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994). Although the Supreme Court did say that such claims ordinarily would not support such claims, it allowed that they might. Accordingly, this court has stated the rule from Liteky in the following manner:
“ ‘[Olpinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.’ (Emphases in original.)” Eychaner v. Gross, 202 Ill. 2d 228, 281 (2002), quoting Liteky v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 491, 114 S. Ct. 1147, 1157 (1994).15
As noted, the court in Damnitz based its holding that a threshold inquiry by the challenged judge is warranted on the fact that ordinarily most bias charges stemming from conduct during trial will not support a finding of actual prejudice. But given Liteky’s acknowledgment that there can be instances of where a successful bias motion stems from a non-extrajudicial source (i.e., judicial conduct from current or prior proceedings), a challenged judge should not be allowed to make an initial screening determination regarding a for-cause motion’s sufficiency. Simply stated, if some allegations of bias stemming from judicial rulings may be successful, then the challenged judge should not be in the position to decide whether the petition may be “advanced” to a second judge.
In light of the above, the appellate court’s holding, that an Illinois judge accused of bias or prejudice cannot control the disposition of a petition seeking change of judge for cause, is faithful to the language of section 2 — 1001(a)(3). However, practical reasons also support this holding. Under the court’s “threshold” inquiry procedure, the following situation becomes a possibility: A motion for substitution for cause is filed. The challenged judge screens it in the “threshold” stage and rules that the petition does not contain allegations that are “sufficient” enough to “trigger” a hearing. The movant returns with another motion that she believes is “more sufficient.” The challenged judge again rules that the petition lacks the needed sufficiency to “trigger” a transfer for a hearing. The possibility therefore exists that a potentially biased judge is able to thwart the case from being reassigned to a second judge to hear the for-cause allegations. This can have an impact on the litigation. The movant may be forced to consider settling so as to avoid going to trial in front of a judge she believes is biased against her. Or, she may take the chance and proceed to trial before that judge. If she ultimately loses the case, she can challenge the substitution for cause ruling on appeal. If she is successful, the litigants will be forced to go through an entire new trial, with all of its attendant costs, including that of appeal. These costs, plus judicial resources, are saved if, at the first instance, a judge who receives a for-cause motion, sends it to another judge for a ruling whether it be a ruling based on lack of verification, insufficient pleadings, or lack of cause.
In contrast, the court today interprets section 2 — 1001(a)(3) to require three things before the right to a hearing before another judge is “triggered”: “the request must be made by petition, the petition must set forth the specific cause for substitution, and the petition must be verified by affidavit.” 238 Ill. 2d at 553. The court then states that Bailey’s petition only met one of the requirements — it was in fact a petition — but that it did not meet the other requirements as it was neither verified by affidavit nor did it “adequately” allege cause for substitution. 238 Ill. 2d at 554. The statute, however, does not require “adequate” or “sufficient” allegations of cause — the statute requires only that the specific cause for the substitution be alleged. I note that, in this regard, the court specifically states that section 2 — 1001(a)(3) is analogous to section 144 of the federal code. 238 Ill. 2d at 564. But a comparison of the two statutes reveals that they are not the same. Section 144 requires a “timely and sufficient affidavit” be filed by the party asserting the challenge before the matter is assigned to another judge to “hear” the proceeding. Section 2 — 1001(a)(3) does not contain either a timeliness or a sufficiency component to it.
Further, relying on Alcantar, the court states:
“[E]ven if we took Bailey’s allegations as true, they would not suffice to establish ‘cause’ for substitution within the meaning of [the statute].” 238 111. 2d at 555.
Thus, according to the opinion, a challenged judge is allowed to make an initial determination of whether “cause” has been alleged and is under no obligation to refer the matter to another judge for hearing. The statute however states that “upon” the filing of a petition, a hearing to determine whether “the cause exists shall be conducted.” Thus, the language of the statute expressly provides that whether cause exists is to be left to another judge.16 The court then proceeds to hold that any questioning done by the judge here was done pursuant to her role in guardianship proceedings. The court states:
“While it is true that the court expressed skepticism regarding Bailey’s testimony and the propriety of her conduct, it can scarcely be claimed, given the facts of this case, that the court’s skepticism was in any way unjustified.” 238 Ill. 2d at 556.
This language is troubling. Does this mean that the challenged judge can, in making her “threshold” determination, look beyond the allegations for reasons to deny the motion? In this case, when the motion was presented to the trial judge, she did not know that facts would later be adduced in evidence and that would later justify this initial finding. It must be pointed out that what prompted the for-cause motion in this case was the judge’s sua sponte questioning of Bailey during a status hearing set in order to decide a hearing date on Bailey’s motion. During her sua sponte questioning of Bailey, the judge asked Bailey’s attorney if he understood why she [the judge] “would have some concerns?” When the attorney replied that there were witnesses who could corroborate Bailey’s testimony at an evidentiary hearing, the judge stated: “Quite possibly if it were to go to hearing.” The question here is, whether given her sua sponte questions, the judge could have been impartial at the future hearing. That the evidence later revealed that her skepticism at the status hearing was justified is of no moment to the question of whether section 2 — 1001(a)(3) required her to send the motion to another judge.
The court’s opinion has other problems beyond its expansive statutory construction. The court states that beyond the lack of an affidavit and the failure to allege legally sufficient basis for finding cause, Bailey’s request came “too late.” As I have already pointed out, the statute does not specify when such a motion is to be filed. Case law holds that it should be filed as soon as possible to the discovery of the alleged bias. But when that occurs can be a question of fact. Again, this would require the challenged judge to rule on a subjective question of whether something was filed “in time.” The court also states that in this vein, the challenged judge can look into and inquire into the good faith of the motion. 238 Ill. 2d at 557. How can good faith be considered a threshold matter and why would a judge accused of bias be the one to make that call?
Apparently aware that its holding contravenes the statute’s plain language, the court admits that the appellate court was “entirely” correct that “courts should normally” apply the language of the statute as written. 238 Ill. 2d at 560. What the appellate court overlooked, the court states, is that there is an important exception to this rule — when undertaking the interpretation of a statute, a court must presume that the legislature did not intend to produce an absurd or unjust result. 238 Ill. 2d at 560. The court identifies the “absurd” result as follows:
“If it were literally true that a hearing on whether there was cause for substitution had to be conducted by another judge [upon filing of the petition], an unscrupulous litigant could effectively bring an immediate halt to any pending civil case, at any time, without regard to when the basis for the petition for substitution was discovered, without regard to whether the petition set forth the specific cause for which substitution was requested, and without regard to whether the petition was accompanied by the affidavit of the applicant or met any other procedural requirements to which civil proceedings are normally subject. The disruption this could create for the conduct of litigation is self-evident.” 238 Ill. 2d at 560-61.
I strongly disagree with this analysis. Initially, a trial judge has Rule 137 sanctions available to punish the “unscrupulous” litigants who file frivolous pleadings. See Fischer v. Brombolich, 246 Ill. App. 3d 660, 664 (1993) (recognizing Rule 137 is designed to “penalize litigants who plead frivolous or false matters or bring suit without any basis in law”). Second, “unscrupulous” litigants often use many legitimate tools of litigation to ensure delay in cases. For example, motions for extensions of time, continuances, and stays, are routinely used in Illinois courtrooms daily as delay tactics. Accordingly, the answer to the court’s “disruption” argument is that trial judges should sanction such behavior, not that this court rewrite a statute which is to be given a liberal construction to “promote rather than defeat the right of substitution.” People v. Jones, 197 Ill. 2d 346 (2001).
Additionally, and again apparently aware that it is inconsistent to hold that subjective determinations such as timeliness and good faith and sufficiency of allegations are in fact objective, “threshold” matters that the challenged judge can make in the first instance, the court states:
“In reaching this conclusion, we are not unmindful of the potential conflict posed by permitting the judge whose partiality is being questioned to make the initial determination as to whether a motion for substitution is sufficient to trigger the requirement that it be referred to another judge for consideration on the merits. We believe, however, that this concern is more theoretical than real. In many, if not most, cases, evaluation of the threshold requirements will turn on objective considerations: when was the basis for the claim of cause discovered, when was the petition filed, was the petition verified by affidavit, does the ‘cause’ alleged in the petition stem from some extrajudicial source? Depending on the circumstances, inquiry into whether the petition was filed in good faith rather than for purposes of delay or whether its allegations, if true, would be sufficient to establish ‘cause’ for substitution within the meaning [of the statute] may require a more complex and nuaneed analysis. We are confident, however, judges will undertake their review of substitution petitions conscientiously and in accordance with the law. Judges are assumed to be impartial, after all [citation], and they have a powerful incentive to err on the side of caution. If they deny a petition for substitution under circumstances where the appellate court subsequently determines that the petition should have been allowed, all of their subsequent rulings in the case will be invalidated.” (Emphasis added.) 238 Ill. 2d at 567-68.
First, only one of the “objective considerations” listed above is truly objective: Is there a verification? Every other one is subjective. Even whether a purported affidavit meets the affidavit requirements of Supreme Court Rule 191 and is, in fact, an “affidavit” can be difficult to determine. See Robidoux v. Oliphant, 201 Ill. 2d 324 (2002). Indeed, it was asked at oral argument if a certification under section 1 — 109 of the Code of Civil Procedure could in some circumstances satisfy the affidavit requirement. These types of questions indicate that having a second judge handle a for-cause petition’s entire litigation is more efficient than the nebulous two-step inquiry that the court today embraces. Indeed, I see no reason why “complex and nuanced” questions are to be resolved by the judge whose impartiality is in question. This holding virtually guarantees litigation on appeal on these questions, as this case demonstrates. Would it not be a better practice for this court to set a policy that works to reduce appealable questions by having these petitions go to another judge whose impartiality is not in question as a matter of course? I note in this area that again, Illinois practice differs from the federal practice alluded to in today’s opinion — in most federal jurisdictions, an appeal may be taken immediately from the challenged judge’s finding of insufficiency of the allegations under section 144. See SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1997) (explaining appellate review of section 144 motions). In Illinois, in contrast, an appeal from the denial of the motion for substitution (no matter which judge rules) comes with the case when it is finally disposed of.
A final thought on the language I have quoted above. I agree with the court in that I have the utmost confidence in our trial judges. But, even the most conscientious judges can make mistakes in cases in which his or her impartiality is not in question. Thus, I would avoid putting a challenged judge in such a situation by holding that a for-cause petition should be reviewed by a second judge once it has been filed. I note too that many judges in the circuit court already utilize this practice in order to avoid any questions of impropriety or overreaching on their part.
Today’s decision discourages conscientiousness and rewards expediency. In the wake of the United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 173 L. Ed. 2d 1208, 129 S. Ct. 2252 (2009), questions regarding whether section 2 — 1001(a)(3) comports with due process have already been raised. Indeed, that question and the related question of what constitutes “cause” under the statute are currently before this court in In re Marriage of O’Brien, No. 109039, which was argued in January 2010. In O’Brien, the issue is whether actual bias is the only type of “cause” sufficient to warrant transfer to another judge or if cause also encompasses the appearance of impropriety standard contained in Canon 3(C)(1) of the Code of Judicial Conduct. The court’s decision today indicates that actual bias is the standard to be used and apparently answers at least one of the questions at issue in O’Brien.
Although I agree with the appellate court that the trial judge committed error by not having sent the matter to a second judge, I cannot agree with appellate court’s conclusion that a new trial is warranted. According to the appellate court, whether a for-cause petition sets out detailed facts, whether the petition is supported by a sworn statement containing facts personally known to the declarant and the declarant’s signature, whether the allegations are true, and whether the allegations amount to demonstrated judicial prejudice or bias are all questions that are properly addressed by a judge whose impartiality is not in dispute. While I generally agree with this statement, the problem for Bailey here is that her petition contained no sworn statement or affidavit purporting to contain facts personally known to the declarant, as is required under section 2 — 1001(a)(3) for the impartial second judge to review. A for-cause motion may be denied strictly on the basis of the lack of an affidavit notwithstanding the charges of bias contained within the body of the petition. M. Loeb Corp. v. Brychek, 98 Ill. App. 3d 1122, 1128-29 (1981). In light of this fact, the trial judge’s error in not having the motion heard by a second judge can be considered harmless since the second judge would have been duty-bound to dismiss the petition for lack of an affidavit. It is on this basis, and not the rationale offered in the court’s opinion, that I would hold that reversal on this issue is not warranted.
JUSTICE BURKE joins in this special concurrence.
Indeed, the language from Liteky establishing this point is quoted in the court’s opinion today: “ ‘[Jjudicial remarks during the course of a trial that are critical or disapproving of, or even hostile to *** may [support a bias or partiality challenge] if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.’ ” (Emphases in original.) 238 Ill. 2d at 554, quoting Liteky, 510 U.S. at 555, 127 L. Ed. 2d at 474, 114 S. Ct. at 1157.
I must point out that, in discussing the sufficiency of the allegations contained in the petition, the court states that Bailey argues that the trial judge “disregarded her role as a judge and impermissibly assumed the role of an advocate. This contention is wholly without merit. As a preliminary matter, no such allegation was contained in the petition for substitution itself.” 238 Ill. 2d at 555. This, however, is not entirely accurate. Bailey does assert this in her brief to this court, but the allegation in the motion is that the judge in question “without a hearing placed Karen Bailey under oath and asked questions of an adverse nature.” It is clear then, that the motion did contain an allegation that the judge was not acting as a neutral person.