this case presents a unique opportunity for this court to establish a standard and rule of law which will have a positive effect on how every living can't in the state of illinois is touched by and perceives the proper administration of justice in this state accordingly on behalf of john and brian i respectfully ask this court as a result of the decision of the united states supreme court in the case of capture ten vs eighty massey coal company to over rule illinois which we will eyes upon the actual prejudice by this standard as a proof requirement to obtain a substitution of judge for cause this request is necessary as the supreme court has determined that the actual prejudiced by a standard as a standard of proof for substitution of judge for cause can no longer be rule sixty three i think what i think i believe what justice o'malley was was pointing out is that certainly this court's rule sixty three basis in which to cite and refer to in a motion under under statute section one thousand and one it provides a possible basis for a substitution of judge certainly i agree with justice mr justice o'malley that rule sixty three doesn't provide a procedural vehicle but it very well may and does we believe provide a factual scenario to cite in a motion coming under one thousand one that would support a substitution of judge for c standard when it is what it would so that we disagree with i think i think this i'm not sure the justice or merely said whether or not there should be a standard established as an appearance of impropriety i think just the so me could provide substantive facts in which to cite in a one thousand one motion then yes your honor i am this court's role sixty three obviously absolutely forbids no you're awesome means no your honor because statute one thousand one all it talks about is far substitution of judge because that's all it said yes it doesn't tell us what cause all of the all of the all of the explanations in regard to what cause it means comes from the case law and the case law has said you must show actual prejudice the case law also in illinois has said that you have to show actual prejudice plus evidence of prejudicial trial conduct the whole in case issues meet the wheatley case  bradshaw case and also a recent case from this court barth the parts case seem to indicate that an appearance of impropriety to the judge and that's the exclusion of it and it seems to me under your interpretation that that would there would be an appearance of impropriety but no actual impropriety no actual prejudice and nothing was said out of it but just the mere appearance of impropriety would justify change because your honor it's very interesting in point because even our courthouses architecturally are set up to avoid just that we have separate entrances for judges and in many of our court houses we have walls between the judge's chambers and the  communication according to ms o'brien the actual communication was hello judge waldeck however with all due respect number one that was an ex parte contact number two it took place during the pendency of the trial in this case number three it happened in more than one occasion number the witness said several the trial judge who tried the motion judge stark a ninety two of the record said the evidence the actual evidence that i have is from the wife testifying then two occasions she's such judge well back at the health club and said hello judge waldeck one time arguing here nor are you saying that there was a new theory nor are you saying that there was in abusive or any against the man the judge starr found against the manifest weight you're saying a different standard has to apply  are saying that there is a person a right to a change for a cause based on an appearance of impropriety absolutely that's our position here so there really isn't any reason well i guess you have a hearing just to establish the fact that it can an ex parte contact took place yes your honor but as soon as that is resolved it's per se change for cause in every situation that would be our position unless this court should see fit to construct a methodology by which if there was an initial ex parte contact for the trial judge to bring both parties into court explain it on the contact and no means no miss mr johnson you know typically you know this court hears we realize that when we make a pronouncement in a case it doesn't just affect this case correct affects i mean you're asking us to change an entire standard in sort of affects a lot of cases and how absolutely and how substitution of judge cases would be handled from the point of this opinion dean offered i've been for a night right yes yes right and but as i sit here rarely does experian requested of the corps affect a whole other category of cases and what i'm getting at is in a criminal manner ineffective assistance of counsel right yes oftentimes this court goes to the second prong of that test and determines whether there's any prejudice attorneys do things wrong all the time and and it it a fax litigants it affects criminal defen and we look at whether there was any prejudice so how could we in good conscience keep that standard and yet in a divorce case in which there's an ex parte communication which is found to not create any actual prejudice we would say now there's an appearance of impropriety here you are entitled to a change because first of all because respectfully there are obviously two different areas of law i'm not trying to say that one is either in the more important than the other but secondly the united states supreme court in kaffir ten specifically dealing with substitution of judge has has declared that the due process clause no longer requires proof of actual prejudiced pretty situation on the defensive mode so to speak let it be the witness here was the cares yes here it grocery store does that mean the judge now yes to change his place of doing business because you have to be there what is he supposed to do or she's just assuming that there was a case pending i would expect that the court would have told his or her takes a closer in much better possibly gives a much closer and better result because at least there's a suggestion on how to handle these things so as to not with her imply don't know that for sure your honor her employment was simply does not count in the back room of the health club i don't know if i don't know the extent of the employment other than she was doing accounting work for the health club mr johnson is it your position that even if the judge didn't know who she was which the record seems to indicate and she said hi she said no lol now under the rule requires him to bring this to the attention of party when the rule in fa no but respectfully i don't believe that it's all that clear first of all that the that the trial judge didn't recognize this person this litigation between these parties hit had taken place earlier before this judge and certainly at least the testimony of the party adverse to my client indicated that that they had been substantiate that there's nothing in the record and i believe your honor respectfully would have been almost impossible to place something like that on the record we could certainly have couldn't have called the trial judge under under our that's what we have but if we say your honor that no ex parte contact takes place simply because two people don't discuss the case does that mean that the trial judge and and mr bryant could've gone out to lunch  sometimes and never mention the case with that have been ok respectfully i don't believe so i don't believe that any right thinking person who was concerned about the perception of the public of the administration of justice would agree that that would be inappropriate conduct but you're right your hypothetical would give you leave to go home you know feel based on the fact that it was against the manifest w evidence that there wasn't any actual prejudice but and i mean similarly if the capitan case had come before state court in illinois wouldn't it same argument be able to be made you know fifty three million dollar donation to a campaign fund and then not recuse yourself on the case almost taking traditional knowledge or employing some type of objective test and saying how can there not be bias i'm sure that if that had been the situation the facts certainly would have been argued what's problematic about your position though is that we purge we undertake an analysis then if there is an expert per day communication fact i think you agree that your analysis that but i did not argue my other issues by not doing so i did not mean to waive them respectfully you know because somebody has a question what with the allegations regarding the  the evidence presented in the record would support necessarily support that i think the only evidence in the record that was that truly supports our position is the finding by judge starr that in fact there were two ex parte contacts so you may have two minutes did you i don't think you heard this sorry you said that you had argued one of your points i simply meant to say you're right but the fact that i have not argued my other points in my brief i did not mean to waive them thank you standard that should be employed when ruling on a motion to substitute a judge for a cause that is certainly an important issue an issue i'm going to address equally important in my client is a finding that regardless of the standard that the court articulate mr o'brien did not meet his burden under any possible standard it could apply in this case now there are two standards that have been employed when ruling on a motion to substitute for judge the first standard is articulated under establish actual prejudice judge stark in the appellate court clearly ruled that judge or that mr bryant did not include not meet that standard but he was given every opportunity to have a full and fair hearing on his motion he put forth speculation and hearsay but almost no admissible evidence and the only admissible relevant evidence was that this is a right on two occasions as she passed judge waldeck in a parking lot said hello the on contradicted testimony was the judge waldeck did not even recognize her on those two occasions judge stark and the appellate court and now mr o'brien all agree there is no actual prejudice here the second test is the test that is sometimes been stated based on canon sixty three of the judicial code oh under that test the standard under either test the standard is whether the judge abused his discretion in applying that test again from my parking lot in this court has held in people versus hicks that chance encounters do not require the removal of a judge or the court stated that to say that any involuntary meeting or conversation no matter how trivial gives rise to cause for disqualification would present too easy a weapon with which to harass the interests of the administration of criminal justice and obtain a substitution of judge we've got two occasions were we still bryant said a low judge wal k in a parking lot and no evidence in the record that he even recognized her the appellate court agreed the motion was properly denied the majority went through the test under the court of civil procedure went through the test  and sixty three and also any possible test that could apply based on the caperton decision and the majority on it quickly concluded that the petitioners motion to substitute for cause fell far short of meet any of the aforementioned standards by judge o'malley also agreed in his concurrence that regardless of the standard that is articulated based on the record we have before us mr bryant could not meet that standard for that reason on the individual issue as to my client i would request that the motion to first substitution of course that the denial that should be affirmed that still doesn't resolve the issue of the proper standard that should be applied  with all due respect i agree with judge o'malley that if we adopt the appearance of impropriety standard or tough and if we apply or if you rule that can and sixty three now governs these motions that the test under section two dash one of the one of the court of civil procedure will be rendered virtually mean meaningless the test under the court of civil procedure is a strict test for good reason accusing a procedure is because it shouldn't be easy to remove a judge and i believe that for that basis we should continue to apply that standard just revoke the statute one zero zero one it's actually silent  of in response to a question or to a concern that their decision that in certain extreme situations due process will be and will be implicated  the court responded that this is just a floor and that it recognized that in some situations there already are standards that are raised the bar above that floor ok pretend no did not hold that it is unconstitutional to apply the test set forth in the court of civil procedure the test has been interpreted to require actual prejudice but certainly your is set forth in that judicial code and in the case law of the case law rightfully enforced in assumes that the judges are unbiased and unprejudiced and if we cannot make that presumption then the system cannot function the judicial canon states that they are not meant to be used offensively by the parties and their lawyers the purpose of the code is to provide guidance to judges and not to be invoked by lawyers f school advantage in a proceeding mckinnon's are not to be used by lawyers now they can and certainly exist and the judges are expected to follow them but they can't specifically stick at the litigants are not to be using these canons offensively again we have to assume that the trial judge is unbiased and unprejudiced trial judges recuse themselves all the time on their own without even a motion there can be any number of reasons for that recusal but they abide by the roughnecks and that's part of the world to lead ministration of justice to functions in this state in this particular case judge waldeck certainly did not believe he was prejudiced or biased against mr o'brien or that there was any improper conduct he followed his judicial ethics as the court noted the petitioner has essentially arguing that any ex parte conduct automatically creates an appearance of impropriety required requiring removal and with all due respect that is not the law i do not believe that is the law i just certainly not practical or possible to annex such a stat standard judges of the state are members of their community and many of them are elected officials they need a lot of people and they are coming into contact with people all the time and the system functions when we rely on the judges to follow their judicial canons and we allow the parties to use deal like quote a civil procedure if they believe they are prejudiced by a judge and you come in and have a fair and impartial hearing against a separate judge which is what the court of civil procedure allows any concerns about not allowing parties to use right judicial canons offensively or eliminated i believe by the keeper to decision caperton decision acts as a safeguard in the sense that caperton rules that in certain extreme situations  constitutional levels of due process protection can arise in a motion to substitute for for cause over caperton is very clear in its opinion that it applies in extreme situations which clearly are not present in this case spending millions of dollars to help elect a judge that casts a decisive vote overturning a fifty million dollar vote against their party is certainly much different than saying hello to a judge on occasions because of these safeguards the safeguards in the floor of the constitutional protections under caperton again i do not believe that the judicial code should be allowed to  used offensively by a party to seek remove a judge for cause  again caperton held that most matters relating to judicial qualification do not rise to a constitutional level there is nothing in caperton that says applying the test set forth by the court set forth by the court of civil procedure  unconstitutional mr o'brien had his decor mr o'brien was allowed to present any and all evidence that he felt relevant to judge starr to establish actual prejudiced by judge  actual prejudiced test under the code of civil procedure and the appearance of impropriety test as has been espoused by or attributed to the canon sixty three to judicial cold again you tell a court for the second district i would like to score to articulate a clear standard but in any regardless of the standard it's employed again i would just ask this court to fund the denial of the motion for substitution of cause on the basis that under any possible standard that could be articulated mr bryant just simply did not meet his burden of proof there's any questions thank you  written decision did not say but the only time due process does or doesn't require a showing as a matter of proof actual prejudice is when we have an extreme case that's  process clause has been implemented by objective standards that do not require proof of factual bias  so when we get into this discussion about do you have to show actual bias you have to show actual prejudice respectfully according to the capital and decision that's no longer necessary that inquiry misses the point it misses the point of protecting the integrity of the entire process simply because you say that there is an appearance of impropriety that does not make some type of a an attack upon an integrity of a charge we made very clear in brief perhaps the judge was a million other things in his mind that day that doesn't make you hea or immoral judge but because he didn't come back to court and say you folks need to know about this this is what happened out in that parking lot it's our position that he made illegal  he made a legal mistake but that doesn't make him a bad man or a bad charge or somehow dishonest everyone makes mistakes and leslie counsel mentions this to this court's counsel can argue that his client can have two x partake contacts with a trial judge in the middle of a divorce case and by her conduct that gives my client an easy weapon to play around with the administration of justice i don't think any right thinking person would know what would logically transform that into giving my client a weapon to harass the administration of justice my client didn't have the ex parte contacts opposing counsel's did and we shouldn't have to rely on the testimony she had the weapon she had the opportunity to perhaps even by nonverbal contact to establish a report with this trial judge during this trial my client wasn't given that opportunity my client wasn't out in that parking lot he didn't have an opportunity to testify regarding his observations about what this context consisted of that was the deprivation to process think it would be streamlined i think it would be easy to deal with there's no more of this question is this ex parte conduct context bad enough does it actually cause prejudice rules it occurred twice and it was never brought into court and place the record and my client was never requested to say well now that you know that what happened mr o'brien are you willing to waive this otherwise we continually to get back into the same circle causing more litigation to determine was it bad enough that's the beauty of this is that the standard that we're advocating the appearance the mere appearance of impropriety no one has to go behind the door no one has to put judges and on the stand to testify it doesn't have to happen this clarif science streamlines it and it takes away the insidious decay of our of the proper ministration of justice by diminishing or harming the perceived neutrality of the court that's what's going on here once when there's an ex parte contact that diminishes indicates the appearance of neutrality facts of that case for the rich have been articulated already a couple of times you know we're pretty we're very strict here i write so certainly psychological tendencies and human weaknesses getting a three million dollar campaign contribution actual bias might not be enough you can't prove the actual bias in that circumstance you incorporate some of these other criteria in the extreme case i think that's pretty much what a mailing just to so manly was saying but when we examine these psychological tendencies in human weaknesses in every case and where there's an ex parte hello to someone does that raise to that same level were actual bias would standard is necessarily here by a case by case determination of the facts and that's why we're advocating for a simple appearance of impropriety creator burden upon an attorney in this state as a sworn officer of the court that after this court whatever rules in this case to follow the rules of this court to the letter and whatever is passed might be passed but if this court says that these contacts with lawyers also they are ex parte communications then the lawyers yes your honor i am because because human contact breeds rip or people make decisions about people or constitution and our rules require judges elected from their law and a lack of the way we do our elections are i are potential issues i suppose however the only time where both parties but to be in a position to persuade the court to their position is an was in this case the discussion was not about ending litigation according to the record the discussion was not i know it correct correct your honor but the contact took place in the context took place during the pending litigation their respect to the subject would you agree there was no violation of the rule as it exists if it was not discussion about ending litigation i think you're right or no i wouldn't i wouldn't because the rule says contact it doesn't even talk the problem with ex parte contacts it just simply kills it appears from neutrality under under your answers to questions leave open the possibility of ex parte communication by ambush hello i'm glad you asked that it does but if perhaps it's a lawyer a gets a bad ruling lawyer a wants to substitute the judge lawyer a decides to ambush the judge with the next parte contact number one i don't think if lawyer a tries to do it more or say side of the case should ever in that situation i understand but the lawyer who does that in the side that does that should not be rewarded for their improper conduct at all thank you can thank you rogers case number one zero nine zero three nine zero would be taken