Jеffrey R. Ferguson sought post-conviction relief under Rule 29.15, following his conviction for first-degree murder and sentence of death before Honorable William M. Corrigan. Concurrently with filing his verified Rule 29.15 motion, Ferguson filed a motion to disqualify Judge Corrigan for cause from hеaring the Rule 29.15 proceeding. The motion was denied as procedurally defective, and no ruling was made on the merits. Fergusоn now seeks prohibition in this Court to prevent Judge Corrigan from enforcing his order. Because this Court has jurisdiction of the appеal, this Court also has jurisdiction to determine the propriety of the writ. Mo. Const, art. V, sec. 3; Rule SC 22(b). The "writ is made absolute.
In Count VIII of his Rule 29.15 motion, Ferguson alleged that because оf certain conduct during the murder trial, Judge Cor-rigan denied Ferguson rights to effective counsel and a fair trial before an impartial judge. Simultaneously with his amended Rule 29.-15 motion, Ferguson filed his first motion to disqualify Judge Corrigan for cause in the Rule 29.15 proceeding. The motion to disqualify Judge Corrigan incorpo
Sections 508.090 to 508.140, RSMo,
Section 508.130 requires an application to remove a judge for cause to have “annex[ed] thereto an affidavit ... 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.” Sec. 508.130. But sec. 508.130 does not have any time limit as to when the motion to disqualify the judge must be filed and no time limit for annexing the affidavits. However, the mov-ant must allege when he obtained the information and knowledge of the existence of the cаuse for disqualification. Sec. 508.130. The obvious purpose of this provision is to discourage surprise or undue delay in bringing disqualifying information to the judge’s attention. Undue delay will permit the claim to be treated as waived. Erhcurt v. Todd,
Our prоcedural rules supersede an inconsistent statute unless the rule has been annulled or amended by later statutory enactmеnt. State ex rel. Peabody Coal Co. v. Powell,
One other rule is relevant to disqualification of a judge for cause. Canon 3 D of the Code of Judicial Conduct found in Rule 2 provides, “A judge should recuse in any proceeding in which the judge’s impartiality might reasonably be quеstioned,” including where the judge “has a personal bias or prejudice concerning the proceeding.” This canon has no requirement for timely filing of a written motion or the filing of an affidavit. It at least suggests that a judge is required to pass on the merits of a сlaim of bias and prejudice or other cause for recusal, whenever such claim is brought to the judge’s attention, and that addressing such claims cannot be finessed by asserting a procedural defect in the motion.
Because Ferguson filed his motion to disqualify simultaneously with his Rule 29.15 motion and did not seek to add any new allegations at the hearing, neither the judge nor the state can claim any surprise or undue delay by Ferguson in raising the claim merely because the motion was not verified. Neither the statutes, the rulеs nor Thomas limit the time for filing a motion to disqualify a judge for cause. Thus, Judge Corrigan erred in finding the verification to be untimely.
This Court will not interfere with the merits of a motion to disquаlify a judge for cause before the motion court has made any ruling with respect to the merits. This is especially true where tо do so would necessarily require us to also pass on the merits of a substantial portion of the allegations in the post-conviction relief motion prior to the motion court issuing the required findings of fact and conclusions of law. See Rule 29.15(j).
The writ is made absolute requiring Judge Corrigan to permit Ferguson or his attorney to annex their affidavit in support of the facts contained in the motion fоr change of judge and to proceed in a manner consistent with that motion.
Notes
. All statutory references are to RSMo 1994 unless otherwise noted.