defendant forfeited his right to claim there was no effective waiver of trial judge’s disqualification, by failing to pursue the matter until an unfavorable judgment was entered against him
How later courts described this case
- defendant forfeited his right to claim there was no effective waiver of trial judge’s disqualification, by failing to pursue the matter until an unfavorable judgment was entered against him
Written by the judges who cited it.
The opinion
JUSTICE HARRISON, also dissenting:
The circuit judge admitted that he represented the FDIC within seven years of the commencement of trial. Under the clear and unambiguous language of Rule 63(C)(1)(c) (113 Ill. 2d R. 63(C)(1)(c)), the judge could not sit on the case and was required to disqualify himself. (See Woods v. Durkin (1989), 183 Ill. App. 3d 870, 874 .) Although Rule 63(D) (113 Ill. 2d R. 63(D)) has a provision for remittal of disqualification, there is no dispute that the requirements of that provision were not satisfied here. O’Malley is therefore entitled to a new trial.
The majority denies this relief on the theory that O’Malley failed to exercise due diligence. Such a position is untenable as a matter of law. Under the system we have fashioned, the burden of insuring compliance with the rules governing disqualification lies with the judge, not the litigants. If a judge is disqualified under Rule 63(C)(1)(c), he must remove himself from the case. The matter is not discretionary, and does not depend on action by the parties. Judges are expected to recognize on their own when they should refrain from hearing a case. It could not be otherwise, for often the judge will be the only one in the courtroom who knows of the facts that disqualify him.
The terms of our disqualification rules are clear and absolute. Once disqualified, a judge remains disqualified unless the requirements of the remittal provision are satisfied. (See Woods, 183 Ill. App. 3d at 874 .) There are no exceptions, and the rule is not subject to waiver by oral agreement of counsel. (See Woods, 183 Ill. App. 3d at 875 .) If the judge wants to hear the case, it is up to him to obtain the necessary written agreement. (113 Ill. 2d R. 63(D).) The rule provides that he may ask the parties and their attorneys to consider waiver of disqualification. It does not obligate the parties or their attorneys to ask that he ask or to otherwise police his judicial responsibilities.
The majority’s position must also fail on the facts. O’Malley could not have pursued the matter of disqualification sooner because he did not know about it. As the appellate court noted, O’Malley was not in court when the judge disclosed his representation of the FDIC, and O’Malley’s attorney never discussed waiver of any conflict of interest with him. (249 Ill. App. 3d at 361.) That O’Malley’s attorney knew of the judge’s connection to the opposing party is of no consequence. Under the express terms of Rule 63(D), agreement of counsel is insufficient. The parties themselves must agree to remittal of the disqualification in order for it to be effective. O’Malley did not so agree. The circuit judge was therefore prohibited from hearing the case. Accordingly, I dissent.