People ex rel. Alexander v. Keogh

Mr. JUSTICE TRAPP delivered the opinion of the court: Petitioner presents her interlocutory appeal from the order of the trial court which denied a petition for substitution of judges executed, verified and filed by petitioner and by her counsel. 73 Ill. 2d R. 308. Petitioner’s complaint in mandamus against the jury commissioners of McLean County challenged the procedures for jury selection. She thereafter sought leave to amend the complaint to add all judges in the judicial circuit as parties-defendant. The supreme court thereupon assigned a judge from another circuit to hear the cause. On March 22, 1979, the assigned judge attended court upon the matter of the motion for leave to amend the complaint in mandamus. Petitioner appeared by counsel but not personally. The written order filed by the assigned judge states, in part: “The hearing was begun and concluded and the motion was allowed without objection from Defendants’ counsel.” The only judicial action taken was to order the filing of the amended complaint instanter and direct that the defendants answer or otherwise plead within 21 days. That order further recites that in response to the court’s inquiry defendants’ counsel stated that he agreed that the amended complaint should be filed but that he was reserving the right to file a motion to dismiss the complaint. Incident to the inquiry, the court stated that he “was not completely satisfied” with the ruling of his predecessor judge which had denied defendants’ motion to dismiss the complaint and stated that the court was “not necessarily bound” by such previous ruling. Thereafter, on the same day, petitioner and counsel executed, verified, and filed a petition for change of venue from the judge. There is no contention that the petition is faulty as to form. Ill. Rev. Stat. 1977, ch. 110, par. 501 et seq. The order of the trial court found: “The undersigned Judge finds that the motion for substitution of Judge is not timely; was filed after a hearing and a ruling on a substantial matter; was based on comments of the Trial Judge which were an integral part of the hearing aforesaid; and further attempts to contravene the Order of the Illinois Supreme Court specially assigning the undersigned Judge to hear the case.” The statute providing for a change of venue states in part: “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, * • (Emphasis added.) Ill. Rev. Stat. 1977, ch. 110, par. 503. In Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 250-51, 311 N.E.2d 673, 675, the court stated: “If a petition for a change of venue is timely, in proper form, and in compliance with the statute, the right to a change of venue in both civil and criminal cases is absolute. The trial judge has no discretion as to whether or not the change will be granted and cannot inquire as to the truthfulness of the allegations of prejudice.” In the language of the statute it clearly appears that no elements of a “trial” of the cause are present. In the second aspect, we cannot say that the granting of a motion to amend a complaint as to which there is no objection constitutes a judicial act or a matter of discretion exercised as to a “substantial issue in the case” after hearing by the trial judge. It appears to be clear that there was no dispute, substantial or otherwise, with regard to the granting of that motion to amend. Sansonetti v. Archer Laundry, Inc. (1976), 44 Ill. App. 3d 789, 358 N.E.2d 1142; Johnson v. Johnson (1975), 34 Ill. App. 3d 356, 340 N.E.2d 68. The written order of the trial court recites that the petitioner did not know the trial judge and did not attend the “hearing,” and concluded that the motion for substitution was the product of petitioner’s counsel who “was dissatisfied by the comments of the Judge.” We distinguish the facts found here from those reported in People v. Lawrence (1963), 29 Ill. 2d 426, 427-28, 194 N.E.2d 337, 338, where defense counsel requested a conference for the stated purpose of “disposing” of his cases and thereafter moved for a substitution of judges. The opinion in Lawrence concludes that the petition for change of venue came only after defendant sought a conference for the: “[OJbvious purpose of obtaining a lenient disposition of the charges without the necessity of a trial, and only after defendant ascertained what punishment he might receive if he pleaded guilty. [Citation.] 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.” So far as this record discloses, petitioner’s counsel only presented the uncontested motion to amend without inquiry or request of the trial judge. We must conclude that the comments of the latter were volunteered. In the context of the trial court’s conclusions recited as to the motivation of counsel, it appears that there was, in fact, inquiry into the merits of the motion for substitution contrary to the rule stated in Rosewood. The order appealed is reversed and the cause is remanded to the circuit court of McLean County for further proceedings. Reversed and remanded for further proceedings. CRAVEN, J., concurs.