McDaniel v. Lombardi
ORDER entered by Judge Nanette Laughrey. Defendant's Motion to Dismiss, [Doc. 9 ], is denied. Proposed scheduling order due by 1/13/2017. Rule 26 conference due by 1/11/2017. (Farrington, Elizabeth)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CHRISTOPHER S. MCDANIEL,
Case No. 2:16-cv-04243-NKL
Before the Court is Defendant’s Motion to Dismiss, [Doc. 9]. For the following reasons,
Defendant’s Motion to Dismiss is denied.
Plaintiff Christopher McDaniel is an investigative reporter whose work is primarily
focused on the death penalty. His reporting has at times been critical of Missouri officials. In
January 2014, Plaintiff applied to witness a Missouri execution by completing the Missouri
Department of Correction’s State Witness Application form. He never received a response and
was not afforded the opportunity to be a witness.
Under Mo. Rev. Stat. § 546.740, “the director of the department of corrections shall
invite the presence of . . . at least eight reputable citizens, to be selected by him . . . to witness
[an] execution.” The Missouri Department of Corrections maintains no policy governing requests
These facts appear in Plaintiff’s Complaint. [Doc. 1]. For purposes of deciding the Defendant’s
Motion to Dismiss, the Court accepts Plaintiff’s factual allegations as true and construes them in the light
most favorable to him. See Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).
to witness an execution by members of the public or media, leaving the decision to the Director’s
discretion. There are no departmental polices for how he should exercise his discretion.
Plaintiff filed suit charging that the Department of Correction’s lack of criteria for the
selection of execution witnesses is a violation of the First Amendment “in that the opportunity to
witness an execution and report on what was witnessed requires permission that is given or
withheld without any specific standards, other than age.” This unbridled discretion allegedly
creates an impermissible risk that free expression will be suppressed. [Doc. 1, p. 2].
Defendant filed a Motion to Dismiss under Rule 12(b)(1) for lack of subjection matter
jurisdiction and lack of standing. Defendant also moves to dismiss under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted.
Plaintiff sues Defendant in his official capacity as Director of the Missouri Department of
Corrections. Defendant first moves to dismiss for lack of subject matter jurisdiction by arguing
that this suit is barred by the Eleventh Amendment. Defendant also moves to dismiss for lack of
The Constitution limits federal courts’ jurisdiction to cases and controversies. U.S.
CONST. art. III, § 2. “One element of the case-or-controversy requirement is that plaintiffs must
establish that they have standing to sue.” Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 1146 (2013).
The party invoking federal jurisdiction bears the burden of establishing standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). The burden corresponds with the degree of
evidence required at the relevant stage of litigation. Id. “At the pleading stage . . . general factual
allegations of injury . . . may suffice.” Id.; Iowa League of Cities v. E.P.A., 711 F.3d 844, 869
(8th Cir. 2013).
To demonstrate standing, a plaintiff must show: (1) he has “suffered an injury-in-fact”;
(2) the injury is “fairly ... trace[able] to the challenged action of the defendant”; and (3) it is
“likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Balogh v. Lombardi, 816 F.3d 536, 541 (8th Cir. 2016) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)).
Defendant asserts that Plaintiff has not suffered an injury in fact. [Doc. 9, p. 8]. 2 In order
to establish an injury-in-fact, the plaintiff must establish the invasion of a legally protected
interest. Arizona State Legislature v. Arizona Independent Redistricting Com’n., 135 S. Ct. 2652,
2663 (2015). That invasion must be concrete, particularized, and actual or imminent as opposed
to conjectural or hypothetical. Balogh, 816 F.3d at 541.
1. Legally Protected Interest
Defendant contends that Plaintiff has no cognizable interest in being a witness because
the Eighth Circuit has not recognized a right to view an execution. Plaintiff, however, does not
claim that he has a right to view an execution. He claims that if the Director is given discretion
to choose witnesses, there must be criteria to avoid the risk of viewpoint discrimination. His
claim is premised in part on Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988). In
that case the Supreme Court held that under certain circumstances unfettered discretion to grant a
license can violate the First Amendment because it creates a substantial, unjustified risk of
viewpoint discrimination and thereby chills future expression. Here Plaintiff points to the lack of
policies in the Department of Corrections to guide the Director’s discretion. The same reasoning
that led the Supreme Court in Lakewood is applicable here although the challenge is not to a
The other requirements are clearly met.
statute but instead to departmental policies and involves being an execution witness rather than
the licensee of a newsstand.
Because Plaintiff is alleging he was subjected to this
unconstitutional process, he was injured in fact. Plaintiff has also alleged facts that indicate his
risk is not speculative. Defendant “den[ied] all applicants in a one-year period who wrote that
they sought to ensure the execution’s constitutionality (including [Plaintiff]).” [Doc. 12, p. 7].
The Defendant also requires applicants to state on their application form whether they have
publicly supported or opposed the death penalty. Accepting Plaintiff’s factual allegations as
true, he has satisfied the injury in fact requirement. See also Dorr v. Weber, 741 F. Supp. 2d
1010, 1019–20 (N.D. Iowa 2010).
Defendant also seems to argue as a separate matter that Plaintiff was not denied a
government benefit and therefore he does not have standing. While generally a government
benefit involves a financial benefit, there are other benefits such as the opportunity to volunteer
that are also protected by the Constitution. Courts have routinely recognized that the right to
volunteer is a benefit that cannot be denied unconstitutionally. See Cuffley v. Mickes, 208 F.3d
702, 707 n.5 (8th Cir. 2000) (finding that the State could not deny an application to “Adopt-AHighway” because of an applicant’s speech); Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir.
1992) (holding a probation department volunteer’s termination violated the First Amendment);
Janusaitis v. Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 25 (2d Cir. 1979) (assuming
without deciding that the opportunity to volunteer as a fireman was a benefit); see also Versage
v. Township of Clinton, 984 F.2d 1359, 1364 (3d Cir. 1993) (same); Hanson v. Cameron Cty.,
2010 WL 148723, at *6 (S.D. Tex. 2010) (holding a county jail volunteer minister’s credentials
to access facility were a “benefit”).
A suit alleging impermissible viewpoint discrimination “is not limited to valuable
government benefits or even benefits at all.” Cuffley v. Mickes, 208 F.3d 702, 707 n.5 (8th Cir.
2000) (citing Rutan v. Republican Party, 497 U.S. 62, 72 (1990)). “Even though a person has no
‘right’ to a valuable government benefit and even though the government may deny him the
benefit for any number of reasons, there are some reasons upon which the government may not
rely.” Id. (citation omitted).
Witnessing an execution is, as Plaintiff argues, “a strange benefit, but a benefit
nonetheless” and an individual can challenge denial of that benefit if it was denied for
unconstitutional reasons. See Wishnatsky v. Rovner, 433 F.3d 608, 611–12 (8th Cir. 2006).
2. Concrete, Particularized & Actual
Defendant further argues that the mere risk of viewpoint discrimination cannot establish
Article III standing without evidence that Defendant engaged in such discrimination. [Doc. 14,
pp. 7–8]. But as discussed above, Plaintiff has alleged facts that if proven create an inference that
the risk in this case is not speculative. Furthermore, the Supreme Court in Lakewood explained
circumstances under which it is unnecessary to establish that a defendant has engaged in
viewpoint discrimination. Rather a substantial risk of viewpoint discrimination is enough to state
In Cuffley, the State denied an application to “Adopt-A-Highway” from the Ku Klux
Klan. The Eighth Circuit considered, amongst other evidence, a letter the State sent outlining a
number of reasons it denied the application. Cuffley, 208 F.3d at 707–08. The Eighth Circuit
concluded, despite the State’s proffered evidence to the contrary, “that the State treated the Klan
differently from the vast majority of applicants based on the State’s perception of the Klan’s
beliefs and advocacy.” Id. at 707.
Here, Defendant never responded to Plaintiff’s request, but Defendant “den[ied] all
applicants in a one-year period who wrote that they sought to ensure the execution’s
constitutionality (including [Plaintiff]).” [Doc. 12, p. 7]. Plaintiff argues that this “gives rise to
the reasonable inference that the department chose to use that question to select execution
witnesses and plausibly intended to—and did—make use of it to engage in viewpoint
discrimination.” Id. Accepting Plaintiff’s factual allegations as true, he has satisfied the injury in
fact requirement. See also Dorr v. Weber, 741 F. Supp. 2d 1010, 1019–20 (N.D. Iowa 2010).
B. Sovereign Immunity & Ex Parte Young
The Defendants also asserts he is immune from suit under the Eleventh Amendment.
“[T]he Eleventh Amendment bars damage relief against the States, but it does not prohibit
certain suits seeking declaratory and injunctive relief against state officers.” Dakota, Minn. &
Eastern R.R. Corp. v. South Dakota, 362 F.3d 512, 516 (8th Cir. 2004) (internal quotations and
citation omitted). Under Ex parte Young and its progeny, “a private party may seek prospective
injunctive relief in federal court against a state official, even if the state is otherwise protected by
Eleventh Amendment immunity.” Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001).
A court “need only conduct a ‘straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (quoting
Coeur d'Alene, 521 U.S. at 296); see also Mo. Child Care Ass'n v. Cross, 294 F.3d 1034, 1042
(8th Cir. 2002). For Ex Parte Young to apply, however, the named state official “must have some
connection with the enforcement” of the challenged statute. Ex parte Young, 209 U.S. at 157.
Defendant argues that “Director Lombardi has no power to launch any type of enforcement
action under Mo Rev. Stat. § 546.740 against McDaniel[,] [s]o this case falls outside of Ex Parte
Young, and is barred by the Eleventh Amendment.” [Doc. 9, p. 2].
Defendant relies primarily on Balogh v. Lombardi, 816 F.3d 536 (8thCr.2016), a recent
Eighth Circuit opinion, which discussed whether Director Lombardi was subject to suit under Ex
parte Young in the context of a different provision of the Missouri death penalty statute. In
Balough, the Eighth Circuit analyzed whether Director Lombardi had the power to enforce the
provision of the Missouri statute prohibiting disclosure of the identities of individuals
participating in executions. See Mo. Rev. Stat. § 546.720.3. The Balogh plaintiffs had allegedly
violated that statute and then challenged its unconstitutionality as a credible threat of
enforcement that chilled speech. The Eighth Circuit found that any connection between Director
Lombardi and enforcement of the statute was too remote to permit the suit to go forward because
Director Lombardi “lack[ed] the authority to enforce the challenged statute.” Balogh, 816 F.3d at
544. It was the members of the execution team, etc., not Director Lombardi, who were
authorized to sue under the statute in question.
The Court finds Balogh distinguishable. Director Lombardi’s relationship with a potential
prosecution by a third party for a violation of a privacy provision was clearly attenuated in
Conversely, the authority to select execution witnesses rests solely with Director
Lombardi. It is also logical that he has authority to implement policies to identify objective
criteria for the selection process since he is the director of the Department of Corrections.
Finally, Defendant raises the novel argument that Ex Parte Younger only applies if the
government official is enforcing a statute rather than implementing a statute. This argument has
no basis in law and would be contrary to the reasoning of Ex Parte Younger. Defendant’s
reading of “enforcement authority” would provide no remedy for continuing violations of federal
law by a state official when they were using their authority to implement polices rather than
“enforcing” a specific statute. The Court rejects this argument by Defendant.
In his reply brief, Defendant raises a new argument: that the selection of witnesses for an
execution is a “core state function” and implicates a “special sovereignty interest.” [Doc. 14, pp.
5–7]. The Court rarely relies on new arguments in reply briefs because the respondent did not
have an opportunity to respond. See United States v. Head, 340 F.3d 628, 630 n.4 (8th Cir. 2013)
(“When courts have exercised their authority to decline consideration of issues raised in reply
briefs, they have typically done so out of concern that the opposing party would be prejudiced by
an advocate arguing an issue without an opportunity for the opponent to respond.”). Because
Plaintiff did not have an opportunity to respond to this issue, and because Defendant cited no
authority that selecting execution witnesses is a “core state interest,” and why that would justify
a violation of federal law, the Court declines to analyze this argument at this time.
C. 12(b)(6) Failure to State a Claim
Defendant also argues that Plaintiff has failed to plead sufficient facts to state a claim. On
a motion to dismiss, the Court construes the complaint liberally, in the light most favorable to the
plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). A complaint must present
“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. Pro. 8(a)(2). The purpose of a short and plain statement is to provide defendants with “fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 545 (2007) (citation omitted). To satisfy this standard, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 570). On a motion to
dismiss, a court’s evaluation of a plaintiff’s complaint is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S. Ct. at 1950.
Plaintiff alleges both facial and as applied challenges to Defendant’s selection of
execution witnesses. Specifically, Plaintiff’s Complaint alleges that the lack of criteria for
selecting witnesses, “provide[s] the opportunity for discrimination based on viewpoint or
retaliation for First Amendment protected activity” [Doc. 1, p. 5]. Defendant contends that this is
insufficient: “[I]t is not enough to allege that a defendant might break the law.” [Doc. 14, p. 9].
The Court disagrees. On his facial challenge, Plaintiff has sufficiently plead that Director
Lombardi’s policies and customs, or lack thereof, relate to the selection of execution witnesses
and “permit unbridled discretion to deny an adult citizen the benefit of serving as an execution
witness based on the individual’s viewpoint, expressive or press activity, or membership in a
church or other organization.” [Doc. 1, p. 6]. As alleged by Plaintiff, Director Lombardi has sole
decision-making authority when selecting execution witnesses and there is no official policy for
how that decision is made. This authority allegedly risks impermissible viewpoint
discrimination. See Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988) (“Standards
provide the guideposts that check the licensor and allow courts quickly and easily to determine
whether the licensor is discriminating against disfavored speech. Without these guideposts, post
hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far
too easy, making it difficult for courts to determine in any particular case whether the licensor is
permitting favorable, and suppressing unfavorable, expression.”). To dismiss pleadings that do
not have direct evidence of viewpoint discrimination would necessarily deny challenges like
those upheld in Lakewood.
As to Plaintiff’s applied challenge, Defendant argues that Plaintiff’s Complaint does not
plead sufficient facts to state a cause of action. Plaintiff, however, has submitted the application
used to select witnesses for an execution, and it “requires each prospective witness to state,
among other things, whether they are or ever have been a member of a group or organization
opposed to, or in support of, the death penalty.” [Doc. 1, p. 4]. Further, in reviewing the
application records for a one-year period, “every applicant who, like Plaintiff, expressed a desire
to ensure that execution [was] carried out properly and constitutionally was denied the
opportunity to witness an execution.” Id. at 5. These allegations, viewed in the light most
favorable to Plaintiff, are sufficient to state a claim that Defendant discriminated against Plaintiff
based on his viewpoint when he was denied an opportunity to serve as a witness to an execution.
This is particularly so given Plaintiff’s publicly stated opinions and his journalistic articles.
Of course, Defendant may have denied Plaintiff’s application to serve as an execution
witness for entirely permissible reasons, and Defendant’s policies, or lack thereof, may not run a
substantial enough risk of viewpoint discrimination, but these questions cannot properly be
resolved at this stage of the litigation. Plaintiff has pled that Defendant’s policies and customs,
or lack thereof, run the risk of impermissible viewpoint discrimination, has pled sufficient facts
to draw a reasonable inference that Defendant discriminated against Plaintiff based on his
viewpoint, and has provided Defendant fair notice of his claims.
For the foregoing reasons, Defendant’s Motion to Dismiss, [Doc. 9], is denied.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: December 30, 2016
Jefferson City, Missouri
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