State ex rel. Mountjoy v. Bonacker, 17832

• Decision Date: 29 April 1992
• Docket Number: No. 17832,17832
• Citation: 831 S.W.2d 241
• Parties: STATE of Missouri ex rel. Thomas E. MOUNTJOY, Prosecuting Attorney, Greene County, Missouri, Relator, v. Honorable Don BONACKER, Judge of the Circuit Court of Greene County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 241

831 S.W.2d 241

STATE of Missouri ex rel. Thomas E. MOUNTJOY, Prosecuting Attorney, Greene County, Missouri, Relator, v. Honorable Don BONACKER, Judge of the Circuit Court of Greene County, Missouri, Respondent.

No. 17832.

Missouri Court of Appeals,

Southern District,

Division Two.

April 29, 1992.

Cynthia A. Rushefsky, Asst. Pros. Atty., Springfield, for relator.

No brief filed by respondent.

SHRUM, Presiding Judge.

The relator Thomas E. Mountjoy, Prosecutor of Greene County, seeks a writ of prohibition to disqualify the respondent, the Honorable Don Bonacker, from proceeding in a criminal case pending in the Greene County Circuit Court. On October 31, 1991, this court issued a preliminary writ in prohibition.

At issue is the change of judge rule, Supreme Court Rule 32.07, specifically the notice provision which appears in subsection We answer the question in the negative and make the writ of prohibition absolute.

                (d). 1  The question presented is whether the respondent properly refused to sustain the relator's application because the Rule 32.07(d) notice did not accompany the application for change of judge and the relator did not provide the notice within the time frame prescribed by Rule 32.07(c) for filing the application
                

FACTS

On September 20, 1991, a case styled State v. Michael Wayne O'Connor, No. CR191-9FX-3, was assigned to the respondent. On that date O'Connor appeared before the respondent and was arraigned. Trial was scheduled for November 18, 1991. Twenty-one days after O'Connor's arraignment, on October 11, 1991, the relator filed a request for a change of judge and mailed a copy of the request to O'Connor's attorney.

On October 22, 1991, more than 30 days after arraignment, the relator filed a "Notice of Hearing" requesting an October 25, 1991, hearing on his application and mailed a copy of the notice to O'Connor's attorney.

At an October 24, 1991, pretrial hearing, the respondent was advised that O'Connor had received copies of the relator's application and notice and that he had no objection to a change of judge or to the notice.

On October 25, 1991, the respondent made the following docket entry:

The Court announces that on Tuesday November 5, 1991 it will deny the Request for Change of Judge for the reason that [it] was not filed within 30 days of arraignment and that a Notice of Hearing filed within the 30 day period is essential.

The trial court's announcement prompted the relator to file his petition in which he requested that we prohibit the respondent from taking any further action in the O'Connor case other than sustaining the request for a change of judge. We issued a preliminary writ.

By his November 20, 1991, answer to the relator's petition, the respondent, represented by O'Connor's attorney, admitted that O'Connor received copies of the application and the notice, that O'Connor had no objection to a change of judge or to the notice of hearing, and that at the October 24, 1991, pretrial hearing the respondent was advised of O'Connor's receipt of the application and notice and his lack of objection. However, the respondent denied that the application complied with Rule 32.07, reiterating the reason stated in the October 25 docket entry, namely, that the "Notice of Hearing was not filed and served until after thirty (30) days from arraignment," and adding as a second reason that the application itself "failed to contain a notice of when said [application] would be presented to the Court."

DISCUSSION AND DECISION

"Prohibition is an independent proceeding to correct or prevent judicial proceedings that lack jurisdiction." State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986). A trial judge lacks jurisdiction, and prohibition lies if, upon proper application for disqualification, a judge fails to disqualify himself. Id. at 943.

The change of judge procedure in a criminal case is set out in Rule 32.07; in a civil action, in Rule 51.05. ² The criminal and civil change of judge systems are "parallel," State ex rel. McNary v. Jones, 472 S.W.2d 637, 640 (Mo.App.1971), and, in many respects, the rules are virtually identical in language.

In both criminal cases and civil actions, the right to disqualify a judge is "one of the keystones of our legal administrative edifice." State ex rel. Campbell v. Kohn, 606 S.W.2d 399, 401 (Mo.App.1980). " '[N]o 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....' " Raack, 720 S.W.2d at 943 (quoting McNary, 472 S.W.2d at 639). This crucial need for public confidence in the judicial system requires us to liberally construe statutes and rules in favor of the right to disqualify. Raack, 720 S.W.2d at 943. It is not surprising, then, that the right of a litigant to disqualify a judge has been described as "virtually unfettered." Medawar v. Gaddis, 779 S.W.2d 323, 326 (Mo.App.1989).

Our supreme court has made clear that a party in a criminal case has a right to one trial judge disqualification. Matter of Buford, 577 S.W.2d 809, 828 (Mo. banc 1979); Rule 32.07(a) and (e); Rule 32.09. See also State ex rel. Campbell v. Moon, 809 S.W.2d 458, 459 (Mo.App.1991). If the request is "in proper order" the trial judge's duty is to sustain it, Buford, 577 S.W.2d at 828; see also State v. Hornbuckle, 746 S.W.2d 580, 584 (Mo.App.1988); Rule 32.07(e).

In his suggestions in opposition to prohibition, the respondent cites State v. Williams, 747 S.W.2d 635 (Mo.App.1988), State ex rel. Jackson v. Thompson, 661 S.W.2d 677 (Mo.App.1983), and State v. Bowling, 734 S.W.2d 565 (Mo.App.1987), as authority for denying the relator's request for a change of judge. He asserts these three opinions "stand for the proposition that for a Request for Change of Judge to be in proper form, it has to contain a notice of time when it will be presented to the Trial Court." The respondent argues that the relator's notice, coming as it did more than 30 days after arraignment, "did not cure this defect." For reasons we discuss later, we do not believe Williams, Jackson, and Bowling compel the interpretation of Rule 32.07 urged by the respondent.

First we examine the language of Rule 32.07 which we do not believe requires the construction that the respondent advocates. Although subsection (c) prescribes when an application must be filed, the rule does not specify a time period for serving the notice required by subsection (d). If the supreme court had intended that a notice be filed within the period required for filing an application, it could have said so in Rule 32.07(c), e.g., "In felony cases the application and a notice of the time when it will be presented to the court must be filed not later than thirty days...." Or it could have written Rule 32.07(d) to reflect an intent that notice be served within a specified time period. Moreover, had the court intended that the notice necessarily accompany the application, it could have written the rule to state that requirement. The fact that the supreme court did not refer to a notice requirement in 32.07(c), did not specify a time period for notice in 32.07(d), and did not, in a temporal sense, explicitly link the two requirements convinces us that the court contemplates that filing the application and giving the notice may be treated as separate events. ³

This distinction between application and notice is consistent with the purpose of Rule 32.07, which is to assure fairness to litigants in exercising their privilege to disqualify a trial judge, while, at the same time, avoiding undue delay in the proceedings. As the court said in Hornbuckle While society and courts desire that justice be done, disqualification of judges cannot be "too easy" or "too hard." If disqualification is "too easy, both the cost and the delay of justice go out of bounds. If disqualification is too hard, cases may be decided quickly, but unfairly." Under Missouri practice, a middle ground and a proper balance has been sought and, we believe, achieved, insofar as possible to do so.

746 S.W.2d at 584-85 (citations omitted).

Achieving that middle ground by allowing a litigant to disqualify a judge may at times "snarl the smooth flow of a court's docket.... [T]hat is the price to be paid for a judicial system that seeks to free a litigant from a feeling of oppression." Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 337 (Mo.App.1983) (quoting McNary, 472 S.W.2d at 639-40).

Rule 32.07 addresses the tension described in Hornbuckle, Reproductive Health Services, and McNary. Subsections (a) and (e) promote the policies that underlie the "virtually unfettered" right, earlier discussed, of a litigant to one trial judge disqualification. See, e.g., Raack, 720 S.W.2d at 943; Buford, 577 S.W.2d at 828; Campbell, 606 S.W.2d at 401; Medawar, 779 S.W.2d at 326; Hornbuckle, 746 S.W.2d at 584; Moon, 809 S.W.2d at 459. ⁴

Subsection (c) is designed to avoid undue delay in the proceedings and permit the trial court to administer justice in an orderly fashion. The litigant, or the litigant's attorney, has exclusive control over when to file an application for change of judge. It is not unreasonable to require that the application be filed within a certain time frame to facilitate the expeditious movement of cases. See State ex rel. Ford Motor Co. v. Hess, 738 S.W.2d 147, 148 (Mo.App.1987) (applying Rule 51.05).

Subsection (d) protects the interests of the party not seeking a change of judge by requiring service on that party of a copy of the application and a notice of when the application will be presented to the trial court. We agree with Judge Greene's observation in his concurring opinion in Bowling that the notice requirement is for the benefit of the party who might wish to oppose the application; it is not for the benefit of the trial judge. 734 S.W.2d at 577....