is the special administrator of the estate of charcoal for the seed stock we come to the court today seeking a reversal of the fifth district opinion and opinion that affirm the a denial of a motion a change of judge in the at the trial well we asked for not only justice in our but we asked that this court at this time clear up a long overdue issue involving overdue clarification in a murky is cloudy area of civil procedure this case is a medical malpractise but let me tell you what's more importantly what it is not it is not a divorce case with a continuum of pleadings all within the same number all within the same judge it's not a petition for relief under section two day fourteen zero one it is a separate case with a separate filing number with separate service upon the defen that if you voluntarily dismiss your case then refile and you have the chance to draw the same judge you've lost your right to a change of judge you've lost your right that's guaranteed by  the combined population of those two counties do not even equal where i come from madison what does it mean it means that it's more likely that if you're in a small county and you exercise your statutorily guaranteed rights you voluntarily does this a claim then within the one year you refile your chances of drawing the same judge in the original case are greatly increased because there's only so many judges this is a problem that is more likely to occur in the small town it is not likely to occur in cook county where there is this was a situation where there was a random assignment has rather than a reassignment to the i assume it was a random sign we have no evidence t drawing the same judge if on the other hand you're in a bigger county where you may have twenty judges your chances are much better but that somewhat misses the point in that this whole matter of the guarantee of statutorily protected rights should not be left in jeans this case is an issue of who controls that the so procedure in the state of illinois should it be this court with its a sad wish precedent or should the lower courts be allowed to ignore i'm i'm not quite that well it says the an application for substitution of judges right should be made by the motion and shall be granted if it is presented before the trial before trial or hearing and before the judge to moment is presented has rule one with zero nine thirty four i believe the other one was thirteen l forty one in this case means the case that's before the court so in this particular application it would mean the thirteen for thirteen l forty one are there any differences in the two complaints the differences in the complaints are somewhat cosmetic in the sense that doctor needs employer was in the first case that that defendant was drop the hospital where the occurrence of her was dropped previously and was not really named in the second complaint so the cause of action is the same cause of action crash no question about that is a medical malpractise case against dr and  issues in terms of discovery evidence it says or that they would do the same in both cases right to a large extent that is correct that is correct it is a medical malpractise case against dr but it has been refile now with a new number question that there had been an abundance of substantial rulings within the context of the original case there's that's not disputable but the problem is that it's hard for protection of the statute that irrespective of the similarit of the case law in the start of the of the case it is essentially a different case for the purposes of of the determination of whether or not you have a right to a substitution of judge because there's no number it has a new number because it is a new judge pursuant statute you're really not in a different case there is no difference this case means the same thing the original you need to dash fourteen zero one you have a similar situation the statute says that i is a new case but it's not a continuation so you can you don't have to refile it you don't have to serve the defendant again you don't have to have a situation where you get a new number you simply file your petition if notice to the other before the court so there's a big difference between that and what happened here there is no question that the reason why we are here is because we had the random drawing of drawing judge overstreet again now if we had drawn another judge there would have been no petition for change so the question then comes down to is your statutorily character right back to so you're saying you would not have moved to change another judge you say i only knew one judge in jefferson county and i made my basis on that so the answer is probably not no i say definitely not so a new judge you'd have no from the problem you had was that the reason why you if it is a more objective i think the i would draw the distinction between the two aspects of the statute before crossing without one being very subjective in the mind of the practitioner the other one being with the more objective but the answer your question would certainly have the right violently never for that but the problem is that in this particular instance we believe that it would be better for our client it would be more fair for klein to have a different j and unless a situation is that if you file the case originally and you're signed to a judge that you wish to change from theory you could exercise that changed if voluntarily dismissed the case and then it could be here it's assigned to a judge if there is some substance of motions still before the court there is an aspect in the brief for the of the defendant that suggests that there was something that we were trying to avoid that simply isn't the case there was no dispositive motion on file we were not set for trial we were at least one year away from a trial even though it a sitting on file for four years there is nothing to avoid with respect to a procedural motion it's well to know that the voluntary a new case it's all of the responsibilities it's all of the rights and privileges responsibilities of a new case or that you can't just pile at the circuit boards office and expect that to count as s new filing think it assigned a new number and then serve the defendant again because it was a new case now again i would emphasize to the court it's one or the other it's one or the other it's either a continuation of the old case for which you don't have to do anything and it continues on which is in effect and lay then over ruling this court's precedents beginning with the divine  actually divine a case solid it's a number of cases they say the same thing and what they say is this that when you file a new case after voluntary dismissal when you exercise your statutory rights it's a new case so if it's a new case and it gets all the privileges and all the rights that come from any case now by a forming the fifth district what you will be doing is in effect over ruling this long long long line of cases that say that refile cases a new case you're making at a combine secondly there is the so called test the waters doctrine that has come up repeatedly in this  respectful urge of this court that you put it into that with this case we have mentioned in the brief that we believe that the test the waters dr is obsolete and it's obsolete because of the statutory there is elements of in clarity or lack of clarity with practitioners not we asked this court to clear it up to change that situation to put the test the waters doctrine in other cases can be argued but those cases the ardent would be false because the statute has circumvent that you mentioned the section two to no one two with me at the trial level would have been a motion for cause with judge ocean which could this court has just recently indicated in certain cases that it's become a very difficult and i've heard the problem was is that his that had a different judge that involved in this case we would not hear that because of the randomness the caprice of drawing the same judge we lose our statutory rights that obviously adequate that obviously does not seem to be what the law is intended to do if it's a new case it's a new case and that there are certain adequate there are certainly adequate safeguards this notion of so you get one chance to do one chance with regards to the judge those are the adequate safeguards together with the supreme court rule two nineteen which requires the imposition of cost which requires that a motion he new judge and then you voluntarily dismissed it was randomly assigned to judge walker street would you have to file a new motion or would not the sign to him could have been assigned to him i don't know well i don't exactly know how it's done in jefferson county i'm assuming that it's done by the clerk's office without any knowledge of the judge just that it is done on the numerical file show you would have had to have used your one chance to substitute judge overstreet twice if that were the situation we have every letter within every case has one change of judge by right and if you have to use the change of right in the original case and then you're unlucky to draw the same when you have two cases if in the first case you had for whatever reason the desire to make a change would take a change in the first case then you filed the refile it after the voluntary disposal if you draw the same judge then you would have to take your decide today but there's significant implications attached to that we think the question that we have before us today is do we give section two dash one thousand and one a strict reading and thereby allow a party to take a substitution of judge as of right after that party has had an opportunity to form an opinion on how the judge will view the case or do do we apply the rule against judge shopping and limit that substitution of right in cases where the as here has made substantive rulings in a prior litigation involving the same cause of action in the same par that into the plane language this isn't a new case and i guess my question is the legit if the legislature didn't intend it they can change it tomorrow but what do we do with the plain language that is the case such as this court's on the rule two nineteen it allows a judge and he refiled case to look back into the prior case and look at discovery rulings that were made so that the attorney in the original case is not running away from discovery rulings and what to nineteen eat sas is that the new judge in the refiled case has the opportunity to consider those rulings and consider those orders that relate to discovery the time tables etc the purpose behind that rule was in essence to avoid a judge shopping which is exactly what we're arguing here so i would say to you yes you can you can find that the original case and i pronounce it orally all the time but you're buying retain and i don't think that by ruling in our favor in answering the affirmative the sort of a question and further that you have to overrule that case i think it would be the same application of the rationale that you used in setting forth supreme court ruled in one thousand isa same concerns and what you're allowing is a trial judge in a refiled case to look back for a limited purpose and exercise his or her discretion again we're not saying that in every situation when emotions such as this comes up that a trial judge such as judge overstreet has to say tonight we're not saying that at all we're saying that that judge on the refiled case should have the discretion to say no i'm not going to allow this in this case and that's what we're asking for here we're not asking for an automatic ruling and i think by by reading the prior decision of this court and considering what was done in supreme court rules in one thousand easy but you can rationalize that and allow this case to stand with a firm with the certified question asked answered in the a as well as the prior case so tell me exactly which what the plain meaning of in the case means then that's it that's it that's really i think a key point for us because it will describe the path that we want to take with this  case it is our position that that's one of the four ways that this court can affirm the appellate court's decision and you're right in the case is a matter that we need to interpret and i like to describe it to the people in my office by saying walk is it in the instant  america filing is it in the thirteen al case that we're going to focus or are we allowed to describe we are a real loud to consider the phrase in that case as the litigation between the parties on the same manner and the same between the same parties now this isn't a case court a couple years ago in the recess of the case which was the worker's comp appeal in one thousand now involving the application of the mailbox rule and one of the arguments was made in that case was that well you've got your commission proceeding it goes to the work comp commission and then you have to file your digital review or an appeal with the circuit court in that case it's a new number it's there's a statute of limitations for when you have to file that is assigned a new number you have to issue summonses basically treated as an independent case and what this court was asked to do is say what are we going to apply the mailbox rule in that situation we don't normally apply a mailbox rule with the filing of a complaint i can't file a complaint for negligence against somebody by putting it in my mail and send it off on the bubble of the statue of distinction and said well there are some times we can look back at a prior case and draw from that certain portions of it and that's all we're asking to do here and we believe that that's wholly consistent with tonight he does it that's exactly what is being done with prior disk every prior litigation it sounds like just where we are you're right and the rule in this is in terms of discovery the rule goes on to talk about how the court in this next case we're going to talk on the court shall consider discovery taken any misconduct and orders entered in prior litigation involving the parties in other words the rule anticipates that in that a new case the judge is going to be considering what took place in the case correct i would agree with that yes so i'm a big i suppose i could cut a couple different ways but i think this is could there be an argument that the this rule is trying to get to the heart of judge shopping idea that the judge makes a bunch of rulings when it doesn't like it let it dismisses the case gets a new judge and escape those bad rulings against them this rule seems to try to to address that problem i agree i absolutely agree with that and that's part of the argument i think that we're trying to articulate today to the court is it to nineteen is a vehicle which allows a judge in a refiled case to exercise that discretion that we've just been talking about and look back into the prior case and i certainly this is written with retracted discovery deadlines orders and discovery rules but i think that the rationale behind that and purpose behind that is exactly what we're asking this court to do this case and why we're asking to allow it for the discretion to look back into that it cuts both ways that there were just a story since coming from is there is already a perk protections afforded in that whole procedure in which previous rulings are going to be if you do substitute of a judge aren't going to be affected and the judge will just take over going forward sort it cuts both ways i don't want to speak for but i don't think she was talking from the perspective of  you know whether or not that applies to orders as a whole in the case or just discovery orders that relate to the admissibility of experts except for i don't think that's hateley clear but there's more to there's more to having a trial judge in the case than just discovery orders i think the first way is to read that language from to dash one thousand one in the case in a broad manner so that it does include that part of the game but if the court decides that you're going to strictly interpret that rule and say no in the case means in say i'm not comfortable with this notion of going into a case management conference and having the judge kind of make a comment well if you're going to file a motion for summary judgment down the road mr ellsworth i'd be inclined to grant that if you don't want to say that's a tipping the hand or testing the waters we're fine with that that really isn't applicable in our case we've got a prior substantive ruling we've got multiple are some sort of rulings this is what testing the waters should be allowed to be preserved to to address you know both perspective on what the rule was intended for he says he said mr always didn't the general simply anticipate and sanction gushy going by the language of section two dash one thousand one because as long as it's before har trial and as long as it's before subs to their room then it's an absolute right and i said well i don't necessarily agree with that because i think the notion of judge shopping that the supreme court and the  cautious of over the years is judge shopping based on opinions formed of how the judge is going to view the instant case where you're at your case of litigation between the parties now we all know as as as as attorneys and former practicing attorneys that there are judges that we look at and motion under two days one thousand and one and exercise my right a substitution judge not the key there is that my observations are generic ones based on matters outside the case my perch phrases with the judge may be as experiences with the judge i'm sitting in court watching cases like i did earlier today before me and i see how the judge interacts with the with meticulous consular aside and i'm not sure i want to go there but the problem of judge shopping is i'm in a case i see a ruling i think it's going against me and i think based on that ruling in that direction that this judge is not going to be favorable not going to receive my case favorably that's what the judge shopping concerns are about and if we have a strict interpretation of two dash one thousand and one that's counsel suggest in a strict interpretation of the refiling hundreds of thirteen deaths to seventeen then we have to have at least a limited form of testing the waters dock and protect us in situations where there's obvious judge shopping you can look at the facts of this case you can say we weren't but the facts of this case scream yes that's what happened this case looks through the cracks if you get rid of testing the waters doctrine and you have a literal interpretation of second opportunity they've had two opportunities and i think it's important to remember this is a case were it was filed before judge overstreet it proceeded it went on for years it was about three years before the case was voluntary the smiths there are subsidies and after those within four after the some food rooms they moved for voluntary dismissal this is not a case where he had general thoughts as i went through earlier i don't particularly want to be in front of overstreet that only develop after the substantive runs in the case and then he filed a motion for voluntary dismissal so that he could move away from it now i think that's important to keep in mind here now we've talked a little bit about the notion of there are certain situations where you can have it is considered a new case for the purposes of filing service and other other issues but yet considered not in the filing for the purposes of limited perhaps discovery or substitution of drugs but there's one other way you can disagree with me on all the things that i said to you and still firm for this reason there is a generic power and discretion given to a trial judge to control the docket of his court or  control the docket and if you believe that this is a case where the motion was filed in order to avoid or delay trial then that the judge has the power to to deny that motion if we agree with you do we have i would say that that's probably the only case that you would have to consider whether you have to overrule that i think if you adopt the positions that my opponent is just being we place a number of cases in jeopardy oh reversing here positions that my own is advocating i would say here that the only case that would have to be scrutinized closely and determine whether or not that would need to be overruled would be the case i would agree with that that's that's definitely a possibility that the testing of the water doctrine i think serves a viable purpose in it of course it depends on how you interpret in the case if you're going to say to get one thousand one has to be strictly construed then we have to have that doc and protect for situations like this because otherwise this case slips through the judge as a matter of right there all that norrin the concept of goetia and that's important you've said it's important and i guess i would leave you with this rather than looking at this case in the vacuum irrespective of the concept of judge county i think we can advocate state and all all we're asking is for a ruling consistent with those is it and that supreme court and again we think we've offered for grounds that you can use to firm the appellate court's decision again you could throw out the first three that we talked about the issue of discretion is exactly what this case is about the statute doesn't give the trial court any discretion the certified question that was brought up before the appellate court and now before you all is that in a case that's been voluntarily dismissed pursuit the seven thirty five and then subsequently refile those the trial court have discretion to deny a plaintiff's immediately file a motion for or substitution of judge based on the fact the court had made substantive rulings in the previously dismiss case the key word being discretion the statute needs to be strictly interpret words have meaning they mean what they say this case means the newly filed case two nineteen is a restriction on whoever the judge me with respect to the the operation of the newly refile case in that case we would be entitled to a new judge  would be entitled to a new expert he would be entitled to a new set of rulings that would be the case the judge may or may not be term and that judges overstretch prior rulings were proper they may think the judge overstre refiled case is a sign but unless that judge has to properly be in the case i would respectfully state to the court that if a motion for change of judge has been properly file that judge has no discretion to remove themselves from the case so my argument would be that the judge in this case had no business making any rulings at all they had judge overstreet once the motion was filed and it's immediate within four days of the making the assignment so the statute does not give him the discretion to look at the aspects of to nineteen would apply to judge whether or any of the other judges of jefferson county with and take up the case dispositive motion being done if there was a motion for summary judgment on file and we took a voluntary to file the voluntary dismissal and it was allowed by the court would be remarkable situation it would be something to which defendant objected there was nothing and there were there was no attempt to avoid a discovery deadline you see just the cases pending for forty half years the first motion was found i'm suggesting that it was pending it was is only relevant to the judge who takes up if i would again i would point out that words matter they mean something the statute says he for the judge take what's supposed to be a clarity of purpose in the statute and make it incredibly confusing moreover this will only happen what happened with frequency in small towns with few judges and you're allowing statutory rights the beat the caprice of the random draw of the judge you put a chilling effect on a statutorily guaranteed right who would want to take the chance if you feel you have a problem with the judge and your reading of the statute  don't stomp out my words this test the waters doc and here's what you're going to have you going to have a situation in small counties where you file a case and the judge will say two years ago you had a case in front of me you had your chance to form your opinion of me i'm going to disallow this change judge you're never going to get a change because you allow the judge to say you tested the waters in that earlier case if you fuse cases together but if you keep the line  humor cation from case to case you won't have as we respectfully urge the court to overrule and reverse the decision of the fifth district in the boman case because as i say