State of Missouri ex rel. Andrew Bailey, Relator v. Honorable C. Wade Pierce and Honorable Kacey L. Proctor

SUPREME COURT OF MISSOURI en banc

STATE OF MISSOURI EX REL. ) Opinion issued June 18, 2024 ANDREW BAILEY, )

)

Relator, )

)

v. ) No. SC100509

)

HONORABLE C. WADE PIERCE )

) and )

)

HONORABLE KACEY L. PROCTOR, )

)

Respondents. )

ORIGINAL PROCEEDING IN PROHIBITION Andrew Bailey, Missouri Attorney General, ("Relator") filed a petition for a writ of prohibition or mandamus alleging the circuit court lacked authority in a criminal case to sustain Defendant's motion for change of judge, after Defendant and the prosecutor previously stipulated to and received a change of venue and a change of judge. This Court issues a permanent writ of prohibition barring the circuit court from enforcing the order sustaining Defendant's second change of judge in violation of Rule 32.02.

Background

On July 6, 2021, the State filed an information charging Defendant with a felony. The circuit judge assigned to the case recused. On July 13, 2023, this Court designated a trial judge. On August 12, 2021, Defendant and the prosecuting attorney filed a joint stipulation to a change of venue from Stoddard County to Butler County, and a change of judge to the Honorable Michael Pritchett. 1 The circuit court transferred the case to Butler County, and the case was assigned to Judge Pritchett. On March 1, 2023, the Butler County circuit court sustained the prosecuting attorney's motion requesting the appointment of a special prosecutor and appointed Relator as the special prosecutor.

Following Judge Pritchett's retirement, the case was assigned to the Honorable Kacey Proctor. On November 28, 2023, Defendant filed a motion for change of judge, stating in full: "Comes now Defendant and requests a Change of Judge in connection with the above captioned case." Judge Proctor sustained Defendant's motion and submitted a "Judicial Transfer Request" form to this Court. The transfer request form indicated a judge was unavailable because the circuit court had sustained Defendant's motion for a change of judge. This Court assigned Judge Wade Pierce to Defendant's case.

Relator filed a petition for a writ of prohibition or mandamus alleging the circuit court lacked authority to sustain Defendant's motion for a change of judge. The court of appeals issued a permanent writ of prohibition and transferred the case to this Court pursuant to Rules 83.02 and 84.24(m). Defendant elected not to file a brief, but instead filed a concession to Relator's writ of prohibition requesting "the case to be reassigned to Judge Proctor for final disposition."

Analysis

This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, § 4.1. This Court may issue a writ of prohibition:

(1) to prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.

State ex rel. Tyler Techs., Inc. v. Chamberlain, 679 S.W.3d 474, 477 (Mo. banc 2023).

Rule 32.02 provides:

If the parties file a stipulation agreeing upon the transfer of a criminal proceeding triable by jury to a designated court of competent jurisdiction, the court shall order the criminal proceeding transferred to such court. The stipulation shall be filed not later than ten days after the initial plea is entered. The stipulation may be signed by the defendant or the defendant's attorney. Thereafter, no change of venue or change of judge shall be granted to any party stipulating to the change except as provided in Rule 32.09(c) or Rule 32.10. In lieu of transferring the case to the stipulated county, the court may secure a jury from another county as provided by law.

(Emphasis added). Similarly, Rule 32.08(a) provides, "If a party requests and obtains either a change of venue or a change of judge, except a change of judge pursuant to Rule 32.06, that party shall not be sustained any additional change thereafter except as provided in Rule 32.09(c) or Rule 32.10." Defendant's stipulation to a change of venue and change of judge precluded the circuit court from sustaining Defendant's subsequent motion for a change of judge. Defendant did not allege or show a change of judge was required due to "fundamental fairness" under Rule 32.09(c) or because Judge Proctor is "related to any defendant or has an interest in or has been counsel in the criminal proceedings or disqualifies for any other reason" under Rule 32.10. 2 As Defendant concedes, Judge Proctor lacked authority to sustain Defendant's November 28, 2023, motion for a change of judge. A writ of prohibition is an appropriate remedy for the circuit court's lack of authority to sustain Defendant's motion for change of judge. Tyler Techs., 679 S.W.3d at 477. 3

Conclusion

The circuit court is prohibited from enforcing the order erroneously sustaining Defendant's November 28, 2023, motion for change of judge. The circuit court is ordered to set aside the order sustaining the motion for change of judge, with the result that the case remains assigned to Judge Proctor.

_________________________ Zel M. Fischer, Judge

All concur.