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Conway V Driesel Mandamus Supplementation of Record
Conway V Driesel Mandamus Supplementation of Record
Conway V Driesel Mandamus Supplementation of Record
M A-108796
________________________________________________________________________
Petitioner,
vs.
Respondent.
________________________________________________________________________
-i-
INDEX
20 O.S., 1403.……………………………............................................. 5
Conclusion………………………………........................................................... 12-13
20 O.S., 1403.……………………………............................................. 12
-ii-
Pierce v. Pierce, 2001 OK 97.……………………………..................... 12
Appendix
-iii-
TABLE OF AUTHORITY
CITATION Page
No.
Clark v. Board of Education of IND. SCH. DIST. NO. 89, 2001 OK 56 .. ………4, 12
20 O.S., 1403.…………………………….................................................................5, 12
-iv-
NO. M A-108796
________________________________________________________________________
vs.
Respondent.
________________________________________________________________________
-i-
________________________________________________________________________
INDEX TO APPENDIX
________________________________________________________________________
PAGE
-ii-
Appendix “K” (5 O.S., Ch. 1, App. 3-A, Rule 3.5) 1 Page………………………... x
SUPPLEMENTATION OF RECORD
Defendant in McCurtain County District Court Case number CV-2009-636 (hereinafter “lower court
case”), pursuant to 20 O.S., Section 1403, 12 O.S., Ch. 2, App., Rule 15, Rule 1.191 (b), Due Process
Clauses of the Const. amend. XIV, and V, as well as Art. 2 Section 7 of the Oklahoma
Constitution, and supplementing the record for his first Supplementation Of Record and applying to
this Court to assume original jurisdiction in this matter and grant a writ of mandamus directed to the
respondent judge, the Honorable Willard L. Driesel, Chief Judge Of The District Court of McCurtain
County as well as Presiding Judge of Oklahoma’s 17th Judicial District (hereinafter the Judge)
requiring him to disqualify himself and rescind any order he issued after the filing
SUMMARY OF CASE:
1. That Petitioner here refers to his original Application To Assume Original Jurisdiction
And Petition For Writ of Mandamus on file herein and incorporates the same herein by reference.
2. On June 14, 2010, Conway hand delivered a letter to the clerk of the lower court case,
requesting an in camera meeting and to the Judge in the lower court case as well as to Kenneth R.
Farley, attorney for the plaintiff’s in the lower court case plainly asking the Judge for the opportunity
to “…discuss [his] disqualification or transfer of my case to another judge.” Also, Conway in the letter
stated “…you must disqualify yourself from further hearing, ruling or presiding over this case any
longer.”
3. Plaintiffs in lower court case filed Petition For Prohibitive Injunction And For Writ of
Assistance on June 8, 2010.
5. Order Setting Hearing On Petition For Plaintiff’s Prohibitive Injunction And For Writ of
Assistance was filed June 11, 2010, signed by the Judge set the hearing for July 7, 2010.
6. Plaintiffs in lower court case, on June 16, 2010 filed Motion to Continue Hearing on
their Petition For Prohibitive Injunction And For Writ of Assistance.
7. On June 18, 2010 the Judge granted and issued Plaintiff’s in the lower court case Writ of
Assistance without hearing.
8. On June 28, 2010, overruling Conway’s objections the Judge struck and reset Plaintiff’s
Proposed Scheduling Order filed May 7, 2010, after previously rescheduling same Proposed
Scheduling Order set for May 13, 2010 to June 11, 2010, and then to June 28, 2010, and then to July
27, 2010.
9. On June 28, 2010, “Pursuant to Rule 7 of the Rules for Administration of Courts,
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as promulgated my the Supreme Court of the State of Oklahoma” the Judge by Order Of Intra-District
Assignment, transferred the lower court case to the Honorable James Wolfe, Associate District Judge,
Choctaw County, Hugo, Oklahoma. And, mailed me a copy of said Order with post-it note attached
stating “Proposed Scheduling Order was sent to Judge Wolfe with the assignment.”
10. the Honorable Judge Wolfe did not appear at the aforementioned hearing on July 27,
2010. And, the Judge struck the aforementioned Proposed Scheduling Order from the docket and did
not reset it.
11. On August 25, 2010 the Honorable Judge Wolfe filed an Order Of Recusal stating no
reason therefore.
12. On September 27, 2010, Conway filed Defendant’s Motion to Recuse Judge,
Defendant’s Brief In Support Of Motion To Recuse/Disqualify, Affidavit In Support Of Motion To
Disqualify. And, Defendant’s Opposition To Plaintiff’s Motion For Leave To File Second Amended
Petition.
13. On October 6, 2010, the Judge Denied Motion For Recusal As Untimely And in
Violation Of Rule 15. And, granted plaintiffs in lower court case Application to File Amended Petition
Joining Necessary Parties.
14. The Judge has continuously served as the chief and presiding judge at all times
throughout the lower court case proceedings hereinto referred.
ARGUMENT AND AUTHORITY:
Standard of Review:
Any party to any cause pending in a court of record may in term time… file a written
application with the clerk of the court, setting forth the grounds or facts upon which the claim is made
certify, after reasonable notice to the other side, same to be presented to such judge, and
upon his failure to do so within three (3) days before said cause is set for trial, application may be made
to the proper tribunal for mandamus requiring him to do so. Pierce v. Pierce, 2001 OK 97.
In Miller Dollarhide, P.C. v. Tal, 2007 OK 58, the Oklahoma Supreme Court ruled:
Petitioner seeks an Order of this Court, prohibiting Hon. Willard L. Driesel from continuing as
As stated hereinbefore, the Judge continued to preside over the lower court case after
Conway filed the formal Motion to Recuse Judge. As previously cited in Miller Dollarhide v. Tal, 2007
Clark v. Board of Education of IND. SCH. DIST. NO. 89, 2001 OK 56 wherein the
Court states:
On June 14, 2010, Conway hand delivered a copy of the letter to the clerk of the lower court
case, requesting an in camera meeting and to the judge in the lower court case as well as to Kenneth R.
Farley, attorney for the plaintiff’s in the lower court case plainly asking the Judge for the opportunity to
“…discuss [his] disqualification or transfer of my case to another judge.” Also, Conway in the letter
stated “…you must disqualify yourself from further hearing, ruling or presiding over this case any
longer.”
Under 20 O.S., 1403:
“ Any party to any cause pending in a court of record may in term time
or in vacation file a written application with the clerk of the court, setting
forth the grounds or facts upon which the claim is made that the
judge is disqualified, and request said judge so to certify, after reasonable
notice to the other side, same to be presented to such judge, and upon his
failure so to do within three (3) days before said cause is set for trial,
application may be made to the proper tribunal for mandamus requiring
him so to do.”
Under this well settled law mandamus is an appropriate option for Conway as having followed
the aforementioned procedure considering Conway’s letter of request for judicial disqualification prior
to filing his Motion to Recuse Judge meeting the initial procedural requirement of 12 O.S., Ch. 2, App.,
In addition, Conway filed his Motion to Recuse on September 27, 2010 when he realized that
the Judge was still making rulings in the case after the aforementioned letter requesting recusal had
been delivered to the lower court case clerk, adverse counsel and to the judge, fulfilling the mandate of
“…If such request is not satisfactorily resolved, not less than ten
(10) days before the case is set for trial a motion to disqualify a
judge or transfer a cause to another judge may be filed and a copy
delivered to the judge.”
Upon the Judge’s refusal to grant Conway’s Motion To Recuse entered October 6,
2010, Conway notified the judge in open court that he intended to exercise his procedural
rights under 12 O.S., Ch. 2, App., Rule 15(a), which in significant part states:
Here, this Court must determine an issue of first impression. Conway did re-present his Motion
To Recuse to the Presiding Judge as the judge in the lower court case is also the Chief Judge of the
District as well as the Presiding Judge of the administrative district. The request for re-hearing was
written and made orally, in light of the fact that it is the Motion to Recuse filed on September 27, 2010,
that must be re-heard and said document had in fact been filed and delivered to said Presiding Judge as
well as the adverse party and the Judge who entered the original order within the time prescribed by
statute, and was before the Presiding Judge at the time re-hearing was requested.
Additionally, Conway, orally requested re-hearing a minimum of two times after the Judge’s
initial denial of Conway’s Motion To Recuse Judge as witnessed by opposing counsel in the lower
court case and testified to before this tribunal in the hearing of Oral Argument on November 9, 2010,
making in effect, two more ore tenus motions for re-hearing. And, said motion was denied orally by the
Judge a minimum of
three times, and on the second denial Conway asked the Judge on what grounds his
denial relied and the Judge stated “For violation of Rule 15. You should have come to my chambers
that’s what in camera means.” Again, for the third time Conway asked the Judge to disqualify and the
Judge denied. And, in the same Court Minutes granted Plaintiffs in the lower court case leave to file an
amended petition.
“If the hearing before the second judge results in an order adverse
to the movant, he shall be granted not more than five (5) days to
institute a proceeding in the Supreme Court… for a writ of mandamus…”
This Court has clear jurisdiction over this matter as hereinbefore shown, Conway has fulfilled
all the procedural requirements of 20 O.S., 1403, as well as 12 O.S., Ch. 2, App., Rule 15, in addition
to the well settled law established and cited in Pierce v. Pierce, 2001 OK 97, Miller Dollarhide, P.C. v.
Tal, 2007 OK 58, and Clark v. Board of Education of IND. SCH. DIST. NO. 89, 2001 OK 56.
Clearly the orders of the Judge recorded in the lower court case minutes of October 6, 2010
demonstrates the bias of the Judge in depriving due process to Conway, and presents grounds more
than sufficient for his disqualification. In Miller Dollarhide, P.C. v. Tal, 2007 OK 58, this Court ruled
that:
“If the hearing before the second judge results in an order adverse
to the movant, he shall be granted not more than five (5) days to
institute a proceeding in the Supreme Court…”
Furthermore, the Judge’s reading and application of 12 O.S., Ch. 2, App., Rule 15(a) which
states:
As well as Miller Dollarhide, P.C. v. Tal, 2007 OK 58 wherein this court found non-fatal nor
defective, but, sufficient and relevant, the written request for in camera meeting under 12 O.S., Ch. 2,
However, the Judge erroneously denied Conway’ in camera request, stating in open court that
camera request in writing. The previous points of law and facts were pointed out to the
Judge in open court underscoring that Conway’s formal and informal requests for the Judge’s recusal
“Disqualification.
(1) A judge should disqualify himself … in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances
where: (a) the judge has a personal bias or prejudice concerning a party…”
Conway has demonstrated the bias of the Judge in his continued ruling and presiding over the
lower court case while the Motion to Recuse is pending, which also under both Pierce and Clark, supra
Conway has shown that he has (1) first informally asked the trial judge in camera to recuse from
the case or to transfer it to another judge, (2) Conway has formally requested (not less than ten (10)
days before the case is set for trial) that the trial judge recuse or transfer the cause, (3) he has re-
presented the earlier formal request to both the Chief Judge of the County where the case is pending as
well as the Presiding Judge of the administrative district, and finally (4) he is seeking mandamus in this
In his Order of Intra-District Assignment dated June 28, 2010, the judge invoked his authority
as both Chief Judge and Presiding Judge under 20 O.S., Ch. 1, App. 2, Rule
7, which in significant part states:
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the Presiding Judge, the district judge shall have plenary control and
supervision of the court’s docket and shall be vested with the power
the judicial personnel serving the district courts within the district
“All orders of the Presiding Judge consigning judges and court officials
to a court other than that which they are regularly serving shall be
made only at the request of a district judge and on showing of good cause.”
The facts show that the Judge entered an Order of Intra-District Assignment which he could
only have done under the authority of Rule 7 as he cited with his request to and consent by himself as
the Presiding Judge having shown himself good cause under Rule 3, in assigning the Hon. James Wolfe
who serves the Hugo County District Court to serve in the lower court case hereinto referred which is
Under the following facts when Conway appeared before the Court in theory he would have
been appearing before the Judge as Presiding Judge and said formal Motion To Recuse would have
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trial/Chief Judge transferred the case with the Presiding Judge‘s knowledge and consent. And, so when
the Motion To Recuse was filed it would have rightly been presented to the “second judge” of 12
Conway has followed statutory procedural requirements to the letter. The Judge has not.
Conclusion:
Finally, a party seeking disqualification of a judge in a civil proceeding must follow the
procedure outlined in 12 O.S., Ch. 2, App., Rule 15 which procedure was followed by Conway. The
original purposes of 20 O.S., 1403 were to provide a procedure for parties to avoid a trial before a
disqualified judge which may only be remedied by mandamus. It is not a matter of discretion to refrain
from presiding over the case while a request to disqualify is pending and the Judge was not free to
proceed with the case until the challenge stood overruled of record following a judicial inquiry into the
issue which includes review by this very tribunal. Pierce and Clark.
The Judge has deprived Conway of his Constitutionally protected right to due process in
addition to gross abuse of discretion, and under Clark, Conway is entitled, as a matter of law to
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and Petition for Writ of Mandamus should be granted together with rescinding all orders
________________________________
LUCIOUS CLARENCE CONWAY, JR.
HC 76 Box 54
Eagletown, Oklahoma 74734
(580) 835-2358
CERTIFICATE OF MAILING TO PARTIES AND COURT CLERK
I certify that a true and correct copy of the Supplementation of Record was mailed this 11th
day of November, 2010, to the District Court In And For McCurtain County, 108 N. Central, Idabel,
Oklahoma 74745 and Kenneth R. Farley, P.O. Box 748, Idabel, Oklahoma 74745 by depositing it in the
______________________________
Lucious Clarence Conway, Jr.
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