For-Cause Substitution Request Appealable Despite Omission From Notice Of Appeal

John O’Brien sued his wife for divorce. The case was transferred to a second trial judge. About one year after that transfer, John claimed the trial judge was biased. So John asked for a substitution of judge. The request for another judge was denied.

John appealed from the trial court’s maintenance award and the denial of his request for substitution of judge. But his notice of appeal did not state that he was appealing from the denial of his substitution request. Nonetheless, the Second District Illinois Appellate Court considered the question.

The case went to the Illinois Supreme Court on a certificate of importance. The supreme court first considered whether the Court of Appeals had jurisdiction to consider the substitution question. John’s wife argued there was no appellate jurisdiction because John’s notice of appeal “did not specify or indicate that John was seeking to appeal from the order denying the substitution …”

But the Illinois Supreme Court agreed with the court of appeals, and ruled there was appellate jurisdiction because, “The denial of John’s petition to substitute was a step in the procedural progression leading to the final judgment specified in John’s notice of appeal.”

Unfortunately, the supreme court opinion does not define its view of “step in the procedural progression.” We reported on this case when it was decided by the Second District Illinois Appellate Court. You can read that posting by clicking here.

In the end, the Illinois Supreme Court reiterated the Illinois rule that a for-cause substitution of judge “may be granted only where the party can establish actual prejudice.” The court also added a constitutional dimension to the substitution analysis, stating that “a judge reviewing a for-cause challenge against another judge should assess the constitutional due process implications raised whenever substitution is sought and guard against the ‘risk of actual bias’ …”

Read the whole case, IRMO O’Brien, No. 109039 (8/4/11), by clicking here.