People v. Saltzman

Case Date: 08/29/2003
Court: 3rd District Appellate
Docket No: 3-02-0341 Rel

No. 3--02--0341


IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

THE PEOPLE OF THE STATE OF )
ILLINOIS, )
) Appeal from the Circuit Court
               Plaintiff-Appellee, ) for the 12th Judicial Circuit,
) Will County, Illinois
            )
) No. 00-CF-1628
               v. )
)
BRENT SALTZMAN, ) Honorable
) Stephen D. White
               Defendant-Appellant. ) Judge Presiding

JUSTICE BARRY delivered the Opinion of the Court: 


Brent Saltzman was charged by indictment with the offenses of attempt first degree murder,aggravated battery of a senior citizen, and aggravated domestic battery in connection with the assaultof Jack Weber. Following a jury trial, Saltzman was convicted on all counts and sentenced to a termof twenty-eight years imprisonment on the attempt first degree murder charge and seven yearsimprisonment on the aggravated battery charges, sentences to run concurrently. Saltzman appealshis convictions.

FACTS

On October 8, 2000, Saltzman was arrested for assaulting Jack Weber, his stepfather and thetreasurer of Will County. Saltzman's case was originally assigned to Judge Gerald Kinney. JudgeKinney recused himself from the case based upon his personal relationship with the victim and hisfamily. On December 1, 2000, the case was called before Chief Judge Stephen White. At thishearing, Saltzman filed motions for the recusal of all judges in Will County, for the appointment ofa special prosecutor, and for a change of venue. After Saltzman filed the motions, Judge Whitestated as follows:

"Well, after Judge Kinney recusing himself, then the cause will come on forreassignment. Show I will assign this to myself for the time being until we seewhere we are with the others. We have the motion for change of place of trial,motion to appoint prosecutor and motion for appointment of judge outside [thecounty]."

The Illinois Supreme Court appointed Judge Clark Erickson of Kankakee County to hear themotion for recusal of all Will County judges. An evidentiary hearing was held on the motion beforeJudge Erickson on January 5, 2001. On January 11, 2001, Judge Erickson denied the motion forrecusal. In his ruling, Judge Erickson stated that "[i]f a judge decides to keep this case, the defendantwill then be free to challenge that individual judge under section 114/5." Judge Erickson further setthe case for status before Chief Judge White the following day.

At the status hearing held before Chief Judge White on January 12, 2001, Saltzman filed amotion for substitution of judge naming Chief Judge White and Judge Rozak. Chief Judge Whitedenied the motion, stating that Saltzman should have filed the motion on December 1, 2000, beforethe supreme court had appointed Judge Erickson to hear the motion for recusal of Will Countyjudges. The remaining motions for appointment of a special prosecutor and for change of venuewere also denied at that time.

The case proceeded to jury trial. Following the trial, Saltzman was convicted on all countsand was sentenced to a term of twenty-eight years on the attempt first degree murder charge andseven years on the aggravated battery charges, with sentences to run concurrently. Saltzman appealshis convictions.

ANALYSIS

A. Motion for the Recusal of Will County Judges

Saltzman first argues that Judge Erickson, who was appointed by the Illinois Supreme Court,erred in denying his motion for appointment of a judge from outside of Will County. Saltzmancontends that no judge in Will County could impartially preside over his trial because he is Weber'sstepson, and Weber, as county treasurer, pays the judges their salaries and pays the salaries ofcourtroom staff.

Decisions regarding the recusal of judges are reviewed under an abuse of discretion standard. People v. Kliner, 185 Ill. 2d 81,169, 705 N.E.2d 850, 894 (1998). A judge should disqualify himselfif he knows he has a substantial financial interest in the subject matter in controversy or is a partyto the proceeding where such an interest might affect the outcome of the proceeding. 203 Ill. 2d R.63 C(1)(d). "The mere fact that a judge has some relationship with someone involved in a case,without more, is insufficient to establish judicial bias or warrant a judge's removal." People v. Craig,313 Ill. App. 3d 104, 105, 728 N.E.2d 1288, 1289 (2000). The decision to disqualify a judge,particularly all the judges of a judicial circuit, should not be made lightly. Craig, 313 Ill. App. 3dat 105, 728 N.E.2d at 1289.

Judge Erickson held an evidentiary hearing prior to denying the motion. Judge Ericksonfound that Weber had a duty only to co-sign for funds appropriated by the county board, includingchecks for $500 of the Will County judges' annual salaries. He further found that Weber had noinput into the appropriations for the judges' salaries. On January 11, 2001, Judge Erickson found noevidence of friendship or political association between Weber and any Will County judge. In lightof these findings which are supported by the record, there exists no basis for the recusal of all WillCounty judges. Thus, the decision of Judge Erickson to deny the motion was not an abuse ofdiscretion.

B. Motion for Substitution of Judges

Saltzman next argues that the trial court erred in denying his motion for substitution of judgespursuant to Section 114-5(a) of the Code of Criminal Procedure (Criminal Code), which provides:

Within 10 days after a cause involving only one defendant has been placedon the trial call of a judge the defendant may move the court in writing for thesubstitution of that judge on the ground that such judge is so prejudicedagainst him that he cannot receive a fair trial. Upon the filing of such amotion the court shall proceed no further in the cause but shall transfer it toanother judge not named in the motion. 725 ILCS 5/114-5(a) (West 2000).

The issue before this court is whether Saltzman complied with the 10-day time limitation. Section 114-5(a) of the Criminal Code provides a defendant with an absolute right to a substitutionof a judge if the defendant files a timely written motion for substitution. People v. McDuffee, 187Ill. 2d 481, 487, 719 N.E.2d 732, 736 (1999). "Once the motion is properly brought, the trial judgeloses all power and authority over the cause except to make the necessary order to effectuate thechange, and if a defendant's motion is improperly denied, all subsequent action of the trial judge isvoid." People v. Ryan, 264 Ill. App. 3d 1, 3, 636 N.E.2d 1126, 1127-28 (1994). The controllingissue under the statute is whether the defendant filed his motion within 10 days after his cause hadbeen placed on the trial call of the judge or within 10 days of the date the defendant could becharged with knowledge of the assignment of his cause to a trial judge. People v. Hanson, 120 Ill.App. 3d 84, 87, 457 N.E.2d 1048, 1050 (1983). Section 114-5(a) should be liberally construed topromote substitution and guarantee a fair and impartial trial. People v. Pace, 225 Ill. App. 3d 415,424, 587 N.E.2d 1257, 1264 (1992).

Saltzman argues that his motion for substitution was timely filed within 24 hours after JudgeErickson's order denying the motion to recuse all judges of Will County. In support of this assertion,Saltzman cites People v. Pace, 225 Ill. App. 3d 415, 587 N.E.2d 1257 (1992). In Pace, thedefendant's case was originally assigned to Judge Nolan. Judge Cox picked up Judge Nolan's callafter Judge Nolan's retirement. Judge Cox presided over the defendant's case and made substantiverulings on motions, but thereafter had a heart attack. The chief judge then issued a memorandumindicating that Judge Telander would take Judge Cox's cases until Judge Cox returned. Eventually,the case was formally assigned to Judge Telander. Defendant then filed a motion for the recusal ofJudge Telander. Judge Telander denied the motion finding that it could have been filed while thecase was temporarily assigned to him from Judge Cox's call. The appellate court reversed, statingthat the defendant "had no idea at each appearance whether Judge Telander would remain asubstitute for Judge Cox or whether Judge Cox would return." Pace, 225 Ill. App. 3d at 425, 587N.E.2d at 1265.

In the instant case, Saltzman also could not discern on December 1, 2000, when he filed hismotion for the recusal of all Will County judges whether Chief Judge White would be the judgehearing his case. If Judge Erickson would have granted the motion for recusal of all Will Countyjudges, Chief Judge White would not have heard the case. The fact that Saltzman was uncertain asto which judge would hear the case is buttressed by Chief Judge White's statement that the causewould be assigned to him "for the time being until we see where we are with the others." Filing amotion for substitution of Chief Judge White before learning of Judge Erickson's ruling would havebeen entirely premature.

Furthermore, Saltzman filed his motion for substitution at the earliest practical moment afterlearning Judge Erickson denied the motion for recusal of all Will County judges. Saltzman filed themotion within 24 hours of the ruling, the first time he appeared before Chief Judge White knowingwith certainty that his case would be on Chief Judge White's call. Therefore, we find that the trialcourt improperly denied Saltzman's motion for substitution of judge.

Because this motion was improperly denied, all subsequent rulings made by Chief JudgeWhite are void. Ryan, 264 Ill. App. 3d at 3, 636 N.E.2d at 1127-28 (1994). Therefore, we need notreach the remaining issues presented by Saltzman on appeal.

For the foregoing reasons, all decisions made by Chief Judge White and the verdicts againstSaltzman are invalidated. This cause is remanded for further proceedings.

Reversed and remanded.

SLATER, J. and LYTTON, J. concurring.