Illinois Supreme Court Sinks the ‘Test the Waters’ Doctrine

The Illinois Supreme Court has answered the question of whether the “test the waters” doctrine is a valid basis to deny a party’s motion for substitution of judge under section 2-1001 (a)(2) of the Code of Civil Procedure—it is not. After choosing not to address the question in 2015, the Illinois high court recently determined that the doctrine is incompatible with the plain language of the statute and cannot be used to justify denying a motion for substitution. See Palos Community Hospital v. Humana Ins. Co., Inc., 2021 IL 126008. The Illinois Supreme Court reminded litigants, however, that there is no safe harbor for would-be judge shopping since trial courts have other tools to “protect the integrity of the court.” Id. at ¶ 35. In fact, while the court may have sunk the test the waters doctrine, it floated a reminder that trial courts have broad and sweeping authority to make any orders necessary to prevent abuse, avoid undue delays, and to otherwise control their dockets and protect against gamesmanship and manipulation. Id.

Under 735 ILCS 5/2-1001(2), a party is entitled to one substitution of judge without cause as a matter of right provided the motion is properly made and timely exercised. 735 ILCS 5/2-1001(a)(2). Such an application for substitution of judge is timely if 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, or if it is presented by consent of the parties.” 735 ILCS 5/2-1001(a)(2)(ii). While not expressly included in the language of the statute, a motion to substitute is improper and should be denied if it is a delay tactic or used in a manner that facilitates or encourages judge shopping. See Bowman v. Ottney, 2015 IL 119000, ¶¶ 17-20. Over the last two decades, a body of jurisprudence developed holding that a substitution of judge motion was untimely if the party filing it had an opportunity to “test the waters” with the trial court sufficient to form a view on how the court may rule on substantive issues—despite being filed before the court actually issued any substantive ruling.

The test the waters doctrine was recognized by appellate courts in Illinois’ first, second, third, and fifth districts. See Kic v. Bianucci, 2011 IL App (1st) 100622, ¶¶ 14-15 (finding the trial court’s denial of motion for substitution based on finding that plaintiff had opportunity to test the waters);Galvan v. Allied Ins. Co., 2013 IL App (2d) 120525-U at ¶ 26-27 (“even in the absence of any substantive ruling, a motion for substitution of judge may be denied if the movant had an opportunity to ‘test the waters’ and form an opinion as to the judge’s reaction to her claim.”); In re Estate of Gay, 353 Ill. App. 3d 341, 343-44 (3d Dist. 2004); andCity of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 452, 461 (5th Dist. 2002). The fourth district rejected the test the waters doctrine, reasoning that the doctrine was developed to prevent judge shopping under a previous version of section 2-1001, and finding that the newer version of section 2-1001 adequately addressed that concern. Schnepf v. Schnepf, 2013 IL App (4th) 121142.

The Illinois Supreme Court had the opportunity to consider the viability of the test the waters doctrine when it addressed a certified question in 2015. In that case, Bowman v. Ottney, a medical malpractice action had been voluntarily dismissed after years of litigation then refiled, ending up on the same court’s docket. 2015 IL 119000 ¶ 1. Unpersuaded by arguments that the newly refiled case was a “new case” for purposes of the statute, the Bowman court determined that the denial of the motion for substitution was proper. Id. at ¶ 19. The Bowman court based its decision not on the test the waters doctrine, but on section 2-1001 itself. Id. at ¶¶ 27 - 29. In doing so, the Illinois Supreme Court reiterated that a party “may not ‘judge shop’ until he finds one in total sympathy to his cause,” and that courts should avoid a construing a statute in a manner “that would defeat the statute’s purpose or yield absurd or unjust results.” Bowman, 2015 IL 119000 ¶¶ 17-18. “[C]ourts may,” Bowman explained, “take into consideration the circumstances surrounding a motion for substitution of judge and may deny the motion if it is apparent that the request has been made as a delay tactic.” Id. at ¶ 18. Bowman also made clear that section 2-1001 should not be construed “in a manner that facilitates or encourages ‘judge shopping’” as “[a]ny other rule would spell the immediate demise of the adversary system.” Id. ¶¶ 18, 20 (quoting In re Marriage of O'Brien, 2011 IL 109039, ¶ 30).

Bowman thus left undecided whether the test the waters doctrine was a viable tool for courts to prevent abuse. Palos Community Hospital unambiguously slams the door on the doctrine, but also confirms that trial courts are not without options. In fact, Palos Community Hospital arguably serves as a reminder that the doctrine is unnecessary where judge-shopping is suspected.

The procedural history in Palos Community Hospital set up the challenge to the test waters doctrine squarely. There a new trial judge began presiding over the case after more than two years of litigation. 2021 IL 126008 at ¶ 8. At a hearing objecting to the use of a discovery master the new trial judge indicated, without ruling, that precedent existed “for a judicial officer to seek assistance in matters of this nature.” Id. at ¶ 10. The trial court then pledged to review all the cases cited and ended the hearing without ruling. Id. The party challenging the use of the discovery master quickly filed a motion for substitution before the court ruled on the discovery master issue. Id. at ¶ 11. Both the trial court and the appellate court employed the test the waters doctrine as justification for the proper denial of the motion for substitution. Id. at ¶¶ 13, 20.

Palos Community Hospital acknowledges that a primary concern underlying the test the waters doctrine is that litigants might strategically time the filing of their motions for substitution of judge as a form of gamesmanship. 2021 IL 126008 at ¶ 35. Citing to Bowman, the court agreed that “’courts may take into consideration the circumstances surrounding a motion for substitution of judge and deny the motion if it is apparent that the request has been made as a delay tactic.’” Id. The Palos Community Hospital court further noted that while section 2-1001 is designed to prevent “procedural maneuvering,” and not enable it, the test the waters doctrine is far from the only tool available to the trial judge to protect the integrity of the court. Id. In fact, the court held that “[s]ettled law recognizes that trial courts possess ‘inherent powers that are ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Id.

Critically, although the Illinois Supreme Court overturned the appellate court and held the test the waters doctrine an invalid basis to deny a motion for substitution, the court stressed that trial judges have inherent authority to enter any orders necessary to prevent abuse or manipulation of the system. This “any orders necessary” authority is not cabined by a rule or statute and is possessed by trial courts as part of their inherent powers. Palos Community Hosp., 2021 IL 126008 at ¶ 35 (citing e.g., Sander v. Dow Chemical Co., 166 Ill. 2d 48, 66 (1995) (“The recognition of the court’s inherent authority is necessary to prevent undue delays in the disposition of cases caused by abuses of procedural rules, and also to empower courts to control their dockets.”).

So, while a trial court cannot rely on the test the waters doctrine to deny a motion for substitution of judge, it may rely on its inherent authority to enter any orders necessary to prevent abuse or manipulation of the system. Given the Illinois Supreme Court’s guidance in Bowman—trial judges may take into consideration the circumstances surrounding a motion for substitution, and that section 2-1001 cannot be construed “in a manner that facilitates or encourages ‘judge shopping,’” (Bowman Id. ¶¶ 18)—coupled with Palos Community Hospital’s “any orders necessary” rule, no litigant should feel emboldened to engage in gamesmanship, manipulation, or judge-shopping with the demise of the test the waters doctrine. Trial courts have more sweeping means to prevent abuse and uphold the integrity of the adversary system.  

Edward Casmere is a litigation partner at Riley Safer Holmes & Cancila LLP in Chicago