September 2016Volume 47Number 2PDF icon PDF version (for best printing)

The Second District avoids causing new ripples in the common law “test the waters” doctrine

In some Illinois courts, the common law “test the waters” doctrine serves as a basis for denying otherwise timely motions for substitution of judge under Section 2-1001 of the Illinois Code of Civil Procedure. The Second District recently avoided creating more waves in the doctrine when it distinguished recent Illinois Supreme Court precedent and side-stepped its application altogether. In Village of East Dundee v. Village of Carpentersville, 2016 IL App (2d) 151084, the Second District found the Illinois Supreme Court’s 2015 decision in Bowman v. Ottney (2015 IL 119000) distinguishable, determined that the “test the waters” doctrine did not apply, and rejected the invitation to expand the doctrine further. The appellate court’s decision nevertheless provides guidance as to how the “test the waters” doctrine interacts with the provisions of Section 2-1001.

Section 2-1001 of the Code provides a party the right to a substitution of a judge if it files a motion (1) before the trial or hearing begins, and (2) before the judge to whom it is presented has ruled on any substantial issue in the case. The “test the waters” doctrine, however, provides that a judge has discretion to deny an otherwise timely motion for substitution if the moving party had an opportunity to “test the waters” and form an opinion as to the judge’s likely disposition of an issue.

This newsletter previously discussed the status of the “test the waters” doctrine and the Illinois Supreme Court’s 2015 decision in Bowman v. Ottney.1 The First, Second, Third, and Fifth District Illinois Appellate Courts have upheld the doctrine, but the Fourth District has rejected it. Despite this conflict, the Illinois Supreme Court decided Bowman on statutory interpretation grounds and did not weigh-in on the doctrine’s ultimate viability. In Village of East Dundee, the Second District followed suit, basing its ruling on statutory interpretation grounds, rather than on the common law doctrine.

The Village of East Dundee v. Village of Carpentersville suit arose from a dispute between the two municipalities over the relocation of a Wal-Mart and the proper use of the Tax Increment Allocation Redevelopment Act (“the Act”) to facilitate the move. 65 ILCS 5/11-74.4-1 et seq. The Act was designed to combat blight and permits municipalities to designate a redevelopment project area and pay certain redevelopment costs of retailers willing to build in the area. A municipality cannot, however, pay retailers redevelopment costs without first making specific findings set out in the Act.

The Village of Carpentersville designated a redevelopment area under the Act, and Wal-Mart planned to close its retail store in East Dundee and open a Wal-Mart Supercenter on the newly designated land. The Village of East Dundee sued Wal-Mart and Carpentersville, seeking a declaratory judgment that Carpentersville could not pay relocation costs for Wal-Mart without first making certain findings under the Act, which it had failed to do. Village of East Dundee, 2016 IL App (2d) 151084, ¶ 1. Because Carpentersville had not yet made its findings, the trial court could not determine whether it had violated the Act, and involuntarily dismissed the action for lack of ripeness. Id. Its order stated that “the [a]mended [c]omplaint [was] dismissed subject to being refiled” in the event that the matter became ripe. Id. at ¶ 7. The Second District affirmed the dismissal. Id. at ¶ 1, citing East Dundee I, 2014, IL App (2d) 131006-U, ¶ 31.

Carpentersville eventually made the required findings under the Act and East Dundee filed suit once again. 2016 IL App (2d) 151084 at ¶ 2. The case was assigned to the same judge who presided over the prior action. Id. at ¶ 7. East Dundee filed a motion for substitution of judge as of right pursuant to Section 2-1001 of the Illinois Code of Civil Procedure. Id. Defendants argued that plaintiff had no right to substitution of judge because the judge had made a previous substantial ruling when it granted the defendants’ motion to dismiss in the prior action. Id. For that reason, the trial court denied East Dundee’s motion and shortly thereafter granted the defendants’ motion to dismiss for lack of standing. Id. at ¶ 8.

On appeal, East Dundee asserted that the trial court erred in denying its motion for substitution of judge as a matter of right because the motion was timely and complied with the elements of Section 2-1001. The defendants did not object to the timeliness of the motion in the trial court, rather, they asserted that the second complaint was a continuation of the previous litigation for the purposes of the substitution-of-judge statute. Relying on the language in the prior dismissal of the identical claim, the defendants argued that because the two pleadings concerned the same cause of action, the second pleading was essentially a refiling, giving the court discretion to deny the motion for substitution of judge. While the Supreme Court had not yet decided Bowman when Carpentersville argued its motion to the trial court, the defendants did rely on the appellate court’s decision in Bowman that was later affirmed.

“The issue,” according to the Second District, “is whether Bowman v. Ottney [] upon which defendants rely, is dispositive.” Id. at ¶ 12. The court noted that in Bowman, one of the Supreme Court’s concerns was judge-shopping and gamesmanship by the plaintiff. Id. at ¶ 16. The plaintiff in Bowman had voluntarily dismissed her action and thus “had control over the procedural posture of the case.” Id. East Dundee’s first suit was, however, involuntarily dismissed - - a key distinction for the Second District. Id. at ¶ 17. “Bowman is inapplicable” the court held, because in that case “our supreme court decided a narrow issue involving the relationship between section 2-1001(a)(2)(ii) and the sections of the Code governing voluntary dismissals and refiling.” Id. at ¶15. “In contrast,” the court said, “East Dundee’s previous complaint was involuntarily dismissed [and] East Dundee could not, and did not, use the refiling provisions of the Code.” Id. at ¶17.

The Second District ultimately reversed, holding that the trial court erred when it denied East Dundee’s motion for substitution of judge. Id. at ¶ 19. The appellate court determined that East Dundee’s second-filed action, while essentially identical to the first, was a new and distinct action and the motion for substitution was timely filed in compliance with the Code. East Dundee did not voluntarily dismiss and then refile its action in a tactical move designed to create a right to a substitution of judge. Bowman was thus inapposite, and the “test the waters” doctrine inapplicable.

While the Second District explicitly found that Bowman not controlling, the appellate court’s decision is, nonetheless, consistent with Bowman. In Bowman, the Supreme Court based its decision, in part, on the purpose of Section 2-1001—to prevent judge shopping. It held that a motion for substitution of judge brought under Section 2-1001 should be denied when to grant it would facilitate or encourage gamesmanship. So, too, was the Second District guided by the purpose of Section 2-1001 when it determined that a motion for substitution of judge should be liberally granted when there is no indication that the plaintiff is judge shopping. While neither court addressed the viability of the “test the waters” doctrine as a basis for denial of a motion for substitution of judge, both courts helped further refine how it interacts with the provisions of Section 2-1001.

Thus, while the Illinois appellate courts continue to disagree as to whether the “test the waters” doctrine may serve as a basis for denying a motion for substitution of judge, both the Supreme Court and the Second District have signaled that, when considering a Section 2-1001 motion, trial court judges should consider whether the circumstances indicate that a party is seeking to gain a tactical advantage through gamesmanship and judge-shopping.


1. Kaitlin Klamann, “The Status of the ‘Test the Waters’ Doctrine After the Illinois Supreme Court’s Decision in Bowman v. Ottney,” Illinois State Bar Association Bench & Bar Section Newsletter (Feb. 2016).

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