1 

## Missouri Court of Appeals **Southern District Division Two** 

STATE OF MISSOURI EX REL. ) DAN PATTERSON, ) ) Relator, ) ) No. SD37113

vs. ) FILED: July 23, 2021 ) THE HONORABLE CHARLES D. CURLESS, ) ) Respondent. )

PERMANENT WRIT
Greene County Prosecuting Attorney, Dan Patterson (“Relator”)
, seeks a writ of
prohibition against the Hon orable Charles Curless (“Respondent”) from enforcing his order
disqualifying Relator and the entire Greene County Prosecuting Attorney’s Office (“ the PAO”)

in the prosecution of the underlying criminal case
, Greene County Circuit Court case 1931

-

CR04768

- 01, against the defendant, Aaron Klusmeyer

. In a single point, Relator contends that
he is entitled to a writ of prohibition because the record contains “no evidence” supporting
Respondent’s order disqualifying the Relator and the PAO

. Concl uding that Relator’s contention

has merit, we issue a permanent writ of prohibition.
Klusmeyer filed an unverified motion containing various conflict of interest allegations
against Relator and several of the assistant prosecuting attorneys from the PAO

. These alleged2 conflicts of interest, according to Klusmeyer, warrant ed the disqualification of Relator and the

PAO from the underlying case and the appointment of a special prosecutor.

The transcript of the trial court’s hearing on Klusmeyer’s motion rev eals that no facts
were stipulated by the parties , no testimony was proffered, and, while one exhibit was introduced
and marked (by the PAO as part of its argument in opposition to the motion ) , neither that exhibit
nor any other exhibit was offered or received into evidence. Following only attorney argument , Respondent issued his ruling and order on April 6, 2021 , in which, “out of an abundance of
caution[,]” he granted Klusmeyer’s motion. Thereafter, Relator petitioned this Court for a writ

prohibit ing Respondent from disqualifying Relator and the PAO and we issued a P reliminary

W rit of Prohibition

. As observed by our supreme court:
“The writ of prohibition, an extraordinary remedy, is to be used with great caution and forbearance and only in cases of extreme necessity.” State ex rel. Douglas Toyota III, Inc. v. Keeter , 804 S.W.2d 750, 752 (Mo. banc 1991). “The essential function of prohibition is to correct or prevent inferior courts and agencies from acting without or in excess of their [authority or] jurisdiction.” Id. As a result, departure “from the usual application of prohibition ... requires a peculiarly limited situation w here some absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court's order.” Id. at 752 (quotation marks and alteration omitted).

State ex rel. Peters

- Baker v. Round , 561 S.W.3 d 380, 384 (Mo. banc 2018) (alteration in
original).

In the context of prosecutorial disqualification
, “[d] ue to the irreparable harm caused
when an entire prosecuting attorney ’ s office is disqualified, a circuit court should not do so
absent a finding of an actual conflict of interest that must be imputed to the entire office under
either the Rules of Professional Conduct or the appearance of impropriety test. ” Id. at 388
(citing State v. Lemasters , 456 S.W.3d 416, 422

- 23 (Mo. banc 20 15) ) (emphasis added) ; see also3 section 56.110. 1 “[W]hen this issue is considered on appeal, the ‘trial court’s ruling on a motion
to disqualify is reviewed for abuse of discretion.’” Id. (quoting Lemasters , 456 S.W.3d at 420).

As a fundamental principl e , however, any exercise of the trial court’s discretion to disqualify a

prosecutor must be based upon evidence before it concerning that disqualification. See State v.

Williams , 643 S.W.2d 641, 642 (Mo.App. 1982) ( holding that the t rial court properly de nied
defendant’s motion to disqualify prosecuting attorney w h ere t here was no allegation in the

motion nor any evidence before the court that any statutory disqualification was present ).

In his sole point, Relator contends as follows:
Relator is entitled to an order prohibiting Respondent, the Honorable Charles D. Curless, from disqualifying Relator in the prosecution of State v. Aaron Klusmeyer , case number 1931

- CR04768

- 01, because in doing so Respondent acted in excess of his jurisdic tion and authority, abused his discretion, and caused irreparable harm, in that there is no evidence of any conflict or statutory ground disqualifying Relator.
We agree.
Klusmeyer’s conflict

- of

- interest assertions were presented to Respondent in the follow ing

forms only : (1) unverified motion allegations and (2) in

- court argument by Klusmeyer’s counsel

.

A llegations in a motion , however, are not self

- proving. State v. Banks , 457 S.W.3d 898, 902

(Mo.App. 2015)

. Similarly, “ [a] bare assertion by defense co unsel does not prove itself and is

not evidence of the facts presented.” State v. Smith , 996 S.W.2d 518, 523 (Mo.App. 1999).
Accordingly, there was no evidence before Respondent supporting any of the allegations in
Klusmeyer’s motion

. In that context
, Respondent abused his discretion in granting the motion

and a writ of prohibition is an appropriate remedy. 2 See Round , 561 S.W.3d at 388

- 89.
Relator’s point is granted.

1 All statutory references are to RSMo (2016).
2 The complete lack of evidence before the trial court also necessarily precludes this court’s consideration of the merits of any alleged claim for disqualification of Relator or the PAO.4 We hereby issue our permanent writ directing Respondent to vacate his April 6, 202 1
order disqualifying Relator and the PAO in Greene County Circuit Court case 1931

- CR04768

- 01
and prohibiting Respondent from taking any action to enforce that vacated order in any manner

. 3

GARY W. LYNCH, C.J.

– OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J.

– CONCURS

DON E. BURRELL , J.

– CONCURS

3 To the extent our May 25, 2021 Preliminary Writ of Prohibition proh ibits Respondent from taking any other action in Greene County Circuit Court case 1931

- CR04768

- 01 , it is hereby quashed.