Charron v. Mo. Bd. of Prob. & Parole

• Decision Date: 31 July 2012
• Docket Number: No. WD 74844.,WD 74844.
• Citation: 373 S.W.3d 26
• Parties: Kenneth G. CHARRON, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, et al., Respondents.
• Court: Missouri Court of Appeals

373 S.W.3d 26

Kenneth G. CHARRON, Appellant,
v.
MISSOURI BOARD OF PROBATION AND PAROLE, et al., Respondents.

No. WD 74844.

Missouri Court of Appeals,
Western District.

July 31, 2012.

[373 S.W.3d 27]

Kenneth G. Charron, Bowling Green, MO, Appellant, pro se.

Chris Koster, Attorney General, Michael Spillane, Assistant Attorney General, Jefferson City, MO, for Respondents.

Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and MARK D. PFEIFFER, Judges.

MARK D. PFEIFFER, Judge.

Kenneth G. Charron (“Charron”) appeals the dismissal of his petition for failure to state a claim by the Circuit Court of Cole County, Missouri. More specifically, Charron contests the authority of the trial judge to rule the motion to dismiss that was filed with the circuit court after Charron had previously timely filed a motion for change of judge. We reverse and remand.

Factual and Procedural Background

Charron, a Missouri Department of Corrections inmate sentenced in 1986 to a life term and thirty-year sentences for his criminal convictions for forcible rape, burglary, and robbery, filed a petition seeking relief against the Missouri Board of Probation and Parole (“Board”) with the Circuit Court of Cole County, Missouri, on July 28, 2011. Charron's petition alleged that the Board unlawfully failed to grant him a parole-eligibility hearing within the first 150 days of his incarceration, contrary to the Board's rules and regulations, and that he is entitled to a hearing and judicial review under chapter 536 of the Administrative Procedure Act (“APA”) because Charron argues that his case is a contested case as defined by chapter 536.¹ The

[373 S.W.3d 28]

Board filed a motion to dismiss Charron's petition for failure to state a claim upon which relief could be granted.

Less than two months after service of process upon the Board, Charron filed a motion for change of judge to remove the judge that had been assigned to the case. The originally assigned trial judge denied Charron's motion for change of judge as untimely, and subsequently granted the Board's motion to dismiss.

Charron appeals.

Analysis

In his first point on appeal, Charron argues the trial judge originally assigned to the case erred in denying his motion for a change of judge as untimely. Our ruling on this point is dispositive of Charron's appeal.

Under Rule 51.05(a), a “change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by a party.” The automatic change of judge under Rule 51.05 “comports with the adage that the right to disqualify a judge is one of the keystones of our legal administrative edifice.” State ex rel. Kramer v. Walker, 926 S.W.2d 72, 75–76 (Mo.App. W.D.1996) (internal quotation omitted). If a motion for change of judge is timely filed, “the court has no jurisdiction to do anything other than to grant the application and transfer the cause.” State ex rel. Cohen v. Riley, 994 S.W.2d 546, 547 (Mo. banc 1999). To be timely, the motion must be filed within sixty days of service of...