IN THE CIRCUIT COURT OF ST. LOUIS COUNTY

STATE OF MISSOURI FILED
GRAND JUROR DOE, DEC 1 3 2016

Plaintiff, 

v. Case 15SL-CC01891

ROBERT P. MCCULLOCH, in his 
of?cial capacity as Prosecuting 
Attorney for St. Louis County, 
Missouri, 

Defendant. 
ORDER AND JUDGMENT

This cause coming to be heard on the motion to dismiss Plaintiffs
petition ?led by Defendant Robert P. McCulloch, counsel having appeared for
both parties and the Court being duly advised in the premises, it is hereby
ordered, adjudged, and decreed that Defendant?s motion to dismiss is
granted, and all of Plaintiffs claims are dismissed with prejudice.

I. Background.1
Plaintiff was a member of the St. Louis County grand jury that

declined to indict former Ferguson Police Of?cer Darren Wilson in the

 

1 The following facts are taken from the Plaintiffs Petition for Declaratory and
Injunctive Relief and from records of prior proceedings in which Plaintiff was either
a party or a participant. This Court may take judicial notice of such records. Envtl.
Util., LLC v. Pub. Serv. Comm?n, 219 256, 265 (Mo. App. W.D. 2007)
(?Courts may take judicial notice of other proceedings when the cases are -
interwoven or interdependent?); see also Vogt v. Emmons, 158 243, 247 (Mo.
App. ED. 2005) court may take judicial notice of its own records and may take

August 2014 shooting death of Michael Brown. [Petition 8-10]. Plaintiff
began her2 grand jury service on May 7, 2014, when she was sworn and
received her charge from the Honorable Carolyn C. Whittington of the St.
Louis County Circuit Court. [Petition 1H 8, 41; Defendant?s Exhibit 

Defendant is the elected Prosecuting Attorney for St. Louis County.
[Petition Not long after Wilson shot Brown on August 9, 2014,
Defendant publicly declared his intention to submit the matter to a grand
jury for consideration, and on August 20, 2014, Defendant appeared before
the grand jury to introduce himself and his staff, explain the situation, and to
take questions. [Petition 1[ 15; Defendant?s Exhibit 

Plaintiff grand jury service was formally extended on September 10,
2014, when she and her fellow grand jurors were again administered the oath
and recharged by Judge Whittington for the express purpose of investigating
the circumstances of Brown?s death. [Defendant?s Exhibit Petition 1H 9-10,
41].

On November 17, 2014, Judge Whittington denied a request by the

grand jury to issue a statement upon the completion of the jury?s work.

 

judicial notice of the records of other cases when justice so requires?).

2 Plaintiff is proceeding in this case under a pseudonym, ?Grand Juror Doe,? and it
is unclear from the Petition whether ?Doe? is a man or a woman. The Court W111
adopt the parties? use female pronouns to refer to Plaintiff.

[Defendant?s Exhibit Shortly thereafter, on November 24, 2014, the grand
jury returned a ?no true bill? on all the charges against Of?cer Wilson, and
Plaintiff was discharged from her grand jury service. [Petition 1M 23-24].

On January 5, 2015, Plaintiff ?led suit against Defendant in federal
court, claiming a right under the First Amendment to be freed from the
secrecy imposed by sections 540.320, 540.310, 540.120, and 540.080 of the
Missouri Revised Statutes. [Defendant?s Exhibit 

On May 5, 2015, the district court abstained from exercising
jurisdiction over Plaintiffs claims, and dismissed her complaint. See Doe v.
McCulloch, 106 F. Supp. 3d 1007, 1014-15 (Mo. ED. 2015). However, the
Eighth Circuit reversed the district court?s dismissal, and ordered the court
to stay Plaintiffs First Amendment claims pending the resolution of various
state law issues by the Missouri courts, including whether Plaintiff 3 federal
case was brought against the wrong party or ?led in the wrong venue. Doe v.
McCulloch, 835 F.3d 785, 788-89 n.2 (8th Cir. 2016).

Plaintiff ?led her Petition in this case on June 2, 2015, claiming that
Missouri?s grand jury secrecy laws were invalid as applied to her. Plaintiffs
Petition alleges three Counts. In Count I, Plaintiff alleges a claim under the
First Amendment, and seeks declaratory and injunctive relief barring
Defendant from enforcing Missouri?s grand jury secrecy laws against her; in

Count II, Plaintiff seeks a declaration that section 540.320 of the Missouri

Revised Statutes is no longer applicable or valid as applied to Plaintiff; and in
Count Plaintiff seeks a declaration freeing her from the oath she swore as
a grand juror.3
II. Discussion.

Grand juries in Missouri are conducted in secret. See, State ex rel.
Roe v. Goldman, 471 814, 817 (Mo. App. ED. 2015). Although this is
not the ?rst case in Missouri involving the nature and scope of grand jury
secrecy, this Court could ?nd no other case in which a grand juror claimed a
right to be free from the statutory prohibitions against disclosing information
learned during her grand jury service. Accordingly, this case requires the
Court to address the nature and scope of a grand juror?s right to speak out
about her experiences, and the procedure for asserting or preserving such a
right, assuming it exists.

A. Jurisdiction.

Both sides in this case argue this Court lacks jurisdiction to decide all
of Plaintiffs claims. On one hand, Plaintiff argues this Court is without
jurisdiction to decide her First Amendment claim alleged in Count I because

such claim was ?rst asserted in federal court, and has been explicitly

 

3 This Count notes that in this case, unlike in her federal case, Plaintiff has not
challenged the applicability of section 540.120 of the Missouri Revised Statutes,
which applies to witnesses, not grand jurors.

reserved for federal court by Plaintiff in her Petition, and by the Eighth
Circuit in its decision. On the other hand, Defendant argues that this Court
should not decide any of Plaintiffs claims because such claims should be
addressed to Judge Whittington, the judge who supervised Plaintiffs grand
jury.

The Court ?nds that it has jurisdiction to decide all of Plaintiffs claims
in this case. Although this Court agrees that Judge Whittington had
exclusive authority to decide issues relating to Plaintiffs grand jury service
while the grand jury was seated, this Court cannot agree with Defendant
that Judge Whittington remains the only person with authority to address
such matters now that Plaintiffs grand jury has completed its service.

Section 540.021 of the Missouri Revised Statutes places grand jurors
under the control and supervision of the presiding judge or the presiding
judge?s designee, but it expressly limits the length of a grand jury?s service to
six months plus sixty days, at most. 540.0214 540.021.5 

In this case, Judge Whittington was designated to control and
supervise Plaintiffs grand jury, which served beyond its original six month
term in order to complete the Wilson investigation. But Judge Whittington?s
control and supervision ended on November 24, 2014, when the jury
completed its task and was discharged from its service. Accordingly, and

although Judge Whittington may retain inherent authority to enforce the

orders she made during Plaintiffs grand jury?s service by, for example,
holding Plaintiff in contempt were Plaintiff to violate her oath without
permission, Plaintiff need not address her claims for prospective relief in this
case directly to Judge Whittington in order to have such claims heard or
decided.

Plaintiff alleges that sections 540.080, 540,310, and 540.320 of the
Missouri Revised Statutes are statutes that Defendant enforces. [Petition
40]. But Defendant cannot bring criminal charges against grand jurors who
violate their oath or disclose their vote, and therefore, a declaratory judgment
forbidding Defendant from enforcing sections 540.080 or 540.310 against
Plaintiff would have no practical effect. See Missouri Soybean Ass ?n v.
Missouri Clean Water Comm?n, 102 10, 25 (Mo. banc 2003) 
declaratory judgment should have a conclusive effect and should lay to rest
the parties? Brooks v. Land Clearance for Redevelopment
Authority of St. Louis County, 425 481, 482-83 (Mo. App. 1968); see
also Schaefer v. Koster, 342 299, 300 (Mo. banc 2011).

Further, Plaintiff 3 claims for relief must be addressed to the Missouri
courts, and in particular, to the St. Louis County Circuit Court where
Plaintiff served. ?Missouri courts have both an inherent power under the
constitution to punish for contempt as well as authority to try contempt-of-

court cases under the statutory crime of contempt.? Smith 0. Pace, 313

 124, 129-30 (Mo. banc 2010). In this case, the St. Louis County
Circuit Court retains inherent authority to hold Plaintiff in contempt for
violating the obligations she assumed as a St. Louis County grand juror. See,
Chemical Fireproofing Corp. v. Bronska, 553 710, 718-19 (Mo.
App. 1977) (?Contempt proceedings are sui generis and are triable only by the
court against whose authority the contempts are charged. No other court may
inquire into the charge.? (internal punctuation and citations omitted)).

Given that the St. Louis County Circuit Court retains inherent
authority to hold Plaintiff in contempt for violating her obligations as a grand
juror, Plaintiff may not circumvent such authority by seeking another court?s
permission to violate her obligations. Id.; see also Douglas Oil, 441 US. at
226 (?in general, requests for disclosure of grand jury transcripts should be
directed to the court that supervised the grand jury?s activities?); Camiolo v.
State Farm Fire Gas. Co., 334 F.3d 345, 357-59 (3d Cir. 2003) (?Principles
of comity and federalism demand that a district court presented with a
request to compel the disclosure of any matter occurring before a
investigating grand jury should direct the party to ?rst
formally petition the judicial of?cer who possesses the supervisory authority
to grant or deny such access?). As such, this Court ?nds that Plaintiff 
federal lawsuit was ?led in the wrong venue, and that this Court has

jurisdiction to hear all of Plaintiff claims.

B. Merits.

Having decided that this Court has jurisdiction to hear all of Plaintiffs
claims, this Court now turns to the merits of such claims. Plaintiff does not
specify in her Petition what she would like to say, or what evidence or other
materials, speci?cally, she would like to disclose. Rather, Plaintiff alleges
generally that she would like to discuss her experience as a grand juror, and
she alleges that she would like to use her experience to contribute to the
current public dialogue concerning race relations, to educate the public, and
to advocate for legislative change. [Petition 1M 33-35].

Plaintiff is seeking an order completely invalidating Missouri?s grand
jury secrecy laws as applied to her, not an order that allows her to make
certain disclosures for certain purposes. As such, Plaintiff purposes in
seeking freedom from Missouri?s secrecy laws are not relevant here.

Under normal circumstances Missouri grand jurors are not permitted
to make any of the disclosures contemplated by Plaintiff, regardless of their
purpose. See 540.080, 540.310, 540.320, 540.330 Therefore, in order
for Plaintiff to succeed, she must explain how her circumstances are unique,
and why an exception to the rule of secrecy should be made for her in this
case.

Plaintiff acknowledges in her Petition that there is a long tradition of

grand jury secrecy, that she swore an oath of secrecy two times, and that

Plaintiff has not been released from her oath. [Petition 1H 1, 41-42]. However,
Plaintiff argues that her case is exceptional because Defendant?s public
release of grand jury materials and his statements to the media have
undermined Missouri?s interest in maintaining secrecy. Plaintiff also
contends she should be allowed to speak because Defendant promised that
the process would be ?as transparent as . . . can be,? but that in Plaintiff 
View, the information released by Defendant provides only ?an appearance of
transparency,? and does not ?fully portray the proceedings before the grand
jury.? [Petition 1M 14-15, 31].

While Plaintiff may now regret having sworn her oath and accepted her
charge, the circumstances identi?ed by Plaintiff are not a suf?cient basis
upon which to release Plaintiff from her obligation to maintain secrecy.

Missouri law prohibits Plaintiff from sharing her experiences as a
grand juror, including how she voted or what was said or discussed during
the jury?s deliberations, see 540.080 and 540.310 and no exception
to these prohibitions exists. See Mannon v. Frick, 295 158, 162 (Mo.
1956); see also In the Matter of Interim Report of the Grand Jury, 558 
479, 482 (Mo. banc 1977); State ex rel Clagett v. James, 327 278, 283-
84 (Mo. banc 1959); In the Matter of the Report of the Grand Jury, 612 
864, 865-66 (Mo. App. ED. 1981); In the Matter of Regular Report of Grand

Jury, 585 76, 77 (Mo. App. ED. 1979).

Nor may Plaintiff disclose the names of witnesses or evidence
presented to the grand jury. 540.320 Although disclosure of grand
jury materials may be had when required by the public interest or in the
protection of private rights, see Mannon, 295 at 163, neither exception
applies here.

In Missouri, grand jury secrecy is intended to protect the public
welfare. Roe, 471 at 817. Proceedings are conducted in secret to
protect the jurors themselves; to promote a complete freedom of disclosure; to
prevent the escape of a person indicted before he may be arrested; to prevent
the subornation of perjury in an effort to disprove facts there testi?ed to; and
to protect the reputations of persons against whom no indictment may be
found. Id.; see also Mannon, 295 at 162.

Plaintiff argues that Missouri has no interest in continued secrecy in
this case because her grand jury has concluded its work and because
Defendant has already disclosed much of the information presented to the
jury. However, Missouri does not permit the disclosure of grand jury
materials simply because a grand jury has concluded its work, and there is no
support for Plaintiff suggestion that the release of some information
necessarily requires the release of everything.

Complete transparency is anathema to the very nature of a grand jury,

which depends upon secrecy and anonymity for its proper functioning. See

10

Roe, 471 at 817; see also Mannon, 295 at 162; CBS Inc. 0.
Campbell, 645 30, 33 (Mo. App. ED. 1983); Rehberg v. Paulk, 132 S.
Ct. 1497, 1509 (2012); Illinois v. Abbott Assoc, Inc., 460 US. 557, 572-73
(1983); United States v. Sells Eng'g, Inc., 463 US. 418, 423-25 (1983);
Douglas Oil, 441 US. at 218-19; Brandzburg v. Hayes, 408 US. 665, 686-87
(1972); United States v. Proctor Gamble Co., 356 US. 677, 681 (1958).
Indeed, even where a grand jury has concluded its work, the state maintains
a strong interest in secrecy. Rehberg, 132 S. Ct. at 1509; Douglas Oil, 441
US. at 218-19; Proctor Gamble Co., 356 US. at 681.

The continued secrecy of such grand jury information would be justi?ed
by the state?s need to encourage the participation of witnesses in future
grand juries. See, Rehberg, 132 S. Ct. at 1509; Douglas Oil, 441 US. at
218-19; Proctor Gamble Co., 356 US. at 681.4

It is well-established that ?a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.? Linda R. S. v.

Richard D., 410 US. 614, 619 (1973). Nevertheless, Plaintiff contends that

 

4 On March 4, 2015, the United States Department of Justice issued a
report summarizing the evidence against Wilson. The DOJ report, a copy of which is
available online at 
report on shooting of michael brown 1.pdf,
found that Wilson?s use of deadly force was not ?objectively unreasonable,? and
concluded it was not appropriate to present the matter to a federal grand jury for
indictment. Id. at 5. With the exception of Darren Wilson and Michael Brown, the
DOJ redacted the names of all individuals to ?safeguard against an invasion of their
personal privacy.? Id. at 6 n.2

11

she has a private right to share her experiences as a grand juror in violation
of Missouri law. She contends that such a right may be found in the First
Amendment, or alternatively, in article I, section 8 of the Missouri
Constitution. However, neither the First Amendment nor the Missouri
constitution support Plaintiffs claims in this case.

The grand jury system is deeply rooted in the federal and state courts
in the United States, see Brandzburg, 408 US. at 686-87, and the First
Amendment has never been found to permit grand jurors to disclose
information learned during the course of their jury service. Although Plaintiff
alleges that the Supreme Court?s decision in Butterworth v. Smith, 494 US.
624 (1990), may be read to grant grand jurors a right to speak out about their
experiences, this Court disagrees.

In Butterworth, the Supreme Court held that a witness who testi?ed
before a Florida grand jury could not be prohibited from disclosing the
substance of his testimony after the term of the grand jury had ended.
Butterworth, 410 US. at 626. However, the Supreme Court did not permit
the witness to discuss his ?experience? before the grand jury, and limited its
holding to allow the witness to ?divulge information of which he was in
possession before he testi?ed before the grand jury, and not information
which he may have obtained as a result of his participation in the proceedings

of the grand jury.? Id. at 629 n.2, 631-32 (emphasis added).

12

As recognized by the district court in its order dismissing Plaintiffs
federal lawsuit, this case is ?very different? than Butterworth. Doe, 106 F.
Supp. 3d at 1012. Unlike in Butterworth, Plaintiff proposes to divulge
information that she obtained as a direct result of her participation in the
Wilson grand jury proceedings. As such, this case is easily distinguishable
from Butterworth.

Finally, this Court rejects Plaintiffs contention that the Missouri
constitution grants Plaintiff a right to speak out about her experiences as a
grand juror or to disclose information or witnesses that have remained secret.
Article I, section 8 of the Missouri constitution provides in relevant part that
?no law shall be passed impairing the freedom of speech, no matter by What
means communicated.? Mo. Const. art. I, 8. However, article I, section 8 has
been found comparable to the First Amendment, see State v. Vaughn, 366
513, 517 n.3 (Mo. banc 2012), and there is no reason to believe that
the Missouri constitution was meant to give any more rights to grand jurors

that were available under federal law.5 Cf. Interim Report of the Grand Jury,

 

5 The Court notes that even if it lacked jurisdiction to decide Plaintiffs First
Amendment claim as alleged in Count I, the resolution of Plaintiffs state law claims
in Count II and would necessarily require this Court to address the scope of
Plaintiffs rights under the First Amendment because Missouri may not offer fewer
protections to its citizens than required under the federal constitution. See, 
Kansas City Premier Apartments, Inc. v. Missouri Real Estate Comm?n, 344 
160, 170 n.4 (Mo. banc 2011); see also Barber 0. Time, Inc., 159 291, 292

(Mo. 1942).

13

553 at 482; Mannon, 295 at 162-63; Clagett, 327 at
283-84.
Conclusion.

WHEREFORE, and for all of the foregoing reasons, it is hereby
ordered, adjudged, and decreed that Defendant?s motion to dismiss is
GRANTED, and all of Plaintiffs claims in this case are dismissed with

prejudice.

   


..





Ellen H. Ribaudo, Circuit Judge

\Nbl 

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