Cook County judge agrees to substitution in Chicago vaccine mandate case

CHICAGO (CN) — The Cook County circuit judge overseeing the ongoing legal battle over Chicago's employee vaccine mandate agreed Friday to hand one of the pending lawsuits over to another judge's authority. Judge Cecilia Horan, who dismissed a motion on Wednesday that she be recused from the lawsuit brought by the city against the Chicago Fraternal Order of Police Lodge 7, consented Friday to remove herself from the opposing lawsuit brought by the FOP against the city.

The FOP and its attorneys attempted to have Horan recused from the city's injunction lawsuit against the FOP due to her time as a partner with the law firm Hinshaw & Culbertson. Hinshaw & Culbertson previously worked with the city's Police Accountability Task Force to create a federal consent decree under which the Chicago Police Department still operates.

Horan denied the recusal on the grounds that she never worked on any litigation that contributed to the consent decree, and that she had not worked at Hinshaw & Culbertson for over four years.

Despite this, FOP attorney Joel D'Alba said Wednesday that Horan's connection to Hinshaw & Culbertson gave her involvement in the case the "appearance of impropriety."

With that tactic having failed, the FOP's allies in the issue pivoted away from the case brought against the FOP by the city, to the case brought against the city by the the FOP and several other police groups.

The Friday motion for Horan to be substituted in this case was brought specifically by the Illinois Police Benevolent and Protective Association. The PBPA is another named plaintiff in the suit brought against the city to end its employee vaccine mandate. It forwarded the motion not due to Horan's perceived impartiality, but under the legal right to judge substitution guaranteed to all parties in civil suits, enshrined in the Illinois Civil Procedure Code.

"Each party shall be entitled to one substitution of judge without cause as a matter of right," section 2-1001(a)(2) of the Illinois Civil Code states. "An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties."

The development seemed to contradict a Thursday opinion by Cook County's presiding chancery judge, Moshe Jacobius, that said both the city's lawsuit against the FOP and the FOP's lawsuit against the city should be handled by Judge Horan.

Jacobius said Thursday that Horan had already made a substantive ruling in one of the dueling lawsuits — issuing a temporary restraining order against FOP president John Catanzara that prevents him from speaking out publicly against the city's vaccine mandate. As such, he said he saw no reason why Judge Horan couldn't oversee both cases herself. He also chided both sides of the issue to remember to put public interest above their own personal squabbles.

"Everybody that’s involved here is in public service,” Jacobius said Thursday.

Despite Jacobius' opinion, Horan agreed on Friday that her granting of a restraining order against Catanzara in the city's lawsuit did not obfuscate the FOP and PBPA's right to a substitute judge for its own opposing lawsuit. She was persuaded especially by an Illinois Supreme Court case from earlier this year, Palos Community Hospital v. Humana, Inc. The Supreme Court vacated all orders in that suit when it found that the Cook County trial court which heard the case in 2017 improperly denied Palos a judge substitution based on the "testing the waters" legal doctrine.

The testing the waters doctrine “permits the denial of an initial motion for substitution of judge before substantial rulings have been made, if the party presenting the motion has been able to form an opinion as to the court’s disposition toward his or her case,” the Supreme Court's written opinion in Palos said.

In Palos, the Supreme Court found that a denial based on testing the waters conflicted with the plain language of the Civil Procedure Code. This also meant that even if the FOP and company had tested the waters by witnessing Horan's restraining order against Catanzara, it could not be used as a valid reason to deny them a judge substitution.

By removing Horan from its case against the city, the FOP and its allies hope to be granted a judge with more sympathy for their cause.

"Hopefully we don’t get a hack worse that the one we just got rid of… Cook County judiciary is riddled with them," one anti-mandate sympathizer wrote on the FOP Facebook page in the wake of the substitution.

Horan remains the judge for the city's injunction lawsuit against the FOP and Catanzara. A hearing to extend Catanzara's temporary restraining order, and to extend the order to the rest of the FOP membership, is set for Monday, Oct. 25. If granted, the order will prevent any FOP Lodge 7 member from publicly encouraging Chicago police to defy the city's vaccine mandate. As Horan's initial restraining order only applied to Catanzara, senior leadership with the FOP continued to encourage officers to disobey orders to abide by the mandate for much of this week.

"DO NOT COMPLY at the District or Unit Level on going into the [employee vaccine] portal. Make them give you a Direct Order to go down to 35th Street for a counseling session," FOP First Vice-President Michael Mette said in an email to all police union members on Tuesday.

As of Friday morning, 23 Chicago police officers had been placed on a no-pay status for defying the city's vaccine mandate. The FOP began a fund-raising effort to support these no-pay-status police on Thursday that has accumulated over $36,760 as of Friday afternoon.

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