it please the court of this case is here on a rule three zero eight certified question which paraphrased is is the judge required to grant a substitution pursuant to seven thirty five i'll see yes five that the answer to that certified question is yes if there is no support for the alternative in that moreover the alternative would in a day and age when as a practical matter  practicing in a specialized niche area is the rule rather than the exception would simply eviscerate the rule the statute says that party's right to a substitution once is absolute and last trial has commenced or there has been a substantial ruling implicates there is not been a substantial ruling in this case and trial is a very long way off but  in proceedings with the judge within the confines of the case itself as opposed to knowing things that the judge has done in other cases what's the role the difference is that  if you are encountering for the first time how real a judge is treating your case in treating the issues in your case in that case and then after that trying to and say that simply participating in knowing what the judge has done in other cases bars a change of judge i submit would go against the purpose of the statute because after all why else would anyone take a change of judge other than dead bill where for example that this judge in a personal injury case has refused to let in a certain type of expert testimony and ok i've got a case coming up that i want this type of expert damage damages testimony in my case so i'm going to take my change in the ruling right because that would never make a difference  all in is long as you exercise that before trial is commenced or a substantial ruling has occurred in the case that it should be as of right and  was conditioned on the notion that the litigant voluntarily engaged in colloquy with the judge about the issues and that that was the testing of the waters i submit that any time the judge just to respond to a out of the blue bring something up that is a voluntary engagement on the litigants part well let me ask you this it was said a status he first i'll agree with you the record doesn't indicate that the court entered an order previously or said anything during four which would indicate how it was going to go however the status hearing  judge what was the judge for when volunteer to your client and the other he said i've had a similar case i suggest you both go read it  argument for that but if in reality as we were just confirmed it was my case my client was aware of the other case it was simply a frankly a an oversight on my part not to have filed the substitution in the interim between when the other decision came down and when the sadness hearing occurred and it merely served as a yeah i don't well i don't think that is because he didn't tell me or my client anything we didn't already know and that wasn't the basis for the trial court's order simply was the fact that this other case this other wing existed in which i participated not that he said anything about it later or any sort of time period passing that hugh was the  wind is blowing then i let you know it well but i would submit then if that is going to be the rule of the court then where do you draw the line i mean judges make rulings all the time lawyers practice in the same courthouse for years and years and years so i mean for example if i have a new case with the same issue a third case s are getting assigned to judge when can i take a substitution  is an identity of counsel such that obviously i knew about the prior ruling in vehicle alignment the day that that ruling was made so  issue then becomes is it ok for me to take a change of judge in the city phoenix case the failing day and if back in if the answer to that is yes then does the judge we're minding me of that ruling change the equation and i would submit that give them good the sum total of what the lawyer knows and what the party knows hasn't been increased or changed by the judge's pronouncement that that isn't really a situation like in gay or any of the other cases where there were fact intensive unique pretrial issues where these are things that it's not a power the judge feels on a particular question of law it's how the issues that we're talking about the certified question is a question of law that says we got the same legal issue case a one one way because the earlier that the party in case be elected the higher was a participant in case a does that affect the party in case b s right to take a change that was my conception of the certified question the judge flynn issued and it's interesting too because i think that that truly is the basis for his underlying order not any of the unique factual issues that we've been talking about his stated rationale on the record when he read the situation where the state and the prosecutor's office are routinely taking changes a judge from a particular judge in felony cases in the supreme court said no you what you're doing is you're effectively removing this person from this this judge from the call in which he was placed and that that is a violation of the court's organizational rules so you ar some and he after difference between what exactly happened in this case against what this or that question present i do i do and i also would prefer the court is we did in our reply brief to the case  law mostly coming out of this district that strives to confine rule three a way to appeals to simply answering questions of law as opposed to reviewing underlying orders on the facts would think that the other problem inherent in the question which i guess the problem inherent in the ruling that's brought out by the question is is the focus on the identity of counsel because there is nothing in section ten zero one that expands or contracts  to grant the oath i would submit that he is both for the reasons we've discussed and for the based on the case law that says that the statute should be liberally construed and it should be construed to affect rather than defeat the right to substitute and again nothing in this case on these facts involved the judge either mak ruling whether substantial or even arguably substantial but her giving the moving party any insight that they didn't already have  thank your honor i think that the key issue here is simply whether involvement or knowledge of a legal ruling in a separate case i can be a bar to taking a substitution of a judge and i would submit that if that is then the there will be problems exercise in the statute in virtually every case thank you like at least court good morning again i'm jim horseman representing cincinnati insurance company from what i've just heard surprises me a little bit of counsel for chapman has told us now of it the question that he asked this quarter of separate review on is not accurate i think the reason that's reason enough to deny the appeal at this point there is some discourse in the briefs in which i thought that chapman was arguing that this court is strictly bound to the words of the certified question it seems like he's gone the other way now  if it's if it's true was he said that the question doesn't accurately formulate the issue the challenge by the record i think this court then should deny the appeal and that describe the issue that we're here to decide my views a little different i believe it's accurate but i don't think there's enough there for the court to rule as he's asked here to rule from as is justice cun pointed out a few times that we have to look at the question it the structure is interesting it contains six sentences of facts and then there's only one of the seven sentences a question and it's the only question presented this is the judge required to grant the motion our position in a nutshell is that you don't have enough facts here to know one way or the other and why is that it's because the the  substitution of judge is not absolutely the case or shows that it we talk about substitution as a right which i guess is a crit so far as it goes but it's not an unconditional right it's very much conditional things have to be shown the case law shows the motion has to be filed timely apart from that it has to be filed before the judge has ruled on a matter of substance and apart from that it has to be made had an eight month unexplained the way he says that not much was going on in the case but it's precisely that eight months that allowed him to gain this knowledge about judge claims opinion on the follows quote even if the trial court did not rule on a substantial issue a motion for substitution of judge as of right may still be denied if before filing the motion the moving party had an opportunity to test the waters and for an opinion as to the court's disposition toward his claim now counsel didn't ask the question but it's by virtue of that eight month delay that he was around the judge it's up to circumstances for  judge knows how he was going to rule on that issue because the rule of the not the case but if the judge had made that statement on week in week one wouldn't have made it i think what we've heard of mr up and kind of argument is that the judge should forth with the facts of this case he's brought to this court a three away question and he wants the court to consider various hypotheticals that that situation you just described is now what happened here by counsel's only admission he knew we probably wouldn't be here because there would be no basis for the just to deny the most he could but since there had been no stuff that the ruling in the case albeit it pending for eight months if he had made no statement at issue by virtue of the row three or a question that's been put up to you it's the same exact coverage issue that the same exact judge has ruled on in another case involving the same exact attorney who says we don't know that they're looking at the question took the question says is the judge required to grant the motion the court is to say we don't know because this question doesn't tell us whether the the motion was timely filed it doesn't tell us whether there was a the same issue which you when you look at the transcript that's that has been filed with our answer to the petition for leave to appeal you see that that's exactly in judge claims mind into all the parties have assumed it's the same exact don't have enough there we can't answer the question in the affirmative however if the court years as we've argued actually it was our motion see status hearing the court advised the attorneys to go look at a case that he had previously decided that the following day six will second one eighty eight frame a roll call in the interest of judicial economy and reach an equitable result a review court may go beyond the certified question to enter dispositive ruling in the case on typical approach is to look at the question and stay pretty much with that the court the supreme court in the first district have gone beyond that if it makes sense to do so here we have a clear case of if it makes sense to do so because if you if you don't look beyond the certified question we're done you don't have enough information but that information is in the record that's been presented to the court and i think under board versus traverse the court ought to look beyond and when you do it's our position that the court will will answer that question in the negative the question again is is the judge required to grant the motion and based on what we've seen record the answer is clearly no the judge is not required to grant the motion under the last thing i'd want to point out is opposing the briefs and here on argument counsel is suggested that attorneys who have a narrowly defined practice might run into this situation more often and it's almost that he suggesting that there should be a special rule for attorneys who have a narrow practice and that clearly cannot be the case and that's that's not what the statute anticipates omh then you run into the situation this awkwardness more often than some other lawyers but it's not a reason for a different application of the rule so young as i i thank you for your time and that's why my two part answer is before should either this say we can't answer the question if we're confined to the statement of the question alone but if the clerk goes beyond the seven sentences of a certified question eight requires and we have argued and consistently argued that the court must answer the certified question as counsel and the court has pointed out the question list six sentences  facts followed by the question at the end the six sentences of facts were come up or what judge flynn came up with we submitted competing questions they were both rejected so i submit that what you recertified question are the issues the judge when view is crucial to his determination whether to grant or deny the motion which also suggests that judge  not have exercised his discretion even if he had any discretion to deny the motion if it were only the issue of what he said in the status conference or if you were only the eight months route that the court has drawn exceptions in circumstances that warrant it i submit that this is not one of them that court ought to because made in other cases that's what was first and foremost in the judge's mind as can be seen from the question and that's the sort of thing that would not only material advance this case but would be a useful precedent for other cases and so to answer the question that you pose mr horsman i believe the court should simply answer the question yes and  based on the verse and based on these issues the judge should not have denied the motion but to the extent that the court wishes to get a ruling on  fact of the judge's commentary at the saddest hearing i would suggest that the court ought to send it back to judge flynn so that he can make a determination on that in the first instance because he has not done so  the other remaining two points i was going to make very quickly are that we've heard a lot about an eight month the way but i would submit that nowhere in the statute is there any sort of  elapsed time requirement with a stopwatch measuring from the time of filing it's simply not a factor in the analysis and finally it was very interesting i think counsel's responses to the questions about what about the search circumstance where a lawyer does their research and knows how a judge rules on certain issues was very illuminating their position is judge for him because it proves position was was simple