State ex rel. McNary v. Jones

• Decision Date: 27 July 1971
• Docket Number: No. 34249,34249
• Citation: 472 S.W.2d 637
• Parties: STATE of Missouri ex rel. The Honorable Gene McNARY, Prosecuting Attorney, St. Louis County, Missouri, Relator, v. The Honorable Douglas L. C. JONES, Judge, Division Five, Twenty-first Judicial Circuit Court, St. Louis County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 637

472 S.W.2d 637

STATE of Missouri ex rel. The Honorable Gene McNARY Prosecuting Attorney, St. Louis County, Missouri, Relator, v. The Honorable Douglas L. C. JONES, Judge, Division Five Twenty-first Judicial Circuit Court, St. Louis County, Missouri, Respondent.

No. 34249.

St. Louis Court of Appeals, Missouri.

July 27, 1971.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 6, 1971.

Application to Transfer Denied Dec. 13, 1971.

Gene McNary, Pros. Atty., Donald J. Weyerich, First Asst. Pros. Atty., Michael Turken, George Westfall, Asst. Pros. Attys., Clayton, for relator.

Heneghan, Roberts & Godfrey by Carl R. Gaertner, St. Louis, for respondent.

Charles Blackmar, Harold C. Gaebe, Jr., St. Louis, for Metropolitan Bar Ass'n of St. Louis, amicus curiae.

Lashly, Caruthers, Rava, Hyndman & Rutherford by Albert J. Stephan, Jr., St. Louis, for 21st Judicial Circuit Court en Banc, amicus curiae.

PER CURIAM:

Original proceeding in prohibition by the relator Prosecuting Attorney to bar the respondent Circuit Judge from proceeding in a criminal case after the Prosecuting Attorney under Rule 30.12 ¹ had filed in three days the ninth consecutive affidavit to disqualify the Judge.

As far as material here Rule 30.12 states: 'The judge shall be disqualified if the defendant or the prosecuting attorney shall file an affidavit stating the defendant or the state cannot have a fair and impartial trial by reason of the interest or prejudice of the judge.' We note initially that Rule 30.12 originally granted only the defendant, not the state, the right to disqualify the trial judge upon affidavit. By its amendment to Rule 30.12, effective May 15, 1957, the Missouri Supreme Court extended that right to the state upon affidavit of the prosecuting attorney.

When the case of State of Missouri v. Michael Brockman was called on the Judge's May 20th docket the Prosecuting Attorney filed, as he had in the preceding eight cases assigned to the Judge, a motion to disqualify the Judge supported by the following affidavit: 'Comes now the Prosecuting Attorney, Gene McNary, and having been duly sworn upon his oath states and avers that to the best of his knowledge, information and belief, the State of Missouri cannot receive a fair and impartial trial by reason of the interest and prejudice of the Honorable Douglas L. C. Jones, Judge, St. Louis County Circuit Court.'

The Judge stated he could not 'go behind the affidavit' but opined nonetheless that it was 'not filed in good faith' and in order 'to get this thing off the ground' he then denied the motion to disqualify and subject to leave to the Prosecuting Attorney to apply for a writ of prohibition ordered him to proceed to trial. That same day we granted our preliminary writ. In due time the Judge filed his return thereto and both parties have filed briefs. By leave the Twenty-first Judicial Circuit Court and the Bar Association of Metropolitan St. Louis have filed amicus curiae briefs. All have made oral arguments. The briefs and oral arguments of counsel are examples of the finest professional advocacy.

A preliminary issue concerns the pleadings. The Prosecuting Attorney's petition pleaded his affidavit and motion to disqualify were made in good faith. By his return the Judge pleaded that the Prosecuting Attorney's affidavit was filed in bad faith. Although we granted the Prosecuting Attorney seven days to file a reply he did not do so. The Judge now contends the Prosecuting Attorney has thereby admitted the Judge's allegation of the Prosecuting Attorney's bad faith. The judge relies on an abstract statement, apparently obiter, in State ex rel. Reeves v. Brady, Mo., 303 S.W.2d 22(1). Cases therein cited hold that in a prohibition case material allegations of new matter in a return are taken as confessed if not denied by a reply. The Judge's allegation of the Prosecuting Attorney's bad faith certainly was not new matter; it merely traversed the Prosecuting Attorney's allegation of good faith. We hold the Prosecuting Attorney has not admitted the Judge's charge of bad faith. ² We move on to the merits.

Statutes, court rules and case law aside, plausible philosophical arguments can be made both for and against a litigant's right to disqualify a judge. Judges are members of an honorable profession, are selected for their high positions by the composite will of the people, and each has sworn to perform his duties faithfully. A judge's ability and determination to afford a fair and impartial trial should not be frivolously challenged. Certainly no member of the bar, in keeping with the highest traditions of his profession, should participate in the disqualification of a judge without a profound conviction that the interest of his client requires such drastic action. Nonetheless, no system of justice can function at its best or maintain broad public confidence if a litigant can be compelled to submit his case in a court where the litigant sincerely believes the judge is incompetent or prejudiced. Admittedly, a litigant's challenge to a judge's ability to afford a fair trial may ruffle the judicial feathers and at times, as here, may snarl the smooth flow of a court's docket. Under Rule 30.12 that is the price to be paid for a judicial system that seeks to free a litigant from a feeling of oppression.

Our statutes and court rules have attempted to forge a link between these opposing philosophies. This by enacting parallel systems for changes of judges in both civil ³ and criminal ⁴ cases. The right to disqualify a judge is not unlimited; it is circumscribed in several ways: time of filing, notice, form of affidavit, limit to one disqualification and judicial selection of the new judge. But neither civil nor criminal system makes any requirement for proof of prejudice upon the timely filing of a proper affidavit.

A host of Missouri cases ⁵ has held that when a timely affidavit in proper form is filed the judge may not question its merits but must then disqualify himself and take prescribed steps to obtain another judge. In the early case of Douglass v. White, 134 Mo. 228, 34 S.W. 867 (1896), the supreme court ruled that upon the timely filing of an affidavit of disqualification proper in form 'the duty of the court in the premises is no longer discretionary, but imperative, and the change should go in favor of the litigant asking it, as a matter of right, and not as a matter of favor or discretion.' The latest case in point is State ex rel. Johnson v. Green, Mo., 452 S.W.2d 814 (1970), a prohibition case in which the respondent judge denied the relator's motion for a change of judge in a criminal case. After noting there were no issues raised as to timeliness, form, or sufficiency of the relator's supporting affidavit, the court referred to relator's right to a change of judge under Rule 30.12 as 'unconditional' and said: 'Therefore, the duty of the respondent judge to grant the change of venue was mandatory and he exceeded his jurisdiction when he refused to do so.'

We hold that under the plain wording of Rule 30.12, as interpreted by Green, the right to a change of judge depends on the litigant's sworn belief that the judge is interested or prejudiced rather than on proof of the fact that the judge is interested or prejudiced. Under that rule, the Prosecuting Attorney was entitled to a change of judge, the Judge erred in denying the motion and is exceeding his jurisdiction by proceeding with the case.

In reaching this conclusion we have considered but cannot accept the Judge's other arguments. These in turn.

First, the Judge challenges the form of the affidavit of disqualification since it is based on the Prosecuting Attorney's best knowledge, information and belief rather than on truth. The Judge cites Kelch v. Kelch, Mo.App., 462 S.W.2d 161, holding that under Rule 51.06, applying to civil cases, an application for a change of judge was defective when the applicant failed to swear to the truth thereof. Rule 51.06 does require an averment of truth in the applicant's affidavit and also an averment of the applicant's good faith. But because of the difference in rules Kelch is not in point. Rule 30.12, in issue here, makes no requirement either to truth or good faith; it merely requires an affidavit that the state cannot have a fair trial because of the judge's interest and prejudice. To that the Prosecuting Attorney did swear 'to the best of his knowledge, information and belief.'

In further challenge to the form of the Prosecuting Attorney's affidavit the Judge cites State v. Irvine, 335 Mo. 261, 72 S.W.2d 96, but that case lends support to the Prosecuting Attorney. In that case an earlier disqualification statute required an affidavit stating that the judge will not afford the defendant a fair trial. The defendant swore only that he so believed. In holding this substantially complied with the statute the court said: 'A similar contention was answered, and we think correctly, adversely to the State in State v. Duckworth, supra. As there said,--'They (the affiants) might believe it, but they could not, in the very nature of things, know of a certainty how nor in what manner the judge would be unfair, if permitted to try the case. All they could do, if honest and sincere, was to swear that they believed that he would not afford the defendant a fair trial.' The courts will not so construe a statute as to make it require an impossibility or to lead to absurd...