Missouri Motions for Change of Judge

Should you consider it, and how do you proceed, if you do?

K. Christopher Jayaram, Esq.Horn Aylward & Bandy LLC

51.05. Change of Judge: Procedure

(a) A change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by aparty. For purposes of this Rule 51, proceedings to revoke probation or judicial parole and motions to modify childcustody, child support, or spousal maintenance filed pursuant to chapter 452, RSMo, are not independent civil actionsunless the judge designated to rule on the motion is not the same judge that ruled on the previous independent action.The application need not allege or prove any cause for such change of judge and need not be verified.

(b) The application must be filed within 60 days from service of process or 30 days from the designation of the trial judge,whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application mustbe filed prior to any appearance before the trial judge.

In the case of intervenors, the application must be filed within 30 days of intervention or designation of the trial judge,whichever is later, but in no event may any intervening party obtain a change of judge pursuant to this Rule 51 unlessthe application is filed within 180 days of the designation of the trial judge.

(c) A copy of the application and notice of the time when it will be presented to the court shall be served on all parties.

51.05. Change of Judge: Procedure(d) Application for change of judge may be made by one or more parties in any of the following classes: (1) plaintiffs;

(2) defendants; (3) third-party plaintiffs (where a separate trial has been ordered); (4) third-party defendants; or (5)

intervenors. Each of the foregoing classes is limited to one change of judge, and any such change granted any one or

more members of a class exhausts the right of all members of the class to a change of judge. However, no party shall

be precluded from later requesting any change of judge for cause. Further, in condemnation cases involving multiple

defendants, as to which separate trials are to be held, each separate trial to determine damages shall be treated as a

separate case for purposes of change of judge.

(e) The judge promptly shall sustain a timely application for change of judge upon its presentation. The disqualified judge

shall transfer the case to a judge stipulated to by the parties if the new judge agrees to take the case. If the case is not so

transferred, the disqualified judge shall notify the presiding judge:

(1) If the presiding judge is not disqualified in the case, the presiding judge shall assign a judge of the circuit who is not

disqualified or request this Court to transfer a judge; or

(2) If the presiding judge is disqualified in the case, a judge of the circuit shall be assigned in accordance with local court

rules, so long as the local court rules do not permit the disqualified judge to make the assignment, or the presiding judge

shall request this Court to transfer a judge.

(f) If after a change of judge has been granted the action shall be removed on application of another party to some other

county in the same circuit, the transferred judge shall continue as the judge therein.

Requirements of Motion.

• The application must be written, but the rule does not require any specific form and thus merely stating “Plaintiff requests a change of judge” is sufficient.• Farnsworth v. Wee, 720 S.W.2d 409 (Mo. Ct. App. W.D. 1986).

• Although a Notice of Hearing is typically required to trigger review, the failure to file such a notice does not impact the validity of the motion or the outcome.

Timing:• The application must be filed within the longer of:

• 60 days after service of process, OR• 30 days after designation of the trial judge.

• If the designation of the trial judge occurs less than 30 days before trial, the application must be filed prior to commencement of any proceeding on the record (an appearance on the record).• In the case of intervenors, the application must be filed within the longer of:

• 30 days of intervention, OR • designation of the trial judge

but in no event may any intervening party obtain a change of judge pursuant to Rule 51, unless the application is filed within 180 days of the designation of the trial judge.

Additional Landmine--Joint Applications for Change of Venue and for Change of Judge.• Rule 51.06 addresses both change of venue and change of judge.• Requires that a class/party that desires both MUST present both at one time

in a “single application”.• Thus, rule 51.05 must be considered and construed in conjunction with Sup.

Ct. R. 51.03, 51.04 and 51.06. • Consequently, a party of the same class that has taken a change of venue without

requesting a change of judge prevents another party of the same class from later obtaining a change of judge under this rule--due to the language of Sup. Ct. R. 51.06, which prohibits an additional change of judge or venue after a previous request.• State ex rel. Smith v. Journey, 533 S.W.2d 589 (Mo. 1976) (noting change of venue granted to

defendant later prohibited newly added defendant from obtaining change of judge).

Review by the trial court of Rule 51.05 motions.• If the requirements are met, the judge must sustain the application,

and failure to do so is an exercise in excess of jurisdiction warranting the extraordinary remedy of prohibition.• State ex rel. Raack v. Kohn, 720 S.W.2d 941 (Mo. 1986); State ex rel.

Blackburn v. Elliston, 796 S.W.2d 637 (Mo. Ct. App. S.D. 1990); State ex rel. King v. Huesemann, 776 S.W.2d 488 (Mo. Ct. App. S.D. 1989).

Who is entitled to file a Rule 51.05 Motion?

• Application for change of judge under this rule may be made by one or more parties in any of the following classes:

(1) Plaintiffs,(2) Defendants,(3) Third Party Plaintiffs (where a separate trial has been ordered),(4) Third Party Defendants, and(5) Intervenors.

• Each of these classes is limited to one change of judge and any such change granted any one member of a class exhausts the right of all members of the class to a change of judge, except in condemnation cases involving multiple defendants as to which separate trials are to be held.

Change of Judge for Cause—Rule 51.05(d).• Sup. Ct. R. 51.05(d) provides that a party can always seek a change of

judge for cause.

• While Sup. Ct. R. 51.05(d) does not set forth what qualifies as “cause,” it has been held that cause includes those reasons set forth in Mo. Rev. Stat. § 476.180, and Rule 2, Canon 3(D), of the Code of Judicial Conduct—now re-codified as Rule 2-2.11 of the Code of Judicial Conduct. Thus, the circumstances listed in that statute and the canon defines “cause,” for purposes of Sup. Ct. R. 51.05(d).

Mo. Rev. Stat. § 476.180

• No judge of any court of record, who is interested in any suit or related to either party, or who shall have been of counsel in any suit or proceeding pending before him, shall, without the express consent of the parties thereto, sit on the trial or determination thereof.• So, can seek change for cause, if:• Interested in civil action;• Related to a party;• Was prior counsel in the pending matter that was the subject of the motion for

change of judge.

Rule 2.2-11—formerly codified as Rule 2, Canon 3(D), of the Code of Judicial Conduct.• (A) A judge should recuse himself/herself in any proceeding in which the judge's impartiality might

reasonably be questioned, including but not limited to instances where the judge: • (1) has a personal bias or prejudice concerning a party or a party’s lawyer or knowledge of the facts that are in

dispute that would preclude the judge from being fair and impartial; • (2) knows that the judge, individually or as a fiduciary, or the judge's spouse, parent, or child wherever

residing, or any other family member residing in the judge’s household is:• (a) a party to the proceeding, or an officer, director, or trustee of a party; • (b) acting as a lawyer in the proceeding;• (c) known by the judge to have a material [not de minimis] interest that could be substantially affected by the outcome of the

proceeding; • (d) is to the judge's knowledge likely to be a material witness in the proceeding[.]

• (3) knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, child, wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter of the controversy or in a party to the proceeding.

• (4) while a judge or as a judicial candidate has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way.

• (5) served as a lawyer in the matter in controversy or was associated with a lawyer who participated substantially as a lawyer in the matter during such association.• -or was a material witness in such a matter.

When is a Judge’s impartiality in question?• Because litigants who present their disputes to a Missouri court are entitled

to a trial which is not only fair and impartial, but which also appears fair and impartial, the test for recusal is not whether the court is actually biased or prejudiced. • Rather, the test for recusal when the judge's impartiality is challenged is

whether a reasonable person would have a factual basis to find an appearance of impropriety and thereby doubt the impartiality of the court. • A judge owes a duty to the public to recuse where there is an appearance of

impropriety in order to promote confidence in the impartiality of the judiciary.

• Williams v. Reed, 6 S.W.3d 916 (Mo. App. 1999).

Standard of Review when Motion for Change of Judge for Cause is addressed.

• An appellate court presumes that a trial judge will not preside over a proceeding in which the judge cannot be impartial. • Bruflat v. Mister Guy, Inc., 933 S.W.2d 829, 836 (Mo.App.1996).

• Therefore, appellate courts in Missouri will affirm the trial court's denial of a motion for change of judge, unless the denial constitutes an abuse of discretion.• Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 245 (Mo.App.1999).

Williams v. Reed, 6 S.W.3d 916 (Mo. App. 1999)

Parting Thoughts?