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American Civil Liberties Union of Missouri Foundation v. Lombardi

United States District Court, Western District of Missouri, Central Division

November 7, 2014


For Diane K. Balogh, American Civil Liberties Union of Missouri Foundation, Plaintiffs: Andrew McNulty, LEAD ATTORNEY, American Civil Liberties Union of Missouri Foundation-StL, St. Louis, MO; Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation-KCMO, Kansas City, MO; Grant R. Doty, Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, St. Louis, MO.

For George A. Lombardi, in his official capacity as Director of the State of Missouri Department of Corrections, Defendant: Caroline M. Coulter, Michael Joseph Spillane, LEAD ATTORNEYS, Katharine Anne Dolin, Missouri Attorney General's Office-JC, Jefferson City, MO.



This matter comes before the Court on Defendant's Motion for Summary Judgment. (Doc. 44.) The Court previously found that Defendant is entitled to a ruling regarding Eleventh Amendment immunity before the merits of the case are addressed. ( See Doc. 59.) Therefore, this Order only addresses the portion of Defendant's Motion pertaining to Eleventh Amendment immunity. ( See Doc. 44, pp. 17-22; Doc. 56, pp. 7-12.) On October 14, 2014, the Court heard oral arguments on this issue. Having considered the parties' briefs and arguments, the Court hereby DENIES in part and DEFERS RULING in part on Defendant's Motion.

I. Background

a. Facts[1]

Under Mo. Rev. Stat. § 546.720, the director of the Missouri Department of Corrections (" DOC") shall choose an execution team that consists of persons who administer or provide direct support for the administration of lethal gas or lethal chemicals. Mo. Rev. Stat. § 546.720.2. The statute further provides that the identities of those execution team members shall be kept confidential. Id. Moreover, " [a] person may not, without the approval of the director of the [DOC], knowingly disclose the identity of a current or former member of an execution team or disclose a record knowing that it could identify such a person." Mo. Rev. Stat. § 546.720.3. Any execution team member whose name is knowingly disclosed has a cause of action for actual and punitive damages against the person who violated § 546.720. Id.

In August 2013, Plaintiffs made a request under the Missouri Sunshine Law, Mo. Rev. Stat. § 610.010, et seq., to view information related to the DOC's execution protocol and execution team members. The DOC disclosed over 650 pages of records to Plaintiffs in response to the request. Plaintiffs then published some of those records on the Plaintiff American Civil Liberties Union of Missouri Foundation's webpage. Plaintiffs believed and still believe that these records reveal the identities of people and entities that supply execution drugs and support the administration of lethal injections for the State of Missouri. At the time Plaintiffs received the records, the execution protocol defined the execution team as including: a physician, nurse, or pharmacist who prepared the chemicals; a physician, nurse, or emergency medical technician who inserted intravenous lines, monitored the prisoner, and supervised the injection of lethal chemicals by nonmedical members of the execution team; and two department employees who injected the lethal chemicals into the prisoner. ( See Doc. 44-1.)

The DOC issued a new execution protocol on October 18, 2013 that redefined the execution team to include: " [DOC] employees and contracted medical personnel including a physician, nurse, and pharmacist . . . [and] anyone selected by the [DOC] director who provides direct support for the administration of lethal injections, including individuals that prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure ." (Doc. 44-3, emphasis added.) On October 22, 2013, Plaintiffs learned of the new execution protocol and, because they believed the published documents revealed the identities of execution team members and, therefore, violated § 546.720, they removed the documents from their webpage to comply with the statute.

b. Allegations

In their Complaint, Plaintiffs allege that § 546.720, as applied, is unconstitutional. Specifically, Plaintiffs allege that Missouri's newest execution protocol, which redefined the execution team to include the manufacturers, suppliers, and pharmacies who prepare and supply the drugs used the lethal injection procedure, when read in conjunction with the statute, infringes on their rights to free speech and due process under the United States Constitution. Plaintiffs allege that Defendant's discretion to authorize disclosure of execution team members under § 546.720 operates as a prior restraint on speech in violation of the First Amendment. Plaintiffs also allege that the statute is a content-based regulation on speech that is not narrowly tailored to achieve a compelling government interest, and does not provide ample alternatives to engage in protected speech and press activity. Additionally, Plaintiffs allege that § 546.720 violates the Due Process Clause because: (1) it fails to give them fair notice of whether the records they obtained identified execution team members; (2) the definition of the execution team is broad and vague; and (3) it prohibits Plaintiffs from disclosing public records provided to them by the DOC.

c. Parties' Arguments

During oral arguments and in Defendant's Motion for Summary Judgment, (Doc. 44), Defendant argues that he is immune from suit under the Eleventh Amendment. Defendant correctly states that generally, the Eleventh Amendment bars suits in federal court by a citizen of a state against the state or an office or agency of the state. See 281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011). Defendant further contends that he does not meet the exception to Eleventh Amendment immunity, otherwise known as the Ex Parte Young doctrine. Defendant argues that the Ex Parte Young doctrine requires that a state official: (1) have some connection with enforcement of the allegedly unconstitutional statute; and (2) have the ability to enforce the statute, in that the official has threatened or is about to commence proceedings of a civil or criminal nature to enforce against the parties affected by an unconstitutional act. Relying on a recent Eighth Circuit decision, 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014), and a Sixth Circuit case, Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996), Defendant contends that he is entitled to Eleventh Amendment immunity because he has no ability to threaten to commence or commence proceedings against Plaintiffs to enforce § 546.720. Defendant explains that § 546.720 ...

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