dissenting.
I respectfully dissent.
Appellant Smulls, having previously succeeded in overturning the denial of his post-conviction relief claim by convincing this Court that Judge Corrigan, the original trial and post-conviction relief judge, was prejudiced, now wins reversal of a second adverse determination of his post-conviction relief claim by asserting that his new judge, Judge O’Brien, was also prejudiced. Indeed, Smulls’ allegations of prejudice are so broad that they encompass not only Judge O’Brien, but all 33 judges who sit on the 21st Judicial Circuit. Although the majority properly, held that Smulls was not entitled to a circuit-wide disqualification, the holding appears to be that any judge who told Judge Corrigan, even in passing, that he disagreed with this Court’s original decision in Smulls-“almost every judge on this bench,” as *506Judge Corrigan noted in his deposition - must submit to a hearing before yet another judge to allow the public defender’s office to fish for evidence that might eventually lead to a disqualifying bias.
■ To compel a hearing on a motion to disqualify, the movant must allege facts, that, if true, would require the judge’s disqualification, and those allegations must be “sworn to in an affidavit in support of the motion.” State ex rel. Ferguson v. Corrigan, 959 S.W.2d 113, 116 (Mo. banc 1997). See also State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 698-99 (Mo.App.1990). In this case, in the absence of allegations of facts supported by affidavit, the majority cites other authority suggesting that a hearing may be required even without such verified allegations if there is information in the record made known to the judge that, if true, would require disqualification. I have no quarrel with that proposition,1 but it is perplexing that information from the Corrigan deposition - the majority’s only source relied on - somehow necessitates a hearing, much less that it shows disqualifying bias.
Parsing the deposition transcript set out in the majority opinion proves the point. There are two parts that address Judge O’Brien’s comments to Judge Corrigan. One part concerns the final opinion in Smulls, published at 935 S.W.2d 9, but the other part concerns the original, unpublished opinion that was issued but later withdrawn. The difference between the two opinions is that the majority, in response to the state’s motion for rehearing, deleted from the original opinion a good deal of injudicious rhetoric directed at Judge Corrigan.2
That part of the deposition transcript addressing the final, published opinion not only fails to support the claim of prejudice, but actually refutes the claim:
Q. '(By Mr. Swift) What contact with Judge O’Brien have you had regarding this case and the claim in the pleadings regarding racial bias?
A. Since I have been disqualified in this case [as of the effective date of the final, published opinion] I’ve had no conversation with Judge O’Brien about the merits of this case or the complaints in this case whatsoever.
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Q. And what was the nature of your contact with Judge O’Brien regarding the opinion as it was issued?
A. General discussions at lunch or someplace. Never - never did Judge O’Brien and I sit down somewhere and - one on one as to my recollection and ever discuss the case. It would be in general discussion at lunch or - or someplace like that.
This testimony must be takén at face value. Despite “[g]eneral discussions at lunch or someplace,” Judge Corrigan and Judge O’Brien never discussed the case “one-on-one,” and more importantly, they never discussed the “merits” of the case. This is an absolute and uncontroverted denial that any improper comment or communication took place.
On the other hand, the only part of the deposition that possibly involved discussions concerning the merits of the case pertains solely to this Court’s original opinion that was withdrawn:
Q. You indicated that you’ve not had any contact with Judge O’Brien since you were disqualified from this case. *507How about when the original opinion issued?
A. There was discussion - Judge O’Brien would have been one of the judges that discussed this case along with all the 340 judges in the State of Missouri except for the Supreme Court.
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Q. Did Judge O’Brien ever express his views regarding the original opinion to you as to the criticisms directed at yourself?
A. You know, I don’t want to speak for Judge O’Brien. I guess you’d maybe had to ask Judge O’Brien that. I’m sure in our discussions there wasn’t anybody - I mean everybody that I talked to about the charges that you - that you have raised or have been raised by others I would - based upon their knowledge of the opinion, I would say that they were - they would express views that were not in conformity with what this opinion says.
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[MR. SWIFT]: In your contacts with Judge O’Brien regarding the
original opinion, did he express any views or biases regarding the Missouri Supreme Court’s criticisms in the language that he used directly at yourself?
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A. I’m - there was so much discussion, so much response to that opinion and the criticism of that opinion. I don’t know who said what. And so I’m not going to give specific answers as to which judge may have said what to me, which lawyers may have said what to me. As you may or may not know, there was a groundswell of criticism against the Supreme Court in my opinion for - for the opinion, and I’m not going to speculate on who said what to me. A lot of people said a lot of things to me.
Q. And was one of those people who said things to you? Was it Judge O’Brien?
A. I don’t know.
All that can be derived from this exchange is that Judge O’Brien, and “all the other 340 judges in the State of Missouri except for the Supreme Court,” criticized the original, unpublished opinion, and that Judge O’Brien may or may not have been one of the many judges who communicated that criticism to Judge Corrigan. It is enough concern, perhaps, that the majority requires a hearing even without evidence that Judge O’Brien did, in fact, communicate his disagreement with the Smulls opinion to Judge Corrigan, or that Judge O’Brien’s mere criticism of the opinion renders him unable or unfit to follow and apply the law as set out by the majority. What is even more troublesome is that the majority requires Judge O’Brien to submit to a hearing to address the possibility that he may have criticized the opinion when the Court, itself, having withdrawn the opinion and deleted the injudicious rhetoric, tacitly acknowledged that the criticism was well taken. Indeed, if Judge O’Brien joined the many other judges in criticizing, the opinion, he was justified in doing so and has been vindicated by the Court’s realization that parts of the opinion were inappropriate. Criticism of this sort is no basis to charge Judge O’Brien with suspicion of disqualifying bias.
In contrast, facts that might establish the kind of disqualifying bias that would preclude Judge O’Brien from sitting on the case were neither alleged nor supported by sworn testimony, nor were they apparent from the record. Those are facts that would show Judge O’Brien had an opinion about the merits of the case from an extrajudicial source. State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992). In that regard, there is no evidence that Judge O’Brien said words to the effect that he knew Judge Corrigan was not prejudiced against African-Americans, or that he knew Judge Corrigan never acted in a *508racially discriminating manner or that he knew anything about the merits of the Rule 29.15 motion outside of the record. Absent evidence of that kind, no hearing is required under Ferguson.
It appears that the majority is concerned that Judge O’Brien’s criticism may have gone beyond criticism of the parts of the original opinion that were deleted, but there is not one whit of evidence in support. The majority conceded as much, stating “[t]he extent to which Judge O’Brien expressed his views, either about this Court’s opinion or the validity of Smulls’ racial bias claim against Judge Corrigan, is unknown.” In fact, all that can be gleaned from the record is that Judge O’Brien’s criticism, if any, was general and unspecified, and that he did not register any criticism after the opinion was modified.
As noted, a hearing is only necessary when the party seeking disqualification alleges facts, that, if true, would require disqualification. Ferguson, 959 S.W.2d at 116. If the extent to which Judge O’Brien expressed his views on the matters in question is unknown, then how can it be said that the record shows facts, that, if true, require Judge O’Brien’s disqualification? This question can only be resolved-by speculating that the majority has fashioned. a new rule for the Smulls case - a rule that no longer requires a threshold showing of disqualifying bias, but instead subjects judges to a hearing to determine if more evidence exists than is shown in the record.
The effect of the new rule is that Judge O’Brien and similarly situated judges are no longer afforded the presumption “that judges act with honesty and integrity, and will not undertake to preside in [trials] in which they cannot be impartial.” State v. Kinder, 942 S.W.2d 313, 321 (Mo. banc 1996). That presumption is at the very heart of the old rule, which allows courts to summarily reject motions to disqualify for cause, absent a threshold showing of disqualifying bias. Without the benefit of the presumption, I fear that our courts will be faced with uncontrollable judge-shopping and a multitude of hearings designed more to manipulate the system than to discover actual bias.
For the foregoing reasons, I would reject Smulls’ claim that Judge O’Brien should be disqualified, or that a hearing to review the need for disqualification is necessary.
. It appears that Smulls raised the Corrigan deposition testimony as a basis to disqualify Judge O’Brien for the first time on appeal. The failure to call that testimony to Judge O’Brien’s attention is arguably a waiver of Smulls’ right to use that testimony to disqualify the judge for cause. The state, however, did not argue the waiver issue. :
. The majority deleted, inter alia, the following passages: "The trial judge's statements in this case are oafish and insensitive at best and, at their worst, call into question the trial judge’s ability to continue to serve as a member of the judiciary_” and- "... the trial judge's mental processes are irrevocably tainted with prejudice....”