Can the State's Attorney File a Motion to Substitute a Judge ?
In People ex rel. Baricevic v. Wharton, 136 Ill. 2d 423, 556 N.E.2d 253, 144 Ill. Dec. 786 (1990), the petitioner, State's Attorney John Baricevic, filed motions for substitution of judge in six criminal cases over which the same judge, the respondent Judge Wharton, had been presiding. Baricevic, 136 Ill. 2d at 428.
Judge Wharton determined that Baricevic "was using the motions in an attempt to cause the chief judge of the circuit court to remove the respondent from the felony docket of the circuit court." Baricevic, 136 Ill. 2d at 429.
Judge Wharton then concluded that Baricevic's actions violated the separation of powers clause of the Illinois Constitution, and denied the motions. Baricevic, 136 Ill. 2d at 429.
On appeal, the supreme court stated that the "'"real thrust of the separation of powers philosophy is that each department of government must be kept free from the control or coercive influence of the other departments."'" Baricevic, 136 Ill. 2d at 432, quoting City of Waukegan v. Pollution Control Board, 57 Ill. 2d 170, 175, 311 N.E.2d 146 (1974), quoting 1 F. Cooper, State Administrative Law 16 (1965).
The Baricevic court further held that when "members of the legislative or executive branch unduly interfere" with the court's judicial power, the court had a duty to preserve its independence. Baricevic, 136 Ill. 2d at 432.
The court noted that State's Attorney Baricevic admitted that, prior to filing his motions to substitute Judge Wharton, he had contacted the chief judge of the circuit court and requested that Judge Wharton be reassigned. Baricevic, 136 Ill. 2d at 434.
In addition, the chief judge of the circuit court informed Judge Wharton that he would no longer assign any new felony cases to Judge Wharton because Baricevic indicated that he would continue substituting Judge Wharton in felony matters. Baricevic, 136 Ill. 2d at 434-35.
The court stated that these facts "suggest that the State's Attorney (who, in acting as prosecutor, was acting as a member of the executive branch) used the substitution of judge statute as a coercive tool to thwart the chief judge's independent exercise of his assignment authority," which "poses a substantial threat to the dignity and independence of the judiciary." Baricevic, 136 Ill. 2d at 435.
The court then denied the State's Attorney's motion for a supervisory order to direct Judge Wharton to grant the motions for substitution of judge. Baricevic, 136 Ill. 2d at 440.