Section 17 Appellate Court

• Library: Remedies 2006

The procedure for filing a petition for a writ of mandamus or prohibition in the appellate courts is similar to that in the circuit court. Rules 94 and 97 apply to proceedings at all levels. There are seven items that must be filed in the appellate courts:

1. Writ summary
2. Petition
3. Index of the exhibits
4. Exhibits
5. Suggestions in support of the petition
6. Proof of service
7. Filing or docket fee

Rules 84.24(a), 94.03, and 97.03.

One prerequisite is that the petition should ordinarily be filed first in the lowest court having power to issue it. Therefore, if counsel is seeking to prohibit an action by a circuit judge, the petition should first be filed in the appellate court for the appropriate district. If the relief is denied there, counsel may file a petition for the same relief in the Supreme Court of Missouri. The associate circuit courts are no longer “inferior” to the circuit courts. Therefore, a petition for a writ directed to an associate circuit judge should be filed in the appellate court, not the circuit court. State ex rel. Johnston v. Luckenbilll, 975 S.W.2d 253, 255 (Mo. App. W.D. 1998); State ex rel. Drienek v. Clifford, 944 S.W.2d 266, 268 (Mo. App. E.D. 1997).

The writ summary contains basic information about:

• the issue presented
• the parties and their attorneys
• the date of the order being challenged; and
• when events that bear upon the relief are to occur

See Form No. 16 and the sample writ summary in §4.18 below. The writ summary cannot exceed one page, exclusive of the caption and the identification of the parties and their attorneys (which together frequently take up one page alone, particularly when using the larger type font required by the rules). The summary may be single-spaced.

The date of any future event affected by the order (such as a trial setting or a deposition) gives some indication of the urgency of the matter and may prompt the court to rule without following the procedures normally applicable to writs. Rule 84.24(e) and (j). There is no specific time within which a petition for a writ must be filed, except as it may be governed by the course of future events. If, for example, counsel is challenging an order requiring the production of a document asserted to be privileged, the petition must be filed before compliance with the order. It may be wise to seek a brief stay of the order from the trial court to allow time to seek a writ. In addition, if a substantial time has elapsed since the order was entered, the likelihood that the appellate court will view the issue as one requiring extraordinary relief is diminished.

The...