The opinion
2018 IL App (2d) 180247
No. 2-18-0247
Opinion filed September 14, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
ANTHONY D. PERADOTTI, ) of Lake County.
)
Petitioner-Appellant, )
) No. 15-D-2077
and )
) Honorable
MICHELE PERADOTTI, ) Joseph V. Salvi and
) Diane E. Winter,
Respondent-Appellee. ) Judges, Presiding.
________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices McLaren and Spence concurred in the judgment and opinion.
OPINION
¶1 In the course of this dissolution proceeding, petitioner, Anthony D. Peradotti, brought a
petition to substitute the Honorable Joseph V. Salvi out of the case for cause. The Honorable
Diane E. Winter heard and denied the petition. Judge Salvi proceeded to adjudicate the action
and issue a dissolution judgment. We agree with petitioner that Judge Winter erred in denying
the petition for substitution. Consequently, we reverse the denial of the petition, vacate the
dissolution judgment, and remand for the assignment of the case to a different judge.
¶2 I. BACKGROUND
¶3 Under Illinois Supreme Court Rule 311(a)(5) (eff. July 1, 2018), the appellate court must,
unless good cause is shown, issue its decision in a subject accelerated appeal within 150 days
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from the filing of the notice of appeal. Under that timetable, our decision was due August 30,
2018, but good cause exists for not meeting the deadline, due to the extensions of time we
granted the parties to file their briefs. The extensions totaled 60 days.
¶4 Petitioner filed his dissolution petition in November 2015. That same month, an
appearance was entered for respondent, Michele Peradotti, by the law firm of Beermann Pritikin
Mirabelli Swerdlove LLP (the Beermann firm). The case was originally assigned to the
Honorable Christopher B. Morozin and later reassigned to Judge Salvi.
¶5 On March 3, 2017, petitioner filed, pursuant to section 2-1001(a)(3) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1001(a)(3) (West 2016)), a petition to substitute Judge Salvi
out of the case for cause. Petitioner supported the petition with the affidavit of attorney Jeffrey
S. Braiman. In his allegations, petitioner recounted how Judge Salvi had recused himself from
the case based on his nephew’s employment as an associate with the Beermann firm, and how
Judge Salvi later rescinded the recusal and placed himself back on the case. Specifically,
petitioner alleged:
“7. The Honorable Joseph Salvi, an experienced trial judge, known and respected
for his integrity, legal knowledge, honesty and dedication to the law, having previously
been in a private practice for many years in addition to his approximately five years on
the bench as an Associate Judge for the County of Lake[,] is assigned to the dissolution
proceeding.
8. The Salvi family is well known throughout the County of Lake and the State of
Illinois and most likely nationally for their dedication of the law. Multiple family
members are lawyers.
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9. Judge Salvi’s wife is a practicing attorney in Lake County specializing in
various areas of law one of which [is] matrimonial law, specifically representation of
clients in divorce and representing children as a guardian ad litem and child
representative.
10. Judge Salvi has a sister who is a practicing attorney in Lake County. She is
married to a practicing attorney in the County of Lake. This specific brother in law is the
former law partner of Judge Salvi for many years, having a successful law practice
located in Lake Zurich, Illinois prior to being appointed as an associate judge in Lake
County.
11. Her husband, Judge Salvi’s brother-in-law and former law partner also
specializes [in] family law and practices in the family law courts in Lake County.
12. Judge Salvi’s sister specializes in a few different areas of the law, one of
which is matrimonial law, specifically representation of clients in divorce and
representing children as a guardian ad litem and child representative.
13. It is well known in the County of Lake that these family members do not
practice in front of Judge Salvi as Judge Salvi has recused himself from cases involving
his family members.
14. This particular sister and brother-in-law of Judge Salvi, have a son who is also
a practicing lawyer in Lake County, specifically practicing in the field of matrimonial
law.
15. Judge Salvi’s nephew is within the third degree of relationships as
contemplated in [Illinois]Supreme Court Rule 63(C)(1)(e) [(eff. Feb. 2, 2017)]. He is a
second degree relative.
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16. Their son, Judge Salvi’s nephew, began his legal career at a firm called
Ventrelli/Simon from approximately 2015 to approximately January of 2017.
Ventrelli/Simon is a matrimonial law firm that practices in Lake County. During the time
that he practiced family law with Ventrelli/Simon, it was well known to the legal
community that Judge Salvi generally did not allow his nephew or his nephew’s firm to
appear in front of him during the years of 2015, 2016 and the beginning of 2017.
17. On or about January of 2017, Judge Salvi’s nephew left the firm of
Ventrelli/Simon and advanced his career as an associate with [the Beermann firm].
18. This firm represents [respondent]. They also represent [respondent] in post-
decree litigation in Cook County from a previous divorce and at the Appellate level in the
1st District Appellate Court of Illinois.
19. On February 10, 2017, in open court, Judge Salvi disclosed to all parties that
his nephew was now working at [the Beermann firm] and he recused himself; entering an
order assigning the case to the Honorable Elizabeth Rochford.
20. Thereafter, counsel for [respondent] objected and asked Judge Salvi orally to
review the law and reconsider recusing himself in this case (there is no legal basis for an
attorney’s objection to a Judge’s discretionary decision of recusal). [Petitioner’s] former
attorney objected to the ‘objection’. See affidavit from Attorney Jeffrey S. Braiman
attached and incorporated by reference into this petition as Exhibit A.
21. Twelve (12) days later, on February 22, 2017, the matter came before the
court for pretrial. New counsel for [petitioner], David R. Del Re, brought up the issue of
the conflict and recusal and at that point, Judge Salvi said (not verbatim), I have
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researched the law, I have spoken with our Chief Judge and I am not obligated to recuse
myself and I am not recusing myself.”
In his affidavit, Braiman averred that (1) he was petitioner’s former counsel; (2) he “was present
in court in February 10, 2017 wherein Judge Salvi disclosed to all parties the nature of the
conflict and recused himself and entered an order assigning the case to the Honorable Elizabeth
Rochford”; and (3) “[t]hereafter, counsel for [respondent] asked Judge Salvi orally to review the
law and reconsider,” to which Braiman objected.
¶6 Petitioner argued that Judge Salvi’s impartiality in the case was questionable due to his
departure from his “long-standing history of *** recusing himself when cases involving his
nephew’s firm appear before his bench.” Also, by rescinding his recusal, Judge Salvi raised
“serious, legitimate, objective and reasonable concerns that in the twelve days between February
10, 2017 and February 22, 2017, somehow, someway, some outside influence changed the
inherent, innate, intimate and independent recusal made by Judge Salvi.”
¶7 The record contains no report of proceedings of any hearing on February 10 or 22, 2017,
or any order of recusal or reinstatement by Judge Salvi. However, respondent, in her written
response to the petition, and at the hearing on the petition, agreed to the essential facts alleged by
petitioner, as we elaborate below. Infra ¶ 18.
¶8 Respondent attached to her response documents from the Beermann firm purporting to
show that Judge Salvi’s nephew—identified for the first time in the case as Charles Wifler—was
screened from involvement in the parties’ dissolution action.
¶9 The petition was assigned to Judge Winter for decision. At the hearing, the parties
disagreed over whether Judge Salvi actually entered an order of recusal on February 10, 2017,
but they agreed that Judge Salvi did indeed transfer the case to Judge Rochford on February 10.
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According to respondent, no order of recusal was entered or even drafted, but according to
petitioner, a recusal order was entered and later removed from the court file. We note that the
circuit court electronic docket entry for February 10 reflects that no order was entered on that
date.
¶ 10 At the hearing, petitioner reiterated the arguments in his petition and also presented two
new arguments. First, petitioner claimed that it was improper for respondent’s counsel to ask
Judge Salvi to reconsider his decision to recuse, as counsel challenged “Judge Salvi’s inherent
right to use his discretion and recuse himself.” Second, petitioner claimed that Judge Salvi, once
recused, had no authority to continue in the case, even to reconsider the recusal:
“Once that order is entered, which it was signed, how does Judge Salvi have the ability to
then vitiate that order? How does he now, when he has recused himself and it is
assigned to a new judge, have the jurisdiction to say, okay, on your oral motion, counsel,
I am going to rip up that order because that’s what happened?”
¶ 11 Judge Winter found “problematic” the absence of a recusal order in the court file:
“[Y]ou can’t take back something that has already been done. Everything needs to be in
the record. *** [T]he order, if it was, in fact, entered, should be in the file even if it is
vacated later so there is a good record of what has happened in a case.”
¶ 12 Judge Winter proceeded to deny the petition for substitution. She found that petitioner
failed to meet the “actual prejudice” standard of In re Marriage of O’Brien, 2011 IL 109039,
¶ 31.
¶ 13 Judge Salvi presided over the case through trial. In December 2017, he issued a
judgment dissolving the parties’ marriage and addressing such matters as parenting time and
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property distribution. Petitioner filed a motion to reconsider, which was denied. Petitioner then
filed this timely appeal.
¶ 14 II. ANALYSIS
¶ 15 On appeal, petitioner challenges (1) Judge Winter’s denial of petitioner’s petition for
substitution of Judge Salvi for cause; and (2) the substance of the dissolution judgment later
entered by Judge Salvi. For the following reasons, we agree that the denial of the petition was
erroneous.
¶ 16 The trial court’s decision on a petition for substitution for cause will not be disturbed on
appeal unless it is against the manifest weight of the evidence. Levaccare v. Levaccare, 376 Ill.
App. 3d 503, 509 (2007). Petitioner presents two main reasons why the denial of his substitution
petition was erroneous. First, he claims that Judge Winter, in deciding the petition, misapplied
O’Brien by determining whether Judge Salvi was actually prejudiced against him rather than
merely potentially prejudiced. Second, petitioner argues that, once Judge Salvi recused himself,
he lost authority over the case and could be reinstated only through a remittal from the parties
pursuant to Illinois Supreme Court Rule 63(D) (eff. Feb. 2, 2017), which Judge Salvi never
obtained. We agree with the second point and therefore need not address the first one.
¶ 17 Before proceeding with our analysis, we recognize that the record contains no report of
proceedings, or orders, in which Judge Salvi recused or reinstated himself. Based on this
omission, respondent claims that the record is inadequate to support petitioner’s contentions.
Regarding Braiman’s affidavit describing what occurred on February 10, 2017, respondent cites
authority stating that “[a]n attorney’s affidavit cannot be used to supplement the record in lieu of
a transcript or a bystander’s report” (Landau & Associates, P.C. v. Kennedy, 262 Ill. App. 3d 89,
91 (1994)). Respondent also denies that she admitted the facts alleged in the petition for
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substitution. According to respondent, she attacked the sufficiency of petitioner’s allegations
without admitting them. This is not quite true. For instance, if respondent was taking no
position on whether or why Judge Salvi recused himself, why would she produce documentation
from the Beermann firm trying to establish that Wifler had no involvement in the case?
¶ 18 Regardless of whether respondent made factual concessions in her written response, her
counsel agreed at the hearing to the essential allegations of the substitution petition. We note
particularly these comments by respondent’s counsel:
“[I]t is not relevant what was in Judge Salvi’s mind when he concluded I am not recusing
myself. This is not something I feel I have to do. He made that decision.
*** [T]his was a matter of weeks after [Wifler] joined the firm and he says I have
to recuse myself because I have always done that. First of all, that is not any kind of
precedential standard. Maybe why he did that and, again, we are all sitting here
speculating as to what is in Judge Salvi’s mind, which I don’t think is appropriate under
the law, but the fact of the matter is [petitioner’s counsel] says what’s the difference
between [the Beermann firm] and Simon and Ventrelli [(Wifler’s former firm)]. There is
a big difference.
***
No order was entered. The docket says that. Judge Salvi came back. And when
we re-approached, he had gone through an analysis. He articulated, and I agree with
[petitioner’s counsel’s] assessment of that, and we are paraphrasing. Essentially he said I
talked to Judge Ortiz. I looked at this. I researched it. He probably looked at Rule 63
and said do I really have to do this[?]
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*** Once he comes out and says I have done that, I have done my Rule 63
analysis, I do not believe there is a conflict, I am not recusing myself, [petitioner] has the
right to come in and ask your Honor to still disqualify Judge Salvi for cause. ***”
Later, counsel argued:
“[I]n that moment, without really walking himself through this [Judge Salvi] said, well, I
have always done this with Simon and Ventrelli, it is a different circumstance. Let me
talk to Judge Ortiz. Let me actually look at Rule 63. Let me do that analysis. Let me, in
effect, go through and walk through all of the facts and circumstances of these issues.
He has done that. He has done that. He has the right to do that. Whether or not
there was an order, the record reflects there wasn’t. If his knee jerk response was, you
know, I have to recuse myself because I always did it when [Wifler] was with Simon and
Ventrelli, but wait a minute, [respondent’s counsel] steps up and says, Judge, as a matter
of law, we don’t think you have to do that. He says, well, let me take it under
advisement. He goes back. And like [petitioner’s counsel] said, 10 days later, 12 days
later, whatever, we come back. He has done his analysis.”
In the foregoing argument, respondent’s counsel agreed that (1) Judge Salvi announced in court
that he was recusing himself because Wifler was employed with the Beermann firm; (2) when
Judge Salvi announced his recusal, respondent’s counsel asked him to reconsider; and (3) several
days later, Judge Salvi announced in court that he had consulted with Judge Ortiz, the chief
judge, and decided to rescind the recusal.
¶ 19 Having determined the agreed facts, we proceed to state the applicable law. Subsection
(C)(1) of Rule 63 states that “[a] judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned, including but not limited to” the
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situations specified in the subsection. Ill. S. Ct. R. 63(c)(1) (eff. Feb. 2, 2017). Subsection
(C)(1)(e)(ii) of Rule 63 describes a situation corresponding to the facts here, namely where “the
judge ***, or a person within the third degree of relationship to [him] *** is acting as a lawyer in
the proceeding.” Ill. S. Ct. R. 63(C)(1)(e)(ii) (eff. Feb. 2, 2017). A niece or nephew of a judge is
a person within the “third degree of relationship.” Ill. S. Ct. Code of Judicial Conduct,
terminology. Subsection (D) of Rule 63 specifies a remittal process by which the parties may
waive disqualification:
“D. Remittal of Disqualification
A judge disqualified by the terms of Section 3C may disclose on the record the
basis of the judge’s disqualification and may ask the parties and their lawyers to consider,
out of the presence of the judge, whether to waive disqualification. If following
disclosure of any basis for disqualification other than personal bias or prejudice
concerning a party, the parties and lawyers, without participation by the judge, all agree
that the judge should not be disqualified, and the judge is then willing to participate, the
judge may participate in the proceeding. This agreement shall be incorporated in the
record of the proceeding.” Ill. S. Ct. R. 63(D) (eff. Feb. 2, 2017).
There is nothing in the record to suggest that the parties waived disqualification with respect to
Wifler’s employment with the Beermann firm.
¶ 20 The issue at hand is whether Illinois law permits a recused judge to reinstate himself to a
case absent a Rule 63(D) remittal. Respondent claims that People v. Kirkpatrick, 240 Ill. App.
3d 401 (1992), “squarely addressed” this issue. We read that case differently. The trial judge in
Kirkpatrick did rescind his recusal, and the defendant did claim on appeal that the judge lacked
the authority to reinstate himself regardless of whether the recusal was warranted, but the
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appellate court summarily rejected that claim because the defendant cited no authority for it. Id.
at 406. Kirkpatrick provides no guidance here.
¶ 21 More helpful is Brzowski v. Brzowski, 2014 IL App (3d) 130404, cited by petitioner.
Brzowski was a marriage-dissolution proceeding in which Judge Kennison issued an order of
protection against the respondent. The respondent filed a motion to dismiss the entire
proceeding, but before the motion was heard, Judge Kennison recused herself. The record did
not indicate the basis for the recusal. Judge Baron reassigned the case to Judge Anderson, who
struck the respondent’s motion to dismiss. The respondent subsequently filed a petition for
substitution, alleging that Judge Anderson was biased against him. Judge Baron ultimately
assigned the case back to Judge Kennison, who granted the petitioner’s motion to extend the
order of protection. Judge Kennison did not obtain a Rule 63(D) remittal from the parties before
she was reinstated to the case. Id. ¶¶ 8-12, 20.
¶ 22 On appeal, the respondent argued that the order extending the order of protection was
invalid because Judge Kennison had, by recusing herself, relinquished authority over the case in
the absence of a Rule 63(D) remittal. The appellate court considered the issue “novel” because it
found no “reported Illinois case specifically addressing the validity of an order entered by a
judge who had previously recused herself.” Id. ¶¶ 17, 19. The court found guidance in cases
addressing what power remains with a judge once he is substituted out of a case for cause under
section 2-1001(a)(3) of the Code. Id. ¶ 19. The court specifically mentioned In re Estate of
Wilson, 238 Ill. 2d 519 (2010), and In re Petition of C.M.A., 306 Ill. App. 3d 1061 (1999).
¶ 23 C.M.A. was an adoption proceeding in which the petitioners brought a petition under
section 1001(a)(3) of the Code to substitute Judge McDunn out of the case for cause. Judge
Barth heard the petition, granted it, and reassigned the matter to himself. Later, Judge McDunn
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entered orders sua sponte declaring that Judge Barth lacked jurisdiction to decide the petition and
that his orders in the case were void. Judge McDunn also made a substantive finding about the
sufficiency of the evidence on the underlying issues in the case. C.M.A., 306 Ill. App. 3d at
1065-66. On appeal, the petitioners argued that Judge McDunn had no authority to enter orders
after she was removed from the case. In beginning its analysis, the appellate court stated the
following principles:
“Illinois law firmly establishes that once a motion for substitution of judge for
cause is brought, that judge loses all power and authority over the case, and any orders
entered after a judge’s removal or after an improper denial of such motion are of no force
or effect. [Citations.] Thus, a judge who had been removed from a case for cause has no
jurisdiction to enter enforceable orders in that case. Any attempt by the removed judge to
rule in such a matter is futile, rendering void all orders entered by that judge after
substitution for cause.” Id. at 1067.
The court agreed with the petitioners that Judge McDunn was properly removed for cause and
that, therefore, her subsequent orders in the case were invalid. Id. at 1069.
¶ 24 The issue in Wilson was whether a judge who is the subject of a petition for substitution
for cause can determine whether the petition meets certain threshold procedural and substantive
requirements before passing it to another judge for a determination on the merits. Wilson, 238
Ill. 2d at 522. In holding that the challenged judge can make that threshold determination, the
court commented that any judge assessing a for-cause substitution petition will have a “powerful
incentive to err on the side of caution” because, if a judge “den[ies] a petition for substitution
under circumstances where the appellate court subsequently determines that the [request] should
have been allowed, all of [the challenged judge’s] subsequent rulings in the case will be
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invalidated.” Id. at 568. For this proposition, the court cited Curtis v. Lofy, 394 Ill. App. 3d 170
(2009), which held (like C.M.A.) that “ ‘[o]rders entered after a motion for substitution of judge
has been improperly denied are void.’ ” (id. at 176 (quoting Illinois Licensed Beverage Ass’n v.
Advanta Leasing Services, 333 Ill. App. 3d 927, 932 (2002))).
¶ 25 The Brzowski court interpreted Wilson and C.M.A. as holding “that when a judge has
been substituted for cause, the disqualified judge cannot enter any further orders in the case.”
Brzowski, 2014 IL App (3d) 130404, ¶ 19. The court recognized that, per O’Brien, “recusal and
substitution for cause are not the same thing” (O’Brien, 2011 IL 109039, ¶ 45), but it maintained
that, for purposes of its analysis, “the power of a judge who has been substituted for cause is
similar to the power of a judge who has voluntarily recused herself” (Brzowski, 2014 IL App
(3d) 130404, ¶ 19 n.1).
¶ 26 The court also found support in foreign authority, noting that “it is a generally accepted
rule in both state and federal courts that once a judge recuses, that judge should have no further
involvement in the case outside of certain ministerial acts.” Id. ¶ 19. The court cited a federal
case, Moody v. Simmons, 858 F.2d 137 (3d Cir. 1988), and a law review note collecting cases on
the issue (S. Matthew Cook, Note, Extending the Due Process Clause to Prevent a Previously
Recused Judge from Later Attempting to Affect the Case from Which He Was Recused, 1997
B.Y.U. L. Rev. 423 (1997)).
¶ 27 Based on these authorities, the Brzowski court concluded that, “when a judge is
disqualified in a case, either by recusal or through a petition for substitution, that judge cannot
enter any further orders in the matter.” Brzowski, 2014 IL App (3d) 130404, ¶ 19. Specifically,
the disqualified judge has no power to enter “substantive orders” in the case but may take only
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“ministerial action.” Id. ¶ 20. As there was no Rule 63(D) remittal in the record, the court
vacated Judge Kennison’s order extending the order of protection. Id.
¶ 28 Like the Brzowski court, we see no difference between the effects of a disqualification for
cause under section 2-1001(a)(3) of the Code and the effects of a Rule 63 recusal. There is, in
turn, no ground for distinguishing between the effects of a disqualification for cause and the
effects of other types of disqualification for which section 2-1001 provides, namely
disqualification because of the judge’s involvement in the case (735 ILCS 5/2-1001(a)(1) (West
2016)) and disqualification as of right (id. § 2-1001(a)(2)). As to what powers, if any, are
retained by a judge who is disqualified under section 2-1001 or recused under Rule 63, cases like
Wilson, C.M.A., and Cofy seem to imply that a judge who was (or should have been) disqualified
for cause may make no further orders at all. However, other cases on statutory judicial
substitution, civil or criminal (see 725 ILCS 5/114-5(a) (West 2016)), hold that a disqualified
judge retains the power to perform ministerial functions (see People ex rel. Walker v. Pate, 53
Ill. 2d 485, 505 (1973)), such as entering orders necessary to transfer the matter to another judge
(see Hoffman v. Hoffman, 40 Ill. 2d 344, 347-48 (1968); People v. Bell, 276 Ill. App. 3d 939,
946-47 (1995)). While Brzowski could have cited these decisions, it cited only a federal
decision, Moody, in holding that a disqualified judge loses the power to enter “substantive
orders” in the case. Brzowski, 2014 IL App (3d) 130404, ¶¶ 19-20.
¶ 29 From the foregoing authorities we derive the rule that a recused or otherwise disqualified
judge has no power to enter further substantive orders in the case, absent—where applicable—a
Rule 63(D) remittal.
¶ 30 Whether a disqualification is subject to reconsideration depends on the source of the
disqualification. A recused judge cannot reconsider his recusal, for that would itself be a
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substantive decision in excess of the residual powers of a recused judge. As the Brzowski court
noted, both federal and state courts are divided on whether a recused judge may rescind his
recusal. Compare Doddy v. Oxy USA, Inc., 101 F.3d 448, 457-58 (5th Cir. 1996) (rule that
“judges can do nothing after recusal other than transfer their case to another judge” precludes a
recused judge from vacating his recusal), and El Fenix de Puerto Rico v. M/Y JOHANNY, 36
F.3d 136, 142 (1st Cir. 1994) (a judge’s vacatur of his recusal “runs afoul of the general rule that
the recused judge should take no further action except to enable administrative reassignment of
the case”), with United States v. Lauersen, 345 F.3d 329, 338 (2d Cir. 2003) (“There is no reason
to prohibit a judge from reconsidering a recusal decision, at least in the absence of transfer of the
case to another judge.”); compare Luce v. Cushing, 2004 VT 117, ¶ 16, 177 Vt. 600, 868 A.2d
672 (collecting cases and siding with those holding that “a judge may rescind a recusal where
valid grounds appear on the record”), with Kells v. Davidson, 136 So. 450, 451 (Fla. 1931) (“It
would be an unwise provision of law which would contemplate that, when a judge is once
disqualified [(by recusal)] in a cause, the reason for his disqualification could be removed from
the record, and thereupon such judge would become qualified to proceed with the disposition of
the cause and act as though he had never been disqualified.”); see W.W. Allen, Annotation,
Disqualification of Judge in Pending Case as Subject to Revocation or Removal, 162 A.L.R. 641
(1946). In Illinois, the issue appears settled by the rule in Wilson and C.M.A., as extended to
recusals.
¶ 31 In contrast to a recusal, a for-cause disqualification is indeed subject to reconsideration.
The difference is that a petition seeking a for-cause disqualification is decided by a different
judge from the one named in the petition. See 735 ILCS 5/2-1001(a)(3)(iii) (West 2016). “The
fact that a second judge will examine the for-cause allegations allows for an independent, neutral
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assessment of the allegations against the challenged judge ***.” O’Brien, 2011 IL 109039, ¶ 46.
Reconsideration of a for-cause disqualification is not a substantive decision by the disqualified
judge himself, though it could lead to reinstatement of that judge’s authority to enter substantive
decisions in the case.
¶ 32 While the well-established rule of Wilson and C.M.A. hardly needs justification at this
point, we note that sound policy exists for barring a judge from reconsidering his recusal. First,
we note the extent to which a decision on recusal is insulated from independent review.
“Whether a judge should recuse himself is a decision in Illinois that rests exclusively within the
determination of the individual judge, pursuant to the canons of judicial ethics found in the
Judicial Code.” (Emphasis in original.) Id. ¶ 45. “The Judicial Code, which is a part of our
rules, says nothing that would give the impression that its provisions could be used by a party or
his lawyer as a means to force a judge to recuse himself, once the judge does not do so on his
own.” Id. Rather, a party who wishes to compel a judge’s removal from a civil case must use
section 2-1001 of the Code. Id. ¶ 46; see also In re S.D., 2011 IL App (3d) 110184, ¶¶ 25-26
(“Although attorneys may make the court aware of certain factors that could potentially require
the trial judge to contemplate recusal, a party cannot compel a judge to step aside by ‘moving’
for recusal. If the parties are not satisfied with the court’s ruling on an informal request for
recusal, the parties may then file a motion for substitution under section 2-1001(a)(3) of [the
Code] with the required affidavits in order to compel substitution in certain situations.”). Thus,
there is no independent review of a judge’s refusal to recuse himself under Rule 63.
¶ 33 Moreover, if the personal nature of a recusal decision precludes independent review of a
refusal to recuse, then it would seem also to bar review of a recusal itself. In fact, Rule 63 does
not even require a judge to disclose the basis for his recusal, unless he chooses to offer the
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parties the option of a remittal. See Ill. S. Ct. R. 63(D) (eff. Feb. 2, 2017) (“A judge disqualified
by the terms of Section 3C may disclose on the record the basis of the judge’s disqualification
and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to
waive disqualification.” (Emphases added.)); Hassebrock v. Deep Rock Energy Corp., 2015 IL
App (5th) 140105, ¶ 51 (“Rule 63 does not mandate that a trial court state its reason for recusal
on the record or in its recusal order, unless the court seeks a waiver of its disqualification.”). 1
¶ 34 The personal nature of a recusal militates not only against independent review but also,
perhaps ironically, against reconsideration by the judge himself. The criterion for recusal under
Rule 63(C)(1) is whether the judge’s impartiality might reasonably be questioned. This includes,
but is not limited to, situations involving the appearance of impropriety. O’Brien, 2011 IL
109039, ¶ 43. Factoring into the recusal decision of a conscientious judge (which all are
presumed to be) is not only the judge’s concern for appearances but also his subjective
assessment of his attitudes and whether they will allow impartiality in that case. Appearances
can be assessed by others; the subjective component cannot. When a judge recuses himself but
then changes his mind, he might leave himself open to the charge that he is, at best, uncertain, or,
at worst, dishonest, about his ability to remain impartial. While some recusals might be based on
sheer mistakes of fact, a bright-line rule is the best policy, and indeed the rule in Wilson and
C.M.A. does not permit exceptions for disqualified judges to make substantive rulings.
¶ 35 In the present case, once Judge Salvi recused himself, he lost all authority to decide
substantive matters, including—most notably—whether he should have recused himself after all.
There being no Rule 63(D) remittal in the record, Judge Salvi was without authority to reinstate
1
Judge Winter did not apply Rule 63 in determining whether Judge Salvi should remain
on the case—nor, as our analysis demonstrates, did she have the authority to apply it.
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2018 IL App (2d) 180247
himself to the case. Judge Winter, therefore, erred in denying the petition for substitution of
Judge Salvi.
¶ 36 III. CONCLUSION
¶ 37 For the foregoing reasons, we reverse the denial of petitioner’s petition for substitution of
Judge Salvi. We also vacate all substantive rulings following Judge Salvi’s recusal, including
the dissolution judgment, and remand this case for reassignment to another trial judge for
disposition.
¶ 38 Vacated and reversed.
¶ 39 Cause remanded with directions.
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