st is the judge created testing the waters exception to a party's absolute statutory created right to a substitution of judge consistent with the coin weighing age of the statute and nd should the court decide to maintain the testing the waters exception did payloads test the waters under the facts and circumstances of this case your honour's we submit that the answers to both of these questions  textual because the only source of state policy is the language that the general assembly put in the statute itself that's x there's only two not three timing limitations is substitution motion must be brought before a trial or the hearing has become one and before the court has ruled on a substantial issue there is no rd freestanding timely requirement much less one that includes testing the waters applying statute is written has worked fine in the th district for close to two decades and will provide clarity to the district and certain courts in the rest of the state but even if this court is inclined to keep the doctrine it still should reverse because of the citizen of the trial an appellate courts in this case have expanded this exception so broadly that is swallowed up the absolute statutory rape there are only two short hearings before pay was filed this motion for a substitution a judge your honor both hearings were transcribed we're not dealing with bystander reports is porton remember that both hearings the trial court stated on multiple occasions that it was keeping an open mind and whether the appointment of a discovery special master was proper at the st status conference a new judge appeared on the bench to the surprise of both parties at the nd the judge set a briefing schedule is uncontested that the trial court did not issue any substantial rulings nor was there even commentary about a matter of substance during the st hearing the trial court volunteered a discussion here during the scotian with the special master that there was precedent supporting the predecessor judge's decision to appoint him the trial court made that statement again during nd status conference this twice passing reference to some a change is a matter of right after the st hearing and i would point the court to ages five and the top page thirty of their briefs for that but there is no difference between saying that there is precedent during the st hearing and saying the same thing in the exact same thing during nd that cannot be enough under any church to cumulation of the testing the waters exception for a party to lose this absolutes statutory right now as i mentioned the original reference to preference the president was volunteer by the trial court during a colloquy with the so called discovery special master who was a retired circuit court cook county judge who appeared at the hearing stepped up to the bar when the case was called introduce himself on the record and with no standing to be addressing the court began acting as an advocate for his own position and underscoring that the trial court hadn't took the stand on anything not even the discovery master's appointment but instead was truly keeping an open mind the court subsequently and correctly ruled that the discovery master's appointment was indeed unconstitutional and the court did not even follow his discovery recommendations now review of a denial of a motion for substitution a judge your honor is the knowable and that is because a truck or has no discretion to deny a timely and properly file motion yet because testing the waters doctrine appellate courts review focuses on subjective factors such as one of the parties could have learned something about the trial court's view on the merits of the case even when there hasn't been a ruling over time this test has become truly elastic and it wasn't properly applied by the st district and i quote from their opinion reluctance to strike the discovery minister implied that the court would accept his report there was never any reluctance to strike the discovery master the reserve referenced precedent but that was it and there was absolutely no discussion of the substance of his report under any known testing the water standard this is not testing your honour's and as justice nick de noted in her concurrence in enrage the v a tipping the hand leaves us poised at the top of the slippery slope we suggest your honour's that we have reached the there is no way to say that the procedural issue as to whether or not a discovery special master is appointment which is all that the court conceivably could have commented on that does not go to the merits your honor so even under the test that it was announced for example in the st district in the in the marriage of and very adamant i believe that goes directly to the merits of the case and that so that's why we think this has swallowed up t recently over the last few years great deal about what it would mean what jurisdiction means generally the idea is if the court has personal jurisdiction subject manager six unless we're talking about a constitutional issue a circuit court has jurisdiction to hear a man an error does not relieve the court of jurisdiction so how do we get to about a statutory remedy the this court has held and i believe it's and in in re the marriage of the many that is an improper denial of a and it was under the venue statute at the time but an  hear your case and so you know as your honour's know when you try to case there are hundreds maybe thousands of discretionary decisions that are made by the trial judge after they make the  decision to deny the substitution now if the legislature has said you're entitled to a different judge to make those decisions then you can't can't on be undone so unless you do go back and have a new judge to do that and there's no hearings and had over two hundred documentaries proceeded by five years of prior litigation and the court and ultimately reversed it because of the improper denial of the statutory right so i think there is a difference between the legislature know when the trial judge in our opinion wrongly denied the substitution of judge we asked the trial court to certify the question like was done in bowman and i think just this or recall that that was done in a moment the question was certified it went to the th district and then ultimately up to the supreme court that was the night paleness also actually took a writ of mandamus and asked for a supervisor an order from th court we did not want we knew that this was an intellect atory order that we had way to the end of the conclusion of the trial in order to seek relief it was not something that we wanted to wait at the end and have to about the broad language and the team about the judge shot yes and there was a extended discussion in bowman which was unnecessary for the ultimate holding in the case of because the holding did turn on the language of three words in this case as it is in the statute and the court concluded that that in this case language meant that the voluntarily dismissed and refiled case meant that it was the same case and there was a substantial ruling so testing the waters never came up but i ate i think in that regard judge the th district's rationale and sham make some sense the legislature has seen fit to give every litigant want to change a judge you know judge shopping his is a pejorative term and it may mean a lots of things that a lot of different people but s has been shown there is no discretion to deny that and in needs to be liberally applied and there is a case for example out of the st district and i believe  is and i think it's the next role of versus the villian case but i'll confirm that your honor where there was a defense firm in the city of chicago that took a substitution judge every time they were assigned to a particular trial judge and that's in fact of the st issue knew that the motion for substitution a judge was timely was because they had a pattern and practice of taking a substitution with respect  a judge so i guess depending on how broad your definition of judge shopping is that term was in fact judge shopping they decided they didn't want their judge to try any of their cases in their st district has sa as long as the other statutory requirements are met that that was an appropriate thing for them to do because the legislature of the the general assembly is that that's appropriate so i think you know as the th district has noted everybody gets to pick not to pick a judge but gets an anti selected judge every every lead litigant as long as there hasn't been a start of a trial or hearing and everyone knows when that starts ruling on a substantial matter gets the decide i don't want this judge to do try to decide my case and they don't have to state why and that can be characterized as judge shopping but this the legislature is private now the judge shopping concern really arises from the of the new statute where it used to be that the parties had  y but not proved prejudice and as the courts have noted in that circumstance that was open to abuse because parties could plead prejudice against a judge without having to prove it when they had no sincere fear of that and the purpose of that statute the venue statute was so that the parties did not have to try case before a judge who was not prejudice and your honour's the judges were helpless they could not defend themselves they couldn't ask why the individual litigants who signed these affidavits were were saying that they were prejudiced they just had a grant those and that's why the judicial was developed because the courts wanted and under those circumstances the stopped people from taking changes if they had an indication of how the judge was leaning the legislature in one thousand nine hundred and three did away with all that and i think the analysis of the  you know it mentioned that the court has mentioned the hoffman case you know i'm i'm not here to say that this court which has supervisory authority over all the courts in the state  and the circuit court judges certainly have a number of tools in their tool boxes to protect themselves from potentially abusive conduct that they couldn't but the question then becomes is testing the waters the right doctrine for to protect the courts from bad conduct from this hypothetical kind of bad conduct and we respectfully submit your honour's that testing the waters isn't the right vehicle to do that that the courts have many tools in their inherent powers to protect themselves outside of testing the waters if someone is bringing a change purely for the purposes of the layer for improper motives so that testing the waters is kind of like using a cannon on a on a net and what testing the waters does is it it creates problems for for litigants and for judges and it's creating issues because it's the no review and so you have a situation where people are now taking appeals and the public courts are having to divine what was said and what was meant even when there is a transcription now the one thing we do know is that the th district has not had testing the waters for a very one time and there has been as far as we know no will sell abuse of these substitution a judge statute there of judge under earlier versions of the statute this court repeatedly said that the test waters doctrine is necessary to prevent judge shopping and when the general assembly and acted the currently operative for action of the substitution statute in  three it did so against this consistent backdrop of judicial rulings and the general assembly is presumed to be aware of this court's decision if it wants to reject this court's interpretation of the statute it has to say so clearly legislative silence is understood to mean legislative acquiescence to the court's decisions so far to conclude that the general assembly intended to eliminate test the waters in one thousand nine hundred and three we would need to see a clear indication that it was doing so and certainly the general assembly could have given a clear indication he could have used the same language that he used in the voluntary dismissal statute which provides that a plaintiff is entitled to move for voluntary dismiss so the general assembly could easily for the docket the same language to eliminate test the waters from the substitution statute if it so chose but it what the general assembly did is largely keep the statute as it had been  d the requirement that the party seeking substitution state of fear of prejudice but it really changed the same timing related provisions that had previously existed the requirement that an application be filed before a trial or a hearing and british will be entitled to one substitution as a right to an application must be made by motion if it's presented before a trial or hearing before slips through and so in other words the truth is the title hearing you would expect that st sentence should read timely as provided in roman net two because roman at two is where before trial or hearing and before ruling on a substantial issue are included what it actually says now what as provided in this paragraph two is modifying is rights to a substitution without cause because this section paragraph two establishes a new right that didn't previously exist in this form and so by writing as provided in this paragraph to meaning this entire paragraph to the court is saying excuse me the legislature is saying we have a we've created a new right and the right is defined as provided in this paragraph to and then it further says that right the right to a substitution without cause as provided in this paragraph two must be timely exercised as  says the idea of tossing the waters and such is not expressly stated in the statute the court definitely said it was not resolving the question of testing the waters so it's been means it's unequivocal the only constraints on applying it are these timing requirements that are described in roman attitude and the court rejected that now of course they did not resolve testing the waters but it rejected that form of interpretation it specifically said we reject a narrow and literal interpretation of the statute that would create a loophole that would frustrate the purposes of the statute and bonus not the only case that said that in multiple cases this court has rejected a narrow and literal interpretation of this statute the prior change of venue statute that would allow the purpose of the statute to be frustrated  n versus hoffman the trial court denied a petition that was filed for purposes of delay the appellate court reversed because it said just as your questions were raising it said the statute doesn't say you get to deny a petition just because it's filed for purposes of delay the statute creates an absolute right and this court reversed the appellate court it said a trial court does have discretion to consider the circumstances surrounding the filing of a request for substitution and to answer your question from earlier justice carmen the answer to that question is yes the court said it and hoffman the court said it again and bowman the trial judge does have discretion to consider the circumstances surrounding the filing of a motion that i think the earliest practical moment means at the time you know that it makes that the st time that the party has the opportunity what is not the earliest practical moment which clearly fails that requirement is if a party engages in pursuit rule maneuvering in order to obtain greater information or in order to generate an advantage for itself what kind of information information on the judge views regarding the case so that was obviously exactly what occurred in bowman when then judge over streets you know st handled the case lots of rulings the parties certainly knew his views on the case when it came back as a newly filed case again you know that was a reason to it wasn't clear at the time that's why it was certified but it became clear that that party was acting as she was for it to engage to gain a tactical advantage and that is inconsistent with the requirement that a party file a motion for properly that is one of the constraints on an absolute right an absolute right does not come into existence until a party has filed a motion properly now you asked how broad is testing the waters substantively the nd part of it is has the party by failing to move at the earliest practical moment by engaging in procedural moving excusing maneuvering has the party been able to discern the judge's use now in many cases that will be clear it's certainly very clear in this case because as my friend on the other side observed we have the transcripts we know exactly what was discussed and further we know that pillows did in gaijin a form of procedural maneuvering by generating a nd hearing through which it could obtain judge shelly's repeated views on the recommendation from the discovery master now if i could talk a little bit about how what was happening during those two hearings these hearings came on the heels of the recommendation by the discovery master retired judge sullivan that the palest be ordered to produce documents reflecting what rates palest expected to be paid by  pillows knew but hadn't yet revealed is that it had ordered destroyed all of the data held by g t a which came under the cover of that recommendation so the question of how judge shelley was going to handle judge  appointment and his recommendation was a critical significance to pale lips and i have to respectfully disagree with opposing counsel a lot more was discussed at those hearings at the st hearing  kalos argued against the substance of the recommendation it said the recommendation was wrong because it was asking for reconsideration of the former judge judge taylor's order on discovery judge sullivan who that judge shelley asked edge of and questions and mr cycle said yes so judge shelley asked those questions of judge sullivan and judge field and said this is not a recommendation excuse me reconsideration of judge taylor's ruling so the substance of the recommendation was discussed also the constitutional validity of the appointment was discussed and judge shelley did not merely observe that there was precedent she observed i'm inclined to have judges open stay involved with the proceedings his thoughts at that st hearing but that was the earliest practical moment and testing the waters it's not a trap it's not it's not designed to track parties that have no opportunity to move for substitution and its objections to judge holden's appointment the original plan was for both of those things to be briefed at once but palest filed the objections in one brief and then a separate motion on the appointment which gave rise to a present and hearing  parties returns to court in front of judge shelley and keep in mind this was before any ruling could have been entered on the recommendation they returned to court in front of judge shelley and counsel for palest again raised issues as to the content of the decisions of which she was aware ask her to let them know and once again she observed that there was precedent for the appointment was only after that that palest mood for substitution after it had gained through two hearings indication that judge shelley was likely to allow judge sullivan to remain part of the case and therefore likely to accept his recommendation which from paleness perspective was a ticking time bomb in light of the concealed  case there is no suggestion that the juror should be excused for cause just like there is no suggestion that judge shelley should have been substituted for cause the defendant argued that it was impossible to tell whether a different juror would have voted differently just like cayless argues that it's impossible to tell whether a different judge would have produced a different outcome but this court in rivera rejected that argument it held that if the record showed that no rational juror would have voted to acquit then the error was harmless if the case is extremely clear because we have the benefit of both the jury's unanimous verdict and the appellate court's you know in this affirmative the decision below we know that in the view of the st district and of course none of this is no rulings other than substitution have been appealed to this court so it's final we know that judge shelley did not commit any errors as to any of the other rulings so in that circumstance it really does not make sense to invalidate any of her rulings and i think to point this court in re a state of wilson so that case was about substitution for cause the majority concluded that the trial judge a trial judge had decided and denied a motion for substitution of cause of cause this court again just similar to hofmann similar to bowman reversed the appellate court and said we are not going to adopt an interpretation of the statute that would allow for this kind of abuse that would allow deficient motion for substitution for cause and bring the proceedings grinding to a halt well another to reviews that motion so this court said it was all right to deny the motion now in a concurrence justice freiman joined by chief justice burke disagreed with that ruling on the statute said that the trial judge shouldn't have decided whether the motion for such situation for cause was deficient but he concluded that reversal was not appropriate he concluded that the error was heartless because the motion was properly denied another judge would have denied it justice just the same so justice freiman would have  affirmed the circuit court on grounds of her melissa error and that same analysis applies here now palest has argued that if that analysis if a harmless error styled review is applied in this context that means the right will become unforeseeable i think which is sort of the flavor of the same question you're asking your honor well  a then that's harms here so you're not going to get a reversal in what you have to do then is prove actual prejudiced so what that does is really read out of the statute  a novelty and we know that the constitution says every right should have run body that that analysis just cannot stand where the legislature says you have an absolute right to take a change without having to say the reason for it it is a right that should be liberally construed according to this court's case law your honor i'd also like to just briefly address this issue with respect to the documents and i don't want to get very deep into it but i will say that we believe that the trial court heard when it's ancient a losin instructed the jury to take never say for instance we also believe that a new trial judge would conclude that nothing was lost and because it was only asked for its own sensitive patient data suggest that she got some of the chronology wrong and we're lucky here in most cases we're dealing with answers bystander reports but in this case because it was a large i dollar  case of the commercial call we had certified court reporters through the entire case and so we're not and strong by bystanders report we actually have the exact words that were said by the parties and the trial judge and both earrings and they're not warm i think it's maybe under a one thousand words total between the two and i think it makes sense to briefly walk through them and they could be found on in the record at age twenty five through forty four and fifty four through sixty two said judge the retired judge had made his recommendation and he even addressed that to judge taylor even address it to the judge shelley the case was called and as i mentioned the retired supreme court judge stepped up along with counsel of record the trial judge judge shelley indicated on the record she was not clear and i quote not clear in the counts remain and what purpose or soon paul she indicated that she had not reviewed she had reviewed the file quote unquote last night she stated that it would be very helpful quote unquote if the parties could give her a quick overview the point if went st in order that the presence or judge judge taylor had set up a procedure to object to the retired judge the court then ask to look at judge sullivan's recommendation does anyone have a problem with his recommendation even though of course i'm going to be very detrimental to the work of judge taylor has already done in this case so the report has been presented to the court do you have any comments this is on a thirty two now i don't know which thing that is proposing should should palest have said at this point judge we're not going to respond to your questions because we don't know if we need to take change that would be  inappropriate and this is a direct question from the court and in response to that all the palest said from this direct question was that judge taylor established a procedure for the objection to the report and appeals would like to file a written objection and pails counsel at that point advised that it would object on two grounds now this is not inconsistent with practice in certain order cook county just basically said that the objection would be under the civil predict the sec and that would judge sullivan it done was an improper reconsideration of judge taylor's orders and in response the trial judge said that she saw no need to deviate from the procedures they wished by judge taylor meaning the procedure to object to the report she does state  issued keep an open mind one of many times that the trial judge said that during the course of these proceedings a briefing schedule was set and was at that time that the retired circuit judge the circuit court judge whose appointment was alternately ruled unconstitutional and in response to that not in response to anything the counsel for painless itself judge shelley said my understanding is your involvement was this is the court to try to you know get through this discovery process and there is precedent that says a trial judge has that discretion as on a thirty six those thirty six words for the essentially the hook for saying that pill is lost its right to take substitution judge that statement has been the linchpin of this present of a motion to strike when motions are presented there is usually a thumbnail description of the basis of motion in response to that judge shelley again said that there is some precedent and she again said that she was keeping an open mind and the hearing concluded with her saying i'm looking forward to reading the papers and i'm looking forward to seeing what you have to say and then she often that leave with pails that's the extent of it your honor some precedent with respect to a purely procedural issue and that is the problem with what humana is proposing because their proposal is completely elastic and i submit your honor that they will not say what testing the waters is if you go through their briefs they start out and talk about testing the waters is relating to the merits and then they talk about it being a major issue in the case and then it changes  well at that point the judge had twice said there was some precedent counsel for bayless did say that and then the judge said at the conclusion of that your honor that again she reiterated that she would keep an open mind and that  she said the court will thank you counsel and again i'm not making any type of announcement at this point but when i hear this call i did notice this case and i did son just simply nourie view of it i was not shocked by the position that my predecessor took whatever th was presumably that could be the appointment of the special master but again i keep an open mind every view every case that you provide and even follow your argument and i'm interested in seeing your response to that and even if that was t y and under the it can't be testing because it doesn't go to a substantial issue in this case it doesn't go to the merits and that's the problem with what humanity is proposing because if you look through their briefs there if they the test becomes a very elastic is it a substantial issue is that the merits is that a critical issue they won't say what test is now of this court in people versus