State ex rel. Chassaing v. Mummert, No. 76649

CourtUnited States State Supreme Court of Missouri
Writing for the CourtCOVINGTON
Citation887 S.W.2d 573
Decision Date22 November 1994
Docket NumberNo. 76649
PartiesSTATE ex rel. J. Patrick CHASSAING, Relator, v. Honorable Thomas C. MUMMERT, III, Judge, Circuit Court, St. Louis City, Respondent.

Page 573

887 S.W.2d 573
33 A.L.R.5th 943
STATE ex rel. J. Patrick CHASSAING, Relator,
v.
Honorable Thomas C. MUMMERT, III, Judge, Circuit Court, St.
Louis City, Respondent.
No. 76649.
Supreme Court of Missouri,
En Banc.
Nov. 22, 1994.

Page 575

Robert T. Haar, Susan E. Bindler, St. Louis, for relator.

Kevin F. O'Malley, Steven B. Zonakis, Sp. Asst. Attys. Gen., Clayton, for respondent.

Frank E. Wallemann, Jefferson City, for amicus curiae Nat. Ass'n of Administrative Law Judges.

COVINGTON, Chief Justice.

This original petition for a writ of prohibition and alternative petition for a writ of mandamus arise from a contempt proceeding brought pursuant to § 536.095, RSMo 1986. Relator J. Patrick Chassaing seeks to prohibit the Honorable Thomas C. Mummert, III, from proceeding, arguing that there is no statutory basis for the contempt action; thus, the trial court lacked jurisdiction. In the alternative, relator petitions for a writ of mandamus to order respondent to afford relator discovery rights under Supreme Court Rule 25. This Court issued an alternative writ of mandamus. After briefs and oral arguments, this Court concludes that relator's alternative request for a writ of mandamus should have been filed as a petition for a writ of prohibition. Determining that no prejudice will result to respondent, this Court exercises its discretion to treat relator's petition as one for a writ of prohibition and orders a peremptory writ of prohibition to issue.

On October 15, 1993, Matthew D. Vacca sat as an administrative law judge at the Division of Workers' Compensation, Missouri Department of Labor and Industrial Relations, in St. Louis, Missouri. Relator, a lawyer, represented the employer before judge Vacca in the matter of Radford v. Continental Baking, No. 92-172825. Lawyer James J. Sievers represented petitioner Radford.

The facts giving rise to the underlying contempt action are in dispute in some instances. The events recited here are those alleged by judge Vacca. During the workers' compensation hearing, relator left the counsel table and charged the bench while yelling at judge Vacca in a threatening manner. Relator positioned himself approximately ten inches from judge Vacca's face and continued to scream at him. Relator ignored judge Vacca's order to return to the counsel table. Relator left the hearing room and returned with William Newcomb, who was the acting chief administrative law judge while the chief administrative law judge, David Dowd, was on vacation. Relator demanded that judge Newcomb disqualify judge Vacca from hearing the case. Judge Newcomb informed relator that he was not entitled to a disqualification at that stage of the proceedings and refused to disqualify judge Vacca. Relator stormed out of the hearing room after judge Vacca admonished relator regarding his conduct.

Pursuant to § 536.095, the division of workers' compensation instituted contempt

Page 576

proceedings against relator in the Circuit Court of St. Louis City. Respondent ordered relator to show cause why he should not be held in contempt for his conduct at the October 15, 1993, hearing. Relator moved for discovery pursuant to Supreme Court Rules 25.02 and 25.03 and served subpoenas and deposition notices on administrative law judges Vacca, Newcomb, and Dowd, and on attorney Sievers, pursuant to Supreme Court Rules 25.12 and 57.03. Relator also moved to shorten the time for discovery and depositions.

On December 21, 1993, respondent entered an order granting in part and denying in part relator's motion for discovery. Respondent granted relator's requests for: any record of prior convictions of any of the state's witnesses; any material or information in the state's possession tending to negate relator's guilt, mitigate the alleged contempt, or reduce any potential punishment; all transcripts containing testimony of persons whom the state intends to call as witnesses at a hearing or trial; and, all of the state's notes of interviews with witnesses other than administrative law judges of the division of workers' compensation. Respondent quashed relator's subpoenas and notices of depositions on the ground that deposition discovery is not available in criminal contempt proceedings. Respondent also denied relator's request to have the special assistant attorney general turn over to relator his notes of interviews with the administrative law judges of the division of workers' compensation, finding that the administrative law judges are clients of the state, thereby bringing the notes within the attorney-client privilege and work product doctrine.

On December 29, 1993, relator moved to dismiss for want of jurisdiction. Relator argued that the alleged contumacious conduct did not occur during a hearing in a contested case within the meaning of the Missouri Administrative Procedure Act, of which § 536.095 is a part, or in the alternative, that the statute under which he is charged does not apply to workers' compensation cases. On January 14, 1994, respondent denied relator's motion.

Relator filed a petition for a writ of prohibition, or, in the alternative, for a writ of mandamus in the Missouri Court of Appeals, Eastern District. The court of appeals denied relator's petition. Relator then sought a writ of prohibition from this Court ordering respondent to halt the contempt proceedings for want of jurisdiction or, in the alternative, a writ of mandamus compelling respondent to afford relator the discovery rights due a criminal defendant under Supreme Court Rule 25.

Relator asks this Court to issue a writ of mandamus compelling respondent to order the state to turn over notes from the interviews with the administrative law judges of the division of workers' compensation and to permit relator to depose judge Vacca and attorney James Sievers, both of whom witnessed the events that led to the show cause order. Relator also seeks to depose judge Newcomb, who witnessed some of the underlying events, and judge Dowd, who received the report from judge Vacca concerning judge Vacca's view of the events during the hearing.

It is first necessary to address the method by which relator brings his claims, a petition for a writ of mandamus. Mandamus will not lie. Mandamus is a discretionary writ, not a writ of right. Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980). Mandamus will lie only when there is a clear, unequivocal, and specific right. State ex rel. Sayad v. Zych, 642 S.W.2d 907, 911 (Mo. banc 1982). The right sought to be enforced must be clearly established and presently existing. State ex rel. Commissioners of the State Tax Comm'n v. Schneider, 609 S.W.2d 149, 151 (Mo. banc 1980). A writ of mandamus is not appropriate to establish a legal right, but only to compel performance of a right that already exists. State ex rel. Brentwood School Dist. v. State Tax Comm'n, 589 S.W.2d 613, 614 (Mo. banc 1979). As this Court has often stated, the purpose of the writ is to execute, not adjudicate. Schneider, 609 S.W.2d at 151.

In the present context, mandamus is clearly inappropriate. The question of whether discovery is available in a contempt proceeding brought under § 536.095 has not previously

Page 577

been decided by a Missouri court. Relator attempts to establish a right through a writ of mandamus, rather than to enforce a clearly established and presently existing right. This cannot be done. Brentwood School Dist., 589 S.W.2d at 614.

Since mandamus does not lie, the question is whether this Court should entertain the petition as one for relief other than by mandamus. It is within this Court's discretion to treat relator's petition for a writ of mandamus as one for a writ of prohibition. See State ex rel. Haley v. Groose, 873 S.W.2d 221, 223 (Mo. banc 1994); Enke v. Anderson, 733 S.W.2d 462, 465 (Mo.App.1987); St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 148 (Mo.App.1984).

Interlocutory review of trial court error by writ of prohibition, however, should occur only in extraordinary circumstances. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 891-92 (Mo. banc 1983). If the error is one of law, and reviewable on appeal, a writ of prohibition is not appropriate. Id. at 892.

Distinguishing Morasch, in State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862-63 (Mo. banc 1986), this Court outlined the three situations in which writs of prohibition will issue. First, prohibition will lie where there is a usurpation of judicial power because the trial court lacks either personal or subject matter jurisdiction. Id. at 862. Second, a writ of prohibition will issue to remedy a clear excess of jurisdiction or abuse of discretion such that the lower court lacks the power to act as contemplated. Id. Finally, departing from jurisdictional grounds, a writ of prohibition will be issued if the party can satisfy a number of conditions, often falling under the rubric of no adequate remedy by appeal. Id. The third category is used in limited situations where some "absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court's order." State ex rel. Richardson v. Randall, 660 S.W.2d 699, 701 (Mo. banc 1983). Prohibition will lie when there is an important question of law decided erroneously that would otherwise escape review by this Court, and the aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision. Noranda, 706 S.W.2d at 862-63.

The present action falls within the third criterion of Noranda. Whether depositions and other discovery are available to the alleged contemnor in contempt proceedings is an important question of law not previously decided by this Court. Relator has no adequate remedy by appeal because a judgment of criminal contempt cannot be appealed. Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc 1976). Relator's only remedy would be to file a writ of...

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42 practice notes
  • Smith v. Pace, No. SC 90425.
    • United States
    • United States State Supreme Court of Missouri
    • May 11, 2010
    ...the authority of the court and impeded and embarrassed the administration of justice." See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). The jury found Smith guilty of criminal contempt. Following the verdict, the court entered an order of commitment for crim......
  • State ex rel. City of Crestwood v. Lohman, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • December 13, 1994
    ...rights. The Supreme Court reaffirmed the viability of these principles only a few months ago. See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573 (Mo. banc 1994) (mandamus may not be used to establish a new right, but only to compel performance of an existing one; it is to execute, not t......
  • State v. Lee, No. WD 71924.
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2011
    ...and 476.140 RSMo. See, e.g., State ex rel. Picerno v. Mauer, 920 S.W.2d 904 (Mo.App.1996), and State ex rel. Chassaing v. Mummert, 887 S.W.2d 573 (Mo. banc 1994). The issue of the availability of such contempt power is not invoked here and, therefore, is not specifically addressed. But cert......
  • State ex rel. Cohen v. Riley, No. 81192
    • United States
    • United States State Supreme Court of Missouri
    • June 1, 1999
    ...7 State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986) (internal citations omitted). 8 State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1 Federal rule 65(a)(2) provides that the order of consolidation may be made "before or after the commencement of the hea......
  • Request a trial to view additional results
42 cases
  • Smith v. Pace, No. SC 90425.
    • United States
    • United States State Supreme Court of Missouri
    • May 11, 2010
    ...the authority of the court and impeded and embarrassed the administration of justice." See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). The jury found Smith guilty of criminal contempt. Following the verdict, the court entered an order of commitment for crim......
  • State ex rel. City of Crestwood v. Lohman, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • December 13, 1994
    ...rights. The Supreme Court reaffirmed the viability of these principles only a few months ago. See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573 (Mo. banc 1994) (mandamus may not be used to establish a new right, but only to compel performance of an existing one; it is to execute, not t......
  • State v. Lee, No. WD 71924.
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2011
    ...and 476.140 RSMo. See, e.g., State ex rel. Picerno v. Mauer, 920 S.W.2d 904 (Mo.App.1996), and State ex rel. Chassaing v. Mummert, 887 S.W.2d 573 (Mo. banc 1994). The issue of the availability of such contempt power is not invoked here and, therefore, is not specifically addressed. But cert......
  • State ex rel. Cohen v. Riley, No. 81192
    • United States
    • United States State Supreme Court of Missouri
    • June 1, 1999
    ...7 State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986) (internal citations omitted). 8 State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1 Federal rule 65(a)(2) provides that the order of consolidation may be made "before or after the commencement of the hea......
  • Request a trial to view additional results

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