thank you your honor they have at least the court my name is howard rowan and i represent the appellant state farm this case involves the intersection of this court's rules and the legislature's codicil procedure supreme court rule three eighty four authorizes this court to transfer and consolidate cases in order to quote promote the just inefficient conduct of such actions and this court has serious issued a series of rule three eighty four to strike one judge provided that the strike was made before the judges made subset of decisions plaintiff's counsel here believe that the intersection of rule three eighty four and the  created a loophole that an eight enables them to override discourse of management of the cases to evade the prohibition on no strikes after a subset of decision and to remove any judge whose decisions they judicial authority supersedes statutory rights and in a number of cases including cases involving the statutory right to demand a substitution of judge this court has stepped in and ding and direction of it was grounded in the fact that the executive branch of government was through the conduct of the state's attorney interfering with the exclusive powers of the judicial branch i mean i understand your argument wonder if there is an alternative basis to get to where you want to go as a result of what you think is an abuse of the process and the right of the court to control their docket separate and apart from the separation of powers argument because i know we're going to certainly hear from counsel that we don't have the same situation here these are private litigants let me let me answer that i have to answer to your honor the first one is although it's factually correct but the principle of separation of powers is not limited to that after all the o'connell case was a private malpractise case with private parties and the court applied the very same rule and if honor i believe that you do have the power under separation of powers to say no we're not going to allow the misuse of a statute the second point is one of the things the separation of powers doctrine talks about is  husband didn't like the results and so what he did was he filed a petition to modify the decree and said look that's a new case and so i get a strike and he tried the judge in the appellate court just like the public court here said that's but this court said no and it said no for reasons that apply exactly here which is if someone can do that then the court said look they'll just he'll just keep filing petitions until he gets a judge he likes and that's what we have happening here in one thousand nine hundred nine the sneed case was filed in chicago by one group of lawyers a second group of lawyers filed the in madison county we thought it was a copycat case and we moved to transfer it and this court granted that motion and the case was set up here and the plaintiffs wait a while and then they filed another case and another case and bemis is the fourth one they filed they're not taking this court's rulings as the final word they're going to keep and they've got a game plan now and you let them do it four times now or when the court this court exercised its authority to promote the just an official conduct of the action transfers case cook county consolidates it with the preexisting case in cook county then the plaintiffs would say we have a new case so we're going to get rid of the judge that's that's exactly the same kind of the epic in cars law and it's similar to what happened you know right you know there are seven did it wasn't state it was the executive but that's not the principle isn't limited to that a panel shows that or if you apply cost law which is the other alternative instead of the other alternative saying off this is  constitutional you could say we're going to read the statute differently and of course this court has limited the substitution of judge statute it doesn't allow substitution of judgement it's going to a reasonably delay things  turn to you know i think you know the facts here are clear enough and i'm i'm sure the court understands them i said i was a little worried when we are when i argue in the appellate court and the court asked my opponent  after i had spoken that's my point whether this was the same lawyers and the answer is yes the same plaintiff's lawyers have filed four cases in madison county and then all fo transferred and those lawyers have been able to see what was happening in the county they didn't like it and so they found a way to get rid of the judge in this case it's really important the bemis case the one that's the latest is present exactly the same motion to dismiss issue as one of the prior cases jones deals with whether the workers compensation commission is the sole authority judge even the judge assigned the jones case dismissed the case with prejudice so it's really important to the plaintiffs to get rid of him and that's what they're trying to do judge adrian found when he denied our motion he did find the plaintiff's counsel have a game plan and they're exercising it and plans don't seem don't disagree that this court reviewing this case should you know start with what judge aikman found instead they make two arguments the first one is that they said there's nothing wrong with their game  plan they say that they're scheme which is filing case after case in madison county and then when it gets transferred to cook county used the new case to remove a judge that they don't like they say that's not a problem because this court didn't specifically assign the bemis case or any of the cases to judge a green card plaintiff's rule three eighty four simply sent cases from madison county cook  adrian because he had experience and we have done a five the jones case and the fact that he'd been to ruling on these cases for three years this court granted a motion it transferred to cook county and it and it consolidated with cases that the court knew were pending in front of judge acreage so there's no question that the court sent the cases to judge apron there the cook county rules had nothing to do with that when look the random assignment isn't correct it's got to get consolidated with the preexisting sneed case we have instant case the jones case and plaintiff's counsel expressly said quote that it needed to get sent to sne in order to effectuate the on ice cream court's order so they knew that in fact the plaintiff's counsel moved to remove judge a groom before the case even arrived on his calendar there's no question this court is the record in this case yes and the filings in some cases or if you have would you have the same argument counsel if they you know i'll change my even my own hypothetical if it was different attorneys filing the case in cook county rather than madison county there's a motion to consolidate and then then there's a motion made by the new attorney to substitute if you know it's more interesting if it's different you if you look at an intervention the statute actually says if someone wants to intervene in an ongoing case things that might have been done earlier the court can say you're not allowed to do those so if this were an intervention the brought in later you know that really is designed to deal with a defendant who's being brought in later someone who's not in control of the process what's different here what's unique here is when you are dealing with this is the exception the loophole they found would only work for plaintiffs in the real world it only works for class plaintiffs who have a stable of clients where they can just peel them off and bring them in which is what they did when jones evanson are all chiropractors in madison county but that's not their entire stable i know they have dr quite they filed a lot of cases you can hear you know earlier plans remained part of the class even though they were no longer the name and the cases are overlap the class issues are probably a democrat and that's why they were consolidated the crucial thing here the point is never talked about is the purpose of a rule three and four which is the just and fission kind of reaction but this court gets to decide but when when when this court sends the cases i mean there's a case that's been going on for many years and it's been for and from one judge for three years when this court sends the case plaintiffs have done interferes with both of those it obviously interferes with efficiency because the judge has been ruling on these cases for three years you have to start over not just one case but all three cases and it also interferes with justice because clearly the intent of illinois law is not that someone checks to see what the judge is going to do and i said well i lost a couple motions let's get rid of that guy that's not the intent the know justice is you've got to strike before the judge has decided but but no not at the end but to get rid of a judge because you don't like what he or she is doing and that's what they've done here and you know they've never they have never in all the briefing in all the argument they have never mentioned the express purpose in your rule which is the just inefficient kind of the action i think i give this court credit when it sent the case to be transferred in consolidated that the court was intending the purpose of your rule and what they've done is interfering with that purpose it just gives the other argument the plaintiffs make is they say look you don't have the power to do anything about it is you know it's a it's and the separation of powers and narrow rule but as i said to justice thomas separation of powers applies here in the o'connell case you dealt with private litigants and the court said the statute that allows someone to this is an unusual and agreed just case the substitution of judge statute especially says it can't be used to get rid of a judge after that judges made subst of rulings but the plaintiff's counsel think and if they win this case they're right they think they found a loophole that enables a narrow class plane especially action lawyers to do it the problem of this loophole is that completely interferes with this court's management the cases it interferes with the just inefficient congress for the cases and by the way it also undermines the statute the airport will be relying on because it's a loophole around the prohibition against removing a judge a judges made subst of rulings i make one final point as far as we know this case is the first time that we've seen this done although it's been done many times in this case they filed you know they're not taking your orders as the final word you transferred siler up to up to cook county and they filed again and again and then again and now they've twice used these new cases to remove judges who decisions they don't like if this court affirms the appellate court will get a new judge and if that judge does not do their bidding dr cool white will sue state farm in madison county you'll send it back to cook county and then they'll get rid of the next judge too and it won't just be these lawyers if this court affirms other lawyers will do the same thing so i respectfully request that the court apply the separation of powers  to my knowledge doctor corey has no claim against state farm and to answer your question they could always listen there are three eighty four petition when they did the three eighty four petition if they thought this was a problem and if it comes up again which i think has not going to happen when he let me explain what the real facts are they could raise it in the next three eighty four petition that's how you deal with this issue there's no separation of powers issue you can see but that's a bogus argument it's not before us but the reason i start with the question i mean there is the point made that we have consolidated number of cases and transferred them from madison county based on the same set of facts to cook county and the violence still continuing matters is there a reason for the well the reason is that there are various things that state farm does wrong which are challenged by various doctors and there's nothing wrong with that and that's the point i want to make and really make sure you classes in any of the cook county cases let me set out again dr bemis is not a member of the class in snead he is not a member of the class and even son and he is not a member of the classes and the other cases i think they have obscured that if you look at pages five and six of our brief we have a chart that lays out what each case is about who the classes are what kind of practices are at issue the other cases involved computer bill review where state farm uses a computer to substitute for the judgment of the doctor as to how he should treat the patient and what the reasonable fee is for that it's a computer  is challenging is something completely different it's that they're saying he's a member of a p p o network that he didn't know about and that they can take these silent p p o discounts now that weiss is under a p p o count contract supposedly it's an entirely different type of claim so they've created this fiction that we're filing the same lawsuit over and over with new class members it's just not true he's not a member of the classes he's got a totally different let me tell you how state farm told the judge a grim let's go forward with a motion to dismiss on even some don't worry about the most there are different issues that's a worker's comp case you don't have to hear the motions to dismiss together so while they're telling you these are all the exact same i you can look at the complaints in fact the appellate court did and then their statement of the facts they lay out what the different parents articles what the different allegations were in the different cases but look at the complaints you will see the raised as a silent p p o case p p o discounts what doctor even some raised as a class a chiropractor suing over how they calculate the usual and customary feet it's out of network first as a network if you're a network classes furthermore the sneak cases just insurance it doesn't include the chiropractors now what is the remedy here i would like to suggest a referee radical remedy under rule three eighty four this court has the power on its own initiative to remain on cases and what i would suggest is look at the complaints and reconsider its bemis really the same as even sun and snead because i think what this court should case back to madison county because it is not the same case as even sentence need that's what i would suggest if you want to do the let's step back from the certified question and come up we already said he was going right but under three and four you can send it back and i'm suggesting i'm suggesting that's what you ought to do if you want to come up with a just result here let's forget about separation of powers that doesn't work but how do we cut the knot on this to madison county that's the fair result here because his case is completely different from even sun as demonstrated by the fact that state farm did not even think the motions to dismiss in the two cases had to be argued together case and then they've got to get over that somehow either dr bemis is a branch of government or somehow a private citizen creates a separation of powers issue between branches of government every one of those three arguments is a loser there is no scheme as i said this is not a copycat case this dr coy's thing is a mirage and if it ever happened guess what you're going to get a three eighty four position saying look now they did file dr coy's case so this time around the case that's decided by the local court rules suppose the local court rules in cook county for some strange reason said you assign it to the case the case of the judge with the first name in alphabetical order or you sign it to the last you go to the highest case number and assign it to that that would be decided by cook county what they say so you go with the lowest it's not decided by the county when this court tells the county this case is to be consolidated with two cases that are that if we get the next three eighty four on we can you know we can put in there that you don't get us o j which in effect is it's consolidated with an existing case and it stays with the judge now you're saying we can do that well i think you may have the power to do that under some broad power but it's not under three and a four three eighty four doesn't specifically say you can pick which judge and you know suppose so he sent it to a judge who was already had the case we're not first of all they explain it that's what o'connell's about it's about a conflict between something the legislature did and something that the support it secondly and gambling of they say there is no separation of powers violation however we're concerned that the plaintiffs are abusing the statute and what we're going to do was not based on constitutional but what we're going to do is a matter of court of ministration set up a new rule that would give judge just some discretion about whether what order they hear the motions in the future and we're not going to apply that new rule to the litigants in this case because it would be unfair to hit them with a new rule basically so if you follow him alina it would be what i'm suggesting is if you really think there's an issue here which there isn't the way to deal with that is if if you know dr coit does file a case then you deal at that point they were raised that back in two thousand and five there was an issue about which judge would get the the case manley what they are good when they transferred bemis was two things they said we don't want conflicting rulings in the two cases and number two that would be inconvenient for state farm witnesses to have to travel to madison county it wasn't about crime as the expert in these kind of cases where word was just becoming an officer of the court enter into this i mean your your statement that if we file a case in madison county or even after this  transferred three four whatever it is that if the quoit case is transferred madison county who i have been they'll file their motion ship it to cook county there is the judicial resources of them filing a motion it comes before us we do the same thing again which is happening to or three times so that that really is the basis of my first question here separation of powers are now controlling the court docket i'm not so sure under any broad power we can actually say no substitution a judge in this case what happens if the attorney on the case is the brother of the judge or what happened i mean i don't know that we can do that maybe we can i haven't researched but what about just the specter and i understand your argument and being  a different case we didn't do anything wrong there were cases before that the world was the clear intention in this court to consolidate the cases in cook county so i guess there's a big question why are we here i mean you know the plaintiff knew in those other cases that  we didn't think the cases should be in madison county that they were already in put county ordered consolidation and now we're here maybe bemis is a different subject but on the general issue it's a little disturbing in the cavalier attitude if we would not create a separation of powers issue obviously because as an officer of the court that would fall within the judiciary but that's about aside your i understand the basic issue here is are we doing something wrong wasting traditional the same case over and over again and they asked search is no and that's where if you look at the class definitions in these cases some of them are off under auto policies some of them arise under workers compensation policies let me put it this way if you put all these cases together state farm would say you can't certify this is one class action because there are too many variations between the lines of insurance one of  well we never thought any of them should have been transferred saumarez we did it right you know so regardless of the fact that you disagree with us i understand you disagree with this and think you want to send this back to madison county but aside from that forget the actual facts of p p o i was there all that are the ingredients that trying to look at it is objective leave as you possibly can or the ingredients that prompted this or to transfer this these cases from a well the reason i say i don't agree is i don't really understand why this court transferred them except that state farm sub there are all the same and they have the same witnesses i think if you look in parcel but they should not have been transferred and they could be all the same and still be in medicine right i mean we mostly outside of the fact that they are the same that there was a transfer to cook why cook was the better for well there was no argument you know state farm best closer to to madison county than it is to cook county i think the reason i got to cook was because the very first case in the list was filed in cook county i believe that's the only  deposition and one case that would unless it was just a very general question like what is your general process for handling claims so i don't believe even the people that adjust the workers compensation claims of the same people that it's just the auto claims you're talking about different insurance policies i mean it's different lines of insurance so it's not even like you're just sitting down with one insurance policy and reading it together and then the p p o practices a completely different practice you've got different vendors and fall i don't see that much overlap in discovery but the the court disagreed with us the first time on this issue i'd ask you to rethink whether bemis really belongs up and cook county but even if he does belong in cook county he has an absolute right to substitution of judge particularly given that he's not a member of the classes and the other cases should be allowed to exercise it i mean there's always a little bit of inefficiency when you exercise a change of judge statute and frankly i think most judges don't really like that procedure but be that as it may it's no more inefficient here than it would be on the other case the substitution judge says if a new party comes in they can get an s o the attorney came in and he was allowed to exercise a substitution of judge and let me also say on the second page of that october hearing where mr rowland said that the two cases motions to dismiss didn't have to you know on a regular basis it's not like he really has the upper level of expertise you know that none of the cases a con has the motion to dismiss stage basically i mean there's another inefficiency about the consolidation action while is happening because each time a case it's consolidated then state farm comes up with a new way to basically stop the cases from moving which is what defense lawyers do so as i said there's three arguments  got i went on they got to show a steam bemis i think it's clear there is no scheme in fact it's possible why the case was transferred there is no basis for a private letter gunt being a separation of powers issue you your honors i want to answer some of the points that were were just made let me start with one of the last points which is that somehow state farm has stalled this litigation that's not true the motion to strike the judge was filed one week before we had a scheduled hearing on our motion to dismiss the evidence and case the plaintiffs wanted to make sure they got in before a judge a green had a chance to rule on that motion that's a pretty good segue into another point the plaintiff's counsel made which is that these cases are so massively different and that's proven by the fact that the evidence and motion to dismiss is not the same as the bemis motion to dismiss but he's mistaken about that and a couple points make one we are going to oppose class certification and all of these cases because we believe that each claim is individual not different lines of insurance although that's possibly part of it to each claim as an individual and that's not the same issue that the court would have to address in all these cases the motion to dismiss an evanson the reason it didn't we didn't need to wait for bemis because one of the reasons was we have a release from the insured in evidence and we made a motion to dismiss based on the release the fact that the motion dismissed in evanston isn't enough be tied up with the most does not mean it was wrong for the court  consolidate all these cases and it does not mean it was wrong for the court to think that they're all similar of course they are let me get to the next point which is that if this really goes to  of the case this court has already four time with four cases transferred and consolidated the argument in that the plaintiffs made the same argument that you made here to you which is hey the cases are really different you shouldn't do this and each time discourse said no that's more of the case it's so there's no point he's lost this argument lost this argument lost this argument lost this argument you shouldn't reconsider it now he's greatly exaggerating the difference in these cases i'll give you a couple of exam bills one he says one case is about computer review the other one is about p p o but if in the p p o cases they use computers the classes are going to be overlap and of course they do he said one case is a policyholder case and one case is a chiropractor case they're different a doctor can't bring a claim with respect to our insurance unless he's gotten an assignment which is another issue in the evanston taste so the case is completely merge in over way up and if you take a look at what's happening in madison county with your limitation they'd say one thing and then the case expands this court already decided correctly that these cases are very similar and as a result this court already transferred him consolidated them and that's the right thing what relief i'm seeking in this case is for the court to hold that the plaintiffs are not entitled to exercise and s o j a strike of the judge and i'm saying that there are there are two  one basis is separation of powers that is there's a conflict between this court's management of the cases just as in o'connell or various other the courts managing the cases and the exercise it yes it could your honor i think it could and then the other way to do it is the cost of off way or the hoffman way cost often hoffman or cases that involve of right strike and the court imposed additional restrictions saying they couldn't have meant that in cost law additional cases are filed additional motions in the courts as luck that does not qualify as a new case so this court could say look we are looking we have transferred these cases we found that there are similar they have and i said i think the court ari did it we have overlapping classes we have overlapping plaintiffs it is not going to be i think the assertion that one doctor isn't a participant in the other class that that's almost certainly not going to be true almost certainly not going to be true there is no evidence on it and this court did consolidated but i think what we want is the for the court to say not that the s o g a statute out is unconstitutional  about what if the what a judge a grand were the misses brother in law that's a totally different thing a different statute cause than of right and i don't think anyone would suggest that removing a judge for cause interferes with the efficient in just management of the cases which is the goal of supreme court rule three eighty four there is no question that if the court sent the mess and there was a cause issue afterwards of course you could have a strike but that's not what we're dealing with we're dealing with here is a loophole and i think this court can and should close this loophole in the suggestion that there's one other point i want to address which is a class counsel said look we should have dealt with this when we made the rule three a form that is completely wrong  at the time we made the rule three eighty four motion we argued that the case bemis should be transferred consolidated interest transferred consolidated it should go to judge adrian because he's been doing these cases he's experienced bill deficient it will be just the plaintiff's counsel if they were thinking of exercising a strike could have said not i won't be efficient because we're going to strike the judge but they withheld that they didn't disclose they were going to strike the judge and it would have been laughably premature for us to say we think they might do this so you want to stop them there's never been a weaver case that said that that we've somehow we are right because we didn't object to a motion they didn't file until six months later that if anything if the plaintiffs if the plaintiffs were planning on strike and of course they were they'd had an opportunity to tell this court no it's not going be a fishing to send it to chicago because we're go the judge last point it just isn't true that cook county assignment rules sent this case to judge  has interfered with this court's efficient and just management of the cases or in the alternative reading v s o j statute in a way that does not allow them to call this case which the court has you know transferred and consolidated as a new case that gives these lawyers another strike so also let me ask you this question there's been some practical when i would view kinds of questions and speak for my colleagues today but you know we had  came up here and settled day just as freeman just asked about whether or not we could just simply assign it to a given judge my question is is there any room for you and your clients and the lawyers as they sit down if this court were to deem that appropriate to have you sit down the chief judge at least agree upon who could properly handle this case ok it's you know always in theory but it's too late for that your honor we didn't assign the case t different me the case was in front of judge me actually judge mackey dismissed with prejudice four of the five counts of the sneed case so when they came up here with jones and came here actually here when they came to chicago with jones in evanston the first thing they did is they got rid of judge mackey i regret that i didn't make a separation of powers argument that i was beside for it i was thinking that you know my rule is the same as the federal rule the statute would prevail by the time they did it again we the case after they struck judge me akki it was assigned to judge a person randomly but it's been with judge aikman for three years he's made a lot of rulings what's offensive to the administration of justice in illinois is a  finding a loophole so they can say well we've been losing in front of this guy so now we're going to get rid of him and i think this kind of this court has the power to stop it just as it did in o'connell just as it did