State ex rel. Wesolich v. Goeke
| Decision Date | 07 August 1990 |
| Docket Number | No. 57985,57985 |
| Citation | 794 S.W.2d 692 |
| Parties | STATE of Missouri, ex rel., Elizabeth S. WESOLICH, Relator, v. The Honorable Joseph GOEKE, III, Respondent. |
| Court | Missouri Court of Appeals |
Bertram Cooper & Judith Kleinberg, St. Louis, for relator.
Dewey S. Godfrey, Jr., St. Louis, for respondent.
Relator, Elizabeth S. Wesolich (wife), seeks a writ of prohibition to disqualify respondent, the Honorable Joseph Goeke III (judge), from proceeding in the case of Elizabeth S. Wesolich v. Robert J. Wesolich, No. 572022, a dissolution action pending in the Circuit Court of St. Louis County. On February 22, 1990, we issued our preliminary order in prohibition. We now make the writ of prohibition absolute.
"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). If a judge either fails to disqualify himself upon a proper application or denies the application without a proper hearing, he is without jurisdiction and prohibition lies. See, e.g., Id.
The record on appeal is sparse. Because there was no transcription either of any evidence or of any discussion between counsel and the court below, some of the "facts" argued by wife on appeal are not of record and therefore must be disregarded. By way of background, however, it is clear that wife brought an action for dissolution of marriage against her husband, Robert J. Wesolich. The case was assigned to judge for trial. At the request of wife, a pretrial conference was held before judge on February 6, 1990. Counsel for both parties to the dissolution action were present. A discussion ensued between the lawyers and judge regarding a possible disposition of the case. Although the exact content of that conference is disputed, it is agreed that the attorneys and judge discussed the distribution of the parties' home as marital property. At a minimum, judge indicated to the attorneys that, in judge's own dissolution, the family home was distributed in a particular manner. He suggested that a resolution similar to the one in his dissolution was an alternative that he might consider if he heard the case as a contested matter. Specifically, he said that he might allow the husband to remain in the family home with the two minor children until the younger of the children was emancipated and then require the husband to pay wife her share of the house's value in equal installments over a period of five years.
Thereafter, on February 13, 1990, wife presented her motion for change of judge. The motion read as follows:
COMES NOW the Petitioner, by and through her attorney, and moves this Court to grant to Petitioner a change of Judge, on the following grounds:
1. That on February 6, 1990, the Court met with counsel for the parties, in a pre-trial settlement conference.
2. At said pre-trial settlement conference, the Court was informed of the respective issues and positions of the parties.
3. The Court told the attorneys for the parties that the issues presented in the above cause of action, involved the same issues in the Court's own Dissolution of Marriage proceeding, and the Court indicated that he felt that it would be appropriate to resolve the issues in the instant action in the same manner that the issues were resolved in the Court's own Dissolution of Marriage proceeding.
4. That the court's comments to both counsel have demonstrated a bias and prejudice against Petitioner.
WHEREFORE, Petitioner moves this Court for a Change of Judge in the above cause.
[Counsel's signature]
* * * * * *
[A]ttorney for Petitioner, states that the facts alleged in the above Motion are true and correct, according to his best knowledge, information and belief.
[Counsel's signature]
After argument by the attorneys, judge denied the motion. Because no record was made, the procedural and substantive aspects of the allegations contained in wife's motion are the focus of this writ proceeding.
State ex rel. McNary v. Jones, 472 S.W.2d 637, 639-640 (Mo.App.1971). Indeed, 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). It is vital to public confidence in the legal system that decisions of the court are not only fair, but also appear fair. Thus, whether the disqualification of a judge hinges on a statute or on a rule, we adhere to the liberal construction of that statute or rule in favor of the right to disqualify. A liberal construction is necessary if we wish to promote and maintain public confidence in the judicial system. Kohn, 606 S.W.2d at 401; State ex rel. Ford Motor Co. v. Hess, 738 S.W.2d 147, 148 (Mo.App.1987).
This case reflects the practice of the informal pretrial conference whereby, prior to trial, the lawyers confer with the judge and set forth the evidence that might be adduced if the case were tried as a contested matter. The attorneys then attempt to elicit the judge's opinion regarding a possible settlement of the case. After the conference, it is customary for the attorneys to discuss the judge's suggestions with their clients. It is imperative that the judge not be unduly guarded in these exchanges with the lawyers. Otherwise, the purposes of the pretrial conference are eviscerated. It is equally important, however, that the judge avoid a firm expression of prejudgment on the case prior to hearing all of the evidence. See State v. Lovelady, 691 S.W.2d 364, 367 (Mo.App.1985).
The present writ proceeding illustrates the problems that can occur as a result of a pretrial conference in a court-tried case, especially when the judge who participates in the pretrial conference is the same judge who will ultimately hear the case if it is not settled. When a trial judge, rather than a jury, assumes the role of fact finder, the litigants view anything that might influence that fact finding function as critical. Yet, pretrial conferences are vital to the expeditious disposition of cases. Without the settlements which result therefrom, dockets would stagnate; and the delays, which are already too lengthy, would become inordinate.
Because of the acrimony inevitably associated with a contested dissolution case, parties to such an action are particularly wary of the judge sitting as the fact finder. Although we do not speak to the merits of the underlying action in the case before us, it is likely that in any dissolution proceeding one or both of the litigants emerge feeling that the final decree entered by the trial judge is erroneous. Frequently, each party leaves the courtroom feeling that he or she lost. Even in the best of circumstances, a litigant's confidence in the integrity of the judicial system is shaken. When a litigant's general disillusionment with the judicial process combines with a litigant's specific perception that the trial judge was biased or prejudiced in his or her case, the goal of maintaining broad confidence in our court system is ill-served.
Subject to certain minimal procedural requirements, any party is entitled to one change of judge as a matter of right. See Rule 51.06. Rule 51.05 governs peremptory disqualification of a judge in a civil matter. Under that rule, the only prerequisite for obtaining a change of judge is a timely application and service of a copy of the application and notice of hearing on the other party. Hess, 738 S.W.2d at 148. No reason need be alleged for the disqualification under Rule 51.05. Upon presentation of a timely application for change of judge, the judge shall sustain the application. Rule 51.05(e).
The record reveals, and it is conceded by wife, that her motion for change of judge did not fall within the time constraints of Rule 51.05, and thus she was not entitled to an automatic change of judge. She argues, however, that she was entitled to a change of judge under the statutes which govern disqualification of judges for cause, Sections 508.090 through 508.140, RSMo (1986), under the Code of Judicial Conduct, Rule 2, Canon 3 C(1), or under both.
Judge alleges that wife's motion was procedurally defective because wife failed to comply with Section 508.130 which requires that a signed affidavit be affixed to the petition. Section 508.130 provides in pertinent part:
Any party, his agent or attorney, may present to the court, or judge thereof in vacation, a petition setting forth the cause of his application for disqualification of the judge or for a change of venue, and when he obtained his information and knowledge of the existence thereof; and he shall annex thereto an affidavit, made by himself, his agent or attorney, to the truth of the petition, and that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged....
Here, the motion for disqualification of judge was verified. It was therefore not necessary for wife to annex to the motion a separate affidavit attesting to the truth of the petition. See La Grange Elevator Co. No. 111 v. Richter, 129 S.W.2d 22, 24-25 (Mo.App.1939). In addition, although the motion did not adopt the literal language of the statute which requires the affiant to recite that he has "just cause to believe" that he cannot "have a fair trial on account of the cause alleged," the fourth paragraph of wife's motion alleged "[t]hat the Court's comments to both counsel have demonstrated a bias and prejudice against Petitioner [wife]." This language was in substantial compliance with the statute. In fact,...
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