Judicial Disqualification in Missouri
Rule 51.05 now provides the procedure by which a party can procure a change of judge in a civil case. Rule 51.05(a) states, in pertinent part, that a “change of judge shall be ordered in any civil action upon the timely filing of a written application therefore by any party.” Thus, like its predecessors, Rule 51.05 offers a civil litigant a virtually unfettered right to disqualify a judge on one occasion; and it is still the case that a Missouri litigant who wishes to remove a judge from presiding over a civil proceeding need not allege any cause in order to obtain judicial disqualification.
Pursuant to that rule, whenever a party properly presents and serves a change of judge application the request for a change of judge must be sustained unless it has already been exercised once, or has been waived by allowing the judge to rule on a substantive matter. Rule 51.05, moreover, neither requires any specific form of application, nor that a motion be filed. It should be noted, however, that Missouri’s present civil judicial disqualification rule, as amended, does represent a substantial departure from prior practice in that it mandates that, for a change of judge to be effective, the procedures set forth in Rule 51.05 must be adhered to. The principal requirement is that the request must be made in a timely manner.
Rule 32.07 et seq. is Missouri’s criminal equivalent to Rule 51.05. Like Rule 51.05, Rule 32.07 provides for a one-time peremptory challenge of a judge without cause, as long as that challenge is timely filed. The rule is also like Rule 51.05 in providing that an untimely application may properly be denied. In addition, under Rule 32.07, as under Rule 51.05, no affidavit is needed to effect a change of judge; rather, a simple request triggers the rule – no discretion lies on the part of the challenged judge, who must promptly sustain the application.
Rule 32.09 applies to a second request for a change of judge in a criminal proceeding. Pursuant to that rule and Missouri decisional law interpreting it, a second or successive disqualification of a trial judge is not authorized on “prejudice” grounds. On the contrary, the only consideration is whether fundamental fairness requires disqualification – a matter that is discretionary with the challenged judge himself. Once a party has exercised its unfettered right to disqualify one judge, Rule 32.10 applies. This provision sets forth specific grounds that are deemed to be sufficient to warrant judicial disqualification for cause; for example, where the challenged judge has a proscribed relationship, is interested in the cause, or was “of counsel” in the case. In addition to peremptory court rules, Missouri has a peremptory disqualification statute, Mo. Rev. Stat. §517.061, which provides the procedures for filing an application for a change of judge before associate circuit judges.
Another Missouri peremptory disqualification statute, §472.060, applies only to probate judges. This statute permits an automatic change of judge if the application includes a written objection, verified by affidavit, that the judge is biased against one of the parties.
In Missouri, a number of different statutes govern various aspects of judicial disqualification. For example, Mo. Rev. Stat. §545.660, which was adopted in response to Jim v. State – a case in which a slave had been charged with murder and his “master” was the judge – prescribes that judges are disqualified from presiding over cases whenever they have an interest in the cause. Missouri courts which have been called upon to decide disqualification motions sometimes look, as well, to the provisions of the Missouri Code of Judicial Conduct. In accordance with the Code, litigants who present their disputes to a Missouri court are entitled to a trial which is not only impartial, but which appears to be so.
Pre-eminent among Missouri’s many disqualification provisions are two court rules of general applicability, Rules 51 and 32. These rules basically control the subject of judicial disqualification in Missouri civil and criminal actions respectively. There are also Missouri court rules that pertain to disqualification in discrete types of cases; such as Missouri Supreme Court Rule 12.06, which provides that a judge is disqualified from acting as a judicial officer while a recommendation to the Supreme Court for his removal or retirement is pending, and Missouri Supreme Court Rule 126.01, which applies only to juvenile court judges.
Missouri courts have consistently held that the right of Missouri litigants to disqualify judges is one of the keystones of Missouri’s administrative edifice.
1. For a 2011 Missouri Court of Appeals decision, which analyzed whether the lower court erred in denying a criminal defendant’s motion for change of judge in Missouri click here
2. For a comprehensive overview of recusal and disqualification law in Missouri which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, §§ 27.9 and 28.27. See also McPherson v. United States Physicians Mut. Risk Retention Group, 99 S.W.3d 462, 489 (Mo. App. W. D. 2003), citing R. Flamm, Judicial Disqualification, § 14.3.3 (1996). To locate Missouri libraries that have the current edition of Judicial Disqualification click here
3. For a 2007 law review article by University of Missouri Law School Professor Rodney Uphoff which deals, among other things, with the subject of “biased judges,” click here, citing R. Flamm, Judicial Disqualification (1st Ed. 1996)