IN THE 19th CIRCUIT COURT
FOR THE STATE OF MISSOURI

Lee Martin
PRO SE
VS.
CAROL RUSSELL FISCHER
KEITH HOLCOMB
Attorney
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CASE #01CV324209

Motion to Recuse Judge Brown on His Own Motion

Comes now the plaintiff, Lee Allen Martin, and does file this Motion to Recuse Judge Brown for the fact that his Honor is not capable of maintaining the appearance of impropriety. Missouri Supreme Court Rule 2 Cannon 3(1). Plaintiff relies on the authority provided by the Western District Court of Appeals in 1999: Robin Farms Inc. v. Bartholomoe, 989 S.W.2d 238 (Mo.App. S.D. 04/06/1999)

Although authorizing a change of Judge for cause, Rule 51.05(d) does not provide guidance as to what qualifies as "cause," requiring a Judge to recuse; consequently, we turn to section 476.180 and Rule 2, Canon 3D of the Code of Judicial Conduct, which do. Section 476.180 provides that "[n]o 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." The specific instances delineated in the statute have no application here. Hence, we turn to Rule 2, Canon 3D.
[50] Rule 2, Canon 3D provides, in pertinent part, as follows:
[51] D. Recusal
[52] (1) A Judge should recuse in a proceeding in which the Judge's impartiality might reasonably be questioned, including but not limited to instances where the Judge:
[53] (a) has a personal bias or prejudice concerning the proceeding;
[54] (b) served as a lawyer in the matter in controversy, . . . ;
[55] (c) knows that the Judge . . . has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding . . . ;
[56] (d) or a spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
[57] (i) is a party to the proceeding, or an officer, director, or trustee of a party;
[58] (ii) is known by the Judge to have an interest that could be substantially affected by the outcome of the proceeding;
[59] (iii) is to the Judge's knowledge likely to be a material witness in the proceeding . . . .
[60] None of the specified instances found in the rule apply in this case. However, the phrase "including but not limited to" signifies that a Judge's duty to disqualify is not limited to the instances specified in the rule. State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 698 (Mo. App. 1990). "No guidelines or canons could set forth standards which would deal with every conceivable motion which might be filed by a party." State v. Cruz, 517 A.2d 237, 241 n.1 (R.I. 1986). Consequently, the Code does not provide specific guidelines as to how to determine what factual situations would fall under the "including but not limited to" language of Rule 2, Canon 3D(1). The determination must be made on a case-by-case basis.
[61] It is well settled that a Judge, pursuant to Rule 2, Canon 3D(1) and in accordance with Rule 2, Canons 2 and 3(C), which provide that he or she should avoid the appearance of impropriety and shall perform judicial duties without bias or prejudice, respectively, must recuse in any proceeding in which his or her impartiality might reasonably be questioned by reason of actual bias and prejudice or an appearance of impropriety. State v. Nicklasson, 967 S.W.2d 596, 605 (Mo. banc 1998), cert. denied, __ U.S. __, 119 S. Ct. 549, 142 L. Ed. 2d 457; State v. Kinder, 942 S.W.2d 313, 321 (Mo. banc 1996), cert. denied, __ U.S. __, 118 S. Ct. 149, 139 L. Ed. 2d 95 (1997); State v. Smulls, 935 S.W.2d 9, 16-17 (Mo. banc 1996), cert. denied, 520 U.S. 1254, 117 S. Ct. 2415, 138 L. Ed. 2d 180 (1997); State v. Taylor, 929 S.W.2d 209, 220 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S. Ct. 1088, 137 L. Ed. 2d 222 (1997); State v. Nunley, 923 S.W.2d 911, 918 (Mo. banc 1996), cert. denied, 519 U.S. 1094, 117 S. Ct. 772, 136 L. Ed. 2d 717 (1997). There is a presumption that a trial Judge would not undertake to preside over a case where his or her impartiality might reasonably be questioned. Kinder, 942 S.W.2d at 321. However, under the Code this presumption is rebutted, requiring a Judge to recuse himself or herself, with or without an application, where there is actual bias and prejudice, or an appearance of impropriety. Rule 2, Canon 3D(1); Kinder, 942 S.W.2d at 321; State v. Novak, 949 S.W.2d 168, 170 (Mo. App. 1997); State v. Lee, 948 S.W.2d 627, 629 (Mo. App. 1997).
[62] Under Rule 2, Canon 3D(1), the test for determining disqualification is whether a reasonable person would have factual grounds to doubt the impartiality of the court. The term "reasonable person" is interchangeable with the terms "objective onlooker" and "disinterested bystander." Haynes v. State, 937 S.W.2d 199, 203 (Mo. banc 1996).

Plaintiff must request that the Honorable Judge Brown take notice of the pending legal questions concerning the ongoing case in which Judge Kinder and Judge Brown are defendant/respondents concerning the misappropriatiion of funds for the 19th Judicial Circuit. The plaintiff/appellant in this case is the counsel for the defendant in the case at hand. The appearance of Impropriety has been met. The Honorable Judges' excited utterance made in open court on the 1st day of April 2002 that "would make me bias against them(defendant)" Shows the judges contemplation of prejudice. The contemplation of prejudice upon the Judge does rise to the level of appearance of Impropriety.

Plaintiff maintains that a fiduciary interest does exist upon the Honorable Judge in that Misappropriation of Funds is also a criminal charge that may be brought at anytime within the statute of limitations. The Counsel for Defendant in this case can use influence upon the judge that would tend to effect the Judge's impartiality. The Appearance of Impropriety has been met.

Further, the Missouri Supreme Court Rules allows for the parties to stipulate to the judge in just such an occasion. Plaintiff having requested such a stipulation of the defendant and having not received any stipulation on the part of the defendant must request the Honorable Judge Brown recuse upon his own motion. In alternative Plaintiff requests that the Honorable Judge recuse pursuant to Rule 51.05 for cause.

Respectfully Submitted

Lee Allen Martin

7050 County Road 2810
West Plains
Missouri, 65775

CERTIFICATE OF SERVICE


I hereby certify this pleading was served upon all attorneys of record for each of the parties to this action and All parties not represented by counsel in the following manner:
[ ] By delivering a copy to them.
[ ] By leaving a copy at their office with the clerk.
[ ] By leaving a copy at them office with an attorney associated with them.
[ ]By mailing a copy to them as prescribed by law
[ ] By faxing a copy to them.
April 10, 2002

So certified: _____________________________

Lee Allen Martin

NOTICE OF HEARING

The foregoing pleading will be called for hearing before the court on April 21 2002 at 1 pm or as soon thereafter as petitioner may be heard. So noticed:

_______________________________

Lee Allen Martin