969 F.3d 883 (8th Cir. 2020), 19-1436, Doe v. Bell

Docket Nº:19-1436.
Citation:969 F.3d 883
Opinion Judge:GRUENDER, Circuit Judge.
Party Name:Grand Juror DOE Plaintiff-Appellant v. Wesley Jonell-Cleavon BELL,[1] in his official capacity as Prosecuting Attorney for St. Louis County, Missouri Defendant-Appellee.
Attorney:Grant R. Doty, Equal Employment Opportunity Commission, Andrew McNulty, Anthony E. Rothert, Jessie M. Steffan, American Civil Liberties Union of Missouri Foundation, Joshua Michael Pierson, David Eric Sowers, Ferne Paula Wolf, Silverstein & Wolf, Saint Louis, MO, Gillian R. Wilcox, ACLU of Missou...
Judge Panel:Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
Case Date:August 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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969 F.3d 883 (8th Cir. 2020)

Grand Juror DOE Plaintiff-Appellant


Wesley Jonell-Cleavon BELL,[1] in his official capacity as Prosecuting Attorney for St. Louis County, Missouri Defendant-Appellee.

No. 19-1436.

United States Court of Appeals, Eighth Circuit.

August 14, 2020.

Submitted: March 12, 2020.

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[Copyrighted Material Omitted]

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Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

Grant R. Doty, Equal Employment Opportunity Commission, Andrew McNulty, Anthony E. Rothert, Jessie M. Steffan, American Civil Liberties Union of Missouri Foundation, Joshua Michael Pierson, David Eric Sowers, Ferne Paula Wolf, Silverstein & Wolf, Saint Louis, MO, Gillian R. Wilcox, ACLU of Missouri Foundation, Kansas City, MO, for Plaintiff-Appellant.

Emily Ann Dodge, Attorney General's Office, Jefferson City, MO, for Defendant Appellee.

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

Grand Juror Doe ("Doe") appeals the district court's2 dismissal of her action seeking both a declaration that the State of Missouri's grand jury secrecy laws are an unconstitutional abridgement of free speech as applied to her and an injunction preventing their enforcement.3 For the reasons below, we affirm.

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On August 9, 2014, Darren Wilson, a former police officer with the City of Ferguson, Missouri, shot and killed Michael Brown. Following the shooting, St. Louis County Prosecuting Attorney Robert P. McCulloch announced that he intended to submit the matter to a grand jury for consideration. At the time, Doe was a grand juror serving in the circuit court for St. Louis County for a term originally scheduled to end on September 10, 2014. Following Brown's death, Doe's service was extended to January 2015, and the grand jury was tasked with investigating whether there was probable cause to believe Wilson committed a crime.

"In Missouri, grand jury proceedings are conducted in secret," State ex rel. Roe v. Goldman, 471 S.W.3d 814, 817 (Mo. Ct.App. 2015), and the Wilson grand jury was no different. To impress upon Doe the significance of this confidentiality requirement, Missouri required Doe to take an oath of secrecy twice, once in May 2014 and a second time in September 2014, swearing in relevant part that she would "truly keep secret" "the counsel of [her] state, [her] fellows and [her] own." Mo. Rev. Stat. § 540.080. Missouri law both protects grand jurors in their oath and prohibits them from violating it. On the one hand, no one may force a juror to disclose how she voted "on any question before [her]" or "what opinions were expressed by any juror in relation to any such question." Mo. Rev. Stat. § 540.310. On the other hand, "no member of a grand jury" may "declare in what manner he or any other member of the grand jury voted," id., and "[n]o grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto," id. § 540.320. A grand juror who unlawfully discloses evidence or names of witnesses "shall be deemed guilty of a class A misdemeanor." Id. Missouri also prohibits witnesses from violating the grand jury's secrecy. See id. § § 540.110, 540.120.

On November 24, 2014, the Wilson grand jury returned a "no true bill," and the jury was subsequently discharged. Immediately afterward, McCulloch held a press conference at which he delivered an oral statement and, in an unusual move, released some of the evidence and testimony presented to the grand jury, including transcripts, reports, interviews, and forensic evidence. The documents were redacted to keep secret the identities of the grand jurors, witnesses, and other persons connected to the investigation. The documents did not include any information concerning the grand jury's deliberations or any grand juror's vote on any charge.

Six weeks later, Doe sued McCulloch in his official capacity under 42 U.S.C. § 1983, seeking both declaratory and injunctive relief because, she claimed, sections 540.080, 540.120, 540.310, and 540.320 of the Missouri Revised Statutes violate the Free Speech Clause of the First Amendment as applied to her.4 In her complaint, Doe alleged that she had not recounted her experience or expressed her views concerning the Wilson case on account of her fears that she will face criminal penalties or contempt charges. She asserted that McCulloch mischaracterized the views of the grand jurors collectively toward the evidence, the witnesses' credibility, and the law, and as a result, she sought to correct the record. Doe also claimed that she would like to speak about the experience of

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being a grand juror, including the discrepancies she noticed in the procedures utilized by McCulloch in the Wilson case compared to others. Doe did not express a desire to discuss publicly the Wilson matter completely independently of her role as a grand juror, but instead she sought to pull back the curtain of the jury's secrecy to discuss a wide array of previously confidential matters that go to the heart of the grand jury's deliberations.

The district court initially granted Missouri's motion to dismiss under the abstention doctrine announced in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 S.Ct. 971 (1941). See Doe v. McCulloch, 106 F.Supp.3d 1007, 1014 (E.D. Mo. 2015). We vacated and remanded, holding that "the district court should not have dismissed the case out-right, but rather should have stayed the case while the state-law issues were decided by the Missouri state courts." McCulloch, 835 F.3d at 786. While her federal appeal was pending, Doe pursued state-law claims in Missouri courts, all of which were dismissed in 2016. See Doe v. MuCulloch, No. 15SL-CC01891, 2016 WL 9000971, at *1 (Mo. Cir. Ct. Dec. 13, 2016). The Missouri Court of Appeals affirmed the dismissal of Doe's state-law claims in 2017. See Doe v. McCulloch, 542 S.W.3d 354, 367 (Mo. Ct.App. 2017).

At the end of litigation in state court, the district court reopened this case. Doe v. McCulloch, No. 4:15 CV 6 RWS, 2018 WL 3725774, at *2 (E.D. Mo. June 26, 2018). It then determined that Doe lacked standing to challenge section 540.120 because the statute applies only to witnesses that appear before a grand jury and thus did not apply to Doe. Doe v. Bell, 367 F.Supp.3d 966, 973 (E.D. Mo. 2019). The district court also held that Doe lacked standing to challenge sections 540.080 and 540.310 because neither section provides for criminal penalties and thus were not enforceable by the prosecuting attorney but only by the appropriate Missouri circuit court, which was not a party to the action. As a result, the district court could not redress any injury that fairly could be traced to an action of a named defendant. Id. The court then granted Missouri's motion to dismiss Doe's federal constitutional claim concerning section 540.320, holding that Doe had failed to state a claim for which relief could be granted because the statute did not violate Doe's First Amendment free speech rights since it was narrowly tailored to serve a compelling governmental interest. See id. at 969, 978. Doe appeals.


On appeal, Doe argues that section 540.320 of the Missouri Revised Statutes is an unconstitutional abridgment of free speech as applied to her and thus that the district court erred in dismissing her challenge against this provision for failure to state a claim.5 Missouri responds that (1) the First Amendment's Free Speech Clause does not afford Doe a right to speak about matters she learned of during her grand jury service; (2) even if the Free Speech Clause covers her proposed speech, Doe waived her rights when she swore an oath of secrecy; and (3) applying strict scrutiny, section 540.320 is narrowly tailored to achieve a compelling governmental interest.

We review de novo a district court's grant of a motion to dismiss for

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failure to state a claim. Wong v. Minn. Dep't of Human Servs., 820 F.3d 922, 927 (8th Cir. 2016). Here, we need not settle whether Doe's proposed speech is covered by the First Amendment or whether Doe waived her speech rights by swearing an oath to keep grand jury matters secret. Because Missouri's grand jury secrecy laws survive even the most exacting scrutiny, Doe failed to state a claim for which relief can be granted.

The First Amendment prohibits the enactment of laws "abridging the freedom of speech." U.S. Const. amend. I. "The Fourteenth Amendment makes th[is] prohibition applicable to the States." Williams-Yulee v. Fla. Bar, 575 U.S. 433, 442, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). The Supreme Court has previously explained that though states traditionally have had broad powers to limit grand jury speech, grand juries "are expected to operate within the limits of the First Amendment, as well as the other provisions of the Constitution." Butterworth v. Smith, 494 U.S. 624, 630, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990) (internal quotation marks omitted). This is because "`a major purpose'" of the First Amendment is "`to protect the free discussion of governmental affairs,'" including the "operations of the courts." Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 838-39, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). Accordingly, a state's argument that a law advances the functioning of the grand jury is not "some talisman that dissolves all constitutional protections" but must instead be justified by reference to the dictates of the Constitution. See United States v. Dionisio, 410 U.S. 1, 11, 93 S.Ct. 764, 35...

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