Appellate Law

Appellate Jurisdiction Okay Over Judge Substitution Motion Not Identified In Notice Of Appeal

By Steven R. Merican

The O?Briens were involved in a divorce case. John O?Brien questioned some of the actions of the trial judge and thought the judge was biased. John asked for substitution of the judge. John?s request was heard by a second judge, who denied it because of a lack of evidence of prejudice.

The case went back to the first judge, held a trial on the divorce petition. The court ruled that John should make child support and maintenance payments to Lisa. After an unsuccessful reconsideration motion, John appealed.

John wanted to contest the denial of his request for substitution. But John?s notice of appeal only stated he was appealing from the denial of his reconsideration motion ?and all prior orders of court culminating therein.? The issue was whether that notice of appeal was sufficient to give the appellate court jurisdiction to consider John?s request for another judge.

The Second District Illinois Appellate Court ruled that John?s notice of appeal gave the court jurisdiction. The court found that the denial of a request for substitution of judge was a step in the ?procedural progression? to the ultimate judgment. The court stated: ?? [I]f the motion to substitute were improperly denied, then all subsequent orders would be void.?

The court acknowledged a difference with the First District Illinois Appellate Court in the application of the test. Read the whole case, including an explanation of the conflict in applying the rule, IRMO O?Brien, No. 2-07-0264 (7/14/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on November 01, 2009 (boomark / email).