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Aussieker v. City of Bloomington
State: Illinois
Court: 4th District Appellate
Docket No: 4-04-0540 Rel
Case Date: 01/27/2005

NO. 4-04-0540

IN THE APPELLATE COURT

OF ILLINOIS
 

FOURTH DISTRICT
 
CHARLES A. AUSSIEKER; JOSEPH M.
BEAGAN; JAMES D. ELDER; RUSSELL A.
ELDER; MARY L. HANOVER; THOMAS J.
LENTZ; DALE NAFFZIGER; DEBBIE POLZIN;
A. CAMERON SIRON; SANDRA L. KELLEY-
SIRON; MORGAN M. STUART; JAMES R.
WHEELOCK; LINDA J. WHEELOCK; CLIFFORD
C. WRIGHT; FRANCES M. WRIGHT; ARNOLD
R. ZIMMER; and BETTY ANN ZIMMER,
                     Plaintiffs-Appellants,
                     v.
THE CITY OF BLOOMINGTON,
                     Defendant-Appellee.
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Appeal from
Circuit Court of
McLean County
No. 04MR80






Honorable
Dondald D. Bernardi,
Judge Presiding.

JUSTICE STEIGMANN delivered the opinion of the court:

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

 

I. BACKGROUND

On April 26, 2004, plaintiffs, 17 taxpayers and realestate owners, filed a declaratory judgment action againstdefendant, the City of Bloomington, alleging that the city didnot exercise appropriate diligence in soliciting bids for theconstruction of a municipal arena. On April 27, 2004, the cityfiled a motion to dismiss, and a hearing was scheduled for April30, 2004. Before the hearing was held, plaintiff James D. Elderfiled a motion to substitute Judge Charles Reynard under section2-1001(a)(2) of the Civil Code (735 ILCS 5/2-1001(a)(2) (West2002)). On April 30, 2004, the trial court granted Elder'smotion, and the case was later reassigned to Judge Donald D.Bernardi.

The trial court set a hearing on the city's motion todismiss for May 14, 2004. On May 12, 2004, plaintiffs filed aresponse to the city's motion. Also on that day, Zimmer filed amotion for substitution of judge as of right under section 2-1001(a)(2) of the Civil Code. On May 13, 2004, the city filedan objection to Zimmer's motion, alleging that (1) the motion wasbrought for the purpose of delay and should therefore be deniedand, alternatively, (2) Zimmer had not preserved his right tofile a second motion for substitution of judge by informing thecourt that he was not joining in Elder's motion for substitutionof judge.

On May 14, 2004, the trial court first conducted ahearing on Zimmer's motion for substitution of judge and deniedit. Specifically, the court found that the 17 named individualplaintiffs constituted one party and thus were collectivelyentitled to only one motion for substitution of judge undersection 2-1001(a)(2) of the Civil Code. The court furtherexplained that multiple plaintiffs can be distinguished frommultiple defendants who are considered separate parties entitledto multiple motions for substitution under Illinois law. Thecourt then conducted a hearing on the city's motion to dismissplaintiffs' complaint and granted that motion with leave torefile 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 denyingZimmer's motion for substitution of judge because each plaintiffin a multiple-plaintiff civil action is entitled to one motionfor 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)). Weagree.

When interpreting a statute, an appellate court mustascertain and give effect to the legislature's intent, and thebest indication of such intent is the language of the statuteitself. People v. Olsson, 335 Ill. App. 3d 372, 374, 780 N.E.2d816, 818 (2002). When the statutory language is clear andunambiguous, a court must give effect to its plain and ordinarymeaning 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 astatute are given their plain and ordinary meaning. In re Estateof 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 onesubstitution of judge without cause as a matter of right." 735ILCS 5/2-1001(a)(2)(i) (West 2002). This statute is "'to beliberally construed, and where the conditions are met, the trialcourt has no discretion to deny the request unless it is shownthat 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, 259-260 (2002),quoting Sahoury v. Moses, 308 Ill. App. 3d 413, 414, 719 N.E.2d1157, 1158 (1999). If the motion requesting substitution ofjudge is filed before the presiding judge has made a substantialruling, 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 forsubstitution of judge is improperly denied is void. Advanta, 333Ill. App. 3d at 932, 776 N.E.2d at 260. The Fifth District hasheld that each individual defendant in a multiple-defendantaction is deemed to be a separate party, and each such party hasan independent right to one substitution of judge under section2-1001(a)(2) of the Civil Code. Boatman v. A.P. GreenRefractories 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 distinguishmultiple plaintiffs from multiple defendants for purposes ofapplying section 2-1001(a)(2) of the Civil Code. We are notpersuaded. The statute refers to "each party" withoutdifferentiating between plaintiffs and defendants, and thestatute is silent with respect to situations involving multipleplaintiffs and multiple defendants. See 735 ILCS 5/2-1001(a)(2)(i) (West 2002). Because the statute does not definethe word "party," it must be given its plain and ordinarymeaning. The word "party" is defined as "[o]ne by or againstwhom a lawsuit is brought." Black's Law Dictionary 1154 (8th ed.2004). Each of the 17 plaintiffs in this case is bringing alawsuit against the city and, according to the plain and ordinarymeaning of the word "party," each plaintiff should be entitled tofile a motion for substitution of judge under section 2-1001(a)(2) of the Civil Code.

Both Boatman and Beahringer lend support to our holdingthat section 2-1001(a)(2) of the Civil Code applies to eachplaintiff in this case. Although these cases only discussmultiple defendants, they do not rule out the application ofsection 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 statuteregarding its treatment of multiple parties is further shown byconsideration of section 114-5(b) of the Code of CriminalProcedure of 1963 (Criminal Code) (725 ILCS 5/114-5(b) (West2002)). This section, which has existed since the enactment ofIllinois' modern code of criminal procedure in 1963, addressesthe issue of multiple defendants in a criminal case regardingmotions for substitution of judge as a matter of right and statesas follows:

"Within 24 hours after a motion is madefor substitution of judge in a cause withmultiple defendants[,] each defendant shallhave the right to move in accordance withsubsection (a) of this [s]ection for asubstitution of one judge. The total numberof judges named as prejudiced by alldefendants shall not exceed the total numberof defendants. The first motion forsubstitution of judge in a cause withmultiple defendants shall be made within 10days after the cause has been placed on thetrial call of a judge." 725 ILCS 5/114-5(b)(West 2002).

The references to multiple defendants and the implementation of atime limit in which a defendant may file a substitution-of-judgemotion demonstrate the legislature's ability to restrict motionsfor substitution of judge as a matter of right in cases involvingmultiple parties when the legislature wishes to do so. The cityhere is effectively arguing that we should construe section 2-1001(a)(2) of the Civil Code as if it read along the lines ofsection 114-5(b) of the Criminal Code. We decline to do so. Construing the statute as defendant suggests would amount tojudicial legislating. We further note that the legislature hasrevised section 2-1001 of the Civil Code three times in the last20 years, and despite this legislative attention, the GeneralAssembly has not opted to add the multiple-party provision itplaced in section 114-5(b) of the Criminal Code 40 years ago.

We thus hold that under section 2-1001(a)(2) of theCivil Code (735 ILCS 5/2-1001(a)(2) (West 2002)), each plaintiffin a multiple-plaintiff civil case is entitled to one motion forsubstitution of judge as of right. Accordingly, we conclude thatthe trial court erred by denying Zimmer's motion to substitutejudge.

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 asdistinguishing between multiple plaintiffs and multipledefendants. In particular, the city asserts the following: (1)if plaintiffs in a multiple-plaintiff civil case have the rightunder section 2-1001(a)(2) to file multiple motions tosubstitute judge without alleging grounds, the potential existsthat defendants will be denied their right to obtain promptjustice, as guaranteed by article I, section 12, of the IllinoisConstitution of 1970 (Ill. Const. 1970, art. I,

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