Case No. _______________________

IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI ex rel. BROOKE RENE GRAY,Relator,

v.THE HONORABLE THOMAS J. CHAPMAN,

Circuit Judge of Clinton County,Respondent.

WRIT SUMMARY

Identity of parties and their attorneys in the underlying action, if any: Brooke Rene

Gray, defendant, represented by David Roland (Mo. Bar #60548); Missouri Veterinary

Medical Board, represented by Edwin Frownfelter, Asst. Atty. Gen.

Nature of underlying action, if any: Case No. 10CN-CV00842 is a civil action filed

pursuant to § 340.276, RSMo, to enjoin alleged unauthorized practice of veterinary

medicine, which is a Class A misdemeanor under § 340.294.

Action of Respondent being challenged, including date thereof: Respondent denied

Ms. Gray’s demand for jury trial. Initial determination that Ms. Gray had no right to jury

trial made in docket entry on February 15, 2011; on April 22, 2011, Respondent ordered

case set for bench trial to commence on September 26, 2011.

Relief sought by Relator or Petitioner: Relator asks this Court to prohibit Respondent

from proceeding to trial without first empanelling a jury to determine the facts to which

the law will apply.

Date case set for trial, if set, and date of any other event bearing upon relief sought

(e.g., date of deposition or motion hearing): Respondent has scheduled a bench trial to

commence on September 26, 2011.

Date, court and disposition of any previous or pending writ proceeding concerning

the action or related matter: Relator filed Petition for Writ of Prohibition with the

Missouri Court of Appeals, Western District, on June 23, 2011. The matter was assigned

case number WD74032. That court issued an order denying the writ on June 27, 2011.

Respectfully submitted,

________________________________DAVID E. ROLAND, Mo. Bar #60548Freedom Center of Missouri5938 De Giverville Ave.St. Louis, Missouri 63112Telephone: (314) 604-6621Facsimile: (314) 720-0989dave@mofreedom.org

Attorney for the Relator

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Case No. _______________________

IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI ex rel. BROOKE RENE GRAY,Relator,

v.

THE HONORABLE THOMAS J. CHAPMAN,Circuit Judge of Clinton County,

Respondent.

PETITION FOR WRIT OF PROHIBITION

DAVID E. ROLAND, Mo. Bar #60548Freedom Center of Missouri5938 De Giverville Ave.St. Louis, Missouri 63112Telephone: (314) 604-6621Facsimile: (314) 720-0989dave@mofreedom.org

Attorney for the Relator

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Comes now Relator, and in support of her Petition for Writ of Prohibition, states

as follows:

1. Relator Brooke Gray is a defendant in the civil matter of Missouri Veterinary

Medical Board v. Gray, Case No. 10CN-CV00842, now pending in the Clinton County

Circuit Court, State of Missouri.

2. Respondent is the Honorable Thomas J. Chapman, Circuit Judge of Clinton

County, which is within the jurisdiction of the Supreme Court of Missouri.

3. The Supreme Court of Missouri has jurisdiction to hear this matter and authority

to grant Relator relief pursuant to V.A.M.R. Civil Rule 84.23.

4. On September 7, 2011, the Missouri Veterinary Medical Board filed a Petition

for Preliminary and Permanent Injunction which accused Ms. Gray of engaging in

behaviors that, if proven, would constitute multiple Class A misdemeanors.

5. In her Answer, Ms. Gray raised a number of affirmative defenses based on the

Missouri and U.S. Constitutions and demanded a jury trial as is her right under Article I,

Section 22(a) of the Missouri Constitution.

6. In its Reply to Defendant’s Affirmative Defenses, the Veterinary Medical Board

denied that Ms. Gray had any right to a jury trial.

7. On January 18, 2011, the Veterinary Medical Board filed a Motion in Limine

that included a request for a ruling that Ms. Gray had no right to a jury trial.

8. On February 15, 2011, a hearing was held on this Motion in Limine. After

hearing arguments, the Honorable Thomas J. Chapman announced his finding that Ms.

Gray is not entitled to have a jury determine the facts to which the law will be applied in

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this case.

9. Respondent has set this case for a non-jury trial on September 26, 2011.

10. Article I, Section 22(a) of the Missouri Constitution guarantees citizens the

right of trial by jury in both criminal and civil matters “as heretofore enjoyed;” because in

order to prevail in its case the government must prove that Ms. Gray committed criminal

acts and also because Missouri courts have recognized that the Anglo-American legal

tradition has always afforded a jury trial in cases demanding the injunction of a public

nuisance, the Respondent’s denial of Ms. Gray’s demand for a jury trial would

improperly deprive her of this constitutional right.

11. Failure to issue a writ of prohibition will result in irreparable harm to Ms.

Gray, due to the denial of her constitutional right.

12. Relator herein files Suggestions in Support of Petition for Writ of Prohibition,

as well as Notice of Petition for Writ of Prohibition.

WHEREFORE, Relator prays this Court issue its preliminary Writ of Prohibition

against Respondent, the Honorable Thomas J. Chapman, barring the holding of a trial

without a jury in Clinton County Circuit Court, Case No. 10CN-CV00842, and that

Respondent be required to answer and show cause why a final judgment in Prohibition

should not be entered, and that upon a final hearing the preliminary rule be made final.

Respectfully submitted,

__________________________Attorney for Relator

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Case No. _______________________

IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI ex rel. BROOKE RENE GRAY,Relator,

v.THE HONORABLE THOMAS J. CHAPMAN,

Circuit Judge of Clinton County,Respondent.

SUGGESTIONS IN SUPPORT OF PETITION FOR WRIT OF PROHIBITION

I. INTRODUCTION

Relator Brooke Gray is a defendant in the civil matter of Missouri Veterinary

Medical Board v. Gray, Case No. 10CN-CV00842, now pending in the Clinton County

Circuit Court, State of Missouri. Respondent is the Honorable Thomas J. Chapman,

judge of the Circuit Court of Clinton County.

Ms. Gray is seeking the requested Writ of Prohibition in response to the

Respondent’s rejecting her demand for a jury trial and setting of the underlying case for a

trial without a jury. The Missouri Constitution guarantees citizens the right to trial by

jury in both criminal and civil matters, although Missouri courts have recognized that in

the Anglo-American legal tradition the right to a jury trial was not generally extended to

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civil actions calling for a balancing of equities. The Missouri Veterinary Medical Board

has attempted to frame the underlying case as an equitable action because injunctions

have traditionally been considered equitable in nature. But the equitable nature of an

injunction lies in the fact that the courts would traditionally only use this tool after

engaging in a balancing of equities. In this case, the Veterinary Medical Board has

argued that section 340.276, RSMo., requires Missouri courts to issue an injunction

without engaging in any balancing of equities.1 Additionally, the government can only

prevail at trial if it proves that Ms. Gray committed acts that section 340.294 categorizes

as Class A misdemeanors. Missouri law has long held that even under the very limited

circumstances in which courts are permitted to enjoin criminal acts,2 citizens in Ms.

Gray’s situation still are entitled to have a jury determine the facts to which the law will

1 Specifically, the Board maintains that it need not demonstrate that any identifiable

person has suffered (or is likely to suffer) any harm as a result of the acts to be enjoined.

2 Missouri courts have steadfastly refused to enjoin criminal acts unless the act

complained of threatens irreparable injury to the party seeking the injunction. See Kinder

v. Nixon, 2000 WL 684860, *12 (Mo. App. W.D. 2000) (unreported); City of Kansas City

v. Mary Don Co., 606 S.W.2d 411, 415 (Mo. App. W.D. 1980); Missouri Veterinary

Medical Ass’n v. Glisan, 230 S.W.2d 169, 171 (Mo. App. 1950); State ex rel. Chicago, B.

& Q.R. Co v. Woolfolk, 190 S.W. 877, 878 (Mo. banc 1916); Hamilton-Brown Shoe Co.

v. Saxey, 32 S.W. 1106, 1108 (Mo. 1895). The trial court has not yet ruled whether it

may exercise its equitable powers to enjoin the criminal acts the government has alleged

in this case, so this issue is not presented by this Petition.

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be applied. “A writ of prohibition is appropriate when a trial court improperly denies the

right to a trial by jury.” State ex rel. Barker v. Tobben, 311 S.W.3d 798, 800 (Mo. banc

2010).

II. ARGUMENT

The Missouri Bill of Rights ensures that “the right of trial by jury as heretofore

enjoyed shall remain inviolate.” Mo. Const. Art. I, § 22(a). The Missouri Supreme Court

“has interpreted the phrase ‘as heretofore enjoyed’ as protecting ‘all the substantial

incidents and consequences that pertain to the right to jury trial at common law.’” State

v. Celis-Garcia, Case No. SC90980 (Mo. banc June 14, 2011). Missouri courts have

generally determined that because jury trials were not traditionally afforded in courts of

equity, the right to a jury trial does not apply to civil actions sounding in equity. Tobben,

311 S.W.3d at 800. However, an unbroken string of Missouri court decisions have also

held that where a party requests an injunction to enforce a criminal statute rather than to

prevent an injury to their property rights or to terminate a public nuisance, the relief

demanded cannot be considered equitable in nature and that the defendant is entitled to

have a jury determine the facts to which the law will be applied in their case.

In State ex rel. Cir. Atty. v. Uhrig, 14 Mo.App. 413 (1883), a government attorney

had instituted a civil action to enjoin the unlicensed operation of a dram-shop, which St.

Louis City had made a criminal offense. As in the instant case, the government attorney

in Uhrig attempted to avoid a jury trial by treating the action as an equitable proceeding

rather than pursuing the available criminal charges. The Court of Appeals determined

that in the Anglo-American common law tradition the government was almost never

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permitted to ask a court of equity to enjoin activity that might constitute a criminal

offense, although the exceptions to this rule included efforts “to restrain threatened

nuisances dangerous to the health of a whole community.” Id. at 414. But the Court also

pointed out that even where the law allowed courts to enjoin criminal acts, Missouri

citizens retained their right to a jury trial because “the right of trial by jury has always

been enjoyed in England and America in prosecutions for public nuisances.” Id. at 417.

Courts established these rules — and Missouri courts have maintained them — due to a

recognition that if the government is permitted to enforce criminal laws through courts of

equity, it would seize the opportunity to use that power to deprive citizens of their

liberties without affording them the protections due to those directly accused of crimes.

See id. at 416. The Uhrig Court did not dispute that the unlicensed dramshop at issue in

that case might be shown to constitute a public nuisance injurious to the public, but it still

denied judicial authority to issue the requested injunction because if such an injunction

were disobeyed, “a single judge… would hear evidence and try the facts whether the

defendants had committed such isolated criminal acts—facts which, with the exceptions

already stated, the law has always required to be contested before a jury.” Id. at 417.

Thus, the Uhrig Court made clear that as a matter of history and Missouri Constitutional

law, even if the circumstances allow a court to consider enjoining criminal activity, the

citizen accused of engaging in that activity is entitled to have a jury determine the facts to

which the court will apply the law.

This reasoning was adopted just a few years later when the St. Louis Court of

Appeals decided Warren v. Cavanaugh, 33 Mo.App. 102 (Mo. Ct. App.1888), in which a

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party attempted to enjoin the operation of an allegedly unlawful rock quarry in St. Louis.

The question before the Court in that case was whether “courts of equity [will], by

injunction or otherwise, restrain the doing of a thing which is not a nuisance per se or at

common law, but which is only illegal by reason of the ordinance or regulation of a city

or town?” Id. at 107. The Court found near-unanimous agreement among authorities that

“a court of equity may enjoin a defendant from doing that which an ordinance also

prohibits, but not because of the ordinance, but rather because, and aside from the

ordinance, the thing itself is a nuisance, either always or because of particular facts or

circumstances surrounding the case.” Id. at 108 (emphasis in original). While the Court’s

decision in this case did not specifically reference the constitutional right to trial by jury,

it highlighted the importance of fact-finding in cases such as this, which both reinforces

the vital role that juries play in such a situation and demonstrates that the legislature may

not conjure up “equity” by fiat. See also Missouri Veterinary Medical Ass’n v. Glisan,

230 S.W.2d 169, 172 (Mo. App. 1950) (practicing veterinary medicine without a license

may violate the law, but “is not of itself a public nuisance”); Parvey v. Humane Society of

Missouri, 343 S.W.2d 678 (Mo. Ct. App. 1961) (dismissing petition to enjoin nuisance

for failure to state a claim, even though Chapter 340 explicitly declared unauthorized

practice of veterinary medicine to be a public nuisance).

The Kansas City Court of Appeals considered a similar case, Rice v. Jefferson, 50

Mo.App. 464 (1892), which provides a perfect example of the constitutional dangers that

would result if Missouri courts were permitted to enjoin allegedly criminal behavior. In

Rice, a private party sought to enjoin the construction of a building allegedly in violation

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of a Kansas City ordinance, even though the defendant had already been subjected to a

criminal prosecution in which a jury found him not guilty. The Court cited Uhrig for the

proposition that “equity will not interfere in [nuisance] cases” where a criminal penalty is

available, id. at 469, but also pointed out that allowing such cases to proceed in equity

could result in “one accused of crime or misdemeanor [being] deprived of the

constitutional right of trial by jury.” Id. at 470.

The cited cases anticipated the very problem presented by the instant case: a

government agency has accused a citizen of engaging in criminal activity, but it has

attempted to deny Ms. Gray the constitutional rights due to the criminally accused by

pursuing an injunction rather than criminal prosecution. If the Respondent is permitted to

try this case without empanelling a jury to decide the facts to which the law will be

applied, Ms. Gray faces the very same deprivation of constitutional rights warned of in

each of the above cases. The Relator has found no Missouri appellate cases that have

either questioned or overturned the well-established rule that citizens accused of crimes,

misdemeanors, or civil public nuisances have a constitutional right to have their cases

heard by a jury. As such, Ms. Gray is entitled to have a jury determine the facts of the

underlying action and this Court should grant a Writ of Prohibition that will assure her of

this right.

WHEREFORE, for the foregoing reasons, Relator prays this court to issue its

preliminary Writ of Prohibition against Respondent, the Honorable Thomas J. Chapman,

barring him from proceeding to trial in this case without granting Ms. Gray the jury to

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which Article I, section 22(a) entitles her.

Respectfully submitted,

________________________________DAVID E. ROLAND, Mo. Bar #60548Freedom Center of Missouri5938 De Giverville Ave.St. Louis, Missouri 63112Telephone: (314) 604-6621Facsimile: (314) 720-0989dave@mofreedom.org

Attorney for the Relator

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