State ex rel. R. L. W. v. Billings

• Decision Date: 09 March 1970
• Docket Number: 54707,Nos. 54706,s. 54706
• Citation: 451 S.W.2d 125
• Parties: STATE ex rel. R. L. W., a Minor, Relator, v. The Honorable William H. BILLINGS, Judge of the Circuit Court of Stoddard County, Missouri, Respondent. STATE ex rel. W.L.R., a Minor, Relator, v. The Honorable William H. BILLINGS, Judge of the Circuit Court of Stoddard County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 125

451 S.W.2d 125

STATE ex rel. R. L. W., a Minor, Relator, v. The Honorable William H. BILLINGS, Judge of the Circuit

Court of Stoddard County, Missouri, Respondent.

STATE ex rel. W.L.R., a Minor, Relator, v. The Honorable William H. BILLINGS, Judge of the Circuit

Court of Stoddard County, Missouri, Respondent.

Nos. 54706, 54707.

Supreme Court of Missouri, En Banc.

March 9, 1970.

C. H. Parsons, Jr., Dexter, for relator Watkins.

Briney, Welborn & Spain, Joe C. Welborn, Bloomfield, for relator Reutzel.

Hiram H. Lesar, St. Louis, amicus curiae.

CHARLES SHANGLER, Special Judge.

In these original proceedings in prohibition, juvenile relators seek to prevent the respondent Judge of the Juvenile Division of the Circuit Court of Stoddard County, Missouri, from taking any further action, other than to enter orders disqualifying himself, under petitions alleging that relators were in need of care and treatment because they had violated state law. The inquiry under the petitions related to the alleged activity of the juveniles, aged 13 and 15 years respectively, who in the company of each other, broke into and entered a shed adjoining a residence and stole $200 from a trunk found there.

The court scheduled a hearing upon the petitions 'to determine possible delinquency ¹ and possible commitment to the State Training School'. The relators filed their timely applications under Civil Rule 51.03(b), V.A.M.R., for the disqualification of the respondent judge, alleging that they could not have a fair trial before him because of his prejudice against them. Respondent denied the applications on the stated ground that: '(T)he Juvenile Code is a code in itself and there are no provisions for disqualifying the juvenile judge and therefore the application for disqualification of the juvenile judge is denied.' The hearing on the petitions was reschedlued. Each relator filed his Petition for Writ of Prohibition in this court alleging, in substance, the matters we have described. We ordered the cases consolidated and our provisional rule issued. We appointed the Honorable Hiram H. Lesar, Dean of the Law School, Washington University, St. Louis, Missouri, as amicus curiae to brief the respondent judge's side of the question raised by the pleadings. In his return, the respondent judge admitted that he had denied the relators' application to disqualify him, but alleged that it was proper to have done so as 'Juvenile Court proceedings are governed by the Juvenile Code, which, unlike the Rules of Civil Procedure, contains no provision for disqualifying the judge'.

The single question raised by the pleadings, therefore, is whether a juvenile court judge can be disqualified. We have concluded that he can, and therefore, our provisional rule in prohibition is made absolute.

Our decisions have long held, and the parties do not challenge the validity of that holding, that the right to a change of venue or to disqualify the judge did not exist except as granted by operative statute. Heather v. City of Palmyra, 311 Mo. 32, 276 S.W. 872, 875; Cole v. Cole, 89 Mo.App. 228, 233. The promulgation of Civil Rule 51.03, V.A.M.R., however, had the effect of superseding Sec. 508.090, which dealt with the same procedural subject. The rule, as did its predecessor statute, provides for a change of venue or disqualification of judge 'in any civil suit'. If it can be demonstrated, therefore, that the pending proceedings against them are properly characterized as 'civil suits' within the meaning of the rule, relators' right to require respondent's disqualification will have been established and, hence, their right to our absolute rule in prohibition.

In construing change of venue statutes, including Sec. 508.090, we have defined 'civil suits' to be those proceedings whereby the rights of private persons are protected or enforced, as contradistinguished from 'criminal cases' which refer to public wrongs and their punishment. State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567, 568--569; Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 326--327. See, also: In re Estate of Boeving, Mo.App., 388 S.W.2d 40, 50. Essentially, therefore, civil suits are all those that are not criminal. State ex rel. Sharp v. Knight, 224 Mo.App. 761, 26 S.W.2d 1011, 1014. But we are not bound to the limits of this judicial definition of 'civil suits' because, in any event, the provisions of the Rules of Civil Procedure are by their terms made generically applicable to juvenile court proceedings. Furthermore, the legislature has explicitly affirmed that juvenile proceedings are not criminal cases (Sec. 211.271). A delinquency hearing, therefore, is not a 'criminal case', as it does not charge the juvenile with the commission of a crime, even though the conduct alleged against him may be the violation of a criminal law. It is but the assertion of 'the state's power, parens patriae, for the reformation of a child and not for his punishment under the criminal law * * *'. State ex rel. Matacia v. Buckner, 300 Mo. 359, 254 S.W. 179, 181; State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37, 39; State v. Harold, Mo.App., 281 S.W.2d 605, 606. And, although of late the parens patriae concept has come into such serious question as to have been 'considerably shaken', juvenile proceedings still are not 'criminal cases'. State ex rel. Arbeiter v. Reagan, Mo., 427 S.W.2d 371, 375.

Sec. 211.171(6) provides: 'The practice and procedure customary in proceedings in equity shall govern all proceedings in the juvenile court.' ² As used in the Juvenile Act (Chapter 211, V.A.M.S., 1959), "Juvenile court' means * * * the circuit court of each county, except that in the judicial circuits having more than one judge, the term means the juvenile division of the circuit court of the county.' The Rules of Civil Procedure, in turn, unless otherwise thereafter provided by statute, are made to specifically govern 'the practice and the procedure in all suits and all proceedings of a civil nature, legal, equitable and special in the * * * Circuit Courts * * *'. (Civil Rule 41.02, V.A.M.R.) Finally, Civil Rule 42.01, V.A.M.R. provides: 'There shall be one form of action to be known as 'civil action".

Considering all these provisions together, and considering as well the essentially equitable provenance and purpose of the Juvenile Act (as expressed in Sec. 211.011) ³ and the statutory direction that equity practice govern all proceedings in the juvenile court, it is reasonable that such proceedings should be treated as equitable for procedural purposes. Now, by the explicit provisions of Civil Rule 41.02, 'equitable' proceedings are made to come under the governance of the Rule of Civil Procedure. One of the procedural rights attending a suit in equity, as a species of a civil suit, is that of a change of venue. Walker v. Ellis, 146 Mo. 327, 48 S.W. 457, 458. A juvenile court is but a division of the circuit court and is thus a court of record. In re McFarland, 223 Mo.App. 826, 12 S.W.2d 523, 527; Sec. 211.021(3); see also: Article V, Sec. 28, Missouri Constitution, 1945, V.A.M.S. Therefore, the Rules of Civil Procedure apply, generally to juvenile court proceedings in the only form of action recognized for procedural purposes, a civil suit or action. Thus, the delinquency proceedings pending against the relators are 'civil suits' and, unless there are supervening reasons why it should not be, Civil Rule 51.03 relating to disqualification of judge in a 'civil suit' is applicable to them.

Respondent insists that, as the Juvenile Act (Chapter 211) is 'a complete law within itself', it would be inconsistent to require the proceedings in juvenile court to conform to any other prescribed procedure. Unquestionably, Chapter 211 contains numerous provisions, all of which apply exclusively to proceedings under it and which are intended to implement the unique statutory purpose of the Act. Thus, as respondent points out, a procedure is prescribed from the time a child is taken into custody (Sec. 211.061), relating to such matters as the form and contents of the petition (Sec. 211.091), issuance and service ice of summons (Secs. 211.101, 211.111), hearing procedure (Sec. 211.171), types of orders (Secs. 211.181, 211.201, 211.231, 211.241) and their modification (Sec. 211.251). In addition, the hearing procedure is left to the determination of the juvenile court judge (Sec. 211.171(1)).

While it has been frequently held that the Juvenile Act is a complete law within itself dealing with minors under the age of seventeen years (State ex rel. Shartel v. Trimble, supra, p. 38; State v. Heath, 352 Mo. 1147, 181 S.W. 517, 519; In re interest of C_ _, Mo.App., 314 S.W.2d 756, 760; State v. Harold, supra, 281 S.W.2d p. 606), it is obvious that the Act does not purport to set up its own procedures in all respects. For instance, while it provides for an appeal from judgments, orders or decrees entered by the Juvenile Court (Sec. 211.261), no provision is made for the procedure to be followed on appeal. When confronted with such lapses, the courts have tended to treat proceedings under the Juvenile Act in much the same manner as they have those special actions (Civil Rules 85 through 102, and certain other statutory actions) for which special procedures have been established suitable to their distinctive remedial purposes, but which were not intended to meet every procedural exigency. In such instances, the Rules of Civil Procedure (which have been made to govern special proceedings through Civil Rule 41.02) have been made applicable to such special action statutes where not inconsistent with or repugnant to them. State ex rel. R--1 School Dist. of Putnam County v. Ewing, Mo.App., 404 S.W.2d 433, 439 (Mandamus, Civil Rule 94); Associated Grocers' Co. of St. Louis, Mo. v. Crowe, Mo.App., 389 S.W.2d 395, 398--9 (Petition for Review under Sec. 288.210, V.A.M.S.); Herrman v. Dixon, Mo.App., 285 S.W.2d 716,...