dissenting:
Substitution comes too late for me.
I would affirm.
This case was originally assigned to Chief Judge John McCullough. Petitioner thereupon filed a motion for leave to file an amended petition for writ of mandamus which would add as defendants certain circuit judges of the 11th judicial circuit, including Judge McCullough. Judge James D. Heiple of the Tenth Judicial Circuit was then specially assigned by the Supreme Court of Illinois to hear the case.
(Following Judge Heiple’s denial of the request for substitution of judge, petitioner filed an application with the supreme court for interlocutory appeal and that tribunal ordered the transfer of this case to the Fourth District Appellate Court. We exercised our discretionary jurisdiction in relation to interlocutory orders not otherwise appealable— conferred by Supreme Court Rule 308 (73 Ill. 2d R. 308) — and allowed the appeal.)
The right to a change of venue due to the prejudice of the trial judge is absolute if the requirements of the statute are met. Those requirements appear in section 3 of an Act to revise the law in relation to change of venue (Ill. Rev. Stat. 1977, ch. 110, par. 503):
“A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds.”
Obviously, the threshold question in this appeal is whether the petition for change of venue was presented either (1) before hearing and/or (2) before a ruling on a substantial issue.
In regard to the former, a hearing was held on March 22, 1979, wherein a motion for leave to file an amended petition for writ of mandamus was presented. The motion for substitution of judge was not filed until after the hearing on the amended complaint was concluded. Clearly, the first of the two requirements was not met.
The second requirement that the petition for substitution of judge be made before the judge to whom it is presented has ruled on any substantial issue is a complex question and has been variously interpreted by the Illinois courts. There is no one point in a trial or hearing where it has been conclusively held that a ruling at that point, or thereafter, will be considered a ruling on a substantial issue. It has been held that a petition for change of venue came too late when it was presented to the court after the court had denied a defendant’s motion to strike the complaint. (Swanson v. Randall (1964), 30 Ill. 2d 194,195 N.E.2d 656.) In the case at bar, the original judge denied defendant’s motion to dismiss. Clearly, that is a ruling on a substantial issue. The petition for change of venue, however, was presented to a successor judge; therefore, the judge to whom it was presented had not ruled on that substantial issue.
Case law has interpreted the intention of the legislature that motions for substitution of judge be filed at the first practicable moment. Consider the language of Barnes v. Peoples Gas Light & Coke Co. (1968), 103 Ill. App. 2d 425, 243 N.E.2d 855, interpreting the predecessor statute to section 1 of the venue act (Ill. Rev. Stat. 1977, ch. 110, par. 501) i.e. (Ill. Rev. Stat. 1975, ch. 146, par. 1):
“The statutory right to a change of venue [citation] does not extend beyond the time at which the judge has indicated a position or made a ruling upon a substantive issue in the cause.” (103 Ill. App. 2d 425, 428, 243 N.E.2d 855, 857.)
There can be no question that Judge Heiple indicated a position in relation to a matter of substance as he expressed reservation as to the soundness of the ruling of the earlier judge denying the motion to dismiss. Judge Heiple further stated that he was reserving the right to decide questions of law in the case and was not bound by rulings of predecessor judges. Those statements clearly indicate that Judge Heiple had an adverse view of the case.
Virtually every case can be distinguished from another on facts alone. And the majority has done this with the case of People v. Lawrence (1963), 29 Ill. 2d 426, 194 N.E.2d 337, cert. denied (1964), 376 U.S. 946, 11 L. Ed. 2d 770, 84 S. Ct. 804. But Lawrence nevertheless solidly enunciates the sound legal and pragmatic reasoning behind denying changes of venue after a judge has indicated a position.
“We concur with the trial court that the request for a conference was in the nature of a preliminary motion treating to a degree on the merits of the case and designed to elicit the judge’s views with respect thereto. Having sought and obtained those views, the petition came too late. Were we to hold otherwise, a petition for a change of venue could, in effect, be used as a vehicle to permit a defendant to ‘shop’ among the judges of a court for the one most leniently disposed ° ° 29 Ill. 2d 426, 428, 194 N.E.2d 337, 338.
I see no reason to disturb the historical interpretation that a change of venue is not a matter of right after the trial judge has made apparent an adverse attitude, notwithstanding the statutory amendment. Indeed, the public policy remains the same. The appellate court in Barnes, ruling that the right does not extend beyond the time the judge has indicated a position, illustrated their reasoning thusly: “Any other construction would make it possible for a litigant to wait until ascertaining a judge’s adverse view of the case before deciding to request a change of venue — a situation which would subvert the whole trial system.” 103 Ill. App. 2d 425, 428, 243 N.E.2d 855, 857.
It seems clear to me that this public policy is based upon sound reason and should be exercised in this instance. Considering the fact that the hearing had begun, the fact that the judge had indicated a position adverse to the petitioner, the fact that the petition for change of venue was not filed until after the hearing on the motion, and especially the fact that petitioner was not even present at the hearing, it is apparent that petitioner’s attorney perceived an adverse view and then wanted to switch judges. I see this as nothing more than an undertaking to eliminate a judge who may differ with petitioner’s theory of the litigation and hopefully secure a judge more sympathetic with petitioner’s case.
Further, as I have noted, what is or is not a ruling on a substantial issue in Illinois is determined by a case-by-case analysis. In the case at bench, the ruling of Judge Heiple granting the petition for an amended writ of mandamus was itself a ruling indeed on a substantial issue. Substantial issue, by plain definition, is that which relates to the essential nature of a matter in dispute between the parties, or that which has a direct bearing on the merits of a case.
By granting the amended petition for writ of mandamus, Judge Heiple sanctioned the addition as defendants of seven of the circuit judges of the Eleventh Judicial Circuit. The original action challenged the methods and procedures followed in McLean County for jury selection, the county in which the Eleventh Judicial Circuit extends its jurisdiction. It seems axiomatic to me that the addition of circuit judges of the Eleventh Judicial Circuit as defendants directly relates to the essential nature of the dispute between the parties, and directly bears on the merits of the case.
Parenthetically, it is passing strange to note the State’s position in this appeal. (Or perhaps I should say its lack of position.) No brief was filed on behalf of defendants, and there was, of course, no oral argument for them. The entire position of the State’s Attorney was contained in a letter from him to the clerk of this court which simply said:
“On consideration of the issue involved on this appeal, I wish to inform you that this office will not be filing a brief on behalf of the defendants. We will also waive oral argument.
I would like to emphasize that this should not be taken in any way to mean that we are in agreement with Mr. Mirza’s position— we are not. Due to the nature of the issue, however, we merely waive the filing of a brief and oral argument.”
A paradox — insofar as this record reflects!
As I say, substitution comes too late for me. I dissent.