Posted on June 6, 2021

Can You Sue A Judge In Illinois?

When you’re involved in a dispute in Illinois, you can always take that dispute to court. The court, however, may not agree with you and your dispute may now be with the judge who rule against you.

When you’re in a dispute with the judge themselves over the original dispute that you brought to court…you are fighting an uphill battle.

Suing An Illinois Judge

Judges in Illinois are protected from lawsuits based on what the judge did in their capacity as a judge. This concept is called “judicial immunity.”

“’The common-law doctrine of judicial immunity was first laid down centuries ago as a means of protecting the independence of the judiciary and discouraging inappropriate collateral attacks on judgments. Forrester v. White, 484 U.S. 219, 225 (1988) (noting that the doctrine dates back to medieval times). “As early as 1872, the [United States Supreme] Court recognized that it was ‘a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.’ ” Stump v. Sparkman, 435 U.S. 349, 355 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872)). Accordingly, judges are not liable for their judicial acts, “even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Bradley, 80 U.S. (13 Wall.) at 351.” Moncelle v. McDade, 2017 IL App (3d) 160579

Judicial immunity is a valid reason to dismiss the lawsuit against the judge.

“The circuit court also possesses the authority under section 2-619 to dismiss a complaint because of judicial immunity” Ellis v. Flannery, 2021 IL App (1st) 201096

“Defendant [the judge] may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds….

That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9)

There are exceptions to judicial immunity in Illinois, however.

“A judge is absolutely immune from liability for acts committed while exercising the authority vested in him. This doctrine of judicial immunity is subject to only two exceptions: namely, actions not taken in the judge’s judicial capacity and actions taken in the complete absence of all jurisdiction.” Grund v. Donegan, 298 Ill. App. 3d 1034 (1998)

So, if a judge punches you in the nose, that punch not going to be covered by judicial immunity because the judge wasn’t exercising the authority vested in him or her.

Additionally, “[i]n the latter exception, the term “jurisdiction” refers not to a judge’s authority or power to act, but to the subject matter jurisdiction of the court upon which the judge sits.” Moncelle v. McDade, 2017 IL App (3d) 160579

Imagine a divorce judge who ordered a third-party restaurant to close because that’s where the husband would take his mistress. Well, that’s beyond the subject matter jurisdiction of the judge and, therefore, the judge could be sued by the restaurant for that egregious ruling beyond the scope of the case.

It’s pretty much impossible to sue the judge unless the judge did something completely out of bounds in their duties as a judge. But, you’re probably mad at the judge for what the judge did while they were a judge when considering your case.

If you’re not able to sue your judge, you may have a few other options under Illinois law.

Getting A New Judge In Illinois

By the time an Illinois judge has ruled against you, it’s usually too late to ask for another judge…unless you have a good reason.

“A substitution of judge in any civil action may be had in the following situations:

(i) Each party shall be entitled to a substitution or substitutions of judge for cause.

(ii) Every application for substitution of judge for cause shall be made by petition, setting forth the specific cause for substitution and praying a substitution of judge. The petition shall be verified by the affidavit of the applicant.

(iii) Upon the filing of a petition for substitution of judge for cause, a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition. The judge named in the petition need not testify but may submit an affidavit if the judge wishes. If the petition is allowed, the case shall be assigned to a judge not named in the petition. If the petition is denied, the case shall be assigned back to the judge named in the petition.” 735 ILCS 5/2-1001(a)(2)

Getting a different Illinois judge to agree that the judge you want to substitute was biased or partial is very difficult.

“A judge’s rulings alone almost never constitute a valid basis for a claim of judicial bias or partiality. Allegedly erroneous findings and rulings by the trial court are insufficient reasons to believe that the court has a personal bias for or against a litigant. Rather, the party making the charge of prejudice must present evidence of prejudicial trial conduct and evidence of the judge’s personal bias.” Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002).

Bad judicial behavior can be brought to the reviewing judge’s attention.

“A judge shall uphold and apply the law* and shall perform all duties of judicial office fairly and impartially.” Ill. Sup. Ct. R. 2.2

“It is prejudicial for a trial judge to make comments which indicate he harbors feelings of hostility toward a party or his attorney” Korbelik v. Staschke, 596 NE 2d 805 – Ill: Appellate Court, 1st Dist., 5th Div. 1992

If you can’t get a new judge, you can at least ask the judge to reconsider what they did.

Motions To Reconsider In An Illinois Court

Within 30 days of any ruling, a party to a case may bring a motion to reconsider before the same judge in that case.

“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203

You better have a good (and new) reason for the judge to reconsider their ruling.

“The purpose of a motion to reconsider is to bring to a court’s attention: (1) newly discovered evidence; (2) changes in the law; or (3) errors in the court’s previous application of existing law.” Liceaga v. Baez 2019 IL App (1st) 181170

Newly discovered evidence is going to be the only thing that’s going to change an Illinois judge’s mind…and that new evidence needs to be “so conclusive that it would probably change the trial result.” In re Marriage of Wolff, 355 Ill. App. 3d 403, 409 (2005)

The real power of a motion to reconsider is that it puts the judge’s decision (which you have an issue with) on pause until your motion to reconsider is heard.

“[A] motion filed in apt time stays enforcement of the judgment except that a judgment granting injunctive or declaratory relief shall be stayed only by a court order that follows a separate application that sets forth just cause for staying the enforcement.” 735 ILCS 5/2-1203(b)

Appealing An Illinois Judge’s Decision

Appellate law is a whole other ballgame. An appellate court will “presumes that a trial judge knows and follows the law unless the record affirmatively indicates otherwise.” In re Jonathon C.B., 2011 IL 107750

I do not claim any expertise or barely any insight into appeals. So, I advise you to talk to an appellate attorney, David Gotzh, who can help you preserve the record, file your appeal and, hopefully, prevail in front of a completely different judge.

Can You Sue The Judicial System In Illinois?

In the movie “And Justice For All,” Al Pacino screams in court, “I’m out of order? You’re out of order! This whole trial is out of order!”…and then the bailiffs dragged him away.

Alternatively, you could sue the court in Illinois’ court of claims.

The court of claims has “exclusive jurisdiction” to hear and determine, among other things, “[a]ll claims against the State founded upon any law of the State of Illinois” and “[a]ll claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit.” 705 ILCS 505/8(a), (d)

The court of claims isn’t really the right venue for complaining about the judicial system as the Court of Claims “function is not to adjudicate cases. Rather, the General Assembly established the Court of Claims to receive and resolve claims against the state.” People v. Philip Morris, Inc., 198 Ill. 2d 87, 97 (Ill. 2001)

However, a writ of certiorari can allow a court of claims to verify if the original domestic relations court provided you with proper due process.

“The common law writ of certiorari provides a means whereby a party who has no avenue of appeal or direct review may obtain limited review over action by a court or other tribunal exercising quasi-judicial functions.” Reichert v. Court of Claims, 786 N.E.2d 174, 177 (Ill. 2003)

“[C]ertiorari is available to address alleged deprivations of due process by the Court of Claims. However, certiorari may not be used to review the correctness of a decision by the Court of Claims based upon the merits of the case before it. Requirements of due process are met by conducting an orderly proceeding in which a party receives adequate notice and an opportunity to be heard. Due process is not abridged where a tribunal misconstrues the law or otherwise commits an error for which its judgment should be reversed.” Reichert v. Court of Claims, 786 N.E.2d 174, 177 (Ill. 2003) (citations omitted)

For other matters relating to divorce and family law, contact my Chicago, Illinois law office to schedule a free consultation with an experienced divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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