STATE of Missouri, Respondent, v. Billy DUREN, Appellant.
No. 59914.
Supreme Court of Missouri, en banc.
Sept. 27, 1977.
Rehearing Denied Oct. 11, 1977.
In State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958) this Court noted that “contested case” within the meaning of the Administrative Procedure Act “does not mean every case in which there may be a contest about ‘rights, duties or privileges’ but instead one in which the contest is required by law to be decided in a hearing before an administrative agency.” This Court then held that a proceeding against the superintendent of the division of insurance was not a “contested case” because the superintendent was not required by law to hold a hearing on the claims asserted in the case.
We are confronted with a different situation here.
Accordingly, Wanda June Randle and George Replogle are entitled to the procedures provided by Chapter 536, RSMo 1969.
The judgment is reversed and the cause remanded with directions to proceed in a manner consistent with this opinion.
All concur.
Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, convicted of murder first degree and assault with intent to kill was sentenced to consecutive terms of life imprisonment. He appealed to the Missouri Court of Appeals, Kansas City district, raising questions of constitutional construction and because those issues fell within the exclusive appellate jurisdiction of the Supreme Court under
The case arose from defendant‘s fatal shooting of Carrol Riley and wounding of Lee Kinnison during an attempted robbery at a United States Post Office in Jackson County, Missouri. Riley, attempting to thwart the crime, was shot in the head by defendant who turned and then shot Kinnison, a bystander. Sufficiency of the evidence to support the verdict is not challenged.
THE JURY SELECTION ISSUE
Defendant first contends his motion to quash the petit jury panel was erroneously overruled in that
“[N]o woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service.” (Emphasis supplied.)
and Art. 402, Louisiana Code of Criminal Procedure:
“A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service.” (Emphasis supplied.)
Examining those constitutional and statutory provisions the Court stated, “Accepting
The thrust of Taylor is that no longer in criminal cases may women as a class be excluded from jury service or automatically exempted on the basis of sex, if as a consequence, jury venires are almost totally male. The Louisiana automatic exemption found constitutionally infirm required women to come forward and file with the district court clerk written declarations stating their desire or intention to serve as jurors, otherwise their names would not be included. Such affirmative action, not required of Louisiana male citizens, resulted in almost totally male criminal jury venires and the effective exclusion of females.
The Court made clear, however, that “[t]he States remain free to prescribe
Proper exemptions from jury service are permitted to promote the orderly and efficient operation of overloaded judicial systems. Under
Examining defendant‘s contention, we first must emphasize that in Missouri, women‘s rights to serve on juries are fully protected and equal to those of men.
The suspect practices condemned in those cases as denying equal protection because of invidious discrimination are neither condoned nor permissible in the jury selection system of Jackson County. The right of each class (men or women) to serve is equal. While members of either class may for cause shown, request and be granted exemption, in the case of women excuse from duty is more easily obtained, as a bare request suffices. However, the case confronting the Court in Taylor was one in which women as a class were denied such right to serve, absent affirmative action not required of men. For women in Louisiana, jury selection had been aptly described as a “volunteer” system, limited to those who filed declarations and asked to be included in the list. The Court however, recognizing the absence of susceptibility to abuse or purposeful discrimination in the system common to the “equal protection” cases cited above, based its determination not on equal protection considerations but instead on Sixth Amendment provisions for jury trial as that amendment binds the states under the due process clause of the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
The cited Missouri statute,
Defendant submitted 1970 Jackson County census figures reflecting approximately 407,000 county inhabitants over 21 years of age, with 54% (221,000) women and 46% (185,000) men, urging that we assume this gender distribution adhered among those eligible for Jackson County jury duty in 1976. A number of evidentiary gaps appear. Nothing is shown demonstrating a static gender distribution of Jackson County population from 1970 to 1976, and the Jackson County annual jury selection process begins with current voter registration lists, not 1970 census figures. Thus the gross population and percentage figures of-
Though defendant seems to have fallen short in his burden of establishing constitutional invalidity, assuming arguendo that 54% of the 1976 voter registration lists (as in the 1970 census gross population figures) were female and assuming that all on the lists were eligible jurors, the 1976 Jackson County jury selection process was as follows: (1) By questionnaires, jury commissioners randomly canvassed 70,000 names of the county voter registration lists. The questionnaires notified those canvassed of women‘s privilege to elect not to serve. (2) From returned questionnaires, the 1976 wheel or master jury list was compiled containing 30,000 names of men and women apparently qualified for jury duty; however, no information was adduced of the wheel‘s gender distribution except an unverified pencil note on Exhibit # 5 (the computer print-out of the wheel) showing 29.1% women. (3) From the wheel, jury panels were summoned on a random basis each week and those summoned were notified of the female option to decline service. (4) For the periods June through October, 1975 and January through March, 1976, approximately 11,197 persons were summoned for jury duty and of that number 2,992 or 26.7% were women. (5) Of those summoned, 5,119 persons appeared and of that number 741 or 14.5% were women.
In March, 1976 (the time of trial), 1,537 were summoned for jury duty and of that number 453 or 29.5% were women and of 707 appearing 110 or 15.5% were women.6 These figures reflect a dramatically higher percentage of female representation in wheel and panels than that condemned in Taylor. There, only 10% of the wheel was female and 1,800 persons drawn in St. Tammany Parish during the relevant 10 1/2 month period (4 months prior and 6 1/2 months after the trial), only 12 (less than 1%) were female and we are not informed if any of them appeared during the entire 10 1/2 months. This stands in marked contrast to the fact that during the month of defendant‘s trial, 29.5% of all venires summoned in Jackson County and 15.5% of those appearing for trial were female.
We are not told the number of women requesting exemptions but we do know that women originally canvassed who failed to return the questionnaire were automatically deemed eligible and included in the wheel. Those who claimed exemption could do so for a wide array of reasons other than the fact of their sex. For example, school teachers and government workers, whose jobs typically attract substantial numbers of women, may decline to serve under
The impediment of the Louisiana female “volunteer” or automatic exclusion system, was coupled with statistics showing sufficient sex disparity to work reversal. However, the Louisiana system did not contain the opportunity for subjective selection or discriminatory conduct by those in control of the system as in the previously cited equal protection cases, and the process was invalidated only on a strong showing that criminal jury venires were “almost totally male“. Accordingly, we cannot say the jury selection process in Missouri and the resulting venires were violative of that standard enunciated in Taylor.
We hold the challenged Missouri constitutional provision and implementing statute are a part of a facially valid jury selection system and the product of that system did not deny defendant‘s right to due process of law under the Fourteenth Amendment as that principle embodies fulfillment of the Sixth Amendment‘s guarantee of an impartial jury trial in criminal prosecutions.
Defendant next challenges the system and its results as violative of the Fourteenth Amendment and makes an ambiguous argument referring to the “methodology approved in Hernandez v. Texas, supra.” Hernandez was a case turning on denial of “equal protection” and from this we assume defendant is directing his argument to that clause of the Fourteenth Amendment.8
From these and related facts, the Court concluded appellant made a prima facie case of purposeful discrimination. The disparity occurred at the point where subjective standards were applied setting the stage for the finding of pervasive discrimination which when coupled with statistical showing of underrepresentation led to reversal. Such purposeful or pervasive discrimination, neither suggested nor shown here, distinguishes the case at bar from Turner and renders the percentage of Negro participation in Georgia inapplicable here. In the disparity cases, as distinguished from those involving exclusion [e. g., Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942)] the Court typically has held a prima facie case is not made on the basis of statistics alone. In such cases, we find not only substantial disparity between the numbers of the eligible class and those included in the list, but also the opportunity in the selection procedures for discriminatory conduct calculated to produce the underrepresentation.
No such exclusion or subjective discriminatory treatment at the hands of jury commissioners occurred in the case at bar. The names in both wheel and panels were picked at random from the registered voter lists. Women were not excluded nor (as heretofore discussed) were their rights to jury service diminished. Neither was the freedom of men to this cherished right to serve reduced or diluted in any way. The rights of each class were and are equal. While it might be argued the duty of men to serve is increased if women elect to opt off, men as a class may not reasonably be heard to complain that an added opportunity to participate in the system, which increases a cherished long-sought right, effects an equal protection denial for their class rising to a constitutionally impermissible level. Similarly, women may not be heard to claim a violation of equal protection when, while enjoying full rights to serve, by their free choice elect for a variety of reasons not to serve. This is privilege declined, not right diminished.
The question then becomes, whose rights are constitutionally affected? Since neither men nor women as a class may make a valid denial of equal protection claim, from the defendant‘s point of view this is not a problem best defined as one of “equal protection“. Instead, as in Taylor, the question for the individual defendant is set in terms of his rights to a jury representative of the community under the Sixth Amendment made applicable to state procedure by the due process clause of the Fourteenth Amendment. We have previously discussed defendant‘s contention in that context and determined there has been no denial of such right. Defendant‘s first assignment of error is denied.
Defendant next contends the court erred permitting joinder of two charges against him in a single indictment and compounded the error by denying his motion for severance, thereby forcing him to defend both counts in the same trial.
The charges of murder in the first degree for killing Riley, and assault with intent to kill for shooting Kinnison were part of the same transaction, the attempted robbery. Joinder of the charges as separate counts of the indictment is expressly permitted by
Defendant invites us to find that the 1971 amendment to
“Rule 24.04 is a procedural rule. It, like
Rule 8(a) of the Federal Rules of Criminal Procedure , merely permits joining in one information or indictment certain related multiple offenses which otherwise would have been charged separately. It does not mandate any difference in treatment between those charged jointly and those charged in separate informations or indictments. It makes no provision with respect to the amount of punishment to be imposed or whether sentences shall be concurrent or consecutive.” (Emphasis added.)
It may no longer be questioned that in a proper case offenses joined in a single indictment or information may be tried together. See State v. Morgan, 539 S.W.2d 660 (Mo.App.1976), for a discussion of the rationale of Baker as it relates to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and the Fifth Amendment guarantee against double jeopardy. The Supreme Court of Arizona in State v. Pierce, 59 Ariz. 411, 129 P.2d 916 (1942), considered an attack on its rule authorizing joinder of different offenses under separate counts, charging it was violative of a defendant‘s substantive right in a criminal proceeding. The court rejecting this con-
The remaining question concerns denial of defendant‘s motion for severance. Defendant bases his contention on the single argument that current
Further, severance is a matter within the sound discretion of the trial court directed toward achieving a fair determination of the defendant‘s guilt or innocence of each offense charged. The court should consider, among other relevant factors, the number of offenses charged, the complexity of the evidence to be offered and whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. The court remains under a continuing duty during trial to counter prejudice and order severance if necessary to achieve the fair result intended. Defendant has neither suggested nor has our examination of the record disclosed any abuse of discretion in denial of the requested motion for severance. This contention of error is denied.
The judgment of the trial court is affirmed.
MORGAN, C. J., and HENLEY and FINCH, JJ., concur.
DONNELLY, J., concurs in result.
BARDGETT, J., dissents in part and concurs in part in separate opinion filed.
SEILER, J., dissents in separate dissenting opinion filed.
BARDGETT, Judge (concurring in part and dissenting in part).
I concur in that part of the principal opinion dealing with the jury selection issue. I dissent from that part of the opinion styled, “THE JOINDER AND SEVERANCE ISSUES“, in which the court holds that
The right to be tried for separate offenses is, in Missouri, a substantive right which is subject to change only by statute, State v. Terry, 325 S.W.2d 1, 4 (Mo.1959), and not by court rule. My reasons for so concluding have been set forth in my dissenting opinion in State v. Neal, 514 S.W.2d 544 (Mo. banc 1974), and my concurring opinion in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).
In addition to the reasons stated in my separate opinions in Neal and Baker, the reasoning of Henley, J., and the court‘s holdings in State v. Bursby, 395 S.W.2d 155 (Mo.1965), support the conclusion that a right to a severance of counts alleging separate crimes is a substantive matter in Missouri.
In Bursby, the defendants (Bursby brothers) were charged in one information with three counts as follows: count 1—burglary of the Terry Town Store building owned by Lonus Speight and stealing therefrom; count 2—burglary on the same date of a tin grainery owned by Speight, located near the Terry Town Store, and stealing therefrom; and count 3—stealing of Speight‘s cement mixer located near the store building. The defendants, without counsel and upon waiving counsel, entered a plea of guilty to the information after being told by the judge they were charged with “a felony“; that they were entitled to a jury trial and counsel, etc. The court sentenced them to a term of four years on each of the three counts, the sentences to run consecutively. The Bursby brothers thereafter filed a 27.26 motion which was denied without hearing and the appeal came to this court.
“The offenses of burglary, and stealing in connection with such burglary, although separate and distinct crimes, may be joined in one information, and an accused may be tried and convicted of both offenses in one trial only because the rule and statute authorize and permit such as an exception to the general rule; the general rule being that an accused may not be charged, tried and convicted at the same time of two separate and distinct offenses. State v. Preslar, 316 Mo. 144, 290 S.W. 142 and cases there cited; State v. Terry, Mo., 325 S.W.2d 1, 4[3], and cases there cited.”
And, quoting from State v. Preslar, 316 Mo. 144, 290 S.W. 142, 143-144, Bursby further stated at 158-159:
“* * * In justice to all parties concerned, we think the matter should be disposed of as though counsel for appellant made no request of the court to require the prosecuting attorney to elect upon which of the four counts he would proceed, until the filing of the motion for a new trial, as aforesaid. On the other hand, the [trial] court ruled it was not required to order an election under the laws of this state. We hold that, under the rulings of this court, the question of election is not a mere matter of form, which may be waived, as claimed by the state, supra, but it involves a question of jurisdiction and power. This principle of law was announced with great clearness and force by Judge Gantt in the leading case of State v. Carragin, 210 Mo. [351] loc. cit. 371, 109 S.W. [553] 558, (16 L.R.A. [N.S.] 561) where he said: ‘In instructing the jury that they might find the defendant guilty under both counts, and in refusing to require the prosecuting attorney to elect after all the evidence was in, the court committed reversible error. We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute.’
“The law, as above written is fully sustained by other decisions of this court, as follows: State v. Guye, 299 Mo. [348] loc. cit. 366, 252 S.W. 955; State v. Link [315 Mo. 192], 286 S.W. 12 et seq.
“We have no hesitation in holding that, on the record before us, the judgment of conviction in which defendant has been sentenced to the penitentiary for 8 years on four separate and distinct felonies, set out in four separate counts of the information, cannot stand the test of judicial criticism, under the laws of this state. We are of the opinion that it was the absolute duty of the trial court in this case, whether requested or not, to have directed the prosecuting attorney, before submitting the case to the jury, to elect on which of the four counts in the information he would proceed to trial and to strike out the remainder. In addition to foregoing, as a part of the state‘s case, whether requested or not, it was the imperative duty of the court to instruct the jury that they could not find the defendant guilty except on the single count submitted for their consideration. State v. Burrell, 298 Mo. [672] loc. cit. 678, 679, 252 S.W. 709, and cases cited.”
What is a “substantive” right? Former Governor Guy B. Park, who introduced the amendment which later became
The Convention considered an amendment to that which became sec. 5 which would have granted unlimited power to the Supreme Court to promulgate rules of practice and procedure. Delegate Garten, speaking as one “unreservedly opposed to this amendment“, suggested that it was “too great a delegation of power” which fails to “give the Legislature the power to annul or amend some rule which may endanger private rights.” XIII Debates of the Missouri Constitution 1945 at 3875. (Emphasis added.) The amendment was defeated by a voice vote.
In Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268, 272 (banc 1928), we described as substantive law “that part of the law which creates, defines and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion.” See also Shepherd v. Consumers Cooperative Association, 384 S.W.2d 635, 640 (Mo.banc 1964); Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 377-378 (1937); Ambrose v. State Department of Public Health & Welfare, 319 S.W.2d 271, 274 (Mo.App.1958); Poyser v. Minors, 7 Q.B.D. 329, 333 (1881).
Was the general rule prior to our adoption of
In seeking to understand the origin of our general rule prior to
Nelson finally relies upon Young v. The King, 3 D. & E. 98 (K.B.1789), which says at 106 per Buller, J., that the rule exists “lest it should confound the prisoner in his defence, or prejudice him in his challenge of the jury; for he might object to a juryman‘s trying one of the offences, though he might have no reason to do so in the other. . . . I thought it the soundest way of administering justice . . . in order to give a prisoner a fair trial.”
What our
In my opinion, it was error to deny defendant‘s motion for severance. It should have been granted. See concurring opinion of Donnelly, J., in Neal, supra, at 550.
SEILER, Judge (dissenting).
I join in the dissent of Bardgett, J., on the question of our lack of authority to promulgate
The principal opinion is in error, in my judgment, in proceeding on the premise of an alleged “right of Missouri women to jury service” which “remains inviolate though they enjoy an expanded privilege to seek exemption . . ..” No such “right to serve” exists. Many qualified citizens will never sit on a jury. No one has a right to insist that he or she, in particular, be summoned for jury service or serve on a jury.
Rather, a criminal defendant‘s right to a trial by jury, applicable to the states under the due process clause of the Fourteenth Amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), includes the right to “a fair possibility for obtaining a representative cross-section of the community.” Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446 (1970). To this right is attached a correlative duty on the part of those citizens called to serve, see Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30-32 (1913). Jury service, in short, “is not a right or privilege which may be claimed, but is an obligation imposed by law upon those who come within a designated class possessing the required qualifications.” 47 Am.Jur.2d Jury § 90 (1969).
The principal opinion denies the alleged unconstitutionality under Taylor of our scheme for the voluntary exemption of women from jury duty for two reasons. One is that “the right of Missouri women to jury service remains inviolate.” As I have noted, no such “right” exists. The fact that the duty remains inviolate is not dispositive: the duty of women to serve remained inviolate under the Louisiana system, which was nonetheless found unconstitutional in Taylor. The second reason is that “the results of Louisiana‘s jury selection scheme [held unconstitutional in Taylor] contrast sharply with those of the selection process in this case.”
The principal opinion observes that the fact that only 14.5-15.5 percent of the jury panels in the relevant period in Jackson County were made up of women (1) represents “a dramatically higher percentage of female representation . . . than that condemned in Taylor” where less than one percent of the jury panels during the relevant period were made up of women, and (2) is nevertheless explainable “for a wide array of reasons other than the fact of their sex“, such as, for example, the exemptions permitted of school teachers and government workers “whose jobs typically attract substantial numbers of women” or that permitted to persons over age 65, 61 percent of whom are women.
The rule in Taylor is that “it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequences is that criminal jury venires are almost totally male.” 419 U.S. at 537, 95 S.Ct. at 701. It is not necessary to show a governmental intent to discriminate against women, but only to evaluate the “systematic impact” of our system upon defendants’ rights. Taylor v. Louisiana, supra at 525, 95 S.Ct. 692. The findings before us show that 85 percent of the relevant jury panels in Jackson County were male. No excuse, whether derived from the observations of this court of the role of women in our society or from a percentage comparison of the Louisiana and Missouri systems, can overcome the end result of our gender based exemption. Eighty-five percent or approximately six men to one woman is, to me, “almost totally male.” I simply cannot understand it to be otherwise. The Taylor case does not say that anything more than one percent women is constitutional. The situation in Jackson County is not as bad as it was in St. Tammany Parish, but it does not have to be representative cross-sectional jury would not be realized.
In Jackson County, Missouri, the right of the women to exemption is given considerable prominence, first in the Official Notice and Questionnaire and next in the summons for jury service. In each she is invited to excuse herself. “[O]nce a woman was informed of her right to automatic exemption, the likelihood that she would be a willing participant in the administration of justice declined markedly.” Comment, 41 Mo.L.Rev. 446, 454 (1976). See People v. Moss, 80 Misc.2d 633, 366 N.Y.S.2d 522 (Sup. Ct.1975).
In the case before us and in the four other cases which were argued along with it, involving five criminal trials in Jackson County, between April 1975 and March 1976, using the jury selection system outlined in the principal opinion, the record showed that a maximum of 15 percent of any jury panel were women.2
Contrast this with the federal court in the Western Division3 of the Western District of Missouri, where the court has no automatic exemption for women,
“In a complex society such as ours, a jury that is the true ‘conscience of the community’ must include a fair cross-section of the groups that make up the community. Each person comes to the jury box as an individual, not as a representative of an ethnic, racial, or age group. But since people‘s outlooks and experiences do depend in part upon such factors as socioeconomic status, ethnic background, sex, or age, to ignore such differences is to deny the diversity in society as well as the fundamental character of the ‘community’ whose voice is to be heard in the jury room. So, although each juror‘s individuality must be respected (in fact, the system counts on jurors trying to overcome their prejudices to judge a case on its own merits), the juror‘s identification with certain demographic groups must be respected.” J. Van Dyke, supra at xiv.
The principal opinion, finally, deals briefly with appellant‘s claim under the equal protection clause of the Fourteenth Amendment. The problem of defendant‘s standing to raise the equal protection claims of himself or of third party males who would allege a disproportionate burden in violation of their equal protection guarantees, is indeed a serious one. Under current United States Supreme Court doctrine it is speculative as to how such a standing question might be resolved, granting that the principle of a representative jury is a requirement of equal protection, Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84 (1940). See Craig v. Boren, 429 U.S. 190, 193-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Peters v. Kiff, 407 U.S. 493, 496, n. 4, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (opinion by
We are not, however, bound by the justiciability doctrines of the federal system which derive from the Article III “case or controversy” requirement of the Constitution and the prudential concerns which the Supreme Court has applied as “matters of judicial self-governance.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see Comment, 50 N.Y.U.L.Rev. 1163, 1171-73 (1975). Rather, we are obligated to apply our own standards of justiciability. Note, Protecting Fundamental Rights in State Courts: Fitting a State Peg to a Federal Hole, 12 Harv.C.R.—C.L.L.Rev. 63, 90-93 (1977).
I would hold that where “the exclusion of a discernible class from jury service injures not only those defendants of the excluded class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross-section of the community,” Peters v. Kiff, supra 407 U.S. at 500, 92 S.Ct. at 2167 (opinion of Marshall, J.), that there exists in the instant case a sufficient nexus between the status of the claimant, his allegation, his legal interest, and his requested relief to permit his standing to assert a denial of the equal protection of the laws by our gender based exemption provision for jury duty. We have recently held that a primary objective of the standing doctrine is “to assure that there is a sufficient controversy between the parties [so] that the case will be adequately presented to the court [for the] purpose of preventing parties from creating controversies in matters in which they are not involved and which do not directly affect them . . .” Ryder v. County of St. Charles, 552 S.W.2d 705, 707 (Mo.banc 1977). That objective has surely been met here.
I would then consider the substantive merits of the equal protection claim.
“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, supra, 429 U.S. at 197, 97 S.Ct. at 457; see Johnston, Sex Discrimination and the Supreme Court—1971-1974, 49 N.Y.U.L.Rev. 617 (1974). Under that rule, I can find no valid justification for our gender based scheme, and would therefore hold that it denies defendant equal protection. See Note, Taylor v. Louisiana: Constitutional Implications for Missouri‘s Jury Exemption Provisions, 20 St. Louis U.L.J. 159 (1975); Comment, 41 Mo.L.Rev., supra.
STATE of Missouri, Respondent, v. Vincent X. LEE, Appellant.
No. 59607.
Supreme Court of Missouri, en banc.
Sept. 27, 1977.
Rehearing Denied Oct. 11, 1977.