IN THE MISSOURI COURT OF APPEALS
EASTERN DISTRICT
State ex rel. John Roe,

)
Relator,
)
)
v.
)
)
Honorable Steven H. Goldman,
)
Circuit Judge, Division Twelve, )
Twenty-First Judicial Circuit,
)
St. Louis County, Missouri,
)
)
Respondent. )

No. ______________

Suggestions in Support of Relator’s Petition for Writ of Prohibition
I.

Relator was removed as foreperson of the Grand Jury without statutory
authority and in violation of Relator’s constitutional right to continue his
service.
Relator was selected by Respondent to serve as the Foreperson of the Grand Jury

of St. Louis County September 2015 Term. He was sworn in and served as the foreperson
beginning on September 16, 2015. Relator meets all of the qualifications to serve as a
grand juror. No misconduct is alleged.
On September 28, 2015, however, Respondent removed Relator from Grand Jury
service. Respondent did so at the behest of the Prosecuting Attorney for St. Louis
County. The Prosecuting Attorney intimated to Respondent that he would not present
cases to the Grand Jury so long as Respondent remained a grand juror. The proffered
explanation for the Prosecuting Attorney’s urging that Relator be removed was that, in
his previous employment as a lawyer for a nonprofit advocacy organization, Relator had
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ED103564

 only)1 and St. Louis County. Although not finding any actual conflict, Respondent opined
this created a potential conflict of interest such that Respondent “ha[d] to, pursuant to
statute, remove [Relator] from the grand jury.”
No statute authorizes—much less requires—removal of a grand juror under these
circumstances. Section 540.060 allows that:
[b]efore a grand juror is sworn, any person held to answer a
criminal charge may object to the competency of the grand
juror on the ground that the grand juror is the prosecutor or
complainant upon any charge against such person, or that the
grand juror is a witness on the part of the prosecutor and has
been summoned or bound in a recognizance as such.2
“If such objection is established, the person so challenged shall be excused.” Id. This
section is inapplicable because Relator had already been sworn, the Prosecuting Attorney
is not a “person held to answer to a criminal charge,” and none of the reasons provided in

1

These cases were brought pursuant to 42 U.S.C. § 1983. “A [section 1983] suit

against a government officer in his official capacity is functionally equivalent to a suit
against the employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d
1254, 1257 (8th Cir. 2010).
2

All statutory references are to Missouri Revised Statutes (2000), as updated,

unless otherwise noted.
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represented parties in cases against the Prosecuting Attorney (in his official capacity

 juror qualifications and selection, disqualifies Relator from serving as a grand juror. The
statutes are explicit: No challenge to a grand juror is allowed for any other reason other
than provided by statute. Mo. Rev. Stat. § 540.070 (“No challenge to the array of grand
jurors, or to any person summoned as a grand juror, shall be allowed except as provided
in section 540.045 and in section 540.050.”); see also State v. Holcomb, 86 Mo. 371, 376
(1885) (“Challenge to the array, or to any one of the grand jurors, is no longer allowed,
except on the ground that the juror is the prosecutor or complainant, or a witness on the
part of the prosecution.”). Thus, there is no statutory authority for Respondent’s order
removing Relator from the Grand Jury.
It is not surprising that Missouri statutes make it difficult to remove a grand juror
who has been sworn and is serving.
First, as Respondent recognized, denying a person participation in jury service can
itself violate the Constitution. See Powers v. Ohio, 499 U.S. 400, 407-10 (1991)
(recognizing juror has right to “significant opportunity to participate in civic life” that
may not be taken away for unconstitutional reasons). And Relator’s involvement in
litigation with a nonprofit advocacy organization is protected by the First Amendment.
NAACP v. Button, 371 U.S. 451, 428-29 (1963); see also In re Primus, 436 U.S. 412, 425
n.16 (1978). Even if removal of Relator from the Grand Jury were permitted by statute—
which it is not—because the removal is premised on Relator’s constitutionally protected
activity, the removal “must withstand that ‘exacting scrutiny applicable to limitations on
core First Amendment rights . . . .’” In re Primus, 436 U.S. at 432 (quoting Buckley v.
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the section are present. Moreover, nothing in sections 494.400 to 494.505, which describe

 Relator’s constitutional rights.
Second, and more fundamentally, tampering with an empanelled Grand Jury
defeats the very purpose of grand juries, which is to be “a primary security to the
innocent against hasty, malicious, and oppressive persecution [and serve] the invaluable
function in our society of standing between the accuser and the accused, whether the
latter be an individual, minority group, or other, to determine whether a charge is founded
upon reason or was dictated by an intimidating power or by malice and personal ill will.”
Wood v. Georgia, 370 U.S. 375, 390 (1962). The Grand Jury’s “responsibilities . . .
include both the determination whether there is probable cause to believe a crime has
been committed and the protection of citizens against unfounded criminal prosecutions.”
United States v. Calandra, 414 U.S. 338, 343 (1974); see also Powers, 499 U.S. at 412
(“The jury acts as a vital check against the wrongful exercise of power by the State and
its prosecutors.”). Removing Relator from the Grand Jury violates the rights of persons
whom the Prosecuting Attorney seeks to indict in front of the altered Grand Jury panel.
But even if a conflict of interest with the Prosecuting Attorney could be a basis for
removing the Grand Jury Foreperson in the midst of its term, there is no conflict here. It
is unremarkable that an attorney practicing in the St. Louis area would have litigated
against St. Louis County. Respondent seemed troubled with the notion (reported to him
by the Prosecuting Attorney) that Relator had been involved in a suit “against [the
Prosecuting Attorney] for not handling the grand jury properly.” There was such a
lawsuit, but neither Relator nor his former employer was involved. That misinformation
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Valeo, 424 U.S. 1, 44-45 (1976)). Removing Relator from the Grand Jury violates

 the American Civil Liberties Union of Missouri when the ACLU’s attorneys began
representation of a former grand juror who is challenging certain Missouri statutes related
to grand jury secrecy.3 And, as an ACLU staff attorney, Relator also represented
plaintiffs subjected to unconstitutional policies of the St. Louis County Police prohibiting
individuals from standing still on public sidewalks and recording the activities of the
police as well as reporters who were arrested although there is no probable cause to
believe they have committed a crime.4 Although Relator’s involvement in these cases
might suggest that Relator would not be a pushover if the Prosecuting Attorney attempted
to force his will upon the Grand Jury, he took his oath seriously and served as foreperson
of the Grand Jury for more than fifty cases without “any particular problem[.]” It is likely
that Relator would not have gone along with a prosecution effort to indict the proverbial
ham sandwich, but nothing in the record or elsewhere suggests that he could not continue

3

The Prosecuting Attorney is named as a defendant in his official capacity in this

suit only because his office is charged with enforcement of the challenged statutes.
4

Each of these cases was resolved favorably to the plaintiffs. The challenges to

policies resulted in injunctions enjoining the policies. The challenges to the arrests
resulted in agreements from the County to confess that there is no probable cause to
believe the reporters had committed a crime. In these cases, Relator helped ensure that
law enforcement officials in St. Louis County abide by the constitution, a position that in
no way conflicts with the Prosecuting Attorney’s own obligations.
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seems to be conflated with accurate information: Relator did work as a staff attorney at

 removed.
Respondent seemed concerned that those indicted might challenge their
indictments because of Relator’s service on the Grand Jury. Indeed, the Prosecuting
Attorney told Respondent that he “was thinking about not presenting evidence to the
grand jury for fear that the indictments might be compromised in the future.” But it is not
plausible that a defendant would be able to challenge an indictment on the basis that a
particular grand juror was too adverse to the Prosecuting Attorney.5 Neither Respondent
nor the Prosecuting Attorney provided any explanation of how the “potential conflict”
could manifest itself. Under Respondent’s reasoning, the Prosecuting Attorney could
have any lawyer whose previous work involved suing the police or the county—or any
criminal defense attorney—removed from a Grand Juror in the middle of a term. Indeed,
such reasoning could bar from grand jury service anyone who ever demonstrated against
St. Louis County policies, made critical public comments at County Council meetings, or
supported the Prosecuting Attorney’s political opponents.

5

However, it is plausible that challenges to indictments will come from defendants

who learn they were indicted after the Prosecuting Attorney successfully persuaded
Respondent to remove a Grand Juror for having, as an attorney, challenged
unconstitutional actions by the St. Louis County Police and, in the Prosecuting Attorney’s
mistaken view, challenged the Prosecuting Attorney’s own conduct.
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to serve on the Grand Jury without “any particular problem,” as he had been before being

 Writ of prohibition that prohibits Respondent from enforcing his order
removing Relator from the Grand Jury is appropriate here.
A writ of prohibition is the proper mechanism for Relator to seek review of

Respondent’s decision to discharge Relator from grand jury service.
Prohibition is appropriate when there is an important legal issue that will
otherwise evade review. In re N.D.C., 229 S.W.3d 602, 604 (Mo. banc 2007), as
modified on denial of reh’g (Aug. 21, 2007) (“A writ of prohibition is appropriate where
there is an important question of law decided erroneously that would otherwise escape
review.”). Although statutes strictly limit when and why a grand juror can be removed,
Relator was removed in the midst of a Grand Jury Term on a basis not allowed by statute.
Moreover, Respondent’s basis for removing Relator during the Term is inadequate, as a
matter of law, even if a potential conflict of interest with the prosecutor were a statutory
basis for removing a member of an already sitting grand jury.
Prohibition is also appropriate because this case raises important constitutional
issues. State ex rel. St. Louis Post-Dispatch, LLC v. Garvey, 179 S.W.3d 899, 900 (Mo.
banc 2005) (“A writ of prohibition may be issued when a party raises an important
constitutional issue and has no other adequate legal remedy to pursue the issue.”). The
right of a grand juror to continue his service is protected by the Constitution in any case.
See Powers, 499 U.S. at 407-10. But here there is more at stake because, at the urging of
the Prosecuting Attorney, Respondent removed Relator from the Grand Jury solely
because of Relator’s First Amendment-protected activities as an attorney employed by a
nonprofit advocacy organization. See Button, 371 U.S. at 428-29; In re Primus, 436 U.S.
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II.

 adequate legal remedy.
Finally, prohibition is warranted because Relator “may suffer irreparable harm if
relief is not granted.” State ex rel. Strauser v. Martinez, 416 S.W.3d 798, 801 (Mo. banc
2014). Relator has not only been deprived of the constitutional right to finish his term—
an ongoing harm he continues to suffer—he is now ineligible to serve on another grand
jury for ten years. Mo. Rev. Stat. § 540.045 (“any person who has served as a member or
alternate of a grand jury, or alternate, within ten years next preceding his selection shall
not be eligible for service as a grand juror”). What is more, Respondent’s order deprives
Relator of his constitutionally protected right because he engaged in another
constitutionally protected activity. This also constitutes irreparable harm. See Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (“The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.”).
III.

Conclusion
Respondent improperly removed Relator from his position on the Grand Jury.

Because Respondent’s order was made without statutory authority—and in violation of
the statutory provision prohibiting challenges to grand jurors except as provided by
statute, Respondent should be prohibited from enforcing it. Moreover, prohibition is
warranted here because removal from the Grand Jury violates Relator’s constitutional
right to continue serving on the Grand Jury and the removal is in retaliation for Relator’s
First Amendment-protected activity. Finally, enforcement of Respondent’s order allows
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at 425 n.16. This case raises important constitutional issues for which there is no other

 to the very purpose and function of the grand jury.
Respectfully submitted,
/s/ Anthony E. Rothert
ANTHONY E. ROTHERT, #44827
JESSIE STEFFAN, #64861
ACLU of Missouri Foundation
454 Whittier Street
St. Louis, Missouri 63108
Phone: (314) 652-3114
Fax: (314) 652- 3112
Attorneys for Relator

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the Prosecuting Attorney to alter the makeup of an ongoing grand jury, which is contrary

 The undersigned certifies that a copy of the foregoing was filed electronically on
and served upon all counsel of record on October 16, 2015. Also on October 16, 2015, a
copy of the foregoing was sent by first class mail to:
The Honorable Steven H. Goldman
St. Louis County Circuit Court
105 South Central Avenue
Clayton, Missouri 63105

/s/ Anthony E. Rothert

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Certificate of Service