                                      No. 2--04--0122                   filed: 1/26/06
_____________
     _________________________________________________________________

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_________________________________________________________________________
_____

In re MOSES W.,                       ) Appeal from the Circuit Court
                                      ) of Kane County.
a Minor                               )
                                      ) No. 01--JD--0631
                                      )
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Moses W.,     ) Thomas E. Mueller,
Respondent-Appellant).                ) Judge, Presiding.
_________________________________________________________________________
_____

      JUSTICE O'MALLEY delivered the opinion of the court:

      Respondent, Moses W., appeals the judgment of the trial court revoking his

probation.   Respondent argues that the trial court erred in denying his motion for

substitution of judge and that the subsequent revocation order was therefore void. We

agree and reverse.

                                     BACKGROUND

      In August 2001, the State filed a petition for adjudication of delinquency, alleging that

respondent committed the offenses of attempted robbery and aggravated battery.

Respondent pled guilty, and the Honorable Thomas E. Mueller sentenced him to 60

months' probation and placed him at Arrowhead Ranch.
       In May 2002, the State filed a petition to revoke respondent's probation, claiming that

he had behavioral problems at Arrowhead. Judge Mueller modified respondent's probation

and placed him at Heritage Center, a residential treatment center in Provo, Utah.

       Thirteen months later, in August 2003, the State applied for a youth warrant, alleging

that respondent was being uncooperative at Heritage Center. The State also filed a petition

to modify respondent's probation.       The State did not yet file a petition to revoke

respondent's probation. Judge Mueller issued the warrant and ordered juvenile court

services to prepare a revised social history on respondent. Respondent's attorney made

an oral motion that respondent be released to his mother. Judge Mueller denied the motion

and scheduled a Rule 402 conference (177 Ill. 2d R. 402) for September 18, 2003. The

conference was held off the record.

       The day after the conference, respondent filed a motion for substitution of judge

under section 114--5(d) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114--5(d)

(West 2002)), alleging that Judge Mueller's comments during the September 18 conference

exhibited bias against respondent. Attached to the motion was the affidavit of attorney

Kathleen Colton, who averred and she and her associate Jennifer Stock represented

respondent at the conference.        Attorney Colton recounted what transpired at the

conference. According to Colton, the State requested that respondent be committed to the

Department of Corrections. Colton asked Judge Mueller to deny the request and instead

release respondent to his mother's custody for the purpose of attending school or,

alternatively, send him back to Heritage Center. According to Colton, Judge Mueller

rejected her proposals and noted (in her words) that "approximately $74,820 had been

spent for [respondent's] placement, which now appeared to be wasted by removing the
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[respondent] from placement." Colton averred that Judge Mueller then "encouraged" the

State to file a motion to revoke probation and directed that it be filed no later than

September 23, 2003.

       Colton argued in her motion for substitution that Judge Mueller's "attitude,

demeanor, and comments" indicated that he had "already made a determination to commit

[respondent] to the Illinois Department of Corrections, even prior to the proper filing of a

petition giving him authority to do so."

       Judge Mueller filed his own affidavit in his response to the motion for substitution.

Judge Mueller averred that he received regular reports about respondent from Heritage

Center since his placement there. According to Judge Mueller, the reports indicated that

respondent was "having a difficult time following the rules" at Heritage Center. Judge

Mueller "accepted an invitation from Heritage Center to visit [respondent] at Heritage and

discussed with [respondent] the need for his compliance with the Center's rules and

expectations." Concerning the Rule 402 conference, Judge Mueller recounted as follows:

              "10. This Court advised counsel that I was not willing to return [respondent] to

       his Mother's custody as I had no confidence that he could succeed in said

       environment. It had been proposed that [respondent] would return home and attend

       Fox Tech, an alternative school. I expressed my concern that [respondent] would

       immediately and [sic] end up back in detention with new charges. I further advised

       counsel that I was unwilling to send [respondent] back to Heritage Center because

       of fiscal considerations. This Court has limited placement budget for the hundreds

       of juveniles who are wards of the Court and I expressed my concern that we had




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      already spent a significant amount of money on [respondent] without achieving the

      intended results.

             11. I further advised counsel that I was open to consider other placements

      but that it would be the parents' responsibility to find and secure such opportunities

      for [respondent].

             12. When [respondent's] counsel persisted in her claims that the Court was

      being unfair, and went so far as to raise her voice in challenging the Court's

      position, I ended the conference.

             13. Following the aborted conference, while on the record in Court, I asked

      [the assistant State's Attorney] if she planned on filing an amended pleading

      (referring back to her comment in the 402 conference that there had been an error in

      the pleading's title). I did this in order to set a date for filing of any amended

      pleading to avoid any last minute filings before a scheduled hearing date of

      September 29, 2003. This Court in no way 'encouraged' the State to file an

      amended pleading."

Judge Mueller concluded his affidavit by assuring that he maintained "an open mind and

objective perspective on what disposition may be most appropriate for [respondent]."

      The motion for substitution of judge was heard by the Honorable Phillip DiMarzio.

Attorney Jennifer Stock, who was with attorney Colton at the Rule 402 conference, gave

testimony consistent with Colton's version of events in her affidavit. During his closing

statement, respondent pointed to Judge Mueller's own affidavit as evidence that he

obtained information outside the record about respondent's case and therefore should be

removed from the case.


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       Judge DiMarzio denied the petition for substitution. Several days later, the State

filed a petition to revoke respondent's probation. The State presented witnesses from

Heritage Center who testified to respondent's poor progress there. Judge Mueller granted

the petition and committed respondent to the Department of Corrections, setting a review

date for 45 days later. Respondent filed a motion to reconsider his sentence, and

subsequently Judge Mueller ordered that respondent be placed on electronic home

monitoring. Respondent filed this timely appeal.

                                         ANALYSIS

       Respondent argues that Judge Mueller's private communication with him at Heritage

Center, described in Judge Mueller's own affidavit, was inappropriate and disqualified him

from continuing to preside over respondent's case.            Respondent argues that the

communication "undoubtedly caused prejudice by influencing Judge Mueller's disposition in

this case, and also created the appearance of impropriety."

       The State argues that respondent did not meet the requirements of section 114--5(d)

of the Code of Criminal Procedure (725 ILCS 5/114--5(d) (West 2002)), the provision under

which he brought his motion for substitution. Section 114--5(d) permits the State or the

defendant to "move at any time for substitution of judge for cause" (725 ILCS 5/114--5(d)

(West 2002)). The right to substitution of judge for cause is not absolute. People v. Melka,

319 Ill. App. 3d 431, 442 (2000).

Our supreme court has construed section 114--5(d) as requiring the movant to

"demonstrate actual prejudice, not just the possibility of prejudice." People v. Patterson,

192 Ill. 2d 93, 134 (2000). The movant must establish that the judge harbors " 'animosity,

hostility, ill will or distrust' " toward him. Patterson, 192 Ill. 2d at 131, quoting People v.


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Vance, 76 Ill. 2d 171, 181 (1979). "To conclude that a judge is disqualified because of

prejudice is not *** a judgment to be lightly made," as "[i]t will be viewed by some as

reflecting unfavorably upon the judge, and it tends to disrupt the orderly functioning of the

judicial system." Vance, 76 Ill. 2d at 179. The required quantum of proof is preponderance

of the evidence. People v. Mercado, 244 Ill. App. 3d 1040, 1045-46 (1993). A court's

determination of prejudice or lack of prejudice will stand unless it is against the manifest

weight of the evidence. Mercado, 244 Ill. App. 3d at 1047.

       In addition to the foregoing law, there is a line of supreme court cases addressing

the situation where the trial judge acquires knowledge de hors the record of facts relevant

to contested issues in the case. See, e.g., People v. Thompkins, 181 Ill. 2d 1, 22 (1998);

People v. Washington, 38 Ill. 2d 446, 451 (1967); People v. Wilson, 37 Ill. 2d 617, 621

(1967). Wilson and Washington are representative examples. In Wilson, the defendant

filed a postconviction petition that was assigned to the same judge who had accepted his

prior plea of guilty to murder and sentenced him to death. The defendant moved for

substitution of judge on the ground that his postconviction petition alleged that the plea of

guilty was induced by the judge's in camera representations to the defendant's attorney that

he would not sentence the defendant to death if he pled guilty. The trial judge denied the

motion for substitution, but our supreme court reversed. The court said that "in certain

circumstances a trial judge should recuse himself when it appears that he may be biased or

may be a potential witness." Wilson, 37 Ill. 2d at 621. The court held that the trial judge

should have recused himself from the postconviction proceedings because "either [he]

would be a material witness to these proceedings, or would have knowledge de hors the

record of the truth or falsity of these allegations." Wilson, 37 Ill. 2d at 621.


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       In Washington, a case factually similar to Wilson, the supreme court held that the

judge who had accepted the defendant's plea of guilty should not decide his postconviction

petition because the petition alleged that the defendant's plea was induced by promises

made during a private conversation that his attorney purported to have had with the State's

Attorney and the trial judge. Washington, 38 Ill. 2d at 451. The supreme court reasoned

that the trial judge had knowledge de hors the record of facts relating to the issues raised

by the petition. Washington, 38 Ill. 2d at 451.

       Although Wilson, Washington, and Thompkins all dealt with a trial judge's suitability

to hear a postconviction petition, nothing in them suggests that a postconviction proceeding

is the only forum in which a judge who has extrajudicial knowledge of factual matters at

issue must recuse himself. To the contrary, our supreme court and appellate court have

intimated that the principle applies in preconviction proceedings as well (see People v. Hall,

114 Ill. 2d 376, 405 (1986) (citing Wilson in determining suitability of judge to preside over

trial); People v. Buck, 361 Ill. App. 3d 923, 931 (2005) (citing Thompkins in trial context)),

and indeed the Code of Judicial Conduct (Judicial Code) (134 Ill. 2d Rs. 61 through 68),

which became effective on January 1, 1987, gives expression to the principle. Supreme

Court Rule 63(C)(1)(a) (188 Ill. 2d R. 63(C)(1)(a)), also known as Canon 3 of the Judicial

Code, provides in relevant part:

              "(1) 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

       instances where:




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                       (a) the judge has a personal bias or prejudice concerning a party or a

                party's lawyer, or personal knowledge of disputed evidentiary facts

                concerning the proceeding[.]" (Emphasis added.)

Notably, neither the Wilson line of cases nor Rule 63(C)(1)(a) requires proof that the trial

judge's personal knowledge of disputed evidentiary facts actually prejudiced the judge

against the movant. The Wilson cases categorically require recusal where a judge has

"knowledge de hors the record of the truth or falsity of these allegations" (Wilson, 37 Ill. 2d

at 621), and Rule 63(C)(1)(a) provides that a judge must recuse himself where he harbors

bias or prejudice against a party or has "personal knowledge of disputed evidentiary facts

concerning the proceeding" (188 Ill. 2d R. 63(C)(1)(a)). Thus, the Wilson/Rule 63(C)(1)(a)

principle is an exception to the general requirement of actual prejudice in section 114--5(d)

cases.

         Moreover, there is even authority indicating that recusal may be required as a

preventative measure where it is uncertain that a trial judge actually acquired extrajudicial

information. An example is People v. Bradshaw, 171 Ill. App. 3d 971 (1988), which

respondent cites. In Bradshaw, the appellate court reversed the denial of the defendants'

motion for substitution of judge, finding that the trial judge had created an appearance of

impropriety that required his recusal:

                "Here, [the victim's] mother was a deputy sheriff in the court building where

         [the defendants'] trials were being conducted. As a deputy sheriff, she is a part of

         the justice system and therefore plays an integral role in the overall administration of

         justice. Two, or possibly more, persons witnessed this officer of the court pass a

         note to the trial judge who was presiding over a case wherein her daughter was the


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       alleged victim. These persons then observed the presiding judge recess his court

       and enter into his chambers with the victim's mother. Although the judge maintains

       that he terminated the conversation when he ascertained the deputy sheriff's relation

       to the case, at that point, the appearance of impropriety had been created."

       Bradshaw, 171 Ill. App. 3d at 976.

The appellate court also found it significant that the trial judge did not inform the parties of

the ex parte communication until after the motion for substitution was made. Bradshaw,

171 Ill. App. 3d at 976. The appellate court explained that its holding was compelled by the

canons of judicial conduct, which generally require a judge to avoid the appearance of

impropriety:

               "The judiciary is bound to maintain a favorable public impression that all

       defendants receive impartial trials and that justice is administered fairly. This

       obligation to our system of justice remains steadfast even though a judge is

       unequivocally sure that he is not partial to either litigant in a case pending before the

       court. ***

               In reaching this conclusion, we do not imply that any improper motive existed

       on the part of the trial judge. What we do recognize, however, is that it is both the

       right of a defendant to have a trial before an impartial tribunal as well as the duty of

       a court to avoid any appearance of impropriety." Bradshaw, 171 Ill. App. 3d at 976-

       77.

Unlike Wilson and Washington, where it was undisputed that the judge had extrajudicial

knowledge of material factual matters, the nature of the conversation in Bradshaw was

undisclosed.    Thus, Bradshaw's holding was prophylactic in nature, meant both to


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extinguish the possibility that extrajudicial factors would come into play and to maintain the

appearance of propriety.

       The present case is more like Wilson and Washington than Bradshaw, for Judge

Mueller admits that he privately communicated with respondent at Heritage Center and that

the topic of conversation was respondent's compliance with the rules of Heritage Center--

the precise issue that was the crux of the subsequent hearing on the State's petition to

revoke respondent's probation. Thus, Judge Mueller acquired information de hors the

record about a factual matter that was at issue in the proceedings before him, and therefore

he should have recused himself from respondent's case.

       In so ruling, we note that the role of the trial court in juvenile proceedings is broader than in

adult criminal proceedings. Proceedings under the Juvenile Court Act of 1987 (the Act) (705 ILCS

405/1--1 et seq. (West 2002)) are not criminal in nature and are to be administered in a spirit of

humane concern for, and to promote the welfare of, the minor. In re A.G., 195 Ill. 2d 313, 317

(2001). Moreover, the trial court is charged with the role of equipping juvenile offenders with

competencies to live responsibly and productively. 705 ILCS 405/5--101(1) (West 2002). The Act

provides for periodic evaluations after the minor has been committed. See 705 ILCS 405/5--745

(West 2002). Accordingly, the trial court has a more hands-on approach and must manage the

progress of the minor. It was not improper, therefore, for Judge Mueller to receive regular reports

about respondent from the Heritage Center.

       Additionally, we note that although we have determined that Judge Mueller should have

recused himself, we do not agree that Judge Mueller's "attitude, demeanor, and comments" indicated

that he had "already made a determination to commit [respondent] to the Illinois Department of




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Corrections." In his affidavit, Judge Mueller indicated that he maintained "an open mind and

objective perspective on what disposition may be most appropriate for [respondent]."

       Furthermore, in her affidavit, attorney Colton intimated that Judge Mueller seemed to be

overly concerned with the amount of money spent for respondent's placement. However, we believe

that Judge Mueller's concern was proper. The Act provides the trial court with authority to order a

respondent into residential placement (705 ILCS 405/5--710(1)(a)(ii), 5--740 (West 2002)) and to

order the county in which the respondent resides to pay for such treatment (705 ILCS 405/6--8(3)

(West 2002)). Section 6--7 of the Act requires a county board to budget a reasonable amount for

payments for the care and support of minors. 705 ILCS 405/6--7 (West 2002). Accordingly, the

budget is not unlimited and a court must therefore be mindful of the fiscal consequences of its

residential placements. Finally, although attorney Colton averred that Judge Mueller "encouraged"

the State to file a motion to revoke probation, Judge Mueller explained in his affidavit that he asked

the State if it intended to file an amended pleading merely because it had indicated at the Rule 402

conference that there had been an error in the pleading's title.

       Nonetheless, if a motion for substitution of judge is improperly denied, as it was in

this case, all subsequent action by the trial court is void. People v. Pace, 225 Ill. App. 3d

415, 424 (1992). Accordingly, we reverse Judge Mueller's judgment revoking respondent's

probation and remand this case for a new revocation hearing before a different judge.

       Reversed and remanded.

       CALLUM and GILLERAN JOHNSON, JJ., concur.




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