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02/11/88 the People of the State of v. Deborah Ann Walker

February 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

DEBORAH ANN WALKER, APPELLANT



Rule 21(b) gives effect to article VI, section 7(c), of our constitution (Ill. Const. 1970, art. VI, § 7(c)), which vests general administrative authority in the chief Judge of each circuit, subject to the authority of this court. Rule 21(b) accords the chief Judge the authority to enter general orders for the assignment of Judges free from express legislative limitation. (People v. Joseph (1986), 113 Ill. 2d 36, 46.) At issue in Joseph was the constitutionality of section 122-8 of the Post-Conviction Hearing Act (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-8), which required that all post-conviction petitions be assigned to a circuit Judge other than the one who presided at trial. We held that section 122-8 directly conflicted with a chief Judge's authority under Rule 21(b) to enter general orders assigning judicial duties because it precluded, in all post-conviction proceedings, assignment to an entire class of circuit Judges.

SUPREME COURT OF ILLINOIS

519 N.E.2d 890, 119 Ill. 2d 465, 116 Ill. Dec. 675 1988.IL.211

Appeal from the Circuit Court of Champaign County, the Hon. Robert J. Steigmann, Judge, presiding.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court. JUSTICE WARD, specially Concurring. JUSTICE MILLER, also specially Concurring. JUSTICE SIMON joins in this special concurrence.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

For the past 114 years, Illinois law has protected the constitutional right to a fair and impartial trial in criminal cases by providing for the substitution of a Judge who is allegedly prejudiced against a defendant. (See Ill. Rev. Stat. 1874, ch. 146, pars. 18 through 21.) Although the procedure for invoking the protections of the automatic-substitution-of-Judge statute has varied over time, the prophylactic purpose of the statute has remained the same: this court has consistently held that the statute vests criminal defendants with the "absolute right" to have an assigned trial Judge substituted upon a timely written motion containing a good-faith allegation that the Judge is prejudiced. (See People v. Peter (1973), 55 Ill. 2d 443, 458; People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 506; People v. Moore (1962), 26 Ill. 2d 236, 237.) The vigor with which this court has upheld the basic constitutional right to a trial before a fair and impartial Judge is reflected in this court's long held view that the provisions of the automatic-substitution-of-Judge statute should be construed liberally "to promote rather than defeat" substitution, and its willingness to find reversible error where the statute is not so construed. See, e.g., People v. Smith (1963), 28 Ill. 2d 445, 447; People v. Mosley (1962), 24 Ill. 2d 565, 570; People v. Dieckman (1949), 404 Ill. 161, 164.

The issue in this appeal is whether section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114-5(a)), a part of the current substitution-of-Judge statute, violates the separation of powers clause of the 1970 Constitution (Ill. Const. 1970, art. II, § 1).

The defendant, Deborah Ann Walker, was charged by indictment in the circuit court of Champaign County with one count of battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3) and one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(6)) on June 19, 1986. At her arraignment on June 24, 1986, the defendant entered a plea of not guilty and was advised by the arraigning Judge that the bailiff had randomly assigned her case to the trial calendar of circuit Judge Robert J. Steigmann. On June 27, three days after arraignment, the defendant filed a timely motion for substitution of Judge pursuant to section 114-5(a). Section 114-5(a) provides:

"Within 10 days after a cause involving only one defendant has been placed on the trial call of a Judge the defendant may move the court in writing for a substitution of that Judge on the ground that such Judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another Judge not named in the motion. The defendant may name only one Judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two Judges as prejudiced." Ill. Rev. Stat. 1985, ch. 38, par. 114-5(a).

In compliance with section 114 -- 5(a), the defendant alleged in her motion that Judge Steigmann was prejudiced against her and that she believed that she would not receive a fair and impartial trial before him. On July 29, the State's Attorney for Champaign County filed an objection to the defendant's motion for substitution of Judge and a countermotion requesting that section 114 -- 5(a) be declared "an unconstitutional infringement upon the inherent powers of the judiciary." The State's Attorney did not then, and does not now, dispute the good faith of defendant's allegation of prejudice or her fear that she would not receive a fair trial before the assigned circuit Judge.

Following a hearing on the defendant's motion for substitution of Judge and the State's Attorney's objection and countermotion, the circuit Judge, in a written order, ruled section 114 -- 5(a) unconstitutional as an undue infringement on judicial administrative authority. Drawing upon his personal experience of hearing criminal cases for over nine years, the circuit Judge stated that the section 114 -- 5(a) motion had become a motion for substitution of Judge "not for prejudice, but for preference." (Emphasis in original.) As an example, the Judge took "judicial notice" of his experience in presiding over criminal cases while on temporary assignment in Cook County. According to the Judge, after he would grant a section 114 -- 5(a) motion for substitution of Judge, defense counsel would often reveal that the basis for the motion was that the Judge usually sat downstate.

We allowed the defendant's motion for leave to appeal as a matter of right (107 Ill. 2d R. 603). It should be noted that after leave to appeal was granted, we allowed the Attorney General to file a 25-page amicus brief urging the court to reverse the circuit court's ruling that found section 114 -- 5(a) unconstitutional. The Attorney General has thus asked, albeit in not as blunt language, that we hold contrary to the State's Attorney's position on appeal. We allowed the Illinois Attorneys for Criminal Justice to also file an amicus brief in support of the defendant's position on appeal.

The separation of powers clause of the Illinois Constitution provides: "The legislative, executive and judicial branches are separate. No branch shall exercise powers belonging to another." (Ill. Const. 1970, art. II, ยง 1.) Our constitution does not attempt to define legislative, executive and judicial power, it being neither practicable nor possible to enumerate the myriad powers of government and to declare that a given power belongs exclusively to one branch for all time. In both theory and practice, the purpose of the provision is to ensure that the whole power of two or more branches of government ...


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