People ex rel. Baricevic v. Wharton

• Decision Date: 30 May 1990
• Docket Number: No. 69245,69245
• Parties: , 144 Ill.Dec. 786 The PEOPLE of the State of Illinois ex rel. John BARICEVIC, Petitioner, v. The Honorable Milton S. WHARTON, Respondent.
• Court: Illinois Supreme Court

Page 253

556 N.E.2d 253

136 Ill.2d 423, 144 Ill.Dec. 786

The PEOPLE of the State of Illinois ex rel. John BARICEVIC, Petitioner, v. The Honorable Milton S. WHARTON, Respondent.

No. 69245.

Supreme Court of Illinois.

May 30, 1990.

John Baricevic, State's Atty., Belleville, and Kenneth R. Boyle and Stephen E. Norris, Office of the State's Attys. App. Pros., Mt. Vernon, for petitioner.

Don Cary Collins, Belleville, for the Hon. Milton S. Wharton, respondent.

Justice CLARK delivered the opinion of the court:

This motion for a supervisory order arises out of six criminal proceedings in the circuit court of St. Clair County. Petitioner, John Baricevic, the State's Attorney of St. Clair County (the State's Attorney), requests this court to order the presiding judge in those cases, respondent, the Honorable Milton S. Wharton of the circuit court of St. Clair County (Judge Wharton), to transfer the cases to a different judge pursuant to section 114-5(c) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 114-5(c)).

On July 11, 1989, the State's Attorney filed motions in six criminal cases before Judge Wharton for substitution of judge pursuant to section 114-5(c). Section 114-5(c) provides:

"Within 10 days after a cause has been placed on the trial call of a judge the State may move the court in writing for a substitution of that judge on the ground that such judge is prejudiced against the State. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The State may name only one judge as prejudiced, pursuant to this subsection." (Ill.Rev.Stat.1987, ch. 38, par. 114-5(c).)

Each motion was filed within 10 days after its corresponding case had been placed on the trial call, alleged that Judge Wharton was prejudiced, and stated that no other motion for substitution of judge had been filed in the particular case.

Judge Wharton refused to grant the State's Attorney's motions. Instead, Judge Wharton, relying upon language from this court's opinion in People v. Walker (1988), 119 Ill.2d 465, 116 Ill.Dec. 675, 519 N.E.2d 890, concluded that before granting the motions he could:

"make a limited inquiry as to facts and circumstances supporting a claim of prejudice when, as in the facts of this situation, the Court is substituted by the State on a blanket basis and the State indicates that it would continue to substitute the Judge and that the Judge would be prejudiced in all other cases arising in the future."

Judge Wharton then determined that the State's Attorney was using the motions in an attempt to cause the chief judge of the circuit court to remove Judge Wharton from the felony docket of the circuit court. Such interference with the chief judge's assignment power under Supreme Court Rule 21(b) (107 Ill.2d R. 21(b)), Judge Wharton concluded, violates the separation of powers clause of the Illinois Constitution (Ill. Const.1970, art. II, § 1). Accordingly, Judge Wharton denied the State's Attorney's motions.

Prior to 1987, only defendants enjoyed a statutory right to substitute judges. Under section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1985, ch. 38, par. 114-5(a)), defendants had an "absolute" right to a substitution of judge upon the timely filing of a written motion alleging that the judge is prejudiced. Upon the proper filing of a section 114-5(a) motion, "the judge lost all power and authority over the case except to enter the orders necessary to effectuate the change." People v. Peter (1973), 55 Ill.2d 443, 457-58, 303 N.E.2d 398.

In addition to section 114-5(a) motions, defendants could also move to have a judge substituted "for cause" under former section 114-5(c) ( Ill.Rev.Stat.1985, ch. 38, par. 114-5(c)). Unlike section 114-5(a) motions, a section 114-5(c) motion would result in substitution only if the defendant could establish the merits of his motion at a hearing. Peter, 55 Ill.2d at 458, 303 N.E.2d 398.

Section 114-5 was amended in 1987 to grant the State the same right to substitute judges that previously had been enjoyed by defendants. (See 84th Ill.Gen.Assem., Senate Proceedings, May 13, 1986, at 106 (statements of Senator Degnan).) The statutory right to substitute a judge "for cause" was changed from section 114-5(c) to section 114-5(d) (Ill.Rev.Stat.1987, ch. 38, par. 114-5(d)). Section 114-5(d) allows either the State or the defendant to challenge a judge "for cause." In place of the old section 114-5(c), a new paragraph which is virtually identical to section 114-5(a), was added to allow the State a right to automatically substitute a judge upon the timely filing of a motion alleging that the judge is "prejudiced against the State." (Ill.Rev.Stat.1987, ch. 38, par. 114-5(c).) Because the State's recently created right is similar to the more well-established right enjoyed by defendants, it is helpful, in construing section 114-5(c), to look to this court's prior decisions in cases involving a defendant's right to substitute judges. See People v. Williams (1988), 124 Ill.2d 300, 305, 124 Ill.Dec. 577, 529 N.E.2d 558.

As stated earlier, the defendant's right to substitute judges has long been interpreted by this court as being an "absolute" right, so long as a written motion alleging prejudice was properly filed within 10 days after the cause had been placed on a judge's trial call. (See Peter, 55 Ill.2d at 457, 303 N.E.2d 398.) Once the motion was timely filed, "[i]t was not proper for the court to inquire into the truth of the allegations of prejudice contained in the [motion]." Peter, 55 Ill.2d at 457-58, 303 N.E.2d 398.

The general rule prohibiting trial judges from evaluating the truth of allegations of prejudice in section 114-5(a) motions was not changed by People v. Walker (1988), 119 Ill.2d 465, 481, 116 Ill.Dec. 675, 519 N.E.2d 890, where this court recognized that section 114-5(a), "like any other that confers certain rights, may be invoked for purposes not related to its proper objective." In attempting to give guidance to litigants as to the proper use of section 114-5(a), and therefore curb possible abuses of the statute, this court stated in Walker that "[w]e would add that a belief that a judge is likely to rule against a defendant based on either facts or circumstances unrelated to the judge's ability to sit impartially does not afford a proper basis for a claim of prejudice." (Walker, 119 Ill.2d at 482, 116 Ill.Dec. 675, 519 N.E.2d 890.) We continue to urge parties and attorneys utilizing section 114-5(a), as well as section 114-5(c), to file substitution motions only where there are facts or circumstances which indicate that the judge cannot sit impartially in a particular case. Nevertheless, we still adhere to the general rule that judges cannot inquire into the truth of allegations of prejudice in section 114-5(a) motions. Likewise, judges generally should not assess the truthfulness of allegations of prejudice in section 114-5(c) motions filed by the State.

While we reaffirm the applicability of the general rule regarding judicial inquiry into the substance of substitution-of-judge motions, we also note that this court recently recognized that "although the provisions regarding the substitution of judges are to be liberally construed [citations], abuse of these statutory rights should not go unremedied, and remedies have been found for abuses under the former statute." (People v. Williams (1988), 124 Ill.2d 300, 309, 124 Ill.Dec. 577, 529 N.E.2d 558.) One remedy was to create an exception to the general rule regarding judicial review of allegations of prejudice. Under this exception, a judge could assess the legitimacy of allegations of prejudice in a substitution motion where there was evidence that the motion was simply an attempt at delaying or avoiding trial. (See Williams, 124 Ill.2d at 309, 124 Ill.Dec. 577, 529 N.E.2d 558; Walker, 119 Ill.2d at 482, 116 Ill.Dec. 675, 519 N.E.2d 890; People v. Beamon (1962), 24 Ill.2d 562, 564, 182 N.E.2d 656; People v. Stewart (1960), 20 Ill.2d 387, 391, 169 N.E.2d 796; People v. Davis (1957), 10 Ill.2d 430, 434-35, 140 N.E.2d 675; see also Hoffmann v. Hoffmann (1968), 40 Ill.2d 344, 348, 239 N.E.2d 792.) This court further noted in Williams, 124 Ill.2d at 309, 124 Ill.Dec. 577, 529 N.E.2d 558, that if abuses of section 114-5(c) by the State "should materialize, the courts or the legislature will deal with these when and as they arise." As we shall explain, this case presents one such abuse of section 114-5(c) which must be dealt with by this court at this time.

The separation of powers clause of the Illinois Constitution provides: "The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." (Ill. Const.1970, art. II, § 1.) " '[T]he real thrust of the separation of powers philosophy is that each department of government must be kept free from the control or coercive influence of the other departments.' " (City of Waukegan v. Pollution Control Board (1974), 57 Ill.2d 170, 175, 311 N.E.2d 146, quoting 1 F. Cooper, State Administrative Law 16 (1965); see also People v. Flores (1984), 104 Ill.2d 40, 48, 83 Ill.Dec. 349, 470 N.E.2d 307 (quoting the language quoted above from City of Waukegan ); Strukoff v. Strukoff (1979), 76 Ill.2d 53, 59, 27 Ill.Dec. 762, 389 N.E.2d 1170 (same); People v. Farr (1976), 63 Ill.2d 209, 213, 347 N.E.2d 146 (same).) When members of the legislative or executive branch unduly interfere with a court's exercise of judicial power, this court has the duty to act to preserve the judiciary's independence. See People v. Joseph (1986), 113 Ill.2d 36, 46, 99 Ill.Dec. 120, 495 N.E.2d 501; People ex rel. Bier v. Scholz (1979), 77 Ill.2d 12, 18-19, 31 Ill.Dec. 780, 394 N.E.2d 1157.

One aspect of the judiciary's inherent "judicial power" is the power to administer and supervise the court syste...