State ex rel. Nassau v. Kohn, 68562

• Decision Date: 16 June 1987
• Docket Number: No. 68562,68562
• Citation: 731 S.W.2d 840
• Parties: STATE ex rel. Fairy M. NASSAU, Co-Personal Representative of the Estate of Charles R. Nassau, Deceased, Relator, v. Honorable Louis M. KOHN, Judge, Circuit Court, St. Louis County, Respondent.
• Court: Missouri Supreme Court

Page 840

731 S.W.2d 840

STATE ex rel. Fairy M. NASSAU, Co-Personal Representative of the Estate of Charles R. Nassau, Deceased, Relator, v. Honorable Louis M. KOHN, Judge, Circuit Court, St. Louis County, Respondent.

No. 68562.

Supreme Court of Missouri En Banc.

June 16, 1987.

Rehearing Denied July 14, 1987.

David L. Campbell, St. Louis, for relator.

Louis M. Kohn, Judge, St. Louis County Circuit Court, Clayton, for respondent.

RENDLEN, Judge.

Relator, Fairy M. Nassau, co-personal representative of the Estate of Charles R. Nassau, filed a Motion to Disqualify Judge seeking disqualification of respondent, the Honorable Louis M. Kohn, in all proceedings relating to the matter of the Estate of Charles R. Nassau, No. 85,402, in the Probate Division of the Circuit Court of St. Louis County. Respondent ordered:

The court considers a motion by Fairy M. Nassau, a co-personal representative, filed July 28, 1986, to disqualify the judge of this division and to transfer to another judge all proceedings, and it appearing that movant under oath alleges that the judge of this division is biased and prejudiced against her and that there are pending before this division petitions captioned Petition for an Order Permitting Independent Administration filed June 23, 1986, Petition for Order of Partial Distribution filed June 23, 1986, and Petition for Family Allowance and Allowance of Exempt Property filed March 17, 1986, it is hereby ORDERED that the clerk of this division transfer all pending matters except the Petition for Family Allowance and Allowance of Exempt Property for the reason that said matter has been partially presented to the court and all further matters to the circuit clerk for reassignment and assignment to another judge of this circuit for hearing and determination.

(Emphasis added.) Relator unsuccessfully sought a writ of mandamus from the Court of Appeals, Eastern District, and subsequently filed her Petition for Writ of Mandamus with this Court requesting that we order respondent to extend his disqualification to the Petition for Family Allowance and Allowance of Exempt Property and to all subsequent proceedings to which relator is a party and that we assess attorney's fees and costs against respondent. We have jurisdiction over this original proceeding in mandamus. Mo. Const. art. V, § 4. Our alternative writ in mandamus previously entered is now made peremptory.

Relator submits that pursuant to § 472.060, RSMo 1986, respondent was required to disqualify himself from and transfer to another judge of the Circuit Court of St. Louis County the Petition for Family Allowance and Allowance of Exempt Property. Section 472.060 provides:

No judge of probate shall sit in a case in which he is interested, or in which he is biased or prejudiced against any interested party, or in which he has been counsel or a material witness, or when he is related to either party, or in the determination of any cause or proceeding in the administration and settlement of any estate of which he has been personal representative, conservator, or guardian, when any party in interest objects in writing, verified by affidavit; and when the objections are made, the cause shall be transferred to another judge, in accordance with the rules of civil procedure relating to change of judge, who shall hear and determine same; and the clerk of the circuit court or division clerk shall deliver to the probate division of the circuit court a full and complete transcript of the judgment, order or decree made in the cause, which shall be kept with the papers in the office pertaining to such cause.

(Emphasis added.) Respondent maintains that as to the Petition for Family Allowance and Allowance of Exempt Property the motion to disqualify was not timely filed in that "respondent at the request of relator had commenced consideration of the matter, had exercised judicial discretion and had made material determinations of fact." Relator counters that the petition had not been heard nor taken under submission for decision.

Recently we reiterated that:

"[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...." State ex rel. McNary v. Jones, 472 S.W.2d 637, 639 (Mo.App.1971). For this reason, we have liberally construed disqualification provisions in favor of the right to disqualify. State ex rel. Campbell v. Kohn, 606 S.W.2d 399 (Mo.App.1980).

State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986).

Section 472.060 dictates that "when the objections are made, the cause shall be transferred to another judge" and thereby permits the automatic disqualification of a trial judge by "any party in interest" upon the filing of a verified affidavit alleging grounds for disqualification. Section 472.060, unlike Rule 51.05, ¹ does not explicitly provide a time limitation for the filing of a motion to disqualify. However, we agree with the general proposition, advanced by respondent, that a party may in effect waive his right to disqualify under § 472.060 through delay in filing the motion. Accordingly we hold that a party who unduly delays the filing of a motion to disqualify under § 472.060 waives his right to automatic disqualification under that statute. Such rule is necessary in order to prevent the unnecessary burden upon judicial administration caused by an unreasonable delay and to prevent a party from disqualifying a judge after first determining the judge's inclination on the merits. Note, State Procedures for Disqualification of Judges for Bias and Prejudice, 42 N.Y.U.L.Rev. 484, 505 (1967).

The difficult question is not whether a filing of a motion under § 472.060 must be made by an exact moment, but, rather, at what stage in the proceeding has there been sufficient undue delay in the motion's filing to render it untimely? Keeping in mind that "the right to disqualify a judge ... is one of the keystones of our legal administrative edifice" and that disqualification provisions are to be liberally construed in favor of the right to disqualify, State ex rel. Campbell v. Kohn, 606 S.W.2d 399, 401 (Mo.App.1980), we believe the motion is not untimely filed unless it is clear from the record that the "trial" or hearing of the matter has commenced or the cause ordered taken under submission by the court.

With respect to the Petition for Family Allowance and Allowance of Exempt Property, respondent maintains that relator's motion to disqualify was not timely filed in that "respondent at the request of relator had commenced consideration of the matter, had exercised judicial discretion and had made material determinations of fact." As support for this, respondent alleges as follows: Subsequent to the filing of relator's Petition for Family Allowance and Allowance of Exempt Property, he and relator's counsel (who also was a co-personal representative and who is not present counsel for relator before this Court) engaged in ex parte, in-chamber discussions concerning the petition. Respondent advised counsel the court would need an itemized statement from relator regarding her needs and nonprobate assets she received from decedent. Thereafter on April 15, 1986, counsel mailed to the court, with an...