Farnsworth v. Wee, WD
| Decision Date | 25 November 1986 |
| Docket Number | No. WD,WD |
| Parties | Garland FARNSWORTH, Relator, v. Michael WEE and Lawrence Joiner, Respondents. 37864. |
| Court | Missouri Court of Appeals |
Garland W. Farnsworth, pro se.
Michael Allan Wee, Kansas City, pro se and for respondent.
Before GAITAN, J., Presiding, and DIXON and TURNAGE, JJ.
Relator Garland Farnsworth, acting pro se, appeals from the trial court's judgment which, in part, dismissed relator's petition for writ of mandamus and quashed the court's preliminary order in mandamus. On appeal, relator makes several claims of trial court error, dispositive of which is his claim that the trial court erred in failing to grant him a change of judge.
On July 12, 1984, relator requested the Kansas City, Missouri, police department to preserve the "air tapes" and the tape recordings and records of the "911" calls which pertained to relator's June 23, 1984, and July 10, 1984, arrests. Relator also requested permission to inspect and copy the same records. The police department apparently did not respond to relator's request and relator hired an attorney to take the legal action necessary to gain access to the records. Relator subsequently requested the same information regarding a third arrest.
An attorney for the police department responded that the records would be preserved but would be disclosed only upon the issuance of a subpoena. Relator's attorney filed a petition for writ of mandamus on July 13, 1985, seeking access to the records regarding all three arrests. Judge Richard McKelvey signed a preliminary order in mandamus on July 17, 1985. Relator's attorney later filed an amended petition with suggestions.
Relator was dissatisfied with his attorney throughout much of the proceedings and wrote several letters of complaint to him and also wrote letters of complaint about him to Judge McKelvey.
On November 11, 1985, relator wrote a letter to Judge William Mauer, Presiding Judge of the Jackson County Circuit Court. The body of the letter read as follows:
A cursory review of the petitions, motions and related correspondence in the above numbered cause (copies enclosed) will show that the court and my attorney are handling this litigation in a bizarre manner, to put it charitably, making it difficult not to assume that prejudice (or worse?) exists.
In my opinion, it's time, past time, to assume just that. Therefore, I urgently request that you remove this case from Judge McKelvey's jurisdiction. In addition, I respectfully request a speedy ruling on the merits of this matter. Or, in the alternative, the schedling [sic] of a trial date, that I am prepared--upon proper notice--to conduct pro se.
Copies of the letter were mailed to Judge McKelvey, Lee Nation, and Michael Waller. Judge Mauer responded by sending a letter to relator's attorney directing him to consult with relator concerning "filing a motion" for change of judge. Copies of that letter were sent to Judge McKelvey and relator. There is no evidence that the attorney consulted with relator on that matter. On November 21, 1985, a hearing date was set for December 13, 1985. Subsequently, relator filed pro se motions to remove his attorney of record and to proceed pro se. He also moved for production of documents. A second motion for production of documents with suggestions and a motion for a written opinion were filed at some point prior to the hearing. On December 10, 1985, plaintiff wrote Judge McKelvey a letter asking him to disqualify himself because of prejudice. Judge McKelvey responded to relator's request at the December 13, 1985, hearing by saying that he was not prejudiced against relator and would not disqualify himself on those grounds. He further stated that if the December 10 letter could be construed as a request for change of judge, the request had come too late.
Judge McKelvey presided over the hearing and afterward entered his judgment denying relator's motion to produce as being improperly tendered and moot, denying his motion to have his attorney of record removed but granting relator's motion to proceed pro se, denying relator's oral motion for continuance and denying his motion for disqualification of judge. Judge McKelvey granted respondents' motion to dismiss relator's petition for writ of mandamus and quashed the court's preliminary order.
Rule 51.05 sets forth the procedure to be followed when requesting a change of judge. It provides in pertinent part:
(a) A change of judge shall be ordered in any civil action upon the filing of a written...
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