IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

SHONDEL CHURCH; RANDALL LEE DALTON; DORIAN SAMUELS; VIOLA BOWMAN; and BRIAN RICHMAN, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
STATE OF MISSOURI; ERIC R. GREITENS, in his official capacity as Governor of Missouri; MICHAEL BARRETT, in his official capacity as Director of the Missouri State Public Defender Office; H. RILEY BOCK, in his official capacity as Chair of the Missouri State Public Defender Commission; CHARLES R. JACKSON, in his official capacity as Vice Chair of the Missouri State Public Defender Commission; CRAIG CHVAL, in his official capacity as Secretary of the Missouri State Public Defender Commission; and A. CRISTA HOGAN, in her official capacity as a Member of the Missouri State Public Defender Commission,
Defendants.

Case No. ____________________ Division: _____________________

CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiffs Shondel Church, Randall Lee Dalton, Dorian Samuels, Viola Bowman, and
Brian Richman, on behalf of themselves and all others similarly situated, by and through the undersigned counsel, upon knowledge with respect to their own acts and on information and belief as to other matters, hereby allege for this class action petition for injunctive and declaratory relief:

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INTRODUCTION 1. More than 50 years ago, the Supreme Court, in Gideon v. Wainwright, 372 U.S. 335 (1963), held that the United States Constitution requires every State to provide counsel for criminal defendants who are unable to afford an attorney. As the Supreme Court has since explained, “Lawyers in criminal cases are necessities, not luxuries. . . . Without counsel, the right to a trial itself would be of little avail.” United States v. Cronic, 466 U.S. 648, 653 (1984) (internal quotation marks omitted). 2. But the constitutional right to counsel is not merely the right to a warm body licensed to practice law at one’s side once trial begins. The right attaches well before trial, because “certain pretrial events may so prejudice the outcome of the defendant’s prosecution that, as a practical matter, the defendant must be represented at those events in order to enjoy genuinely effective assistance at trial.” Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 217 (2008). And the right encompasses more than “counsel in name only,” see State ex rel. Missouri Pub. Def. Comm’n v. Waters, 370 S.W.3d 592, 597 (Mo. 2012), because unless a lawyer provides meaningful assistance, “there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Cronic, 466 U.S. at 659. 3. Despite these well-established and long-standing principles, the State of Missouri has failed to meet its constitutional obligation to provide indigent defendants with meaningful representation. For more than two decades, Defendants have failed to provide the resources required to adequately represent poor people accused of crimes in Missouri, leading to the actual and constructive denial of counsel for, and ineffective representation of, indigent defendants across the State.
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4. The State’s indigent defense budget is shockingly inadequate. At an average of only $356 per case, Missouri ranks 49th out of 50 states in per capita indigent defense funding.
5. Without sufficient funding, overstretched and under-resourced Missouri State Public Defender (MSPD) attorneys are forced to handle far too many cases and to devote far too few hours to each case. Public defenders average just 8.7 hours on the most serious non-homicide felonies, amounting to less than 20 percent of the minimum time recommended by the American Bar Association (ABA). Overall, they are forced to devote fewer than the minimum hours recommended by the ABA in more than 97 percent of their cases.
6. The consequences for indigent criminal defendants such as Plaintiffs—who must wait, often in jail, while their public defenders scramble to find even minimal time to devote to their cases—are devastating. An MSPD attorney told Plaintiff Shondel Church that his case was winnable but that Mr. Church would have to sit in jail for six months before the attorney would have time to prepare the case. Even though Mr. Church decided to take an unjustified plea, he had to wait in jail for nearly three months before he was able to enter the plea—months of incarceration for which he will now be required to pay over $2,600. The MSPD attorney representing Plaintiff Randall Lee Dalton did not meet with him or return his sister’s desperate phone calls for weeks, and so did not know the extent of his client’s mental impairment or need of medication. Plaintiff Dorian Samuels’ lawyer seemed entirely unprepared to advocate for a bond reduction or to cross-examine a crucial prosecution witness, at least in part because he did not have time for a substantive conversation with Mr. Samuels in advance of the hearing. Plaintiff Viola Bowman has been incarcerated for more than two years as her attorney seeks continuance after continuance to buy time to adequately investigate her case while he simultaneously manages his district’s entire office. Hearings in Plaintiff Brian Richman’s case
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have repeatedly occurred in front of the judge but without Mr. Richman present; Mr. Richman’s attorney waived Mr. Richman’s constitutional right to appear on his own behalf at those hearings without even consulting with Mr. Richman.
7. As the experiences of Plaintiffs indicate, despite the best efforts of MSPD’s dedicated attorneys and support staff, MSPD’s crushing workloads result in indigent defendants throughout this state being actually or constructively denied their right to counsel at critical stages of their cases.
8. Indigent defendants are frequently denied any representation whatsoever at arraignments and other initial hearings, leaving them to fend for themselves when bond determinations and other critical decisions are made.
9. Even when a public defender is present, she is often ill-equipped to advocate effectively for her client. Public defenders have little time to meet and consult with their clients, and this lack of consultation precludes indigent defendants from participating meaningfully in their own defense. It also impedes public defenders from investigating their clients’ family and community ties in order advocate for pretrial release and to develop alternatives to detention. Plaintiff Samuels, for instance, did not even meet with his public defender before his re-arraignment— which occurred more than two months after Mr. Samuels’ arrest—meaning that the public defender did not have any information with which to argue for a bond reduction. Plaintiff Dalton’s sister ultimately interceded in an effort to obtain a furlough on his behalf because his public defender did not have time to investigate Mr. Dalton’s history of mental health issues, let alone seek out alternative placements.
10. Public defenders’ unmanageable workloads force them to triage, performing too little investigation too late to effectively identify exculpatory evidence, reviewing discovery only as
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time allows, rarely taking advantage of defendants’ statutory right to depositions, and seeking continuance after continuance of their clients’ trial dates. For example, Plaintiff Bowman’s trial date has been continued for over two years as her attorney struggles to find the time to adequately investigate her case.
11. Because of these deficiencies, indigent criminal defendants who might otherwise be released on bond remain in pretrial detention unnecessarily. This leads many defendants to plead guilty just to get out of jail, irrespective of the merits of the State’s case against them. For example, though Plaintiff Church was told his was a winnable case, he felt compelled to plead guilty just to avoid remaining in jail for months awaiting trial.
12. When they exercise their right to a trial, defendants frequently cannot present their defenses effectively, because MSPD attorneys have not had the time to investigate potential defenses, interview key witnesses, review discovery materials, or even communicate consistently with their clients. After trial, indigent defendants are more likely to receive harsher sentences than the facts of their case warrant, given their lawyer’s inability to explore and advocate for reduced sentences or alternatives to imprisonment.
13. Taken separately, any one of these consequences would indicate that public defenders are not equipped with the tools necessary to fulfill their role as zealous advocates. Together, these deficiencies ensure that the meaningful adversarial testing on which the just operation of our legal system depends—and which the United States and Missouri Constitutions demand—is often absent in Missouri criminal courts.
14. Defendants and their predecessors have been on notice for decades that, starved of necessary resources, training, and supervision, MSPD cannot provide constitutionally adequate legal representation to Missouri’s indigent criminal defendants. But, despite every opportunity
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to do so, Defendants have failed to rectify the grave problems in Missouri’s public defender system.
15. The same problems that plague the indigent criminal defense system also infect Missouri’s juvenile court system. Although the Supreme Court has declared that a juvenile “requires the guiding hand of counsel at every step in the proceedings against him,” In re Gault, 387 U.S. 1, 36 (1967), Missouri’s indigent juveniles are often left without the meaningful guidance that the Constitution demands, again due to lack of resources for MSPD and resulting high workloads. Indeed, according to a recent report from the United States Department of Justice, a staggering 60 percent of juveniles accused of crimes in Missouri proceed without appointed counsel. When MSPD attorneys do represent juveniles, they spend an average of just 4.6 hours on each case, less than one quarter of the minimum time recommended by the ABA. As a result, indigent juvenile respondents often have no effective advocate standing between them and detention, or at the very least, a record that could follow them into adulthood.
16. The lack of funding for MSPD has created an environment in which no public defender in this State can provide constitutionally adequate representation for all of their clients, including Plaintiffs.
17. The State of Missouri faces an urgent constitutional crisis. As demonstrated by the cases of each of the named Plaintiffs, that crisis will only worsen until MSPD attorneys are equipped with the tools and resources they need to provide indigent defendants with the level of representation to which they are constitutionally entitled.
18. Plaintiffs, on behalf of themselves and a class of similarly situated persons, seek to vindicate their constitutional and statutory rights to be guided by competent counsel at all critical stages of their criminal and juvenile delinquency proceedings, as required by the Fifth, Sixth, and
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Fourteenth Amendments, the United States Supreme Court’s decisions in Gideon, Cronic, Gault, and their progeny, and all applicable state constitutional and statutory provisions. Plaintiffs ask this Court to issue a judgment declaring Missouri’s public defense system unconstitutional, and to order Defendants to take whatever steps are necessary to bring the system into compliance with federal and state law.
JURISDICTION AND VENUE 19. This Court maintains original subject-matter jurisdiction over this action under Sections 526.030 and 527.010 of the Missouri Revised Statutes and Missouri Rule of Civil Procedure 87.01. 20. Venue is proper in this Court because Governor Eric R. Greitens maintains an office in Cole County, Missouri.
PARTIES A. Plaintiffs 21. Plaintiff SHONDEL CHURCH is a resident of Kansas City, Missouri. Mr. Church was arrested on or about July 19, 2016, and charged with felony theft. Mr. Church was deemed indigent following his arrest and was therefore entitled to representation by MSPD. Mr. Church pled guilty to misdemeanor theft on November 21, 2016, after approximately four months’ pretrial incarceration. He received two years’ probation and a suspended six-month jail sentence. 22. Plaintiff RANDALL LEE DALTON was arrested on or about January 30, 2017, and charged with felony possession of a controlled substance. Mr. Dalton was deemed indigent following his arrest, and was therefore entitled to representation by MSPD. Mr. Dalton was briefly released on a furlough from pretrial detention, only to be returned to jail after his
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alternative placement fell through. He currently remains in pretrial detention awaiting resolution of his criminal case. During this time, he lost his residence in Laurie, Missouri.
23. Plaintiff DORIAN SAMUELS is a resident of Joplin, Missouri. Mr. Samuels was arrested on or about May 30, 2016, and charged with second-degree assault. Mr. Samuels was deemed indigent following his arrest, and was therefore entitled to representation by MSPD. Mr. Samuels remains in pretrial detention on $20,000 cash bond.
24. Plaintiff VIOLA BOWMAN lived in Warsaw, Missouri, before her arrest. Ms. Bowman was arrested on or about January 6, 2015, and charged with first-degree murder and armed criminal action. Ms. Bowman was deemed indigent following her arrest and was therefore entitled to representation by MSPD. Ms. Bowman remains in pretrial detention on $1,000,000 cash bond.
25. Plaintiff BRIAN RICHMAN is a resident of Ozark, Missouri. Mr. Richman was arrested on or about June 26, 2016, and charged with a series of felony drug offenses. Mr. Richman was deemed indigent following his arrest, and was therefore entitled to representation by MSPD. Mr. Richman remains in pretrial detention on a bond of over $100,000.
B. Defendants 26. Defendant STATE OF MISSOURI has violated and continues to violate the Missouri and United States Constitutions, which require it to ensure that adequate representation is provided to indigent defendants across the State. 27. Defendant ERIC R. GREITENS is sued in his official capacity as Governor of the State of Missouri. As chief executive of the State, Governor Greitens bears ultimate responsibility for the provision of constitutionally mandated services, including indigent defense, to the people of Missouri. The Governor of Missouri appoints the members of the Missouri State Public
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Defender Commission, with the advice and consent of the Senate. The Governor has claimed the authority to withhold money budgeted to the Missouri State Public Defender’s Office and has exercised that claimed authority in recent years, including fiscal year 2017.
28. Defendant MICHAEL BARRETT is sued in his official capacity as Director of the Missouri State Public Defender Office. In his capacity as Director of MSPD, Defendant Barrett maintains responsibility for ensuring the adequate provision of indigent defense services across the State of Missouri.
29. Defendant H. RILEY BOCK is sued in his official capacity as Chair of the Missouri State Public Defender Commission. The Commission governs the Missouri State Public Defender system by, among other things, promulgating rules needed for the administration of the system, monitoring the performance of the Public Defender Office, and receiving complaints from MSPD clients. The Commission also has the authority to appoint and remove MSPD’s Director and Deputy Director. Defendant Bock was appointed to the Commission in January 2014 and is currently Chair of the Commission.
30. Defendant CHARLES R. JACKSON is sued in his official capacity as Vice Chair of the Missouri State Public Defender Commission. Defendant Jackson was appointed to the Commission in July 2014 and is currently Vice Chair of the Commission.
31. Defendant CRAIG CHVAL is sued in his official capacity as Secretary of the Missouri State Public Defender Commission. Defendant Chval was appointed to the Commission in July 2014.
32. Defendant A. CRISTA HOGAN is sued in her official capacity as a Member of the Missouri State Public Defender Commission. Defendant Hogan was appointed to the Commission in July 2014.
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GENERAL FACTUAL ALLEGATIONS Indigent Defense in Missouri
33. The State of Missouri relies almost exclusively on local MSPD offices to provide indigent defense services in all 114 counties and St. Louis City.
34. MSPD comprises three distinct parts: the Trial Division, subdivided into 33 district offices across the State; the Appellate/Post-Conviction Division, subdivided into six offices; and the Capital Division, subdivided into three offices. State of Missouri Public Defender Commission Fiscal Year 2016 Annual Report 5, attached as Ex. 1.
35. MSPD employs approximately 376 attorneys—including approximately 313 in the Trial Division—and approximately 200 administrative staff, support staff, paralegals, and investigators to represent indigent defendants in more than 100,000 cases each year, counting both newly opened cases and cases carried over from previous years. Ex. 1 at 5.
36. Since the establishment of MSPD in its current form in 1989, there have been at least 10 independent evaluations of Missouri’s public defense system that put state officials on notice that a constitutional crisis was looming.1 Chronic Underfunding of MSPD
37. MSPD is funded almost exclusively from Missouri’s general revenue. The level of funding provided by the State, however—less than one half of one percent of the State’s general
1 These include assessments conducted in 1993 (The Spangenberg Group); 2005 (The Spangenberg Group); 2006 (Missouri Senate Interim Committee); 2009 (The Spangenberg Group and the Center for Law, Justice, and Society at George Mason University); 2010 (U.S. Department of Justice – Bureau of Justice Statistics); 2010 (American Bar Association); 2013 (National Juvenile Defender Center); 2014 (American Bar Association and RubinBrown); 2015 (U.S. Department of Justice); and 2016 (Sixth Amendment Center).
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revenue—has long been insufficient to allow MSPD to satisfy the State’s constitutional obligation to provide effective assistance of counsel to every indigent criminal defendant.
38. In fiscal year 2016, for example, the MSPD Trial Division alone handled more than 75,000 cases—which, given the State’s abysmal funding for indigent defense, equated to an average of only $356 per case. Ex. 1 at 14, 23.
39. In August 2015, Defendant Michael Barrett wrote to then-Governor Jay Nixon, pleading for additional funds. Barrett noted that, “[f]or years, the Missouri State Public Defender (MSPD) has warned that the rights of poor Missourians are being violated throughout the state because MSPD’s resources are too few and the caseloads too high,” but nothing had been done to rectify the situation. Letter from M. Barrett to Hon. Nixon, at 1 (Aug. 7, 2015), attached as Ex. 8. He pointed to recent reports by the National Juvenile Defender Center (NJDC) and the ABA making clear that existing funding was “woefully inadequate to guarantee the constitutional rights of indigent[ ]” defendants in Missouri. Id. at 2. As such, Barrett requested a $10 million supplemental budget to provide some of the resources that MSPD urgently needed to “meet[] its obligations to its citizens under the U.S. and Missouri Constitutions.” Id. at 3. His request was denied.
40. In 2016, a study conducted by the Sixth Amendment Center determined that Missouri’s per capita spending on indigent defense is approximately one-third of the average of the 35 states the Center surveyed. According to the study, in fiscal year 2015, Missouri spent just $6.20 per resident for indigent defense services, compared to an average of $18.41 per capita among the other States in the study.
41. It is not surprising, then, that Missouri currently ranks 49th among the 50 states in funding for indigent defense and that “a stark discrepancy” exists between the work that is
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necessary to provide the “proper defense of constitutional liberty” and what MSPD is currently able to do with the “limited resources on hand.” Ex. 1 at 1, 17.
42. Moreover, even when the legislature has taken steps to increase funding, these attempts have been thwarted by the Governor. In 2015, for example, the legislature approved an additional $3.4 million in funding to MSPD. Id. at 7. Then-Governor Nixon vetoed the funding. Id. The legislature overrode that veto. Id. Governor Nixon nevertheless withheld the funds from MSPD. Id.
43. Likewise, when the legislature approved $4.5 million in additional funding for caseload relief in fiscal year 2017, Governor Nixon directed that all but $1 million of those funds be withheld from MSPD. Id.
44. In January 2017, Missouri’s new governor, Defendant Greitens, pledged to restore an additional $2.5 million in the next budget, for a total of $3.5 million, still short of the prior year’s allocation of an additional $4.5 million, and far shorter still of the amount necessary to bring Missouri up to the constitutionally required minimum standard for indigent defense.
45. Upon information and belief, the vast majority of the proposed additional funding, if granted, will go toward hiring private attorneys to represent defendants in cases where MSPD attorneys are conflicted out (for example, in cases involving indigent codefendants). Such private attorneys are generally paid a low, flat fee. This means that these attorneys have little incentive to devote sufficient resources to the case, making it unlikely that they will provide constitutionally adequate representation for their indigent clients. For the vast majority of indigent defendants, who have no codefendants, that funding will barely move the needle in bringing Missouri into compliance with its constitutional obligation to provide counsel.
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46. Upon information and belief, it would take an additional $20 million or more per year for MSPD to meet the constitutional floor of providing minimally adequate representation to indigent defendants. Excessive Workloads
47. The chronic underfunding of and lack of support for MSPD has led to a staffing crisis that means that MSPD attorneys typically operate at more than double the maximum workload capacity that would allow for the consistent provision of constitutionally adequate representation.
48. Plaintiffs distinguish between caseloads, which refer only to the raw number of cases on a public defender’s docket, and workloads, which provide a broader and more accurate view of a public defender’s competing responsibilities. As the U.S. Department of Justice noted in 2013, “caseload limits are no replacement for a careful analysis of a public defender’s workload, a concept that takes into account all of the factors affecting a public defender’s ability to adequately represent clients, such as the complexity of cases on a defender’s docket, the defender’s skill and experience, the support services available to the defender, and the defender’s other duties.” Statement of Interest of the United States at 9, Wilbur v. City of Mount Vernon, No. C11-01100, Dkt. 322 (W.D. Wash. Aug. 14, 2013) (emphasis added), attached as Ex. 2.
49. These extraordinarily high workloads have characterized indigent defense in Missouri for decades. In 1993, the Missouri State Public Defender Commission sought the assistance of The Spangenberg Group (TSG) in studying the internal operations of the Missouri public defense system, including issues related to budgeting, staffing, and allocation of resources. TSG’s report was damning. It concluded that MSPD “lack[ed] the necessary resources to provide competent representation,” and that “[t]he legal staff needs to be increased as soon as possible.” A Report
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on the Operation of the Missouri State Public Defender, The Spangenberg Group, 6 (June 1993), attached as Ex. 3.
50. Despite the report’s warning of a “near-crisis situation in the [public defender] system,” id. at 8, the State failed to address the systemic problems plaguing MSPD and thus failed to mitigate the serious harm being inflicted upon indigent defendants in Missouri.
51. More than a decade later, the Missouri Bar Association formed a Public Defender Task Force to work in conjunction with the Missouri State Public Defender Commission in an effort to address those deficiencies. In 2005, the task force commissioned TSG to conduct another study into the state of MSPD.
52. Again, TSG’s findings were bleak. TSG’s report warned that Missouri’s public defender system was on the verge of collapse and that, despite the best efforts of MSPD’s attorneys, many public defenders were routinely failing to comply with MSPD’s Public Defender Guidelines for Representation and the Missouri Rules of Professional Conduct. Assessment of the Missouri State Public Defender System, The Spangenberg Group, 3 (Oct. 26, 2005), attached as Ex. 4.
53. In January 2007, an interim committee of the Missouri Senate released its report on MSPD. The committee found that the caseloads of public defenders were “too large,” and recommended that “caseloads . . . be reduced, support staff be increased, the number of public defenders be increased . . . [and] the base salary of public defenders be[ ] increased.” Corrected Report of the Senate Interim Committee on the Missouri State Public Defender System (Jan. 2007), attached as Ex. 5.
54. In 2009, TSG was again retained by the Missouri Bar Association to assess the State’s public defender system. In its 2009 report, TSG concluded that public defender workloads had
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only worsened since its 2005 report and, as a result of those workloads, public defenders were failing to (1) conduct prompt interviews of their clients following arrest, (2) spend sufficient time interviewing and counseling their clients, (3) advocate effectively for pretrial release, (4) conduct thorough investigations of their cases, (5) pursue formal and informal discovery, (6) file appropriate and essential pleadings and motions, (7) conduct necessary legal research, and (8) prepare adequately for pretrial hearings, trial, and sentencing. Assessment of the Missouri State Public Defender System, The Spangenberg Group (Oct. 2009), attached as Ex. 6.
55. In other words, MSPD lawyers—even the best among them—did not have time to perform even the most basic representational duties for their clients. Despite this clear indication that the State was still falling short of its constitutional obligations, Missouri again failed to take the necessary action to remedy the situation.
56. In June 2014, the ABA, in collaboration with the prominent accounting firm RubinBrown LLP, released the most comprehensive study to date of Missouri’s public defender system. The study included an in-depth assessment of public defender workloads for both adult and juvenile matters. See The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards (June 2014), attached as Ex. 7.
57. ABA and RubinBrown researchers calculated the minimum number of hours (excluding court time, travel, and administrative tasks) that an attorney would need to devote to a range of different types of cases in order to provide constitutionally adequate representation. The study determined that a constitutionally adequate attorney would need to spend a minimum of 106.6 hours on a non-capital murder/homicide case; at least 47.6 hours on an A/B felony; at least 25.0 hours on a C/D felony; at least 63.8 hours on a felony sex offense; at least 11.7 hours on a
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misdemeanor; at least 9.8 hours on a probation violation; and at least 19.5 hours on a juvenile case. Ex. 7 at 6.
58. But because MSPD attorneys are forced to take on workloads well above what any attorney could reasonably handle, those attorneys are unable to spend anywhere near the requisite number of hours on each case. In 2015, for example, unreasonably high workloads meant that MSPD attorneys were able to spend, on average, only 84.5 hours on each non-capital murder/homicide case; 8.7 hours on each A/B felony; 4.4 hours on each C/D felony; 25.6 hours on each felony sex offense; 2.3 hours on each misdemeanor; 1.4 hours on each probation violation; and 4.6 hours on each juvenile case. Ex. 7 at 15.
59. Thus, in 2015, under the ABA’s empirical analysis, “attorneys in the St. Louis County office [were] at 265% workload capacity,” and throughout the state, MSPD attorneys were similarly overworked: “239% capacity for the Springfield office, 254% for Jefferson City, and 254% for Farmington, to name just a few.” Ex. 8 at 1.
60. As demonstrated by the average case-related hours recorded by MSPD attorneys in 2015, MSPD attorneys are forced to triage their cases, paying especially short shrift to cases in which defendants face what their attorneys deem to be relatively less serious charges. Thus, while MSPD attorneys were able to spend the minimum of 106.6 hours in just one-fifth of the non-capital murder/homicide cases to which they were assigned in 2015, the numbers were far worse for non-homicide felonies. That same year, MSPD Trial Division attorneys were able to devote the minimum required hours to only 2.4% of all A/B felony cases (or 97 out of 4,127 total A/B felony cases) and 1.4% of C/D felony cases (or 311 out of 21,491 total C/D felony cases). Letter from J. Shipma to J. Williamson, at 2-4 (July 25, 2016), attached as Ex. 10.
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61. With so little time to spend on each case, it is virtually impossible for MSPD attorneys to provide even basic elements of constitutionally effective assistance. And with their public defenders overextended by extremely heavy workloads, indigent defendants like Plaintiffs often appear before the court unrepresented during initial hearings, including those in which bond is set; cannot communicate effectively or confidentially with their attorneys; are forced to make important decisions about their cases—including whether to enter into a plea agreement— without the benefit of advice from an attorney who is fully apprised of the relevant facts and the strength of the State’s case; do not receive the benefit of pretrial motions, including motions to suppress illegally obtained evidence; and go to trial without their attorney having thoroughly reviewed the available discovery, taken necessary depositions, or obtained all relevant evidence, including any exculpatory evidence.
62. In February 2017, Defendant Michael Barrett testified before the state legislature that MSPD would need 333 more lawyers to provide even minimally adequate representation to indigent defendants.
63. The State has ignored the recommendations put forward by study after study over the past decade. Many public defenders have felt compelled to resign rather than continue to work in these untenable conditions. This has only further exacerbated an already desperate situation. And while MSPD would still be grossly understaffed if it were able to fill all of its recent attrition-related vacancies, lack of adequate funding has prevented it from doing even that.
64. In 2012, the Missouri Supreme Court, in State ex rel. Missouri Public Defender Commission v. Waters, 370 S.W.3d 592 (Mo. 2012), upheld the validity of a rule promulgated by the Missouri Public Defender Commission that “permit[ted] a district defender office to decline
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additional appointments when it ha[d] been certified as being on limited availability after exceeding its caseload capacity for at least three consecutive calendar months.” Id. at 597.
65. Upon information and belief, in the immediate aftermath of Waters, public defenders who attempted to turn away cases faced tremendous resistance from prosecutors, judges, and legislators. In some circuits, MSPD agreed not to assign attorneys to cases where prosecutors promised that defendants would face no jail time, only to find that these no-jail-time agreements were routinely ignored. In other circuits, cases that were turned away were assigned to nonMSPD attorneys with no criminal defense experience who were not compensated for their time. For example, in Boone County, approximately 100 cases were assigned to attorneys who worked for state agencies or had ties to other state officials, putting additional political pressure on MSPD to stop turning away cases. None of those attorneys specialized in criminal law. These attorneys lacked the resources, experience, or wherewithal to represent clients zealously.
66. On information and belief, MSPD attorneys in nearly all circuits faced disapproval for even attempting to turn away cases. The then-head of MSPD was told that if local offices continued to turn away cases, the legislature would pass a bill to privatize the entire system. And within months of the Waters decision, the legislature passed Missouri Revised Statutes § 600.062, which prevents the director of MSPD or the Missouri State Public Defender Commission from “limit[ing] the availability of a district office or any division director, district defender, deputy district defender, or assistant public defender to accept cases based on a determination that the office has exceeded a caseload standard.” Under section 600.062, MSPD “may not refuse to provide representation” unless it receives “prior approval from a court of competent jurisdiction.”
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67. Upon information and belief, since the legislature’s enactment of section 600.062, no MSPD office has refused cases in any consistent or systematic way. MSPD attorneys are understandably worried about what will happen to their clients if they are turned away, as Defendants have put in place no plan for providing meaningful representation to indigent defendants turned away by MSPD. Moreover, some MSPD offices fear reprisals if they turn away cases, including further budget cuts. Lack of Representation at Critical Stages
68. In 2008, the United States Supreme Court, in Rothgery v. Gillespie County, Texas, reaffirmed that the right to counsel attaches when “formal judicial proceedings have begun.” 554 U.S. 191, 211. For a person who is arrested, the beginning of formal judicial proceedings is at the “criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction.” Id. at 213. “Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the post-attachment proceedings.” Id. at 212 (footnote omitted).
69. In Missouri, however, attorneys are routinely unavailable to represent each eligible indigent defendant at every critical stage of the criminal process—including at their arraignment, where bond is determined—resulting in the actual denial of counsel to indigent defendants across the State.
70. Public defenders routinely do not meet their clients until several weeks after the client’s arrest and arraignment. As a result, bond determinations, which normally occur at the defendant’s initial appearance before the court, are almost always made without the benefit of advocacy from counsel. Without that advocacy, bond may be set based on inappropriate factors, or the court may make its bond determination without the benefit of facts critical to such a
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determination. In many cases, overworked public defenders waive the preliminary hearing altogether, sometimes without discussing the decision with their client.
71. Unrepresented indigent defendants are therefore often forced to remain in jail simply because they are unable to advocate effectively on their own for release on their own recognizance or a reasonable reduction in their bond amount.
72. Moreover, the United States Supreme Court has ruled that an attorney must be present at any post-arraignment lineup because such a “confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, 388 U.S. 218, 228 (1967). But defendants in Missouri are routinely placed in lineups after arraignment without the benefit of counsel, even though the prejudice that results from an improper lineup cannot be cured later in the criminal process. See id. at 236-37. Unnecessary Delays and Prolonged Pretrial Detention
73. Excessively high workloads also result in unnecessary and needlessly prolonged detention prior to trial.
74. As discussed supra, because indigent defendants are often unrepresented at critical bond determinations, they may remain in jail for extended periods of time, unable to effectively advocate for themselves at their bond determinations.
75. In addition, because MSPD attorneys’ workloads require them to “triage” cases, they are often forced to seek multiple or extended continuances in cases they deem less urgent, or when they need additional time to prepare adequately for more serious cases. Because of these delays, irrespective of the merits of the case against them, defendants are often forced to choose
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF between either consenting to the continuances, thereby waiving their right to a speedy trial and remaining in jail for an extended period of time, or taking their chances at trial with an attorney who has had little or no time to prepare. Guilty Pleas Are Not Fully Knowing or Voluntary
76. The vast majority of defendants in Missouri plead guilty. Many of these are MSPD clients, but MSPD attorneys are unable to ensure that those who plead guilty do so knowingly and voluntarily.
77. Excessive pretrial detention—often due to public defenders’ inability to represent defendants at bond hearings or their need for repeat continuances—put virtually unbearable pressure on many defendants to plead guilty merely to get out of jail and avoid losing a job or their housing, or to resume meaningful contact with their children and families.
78. Many other defendants, like Plaintiff Church, plead guilty in spite of a valid and potentially effective defense because a public defender is unable to adequately evaluate or investigate that defense, or simply because it will take months or even years for their public defender to be ready for trial.
79. Many MSPD clients who plead guilty do so without a full understanding of the strengths and weaknesses of their case, and absent counseling regarding the serious consequences that may attend even a misdemeanor plea. In particular, public defenders are unable to advise their clients of the immigration consequences of their plea because MSPD does not have the resources to provide any training in the intersection of criminal law and immigration law.
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Lack of Investigation 80. The ability to thoroughly prepare for a case is crucial to MSPD attorneys’ ability to
effectively advocate on their clients’ behalf; yet MSPD attorneys do not have the time or resources to investigate adequately the charges against their clients.
81. Because of the lack of sufficient resources, most MSPD attorneys do not conduct appropriate discovery and are rarely able to analyze the discovery they do receive early enough in the proceedings to make important investigative decisions, including which key witnesses to depose and whether or not an expert witness is necessary for the client’s defense.
82. Defendants’ inadequate funding of MSPD means that investigators are not staffed on every case—or even every serious felony—to which an office is assigned. Rather, individual defenders, regardless of their level of experience, are asked to use their discretion in selecting which cases will be formally investigated and which will not.
83. Even when an attorney determines that investigation is necessary, investigators often do not have time to review discovery or gather other background information on the cases that they do investigate. And given their overwhelming workloads, the attorneys themselves have little time to conduct any in-depth investigation on their own.
84. MSPD attorneys also frequently do not have the time to identify experts or conduct expert consultations. Even when MSPD attorneys identify the need for an expert, they are often unable to secure the resources necessary to retain an appropriate expert. MSPD’s grossly inadequate budget is supposed to cover not only attorney and support staff salaries but also the cost of experts, investigations, and any other costs associated with a case. Ex. 1 at 9. Instead, it cannot even cover salaries for a sufficient number of attorneys, let alone adequately cover the other costs associated with a case.
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85. Time constraints also mean attorneys are often unable to meet with witnesses or take other important investigatory steps to prepare adequately for trial or to negotiate a more favorable plea bargain. With no option but to triage and cut corners, MSPD attorneys are forced to make strategic decisions without a complete understanding of the nature and strength of the case against their clients.
86. For example, many defenders take depositions in just a small fraction of their cases, thus leaving on the table the valuable information that is likely to be gleaned from such depositions—information that, at the very least, would help counsel and their clients better evaluate the strengths and weaknesses of the State’s case, as well as the reasonableness of any plea offer from the government.
87. MSPD attorneys are rarely able to file suppression motions because they lack the investigative resources to identify unconstitutional police conduct, the time to review pertinent discovery, and the resources and experience to conduct appropriate legal research. As a result, evidence obtained in violation of the Fourth, Fifth, and Sixth Amendments can be used against defendants at trial or to extract guilty pleas.
88. At sentencing, because MSPD attorneys are unable to gather or prepare mitigating evidence, their clients often receive harsher sentences than might be warranted. Lack of Attorney-Client Communication
89. A defendant’s right to consult with his attorney is an integral component of the right to assistance of counsel. See Geders v. United States, 425 U.S. 80, 88-91 (1976). But MSPD attorneys’ excessive workloads mean that they are unable to meet with clients on a regular basis. In some instances, MSPD attorneys are only able to have a substantive meeting with a client for the first time a few weeks before trial.
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90. Confidential, two-way communication between the accused and his attorney is a critical predicate for counsel’s meaningful participation in the adversarial process, as well as the indigent defendant’s meaningful participation in his own defense. But because MSPD attorneys are often too busy to adequately consult with clients, they are simply unable to provide that meaningful assistance.
91. Without their clients’ input, it is impossible for MSPD attorneys to investigate their clients’ cases adequately or properly prepare for trial, plea negotiations, or sentencing. Nor is it possible, under such circumstances, for indigent defendants to participate meaningfully in their own defense.
92. Moreover, many defendants are ill-equipped to understand the inner workings of the criminal justice system without a lawyer’s guidance. The principles of due process and individual dignity are violated when an individual is deprived of life or liberty by means of a process he does not adequately comprehend. See Faretta v. California, 422 U.S. 806, 834 (1975) (noting society’s interest in avoiding a criminal justice system that leads a defendant “to believe that the law contrives against him.”). The lack of resources provided to MSPD leaves many defendants without this critical guide. Lack of Training and Supervision
93. Given the overwhelming volume of work faced by MSPD attorneys, even the most experienced public defender is unable to engage in the basic requirements of effective representation. But MSPD’s high rate of attrition—a turnover rate of almost 15 percent in 2016, Ex. 1 at 8, due to low salaries and crushingly high workloads—means that few experienced public defenders continue to work at MSPD for any extended period of time. On those occasions where MSPD can even afford to hire new attorneys to replace those who have left, those
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positions are often filled by recent law school graduates with little to no experience in criminal law, juvenile law, or trial practice. Indeed, in some districts the large majority of defenders are recent law school graduates or lawyers with little, if any, experience with criminal defense.
94. To make matters worse, time and resource constraints mean that inexperienced junior attorneys are unable to receive the critical training they need to do their jobs effectively. For example, even though the Supreme Court has made clear that counseling regarding the immigration consequences of a plea or conviction is an integral part of the right to counsel, see Padilla v. Kentucky, 559 U.S. 356 (2010), MSPD attorneys receive no training in immigration law and its potential implications for their clients.
95. Due to the intolerable workloads faced by MSPD attorneys and the lack of sufficient staff to meet those workloads, supervising attorneys in district offices are forced to take on an active docket of cases in addition to their administrative and supervisory responsibilities, leaving those supervisors unable to provide adequate mentoring and oversight to the inexperienced attorneys under their supervision.
96. The combination of lack of experience and lack of training, coupled with the enormous volume of cases that MSPD attorneys are forced to take on, leaves defenders ill-equipped to perform even the most basic tasks necessary to provide adequate representation. Juvenile Defense
97. Like indigent adult criminal defendants, minors in juvenile delinquency proceedings are entitled to meaningful representation. See In re Gault, 387 U.S. 1 (1967).
98. Following the Supreme Court’s recognition of the right to counsel for juvenile defendants in Gault, the Missouri legislature amended the Juvenile Code to provide children with a statutory right to representation in juvenile court proceedings. Ultimately, Missouri codified
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this right to representation in Missouri Revised Statutes § 211.211, which provides indigent youth with the right to court-appointed counsel “prior to the filing of a petition” and “for all stages of the proceedings” thereafter.
99. The Missouri Supreme Court also promulgated specialized Rules of Practice and Procedure in Juvenile Courts and Family Court Divisions. These rules reflected the notion that, because children are particularly vulnerable, they need representation throughout all stages of the juvenile process. See, e.g., Mo. R. Juv. Pro. 116.01 (effective through 2010).
100. In 1997, Missouri created a Youth Advocacy Unit within MSPD to provide the constitutionally required zealous representation for court-involved minors in St. Louis City and St. Louis County. Missouri: Justice Rationed, National Juvenile Defender Center, at 25 (Spring 2013), attached as Ex. 9. A similar unit, based in Kansas City, began serving several other counties a few years later. The Youth Advocacy Unit was staffed by public defenders welltrained in adolescent development and other issues unique to juvenile prosecutions, including child interrogations and the law governing certifying juveniles as adults. Id., at 36.
101. In 2007, however, due to funding cuts, the Youth Advocacy Unit was dismantled. Juvenile cases in St. Louis City and St. Louis County, as well as cases previously handled by the Kansas City Youth Advocacy Unit, were lumped in with MSPD’s general adult workload. Still more juveniles therefore joined the ranks of defendants to whom Missouri has not met its constitutional obligations as a result of its overextended public defenders.
102. In 2013, the National Juvenile Defender Center (NJDC) deployed a dozen experts in to Missouri to study its juvenile court system and assess the extent and quality of representation being provided to children in the State.
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103. The NJDC report concluded that, after “endur[ing] at least two decades of crushing caseloads and inadequate resources to provide its mandated services,” Missouri’s juvenile indigent defense system is “broken” and is improperly “forced to ration services.” Ex. 9 at 7.
104. The NJDC report found that juvenile respondents throughout the State have systematically been denied counsel and have therefore been left on their own to negotiate the juvenile court process. The report concluded that approximately 60 percent of court-involved children in Missouri do not receive appointed counsel. Ex. 9 at 35.
105. For example, in Fiscal Year 2012, the Missouri Supreme Court reported a total of 4,631 new juvenile delinquency and status offense petitions statewide. Ex. 9 at 34. But MSPD attorneys were assigned only 1,923 of those cases, and only 24 cases were contracted out to private counsel. As its funding has declined, the number of cases MSPD has taken on has halved, from 3,380 juvenile cases in Fiscal Year 2007 to only 1,677 juvenile cases in Fiscal Year 2016. Ex. 1 at 6.
106. The NJDC report further concluded that even when Missouri children are represented by public defenders, they receive only “rationed” assistance of counsel. Ex. 9, at 55. For example, the Report noted that detention hearings are largely overlooked by court actors as a critical stage in the proceedings. Like their adult counterparts, youths accused of crimes often go without any representation during their first hearings before the court—hearings at which the decision to detain a respondent is made and thus at which the respondent’s liberty is at stake.
107. In addition, the NJDC report found that juveniles’ public defenders frequently were unable to adequately investigate cases prior to adjudication, file motions to challenge charges or evidence, develop meaningful dispositional advocacy presentations, or continue to represent their
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clients after disposition during probation review hearings or in seeking an appeal. See generally id.
108. In 2015, following an in-depth investigation of the St. Louis County Family Court system, the DOJ determined that the constitutional rights of indigent children were routinely being violated in that county’s juvenile delinquency proceedings. Investigation of the St. Louis County Family Court, St. Louis, Missouri, U.S. Dep’t of Justice Civil Rights Division (July 31, 2015), attached as Ex. 11. The report found that these violations were due at least in part to “the staggering caseload of the sole public defender assigned to handle all indigent juvenile delinquency cases” in St. Louis County. Id. at 2.
109. In 2014, that lone defender handled nearly 400 juvenile cases. Id. at 9. Given these overwhelming numbers, it is not surprising that DOJ further found that during the same period the public defender’s office in St. Louis County appeared to engage in little investigation, resolved 277 of the cases but took only three to trial, filed just seven pretrial motions, never challenged probable cause during detention hearings, never called a defense witness other than, in one instance, the child respondent, and did not hire a single expert witness. Id. at 15-18.
110. On December 14, 2016, the DOJ’s investigative work culminated in a Memorandum of Agreement between the DOJ and the St. Louis County Family Court. The Agreement sought to address in St. Louis some of the very deficiencies that are also plaguing juvenile respondents in counties across the State. Among other things, the Agreement requires prompt appointment of counsel, particularly for children who are detained; specific and ongoing training for juvenile defenders “addressing matters of best practices and procedures for juvenile delinquency defense”; and an assurance that the St. Louis County Family Court will “secure the equivalent of at least two publicly-funded full-time juvenile defense counsel for the Court’s delinquency
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cases.” Memorandum of Agreement Between DOJ and St. Louis County Family Court, at 6-7 (Dec. 14, 2016), attached as Ex. 12.
111. In addition, the Agreement requires the St. Louis County Family Court to monitor juvenile defender caseloads; make efforts to ensure that juveniles accused of crimes receive representation at their initial detention hearing; and provide ample notice and opportunity for attorney-client meetings to be held in advance of initial detention hearings. Id. at 9. Even with this Agreement in place, however, juveniles in St. Louis County are still not receiving the constitutional minimum of adequate representation.
112. St. Louis County is not an outlier. The same issues that led the DOJ to conclude that the constitutional rights of indigent juvenile respondents were being violated in St. Louis County are currently occurring in juvenile courts across the State.
113. In some instances, this results in MSPD attorneys without any training whatsoever in juvenile defense handling juvenile delinquency matters of all kinds, including those involving complex, juvenile-specific legal issues.
114. Children who are certified to adult court frequently fall into a no-representation zone for several weeks while the juvenile court public defender ends representation and the child must seek adult court representation anew. This leaves these children—who are housed in adult jails—vulnerable to interrogation, inadvertent or inappropriate waivers of their rights, and other dangers that adequate representation would mitigate.
115. Accordingly, 50 years after Gault, indigent children who have been charged with crimes in Missouri are being deprived of meaningful legal representation in violation of the state and federal constitutions, as well as state statutory law.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
HARM TO NAMED PLAINTIFFS 116. All of the above-mentioned issues have combined to cause tremendous harm to Plaintiffs and to the Class as a whole. Shondel Church 117. On or about July 19, 2016, Plaintiff Shondel Church was arrested in Kansas City for allegedly stealing a generator and tool box from the property of his stepmother, Ms. Sharon Church, who resides in Lafayette County. 118. Mr. Church was subsequently charged with Class C felony theft, under R.S. Mo. 570.030, which carries a maximum sentence of up to seven years in prison. 119. On or about July 22, 2016, Mr. Church was transferred to the Lafayette County Jail. Mr. Church did not see a judge or speak to a lawyer before his transfer. 120. Following his arrest and transfer to Lafayette County, Mr. Church appeared before the court on two occasions without an attorney—first, for his arraignment on July 27, 2016, during which his bond was set at $5,000 cash or surety, and second, for a subsequent hearing on August 3, 2016. 121. Because Mr. Church was without counsel at his July 27, 2016 hearing, had no legal training of his own, and received no explanation from the court or prosecutor as to how the bond process worked, he was unable to argue for a bond reduction at his arraignment. Because Mr. Church could not afford to pay his bond, he remained in custody following his arraignment. 122. At his July 27, 2016 hearing, Mr. Church was provided a form to seek representation from the public defender. He filled it out and returned it to a guard at the Lafayette County Jail later that same day.
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123. At his hearing on August 3, 2016, while he was still without counsel, Mr. Church was informed that he was eligible for a public defender. His case was then continued again to September 7, 2016.
124. On August 8, 2016, nearly a month after Mr. Church was arrested, Assistant Public Defender Matthew Gass first entered his appearance on behalf of Mr. Church.
125. Mr. Church did not meet his attorney, Mr. Gass, until his September 7, 2016 hearing. Mr. Church did not have a conversation with Mr. Gass about his case until after the hearing, when Mr. Gass visited Mr. Church at the Lafayette County Jail on September 8, 2016. By that time, Mr. Church had already spent more than 40 days in custody without ever communicating with an attorney.
126. During their meeting, Mr. Gass indicated to Mr. Church that he was frustrated with the fact that, as a public defender, he was unable to do his job effectively because of his overwhelming workload. Mr. Gass indicated that Lafayette County had a workload that required at least three or four public defenders, and Mr. Gass was currently the only attorney serving that county. Mr. Gass informed Mr. Church that he might not continue working as a public defender for much longer because of these impossible working conditions.
127. At their meeting on September 8, 2016, Mr. Gass told Mr. Church that, after reviewing Mr. Church’s file, Mr. Gass believed he could win his case, but that fighting the charges could mean Mr. Church would spend another six months in jail awaiting trial, since Mr. Gass would need additional time to investigate the case and prepare for trial. Mr. Gass also told Mr. Church that, instead of going to trial, he could likely get a misdemeanor plea deal and Mr. Church could be released and return to his family in a much shorter amount of time. At the end of the meeting,
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and particularly because he had already spent nearly six weeks in custody, Mr. Church concluded that entering a plea was the best option for him and his family at the time.
128. Mr. Church lives with his wife and four children. At the time of his arrest and incarceration in July 2016, his wife was not working and he was the primary breadwinner for his family.
129. Mr. Church also asked his attorney to file a motion to reduce his bond amount. Mr. Gass indicated that he would look into a bond reduction, but no such motion was ever filed. As a result, Mr. Church remained incarcerated.
130. Soon after the first meeting between Mr. Gass and Mr. Church, Mr. Gass resigned from the public defender’s office and did not speak with Mr. Church before resigning. Though Mr. Gass told Mr. Church he would resolve the case before leaving, Mr. Church never spoke to Mr. Gass again after their first and only meeting.
131. On October 5, 2016, Mr. Church was transported to his next pretrial hearing, at which he expected to see Mr. Gass. Instead, because Mr. Gass had resigned, Mr. Church was represented by a new public defender, Max Mitchell. Mr. Mitchell never entered a formal appearance on behalf of Mr. Church and appeared in court on his behalf only at the October 5, 2016 hearing. Mr. Church was not given the opportunity to discuss the case—or communicate in any meaningful way at all—with Mr. Mitchell.
132. Although Mr. Mitchell did not speak to Mr. Church at the October 5, 2016 hearing, Mr. Church did hand Mr. Mitchell a list of the various reasons he believed that the State’s case was without merit. Mr. Mitchell accepted the list from Mr. Church, but did not discuss it with him. The prosecutor immediately requested that a preliminary hearing be set, and Mr. Mitchell turned his attention to the next client. A preliminary hearing was set for November 16, 2016.
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133. Before the October 5, 2016 hearing, Mr. Church believed he was going to enter a plea and be released that day. Instead, Mr. Mitchell did not speak to Mr. Church at all, a preliminary hearing was set, and Mr. Church was returned to jail without further explanation from his attorney or the court.
134. On October 11, 2016, Mr. Gass filed a motion to withdraw, and Bradley Taylor entered his appearance as Mr. Church’s newly assigned public defender.
135. Mr. Taylor did not meet with Mr. Church before his next hearing. In fact, Mr. Church never had a conversation longer than 30 seconds with Mr. Taylor during the course of Mr. Taylor’s representation of Mr. Church. Mr. Taylor never visited Mr. Church in jail and spoke to him only briefly in court directly before his hearings.
136. On November 16, 2016, Mr. Church appeared for his preliminary hearing. Mr. Taylor appeared on his behalf at the hearing but spoke to Mr. Church only briefly before the hearing to inform him that he would try to talk to Mr. Church’s former attorney (Mr. Gass) about his case.
137. Also at the November 16, 2016 hearing, Mr. Church was able to speak directly to the judge while his lawyer was speaking with the prosecutor. Mr. Church informed the judge that he had now spent over 100 days in jail on a charge that he believed should never have been filed. After Mr. Church’s uncounseled conversation with the judge, the case was transferred to a different court and a hearing was set for the following week, on November 21, 2016.
138. November 21, 2016, was just a few days before Thanksgiving, and Mr. Church was worried that he would remain in jail through Thanksgiving and perhaps Christmas if he did not accept a plea deal.
139. Therefore, on November 21, 2016, after spending five months in pretrial detention, and after losing hope that his case would be appropriately investigated or litigated in a timely
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fashion, Mr. Church pled guilty to misdemeanor theft and was sentenced to two years of probation, with a suspended jail term of six months. While this plea was entered approximately ten weeks after Mr. Church’s meeting with Mr. Gass on September 8, 2016, it is the same deal that Mr. Gass indicated would be available to Mr. Church in September and that Mr. Church thought he was going to enter at his October 5, 2016 hearing.
140. Although Mr. Church has been released, he remains on probation, with a six-month suspended jail sentence that will be executed should he violate the terms of his probation. Mr. Church understands his probation terms to include repaying a bill of $2,605.94 to cover the cost of his pretrial detention. Randall Lee Dalton
141. Until January 2017, Randall Lee Dalton, a physically disabled, mentally impaired man, was living at a nursing home in Laurie, Missouri. He had been there for several months under the supervision of staff and medical professionals, who provided care and counseling and prescribed medication to ensure Mr. Dalton’s stability and daily functioning.
142. On January 30, 2017, law enforcement officials entered Mr. Dalton’s nursing home facility to investigate the alleged overdose of another resident. While there, they allegedly found Mr. Dalton in possession of a single pill of Lorazepam (Ativan), arrested him, forcibly removed him from the facility, transported him to the Morgan County Detention Center, and charged him with felony possession of a controlled substance, a D felony.
143. In processing Mr. Dalton, law enforcement learned that Mr. Dalton had an outstanding warrant for failing to appear in court after allegedly passing a bad check for $73.48 at the Jiffy Stop Food Mart in May 2016.
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144. In addition, after his arrest, Mr. Dalton—who had been convicted of misdemeanor sexual contact in 1994 and initially granted a suspended imposition of sentence—was further charged on February 1, 2017, with the Class D felony of failing to register as a sex offender within his county of residence.
145. On January 31, 2017, although Mr. Dalton had not yet seen a judge or a public defender, an order was entered holding him on $30,000 bond in each of his felony matters. While incarcerated, he was unable to access his medication, and he was both confused and scared.
146. On February 7, 2017, an attorney from the Public Defender’s Office ultimately entered her appearance on behalf of Mr. Dalton. She appeared in court on his behalf on February 15, 2017, waived his appearance, and reset his case until March. Mr. Dalton was entirely unaware of this court date.
147. Following Mr. Dalton’s arrest, his sister, a retired Juvenile Court probation officer, also tried repeatedly to contact Mr. Dalton’s public defender. She was desperate to learn about his case and to share information with the public defender regarding Mr. Dalton’s limited functioning, ongoing mental health issues, and immediate need for medication.
148. After leaving many messages that went unreturned by Mr. Dalton’s public defender, his sister found a new residential treatment program on her own that would accept her brother as an alternative to confinement. Mr. Dalton’s sister also contacted the prosecutor’s office directly to advocate on Mr. Dalton’s behalf.
149. In March 2017, Mr. Dalton was finally brought to court for the first time. It was also the first time he saw his public defender, who did not speak to him until he was brought into the
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court room. Prior to his delivery to court for his March court date, Mr. Dalton had not been contacted by counsel to inform him of the court date.
150. In court, Mr. Dalton’s assigned public defender did not seem familiar with his case. Instead, Mr. Dalton’s sister asked to approach the bench to make a bond application for him, which was ultimately joined by the public defender and prosecutor.
151. Without any meaningful assistance from the public defender system, Mr. Dalton’s family was able to obtain a furlough on his behalf enabling him to enter a residential treatment facility while his case was pending. Unfortunately, Mr. Dalton’s placement at the residential treatment facility subsequently fell through and he was returned to jail, where he currently awaits resolution of his case. Dorian Samuels
152. Plaintiff Dorian Samuels was arrested in Joplin, Missouri, on or about May 30, 2016, and charged with first-degree assault, exposing him to as much as 30 years in prison if convicted. Upon arrest, Mr. Samuels was transported to the Joplin City Jail, where he was held in custody for the next two days.
153. Shortly after arriving at the Joplin City Jail, Mr. Samuels was interviewed, without counsel present, by Detective Justin Ellison of the Joplin Police Department. According to a police report, Detective Ellison read Mr. Samuels his Miranda rights and presented him with a corresponding written waiver form, which Mr. Samuels allegedly signed prior to the interview. Mr. Samuels was intoxicated at the time the alleged waiver was signed and has no recollection of this initial interview by Detective Ellison. As such, Mr. Samuels was unable to provide a voluntary, knowing, and intelligent waiver of his right to an attorney or his right to remain silent.
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Nevertheless, upon information and belief, Mr. Samuels subsequently spoke with Detective Ellison in detail regarding the incident that ultimately lead to his arrest.
154. Mr. Samuels was transferred from the Joplin City Jail to the Jasper County Jail on or about June 1, 2016.
155. On June 2, 2016, Mr. Samuels appeared before the court by video from the Jasper County Jail, without counsel, and was informed that his bond had been set at $20,000 cash. Without the guiding hand of counsel, Mr. Samuels was unable to advocate effectively for a reduction in his bond or address the Miranda violation that occurred when he was improperly interrogated. Since he was unable to afford bond, Mr. Samuels has remained in pretrial detention since his arrest more than nine months ago.
156. Mr. Samuels’ case was initially assigned to Assistant Public Defender Craig Lowe, who entered his appearance in the case on June 8, 2016, and was scheduled to represent Mr. Samuels at his subsequent preliminary hearing on June 15, 2016. Prior to the June 15 court proceeding, Mr. Lowe visited Mr. Samuels at the Jasper County Jail and met with him for approximately 10 minutes to discuss the hearing set for later that day. Ultimately, the preliminary hearing was rescheduled for the following week.
157. Upon information and belief, between June 8, 2016, when Mr. Lowe filed his notice of appearance, and June 22, 2016, Mr. Samuels’ attorney did not engage in any investigation and failed to file any pretrial motions—including any motion for bond reduction or motion for discovery—and spoke with Mr. Samuels privately on just one occasion, during his visit to the jail on June 15, 2016.
158. On June 22, 2016, Mr. Lowe withdrew from the case at the request of Mr. Samuels, who expressed frustration about his inability to communicate in any meaningful way with Mr.
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Lowe, as well as his lawyer’s failure to begin investigating the case. The court granted Mr. Lowe’s request to withdraw and continued the proceedings to the following week, thereby further delaying Mr. Samuels’ preliminary hearing.
159. Mr. Samuels was subsequently assigned a new public defender, J.D. Hatcher, who he met for the first time in court on June 29, 2016, shortly before his preliminary hearing was scheduled to begin. Because Mr. Hatcher had not had time to meet with Mr. Samuels, or otherwise prepare, in advance of the hearing, he sought a continuance from the court. That request was denied, however, and the hearing went forward.
160. During Mr. Samuels’ preliminary hearing, the State called just two witnesses to testify against him: the alleged victim and Detective Ellison, who had interviewed Mr. Samuels—in the absence of counsel and while Mr. Samuels was intoxicated—at the Joplin City Jail soon after his arrest. Mr. Hatcher failed to question Detective Ellison regarding the nature, scope, and propriety of the interview at the jail, because, upon information and belief, he had been unable to prepare for the hearing in any meaningful way. Following the testimony, the court found probable cause to proceed with felony charges against Mr. Samuels and bound his case over to circuit court.
161. On August 1, 2016, Mr. Samuels appeared by video and was re-arraigned—this time with his public defender, Mr. Hatcher, present in the courtroom. Due at least in part to the fact that he was unable to meet with Mr. Samuels at any point between his preliminary hearing and re-arraignment, Mr. Hatcher was unprepared to advocate for any bond reduction on his client’s behalf.
162. Since he first met Mr. Hatcher on June 29, 2016, Mr. Samuels saw Mr. Hatcher on only four occasions, all of which were immediately following pretrial court proceedings on October
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17, 2016; November 21, 2016; December 5, 2016; and January 9, 2017. None of those meetings lasted more than a few minutes. On at least three of those occasions, Mr. Hatcher appeared before the court alone and requested a continuance, while Mr. Samuels remained in a holding cell near the courtroom. Mr. Hatcher did not meet with Mr. Samuels prior to any of these hearings to discuss his plan for the hearing or request Mr. Samuels’s permission to seek a continuance. In fact, Mr. Hatcher did not even notify Mr. Samuels that he planned to seek a continuance at these hearings. Instead, following each of those proceedings, Mr. Hatcher informed Mr. Samuels that the case had been continued, but engaged in no substantive discussion about the status of the case or his investigation of the facts surrounding Mr. Samuels’ arrest.
163. Mr. Hatcher never visited Mr. Samuels in jail, nor did he ever speak with him by phone. Upon information and belief, this was due to Mr. Hatcher’s overwhelming workload and competing responsibilities to other clients.
164. In his most recent motion for continuance, dated January 6, 2017, less than a week before Mr. Samuels’ scheduled trial date, Mr. Hatcher stated that, since he began representing Mr. Samuels on June 29, 2016, “the number and effectiveness of attorney-client communications has been limited for multiple reasons that are outside of Mr. Samuels’ control.” Motion for Continuance (Jan. 6, 2017), attached as Ex. 13. As such, he asked that Mr. Samuels’ trial date be rescheduled for a fourth time.
165. Mr. Hatcher also stated in his motion that he received certain electronic discovery from the State in late December 2016, including “audio and visual recordings of client interviews, communications with emergency dispatch, and other photographic images—that require the making of special accommodations in order to be viewed by Mr. Samuels at the Jasper County
39

CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
jail.” Id. As of the filing of this petition, however, Mr. Samuels has yet to be given the opportunity to review these electronic discovery materials, and his public defender has not had the time to take the steps necessary to ensure that his client is able to do so.
166. Finally, Mr. Hatcher stated that he is seeking a continuance in part because he was representing another defendant who had invoked their right to a speedy trial. Because that trial was set for January 12, 2017, the motion noted that “it is improbable that Mr. Hatcher will be able to adequately prepare for both trials simultaneously.” The motion thus highlights the inherent conflict of interest that arises when public defenders face overwhelming workloads and are forced to prioritize some of their clients at the expense of others.
167. Upon information and belief, Mr. Hatcher recently resigned from the public defender’s office and now works as a prosecutor in Jasper County.
168. On March 1, 2017, Mr. Samuels was appointed yet another public defender, Richard King, the third attorney assigned to his case since his arrest in May 2016. On or about March 6, 2017, Mr. King visited Mr. Samuels in jail and presented Mr. Samuels with a letter stating that he would be unable to represent Mr. Samuels due to his overwhelming workload, which includes more than 200 cases. Mr. King indicated that his workload would make it impossible for him to investigate adequately or otherwise prepare the case. As of the filing of this petition, however, Mr. King remains the attorney of record on Mr. Samuels’ case.
169. Mr. Samuels is currently scheduled for trial on June 1, 2017, a full year after his arrest. Viola Bowman
170. Plaintiff Viola Bowman was arrested on or about January 6, 2015, in Clay County, and charged with first-degree murder and armed criminal action for killing her husband. Ms. Bowman has maintained her innocence since her arrest.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
171. On January 15, 2015, Ms. Bowman appeared before the court for her arraignment, without counsel. Her bond had been set at $1,000,000 and, because she was not accompanied by counsel, Ms. Bowman was unable to advocate for a reduction in her bond amount. Records reflect that bond had been set before her first appearance. Because Ms. Bowman is indigent and could not possibly post the required bond, she has been sitting in jail since her arrest over two years ago.
172. A week after her arraignment, on January 22, 2015, Ms. Bowman appeared before the court again, this time with a public defender, and was re-arraigned. The public defender who represented Ms. Bowman at this proceeding, however, did not continue her representation of Ms. Bowman beyond this hearing and did not do any substantive work on the case at that stage, including any investigation or motion practice.
173. On January 28, 2015, Ms. Bowman’s current attorney, Anthony Cardarella, entered his appearance in the case. Mr. Cardarella is the District Defender for MSPD’s District 7 office, which includes Clay County. Despite his many management responsibilities as District Defender, Mr. Cardarella took Ms. Bowman’s case because none of the public defenders in his office with sufficient experience to handle a first-degree murder case had any more time to devote to the case than did Mr. Cardarella.
174. Mr. Cardarella met with Ms. Bowman for the first time the same week as her next hearing, which was on February 19, 2015, more than one month after her arrest. The meeting lasted approximately ten minutes. Ms. Bowman was shocked at how short the meeting was. Because the meeting was so short, Mr. Cardarella did not have time to explain very much about the case to Ms. Bowman. Mr. Cardarella did inform Ms. Bowman that his office was very busy and that he was the lead attorney for the district.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
175. Since taking over the case, other responsibilities, including other cases, have prevented Mr. Cardarella from remaining in consistent contact with Ms. Bowman. Over the course of the more than two years Ms. Bowman has been in pretrial detention, she has met with her attorney an average of once every two months for approximately 10-15 minutes per meeting.
176. Since January 2015, the public defender’s office has asked the court to continue Ms. Bowman’s case on at least 10 occasions, and to continue the scheduled trial date twice, due at least in part to Mr. Cardarella’s inability to prepare adequately for trial and other proceedings. This has led to Ms. Bowman remaining in pretrial detention for over two years.
177. Additionally, while Mr. Cardarella has been Ms. Bowman’s attorney since January 2015, he has had other attorneys from his office appear on his behalf for at least nine of the 27 hearings that have occurred to this point. Upon information and belief, none of those other attorneys have had sufficient time to familiarize themselves adequately with Ms. Bowman’s case, in which she faces a potential sentence of life imprisonment.
178. Ms. Bowman’s trial was first set for June 20, 2016. On May 11, 2016, pursuant to Mr. Cardarella’s request, the trial was continued to January 23, 2017. The continuance was requested in large part due to Mr. Cardarella’s other administrative and managerial job responsibilities. On September 29, 2016, the trial was again continued at Mr. Cardarella’s request to June 5, 2017. In his motion for a continuance, Mr. Cardarella again noted his many responsibilities related to administrative tasks and managing the district office.
179. Ms. Bowman’s case involves a voluminous amount of discovery and the need for extensive investigation and case preparation. Upon information and belief, very little of that work occurred during the first year after her arrest.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
180. Ms. Bowman believes that her case is often not considered a priority for Mr. Cardarella because of his overwhelming caseload and the seriousness and complexity of her charges. Ms. Bowman is frustrated because her meetings with her attorney are often very short and she does not feel that her questions are answered in a meaningful way, leaving more questions for the next visit.
181. Additionally, because of the many continuances in her case, she has now been incarcerated in the Clay County jail for over 800 days pretrial. Brian Richman
182. Plaintiff Brian Richman has been incarcerated at the Christian County Detention Center since his arrest on or about June 26, 2016, on a series of felony drug charges exposing him to many years in prison.
183. Mr. Richman’s bond was set at over $100,000. Because he was unable to afford bond, Mr. Richman has remained in pretrial detention since his arrest more than eight months ago.
184. Mr. Richman’s public defender has never visited him at the Christian County Detention Center.
185. In fact, there is not even a room for MSPD public defenders to conduct attorney-client visits at the Christian County Detention Center. Rather, the jail’s general practice is to shackle defendants to a rail in a public area and allow attorneys to briefly stand and talk with clients there, surrounded by jail officials and other detainees. Upon information and belief, Christian County’s public defenders have not attempted to challenge the jail’s policy or arrange for an alternative venue because they do not have the resources to do so, given their overwhelming caseload and lack of funding.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
186. The first time Mr. Richman saw his assigned public defender was in court, on or about June 28, 2016, when his attorney waived Mr. Richman’s preliminary hearing without meaningfully consulting with Mr. Richman.
187. To date, no preliminary hearing has been held in Mr. Richman’s Christian County cases, and no indictment has been delivered by a grand jury to support the charges against Mr. Richman. He remains incarcerated on a bond of over $100,000.
188. Since July 14, 2016, Mr. Richman has only seen his attorney on a handful of occasions. These visits have always occurred at the courthouse, involved rushed conversations, and transpired in a public courtroom where other persons were present and confidentiality was not assured.
189. On some occasions, hearings in Mr. Richman’s case have occurred in front of the judge without Mr. Richman present. Mr. Richman’s public defender unilaterally waived Mr. Richman's constitutional right to appear on his own behalf at those hearings and participated in them without obtaining Mr. Richman’s consent to do so.
190. Mr. Richman has found it to be nearly impossible to get in contact with his public defender; upon information and belief, this lack of communication is due to his public defender’s overwhelming workload.
191. Given his inability to communicate consistently and confidentially with his attorney, as well as the fact that his public defender has neither conducted any meaningful investigation on his case nor filed critical motions on his behalf, Mr. Richman has felt the need over the last several months to write letters to the judge presiding over his case. He has done so both to advocate for himself in the context of his cases and to make the court aware of the deplorable conditions at the Christian County Detention Center.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
DEFENDANT LIABILITY 192. Defendants have not provided Plaintiffs, or those similarly situated, with the representation to which they are constitutionally and statutorily entitled. Plaintiffs have been denied representation altogether at some critical stages of their proceedings, have been constructively denied counsel at others because MSPD’s excessive workloads would hamstring even the best of lawyers, and have not received the basic investigation and counseling that the Sixth Amendment demands. 193. Upon information and belief, absent this Court’s intervention, Defendants will continue to fail to provide Plaintiffs with the representation to which they are entitled. 194. The representation provided to the named Plaintiffs is illustrative and typical of the representation provided to indigent defendants throughout the State of Missouri and results from the lack of sufficient funding, inflated workloads, and structural deficiencies that have been identified repeatedly by every entity that has assessed Missouri’s public defender system over the last 25 years. 195. As a result of the State’s failure to remedy this workload problem, public defenders are unable to prepare for and attend every critical stage of their clients’ proceedings. As such, many defendants unnecessarily spend prolonged periods of time in pretrial detention or feel coerced into pleading guilty to charges against which they have a valid and potentially effective defense, merely to get out of jail and avoid losing a job or meaningful contact with their children and families. 196. As a result of their crushing workloads and lack of support, MSPD attorneys do not have the time or resources to communicate with their clients consistently and effectively, making
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF it difficult, if not impossible, for indigent defendants to participate actively in their defense or make sound strategic decisions with respect to their case.
197. The excessive workloads also have made it impossible for MSPD attorneys to investigate and otherwise prepare all of their cases thoroughly and effectively. This, in turn, harms indigent defendants by stripping them of any chance they may have had to secure helpful witnesses, collect valuable evidence, establish an alibi, or otherwise contest the charges against them or obtain lighter or alternative sentences.
198. Defendants have been on notice for decades that the State’s public defender system is failing to provide constitutionally sufficient representation. Numerous studies, reports, and recommendations have been presented to state officials over the years; the Missouri Supreme Court’s decisions in State ex rel. Missouri Pub. Def. Comm’n v. Waters, 370 S.W.3d 592 (Mo. 2012), and State ex rel. Missouri Pub. Def. Comm’n v. Pratte, 298 S.W.3d 870 (Mo. 2009), raised serious concerns about Missouri’s public defender system; and Defendant Michael Barrett and former Governor Nixon have corresponded directly in recent months about MSPD’s dire needs.
199. Despite being on notice of the many deficiencies plaguing Missouri’s indigent defense system, Defendants have failed to take sufficient action to remedy the deficiencies.
200. Defendants’ failure to take sufficient steps to remedy the deficiencies of Missouri’s indigent defense system is the proximate cause of the harm suffered by indigent criminal defendants throughout Missouri—including the named Plaintiffs and the Class they seek to represent.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
CLASS ALLEGATIONS 201. Plaintiffs file this class action lawsuit pursuant to Missouri Supreme Court Rule 52.08 on behalf of all indigent persons who are now, or who will be during the pendency of this litigation, under formal charge before a state court in Missouri of having committed any offense, the penalty for which includes the possibility of confinement, incarceration, imprisonment, or detention (regardless of whether actually imposed), and who are eligible to be represented by MSPD. 202. Plaintiffs in this case represent a Class, and this action should be certified as a class action under Missouri Supreme Court Rule 52.08. 203. Every day, hundreds of individuals who are unable to afford an attorney and who depend on MSPD to provide them with effective legal representation are criminally prosecuted in this State. As such, the Class is so numerous that joinder of all members is impractical. 204. There are important questions of law and fact raised in this case that are common to the Class, including:
a. Whether Defendants are required under the United States and Missouri Constitutions and under Missouri law to provide indigent defendants with effective legal representation;
b. Whether Defendants have systemically denied Plaintiffs actual representation at critical stages of their trial;
c. Whether Defendants have created circumstances such that even where counsel is nominally available, “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is small,” constructively depriving Plaintiffs of counsel in violation of United States v. Cronic;
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
d. Whether MSPD is able to adequately communicate with clients, investigate cases, and counsel clients regarding guilty pleas;
e. Whether Defendants have violated the United States and Missouri Constitutions, as well as Missouri law, by failing to implement, administer, and oversee an adequate public defense system; and
f. Whether Defendants’ failure to adequately fund the delivery of public defense services impedes the provision of effective legal representation to indigent defendants.
205. The claims of the Class representatives are typical of the claims of the Class as a whole. Like all of the Class members, the Class representatives are being denied their right to counsel, in violation of the federal and state constitutions, as well as Missouri statutes, as a direct result of Defendants’ ongoing failure to adequately fund, supervise, and administer public defense services in Missouri.
206. The Class representatives will fairly and adequately protect the interests of the Class. The interests of the Class representatives are not in conflict with the interests of any other indigent defendant, and the Class representatives have every incentive to pursue this litigation vigorously on behalf of themselves and the Class as a whole.
207. The Class representatives are being represented by experienced, well-resourced counsel in this matter, including the national American Civil Liberties Union’s Criminal Law Reform Project, the American Civil Liberties Union of Missouri, the MacArthur Justice Center at St. Louis, and Orrick, Herrington & Sutcliffe LLP, each of whose attorneys possess extensive litigation experience. The attorneys for the Class representatives have substantial expertise in litigating class action lawsuits generally and in public defense reform litigation in particular.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
208. The prosecution of separate actions by individual members of the Class would create a risk of adjudications with respect to individual Class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications.
209. Defendants have failed to adequately administer indigent defense services in Missouri, thereby violating the rights of indigent defendants across the State. As such, these Defendants have acted and refused to act on grounds generally applicable to the entire Class, thereby making it appropriate for this Court to issue final declaratory and injunctive relief for all Class members.
CLAIMS FOR RELIEF First Claim for Relief
Violation of the Sixth and Fourteenth Amendments to the United States Constitution (Right to Counsel)
210. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs of this Petition.
211. The Sixth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, requires the State of Missouri to ensure that all indigent defendants in criminal or juvenile delinquency proceedings receive meaningful and effective legal representation.
212. 42 U.S.C. § 1983 provides for suit against individual government officials—here, Defendants Greitens, Barrett, Bock, Jackson, Chval, and Hogan—for constitutional violations.
213. Defendants have violated and continue to violate the Sixth and Fourteenth Amendments to the United States Constitution because they have failed to ensure that all Plaintiffs and Class Members—indigent defendants across the State who are entitled to representation by MSPD— receive meaningful legal representation, resulting in the actual and constructive denial of their right to counsel.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
Second Claim for Relief Violation of Article 1, Section 18(a) of the Missouri Constitution
(Right to Counsel) 214. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs of this Petition. 215. The Missouri Constitution requires the State of Missouri to ensure that all indigent defendants in criminal or juvenile delinquency proceedings receive meaningful and effective legal representation. 216. Defendants have violated and continue to violate Article I, Section 18(a), of the Missouri Constitution because they have failed to ensure that Plaintiffs and Class Members— indigent defendants across the State who are entitled to representation by MSPD—receive meaningful legal representation, resulting in the actual and constructive denial of their right to counsel.
Third Claim for Relief Violation of the Fifth and Fourteenth Amendments to the United States Constitution
(Due Process) 217. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs of this Petition. 218. The Due Process Clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, requires the State of Missouri to ensure that all indigent defendants in criminal or juvenile delinquency proceedings receive meaningful legal representation. 219. 42 U.S.C. § 1983 provides for suit against individual government officials—here, Defendants Greitens, Barrett, Bock, Jackson, Chval, and Hogan—for constitutional violations.
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
220. Defendants have violated and continue to violate the Fifth and Fourteenth Amendments of the United States Constitution, because they have failed to ensure that all Plaintiffs and Class Members—indigent defendants across the State who are entitled to representation by MSPD— receive meaningful legal representation, resulting in the actual and constructive denial of their right to counsel.
Fourth Claim for Relief Violation of Article 1, Section 10 of the Missouri Constitution
(Due Process) 221. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs of this Petition. 222. Under Article 1, Section 10 of the Missouri Constitution, the State of Missouri is required to ensure that all indigent defendants in criminal or juvenile delinquency proceedings receive meaningful and effective legal representation. 223. Defendants have violated and continue to violate Article I, Section 10 of the Missouri Constitution because they have failed to ensure that Plaintiffs and Class Members—indigent defendants across the State who are entitled to representation by MSPD—receive meaningful legal representation, resulting in the actual and constructive denial of their right to counsel.
Fifth Claim for Relief Violation of Missouri Criminal and Juvenile Codes
(Right to Counsel) 224. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs of this Petition. 225. The right to counsel under the United States and Missouri Constitutions is also embodied in the Missouri Criminal and Juvenile Codes, which requires the State of Missouri to appoint counsel for indigent defendants in criminal, probation, civil confinement, and juvenile
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF
delinquency proceedings. See Mo. Rev. Stat. §§ 600.042, 600.048, 211.061, 211.211; Mo. R.
Juv. P. 126.01.
226. Defendants have violated and continue to violate the Missouri Criminal and Juvenile
Codes because they have failed to ensure that Plaintiffs and Class Members—indigent
defendants across the State who are entitled to representation by MSPD—receive meaningful
legal representation, resulting in the actual and constructive denial of their right to counsel.
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that this Court:
A) Certify this case as a class action pursuant to Rule 52.08 of the Missouri Rules of Civil Procedure;
B) Declare that Defendants are obligated to provide constitutionally adequate representation to indigent criminal defendants and juvenile respondents, including at their initial appearances;
C) Declare that the constitutional and statutory rights of Missouri’s indigent criminal defendants and juvenile respondents are currently being violated by Defendants on an ongoing basis;
D) Enjoin Defendants from continuing to violate the rights of indigent defendants by providing constitutionally deficient representation;
E) Enter an injunction that requires Defendants to propose and implement, subject to this Court’s approval and monitoring, a plan to ensure that all indigent criminal defendants and juvenile respondents in the State of Missouri are provided with constitutionally adequate legal representation;
F) Award Plaintiffs and the Class reasonable attorneys’ fees and costs incurred during the course of this litigation pursuant to 42 U.S.C. § 1988 and other applicable law; and
G) Grant any other relief the Court deems necessary and proper to protect Plaintiffs and the Class from further harm.
// // // // // //
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CLASS ACTION PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF Respectfully submitted this 9th day of March, 2017.

/s/ Anthony Rothert____________ Anthony Rothert Missouri Bar #44827 ACLU OF MISSOURI FOUNDATION 906 Olive Street, Suite 1130 St. Louis, MO 63101 Telephone: (314) 652-3114 Facsimile: (314) 652-3112 Email: arothert@aclu-mo.org
Gillian Wilcox Missouri Bar #61278 ACLU OF MISSOURI FOUNDATION 406 West 34th Street, Suite 420 Kansas City, MO 64111 Telephone: (816) 470-9933 Facsimile: (314) 652-3112 Email: gwilcox@aclu-mo.org
Jason D. Williamson Pro hac vice application pending ACLU FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004

Mae Quinn Missouri Bar #61584 Amy Breihan Missouri Bar #65499 MACARTHUR JUSTICE CENTER AT ST. LOUIS 3115 South Grand Boulevard, Suite 300 St. Louis, MO 63118 Telephone: (314) 254-8540 Facsimile: (314) 254-8547 Email: mae.quinn@macarthurjustice.org
Robert Sills Aaron Scherzer Matthew R. Shahabian ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, NY 10019
Evan Rose Easha Anand ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105
Attorneys for Plaintiffs

53

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

SHONDEL CHURCH, et al., Plaintiffs,
v. STATE OF MISSOURI, et al.,
Defendants.

) ) ) ) ) No. 17-cv-04057-NKL ) ) ) ) )

ORDER Pending before the Court are Defendants Eric Greitens and State of Missouri’s Motions to Dismiss, [Docs. 18, 20]. For the following reasons, Defendants’ Motions are granted in part and denied in part.

I. Background1 This lawsuit challenges the adequacy of the Missouri State Public Defender (MSPD),
which provides legal representation to all indigent citizens accused or convicted of crimes in Missouri state court. Plaintiffs filed this putative class action alleging Missouri “has failed to meet its constitutional obligation to provide indigent defendants with meaningful representation.” Plaintiffs filed for injunctive and declaratory relief in Missouri state court. Defendants removed this action pursuant to 28 U.S.C. §§1331, 1441, and 1446.

1

The facts are found in Plaintiffs’ Class Action Petition for Injunctive and Declaratory Relief.

[Doc. 1-2.] For purposes of deciding the Defendants’ Motions to Dismiss, the Court accepts the

Plaintiffs’ factual allegations as true and construes them in the light most favorable to them. See Stodghill

v. Wellston Sch. Dist., 512F.3d 472, 476 (8th Cir. 2008).

Case 2:17-cv-04057-NKL Document 69 Filed 07/24/17 Page 1 of 48

A. Missouri Indigent Defense Overview

The State of Missouri relies almost exclusively on local MSPD offices to provide

indigent defense services in all 114 counties and St. Louis City. MSPD comprises three distinct

parts: the Trial Division, subdivided into 33 district offices across the State; the Appellate/Post-

Conviction Division, subdivided into six offices; and the Capital Division, subdivided into three

offices. MSPD employs approximately 376 attorneys—including roughly 313 in the Trial

Division—and approximately 200 administrative staff, support staff, paralegals, and

investigators. The MSPD represents indigent defendants in over 100,000 cases each year,

counting new cases and cases carried over from previous years.

1. Funding

MSPD is funded almost exclusively from Missouri’s general revenue. The level of

funding provided by the State is less than one half of one percent of the State’s general revenue.

In fiscal year 2016, the MSPD Trial Division handled more than 75,000 cases; with its funding,

the MSPD spent an average of $356 per case.

Since the establishment of MSPD in its current form in 1989, there have been at least ten

independent evaluations of Missouri’s public defense system, including assessments conducted

by The Spangenberg Group in 1993 and 2005; the Missouri Senate Interim Committee in 2006;

The Spangenberg Group and the Center for Law, Justice, and Society at George Mason

University in 2009; the U.S. Department of Justice – Bureau of Justice Statistics in 2010; the

American Bar Association in 2010; the National Juvenile Defender Center in 2013; the

American Bar Association and RubinBrown in 2014; the U.S. Department of Justice in 2015; and the Sixth Amendment Center in 2016.2

The Sixth Amendment Center’s study determined that Missouri’s per capita spending on

2

The reports from those studies are in the record at [Docs. 1-3, 1-4].

2

Case 2:17-cv-04057-NKL Document 69 Filed 07/24/17 Page 2 of 48

indigent defense is approximately one-third of the average of the 35 states surveyed. According to the study, in fiscal year 2015 Missouri spent $6.20 per resident for indigent defense services, compared to an average of $18.41 per capita among the other States in the study. Missouri currently ranks 49th among the 50 states in funding for indigent defense.
In August 2015, Defendant Michael Barrett—Director of MSPD—wrote to thenGovernor Jay Nixon requesting additional funds. Barrett noted that, “[f]or years, the Missouri State Public Defender (MSPD) has warned that the rights of poor Missourians are being violated throughout the state because MSPD’s resources are too few and the caseloads too high.” Barrett pointed to recent reports by the National Juvenile Defender Center (NJDC) and the ABA making clear that existing funding was “woefully inadequate to guarantee the constitutional rights of indigent[]” defendants in Missouri. As such, Barrett requested a $10 million supplemental budget to provide some of the resources that MSPD urgently needed to “meet[] its obligations to its citizens under the U.S. and Missouri Constitutions.” His request was denied.
In 2015, the Missouri legislature approved an additional $3.4 million in funding to MSPD. Then-Governor Nixon vetoed the funding. The legislature overrode that veto, but Governor Nixon nevertheless withheld the funds from MSPD. The legislature approved $4.5 million in additional funding for caseload relief in fiscal year 2017, but Governor Nixon directed that the MSPD receive only $1 million.
Plaintiffs estimate it would take an additional $20 million or more per year for MSPD to meet the constitutional floor of providing minimally adequate representation to indigent defendants.
2. Workloads In 1993, the Missouri State Public Defender Commission sought the assistance of The
3
Case 2:17-cv-04057-NKL Document 69 Filed 07/24/17 Page 3 of 48

Spangenberg Group (TSG) in studying the internal operations of the Missouri public defense system, including issues related to budgeting, staffing, and allocation of resources. TSG’s report concluded that MSPD “lack[ed] the necessary resources to provide competent representation,” and that “[t]he legal staff needs to be increased as soon as possible.” [Doc. 1-3, pp. 86–106 of 150].
In 2005, the Missouri Bar Association formed a Public Defender Task Force to work in conjunction with the MSPD Commission to address those deficiencies. The task force commission TSG to conduct another study into the MSPD. The report warned that Missouri’s public defender system was “on the verge of collapse” and that, despite the best efforts of MSPD’s attorneys, many public defenders were routinely failing to comply with MSPD’s Public Defender Guidelines for Representation and the Missouri Rules of Professional Conduct. [Doc. 1-3, pp. 111–138 of 150].
In January 2007, an interim committee of the Missouri Senate released its report on MSPD. The committee found that the caseloads of public defenders were “too large,” and recommended that “caseloads . . . be reduced, support staff be increased, the number of public defenders be increased . . . [and] the base salary of public defenders be[ ] increased.” [Docs. 1-3, pp. 140–150 of 150; 1-4, pp. 1–4 of 290].
In 2009, the Missouri Bar Association retained TSG for another report. TSG concluded that public defender workloads had worsened since its 2005 report and, as a result of those workloads, public defenders were failing to (1) conduct prompt interviews of their clients following arrest, (2) spend sufficient time interviewing and counseling their clients, (3) advocate effectively for pretrial release, (4) conduct thorough investigations of their cases, (5) pursue formal and informal discovery, (6) file appropriate and essential pleadings and motions, (7)
4
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conduct necessary legal research, and (8) prepare adequately for pretrial hearings, trial, and sentencing. [Doc. 1-4, pp. 6–73 of 290].
In June 2014, the ABA and accounting firm RubinBrown released a study of Missouri’s public defender system, which included an assessment of public defender workloads for both adult and juvenile matters. [Doc. 1-7]. The researchers calculated the minimum number of hours (excluding court time, travel, and administrative tasks) that an attorney would need to devote to different types of cases in order to provide constitutionally adequate representation. The study determined that a constitutionally adequate attorney would need to spend a minimum of 106.6 hours on a non-capital murder/homicide case; at least 47.6 hours on an A/B felony; at least 25.0 hours on a C/D felony; at least 63.8 hours on a felony sex offense; at least 11.7 hours on a misdemeanor; at least 9.8 hours on a probation violation; and at least 19.5 hours on a juvenile case. [Doc. 1-4, pp. 75–121 of 290].
In 2015, MSPD attorneys were able to spend, on average, 84.5 hours on each non-capital murder/homicide case; 8.7 hours on each A/B felony; 4.4 hours on each C/D felony; 25.6 hours on each felony sex offense; 2.3 hours on each misdemeanor; 1.4 hours on each probation violation; and 4.6 hours on each juvenile case. Id. Under the ABA’s analysis, “attorneys in the St. Louis County office [were] at 265% workload capacity,” and throughout the state, for example: “239% capacity for the Springfield office, 254% for Jefferson City, and 254% for Farmington.” [Doc. 1-4, pp. 124–126 of 290]. MSPD Trial Division attorneys were able to devote the minimum required hours to only 2.4% of all A/B felony cases (or 97 out of 4,127 total A/B felony cases) and 1.4% of C/D felony cases (or 311 out of 21,491 total C/D felony cases). [Doc. 1-4, pp. 189–199 of 290].
In February 2017, Defendant Barrett testified before the state legislature that MSPD
5
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would need 333 more lawyers to provide minimally adequate representation to indigent defendants.
In 2012, the Missouri Supreme Court upheld the validity of a rule promulgated by the Missouri Public Defender Commission that “permit[ted] a district defender office to decline additional appointments when it ha[d] been certified as being on limited availability after exceeding its caseload capacity for at least three consecutive calendar months.” State ex rel. Missouri Public Defender Commission v. Waters, 370 S.W.3d 592, 597 (Mo. 2012). After that decision, however, public defenders who attempted to turn away cases faced resistance from prosecutors, judges, and legislators. In some circuits, cases that were turned away were assigned to non-MSPD attorneys with no criminal defense experience who were not compensated for their time.
The then-head of MSPD was told that if local offices continued to turn away cases, the legislature would pass a bill to privatize the entire system. The legislature passed Mo. Rev. Stat. § 600.062, which prevents the director of MSPD or the MSPD Commission from “limit[ing] the availability of a district office or any division director, district defender, deputy district defender, or assistant public defender to accept cases based on a determination that the office has exceeded a caseload standard.” Under section 600.062, MSPD “may not refuse to provide representation” unless it receives “prior approval from a court of competent jurisdiction.” Since the legislature’s enactment of 600.602, no MSPD office has refused cases in any consistent or systematic way.
3. Representation As a result of funding deficiency and resulting workloads, Plaintiffs point to deficiencies in representation at several stages throughout a case: lack of representation at arraignment and bond determinations, prolonged pretrial detention, guilty pleas that are not fully knowing or
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voluntary, lack of investigation during discovery, and lack of attorney-client communication. In 2008, the U.S. Supreme Court reaffirmed that the right to counsel attaches when
“formal judicial proceedings have begun.” Rothgery v. Gillespie County, Texas, 554 U.S. 191, 211. For a person who is arrested, the beginning of formal judicial proceedings is at the “criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction.” Id. at 213. “Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the post-attachment proceedings.” Id. at 212.
In Missouri, however, attorneys are often unavailable to represent each eligible indigent defendant at every critical stage of the criminal process—including at their arraignment, where bond is determined. Public defenders routinely do not meet their clients until several weeks after the client’s arrest and arraignment. As a result, bond determinations, which normally occur at the defendant’s initial appearance before the court, are almost always made without the benefit of advocacy from counsel. Unrepresented indigent defendants are therefore often forced to remain in jail simply because they are unable to advocate effectively on their own for release on their own recognizance or a reasonable reduction in their bond amount.
The U.S. Supreme Court has also ruled that an attorney must be present at any postarraignment lineup because such a “confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, 388 U.S. 218, 228 (1967). However, defendants in Missouri are routinely placed in lineups after arraignment without the benefit of counsel, even though the prejudice that results from an improper lineup cannot be cured later in the criminal process. See
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id. at 236-37. Because indigent defendants are often unrepresented at critical bond determinations, they
may remain in jail for extended periods of time. MSPD attorneys’ workloads often require them to seek multiple or extended continuances in cases they deem less urgent, or when they need additional time to prepare adequately for more serious cases. Because of these delays, irrespective of the merits of the case against them, defendants are often forced to choose between either consenting to the continuances, thereby waiving their right to a speedy trial and remaining in jail for an extended period of time, or taking their chances at trial with an attorney who has had little or no time to prepare.
The vast majority of defendants in Missouri plead guilty. Many of these are MSPD clients, but MSPD attorneys are unable to ensure that those who plead guilty do so knowingly and voluntarily. Excessive pretrial detention—often due to public defenders’ inability to represent defendants at bond hearings or their need for repeat continuances—put virtually unbearable pressure on many defendants to plead guilty merely to get out of jail. Many MSPD clients who plead guilty do so without a full understanding of the strengths and weaknesses of their case. In particular, public defenders are unable to advise their clients of the immigration consequences of their plea because MSPD does not have the resources to provide any training in the intersection of criminal law and immigration law.
Most MSPD attorneys and unable to analyze the discovery they receive early enough in the proceedings to make important investigative decisions, including which key witnesses to depose and whether or not an expert witness is necessary for the client’s defense. Investigators are not staffed on every case—or even every serious felony—to which an office is assigned. Rather, individual defenders, regardless of their level of experience, are asked to use their
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discretion in selecting which cases will be formally investigated. Even when an attorney determines that investigation is necessary, investigators often do not have time to review discovery or gather other background information on the cases that they do investigate. Additionally, MSPD attorneys also frequently do not have the time to identify experts or conduct expert consultations. Even when MSPD attorneys identify the need for an expert, they are often unable to secure the resources necessary to retain an appropriate expert.
Time constraints also mean attorneys are often unable to meet with witnesses or take other important investigatory steps to prepare adequately for trial or to negotiate a more favorable plea bargain. Many MSPD attorneys take depositions in just a small fraction of their cases, thus leaving on the table the valuable information that is likely to be gleaned from such depositions. MSPD attorneys are rarely able to file suppression motions because they lack the investigative resources to identify unconstitutional police conduct, the time to review pertinent discovery, and the resources and experience to conduct appropriate legal research. As a result, evidence obtained in violation of the Fourth, Fifth, and Sixth Amendments can be used against defendants at trial or to extract guilty pleas.
Finally, a defendant’s right to consult with his attorney is an integral component of the right to assistance of counsel. See Geders v. United States, 425 U.S. 80, 88-91 (1976). But MSPD attorneys’ excessive workloads mean that they are unable to meet with clients on a regular basis. In some instances, MSPD attorneys are only able to have a substantive meeting with a client for the first time a few weeks before trial. Without their clients’ input, it is impossible for MSPD attorneys to investigate their clients’ cases adequately or properly prepare for trial, plea negotiations, or sentencing. Nor is it possible, under such circumstances, for indigent defendants to participate meaningfully in their own defense.
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4. Juvenile Defense Minors in juvenile delinquency proceedings are entitled to meaningful representation. See In re Gault, 387 U.S. 1 (1967). Following Gault, the Missouri legislature amended the Missouri Juvenile Code to provide children with a statutory right to representation in juvenile court proceedings. This right is codified at Mo. Rev. Stat. § 211.211, which provides indigent youth with the right to court-appointed counsel “prior to the filing of a petition” and “for all stages of the proceedings” thereafter. The Missouri Supreme Court also promulgated specialized Rules of Practice and Procedure in Juvenile Courts and Family Court Divisions. These rules reflected the notion that, because children are particularly vulnerable, they need representation throughout all stages of the juvenile process. See, e.g., Mo. R. Juv. Pro. 116.01. In 1997, Missouri created a Youth Advocacy Unit within MSPD to provide the required representation for court-involved minors in St. Louis City and St. Louis County. A similar unit, based in Kansas City, began serving several other counties a few years later. The Youth Advocacy Unit was staffed by public defenders well trained in adolescent development and other issues unique to juvenile prosecutions, including child interrogations and the law governing certifying juveniles as adults. In 2007, the Youth Advocacy Unit was dismantled due to funding cuts and previously handled by the Youth Advocacy Units were brought in with MSPD’s general adult workload. In 2013, the National Juvenile Defender Center (NJDC) studied Missouri’s juvenile court system to assess the extent and quality of representation being provided to children in the State. The NJDC report concluded that, after “endur[ing] at least two decades of crushing caseloads and inadequate resources to provide its mandated services,” Missouri’s juvenile indigent defense system is “broken” and is improperly “forced to ration services.” [Doc. 1-4, pp. 128–186 of 290].
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The report concluded that approximately 60 percent of court-involved children in Missouri do not receive appointed counsel. In Fiscal Year 2012, the Missouri Supreme Court reported a total of 4,631 new juvenile delinquency and status offense petitions statewide. MSPD attorneys were assigned only 1,923 of those cases, and only 24 cases were contracted out to private counsel. The report also noted deficiency in those cases that do include representation similar to those discussed above, specifically regarding lack of representation at detention hearings, lack of investigations, failure to file motions or challenge charges or evidence, and failure to represent clients after disposition during probation review or on appeal.
In 2015, following an investigation of the St. Louis County Family Court system, the U.S. Department of Justice determined that the constitutional rights of indigent children were routinely being violated in that county’s juvenile delinquency proceedings. The report found that these violations were due at least in part to “the staggering caseload of the sole public defender assigned to handle all indigent juvenile delinquency cases” in St. Louis County. In 2014, that lone defender handled nearly 400 juvenile cases. The DOJ further found that during the same period the public defender’s office in St. Louis County appeared to engage in little investigation, resolved 277 of the cases but took only three to trial, filed just seven pretrial motions, never challenged probable cause during detention hearings, never called a defense witness other than, in one instance, the child respondent, and did not hire a single expert witness. [Doc. 1-4, pp. 201–259 of 290].
B. Plaintiffs’ Factual Allegations 1. Shondel Church
On July 19, 2016, Plaintiff Shondel Church was arrested in Kansas City for allegedly stealing a generator and tool box from the property of his stepmother. Mr. Church was
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subsequently charged with Class C felony theft under Mo. Rev. Stat. § 570.030, which carries a maximum sentence of up to seven years in prison. Following his arrest and transfer to the Lafayette County Jail, Mr. Church appeared before the court on two occasions without an attorney—first, for his arraignment on July 27, 2016, during which his bond was set at $5,000 cash or surety, and second, for a subsequent hearing on August 3, 2016.
Mr. Church received no explanation from the court or prosecutor as to how the bond process worked and he was unable to argue for a bond reduction at his arraignment. Because Mr. Church could not afford to pay his bond, he remained in custody following his arraignment. At that hearing, Mr. Church filled out the form to seek public defender representation and returned it to a guard at the Lafayette County Jail that same day. At his hearing on August 3, 2016, while he was still without counsel, Mr. Church was informed that he was eligible for a public defender. His case was then continued again to September 7, 2016.
On August 8, 2016, Assistant Public Defender Matthew Gass first entered his appearance on behalf of Mr. Church. By the time Mr. Church met with his attorney, he had already spent more than 40 days in custody. During their meeting, Mr. Gass indicated that Lafayette County had a workload that required at least three or four public defenders, but Mr. Gass was currently the only attorney serving that county.
Mr. Gass told Mr. Church that, after reviewing Mr. Church’s file, Mr. Gass believed he could win his case, but that fighting the charges could mean Mr. Church would spend another six months in jail awaiting trial, since Mr. Gass would need additional time to investigate the case and prepare for trial. Mr. Gass also told Mr. Church that, instead of going to trial, he could likely get a misdemeanor plea deal and Mr. Church could be released and return to his family in a much shorter amount of time. At the end of the meeting, Mr. Church concluded that entering a
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plea was the best option for him and his family at the time, as he was the primary breadwinner for his wife and four children.
Mr. Church also asked his attorney to file a motion to reduce his bond amount. Mr. Gass indicated that he would look into a bond reduction, but no such motion was ever filed. As a result, Mr. Church remained incarcerated. Soon after the first meeting between Mr. Gass and Mr. Church, Mr. Gass resigned from the public defender’s office and did not speak with Mr. Church before resigning. Though Mr. Gass told Mr. Church he would resolve the case before leaving, Mr. Church never spoke to Mr. Gass again after their first and only meeting.
On October 5, 2016, Mr. Church was transported to his next pretrial hearing, at which he expected to see Mr. Gass. Instead, Mr. Church was represented by a new public defender, Max Mitchell. Mr. Mitchell never entered a formal appearance on behalf of Mr. Church and appeared in court on his behalf only at the October 5, 2016 hearing. Mr. Church was not given the opportunity to discuss the case—or communicate in any meaningful way at all—with Mr. Mitchell. Mr. Church did give Mr. Mitchell a written list of the various reasons he believed that the State’s case was without merit. Mr. Mitchell accepted the list from Mr. Church, but did not discuss it with him. A preliminary hearing was set for November 16, 2016. Mr. Church believed he was going to enter a plea and be released that day. Instead, Mr. Mitchell did not speak to Mr. Church at all, a preliminary hearing was set, and Mr. Church was returned to jail without further explanation from his attorney or the court.
On October 11, 2016, Mr. Gass filed a motion to withdraw, and Bradley Taylor entered his appearance as Mr. Church’s newly assigned public defender. Mr. Taylor did not meet with Mr. Church before his next hearing. Mr. Taylor never visited Mr. Church in jail and spoke to him only briefly in court directly before his hearings.
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On November 16, 2016, Mr. Church appeared for his preliminary hearing. Mr. Taylor appeared on his behalf at the hearing but spoke to Mr. Church only briefly before the hearing to inform him that he would try to talk to Mr. Church’s former attorney (Mr. Gass) about his case.
Also at the November 16, 2016 hearing, Mr. Church was able to speak directly to the judge while his lawyer was speaking with the prosecutor. Mr. Church informed the judge that he had now spent over 100 days in jail on a charge that he believed should not have been filed. After Mr. Church’s uncounseled conversation with the judge, the case was transferred to a different court and a hearing was set for the following week, on November 21, 2016.
On November 21, 2016, after spending five months in pretrial detention, Mr. Church pled guilty to misdemeanor theft and was sentenced to two years of probation, with a suspended jail term of six months. While this plea was entered approximately ten weeks after Mr. Church’s meeting with Mr. Gass on September 8, 2016, it is the same deal that Mr. Gass indicated would be available to Mr. Church in September and that Mr. Church thought he was going to enter at his October 5, 2016 hearing. Although Mr. Church has been released, he remains on probation with a six-month suspended jail sentence that will be executed should he violate the terms of his probation. Mr. Church understands his probation terms to include repaying a bill of $2,605.94 to cover the cost of his pretrial detention.
2. Randall Lee Dalton Until January 2017, Randall Lee Dalton, a physically disabled, mentally impaired man, was living at a nursing home in Laurie, Missouri. He had been there for several months under the supervision of staff and medical professionals, who provided care and counseling and prescribed medication to ensure Mr. Dalton’s stability and daily functioning. On January 30, 2017, law enforcement officials entered Mr. Dalton’s nursing home facility to investigate the alleged
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overdose of another resident. While there, they allegedly found Mr. Dalton in possession of a single pill of Lorazepam (Ativan), arrested him, forcibly removed him from the facility, transported him to the Morgan County Detention Center, and charged him with felony possession of a controlled substance, a D felony.
In processing Mr. Dalton, law enforcement learned that Mr. Dalton had an outstanding warrant for failing to appear in court after allegedly passing a bad check for $73.48 at the Jiffy Stop Food Mart in May 2016. In addition, after his arrest, Mr. Dalton—who had been convicted of misdemeanor sexual contact in 1994 and initially granted a suspended imposition of sentence—was further charged on February 1, 2017, with the Class D felony of failing to register as a sex offender within his county of residence.
On January 31, 2017, although Mr. Dalton had not yet seen a judge or a public defender, an order was entered holding him on $30,000 bond in each of his felony matters. While incarcerated, he was unable to access his medication. On February 7, 2017, an attorney from the Public Defender’s Office ultimately entered her appearance on behalf of Mr. Dalton. She appeared in court on his behalf on February 15, 2017, waived his appearance, and reset his case until March. Mr. Dalton was entirely unaware of this court date.
Following Mr. Dalton’s arrest, his sister tried repeatedly to contact Mr. Dalton’s public defender to share information regarding Mr. Dalton’s limited functioning, ongoing mental health issues, and immediate need for medication. After leaving a number of messages that went unreturned by Mr. Dalton’s public defender, his sister found a new residential treatment program on her own that would accept her brother as an alternative to confinement. Mr. Dalton’s sister also contacted the prosecutor’s office directly to advocate on Mr. Dalton’s behalf.
In March 2017, Mr. Dalton was finally brought to court for the first time. It was also the
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first time he saw his public defender, who did not speak to him until he was brought into the court room. Prior to his delivery to court for his March court date, Mr. Dalton had not been contacted by counsel to inform him of the court date. Mr. Dalton’s assigned public defender did not seem familiar with his case, so Mr. Dalton’s sister asked to approach the bench to make a bond application for him, which was ultimately joined by the public defender and prosecutor.
Mr. Dalton’s family was able to obtain a furlough on his behalf enabling him to enter a residential treatment facility while his case was pending. However, this placement subsequently fell through and he was returned to jail, where he currently awaits resolution of his case.
3. Dorian Samuels Plaintiff Dorian Samuels was arrested in Joplin, Missouri, on or about May 30, 2016, and charged with first-degree assault, exposing him to as much as 30 years in prison if convicted. Upon arrest, Mr. Samuels was transported to the Joplin City Jail. Shortly after arriving at the Joplin City Jail, Mr. Samuels was interviewed, without counsel present, by Detective Justin Ellison of the Joplin Police Department. According to a police report, Detective Ellison read Mr. Samuels his Miranda rights and presented him with a corresponding written waiver form, which Mr. Samuels allegedly signed prior to the interview. Mr. Samuels was intoxicated at the time the alleged waiver was signed and has no recollection of this initial interview by Detective Ellison. As such, Mr. Samuels was unable to provide a voluntary, knowing, and intelligent waiver of his right to an attorney or his right to remain silent. Nevertheless, Mr. Samuels subsequently spoke with Detective Ellison in detail regarding the incident that ultimately lead to his arrest. On June 2, 2016, Mr. Samuels appeared before the court by video from the Jasper County Jail, without counsel, and was informed that his bond had been set at $20,000 cash. Without
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counsel, Mr. Samuels was unable to advocate effectively for a reduction in his bond or address the Miranda violation that occurred. Since he was unable to afford bond, Mr. Samuels has remained in pretrial detention since his arrest more than a nine months ago at the date of Plaintiffs’ filing.
Mr. Samuels’ case was initially assigned to Assistant Public Defender Craig Lowe, who entered his appearance in the case on June 8, 2016, and was scheduled to represent Mr. Samuels at his subsequent preliminary hearing on June 15, 2016. Prior to the June 15 court proceeding, Mr. Lowe visited Mr. Samuels at the Jasper County Jail and met with him for approximately 10 minutes to discuss the hearing set for later that day. Ultimately, the preliminary hearing was rescheduled for the following week. Between June 8, 2016, when Mr. Lowe filed his notice of appearance, and June 22, 2016, Mr. Samuels’ attorney did not engage in any investigation and failed to file any pretrial motions—including any motion for bond reduction or motion for discovery—and spoke with Mr. Samuels privately on just one occasion, during his visit to the jail on June 15, 2016.
On June 22, 2016, Mr. Lowe withdrew from the case at the request of Mr. Samuels, who expressed frustration about his inability to communicate in any meaningful way with Mr. Lowe, as well as his lawyer’s failure to begin investigating the case. The court granted Mr. Lowe’s request to withdraw and continued the proceedings to the following week.
Mr. Samuels was subsequently assigned a new public defender, J.D. Hatcher, who he met for the first time in court on June 29, 2016, shortly before his preliminary hearing was scheduled to begin. Because Mr. Hatcher had not had time to meet with Mr. Samuels, or otherwise prepare, in advance of the hearing, he sought a continuance from the court. That request was denied, however, and the hearing went forward.
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During the hearing, the State called just two witnesses to testify against him: the alleged victim and Detective Ellison. Mr. Hatcher failed to question Detective Ellison regarding the nature, scope, and propriety of the interview at the jail. Following the testimony, the court found probable cause to proceed with felony charges against Mr. Samuels and bound his case over to circuit court.
On August 1, 2016, Mr. Samuels appeared by video and was re-arraigned—this time with his public defender, Mr. Hatcher, present in the courtroom. He was unable to meet with Mr. Samuels at any point between his preliminary hearing and re-arraignment and Mr. Hatcher was unprepared to advocate for any bond reduction on his client’s behalf.
Since he first met Mr. Hatcher on June 29, 2016, Mr. Samuels saw Mr. Hatcher on only four occasions, all of which were immediately following pretrial court proceedings. None of those meetings lasted more than a few minutes. On at least three of those occasions, Mr. Hatcher appeared before the court alone and requested a continuance, while Mr. Samuels remained in a holding cell near the courtroom. Mr. Hatcher did not meet with Mr. Samuels prior to any of these hearings to discuss his plan for the hearing or request Mr. Samuels’s permission to seek a continuance. In his most recent motion for continuance, dated January 6, 2017, less than a week before Mr. Samuels’ scheduled trial date, Mr. Hatcher stated that, since he began representing Mr. Samuels on June 29, 2016, “the number and effectiveness of attorney-client communications has been limited for multiple reasons that are outside of Mr. Samuels’ control.”
Mr. Hatcher recently resigned from the public defender’s office and now works as a prosecutor in Jasper County. On March 1, 2017, Mr. Samuels was appointed another public defender, Richard King, the third attorney assigned to his case since his arrest in May 2016. On or about March 6, 2017, Mr. King visited Mr. Samuels in jail and presented Mr. Samuels with a
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letter stating that he would be unable to represent Mr. Samuels due to his overwhelming workload, which includes more than 200 cases. Mr. King indicated that his workload would make it impossible for him to investigate adequately or otherwise prepare the case. As of the filing of this petition, however, Mr. King remains the attorney of record on Mr. Samuels’ case. At the time of Plaintiffs’ filing, Mr. Samuels was currently scheduled for trial on June 1, 2017.
4. Viola Bowman Plaintiff Viola Bowman was arrested on or about January 6, 2015 in Clay County and charged with first-degree murder and armed criminal action for killing her husband. Ms. Bowman has maintained her innocence since her arrest. On January 15, 2015, Ms. Bowman appeared before the court for her arraignment, without counsel. Her bond had been set at $1,000,000 and, unrepresented, Ms. Bowman was unable to advocate for a reduction in her bond amount. Ms. Bowman has remained in jail since her arrest over two years ago. A week after her arraignment, on January 22, 2015, Ms. Bowman appeared before the court again, this time with a public defender, and was re-arraigned. The public defender who represented Ms. Bowman at this proceeding, however, did not continue her representation of Ms. Bowman beyond this hearing and did not do any substantive work on the case at that stage, including any investigation or motion practice. On January 28, 2015, Ms. Bowman’s current attorney, Anthony Cardarella, entered his appearance in the case. Mr. Cardarella is the District Defender for MSPD’s District 7 office, which includes Clay County. Despite his responsibilities as District Defender, Mr. Cardarella took Ms. Bowman’s case because none of the public defenders in his office with sufficient experience to handle a first-degree murder case had any more time to devote to the case than did
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Mr. Cardarella. Mr. Cardarella met with Ms. Bowman for the first time the same week as her next
hearing, which was on February 19, 2015, more than one month after her arrest. The meeting lasted approximately ten minutes. Since taking over the case, other responsibilities, including other cases, have prevented Mr. Cardarella from remaining in consistent contact with Ms. Bowman. Over the course of Ms. Bowman’s pretrial detention, she has met with her attorney an average of once every two months for approximately 10-15 minutes per meeting. Since January 2015, the public defender’s office has asked the court to continue Ms. Bowman’s case on at least 10 occasions, and to continue the scheduled trial date twice.
Ms. Bowman’s trial was first set for June 20, 2016. On May 11, 2016, pursuant to Mr. Cardarella’s request, the trial was continued to January 23, 2017. The continuance was requested in large part due to Mr. Cardarella’s other administrative and managerial job responsibilities. On September 29, 2016, the trial was again continued at Mr. Cardarella’s request to June 5, 2017. At the time of Plaintiffs’ filing, Ms. Bowman has been incarcerated in the Clay County jail for over 800 days pretrial.
5. Brian Richman Plaintiff Brian Richman has been incarcerated at the Christian County Detention Center since his arrest on or about June 26, 2016, on a series of felony drug charges exposing him to many years in prison. Mr. Richman’s bond was set at over $100,000. Because he was unable to afford bond, Mr. Richman has remained in pretrial detention since his arrest more than eight months ago as of the date of Plaintiffs’ filing. Mr. Richman’s public defender has never visited him at the Christian County Detention Center. There is not even a room for MSPD public defenders to conduct attorney-client visits at
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the Christian County Detention Center. Rather, the jail’s general practice is to shackle defendants to a rail in a public area and allow attorneys to briefly stand and talk with clients there, surrounded by jail officials and other detainees. Christian County’s public defenders have not attempted to challenge the jail’s policy or arrange for an alternative venue.
The first time Mr. Richman saw his assigned public defender was in court, on or about June 28, 2016, when his attorney waived Mr. Richman’s preliminary hearing without meaningfully consulting with Mr. Richman. To date, no preliminary hearing has been held in Mr. Richman’s Christian County cases, and no indictment has been delivered by a grand jury to support the charges against Mr. Richman.
Since July 14, 2016, Mr. Richman has only seen his attorney on a handful of occasions. These visits have always occurred at the courthouse, involved rushed conversations, and transpired in a public courtroom where other persons were present and confidentiality was not assured. On some occasions, hearings in Mr. Richman’s case have occurred in front of the judge without Mr. Richman present. Mr. Richman’s public defender unilaterally waived Mr. Richman’s constitutional right to appear on his own behalf at those hearings and participated in them without obtaining Mr. Richman’s consent to do so.
Mr. Richman has found it to be nearly impossible to get in contact with his public defender. Given his inability to communicate consistently and confidentially with his attorney, as well as the fact that his public defender has neither conducted any meaningful investigation on his case nor filed critical motions on his behalf, Mr. Richman has felt the need over the last several months to write letters to the judge presiding over his case. He has done so both to advocate for himself in the context of his cases and to make the court aware of the conditions at the Christian County Detention Center.
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C. Plaintiffs’ Claims for Relief

Plaintiffs seek prospective relief on behalf of themselves and “on behalf of all indigent

persons who are now, or who will be during the pendency of this litigation, under formal charge

before a state court in Missouri of having committed any offense, the penalty for which includes

the possibility of confinement, incarceration, imprisonment, or detention (regardless of whether

actually imposed), and who are eligible to be represented by” the MSPD.

Plaintiffs’ Class Action Petition for Injunctive and Declaratory Relief, [Doc. 1-2],

includes five claims for relief, as follows: (I) Violation of the Sixth and Fourteenth Amendments

to the U.S. Constitution; (II) Violation of Article 1, Section 18(a) of the Missouri Constitution;

(III) Violation of the Fifth and Fourteenth Amendments to the United States Constitution; (IV)

Violation of Article 1, Section 10 of the Missouri Constitution; and (V) Violation of Missouri

Criminal and Juvenile Codes. As relevant to this Motion,3 Plaintiffs ask this Court to: “Declare that Defendants are

obligated to provide constitutionally adequate representation to indigent criminal defendants and

juvenile respondents, including at their initial appearances;” “Declare that the constitutional and

statutory rights of Missouri’s indigent criminal defendants and juvenile respondents are currently

being violated by Defendants on an ongoing basis;” “Enjoin Defendants from continuing to

violate the rights of indigent defendants by providing constitutionally deficient representation;”

and “Enter an injunction that requires Defendants to propose and implement, subject to this

Court’s approval and monitoring, a plan to ensure that all indigent criminal defendants and

juvenile respondents in the State of Missouri are provided with constitutionally adequate legal

representation.” [Doc. 1-2, p. 52].

On July 5, 2017, the Court held oral argument on Defendants’ Motions. The certified

3

Plaintiffs also seek class certification. [Doc. 52]. That motion is currently pending.

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transcript is in the record, [Doc. 64].
II. Discussion Defendants move to dismiss under Fed. R. Civ. Pro. 12(b)(1) for lack of subject matter
jurisdiction and under Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim upon which relief can be granted. Federal courts consider motions to dismiss for failure to state a claim and for lack of subject matter jurisdiction under the same standard. Vankempen v. McDonnell Douglas Corp., 923 F. Supp. 146 (E.D. Mo. 1996). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A complaint must do more than allege labels and conclusions or a formulaic recitation of the elements of a cause of action.” Zink, 783 F.3d at 1098 (quotations omitted).
A. Defendants’ Motion to Dismiss under 12(b)(1) Defendants moves to dismiss under Fed. R. Civ. Pro. 12(b)(1) for lack of subject matter jurisdiction. Defendants argue three distinguishable bases for the motion: (1) the doctrine of sovereign immunity bar all claims against the State of Missouri and Governor Greitens; (2) Plaintiffs’ claims are not justiciable because it is speculative whether they will sustain future cognizable injuries; and (3) Plaintiffs lack standing to bring their claims because relief against Defendants would not redress their alleged injuries. [Doc. 19].
1. Sovereign Immunity Sovereign immunity bars actions against a state or its agencies unless the state waives its immunity, or it is abrogated by Congress. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). Both Parties distinguish between claims against Missouri and those against Gov.
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Greitens in his official capacity. The State of Missouri can only be sued if it or Congress has abrogated sovereign immunity for claims of this nature. Conversely, exceptions may apply that allow a suit to proceed against state officials—including Gov. Greitens—even in the absence of abrogation.
a. Missouri “[A]n unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (internal quotation omitted). The U.S. Supreme Court has adopted a strict standard to evaluate claims that Congress or a respective state has abrogated sovereign immunity. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990). “The Court will give effect to a State’s waiver of . . . immunity only where stated by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction.” Id. Missouri argues it has not consented to Plaintiffs’ suit. [Doc. 19, pp. 1–3]. If sovereign immunity would have barred claims against the State in state court, then the State may still invoke it in federal court after removal. See, e.g., Bergemann v. Rhode Island Dep’t of Envt’l Mgmt., 665 F.3d 336, 342 (1st Cir. 2011); Stewart v. North Carolina, 393 F.3d 484, 489-90 (4th Cir. 2005). Conversely, if a State has waived its immunity for state-law claims in state court, it ordinarily cannot invoke immunity against those claims after removing the case to federal court. Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002). Plaintiffs contend the claims would not be barred against Missouri in state court. In 1977, the Missouri Supreme Court prospectively abrogated the common law doctrine of sovereign immunity for tort actions. Jones v. State Highway Comm’n, 557 S.W.2d 225 (Mo. banc 1977).
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In response, the Missouri Legislature enacted Mo. Rev. Stat. §§ 537.600–.650 (1978), which reinstated portions of the doctrine. The issue here is whether, considering Jones and Mo. Rev. Stat. § 537.600, Missouri has abrogated sovereign immunity for equitable relief. Defendants maintain Mo. Rev. Stat. § 537.600 applies only to claims for damages and does not affect common law sovereign immunity, which Missouri argues bars claims even for injunctive relief. Plaintiffs contend “Missouri has no sovereign immunity under state law for claims seeking equitable relief, rather than damages.” [Doc. 44, pp. 2–3].4
Plaintiffs primarily rely on Wyman v. Mo. Dep’t of Mental Health, 376 S.W.3d 16, 23-24 (Mo. Ct. App. 2012). In Wyman, state employees filed suit in Missouri state court against the Missouri Department of Mental Health and one state official alleging that the defendants retaliated against the plaintiffs for exercising their rights under Missouri’s Workers’ Compensation Law. The court found that plaintiffs’ claims for damages were barred, but concluded “that sovereign immunity does not necessarily bar a claim for injunctive relief which seeks to reverse a state agency’s prior violation of its statutory obligations, or to prevent future violations.” Id.
Defendants argue Wyman is inapplicable because “[t]he sole basis on which the [defendant] moved for dismissal of the injunction claim was the sovereign immunity recognized in § 537.600.” [Doc. 49, p. 5] (citing Wyman, 376 S.W.3d at 23). Defendants contend Wyman does not support Plaintiffs’ argument that Missouri abrogated sovereign immunity from suits

4

As Plaintiffs note, “many other jurisdictions hold that sovereign immunity does not apply when

constitutional violations are alleged, as a contrary rule would render constitutional rights meaningless.”

Tucker v. State, 394 P.3d 54, 61 (Idaho 2017) (citing Columbia Air Servs., Inc. v. Conn. Dep’t of Transp.,

293 Conn. 342, 977 A.2d 636, 645 (2009); Fla. Dep’t of Revenue v. Kuhnlein, 646 So.2d 717, 721 (Fla.

1994); Corum v. Univ. of N.C. Through Bd. of Governors, 330 N.C. 761, 413 S.E.2d 276, 292 (1992);

Ashton v. Brown, 339 Md. 70, 660 A.2d 447, 463 (Md. Ct. App. 1995); Kilgo v. Ga. Dep’t of Corrs., 202

Ga.App. 50, 413 S.E.2d 507, 508 (1991)). To the Court’s knowledge, Missouri has not adopted such a

policy.

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seeking equitable relief generally, but rather recognized the legislature’s abrogation only within the narrow context of Mo. Rev. Stat. § 537.600. Id.
During oral argument, Defendants argued Mo. Rev. Stat. § 537.600 “doesn’t define the metes and bounds of Missouri’s sovereign immunity doctrine,” which “was established at common law.” [Doc. 64, p. 9]. Defendants contend that, when the legislature enacted § 537.600, it “overrule[d], basically, the [Missouri] Supreme Court . . . it only overruled what the court had done, and the only thing the court had done was to abrogate sovereign immunity with respect to tort damages, but it didn’t abrogate any other sovereign immunity that existed at common law. And since immunity from suit for injunctive relief did exist at common law, it continues to exist today.” Id. at 11.
However, as Plaintiffs argue, Missouri “made the same arguments to the Missouri Court of Appeals in Wyman, and the Wyman court correctly rejected them.” Id. at 26. There, as here, Missouri argued that a claim for injunctive relief “is contrary to the fundamental principle of sovereign immunity and the State’s right to determine what types of lawsuits may be brought against the State. Fundamentally, sovereign immunity concerns the State’s ability to consent or refuse to consent to sue or be sued.” Brief for Appellee-Respondant, Wyman v. Mo. Dep’t of Mental Health, No. WD74062, 2011 MO App. Ct. Briefs (Dec. 27, 2011) [Doc. 44-3, p. 19]. Nevertheless, the Missouri Court of Appeals explained that as long as the State violates some “duty and obligation,” a plaintiff may seek equitable relief against the State, “even though the State may not be subject to the ‘civil action for damages.’” Wyman, 376 S.W.3d at 24.
Defendants also argue that, under Carson v. Sullivan, 223 S.W. 571 (Mo. banc 1920), the State itself cannot be enjoined. [Doc. 49, p. 6]; [Doc. 64, pp. 9]. However, the defendants in Carson were Missouri state officers, not the state itself, and the Missouri Supreme Court upheld
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the availability of an injunction against them. Thus, as Plaintiffs argue, “the Carson court never [directly] addressed the scope of the State’s sovereign immunity. The only case that does is Wyman, and Wyman holds there is no sovereign immunity.” [Doc. 64, p. 26].
Defendants also cite to State ex rel. Kansas City Symphony v. State, 311 S.W.3d 272 (Mo. App. W.D. 2010) and Goines v. Department of Social Services, 364 S.W.3d 684 (Mo. App. W.D. 2012) for support. However, in Kansas City Symphony, the plaintiffs sought a declaration that the State is required, pursuant to Mo. Rev. Stat. § 143.183.5, to provide tax revenue funding and sought orders compelling the State and the Legislature to comply with the statute. Although the court found that a declaratory judgment was barred by sovereign immunity, it did so by analyzing § 143.183.5, which has no applicability here. Goines is likewise distinguishable; there, the suit was brought under Mo. Rev. Stat. § 207.020, which relates to the Missouri Family Support and Children’s Divisions. The court there found that sovereign immunity had been waived by statute.
Conversely, Plaintiffs cite cases in which the Missouri Supreme Court upheld injunctions against the State itself. [Doc. 64, p. 27] (citing Weinschenk v. State, 203 S.W.3d 201, 205 (Mo. 2006) (affirming the trial court’s judgment enjoining enforcement of a voter–ID requirement); Brooks v. State, 128 S.W.3d 844, 847 (Mo. 2004), as modified on denial of reh’g (Mar. 30, 2004) (entering judgment enjoining the state of Missouri from enforcing a conceal-carry law because it constituted “an unfunded mandate” in certain counties).
Under Missouri law, the State is not entitled to sovereign immunity in this suit. b. Gov. Greitens
Although the State cannot be sued without its consent, “the failure of officials to perform a duty [is not an act] of the state and proceedings seeking injunctive or other proper relief under
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appropriate facts are considered not to be suits against the state within the principles of the immunity of the sovereign from suit.” Kleban v. Morris, 363 Mo. 7, 16, 247 S.W.2d 832, 837 (1952). The doctrine of sovereign immunity “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; see also Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 960 (8th Cir. 2015). Because Plaintiffs have sued Governor Greitens only for injunctive and declaratory relief, whether sovereign immunity bars their claims depends on whether the Governor has a sufficient “connection with” the challenged conduct to bring him within Ex Parte Young. Defendants argue “Governor Greitens lacks a sufficient connection to the challenged conduct,” [Doc. 19, p. 5], and thus contend sovereign immunity bars claims against him.
To state a sufficient connection, the official “does not need to be primary authority to enforce the challenged law,” and the official need not “have the full power to redress a plaintiff’s injury in order to have ‘some connection’ with the challenged law.” 281 Care Comm. v. Arneson,
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638 F.3d 621, 632-33 (8th Cir. 2011). Where the law involved is an affirmative constitutional obligation of the State itself, a state official is a proper defendant under Ex parte Young if he has a responsibility to “give[] effect” to the obligation. L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992).
In Luckey v. Harris, the Eleventh Circuit allowed indigent defendants bringing a Sixth Amendment claim to sue the governor of Georgia for prospective equitable relief. 860 F.2d 1012, 1016 (11th Cir. 1988). The Eleventh Circuit held that the governor was a proper defendant because “[a]ccording to the Georgia constitution, the governor is responsible for law enforcement in that state and is charged with executing the laws faithfully,” “has the residual power to commence criminal prosecutions,” and “has the final authority to direct the Attorney General to ‘institute and prosecute’ on behalf of the state.” Id. at 1016 (citations omitted).
Defendants cite a number of cases to support the argument that Governor Greitens does not have a sufficient connection to the MSPD system to fall within Ex Parte Young. Each case is easily distinguishable. In McCoy v. Carter-Jones Timber Co., 352 F. App’x 119 (8th Cir. 2009), the appellants sought redress from decisions from the Arkansas judicial branch; the Governor could not effect the injunctive relief requested because he had no power to direct the courts to reverse their decisions or hold them in abeyance. In Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001), the challenged statute made abortion providers liable to patients in tort for any damage occasioned by abortions. The Fifth Circuit found that the Governor had no enforcement mechanism for this statute, which did not implicate a public duty undertaken on behalf of the statute, but a private right of action in tort. In Gras v. Stevens, 415 F. Supp. 1148, 1151-52 (S.D.N.Y. 1976), the court found Ex Parte Young inapplicable because “[t]he Attorney General has no interest in the outcome of a divorce suit and no duty to enforce any order made in it.”
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(emphasis added). Although D.G. ex rel. Stricklin v. Henry, 591 F. Supp.2d 1186, 1190 (N.D. Okla. 2008), rejected the notion that the Governor could be a proper defendant “simply because he is the head of the executive branch,” that is not all that Plaintiffs allege.
Governor Greitens “is responsible for law enforcement . . . and is charged with executing the laws faithfully,” “has the residual power to commence criminal prosecutions,” and “has the final authority to direct the Attorney General to ‘institute and prosecute’ on behalf of the state.” Mo. Const. art. IV, §§1-2; Mo. Rev. Stat. § 27.030. Governor Greitens’s predecessor, Governor Nixon, affirmatively used his executive authority to withhold roughly $7 million in funding allocated by the Missouri Legislature to the MSPD, thereby demonstrating an even more direct “connection” to the challenged conduct. [Doc. 1-2, ¶¶ 42-43]. Governor Greitens has since upheld Governor Nixon’s withholding of funds allocated to the MSPD. Id. ¶ 44; [Doc. 17 ¶ 45]. Finally, the Governor appoints all seven members of the MSPD Commission. See Mo. Rev. Stat. § 600.015(1); Eu, 979 F.2d at 704 (holding California governor’s power to appoint judges was a sufficient “connection” to the challenged statute limiting the number of judges in Los Angeles County).
Plaintiffs have alleged a sufficient connection regarding Gov. Greitens to place him squarely within Ex Parte Young. As a result, claims against Gov. Greitens are not barred by sovereign immunity.
2. Standing “[I]f a plaintiff lacks standing, the district court has no subject matter jurisdiction. Therefore, a standing argument implicates Rule 12(b)(1).” Faibisch v. U. of Minnesota, 304 F.3d 797, 801 (8th Cir. 2002) (internal citation omitted). The party invoking federal jurisdiction bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
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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).
The determination of whether a particular plaintiff has standing is a two-part inquiry involving constitutional and prudential standing considerations. First, to demonstrate Article III 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)). Second, in order to meet the prudential limitations on standing, a plaintiff must ordinarily “assert his own legal interests rather than those of third parties.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979).
Defendants argue Plaintiffs do not face an actual and imminent threat of sustaining a concrete and particularized injury in fact and that relief against defendants would not redress any plaintiffs’ alleged injuries.
a. Injury-in-fact To obtain the prospective relief sought, Plaintiffs must demonstrate that they are “likely to suffer future injury from” the conduct that he seeks to have enjoined or declared unlawful. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). The U.S. Supreme Court has “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and that ‘allegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
i. Plaintiff Church
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Defendants first argue Plaintiff Church—who ultimately pled guilty to the charges brought against him—lacks standing because he does not face any pending criminal prosecution and is no longer subject to any ongoing deprivation of the right to effective counsel. [Doc. 19, p. 7]. Plaintiff Church states he has standing because he “seeks to vindicate his right to counsel at any future proceeding seeking to revoke his probation and impose his suspended six-month sentence.” [Doc. 44, p. 18].
Any allegations surrounding Church’s prosecution and plea cannot provide injury-in-fact standing for the prospective relief sought. See O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . .”); Adarand Constrs., Inc. v. Pena, 515 U.S. 200, 210-11 (1995) (“[T]he fact of past injury . . . does nothing to establish a real and immediate threat that [the plaintiff] would again suffer similar injury in the future.”) (quotation omitted). Likewise, the Court cannot presume Mr. Church will face another prosecution in the future. See Murphy v. Hunt, 455 U.S. 478, 482-83 (1982).
Plaintiffs distinguish Murphy from Mr. Church’s factual allegations. In Murphy, the U.S. Supreme Court found that the petitioner’s controversy over pretrial bail was moot once he was convicted. In analyzing whether the case was “capable of repetition but evading review,” the Supreme Court noted:
All we know from the record is that Hunt has been convicted on three separate offenses and that his counsel was willing to stipulate that, for the purposes of Hunt’s eligibility for bail, the proof of guilt was evident and the presumption great. Based on these two facts, we cannot say that there exists a “reasonable expectation” or “demonstrated probability” that Hunt will ever again be in this position. There is no reason to expect that all three of Hunt’s convictions will be overturned on appeal. Id. at 483. In this case, “[t]he conditions of Mr. Church’s probation prohibit him from drinking
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alcohol or associating with any person convicted of a felony or misdemeanor, and require him to pay $200 per month, in restitution, $30 per month for the privilege of being supervised on probation, and ‘court costs,’ which Mr. Church understands to include repaying a bill of $2,605.94 to cover the cost of his more than four months of pretrial detention.” [Doc. 44, p. 19] (citing [Doc. 1-2]). Thus, Plaintiffs argue “[i]n light of the trial court’s discretion to revoke Mr. Church’s probation, the draconian conditions of his probation, and Mr. Church’s inability to pay the massive fines associated with probation, Mr. Church has plausibly alleged a ‘credible threat’ of future imprisonment that is ‘sufficiently imminent’ to satisfy standing.” Id.
For support, Plaintiffs cite Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014). There, the U.S. Supreme Court noted that “[a]n allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Id. (citation omitted). However, the U.S. Supreme Court has “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and that ‘allegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (citation omitted).
In Mempa v. Rhay, 389 U.S. 128, 137 (1967), and again in Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973), the U.S. Supreme Court held that a probationer is entitled to be represented by appointed counsel at a proceeding to revoke a defendant’s probation and impose a criminal sentence. Presently, however, no such proceeding is underway and the Court cannot assume Plaintiff Church will violate the terms of his probation, even considering the payments required and his alleged inability to pay them. Plaintiffs have not cited any authority for the argument that potential or even probable probation violations are “certainly impending” to constitute injury in fact. As a result, Plaintiff Church lacks standing to bring this suit.
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ii. Plaintiffs Dalton, Samuels, Bowman, and Richman Defendants separately argue the remaining Plaintiffs lack standing despite the fact that their prosecutions are ongoing. The crux of Defendants’ argument is any Sixth Amendment claim requires a conviction to be justiciable. As a result, besides Plaintiff Church, Defendants argue Plaintiffs lack standing because they have not yet been found guilty or pled guilty. Defendants are correct that there can be no Sixth Amendment claim without prejudice. Lockhart v. Fretwell, 506 U.S. 364, 369 n.2 (1993). That does not, however, support Defendants’ repeated claim that “[a] person claiming ineffective assistance of counsel does not sustain ‘prejudice’ unless she is found guilty or pleads guilty.” [Doc. 19, p. 10]; [Doc. 49, pp. 8–9] (“As the State Defendants explained, the Sixth Amendment and its Missouri equivalent simply do not protect against harms from deficient legal representation unless a defendant has been convicted.”). That is incorrect. In fact, it is “‘well settled’ that the Sixth Amendment right to counsel is broader than the question of whether a court must retrospectively set aside a judgment due to ineffective assistance of counsel.” State ex rel. Mo. Pub. Def. Comm’n v. Waters, 370 S.W.3d 592, 607 (Mo. banc 2012). The Missouri Supreme Court noted that the right to counsel “is affirmative and prospective.” Id. Defendants seem to argue that Plaintiffs cannot plausibly allege Sixth Amendment violations and, moreover, cannot have standing to sue unless they are proven or plead guilty under the framework set out in Strickland v. Washington, 466 U.S. 668 (1984). However, Strickland authorizes relief in individual criminal cases by, inter alia, allowing courts to vacate convictions due to counsel’s ineffective assistance. The U.S. Supreme Court in Strickland was very clear about the individualized analysis it was creating. Id. at 690. “Strickland, therefore, is inapplicable when systemic deficiencies in the provision of public defense are at issue.” Tucker
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v. State, 394 P.3d 54, 62 (Idaho 2017). As the Missouri Supreme Court outlined:
[T]he Sixth Amendment right to counsel is broader than the question of whether a court must retrospectively set aside a judgment due to ineffective assistance of counsel. The constitutional right to effective counsel applies to all critical stages of the proceeding; it is a prospective right to have counsel’s advice during the proceeding and is not merely a retrospective right to have a verdict or plea set aside if one can prove that the absence of competent counsel affected the proceeding.
Waters, 370 S.W.3d at 608 (citations omitted).
As in Tucker, the issues raised in Plaintiffs’ Petition do not implicate Strickland. There,
the Idaho Supreme Court explained:
Appellants alleged systemic, statewide deficiencies plaguing Idaho’s public defense system. Appellants seek to vindicate their fundamental right to constitutionally adequate public defense at the State’s expense, as required under the Sixth Amendment to the U.S. Constitution, and Article I, Section 13 of the Idaho Constitution. They have not asked for any relief in their individual criminal cases. Rather, they seek to effect systemic reform. Their allegations find support in both Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799, 803–04 (1963), and State v. Montroy, 37 Idaho 684, 690, 217 P. 611, 614 (1923), which make clear that it is the State’s obligation to provide constitutionally adequate public defense at critical stages of the prosecution. Alleging systemic inadequacies in a public defense system results in actual or constructive denials of counsel at critical stages of the prosecution suffices to show an injury in fact to establish standing in a suit for deprivation of constitutional rights.
Tucker, 394 P.3d at 62–63. The Supreme Court of Pennsylvania also confronted this
issue and found:
The question that we confront today is whether a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office. Pursuant to Gideon and its progeny, and because remedies for Sixth Amendment violations need not await conviction and sentencing, we hold that such a cause of action exists, so long as the class action plaintiffs demonstrate ‘the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.’
Kuren v. Luzerne Cty., 146 A.3d 715, 718 (Pa. 2016) (quoting O'Shea v. Littleton, 414 U.S. 488,
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502 (1974). See also Hurrell-Harring v. State, 930 N.E.2d 217, 227 (N.Y. 2010) (“We have consistently held that enforcement of a clear constitutional or statutory mandate is the proper work of the courts, and it would be odd if we made an exception in the case of a mandate as well-established and as essential to our institutional integrity as the one requiring the State to provide legal representation to indigent criminal defendants at all critical stages of the proceedings against them.”) (internal citations omitted).
In Hurrell-Harring, the U.S. Department of Justice filed a statement of interest pursuant to 28 U.S.C. § 517. U.S. Statement of Interest, Case No. 8866-07. The United States explained the cognizable obstacles to indigent defense outside of the Strickland context:
Substantial structural limitations force even otherwise competent and wellintentioned public defenders into a position where they are, in effect, a lawyer in name only. Such limitations essentially require counsel to represent clients without being able to fulfill their basic obligations to prepare a defense, including investigating the facts of the case, interviewing witnesses, securing discovery, engaging in motions practice, identifying experts when necessary, and subjecting the evidence to adversarial testing. Id. at 11–12. Collecting cases, the United States noted that “[t]he absence of traditional markers of representation has led courts to find non-representation in violation of the Sixth Amendment.” Id. at 13 (citing Wilbur v. City of Mount Vernon, 989 F.Supp.2d 1122, 1137 (W.D. Wash. 2013); United States v. Cronic, 466 U.S. 648 (1984); Avery v. Alabama, 308 U.S. 444, 446 (1940); Pub. Defender v. State, 115 So. 3d 261 (Fla. 2013); State v. Citizen, 898 So. 2d 325 (La. 2005); State v. Peart, 621 So. 2d 780 (La. 1993)). In addition to the allegations of systemic constitutional inadequacy addressed by the Tucker, Kuren, and Hurrell-Harring courts, Plaintiffs Dalton, Samuels, Bowman, and Richman set forth two specific arguments regarding their respective injuries, either of which would be sufficient to satisfy the injury-in-fact prong of Article III standing. First, “Plaintiffs allege that
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they have waited longer than necessary for acquittal or trial, resulting in increased anxiety, the collateral consequences that attend the pendency of a criminal case, and—the paradigmatic Article III injury—loss of liberty in the form of prolonged pretrial detention.” [Doc. 44, p. 10] (citing Barker v. Wingo, 407 U.S. 514, 532-33 (1972) (detailing injuries caused by pretrial delay)). Second, “Plaintiffs have alleged that, due to deficient counsel, they are unable to ‘compete on an equal footing’ in the criminal process, regardless of whether they in fact lose at trial.” [Doc. 44, p. 11] (citing Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993)).
Therefore, Plaintiffs Dalton, Samuels, Bowman, and Richman have satisfied the injuryin-fact prong of the Court’s standing inquiry.
b. Redressability To establish standing, a plaintiff must also demonstrate that his or her “injury will likely be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997). Defendants contend “Plaintiffs also lack standing to assert any of their claims, because relief against Defendants would not redress their alleged injuries.” [Doc. 19, p. 13]. Specifically, “individual Defendants in this case lack legal authority to unilaterally increase the funding available to the public-defender system without the concurrence of the Missouri General Assembly.” Id. Plaintiffs “need not show that a favorable decision will ‘ensure’ redress; it is enough that a decision is likely to result in redress.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Plaintiffs argue “the Governor himself can, without the participation of the legislature, rectify or exacerbate some portion of Plaintiffs’ constitutional deprivation.” [Doc. 44, p. 20]. Governor Greitens and his predecessor each withheld funds appropriated by the legislature for the MSPD. Although Defendants concede the Court could enjoin the Governor from withholding
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any funds—contingent on Defendants’ legislative immunity arguments addressed below— Plaintiffs plead “it would take an additional $20 million or more per year for MSPD to meet the constitutional floor of providing minimally adequate representation to indigent defendants.” [Doc. 1-2 § 46]. Therefore, even if the Court issued an injunction prohibiting the Governor from withholding funds, Defendants argue the Court could not mandate an “additional $20 million or more per year” which Plaintiffs’ cite as the funding required. [Doc. 49, p. 11].
However, Plaintiffs do not ask the Court to order Governor Greitens to affirmatively introduce legislation or grant specific funding requests. Plaintiffs ask this Court to: “Declare that Defendants are obligated to provide constitutionally adequate representation to indigent criminal defendants and juvenile respondents, including at their initial appearances;” “Declare that the constitutional and statutory rights of Missouri’s indigent criminal defendants and juvenile respondents are currently being violated by Defendants on an ongoing basis;” “Enjoin Defendants from continuing to violate the rights of indigent defendants by providing constitutionally deficient representation;” and “Enter an injunction that requires Defendants to propose and implement, subject to this Court’s approval and monitoring, a plan to ensure that all indigent criminal defendants and juvenile respondents in the State of Missouri are provided with constitutionally adequate legal representation.” [Doc. 1-2, p. 52]. Such declarations and injunctions may have a “substantial ancillary effect on the state treasury,” but that does not prohibit the Court from granting Plaintiffs’ requested relief. Randolf v. Rogers, 253 F.3d 342, 348 (8th Cir. 2001).
Nothing in Plaintiffs’ Petition requests the Court enter an injunction forcing the Governor to direct specific funds, but rather asks the Court to “[e]nter an injunction that requires Defendants to propose and implement, subject to this Court’s approval and monitoring, a plan to
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ensure that all indigent criminal defendants and juvenile respondents in the State of Missouri are provided with constitutionally adequate legal representation.” [Doc. 1-2, p. 52]. Such an injunction is likely to redress Plaintiffs’ claims and Plaintiffs Dalton, Samuels, Bowman, and Richman have standing to sue.
B. Defendants’ Motion under Rule 12(b)(6) Defendants also move to dismiss Plaintiffs’ Petition under Fed. R. Civ. Pro. 12(b)(6), arguing (1) absolute legislative immunity bars all claims against Gov. Greitens; (2) Plaintiffs have adequate alternative legal remedies; (3) Plaintiffs have failed to state a plausible constitutional claim for relief against Gov. Greitens because Plaintiffs have failed to establish that Gov. Greitens is causally linked to or directly responsible for any alleged constitutional violations; (4) that Plaintiffs’ claims brought under various Mo. Rev. Stat. provisions fail to state a claim against Missouri or Gov. Greitens; and (5) that Heck v. Humphrey bars all claims brought by Plaintiff Church. Finding Plaintiff Church lacks standing to bring his claims, the Court will address Defendants’ remaining arguments.
1. Legislative Immunity Absolute legislative immunity bars all claims against a governmental actor based on his or her “legislative activities.” See Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998); Young v. Mercer Cnty. Comm’n, 849 F.3d 728, 733-34 (8th Cir. 2017). The absolute immunity applies both to claims for damages and to those for prospective relief. Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33 (1980). In Bogan, the U.S. Supreme Court held that city council members were entitled to absolute immunity from § 1983 liability for “actions taken in the sphere of legitimate legislative activity.” 523 U.S. at 53–54. The Bogan Court found that the council’s action in eliminating
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certain services was legislative in substance because their action “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents.” Id. at 55–56. This absolute legislative immunity does not apply only to legislators; the Supreme Court acknowledged that executive branch officials are entitled to legislative immunity when they perform legislative functions such as making discretionary policy decisions that implicate budgetary priorities. Id. at 55–56.
Whether an act is legislative turns on the “nature of the act.” Bogan, 523 U.S. at 54–55. Legislative immunity protects acts “integral” to the legislative process, which Plaintiffs argue covers only “‘formally legislative’ acts like introducing, signing, vetoing legislation, and the like.” [Doc. 44, p. 8] (citing Bogan, 523 U.S. at 54–55). Plaintiffs state that the challenged actions taken by the Governor are actions taken “in what he himself has argued is his executive capacity,” thus arguing legislative immunity is inapplicable to this case.
One of the actions Plaintiffs challenge is the Governor’s decision to direct his executive branch’s Office of Administration to withhold money already allocated to the MSPD by legislation. Plaintiffs contend that the withholding of allocated funds is not a “legislative” act, but an executive act. [Doc. 44, p. 9] (citing [Doc. 1-2, ¶ 16]; Barrett v. Nixon, No. 16ACCC00290 (Mo. Cir. Ct. July 13, 2016), Rothert Decl. Ex. 3).
When MSPD sued Governor Nixon in 2016 for withholding funds that had been allocated by the Missouri legislature, Plaintiffs contend the Governor contended that his authority to withhold funding were executive powers. [Doc. 44, p. 9] (citing Def.’s Renewed Motion to Dismiss at 9-10, Barrett v. Nixon, No. 16AC-CC00290 (Mo. Cir. Ct. Oct. 13, 2016), Rothert Decl. Ex. 5). Plaintiffs argue that, because Governor Nixon argued his authority was an executive function, “Judicial estoppel precludes the Governor from now arguing a contrary
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position to this Court.” [Doc. 44, p. 9]. See New Hampshire v. Maine, 532 U.S. 742, 749-51 (2001); Shockley v. Dir., Div. of Child Support Enf’t, 980 S.W.2d 173, 175 (Mo. Ct. App. 1998). Plaintiffs noted “that case is on appeal in Missouri Court of Appeals, and the Attorney General’s Office is still defending that decision on behalf of Governor Greitens, who is substituted now as the appropriate party in that case. So [counsel’s] understanding is . . . that Governor Greitens has not disclaimed Governor Nixon’s position in that case.” [Doc. 64, p. 23].
Defendants argue this position is not inconsistent and that Plaintiffs mischaracterize the Governor’s position: “In Barrett, the former Governor did not argue that withholding funds is an executive function. Rather, [he] argued that his authority to withhold funds could not violate the Missouri Constitution’s separation-of-powers doctrine, because the authority to withhold funds is itself expressly provided by the Constitution.” [Doc. 49, pp. 2-3].
The Court agrees; the Missouri Constitution includes a separation-of-powers provision which expressly permits the Executive Branch to exercise legislative power. MO. CONST. Art. II, § 1. Thus, the Governor’s argument that withholding funds does not violate the separation-ofpowers provision does not mean the Governor argued the function was executive. Judicial estoppel does not bar Gov. Greitens from asserting legislative immunity.
Defendants cite four cases in which legislative immunity has barred claims against governors. Three of these cases are clearly distinguishable. In Torres-Rivera v. Calderon-Serra, 412 F.3d 205, 213 (1st Cir. 2005), the Governor of Puerto Rico was entitled to legislative immunity for his act of signing a particular piece of legislation into law. Plaintiffs concede that type of act is “integral to the legislative process.” [Doc. 44, p. 8]. Here, conversely, Plaintiffs challenge withholding of funds already allocated by the legislature, and Torres-Rivera is not applicable. In Peter B. v. Sanford, No. 6:10-767, 2012 WL 2149784 (D.S.C. June 13, 2012),
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plaintiffs sued the former governor in his individual capacity only. In E.C. v. Blunt, No. 05-0726cv-W-SOW, 2006 WL 44318, at *1 (W.D. Mo. Jan. 9, 2006), the court based its decision on the Eleventh Amendment’s sovereign immunity, and noted in dicta that “a governor cannot be sued for signing a bill into law due to his absolute legislative immunity.” As a result, Blunt is also inapplicable.
However, in Abbey v. Rowland, 359 F. Supp.2d 94, 99-100 (D. Conn. 2005), former state employees, whose jobs were eliminated during budget cuts, brought action against governor of State of Connecticut. There, the court held the governor’s discretionary choice on exactly how to cut the state budget, which had an adverse impact on some employment within the agency, was a legislative function entitled to legislative immunity to suit. Thus, although it is not binding authority, Abbey supports Defendants’ argument that Gov. Greitens’ withholding of funds is a legislative function entitled to legislative immunity.
However, Plaintiffs clarified that withholding of funds pursuant to Missouri’s budgetary process is not the only challenged action under their petition for relief. Plaintiffs noted that “at this point” there is no specific request that Defendants release money from withholding. Rather, Plaintiffs “have pleaded . . . a general claim for equitable relief to remedy the ongoing violation.” Plaintiffs’ requested remedy “may include an order that the governor release or in the future not impound money allocated to the MSPD, which may be one way in which remedial reform can actually happen here, that the governor cannot interfere with an attempt to bring the State into compliance.” [Doc. 64, p. 31].
At this stage of litigation, because it is unclear what the terms of any injunction entered would include, the Court does not find that claims against Gov. Greitens are barred by legislative
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immunity. That finding is subject to change should the Plaintiffs request any remedies that would violate Gov. Greitens’ immunity from acts “integral” to the legislative process.
2. Alternative Legal Remedies Under Missouri law, any party seeking an injunction or declaratory relief must establish that she lacks an adequate remedy at law. See, e.g., Farm Bureau Town & Country Ins. Co. v. Angoff, 909 S.W.2d 348, 354 (Mo. banc 1995); Foster v. State, 352 S.W.3d 357, 359 (Mo. banc 2011). Similarly, a plaintiff seeking an injunction under § 1983 must “meet the usual requirements for injunctive relief.” Edwards v. Balisok, 520 U.S. 641, 648 (1997). One of these requirements is that a party must demonstrate that she lacks an adequate remedy at law. See, e.g., Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir. 2005) (“It is wellestablished that a party is entitled to equitable relief only if there is no adequate remedy at law.”). Defendants argue Plaintiffs have alternative remedies available, specifically in a statecourt post-conviction review (“PCR”) proceeding and, if necessary, a federal habeas corpus proceeding. [Doc. 21, pp. 3–4] (citing Mo. R. Crim. P. 29.15(a) (state PCR review); 28 U.S.C. § 2254 (federal habeas corpus review)). This argument lacks merit because—as Defendants argue elsewhere—only Plaintiff Church has plead guilty and none of the other named Plaintiffs stated an intention to plead guilty. As explained above, Strickland is not the appropriate standard in this case. Post-conviction Strickland claims do not constitute adequate remedies at law because they cannot adequately protect the entirety of the Sixth Amendment right to counsel and because they “cannot provide systemic structural relief that will help fix the problem of under-funded and under-resourced public defenders.” [Doc. 44, p. 20]. “[F]ederal courts should not interfere in state criminal court proceedings when state and federal law provide adequate legal remedies and when intervention needlessly threatens the
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principle of comity.” Smith v. Bacon, 699 F.2d 434, 437 (8th Cir. 1983) (emphasis added); accord Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988). In this case, however, neither state nor federal habeas relief provides an adequate remedy for Plaintiffs’ claims. Both Smith and Rogers involved plaintiffs bringing post-conviction claims and, in both cases, the plaintiffs had pending state post-conviction relief motions. Smith, 699 F.2d at 438; Rogers, 841 F.2d at 856.
That is not the case here, where all named Plaintiffs besides Plaintiff Church are awaiting trial. Plaintiffs in this case seek prospective relief to remedy ongoing and future violations of their right to adequate counsel, not retrospective vacatur of existing convictions. Plaintiffs argue “post-conviction relief cannot provide prospective relief, cannot provide systemic relief, cannot protect the full scope of the Sixth Amendment right, and cannot protect the Sixth Amendment rights of those whose evidence of guilt is overwhelming.” [Doc. 44, p. 21].
Because “[t]he right to counsel is the lifeblood of our system of criminal justice,” “nothing in our legal tradition or precedents requires a person seeking to vindicate that right to wait until he or she has been convicted and sentenced.” Kuren, 146 A.3d at 747. Therefore, Plaintiffs do not have adequate legal remedies at law.
3. Causation & Governor Greitens Similar but distinguishable from Defendants’ arguments surrounding redressability, Defendants contend Plaintiffs “have failed to establish that Governor Greitens is causally linked to or directly responsible for any alleged constitutional violations.” [Doc. 21, p. 5].
a. Federal Constitutional Claims Plaintiffs’ claims brought pursuant to the U.S. Constitution are brought under 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was
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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “Liability under section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006).
As noted above, Governor Greitens “is responsible for law enforcement . . . and is charged with executing the laws faithfully,” “has the residual power to commence criminal prosecutions,” and “has the final authority to direct the Attorney General to ‘institute and prosecute’ on behalf of the state.” Mo. Const. art. IV, §§1-2; Mo. Rev. Stat. § 27.030. Governor Greitens’s predecessor, Governor Nixon, affirmatively used his executive authority to withhold roughly $7 million in funding allocated by the Missouri Legislature to the MSPD, thereby demonstrating an even more direct “connection” to the challenged conduct. [Doc. 1-2, ¶¶ 42-43]. Governor Greitens has since upheld Governor Nixon’s withholding of funds allocated to the MSPD. Id. ¶ 44; [Doc. 17 ¶ 45]. Finally, the Governor appoints all seven members of the MSPD Commission. See Mo. Rev. Stat. § 600.015(1); Eu, 979 F.2d at 704 (holding California governor’s power to appoint judges was a sufficient “connection” to the challenged statute limiting the number of judges in Los Angeles County).
Plaintiffs have alleged a sufficient connection regarding Gov. Greitens to place him squarely within Ex Parte Young. For the same reasons, Plaintiffs have plausibly alleged “a causal link to, and direct responsibility for, the deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006).
b. Missouri Constitutional Claims Plaintiffs’ Second and Fourth Claims seek relief against the Governor under Missouri law. Under Missouri law, a plaintiff must bring suit against “the state official charged with the duty to enforce” the state law at issue. Midwest Freedom Coalition, LLC v. Koster, 398 S.W.3d
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23, 27 (Mo. Ct. App. 2013); see also State ex rel. Reeves v. Brady, 303 S.W.3d 22, 25 (Mo. banc 1957). Plaintiffs note that “it is Governor Greitens’s role to ensure that the State fulfills its affirmative constitutional obligations, just as the Eleventh Circuit held that it was the governor of Georgia’s role to do so in Luckey.” [Doc. 44, p. 8].
In Luckey v. Harris, the Eleventh Circuit allowed indigent defendants bringing a Sixth Amendment claim to sue the governor of Georgia for prospective equitable relief. 860 F.2d 1012, 1016 (11th Cir. 1988). The Eleventh Circuit held that the governor was a proper defendant because “[a]ccording to the Georgia constitution, the governor is responsible for law enforcement in that state and is charged with executing the laws faithfully,” “has the residual power to commence criminal prosecutions,” and “has the final authority to direct the Attorney General to ‘institute and prosecute’ on behalf of the state.” Id. at 1016 (citations omitted).
For the reasons discussed above, Plaintiffs have plausibly alleged Governor Greitens is “the state official charged with the duty to enforce” the provisions of the Missouri State Constitution dealing with indigent defense, the right to counsel, and due process. See Midwest Freedom Coalition, LLC v. Koster, 398 S.W.3d 23, 27 (Mo. Ct. App. 2013).
4. Claims brought under Missouri Criminal & Juvenile Code Provisions Plaintiffs’ Fifth Claim for Relief alleges Defendants have violated Mo. Rev. Stat. §§ 600.042, 600.048, 211.061, and 211.211, and Missouri Rule of Juvenile Procedure 126.01. [Doc. 1-2, ¶¶ 224-226.] Under Missouri law, declaratory judgments and injunctive relief constitute remedies, not independent causes of action. See Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011) (“[A]n injunction is a remedy and not a cause of action[.]”); ABB, Inc. v. Securitas Sec. Servs. USA, Inc., 390 S.W.3d 196, 203 (Mo. Ct. App. 2012) (explaining that a declaratory judgment “is but one of several remedies, not a substantive claim” (quotation
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omitted)). Thus, a request for such remedies “must be based on some recognized and pleaded legal theory.” Goerlitz, 333 S.W.3d at 455.
Section 600.042 imposes a number of duties on the director of the Public Defender’s Office (Defendant Barrett) and the public defenders who operate under him. See Mo. Rev. Stat. § 600.042. But the statute imposes no obligations on Governor Greitens. Id. Similarly, § 600.048 imposes a number of duties on public defenders, courts, and those who operate jails, police stations, constables’ offices, sheriffs’ offices, and detention facilities. See Mo. Rev. Stat. § 600.048. Again, § 600.048 imposes no duties on Governor Greitens. Id. Likewise, neither § 211.061, § 211.211, nor Missouri Rule of Juvenile Procedure 126.01 imposes any duties on Governor Greitens. Defendants thus move to dismiss these claims against Gov. Greitens. Plaintiffs concede to dismissal of Count V against Gov. Greitens. [Doc. 44, p. 7 n.4].
Plaintiffs argue Missouri is a proper defendant under the cited code provisions and oppose that portion of Defendants’ motion on Count V. Id. Defendants argue that Missouri courts “will not interpret a statute to establish a private cause of action without clear implication of the legislature’s intent to do so.” Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist., 493 S.W.3d 847, 856 (Mo. 2016). But, as Plaintiffs point out, that is true only “[w]hen the legislature has established other means of enforcing [the] statute[.]” Dierkes v. Blue Cross & Blue Shield of Mo., 991 S.W.2d 662, 667 (Mo. 1999). Defendants have pointed to no other means of enforcement here besides post-conviction relief, which the Court already found is an inadequate remedy for the alleged violations.
Plaintiffs have plausibly alleged violations of the Missouri Criminal and Juvenile codes and Defendants have not convinced the Court that the legislature has established other means of enforcing the statute. Therefore, Count V is dismissed against Governor Greitens but is not
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dismissed against the State of Missouri.

III. Conclusion For the foregoing reasons, Defendants’ Motion to Dismiss under Fed. R. Civ. P. 12(b)(1),
[Doc. 18], is granted as to Plaintiff Church and denied to all other claims. Defendants’ Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), [Doc. 20], is granted as to Count V against Governor Greitens and denied as to all other claims.

Dated: July 24, 2017 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

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Church et al v. State of Missouri et al, Docket No. 2:17-cv-04057 (W.D. Mo. Apr 07, 2017), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Western District of Missouri; United States District Court for the Western District of Missouri
Civil Rights - Other[440]
2:17-cv-04057

© 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 49

 
 CLOSED,MAPADMIN,PHV,REOPENED
U.S. District Court Western District of Missouri (Jefferson City) CIVIL DOCKET FOR CASE #: 2:17−cv−04057−NKL

Church et al v. State of Missouri et al Assigned to: District Judge Nanette K. Laughrey Demand: $0 Case in other court: Eighth Circuit, 17−02857
Circuit Court of Cole County 19th Judicial Circuit, 17AC−CC00130
Eighth Circuit, 19−02584 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/07/2017 Date Terminated: 08/04/2020 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Shondel Church TERMINATED: 07/24/2017

represented by Aaron Scherzer 51 W. 52nd Street 14th Floor New York, NY 10019 212−506−5348 Email: ascherzer@orrick.com TERMINATED: 10/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amy Elizabeth Breihan MacArthur Justice Center at St. Louis 3115 South Grand Boulevard Suite 300 St. Louis, MO 63118 314−254−8543 Fax: 314−254−8547 Email: amy.breihan@macarthurjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anjali Prasad 1000 Marsh Road Menlo Park, CA 94025 650−614−7419 Email: aprasad@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anthony E. Rothert American Civil Liberties Union of Missouri Foundation−StL 906 Olive Street Suite 1130 St. Louis, MO 63101 (314) 652−3114 Fax: (314) 652−3112 Email: trothert@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony Tartaglio Orrick, Herrington & Sutcliffe LLP 1000 Marsh Road Menlo Park, CA 94025

650−614−7400 Email: atartaglio@orrick.com TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Camille Joanne Rosca 51 West 52nd Street 14th Floor New York, NY 10019 212−506−5394 Email: crosca@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Easha Anand Orrick 405 Howard Street San Francisco, CA 94105 415−773−5837 Email: eanand@orrick.com TERMINATED: 04/30/2020 LEAD ATTORNEY PRO HAC VICE
Evan Rose Orrick, Herrington & Sutcliffe 405 Howard Street San Francisco, CA 94114 415−773−5835 Email: erose@orrick.com TERMINATED: 05/13/2020 LEAD ATTORNEY
Gillian R. Wilcox American Civil Liberties Union of Missouri Foundation−KCMO 406 W. 34th Street Suite 420 Kansas City, MO 64111 816−470−9938 Fax: 314−652−3112 Email: gwilcox@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J Maune Orrick, Herrington & Sutcliffe LLP 2050 Main Street Suite 1100 Irvine, CA 92614 949−567−7721 Email: jmaune@orrick.com TERMINATED: 03/21/2018 LEAD ATTORNEY PRO HAC VICE
Jason D. Williamson 125 Broad Street 18th Floor New York, NY 10004 (212)284−7340 Email: jwilliamson@aclu.org LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Jessie Steffan American Civil Liberties Union of Missouri Foundation−StL 906 Olive Street Suite 1130 St. Louis, MO 63101 314−652−3114 Fax: 314−652−3112 Email: jsteffan@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mae C Quinn MacArthur Justice Center at St. Louis 3115 South Grand Blvd. Suite 300 St. Louis, MO 63118 314−254−8541 Email: mae.quinn@macarthurjustice.org TERMINATED: 12/08/2017 LEAD ATTORNEY
Matthew R Shahabian Orrick, Herrington & Sutcliffe 51 W. 52nd Street New York, NY 10019 212−506−3750 Email: mshahabian@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Megan G Crane MacArthur Justice Center 3115 South Grand Ste 300 St. Louis, MO 63118 314−254−8540 Email: megan.crane@macarthurjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Sills 51 West 52nd Street New York, NY 10019−6142 212−506−5110 Email: rsills@orrick.com TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Will Melehani 405 Howard Street San Francisco, CA 94105 415−773−5577 Email: wmelehani@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kayla DeLoach 906 Olive Street

Plaintiff Randall Lee Dalton

Suite 1130 Saint Louis, MO 63101 813−802−8610 Email: kdeloach@aclu−mo.org ATTORNEY TO BE NOTICED
represented by Aaron Scherzer (See above for address) TERMINATED: 10/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amy Elizabeth Breihan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjali Prasad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Tartaglio (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Camille Joanne Rosca (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Easha Anand (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY PRO HAC VICE
Evan Rose (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY
Gillian R. Wilcox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J Maune (See above for address) TERMINATED: 03/21/2018 LEAD ATTORNEY PRO HAC VICE

Plaintiff Dorian Samuels

Jason D. Williamson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessie Steffan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mae C Quinn (See above for address) TERMINATED: 12/08/2017 LEAD ATTORNEY
Matthew R Shahabian (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Megan G Crane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Sills (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Will Melehani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Scherzer (See above for address) TERMINATED: 10/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amy Elizabeth Breihan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjali Prasad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Tartaglio (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Camille Joanne Rosca (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Easha Anand (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY PRO HAC VICE
Evan Rose (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY
Gillian R. Wilcox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J Maune (See above for address) TERMINATED: 03/21/2018 LEAD ATTORNEY PRO HAC VICE
Jason D. Williamson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessie Steffan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mae C Quinn (See above for address) TERMINATED: 12/08/2017 LEAD ATTORNEY
Matthew R Shahabian (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Megan G Crane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Sills

Plaintiff Viola Bowman

(See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Will Melehani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Scherzer (See above for address) TERMINATED: 10/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amy Elizabeth Breihan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anjali Prasad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Tartaglio (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Camille Joanne Rosca (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Easha Anand (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY PRO HAC VICE
Evan Rose (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY
Gillian R. Wilcox (See above for address)

Plaintiff Brian Richman

LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J Maune (See above for address) TERMINATED: 03/21/2018 LEAD ATTORNEY PRO HAC VICE
Jason D. Williamson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessie Steffan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mae C Quinn (See above for address) TERMINATED: 12/08/2017 LEAD ATTORNEY
Matthew R Shahabian (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Megan G Crane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Sills (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Will Melehani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Scherzer (See above for address) TERMINATED: 10/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amy Elizabeth Breihan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anjali Prasad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Tartaglio (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Camille Joanne Rosca (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Easha Anand (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY PRO HAC VICE
Evan Rose (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY
Gillian R. Wilcox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J Maune (See above for address) TERMINATED: 03/21/2018 LEAD ATTORNEY PRO HAC VICE
Jason D. Williamson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessie Steffan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mae C Quinn (See above for address) TERMINATED: 12/08/2017 LEAD ATTORNEY
Matthew R Shahabian (See above for address) LEAD ATTORNEY

V.
Defendant
State of Missouri TERMINATED: 02/26/2019

PRO HAC VICE ATTORNEY TO BE NOTICED
Megan G Crane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Sills (See above for address) TERMINATED: 05/13/2020 LEAD ATTORNEY PRO HAC VICE
Will Melehani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kayla DeLoach (See above for address) ATTORNEY TO BE NOTICED
represented by Doug Shull Missouri Department of Corrections 2729 Plaza Drive P.O. Box 236 Jefferson City, MO 65102 573−526−6505 Fax: 573−522−2636 Email: doug.shull@doc.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Moore Missouri Attorney General's Office−StL 815 Olive Street Suite 200 St. Louis, MO 63101 314−340−3447 Email: justin.moore@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Alan Ramsey Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 573−751−9167 Fax: 573−751−9456 Email: steven.ramsey@ago.mo.gov TERMINATED: 03/21/2018 LEAD ATTORNEY
Laura E. Elsbury Missouri Ethics Commission 3411A Knipp Drive P.O. Box 1370 Jefferson City, MO 65102 573−751−2020

Defendant Mike Parson TERMINATED: 02/26/2019 formerly known as Eric Greitens TERMINATED: 02/26/2019
Defendant Michael Barrett

Fax: 573−522−2226 Email: laura.elsbury@mec.mo.gov TERMINATED: 04/25/2018 ATTORNEY TO BE NOTICED
Michael D. Quinlan Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 573−751−8833 Fax: 573−751−9456 Email: michael.quinlan@ago.mo.gov TERMINATED: 12/08/2017
Dean John Sauer Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 573−751−8807 Fax: 573−751−2203 Email: john.sauer@ago.mo.gov ATTORNEY TO BE NOTICED
represented by Doug Shull (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Alan Ramsey (See above for address) TERMINATED: 03/21/2018 LEAD ATTORNEY
Laura E. Elsbury (See above for address) TERMINATED: 04/25/2018 ATTORNEY TO BE NOTICED
Michael D. Quinlan (See above for address) TERMINATED: 12/08/2017
Dean John Sauer (See above for address) ATTORNEY TO BE NOTICED
represented by George Michael Stewart Simmons Hanly Conroy − Alton One Court Street Alton, IL 62002 618−259−2222 Fax: 618−259−2251 Email: mstewart@simmonsfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacqueline Shipma

Defendant H. Riley Bock

Missouri State Public Defender−Columbia 1000 West Nifong Bldg. 7, Suite 100 Columbia, MO 65203 573−526−5212 Fax: 573−777−9975 Email: jacqueline.shipma@mspd.mo.gov TERMINATED: 10/30/2018 LEAD ATTORNEY
John Gregory Mermelstein Missouri State Public Defender−Columbia Admin and Appellate 1000 West Nifong Bldg. 7, Suite 100 Columbia, MO 65203 573−777−9977 Fax: 573−777−9974 Email: greg.mermelstein@mspd.mo.gov TERMINATED: 04/29/2020 LEAD ATTORNEY
Patrick J. Berrigan Missouri State Public Defender System Capital Litigation Division Western District 920 Main Street, Suite 500 Kansas City, MO 64105 (816) 889−7699 Fax: 816−889−2088 Email: patrick.berrigan@mspd.mo.gov TERMINATED: 04/30/2020 LEAD ATTORNEY
Richard L. Kroeger, Jr. Simmons Hanly Conroy − Alton One Court Street Alton, IL 62002 618−259−6621 Email: rkroeger@simmonsfirm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ted Gianaris Simmons Hanly Conroy − Alton One Court Street Alton, IL 62002 618−259−2222 Email: tgianaris@simmonsfirm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by George Michael Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacqueline Shipma (See above for address) TERMINATED: 10/30/2018 LEAD ATTORNEY

Defendant Charles R Jackson
Defendant Craig Chval

John Gregory Mermelstein (See above for address) TERMINATED: 04/29/2020 LEAD ATTORNEY
Patrick J. Berrigan (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY
Richard L. Kroeger, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ted Gianaris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by George Michael Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacqueline Shipma (See above for address) TERMINATED: 10/30/2018 LEAD ATTORNEY
John Gregory Mermelstein (See above for address) TERMINATED: 04/29/2020 LEAD ATTORNEY
Patrick J. Berrigan (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY
Richard L. Kroeger, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ted Gianaris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by George Michael Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacqueline Shipma (See above for address)

Defendant A. Crista Hogan
V. Intervenor Defendant Missouri Attorney General

TERMINATED: 10/30/2018 LEAD ATTORNEY
John Gregory Mermelstein (See above for address) TERMINATED: 04/29/2020 LEAD ATTORNEY
Patrick J. Berrigan (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY
Richard L. Kroeger, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ted Gianaris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by George Michael Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacqueline Shipma (See above for address) TERMINATED: 10/30/2018 LEAD ATTORNEY
John Gregory Mermelstein (See above for address) TERMINATED: 04/29/2020 LEAD ATTORNEY
Patrick J. Berrigan (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY
Richard L. Kroeger, Jr. (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ted Gianaris (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julie Marie Blake Missouri Attorney General's Office−JC

P.O. Box 899 Jefferson City, MO 65102 573−751−8807 Fax: 573−751−0774 Email: julie.blake@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cristian Matthew Stevens Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 573−751−6633 Fax: 573−751−0774 Email: cris.stevens@ago.mo.gov ATTORNEY TO BE NOTICED
Jeremiah Joseph Morgan , Sr Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 573−751−1800 Email: jeremiah.morgan@ago.mo.gov ATTORNEY TO BE NOTICED

Date Filed 04/07/2017
04/07/2017 04/07/2017 04/07/2017
04/07/2017 04/07/2017 04/07/2017 04/07/2017

# Docket Text
1 NOTICE OF REMOVAL from Cole County County, case number 17AC−CC00130, filed by Dean John Sauer on behalf of All Defendants. Filing fee $ 400, receipt number 0866−5244765. (Attachments: # 1 Exhibit Notice to Plaintiffs, # 2 Exhibit Case File 1 of 4, # 3 Exhibit Case File 2 of 4, # 4 Exhibit Case File 3 of 4, # 5 Exhibit Case File 4 of 4, # 6 Civil Cover Sheet Civil Cover Sheet, # 7 Civil Cover Sheet Civil Cover Sheet Attachment)(Sauer, Dean) (Entered: 04/07/2017)
2 NOTICE of filing to Plaintiffs of Notice of Removal by Michael Barrett, H. Riley Bock, Craig Chval, Eric Greitens, A. Crista Hogan, Charles R Jackson, State of Missouri re 1 Notice of Removal, (Attachments: # 1 Exhibit Notice of Removal)(Sauer, Dean) (Entered: 04/07/2017)
3 CERTIFICATE of counsel re 1 Notice of Removal, by Dean John Sauer on behalf of All Defendants (Attachments: # 1 Exhibit Notice to State Court of Notice of Removal)(Sauer, Dean) (Entered: 04/07/2017)
4 NOTICE OF INCLUSION FOR MEDIATION AND ASSESSMENT PROGRAM (MAP). REVIEW NOTICE AND MAP GENERAL ORDER CAREFULLY FOR IMPORTANT CHANGES, DEADLINES AND REQUIREMENTS.
Notice of MAP assignment to United States Magistrate Judge Matt J. Whitworth. (Attachments: # 1 MAP General Order)(Geiser, Angel) (Entered: 04/07/2017)
5 Consent MOTION for extension of time to file an answer or responsive motions filed by Dean John Sauer on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 4/21/2017 unless otherwise directed by the court. (Sauer, Dean) (Entered: 04/07/2017)
6 Motion to allow Robert L. Sills to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5245761) filed by Anthony E. Rothert on behalf of All Plaintiffs. (Rothert, Anthony) (Entered: 04/07/2017)
7 Motion to allow Aaron Scherzer to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5245762) filed by Anthony E. Rothert on behalf of All Plaintiffs. (Rothert, Anthony) (Entered: 04/07/2017)
8 Motion to allow Evan Rose to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5245763) filed by Anthony E. Rothert on behalf of Viola Bowman, Shondel

04/10/2017 04/13/2017 04/13/2017 04/17/2017 04/17/2017 04/18/2017 04/18/2017
04/19/2017
04/21/2017 04/21/2017

Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Rothert, Anthony) (Entered: 04/07/2017)
9 ORDER entered by Judge Nanette Laughrey. State Defendants' Consent Motion for Extension of Time, [Doc. 5 ], is granted. Defendants' Answer or Responsive Motion due 4/21/2017. This is a TEXT ONLY ENTRY. No document is attached.(Farrington, Elizabeth) (Entered: 04/10/2017)
10 ORDER ON PRETRIAL PROCEDURES. Signed on 4/13/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 04/13/2017)
11 ORDER. Proposed scheduling order due by 4/28/2017. Rule 26 conference due by 4/24/2017. Signed on 4/13/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 04/13/2017)
12 Motion to allow Matthew R. Shahabian to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5254228) filed by Anthony E. Rothert on behalf of All Plaintiffs. (Rothert, Anthony) (Entered: 04/17/2017)
13 Motion to allow Easha Anand to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5254232) filed by Anthony E. Rothert on behalf of All Plaintiffs. (Rothert, Anthony) (Entered: 04/17/2017)
14 ORDER denying 8 motion to appear pro hac vice entered by Clerk of Court.
The court has denied your pro hac vice motion. Mr. Rose has not indicated in his affidavit that he is a member of a United States District Court as required in Local Rule 83.5(h). This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 04/18/2017)
15 ORDER granting 6 7 motion to appear pro hac vice entered by Clerk of Court. Attorney Robert L Sills & Aaron Scherzer for Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, & Dorian Samuels allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101 This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 04/18/2017)
16 ORDER granting 12 13 motion to appear pro hac vice entered by Clerk of Court. Attorney Matthew R Shahabian & Easha Anand for Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, & Dorian Samuels allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101 This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 04/19/2017)
17 DEFENDANTS ANSWER to Complaint on behalf of Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson.(Shipma, Jacqueline) (Entered: 04/21/2017)
18 MOTION to dismiss case Pursuant to Federal Rule of Civil Procedure 12(b)(1) filed by Dean John Sauer on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 5/5/2017 unless otherwise directed by the court. (Sauer, Dean) (Entered: 04/21/2017)

04/21/2017 04/21/2017 04/21/2017 04/21/2017 04/24/2017 04/24/2017 04/24/2017 04/28/2017 04/28/2017 05/01/2017
05/01/2017

19 SUGGESTIONS in support re 18 MOTION to dismiss case Pursuant to Federal Rule of Civil Procedure 12(b)(1) filed by Dean John Sauer on behalf of Defendants Eric Greitens, State of Missouri. (Related document(s) 18 ) (Sauer, Dean) (Entered: 04/21/2017)
20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Dean John Sauer on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 5/5/2017 unless otherwise directed by the court. (Sauer, Dean) (Entered: 04/21/2017)
21 SUGGESTIONS in support re 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Dean John Sauer on behalf of Defendants Eric Greitens, State of Missouri. (Related document(s) 20 ) (Sauer, Dean) (Entered: 04/21/2017)
22 Motion to allow Evan Rose to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5245763) filed by Anthony E. Rothert on behalf of Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Rothert, Anthony) (Entered: 04/21/2017)
23 CERTIFICATE OF SERVICE by Eric Greitens, State of Missouri filed by Dean John Sauer on behalf of Defendants Eric Greitens, State of Missouri.(Sauer, Dean) (Entered: 04/24/2017)
24 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Rothert, Anthony) (Entered: 04/24/2017)
25 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson.(Shipma, Jacqueline) (Entered: 04/24/2017)
26 MOTION for extension of time to file response/reply as to 18 MOTION to dismiss case Pursuant to Federal Rule of Civil Procedure 12(b)(1), 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 5/12/2017 unless otherwise directed by the court. (Related document(s) 18 , 20 ) (Rothert, Anthony) (Entered: 04/28/2017)
27 Joint PROPOSED SCHEDULING ORDER by Shondel Church. (Rothert, Anthony) (Entered: 04/28/2017)
28 ORDER entered by Judge Nanette Laughrey. Previously, Defendants Missouri and Governor Eric R. Greitens requested an extension of time in which to file a responsive pleading or otherwise move in response to Plaintiffs' Complaint. [Doc. 5 ]. Plaintiffs consented to this extension. Defendants Missouri and Greitens then moved to dismiss Plaintiffs' complaint under Rule 12(b)(1) and Rule 12(b)(6) in separate motions, [Docs. 16 and 18 ], as the supporting suggestions for these motions combined would exceed the page limitation in Local Rule 7.0(d)(1). Although Defendants Missouri and Greitens offer to consent to the second week of Plaintiffs' requested extension if Plaintiffs agree to a stay on discovery pending resolution of these motions, Local Rule 26.1(b) states that "Unless the Court orders otherwise, the filing of any motionincluding a motion to dismiss, a discovery motion, or a motion for summary judgmentdoes not stay the action or excuse the parties from complying with any discovery rule or scheduling order." Therefore, Plaintiffs' Motion for Extension of Time, [Doc. 26 ], is granted. Plaintiffs' response to Defendants' Motions to Dismiss due 5/19/2017. This is a TEXT ONLY ENTRY. No document is attached. (Farrington, Elizabeth) (Entered: 05/01/2017)
29 ORDER granting 22 motion to appear pro hac vice entered by Clerk of Court. Attorney Evan Rose for Viola Bowman,Evan Rose for Shondel Church,Evan Rose for Randall Lee Dalton,Evan Rose for Brian Richman,Evan Rose for Dorian Samuels allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to

05/01/2017 05/08/2017 05/09/2017 05/09/2017 05/11/2017
05/11/2017 05/11/2017 05/11/2017 05/16/2017 05/16/2017 05/16/2017

immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.
This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 05/01/2017)
30 MOTION to join filed by non−parties.Suggestions in opposition/response due by 5/9/2017 unless otherwise directed by the court. Reply Suggestions due w/in 7 days from date response is filed. (Attachments: # 1 Exhibit A−J, # 2 Notice of Exhibit Attachment, # 3 Envelope)Copy of Exhibit K mailed to counsel Rothert, Sauer and Shipman.(James, Carrie) (Entered: 05/02/2017)
31 ORDER. A Telephone Conference is set for 5/11/2017 at 10:00 AM CST regarding scheduling. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 5/8/17 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Farrington, Elizabeth) (Entered: 05/08/2017)
32 MOTION for extension of time to file response/reply as to 30 MOTION to join filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. Suggestions in opposition/response due by 5/23/2017 unless otherwise directed by the court. (Related document(s) 30 ) (Rothert, Anthony) (Entered: 05/09/2017)
33 ORDER entered by Judge Nanette Laughrey. Plaintiffs' Motion for extension of time, [Doc. 32 ], is granted. All Parties' responses, if any, to Motion to Join, [Doc. 32 ], due 5/16/2017. This is a TEXT ONLY ENTRY. No document is attached. (Farrington, Elizabeth) (Entered: 05/09/2017)
34 MINUTE ENTRY. Teleconference held before the Hon. Nanette K. Laughrey on 5/11/2017 regarding the Joint Proposed Scheduling Order, [Doc. 27 ]. The Court ordered discovery to close 12/15/2017 and dispositive motions will be due by 1/20/2018. The Court will enter a Scheduling Order setting all other deadlines based on the deadlines set today. Appearances: Plaintiff by Anthony Rothert, Jessie Steffan, Aaron Scherzer, Amy Breihan and Mae Quinn. Defendants by Dean Sauer and Jacqueline Shipma. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: None. (Text entry only.) (Matthes Mitra, Renea) (Entered: 05/11/2017)
35 SCHEDULING ORDER: Discovery due by 12/15/2017. Dispositive Motions due by 1/20/2018. Pretrial Conference set for 5/14/2018 at 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 5/14/2018 09:00 AM in Courtroom 4A, Jefferson City. Signed on 5/11/17 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 05/11/2017)
36 RULES OF TRIAL. Signed on 5/11/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 05/11/2017)
37 NOTICE of appearance by Michael D. Quinlan on behalf of Eric Greitens, State of Missouri (Attorney Michael D. Quinlan added to party Eric Greitens(pty:dft), Attorney Michael D. Quinlan added to party State of Missouri(pty:dft))(Quinlan, Michael) (Entered: 05/11/2017)
38 NOTICE of appearance by Laura E. Elsbury on behalf of Eric Greitens, State of Missouri (Attorney Laura E. Elsbury added to party Eric Greitens(pty:dft), Attorney Laura E. Elsbury added to party State of Missouri(pty:dft))(Elsbury, Laura) (Entered: 05/16/2017)
39 RESPONSE to motion re 30 MOTION to join filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 5/30/2017 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 05/16/2017)
40 CERTIFICATE OF SERVICE by All Plaintiffs first request for production to defendants filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Rothert, Anthony)

05/16/2017 05/19/2017 05/19/2017 05/19/2017
05/31/2017 06/02/2017 06/05/2017 06/06/2017
06/06/2017 06/08/2017

(Entered: 05/16/2017)
41 SUGGESTIONS in opposition re 30 MOTION to join filed by Dean John Sauer on behalf of Defendants Eric Greitens, State of Missouri. Reply suggestions due by 5/30/2017 unless otherwise directed by the court. (Related document(s) 30 ) (Sauer, Dean) (Entered: 05/16/2017)
42 Consent MOTION for leave to file excess pages filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 6/2/2017 unless otherwise directed by the court. (Attachments: # 1 proposed suggestions in opposition to motions to dismiss, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Rothert, Anthony) (Entered: 05/19/2017)
43 ORDER entered by Judge Nanette Laughrey. Plaintiffs' Consent Motion to Exceed Page Limits, [Doc. 42 ], is granted. Plaintiffs' suggestions in opposition to Defendants' Motions to Dismiss must not exceed 23 pages, excluding the content required by Rule 7.0(d)(2) and (3). This is a TEXT ONLY ENTRY. No document is attached. (Farrington, Elizabeth) (Entered: 05/19/2017)
44 SUGGESTIONS in opposition re 18 MOTION to dismiss case Pursuant to Federal Rule of Civil Procedure 12(b)(1), 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 6/2/2017 unless otherwise directed by the court. (Attachments: # 1 Affidavit declaration of Anthony E. Rothert, # 2 Exhibit Exhibit 1 − City of Slater v. State Brief, # 3 Exhibit Exhibit 2 − Brief Appellee−Respondent − Wyman v MO Dept Mental Health, # 4 Exhibit Exhibit 3 − Complaint and Exhibits − Barrett v. Nixon, # 5 Exhibit Exhibit 4 − Barrett v. Nixon Order, # 6 Exhibit Exhibit 5 − Defendants Renewed Motion to Dismiss − Barrett v. Nixon, # 7 Exhibit Exhibit 6 − Brief for the US − Tucker v. Idaho, # 8 Exhibit Exhibit 7 − Phillips v. CA Order, # 9 Exhibit Exhibit 8 − Church Probation Order)(Related document(s) 18 , 20 ) (Rothert, Anthony) (Entered: 05/19/2017)
45 ORDER entered by Judge Nanette Laughrey. Non−Parties' Pro Se Motion for Joinder, [Doc. 30 ], is denied. (Farrington, Elizabeth) (Entered: 05/31/2017)
46 MOTION for leave to file excess pages and Exhibit 1 Reply Sugg in Support of Motion to Dismiss filed by Dean John Sauer on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 6/16/2017 unless otherwise directed by the court. (Attachments: # 1 Exhibit Exhibit 1)(Sauer, Dean) (Entered: 06/02/2017)
47 ORDER entered by Judge Nanette Laughrey. State Defendants' Consent Motion for Leave to File Excess Pages, [Doc. 46 ], is granted. Defendants' Reply Suggestions may not exceed 15 pages. This is a TEXT ONLY ENTRY. No document is attached. (Farrington, Elizabeth) (Entered: 06/05/2017)
48 AMENDED NOTICE OF INCLUSION FOR MEDIATION AND ASSESSMENT PROGRAM (MAP). REVIEW NOTICE AND MAP GENERAL ORDER CAREFULLY FOR IMPORTANT CHANGES, DEADLINES AND REQUIREMENTS.
Notice of MAP assignment to an outside mediator. (Attachments: # 1 MAP General Order)(Geiser, Angel) (Entered: 06/06/2017)
49 REPLY SUGGESTIONS to 18 MOTION to dismiss case Pursuant to Federal Rule of Civil Procedure 12(b)(1), 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Dean John Sauer on behalf of Defendants Eric Greitens, State of Missouri. (Related document(s) 18 , 20 ) (Sauer, Dean) Modified on 6/7/2017 to show reply suggestions deadline satisfied(Geiser, Angel). (Entered: 06/06/2017)
50 MOTION for extension of time to file response/reply as to 40 Certificate of Service filed by Jacqueline Shipma on behalf of Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Suggestions in opposition/response due by 6/22/2017 unless otherwise directed by the court. (Related document(s) 40 ) (Shipma, Jacqueline) (Entered: 06/08/2017)

06/08/2017 06/08/2017 06/08/2017 06/15/2017 06/16/2017 06/19/2017 06/26/2017 06/27/2017 06/28/2017 06/29/2017
07/05/2017
07/06/2017

51 ORDER entered by Judge Nanette Laughrey. Missouri State Public Defender (MSPD) Defendants' Consent Motion for Extension of Time, [Doc. 50 ], is granted. MSPD Defendants' Response to Plaintiffs' First Request for Production due 6/29/2017. This is a TEXT ONLY ENTRY. No document is attached. (Farrington, Elizabeth) (Entered: 06/08/2017)
52 MOTION to certify class filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 6/22/2017 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 06/08/2017)
53 SUGGESTIONS in support re 52 MOTION to certify class filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Related document(s) 52 ) (Rothert, Anthony) (Entered: 06/08/2017)
54 CERTIFICATE OF SERVICE by Eric Greitens, State of Missouri filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 06/15/2017)
55 MOTION for extension of time to file response/reply as to 52 MOTION to certify class filed by Michael D. Quinlan on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 6/30/2017 unless otherwise directed by the court. (Related document(s) 52 ) (Quinlan, Michael) (Entered: 06/16/2017)
56 ORDER entered by Judge Nanette Laughrey. Defendants' Consent Motion for Extension of Time, [Doc. 55 ], is granted. Defendants' suggestions in opposition/response to Plaintiffs' Motion to Certify Class, [Doc. 52 ], due 7/6/2017. This is a TEXT ONLY ENTRY. No document is attached.(Farrington, Elizabeth) (Entered: 06/19/2017)
57 ORDER. Oral argument is set at for 7/5/2017 at 10:00 AM by telephone conference on the pending Motions to Dismiss, Doc. 18 and 20 . The parties shall call conference number: 877−336−1828, access code: 8503666 to participate. Signed on 6/26/17 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/26/2017)
58 Motion to allow Jason Williamson to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5342051) filed by Anthony E. Rothert on behalf of All Plaintiffs. (Rothert, Anthony) (Main Document 58 replaced on 7/10/2017) (Russel, Jeri). (Entered: 06/27/2017)
59 CERTIFICATE OF SERVICE by Eric Greitens, State of Missouri filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 06/28/2017)
60 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 40 Certificate of Service of Objections and Responses to Plaintiffs' First Set of Request for Production filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 40 Certificate of Service filed by Randall Lee Dalton, Viola Bowman, Dorian Samuels, Brian Richman, Shondel Church.(Shipma, Jacqueline) (Entered: 06/29/2017)
61 MINUTE ENTRY. Teleconference held before the Hon. Nanette K. Laughrey on 7/5/17. Oral argument presented on Defendants State of Missouri and Governor Greitens' Motions to Dismiss, Docs. 18, 20. The Court will permit the parties to file supplemental briefs by 7/12/17 on the issue of abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943). Argument presented by Matthew Shahabian for Plaintiffs and Michael Quinlan for the State of MO and Govenor Eric Greitens. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: Katie Wirt. (Text entry only.) To order a transcript of this hearing please contact Katie Wirt, 816−512−5608. (Matthes Mitra, Renea) (Entered: 07/05/2017)
62 SUGGESTIONS in opposition re 52 MOTION to certify class filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri. Reply suggestions due by 7/20/2017 unless otherwise directed by the court. (Related document(s) 52 ) (Elsbury, Laura) (Entered: 07/06/2017)

07/07/2017 07/11/2017
07/11/2017
07/12/2017 07/12/2017 07/20/2017 07/24/2017 08/18/2017 08/22/2017 08/24/2017 08/24/2017 08/25/2017

63 SUGGESTIONS in opposition re 52 MOTION to certify class CORRECTED filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri. Reply suggestions due by 7/21/2017 unless otherwise directed by the court. (Related document(s) 52 ) (Elsbury, Laura) (Entered: 07/07/2017)
64 ELECTRONIC TRANSCRIPT of Teleconference held 7/5/2017 before Judge Nanette K. Laughrey. Court Reporter: Katie Wirt, 816−512−5608, katie_wirt@mow.uscourts.gov. Number of pages: 41. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 7/18/2017 unless otherwise directed by the court. Release of Transcript Restriction set for 10/6/2017.(Wirt, Katie) (Entered: 07/11/2017)
65 ORDER granting 58 motion to appear pro hac vice entered by Clerk of Court. Attorney Jason D. Williamson for Viola Bowman,Jason D. Williamson for Shondel Church,Jason D. Williamson for Randall Lee Dalton,Jason D. Williamson for Brian Richman,Jason D. Williamson for Dorian Samuels allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.
This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 07/11/2017)
66 NOTICE of filing Supplemental Brief Regarding Burford Abstention by Eric Greitens, State of Missouri re 61 Telephone Conference,, (Sauer, Dean) (Entered: 07/12/2017)
67 SUPPLEMENT supplemental brief on the issue of abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943). (Related document(s) 18 ) (Rothert, Anthony) (Entered: 07/12/2017)
68 REPLY SUGGESTIONS to motion re 52 MOTION to certify class filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Related document(s) 52 ) (Rothert, Anthony) (Entered: 07/20/2017)
69 ORDER entered by Judge Nanette Laughrey. Defendants' Motion to Dismiss under Fed. R. Civ. P. 12(b)(1),[Doc. 18 ], is granted as to Plaintiff Church and denied to all other claims. Defendants' Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), [Doc. 20 ], is granted as to Count V against Governor Greitens and denied as to all other claims. (Farrington, Elizabeth) (Entered: 07/24/2017)
70 NOTICE OF APPEAL by Eric Greitens, State of Missouri. Filing fee $ 505, receipt number 0866−5406198. (Sauer, Dean) (Entered: 08/18/2017)
71 TRANSMISSION of Notice of Appeal Supplement to US Court of Appeals, 8th Circuit via electronic mail. Related document 70 Notice of Appeal. (Geiser, Angel) (Entered: 08/22/2017)
72 USCA Case Number from Eighth Circuit is 17−2857 for 70 Notice of Appeal filed by Eric Greitens, State of Missouri. Briefing schedule entered by the Court of Appeals is attached. Transcript due by 10/3/2017. (Attachments: # 1 Briefing Schedule)(Lock, Tania) (Entered: 08/24/2017)
73 Certified and transmitted record on Appeal to US Court of Appeals re 70 Notice of Appeal (Geiser, Angel) (Entered: 08/24/2017)
74 Motion to allow James J. Maune to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5414543) filed by Anthony E. Rothert on behalf of All Plaintiffs.

08/29/2017
09/01/2017 09/07/2017 09/14/2017 09/14/2017 09/18/2017 09/26/2017 09/27/2017 09/29/2017 10/03/2017

(Rothert, Anthony) (Entered: 08/25/2017)
75 ORDER granting 74 motion to appear pro hac vice entered by Clerk of Court. Attorney James J Maune for Viola Bowman Shondel Church, Randall Lee Dalton, Brian Richman,and Dorian Samuels allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.
This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 08/29/2017)
76 MOTION for extension of time filed by Anthony E. Rothert on behalf of Viola Bowman. Suggestions in opposition/response due by 9/15/2017 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 09/01/2017)
77 ORDER entered by Judge Nanette Laughrey. Defendants' response to Plaintiff's Motion for Extension of Time, [Doc. 76 ], is due on or before 9/11/2017. Signed on 9/7/2017 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Dickinson, Gregory) Modified on 9/8/2017 to correct document number(Geiser, Angel). (Entered: 09/07/2017)
78 ORDER entered by Judge Nanette Laughrey. Plaintiffs' Motion to Amend Scheduling and Bench Trial Order [Doc. 76 ] is granted. The Court will issue an amended Scheduling and Bench Trial order. Signed on 9/14/2017 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 09/14/2017)
79 AMENDED SCHEDULING ORDER: Discovery due by 12/22/2017. Dispositive Motions due by 1/19/2018. Pretrial Conference set for 5/14/2018 at 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 5/14/2018 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 9/14/17 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 09/14/2017)
80 NOTICE to take deposition of Missouri Public Defender's Office filed by Anthony E. Rothert on behalf of Plaintiff Viola Bowman.(Rothert, Anthony) (Entered: 09/18/2017)
81 NOTICE of appearance by Steven Alan Ramsey on behalf of Eric Greitens, State of Missouri (Attorney Steven Alan Ramsey added to party Eric Greitens(pty:dft), Attorney Steven Alan Ramsey added to party State of Missouri(pty:dft))(Ramsey, Steven) (Entered: 09/26/2017)
82 Amended NOTICE to take deposition of Missouri State Public Defender filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 09/27/2017)
83 PRO SE Request for copies of all proceedings after filing of Doc. 32 and Doc. 41 . filed by non−party Jim Harris, Jr. (Attachments: # 1 Exhibit, # 2 Envelope)(Geiser, Angel) Modified on 10/3/2017 to correct docket entry title.(Matthes Mitra, Renea). (Entered: 09/29/2017)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 9/29/17 as Document No. 83, Pro Se Motion. Document 83 is title Motion for Disclosure/ Update on Pending Case, however, the document is requesting "a copy of all proceedings after filing of Doc. 32 and Doc. 41. Mr. Harris, Jr. states he did not previously receive the documents. The Court mailed to Jim Harris, Jr. #45474, at SECC 300 East Pedro Simmons Drive, Charleston, MO 63834, Documents 32, 39, 41, and 45 on 10/3/17. The motion, Doc. 83 is terminated. This is a text entry only − no document is attached. (Matthes Mitra, Renea) (Entered: 10/03/2017)

10/06/2017 10/06/2017 10/11/2017
10/16/2017 10/16/2017 10/16/2017 10/20/2017
11/01/2017 11/03/2017 11/09/2017 11/09/2017 11/16/2017
11/20/2017

84 NOTICE of appearance by Justin Moore on behalf of State of Missouri (Attorney Justin Moore added to party State of Missouri(pty:dft))(Moore, Justin) (Entered: 10/06/2017)
85 NOTICE of appearance by Justin Moore on behalf of Eric Greitens (Attorney Justin Moore added to party Eric Greitens(pty:dft))(Moore, Justin) (Entered: 10/06/2017)
86 SECOND AMENDED SCHEDULING ORDER: Discovery due by 12/22/2017. Dispositive Motions due by 1/19/2018. Pretrial Conference set for 5/29/2018 AT 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 5/29/2018 AT 09:00 AM in Courtroom 4A, Jefferson City. Signed on 10/11/17 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 10/11/2017)
87 CERTIFICATE OF SERVICE by All Plaintiffs disclosure and expert report of Robert C. Boruchowitz filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 10/16/2017)
88 CERTIFICATE OF SERVICE by All Plaintiffs disclosure and expert report of Rodney J. Uphoff filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 10/16/2017)
89 CERTIFICATE OF SERVICE by All Plaintiffs disclosure and expert report of Stephen Gillers filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 10/16/2017)
90 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 40 Certificate of Service of MSPD Defendants' Supplemental Response to Plaintiff's First Request for Production of Documents filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 40 Certificate of Service filed by Randall Lee Dalton, Viola Bowman, Dorian Samuels, Brian Richman, Shondel Church.(Shipma, Jacqueline) (Entered: 10/20/2017)
91 MOTION for leave to file Answer Out of Time by Consent filed by Justin Moore on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 11/15/2017 unless otherwise directed by the court. (Moore, Justin) (Entered: 11/01/2017)
92 ORDER entered by Judge Nanette Laughrey. Defendants' Motion for Leave to File Answer out of Time by Consent, [Doc. 91 ], is granted. Defendants' Answer to Plaintiffs' Complaint is due on or before 11/9/2017. Signed on 11/3/2017 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 11/03/2017)
93 CERTIFICATE OF SERVICE by All Plaintiffs First Set of Interrogatories filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/09/2017)
94 State Defendants' ANSWER to Complaint on behalf of Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 11/09/2017)
95 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 40 Certificate of Service of MSPD Defendants' Second Supplemental Responses to Plaintiff's First Request for Production of Documents filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 40 Certificate of Service filed by Randall Lee Dalton, Viola Bowman, Dorian Samuels, Brian Richman, Shondel Church.(Shipma, Jacqueline) (Entered: 11/16/2017)
96 Motion to allow Camille Rosca to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5524382) filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman. (Rothert, Anthony) (Entered: 11/20/2017)

11/21/2017

97 ORDER granting 96 motion to appear pro hac vice entered by Clerk of Court. Attorney Camille Joanne Rosca for Viola Bowman,Camille Joanne Rosca for Shondel Church,Camille Joanne Rosca for Randall Lee Dalton,Camille Joanne Rosca for Brian Richman,Camille Joanne Rosca for Dorian Samuels allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.

11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017

This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 11/21/2017)
98 CERTIFICATE OF SERVICE by All Plaintiffs Second Set of Interrogatories filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
99 CERTIFICATE OF SERVICE by All Plaintiffs First Set of Requests for Admission filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
100 CERTIFICATE OF SERVICE by Eric Greitens, State of Missouri filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 11/22/2017)
101 Motion to allow Anthony Tartaglio to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5529358) filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Rothert, Anthony) (Entered: 11/22/2017)
102 NOTICE to take deposition of Anthony Cardarella filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
103 NOTICE to take deposition of Justin Carver filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
104 NOTICE to take deposition of Matthew Crowell filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
105 NOTICE to take deposition of Mary Fox filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
106 NOTICE to take deposition of Ed Guinn filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
107 NOTICE to take deposition of Rod Hackathorn filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
108 NOTICE to take deposition of Ruth Petsch filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
109 NOTICE to take deposition of Stephen Reynolds filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)

11/22/2017 11/22/2017 11/28/2017

110 NOTICE to take deposition of Sue Rinne filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
111 NOTICE to take deposition of David Wallis filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 11/22/2017)
112 ORDER granting 101 motion to appear pro hac vice entered by Clerk of Court. Attorney Anthony Tartaglio for Viola Bowman,Anthony Tartaglio for Shondel Church,Anthony Tartaglio for Randall Lee Dalton,Anthony Tartaglio for Brian Richman,Anthony Tartaglio for Dorian Samuels allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.

11/30/2017 12/01/2017 12/06/2017 12/08/2017
12/08/2017
12/11/2017 12/11/2017 12/11/2017 12/11/2017 12/12/2017

This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 11/28/2017)
113 MOTION to withdraw as attorney filed by Michael D. Quinlan on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 12/14/2017 unless otherwise directed by the court. (Quinlan, Michael) (Entered: 11/30/2017)
114 Amended NOTICE to take deposition of Jeffrey Martin filed by Jason D. Williamson on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Williamson, Jason) (Entered: 12/01/2017)
115 MOTION to withdraw as attorney filed by Mae C Quinn on behalf of All Plaintiffs. Suggestions in opposition/response due by 12/20/2017 unless otherwise directed by the court. (Quinn, Mae) (Entered: 12/06/2017)
116 ORDER entered by Judge Nanette Laughrey. Michael Quinlan's Motion to Withdraw as Co−Counsel of Record, [Doc. 113 ], is granted. Defendant State of Missouri's remaining counsel, Justin Moore, Steven Alan Ramsey, Laura E. Elsbury, and Dean John Sauer, have already entered their appearances in this matter on behalf of the State of Missouri. Signed on 12/8/2017 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 12/08/2017)
117 ORDER entered by Judge Nanette Laughrey. Mae C. Quinn's Motion to Withdraw as Counsel, [Doc. 115 ], is granted. Aaron Scherzer, Amy Elizabeth Breihan, Anthony E. Rothert, Anthony Tartaglio, Camille Joanne Rosca, Easha Anand, Evan Rose, Gillian R. Wilcox, James J Maune, Jason D. Williamson, Jessie Steffan, Matthew R Shahabian, and Robert L Sills have already entered their appearances in this matter on behalf of Plaintiffs. Signed on 12/8/2017 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 12/08/2017)
118 NOTICE to take deposition of Dan Haug filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 12/11/2017)
119 NOTICE to take deposition of Dwight Scroggins filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 12/11/2017)
120 NOTICE to take deposition of Eric Zahnd filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 12/11/2017)
121 NOTICE to take deposition of Designated Person on behalf of the Missouri State Public Defender's Office filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 12/11/2017)
122 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 40 Certificate of Service of the Third

12/22/2017 12/22/2017
12/22/2017 12/26/2017

Supplemental Responses of Defendants Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval, and A. Crista Hogan to Plaintiffs' First Set of Requests for the Production of Documents filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 40 Certificate of Service filed by Randall Lee Dalton, Viola Bowman, Dorian Samuels, Brian Richman, Shondel Church.(Shipma, Jacqueline) (Entered: 12/12/2017)
123 Motion to allow Anjali Prasad to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5569390) filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Rothert, Anthony) (Entered: 12/22/2017)
124 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 93 Certificate of Service MSPD Defendants' Answers to Plaintiffs' First Set of Interrogatories filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 93 Certificate of Service filed by Randall Lee Dalton, Viola Bowman, Dorian Samuels, Brian Richman, Shondel Church.(Shipma, Jacqueline) (Entered: 12/22/2017)
125 CERTIFICATE OF SERVICE by Eric Greitens, State of Missouri "Defendants State of Missouri and Governor Greitens' Answers to Plaintiffs' First Set of Request for Admissions and Second Set of Interrogatories" filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri.(Elsbury, Laura) (Entered: 12/22/2017)
126 ORDER granting 123 motion to appear pro hac vice entered by Clerk of Court. Attorney Anjali Prasad for Plaintiff's allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.

12/29/2017
12/29/2017 01/02/2018 01/07/2018 01/12/2018

This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 12/26/2017)
127 CERTIFICATE OF SERVICE by Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels responses to grietens and missouri interrogatories to plaintiffs filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Rothert, Anthony) (Entered: 12/29/2017)
128 CERTIFICATE OF SERVICE by All Plaintiffs response to missouri−grietens request for production filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels.(Rothert, Anthony) (Entered: 12/29/2017)
129 NOTICE of procedural change. Any documents, including proposed orders, that must be emailed to Chambers pursuant to the scheduling order henceforth should be sent to Netra_Sreeprakash@mow.uscourts.gov. (Moore, Terri) (Entered: 01/02/2018)
130 MOTION for extension of time to file dispositive motions filed by Jason D. Williamson on behalf of All Plaintiffs. Suggestions in opposition/response due by 1/22/2018 unless otherwise directed by the court. (Williamson, Jason) (Entered: 01/07/2018)
131 ORDER entered by Judge Nanette Laughrey. Plaintiffs' Motion to Extend the Deadline for Dispositive Motions, Doc. 103 , is granted in part. Dispositive Motions are due on or before 2/2/2018. A teleconference is set for 1/19/2018 at 11:30 AM to discuss scheduling and the current status of the case. The parties shall call conference number: 877−336−1828, access code: 8503666 to participate in the call. Signed on 1/12/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 01/12/2018)

01/17/2018 01/18/2018 01/18/2018 01/19/2018
01/19/2018 01/22/2018 01/22/2018 01/31/2018 01/31/2018 02/01/2018

132 ORDER. The Telephone Conference previously set for 11:30 AM on 1/19/2018 is reset for 9:30 AM on 1/19/2018. The parties shall call conference number: 877−336−1828, access code: 8503666 to participate in the call. Signed on 1/17/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 01/17/2018)
133 MOTION to stay filed by Laura E. Elsbury on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 2/1/2018 unless otherwise directed by the court. (Elsbury, Laura) (Entered: 01/18/2018)
134 MOTION for order Realign MSPD Defendants as Plaintiffs filed by Laura E. Elsbury on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 2/1/2018 unless otherwise directed by the court. (Elsbury, Laura) (Entered: 01/18/2018)
135 MINUTE ENTRY. Teleconference held before the Hon. Nanette K. Laughrey on 1/19/18. Mr. Rothert stated that the case has continued and discovery is completed. Ms. Shipma stated her discovery responses are due this coming Monday and she will have those done. Statements presented by the parties regarding the Motion to Stay, Doc. 133, and Motion to Realign, Doc. 134. The Court will wait for the motions to be fully briefed before making a final decision. The case will proceed. Mr. Pritchett requested the summary judgment motion deadline be extended to 2/9/18. Mr. Rothert had no objection. The Court granted the request and extended the dispositive motion deadline to 2/9/18. Appearances: Plaintiff by Anthony Rothert. Defendant State of MO and Govenor Greitens by Mike Pritchett. MSPD Defendants by Jacqueline Shipma. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: None. (Text entry only.) (Matthes Mitra, Renea) (Entered: 01/19/2018)
136 NOTICE of filing supplemental authority by Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels re 52 MOTION to certify class (Attachments: # 1 Order − Tucker v. State of Idaho (Jan. 17, 2018))(Rothert, Anthony) (Entered: 01/19/2018)
137 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 100 Certificate of Service MSPD Defendants' Answers to Defendant State of Missouri's First Set of Interrogatories filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 100 Certificate of Service filed by Eric Greitens, State of Missouri.(Shipma, Jacqueline) (Entered: 01/22/2018)
138 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 100 Certificate of Service MSPD Defendants' Responses to Defendant State of Missouri's First Request for the Production of Documents filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 100 Certificate of Service filed by Eric Greitens, State of Missouri.(Shipma, Jacqueline) (Entered: 01/22/2018)
139 Motion to allow Will Melehani to appear pro hac vice (Pro Hac fee $100 receipt number 0866−5625726) filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Rothert, Anthony) (Entered: 01/31/2018)
140 SUGGESTIONS in opposition re 134 MOTION for order Realign MSPD Defendants as Plaintiffs Suggestions in Opposition to State Defendants' Motion for Realignment of Missouri State Public Defender Defendants filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Reply suggestions due by 2/14/2018 unless otherwise directed by the court. (Related document(s) 134 ) (Shipma, Jacqueline) (Entered: 01/31/2018)
141 SUGGESTIONS in opposition re 133 MOTION to stay MSPD Defendants' Suggestions in Opposition to State Defendants' Motion to Stay filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Reply suggestions due by 2/15/2018 unless otherwise directed by the court. (Related document(s) 133 ) (Shipma, Jacqueline) (Entered: 02/01/2018)

02/01/2018
02/01/2018 02/02/2018

142 SUGGESTIONS in opposition re 133 MOTION to stay filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 2/15/2018 unless otherwise directed by the court. (Attachments: # 1 Affidavit Declaration of Anthony E. Rothert, # 2 Exhibit Ex. A Martin Dep Rescheduling Emails, # 3 Exhibit Ex. B Williamson−Elsbury Correspondence, # 4 Exhibit Ex. C KCUR article, # 5 Exhibit Ex. D Crowell Depo Excerpts, # 6 Exhibit Ex. E Cardalla Depo Excerpts, # 7 Exhibit Ex. F Petsch Depo Excerpts, # 8 Exhibit Ex. G Carver Depo Excerpts, # 9 Exhibit Ex. H Hackathorn Email, # 10 Exhibit Ex. I Woodham Motion to Withdraw)(Related document(s) 133 ) (Rothert, Anthony) (Entered: 02/01/2018)
143 SUGGESTIONS in opposition re 134 MOTION for order Realign MSPD Defendants as Plaintiffs filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 2/15/2018 unless otherwise directed by the court. (Related document(s) 134 ) (Rothert, Anthony) (Entered: 02/01/2018)
144 ORDER granting 139 motion to appear pro hac vice entered by Clerk of Court. Attorney Will Melehani for Plaintiff's, allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.

02/05/2018 02/07/2018
02/09/2018 02/09/2018 02/09/2018 02/09/2018 02/09/2018

This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 02/02/2018)
145 Consent MOTION for leave to file excess pages for suggestions in support of motion for summary judgment filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 2/20/2018 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 02/05/2018)
146 ORDER entered by Judge Nanette Laughrey. Plaintiffs' consent motion for leave to exceed page limitation, Doc. 145 , is granted. The suggestions in support of Plaintiffs' motion for summary judgment may not exceed 45 pages. Signed on 2/7/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 02/07/2018)
147 MOTION for leave to file excess pages filed by Justin Moore on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 2/23/2018 unless otherwise directed by the court. (Moore, Justin) (Entered: 02/09/2018)
148 MOTION for summary judgment filed by Justin Moore on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 3/2/2018 unless otherwise directed by the court. (Moore, Justin) (Entered: 02/09/2018)
149 SUGGESTIONS in support re 148 MOTION for summary judgment filed by Justin Moore on behalf of Defendants Eric Greitens, State of Missouri. (Attachments: # 1 Defendants' Statement of Uncontroverted Material Facts)(Related document(s) 148 ) (Moore, Justin) (Entered: 02/09/2018)
150 MOTION to strike Designation of Plaintiffs' Experts and Exclude Testimony of those Experts at Trial filed by Laura E. Elsbury on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 2/23/2018 unless otherwise directed by the court. (Elsbury, Laura) (Entered: 02/09/2018)
151 SUGGESTIONS in support re 150 MOTION to strike Designation of Plaintiffs' Experts and Exclude Testimony of those Experts at Trial filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Related document(s) 150 ) (Elsbury, Laura) (Entered: 02/09/2018)

02/09/2018 02/09/2018

152 MOTION for summary judgment filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. Suggestions in opposition/response due by 3/2/2018 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 02/09/2018)
153 SUGGESTIONS in support re 152 MOTION for summary judgment filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Attachments: # 1 Index Index of Exhibits in Support of Motion for Summary Judgment, # 2 AVideotaped Deposition of Justin Carver Taken on Behalf of the Plaintiffs Dec. 11, 2017, # 3 BMissouri State Public Defender Cumulative Caseload Metrics, # 4 CVideotaped Deposition of Rod Hackathorn Taken on Behalf of the Plaintiffs Dec. 20, 2017, # 5 DMissouri Public Defender Commission, FY 2017 Annual Report, # 6 EVideotaped Deposition of Matthew Crowell Taken on Behalf of the Plaintiffs Dec. 20, 2017, # 7 FVideo−Recorded Deposition of Kathleen L. Lear Taken on Behalf of Plaintiffs Oct. 6, 2017, # 8 GVideo−Recorded Deposition of Michael K. Barrett Taken on Behalf of the Plaintiffs October 4, 2017, # 9 HExpert Report of Robert C. Boruchowitz, Oct. 16, 2017, # 10 IVideotaped Deposition of Edward Guinn Taken on Behalf of the Plaintiffs Dec. 12, 2017, # 11 JVideo Deposition of Jeffrey Martin Taken on Behalf of the Plaintiffs Dec. 5, 2017, # 12 KVideo Deposition of Ruth Petsch Taken on Behalf of the Plaintiffs Dec. 5, 2017, # 13 LVideo−Recorded Deposition of Mary Fox Taken on Behalf of the Plaintiffs Dec. 19, 2017, # 14 MVideotaped Deposition of Anthony C. Cardarella Taken on Behalf of Plaintiffs Dec. 7, 2017, # 15 NVideotaped Deposition of David Wallis Taken on Behalf of the Plaintiffs Dec. 11, 2017, # 16 OExpert Report of Rodney J. Uphoff, Oct. 16, 2017, # 17 PExpert Report of Stephen Gillers, Oct. 16, 2017, # 18 QStatement of Interest of the United States, Wilbur v. City of Mt. Vernon, (W.D. Wash. Aug. 14, 2013), # 19 RAmerican Bar Association and RubinBrown, The Missouri Project (2014), # 20 SMissouri Public Defender Commission, Budget Request FY 2019, # 21 TKathleen Lear Oct. 6, 2017 Deposition Ex 33, Missouri Public Defender Commission, Fiscal Year 2018, Draft Legislative Budget Request, Sept. 21, 2016, # 22 URod Hackathorn Dec. 20, 2017 Deposition Ex 50, Missouri Public Defender Commission, Fiscal Year 2018, Approved October 25, 2017, Supplemental Legislative Budget Request, Oct. 25, 2017, # 23 VVideo−Recorded Deposition of Joel R. Elmer Taken on Behalf of the Plaintiffs October 4, 2017, # 24 WMissouri State Public Defender System By the Numbers, # 25 XLetter from Michael Barrett, Missouri Public Defender, to Hon. Eric Greitens, Governor of Missouri, Mar. 15, 2017, # 26 Y Video−Recorded Deposition of Stephen P. Reynolds Taken on Behalf of the Plaintiffs Dec. 19, 2017, # 27 ZDisciplinary Hearing Panel Decision, In re Hinkebein, No. DHP−16−004, Nov. 2, 2016, # 28 AAThe Spangenberg Group & Center for Justice, Law and Society at George Mason University, Assessment of the Missouri State Public Defender System, Oct. 2009, # 29 BBMotion to Withdraw Due to Excessive Caseload, Woodham v. Missouri, No. SD35211, Nov. 6, 2017, # 30 CCLetter from Justin Carver, Missouri Public Defender, to Office of the Chief Disciplinary Counsel, Oct. 30, 2017, # 31 DDRod Hackathorn Dec. 20, 2017 Deposition Ex 48, Appraisal Form for Dawn Calvin, Nov. 7, 2016, # 32 EERuth Petsch Dec. 5, 2017 Deposition Ex 1, Email from Joel Elmer to Service List, Oct. 13, 2002, # 33 FFRod Hackathorn Dec. 20, 2017 Deposition Ex 49, Performance & Issue Entry Form, Mar. 2, 2017, # 34 GGPerformance & Issue Entry Form, Mar. 13, 2017, # 35 HHMatthew Crowell Dec. 20, 2017 Deposition Ex 54, Draft Motion to Withdraw Due to Excessive Caseload, # 36 IIVideotaped Deposition of Kathleen Lear Taken on Behalf of State Defendants State of Missouri and Eric Greitens Jan. 8, 2018, # 37 JJVideo−Recorded Deposition of Sarah K. Johnson Taken on Behalf of the Plaintiffs Oct. 6, 2017, # 38 KKSarah Johnson Oct. 6, 2017 Deposition Ex 9, National Juvenile Defender Center, Missouri: Justice Rationed, Spring 2013, # 39 LLRod Hackathorn Dec. 20, 2017 Deposition Ex 53, Email from Rod Hackathorn, District Defender, to Hon. Thomas Mountjoy, Hon. David Jones & Hon. Calvin Holden, Oct 10, 2017, # 40 MMAnthony Cardarella Dec. 12, 2017 Deposition Ex 15, Letter from Anthony Cardarella, District Defender, to Hon. Janet Sutton, Hon, James Van Amburg & Hon. Thomas Chapman, # 41 NNRuth Petsch Dec. 5, 2017 Deposition Ex 7, Petition for Writ of Prohibition and Suggestions in Support, Oct. 25, 2017, # 42 OORuth Petsch Dec. 5, 2017 Deposition Ex 5, Draft Suggestions in Support of Writ of Prohibition and/or Mandamus, # 43 PPRod Hackathorn Dec. 20, 2017 Deposition Ex 52, Missouri State Public Defender Commission, Notice Pursuant to 18 CSR 10−4.010 of Pending Certification of Public Defender Limited Availability, Jan. 6, 2010, # 44 QQJustin Carver Dec. 11, 2017 Deposition Ex 26, Affidavit of William Stokely, Former Area 19 Public Defender,

02/12/2018 02/14/2018 02/15/2018 02/15/2018 02/16/2018 02/21/2018
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Oct. 31, 2017, # 45 RRRuth Petsch Dec. 5, 2017 Deposition Ex 8, Motion Requesting Conference to Discuss Caseload Issues, Nov. 1, 2017, # 46 SSEmail from Christopher Piatt, Assistant Public Defender, to Michael Barrett, Missouri Public Defender, Nov. 20, 2017, # 47 TTPD Case Load Finding and Order, In re Area 25 Public Defender Office, # 48 UUDenial, State ex rel. Hazel and Barrett v. Hon Mayer, No. SC96736, Oct. 17, 2017, and Order, State ex rel. Hazel and Barrett v. Hon. Mayer, No. SD35176, Oct. 13, 2017)(Related document(s) 152 ) (Rothert, Anthony) (Entered: 02/09/2018)
154 ORDER entered by Judge Nanette Laughrey. Defendants' motion for leave to file excess pages, Doc. 147 , is granted. Defendants' suggestions in support of their motion for summary judgment may not exceed 20 pages. Signed on 2/12/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 02/12/2018)
155 REPLY SUGGESTIONS re 134 MOTION for order Realign MSPD Defendants as Plaintiffs filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri. (Related document(s) 134 ) (Elsbury, Laura) Modified on 2/16/2018 (Russel, Jeri). (Entered: 02/14/2018)
156 REPLY SUGGESTIONS to motion re 133 MOTION to stay State Defendants' Reply to Plaintiffs' and the MSPD Defendants' Suggestions in Opposition to Defendants' Motion to Stay filed by Laura E. Elsbury on behalf of Defendants Eric Greitens, State of Missouri. (Related document(s) 133 ) (Elsbury, Laura) (Entered: 02/15/2018)
157 Consent MOTION for leave to file corrected suggestions in support of plainitffs' motion for summary judgment filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. Suggestions in opposition/response due by 3/1/2018 unless otherwise directed by the court. (Attachments: # 1 corrected suggestions in support of motion for summary judgment, # 2 redline comparing corrected suggestions to suggestions in support)(Rothert, Anthony) (Entered: 02/15/2018)
158 Consent MOTION for extension of time to file response/reply as to 150 MOTION to strike Designation of Plaintiffs' Experts and Exclude Testimony of those Experts at Trial filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 3/2/2018 unless otherwise directed by the court. (Related document(s) 150 ) (Rothert, Anthony) (Entered: 02/16/2018)
159 ORDER entered by Judge Nanette Laughrey. Plaintiffs' consent motion for leave to file corrected suggestions in support of motion for summary judgment, Doc. 157 , and Plaintiffs' consent motion for extension of time, Doc. 158 , are granted. Plaintiffs may file their corrected suggestions in support of Plaintiffs' motion for summary judgment. Plaintiffs' suggestions in opposition to State Defendants' motion to strike designations of Plaintiffs' experts and exclude testimony of those experts at trial are due on or before 3/2/2018. Signed on 2/21/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 02/21/2018)
160 SUGGESTIONS in support re 152 MOTION for summary judgment (Corrected) filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Attachments: # 1 Index Index of Exhibits, # 2 AVideotaped Deposition of Justin Carver Taken on Behalf of the Plaintiffs Dec. 11, 2017, # 3 BMissouri State Public Defender Cumulative Caseload Metrics, # 4 CVideotaped Deposition of Rod Hackathorn Taken on Behalf of the Plaintiffs Dec. 20, 2017, # 5 DMissouri Public Defender Commission, FY 2017 Annual Report, # 6 EVideotaped Deposition of Matthew Crowell Taken on Behalf of the Plaintiffs Dec. 20, 2017, # 7 FVideo−Recorded Deposition of Kathleen L. Lear Taken on Behalf of Plaintiffs Oct. 6, 2017, # 8 GVideo−Recorded Deposition of Michael K. Barrett Taken on Behalf of the Plaintiffs October 4, 2017, # 9 HExpert Report of Robert C. Boruchowitz, Oct. 16, 2017, # 10 IVideotaped Deposition of Edward Guinn Taken on Behalf of the Plaintiffs Dec. 12, 2017, # 11 JVideo Deposition of Jeffrey Martin Taken on Behalf of the Plaintiffs Dec. 5, 2017, # 12 KVideo Deposition of Ruth Petsch Taken on Behalf of the Plaintiffs Dec. 5, 2017, # 13 LVideo−Recorded Deposition of Mary Fox Taken on Behalf of the Plaintiffs Dec. 19, 2017, # 14 MVideotaped Deposition of Anthony C. Cardarella Taken on Behalf of Plaintiffs Dec. 7, 2017, # 15 NVideotaped Deposition of David Wallis Taken on Behalf of the Plaintiffs Dec. 11,

02/21/2018 02/26/2018 02/26/2018

2017, # 16 OExpert Report of Rodney J. Uphoff, Oct. 16, 2017, # 17 PExpert Report of Stephen Gillers, Oct. 16, 2017, # 18 QStatement of Interest of the United States, Wilbur v. City of Mt. Vernon, (W.D. Wash. Aug. 14, 2013), # 19 RAmerican Bar Association and RubinBrown, The Missouri Project (2014), # 20 SMissouri Public Defender Commission, Budget Request FY 2019, # 21 TKathleen Lear Oct. 6, 2017 Deposition Ex 33, Missouri Public Defender Commission, Fiscal Year 2018, Draft Legislative Budget Request, Sept. 21, 2016, # 22 URod Hackathorn Dec. 20, 2017 Deposition Ex 50, Missouri Public Defender Commission, Fiscal Year 2018, Approved October 25, 2017, Supplemental Legislative Budget Request, Oct. 25, 2017, # 23 VVideo−Recorded Deposition of Joel R. Elmer Taken on Behalf of the Plaintiffs October 4, 2017, # 24 WMissouri State Public Defender System By the Numbers, # 25 XLetter from Michael Barrett, Missouri Public Defender, to Hon. Eric Greitens, Governor of Missouri, Mar. 15, 2017, # 26 Y Video−Recorded Deposition of Stephen P. Reynolds Taken on Behalf of the Plaintiffs Dec. 19, 2017, # 27 ZDisciplinary Hearing Panel Decision, In re Hinkebein, No. DHP−16−004, Nov. 2, 2016, # 28 AAThe Spangenberg Group & Center for Justice, Law and Society at George Mason University, Assessment of the Missouri State Public Defender System, Oct. 2009, # 29 BBMotion to Withdraw Due to Excessive Caseload, Woodham v. Missouri, No. SD35211, Nov. 6, 2017, # 30 CCLetter from Justin Carver, Missouri Public Defender, to Office of the Chief Disciplinary Counsel, Oct. 30, 2017, # 31 DDRod Hackathorn Dec. 20, 2017 Deposition Ex 48, Appraisal Form for Dawn Calvin, Nov. 7, 2016, # 32 EERuth Petsch Dec. 5, 2017 Deposition Ex 1, Email from Joel Elmer to Service List, Oct. 13, 2002, # 33 FFRod Hackathorn Dec. 20, 2017 Deposition Ex 49, Performance & Issue Entry Form, Mar. 2, 2017, # 34 GGPerformance & Issue Entry Form, Mar. 13, 2017, # 35 HHMatthew Crowell Dec. 20, 2017 Deposition Ex 54, Draft Motion to Withdraw Due to Excessive Caseload, # 36 IIVideotaped Deposition of Kathleen Lear Taken on Behalf of State Defendants State of Missouri and Eric Greitens Jan. 8, 2018, # 37 JJVideo−Recorded Deposition of Sarah K. Johnson Taken on Behalf of the Plaintiffs Oct. 6, 2017, # 38 KKSarah Johnson Oct. 6, 2017 Deposition Ex 9, National Juvenile Defender Center, Missouri: Justice Rationed, Spring 2013, # 39 LLRod Hackathorn Dec. 20, 2017 Deposition Ex 53, Email from Rod Hackathorn, District Defender, to Hon. Thomas Mountjoy, Hon. David Jones & Hon. Calvin Holden, Oct 10, 2017, # 40 MMAnthony Cardarella Dec. 12, 2017 Deposition Ex 15, Letter from Anthony Cardarella, District Defender, to Hon. Janet Sutton, Hon, James Van Amburg & Hon. Thomas Chapman, # 41 NNRuth Petsch Dec. 5, 2017 Deposition Ex 7, Petition for Writ of Prohibition and Suggestions in Support, Oct. 25, 2017, # 42 OORuth Petsch Dec. 5, 2017 Deposition Ex 5, Draft Suggestions in Support of Writ of Prohibition and/or Mandamus, # 43 PPRod Hackathorn Dec. 20, 2017 Deposition Ex 52, Missouri State Public Defender Commission, Notice Pursuant to 18 CSR 10−4.010 of Pending Certification of Public Defender Limited Availability, Jan. 6, 2010, # 44 QQJustin Carver Dec. 11, 2017 Deposition Ex 26, Affidavit of William Stokely, Former Area 19 Public Defender, Oct. 31, 2017, # 45 RRRuth Petsch Dec. 5, 2017 Deposition Ex 8, Motion Requesting Conference to Discuss Caseload Issues, Nov. 1, 2017, # 46 SSEmail from Christopher Piatt, Assistant Public Defender, to Michael Barrett, Missouri Public Defender, Nov. 20, 2017, # 47 TTPD Case Load Finding and Order, In re Area 25 Public Defender Office, # 48 UUDenial, State ex rel. Hazel and Barrett v. Hon Mayer, No. SC96736, Oct. 17, 2017, and Order, State ex rel. Hazel and Barrett v. Hon. Mayer, No. SD35176, Oct. 13, 2017)(Related document(s) 152 ) (Rothert, Anthony) (Entered: 02/21/2018)
161 SUGGESTIONS in opposition re 52 MOTION to certify class Supplemental Suggestions filed by Steven Alan Ramsey on behalf of Defendants Eric Greitens, State of Missouri. Reply suggestions due by 3/7/2018 unless otherwise directed by the court. (Related document(s) 52 ) (Ramsey, Steven) (Entered: 02/21/2018)
162 MOTION for extension of time to Respond and for Leave to Exceed Page Limitation in Response to Plaintiff's Motion for Summary Judgment filed by Laura E. Elsbury on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 3/12/2018 unless otherwise directed by the court. (Elsbury, Laura) (Entered: 02/26/2018)
163 MOTION for extension of time to file response/reply as to 148 MOTION for summary judgment filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 3/12/2018 unless otherwise directed by the court. (Related document(s) 148 ) (Rothert, Anthony) (Entered: 02/26/2018)

03/01/2018
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164 ORDER entered by Judge Nanette Laughrey. The State Defendants' Unopposed Motion for Additional Time to Respond and For Leave to Exceed Page Limit, Doc. 162 , and Plaintiffs' Motion for Extension of Time, Doc. 163 , are granted. State Defendants' and Plaintiffs' suggestions in opposition to the cross−motions for summary judgment are due on or before 3/16/2018. State Defendants' suggestions in opposition may not exceed 35 pages. Signed on 3/1/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 03/01/2018)
165 SUGGESTIONS in opposition re 150 MOTION to strike Designation of Plaintiffs' Experts and Exclude Testimony of those Experts at Trial filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 3/16/2018 unless otherwise directed by the court. (Related document(s) 150 ) (Rothert, Anthony) (Entered: 03/02/2018)
166 MOTION for leave to file to file sur−response with respect to motion for class certification filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 3/21/2018 unless otherwise directed by the court. (Attachments: # 1 proposed sur−response, # 2 Affidavit declaration of anthony e. rothert, # 3 Exhibit Ex. A − Dalton judgment, # 4 Exhibit Ex. B − Church docket)(Rothert, Anthony) (Entered: 03/07/2018)
167 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 40 Certificate of Service of the Fourth Supplemental Responses of Defendants Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval, and A. Crista Hogan to Plaintiffs' First Set of Requests for the Production of Documents filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 40 Certificate of Service filed by Randall Lee Dalton, Viola Bowman, Dorian Samuels, Brian Richman, Shondel Church.(Shipma, Jacqueline) (Entered: 03/09/2018)
168 ORDER entered by Judge Nanette Laughrey. Plaintiffs' Motion for Leave to file Sur−Response, Doc. 166 , is granted. Plaintiffs may file a sur−response to the State Defendants' supplemental suggestions in opposition, Doc. 161 , on or before 3/14/2018. Signed on 3/12/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 03/12/2018)
169 SUGGESTIONS in support re 52 MOTION to certify class (sur−response) filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Attachments: # 1 Affidavit declaration of anthony e. rothert, # 2 Exhibit Ex. A − Dalton Order, # 3 Exhibit Ex. B − Church Docket)(Related document(s) 52 ) (Rothert, Anthony) (Entered: 03/13/2018)
170 NOTICE of appearance by Charles Douglas Shull on behalf of Eric Greitens, State of Missouri (Attorney Charles Douglas Shull added to party Eric Greitens(pty:dft), Attorney Charles Douglas Shull added to party State of Missouri(pty:dft))(Shull, Charles) (Entered: 03/15/2018)
171 Motion to Withdraw as Co−Counsel by Eric Greitens, State of Missouri (Ramsey, Steven) Modified on 3/15/2018 to reflect a motion(Price, Jackie). (Entered: 03/15/2018)
172 MOTION for extension of time to file filed by Charles Douglas Shull on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 3/29/2018 unless otherwise directed by the court. (Shull, Charles) (Entered: 03/15/2018)
173 ORDER entered by Judge Nanette Laughrey. State Defendants' Motion for Extension of Time, Doc. 172 , is granted. State Defendants' suggestions in opposition to Plaintiffs' motion for summary judgment, Doc. 152 , is due on or before 3/23/2018. No further extensions will be granted absent extraordinary circumstances. Signed on 3/16/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 03/16/2018)

03/16/2018
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174 SUGGESTIONS in opposition to motion for summary judgment re 148 MOTION for summary judgment filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 3/30/2018 unless otherwise directed by the court. (Attachments: # 1 Affidavit, # 2 Exhibit)(Related document(s) 148 ) (Rothert, Anthony) (Entered: 03/16/2018)
175 MOTION to withdraw as attorney James J. Maune filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 4/3/2018 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 03/20/2018)
176 ORDER entered by Judge Nanette Laughrey. Steven Alan Ramsey's Motion to Withdraw as Counsel on behalf of Defendants State of Missouri and Eric Greitens, Doc. 171 , is granted. State Defendants' remaining counsel, Laura Elsbury, Justin Moore, Dean John Sauer, and Charles Douglas Shull, have already entered their appearances in this matter on behalf of State Defendants. Signed on 3/21/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 03/21/2018)
177 ORDER entered by Judge Nanette Laughrey. James J. Maune's Motion to Withdraw as Counsel on behalf of Plaintiffs, Doc. 175 , is granted. Plaintiffs' remaining counsel, Aaron Scherzer, Amy E. Breihan, Anjali Prasad, Anthony Tartaglio, Anthony E. Rothert, Camille Joanne Rosca, Easha Anand, Evan Rose, Gillian R. Wilcox, Jason D. Williamson, Jessie Steffan, Matthew R. Shahabian, Robert L. Sills, and Will Melehani, have already entered their appearances in this matter on behalf of Plaintiffs. Signed on 3/21/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 03/21/2018)
178 SUGGESTIONS in opposition to motion for summary judgment re 152 MOTION for summary judgment filed by Charles Douglas Shull on behalf of Defendants Eric Greitens, State of Missouri. Reply suggestions due by 4/6/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit 1)(Related document(s) 152 ) (Shull, Charles) (Entered: 03/23/2018)
179 MOTION for leave to file short sur−reply supplementing their Suggestions in Support for Realignment of Missouri State Public Defender Defendants filed by Charles Douglas Shull on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 4/10/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit 1)(Shull, Charles) (Entered: 03/27/2018)
180 SUGGESTIONS in support re 179 MOTION for leave to file short sur−reply supplementing their Suggestions in Support for Realignment of Missouri State Public Defender Defendants filed by Charles Douglas Shull on behalf of Defendants Eric Greitens, State of Missouri. (Related document(s) 179 ) (Shull, Charles) (Entered: 03/27/2018)
181 STATUS REPORT 8th Circuit Calendar by Eric Greitens, State of Missouri. (Shull, Charles) (Entered: 03/27/2018)
182 ORDER entered by Judge Nanette Laughrey. State Defendants motion for leave to file sur−reply, Doc. 179 , is denied. Signed on 3/28/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 03/28/2018)
183 Joint MOTION for extension of time filed by Charles Douglas Shull on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 4/12/2018 unless otherwise directed by the court. (Shull, Charles) (Entered: 03/29/2018)
184 ORDER entered by Judge Nanette Laughrey. The parties' joint motion for extension of time, Doc. 183 , is granted. The parties' reply briefs in support of their cross motions for summary judgment, Docs. 148 and 152 , are due on or before 4/13/2018. Signed on 3/30/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 03/30/2018)
Set/Reset Deadlines as to 148 MOTION for summary judgment , 152 MOTION for summary judgment . Reply suggestions due by 4/13/2018 unless otherwise directed by the court. (Matthes Mitra, Renea) (Entered: 04/11/2018)

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185 Consent MOTION for leave to file excess pages filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 4/26/2018 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 04/12/2018)
186 ORDER entered by Judge Nanette Laughrey. Plaintiffs' unopposed motion to exceed page limitation, Doc. 185 , is granted. Plaintiffs' suggestions in reply for their motion for summary judgment may not exceed twenty pages. Signed on 4/12/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 04/12/2018)
187 ORDER entered by Judge Nanette Laughrey. A Telephone Conference is set for 4/17/2018 at 11:45 AM regarding scheduling. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 4/13/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 04/13/2018)
188 REPLY SUGGESTIONS to motion re 152 MOTION for summary judgment filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Related document(s) 152 ) (Rothert, Anthony) (Entered: 04/13/2018)
189 REPLY SUGGESTIONS to motion re 152 MOTION for summary judgment (Corrected) filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Related document(s) 152 ) (Rothert, Anthony) (Entered: 04/13/2018)
190 MINUTE ENTRY. Teleconference held before the Hon. Nanette K. Laughrey on April 17, 2018 regarding scheduling. The Court denied without prejudice, subject to being refiled at a later time, the following outstanding motions: [Doc. 134, 148, 150, and 152]. The Motion to Certify Class, [Doc. 52], and Motion to Stay, [Doc. 133], will remain pending. The Court struck the May 29, 2018 trial date and reset the bench trial for August 15, 2018. The parties shall notify the courtroom deputy of any conflicts by the end of the week. Appearances: Plaintiff by Anthony Rothert and Jason Williamson. Defendants by Jacqueline Shipma, Doug Shull, Laura Ellsbury and Mike Pritchett. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: None. (Text entry only.) (Matthes Mitra, Renea) (Entered: 04/17/2018)
191 THIRD AMENDED SCHEDULING ORDER: Pretrial Conference set for 10/15/2018 at 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 10/15/2018 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 4/23/18 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 04/23/2018)
192 MOTION to withdraw as attorney filed by Laura E. Elsbury on behalf of Eric Greitens, State of Missouri. Suggestions in opposition/response due by 5/9/2018 unless otherwise directed by the court. (Elsbury, Laura) (Entered: 04/25/2018)
193 ORDER entered by Judge Nanette Laughrey. Laura E. Elsbury's Motion to Withdraw as Counsel on behalf of Defendants State of Missouri and Eric Greitens, Doc. 192 , is granted. State Defendants' remaining counsel, Justin Moore, Dean John Sauer, and Charles Douglas Shull, have already entered their appearances in this matter on behalf of State Defendants. Signed on 4/25/2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Dickinson, Gregory) (Entered: 04/25/2018)
194 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 40 Certificate of Service Fifth Supplemental Responses of Defendants Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval, and A. Crista Hogan to Plaintiffs' First Set of Requests for the Production of Documents filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Related document: 40 Certificate of Service filed by Randall Lee Dalton, Viola Bowman, Dorian Samuels, Brian Richman, Shondel Church.(Shipma, Jacqueline) (Entered: 07/09/2018)
195 ORDER entered by Judge Nanette K. Laughrey. A Status Telephone Conference is set for 8/28/2018 at 02:00 PM. The parties shall call conference number 877−336−1828, access code: 8503666 to participate. Signed on 8/24/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra,

08/28/2018
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Renea) (Entered: 08/24/2018)
196 MINUTE ENTRY. Teleconference held before the Hon. Nanette K. Laughrey on August 28, 2018 regarding the trial setting. The Court struck the October 15, 2018 trial setting and all pretrial filing deadlines pending resolution of the Eighth Circuit case. Appearances: Plaintiff by Anthony Rothert, Jason Williamson, Aaron Scherzer. Defendants by Jacqueline Shipma and Doug Shull. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: None. (Text entry only.) (Matthes Mitra, Renea) (Entered: 08/28/2018)
197 NOTICE of filing of supplemental authority by Viola Bowman, Shondel Church, Randall Lee Dalton re 52 MOTION to certify class (Attachments: # 1 Order − Allen v. Edwards)(Rothert, Anthony) (Entered: 08/29/2018)
198 MOTION to withdraw as attorney permitting Aaron Scherzer to withdraw as co−counsel for Plaintiffs filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 10/24/2018 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 10/10/2018)
199 ORDER entered by Judge Nanette Laughrey. Aaron Scherzer's motion to withdraw as co−counsel, Doc. 198 , is granted. Numerous other attorneys have already entered their appearances in this matter on behalf of Plaintiffs. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) (Entered: 10/11/2018)
200 MOTION to withdraw as attorney of record for Defendants Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval and A. Crista Hogan on behalf of the Missouri State Public Defender filed by Jacqueline Shipma on behalf of Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Suggestions in opposition/response due by 10/26/2018 unless otherwise directed by the court. (Shipma, Jacqueline) (Entered: 10/12/2018)
201 CERTIFICATE OF SERVICE by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson Motion for Leave to Withdraw as Counsel of Record for Defendants Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval and A. Crista Hogan on behalf of the Missouri State Public Defender filed by Jacqueline Shipma on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson.(Shipma, Jacqueline) (Entered: 10/12/2018)
202 NOTICE of appearance by Patrick J. Berrigan on behalf of Michael Barrett (Attorney Patrick J. Berrigan added to party Michael Barrett(pty:dft))(Berrigan, Patrick) (Entered: 10/30/2018)
203 NOTICE of appearance by Patrick J. Berrigan on behalf of H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson (Attorney Patrick J. Berrigan added to party H. Riley Bock(pty:dft), Attorney Patrick J. Berrigan added to party Craig Chval(pty:dft), Attorney Patrick J. Berrigan added to party A. Crista Hogan(pty:dft), Attorney Patrick J. Berrigan added to party Charles R Jackson(pty:dft))(Berrigan, Patrick) (Entered: 10/30/2018)
204 ORDER entered by Judge Nanette Laughrey. As Patrick J. Berrigan has made an appearance in this case on behalf of Defendants Defendants Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval and A. Crista Hogan, Jacqueline Shipma's motion to withdraw as attorney, Doc. 200 , is granted. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) (Entered: 10/30/2018)
205 ORDER of US COURT OF APPEALS as to 70 Notice of Appeal filed by Eric Greitens, State of Missouri (Geiser, Angel) (Entered: 01/08/2019)
Appeal Remark re 70 Notice of Appeal : PUBLIC DOCKET NOTE: Caption has been edited by replacing Eric R. Greitins with Michael L. Parson. (Geiser, Angel) (Entered: 01/10/2019)
206 USCA Judgment and Opinion as to 70 Notice of Appeal filed by Eric Greitens, State of Missouri This is a preliminary judgment and opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (Attachments: # 1 USCA Opinion, # 2 USCA Letter to Publishing, # 3 USCA Letter to Attorney)(Geiser, Angel) (Entered: 01/10/2019)

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207 NOTICE of appearance by John Gregory Mermelstein on behalf of Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson (Attorney John Gregory Mermelstein added to party Michael Barrett(pty:dft), Attorney John Gregory Mermelstein added to party H. Riley Bock(pty:dft), Attorney John Gregory Mermelstein added to party Craig Chval(pty:dft), Attorney John Gregory Mermelstein added to party A. Crista Hogan(pty:dft), Attorney John Gregory Mermelstein added to party Charles R Jackson(pty:dft))(Mermelstein, John) (Entered: 01/16/2019)
208 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 1/30/2019 at 10:00 AM regarding the status of the case. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 1/28/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 01/28/2019)
209 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on January 30, 2019, regarding the status of case. Mr. Rothert stated that plaintiffs will not be filing a petition for rehearing in the Eighth Circuit and will proceed with the case, including the pending motion for class certification, against the remaining defendants. The Court will address the motion for class certification and set a scheduling order for the remainder of the case after the Mandate is issued. Appearances: Plaintiff by Anthony Rothert and Jason Williamson. Defendants by John Mermelstein, John Sauer, and Doug Shull. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: None. (Text entry only.) (Matthes Mitra, Renea) (Entered: 01/30/2019)
210 MANDATE of US COURT OF APPEALS as to 70 Notice of Appeal filed by Eric Greitens, State of Missouri with mandate issued on 02/05/2019. (Geiser, Angel) (Entered: 02/05/2019)
211 ORDER entered by Judge Nanette K. Laughrey. In light of the Eighth Circuit's decision, Doc. 206 , Plaintiffs' claims against the State of Missouri and Michael L. Parsons, substituted for Eric Greitens under Fed. R. Civ. P. 25(d), are dismissed, and the motion to stay, Doc. 133 , is denied as moot. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) (Entered: 02/26/2019)
212 ORDER entered by Judge Nanette K. Laughrey. Plaintiffs' motion for class certification, Doc. 52 , is denied.(Jackson, Rachel) (Entered: 02/26/2019)
213 ORDER by Judge Nanette K. Laughrey. In light of the Eighth Circuit's decision in this case and the Court's order denying class certification, the parties are ordered to proceed to mediation, either through the Mediation and Assessment Program or, if the parties agree, through an outside mediator of the parties' choice, within 30 days. Signed on March 1, 2019 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 03/01/2019)
214 ORDER entered by Judge Nanette K. Laughrey. Parties shall jointly propose a scheduling order on or before March 18, 2019. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) (Entered: 03/04/2019)
215 AMENDED NOTICE OF INCLUSION FOR MEDIATION AND ASSESSMENT PROGRAM (MAP). REVIEW NOTICE AND MAP GENERAL ORDER CAREFULLY FOR IMPORTANT CHANGES, DEADLINES AND REQUIREMENTS.

03/13/2019 03/13/2019

Notice of MAP re−assignment to Program Director. (Attachments: # 1 MAP General Order)(Woods, Gloria) (Entered: 03/08/2019)
216 Consent MOTION for extension of time to file propose joint scheduling order filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 3/27/2019 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 03/13/2019)
217 ORDER entered by Judge Nanette K. Laughrey. Plaintiffs' consent motion for an extension of time, Doc. 216 , is granted. Parties shall jointly propose a scheduling order on or before March 25, 2019. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) (Entered: 03/13/2019)

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218 Joint PROPOSED SCHEDULING ORDER by Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Rothert, Anthony) (Entered: 03/20/2019)
219 SCHEDULING AND BENCH TRIAL ORDER: Pretrial Conference set for 8/19/2019 at 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 8/19/2019 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 3/26/19 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 03/26/2019)
220 RULES OF TRIAL entered by Judge Nanette K. Laughrey. Signed on 3/26/19 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 03/26/2019)
221 Joint MOTION for consent judgment filed by Anthony E. Rothert on behalf of Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. Suggestions in opposition/response due by 5/28/2019 unless otherwise directed by the court. (Attachments: # 1 proposed consent judgment− this document has been deleted )(Rothert, Anthony) Modified on 5/14/2019 (Lock, Tania). (Entered: 05/13/2019)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 05/13/2019 as Document No. 221−1, Proposed Order. The proposed order attached to the motion has been deleted. Per Administrative Procedures any proposed orders are to be emailed to the Courtroom Deputy in Word format. This is a text entry only − no document is attached. (Lock, Tania) (Entered: 05/14/2019)
222 MOTION to intervene filed by Julie Marie Blake on behalf of Missouri Attorney General. Suggestions in opposition/response due by 5/28/2019 unless otherwise directed by the court. (Attorney Julie Marie Blake added to party Missouri Attorney General(pty:intvd))(Blake, Julie) (Entered: 05/14/2019)
223 SUGGESTIONS in support re 222 MOTION to intervene filed by Julie Marie Blake on behalf of Intervenor Defendant Missouri Attorney General. (Related document(s) 222 ) (Blake, Julie) (Entered: 05/14/2019)
224 MOTION to stay and Suggestions filed by Julie Marie Blake on behalf of Missouri Attorney General. Suggestions in opposition/response due by 5/28/2019 unless otherwise directed by the court. (Blake, Julie) (Entered: 05/14/2019)
225 SUGGESTIONS in opposition re 222 MOTION to intervene MSPD Defendants' Suggestions in Opposition to Attorney General's Motion to Intervene filed by John Gregory Mermelstein on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Reply suggestions due by 6/11/2019 unless otherwise directed by the court. (Attachments: # 1 Index MSPD Defendants List of Exhibits For Its "Suggestions in Opposition to Attorney General's Motion to Intervene", # 2 Exhibit A Mediator Richard Sher's letter to parties, August 15, 2017, # 3 Exhibit B MSPD's (Mermelstein's) correspondence with Attorney General's Office, 2019, # 4 Exhibit C Attorney General Press Release, May 14, 2019, # 5 Exhibit D A Determination of Caseload Standards pursuant to §IV of the Hurrell−Harring v. The State of New York Settlement, December 8, 2016, # 6 Exhibit E The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards, RubinBrown (June 2014))(Related document(s) 222 ) (Mermelstein, John) (Entered: 05/28/2019)
226 SUGGESTIONS in opposition re 224 MOTION to stay and Suggestions MSPD Defendants' Suggestion in Opposition to Attorney General's Motion to Stay filed by John Gregory Mermelstein on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Reply suggestions due by 6/11/2019 unless otherwise directed by the court. (Attachments: # 1 Index MSPD Defendants' List of Exhibits for its "Suggestions in Opposition to Attorney General's Motion to Stay, # 2 Exhibit A The Spangenberg Group, Letter to Keith Birkes, Executive Director, The Missouri Bar, May 4, 1993, # 3 Exhibit B A Report on the Operation of the Missouri State Public Defender, the Spangenberg Gropu, June 1993, # 4 Exhibit C Assessment of the Missouri State Public Defender System, The Spangenberg Group, October 26, 2005, # 5 Exhibit D Assessment of the Missouri State Public Defender System, Final Report, The Spangenberg Group and the Center for Justice, Law and Society at George Mason University, October 2009, # 6 Exhibit E Missouri: Justice Rationed, An Assessment of Access to Counsel and Quality of Juvenile Defense Representation in Delinquency Proceedings, National Juvenile Defender Center,

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Spring 2013, # 7 Exhibit F Investigation of the St. Louis County Family Court, US Department of Justice, Civil Rights Division, July 31, 2015, # 8 Exhibit G The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards, RubinBrown (June 2014), # 9 Exhibit H In re: Karl Hinkebein, Supreme Court No. SC 96089 (Informant's −− Office of Chief Disciplinary Counsel −− Brief), # 10 Exhibit I District Defender Leslie Hazel Letter to Judges, September 28, 2017, # 11 Exhibit J Hearing for Appointment of Office of Public Defender in State of Missouri v Zachary Tucker, No 17SD−CR01237; State of Missouri v Jeremy Vaughn, No. 17SD−CR01224; State of Missouri v Daniel Carver, No 17SD−CR01249, # 12 Exhibit K State of Missouri v Keith Nevels, Transcript of Proceedings, No 1616−CR01742−01, # 13 Exhibit L State of Missouri v Hubert Holmes, No 1716−CR04510, Hearing December 7, 2017, # 14 Exhibit M Orders in Various Cases, including State of Missouri v Travon Jones, Order, No. 1716−CR04941, January 18, 2018, et al, # 15 Exhibit N In re: Area 25 Public Defender Office, Findings and Order, No 17PH−CV02226, January 11, 2018, # 16 Exhibit O State of Missouri v Mariah Evans, Amended Judgment, No 16ML−CR1300−01, June 11, 2018, # 17 Exhibit P State of Missouri v Christopher Kruse, Order to Show Cause, No 1716−CR04391, November 21, 2017, # 18 Exhibit Q Email from the Presiding Judge of the 16th Judicial Circuit to District Defender of Area 16, February 14, 2018, # 19 Exhibit R Senate Committee Substitute for Senate Bill No. 37, 95th Missouri General Assembly, 2009, # 20 Exhibit S Veto Message for Senate Committee Substitute for Senate Bill No. 37, Gov Jeremiah W (Jay) Nixon, July 13, 2009, # 21 Exhibit T American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 06−441, Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendant When Excessive Caseloads Interfere With Competent and Diligent Representation, May 13, 2006, # 22 Exhibit U Docket Sheets, State ex rel Hazel v. Mayer, No. SD 35176, # 23 Exhibit V Docket Sheets, State ex rel Hazel v. Mayer, No. SC 96736)(Related document(s) 224 ) (Mermelstein, John) (Entered: 05/28/2019)
227 SUGGESTIONS in opposition re 224 MOTION to stay and Suggestions filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 6/11/2019 unless otherwise directed by the court. (Related document(s) 224 ) (Rothert, Anthony) (Entered: 05/28/2019)
228 SUGGESTIONS in opposition re 222 MOTION to intervene filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels. Reply suggestions due by 6/11/2019 unless otherwise directed by the court. (Related document(s) 222 ) (Rothert, Anthony) (Entered: 05/28/2019)
229 NOTICE of appearance by Cristian Matthew Stevens on behalf of Missouri Attorney General (Attorney Cristian Matthew Stevens added to party Missouri Attorney General(pty:intvd))(Stevens, Cristian) (Entered: 06/04/2019)
230 NOTICE of appearance by Jeremiah J. Morgan on behalf of Missouri Attorney General (Attorney Jeremiah J. Morgan added to party Missouri Attorney General(pty:intvd))(Morgan, Jeremiah) (Entered: 06/11/2019)
231 REPLY SUGGESTIONS to motion re 222 MOTION to intervene filed by Jeremiah J. Morgan on behalf of Intervenor Defendant Missouri Attorney General. (Related document(s) 222 ) (Morgan, Jeremiah) (Entered: 06/11/2019)
232 ORDER entered by Judge Nanette K. Laughrey. Oral argument will be presented by telephone conference on the Motion to Intervene, Doc. 222 , on 6/13/2019 at 10:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 6/12/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/12/2019)
233 ORDER entered by Judge Nanette K. Laughrey. Oral Argument on the Joint Motion for Consent Judgment, Doc. 221 , is set in person for 6/18/2019 at 02:00 PM in Courtroom 4A, Jefferson City (NKL) before District Judge Nanette K. Laughrey. Signed on 6/12/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/12/2019)

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234 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on June 13, 2019. Oral argument presented on the Missouri Attorney General's Motion to Intervene, Doc. 222. The Court took the matter under advisement. Appearances: Plaintiff by Anthony Rothert, Jason Williamson, Gillian Wilcox and Amy Breihan. Defendants by John Mermelstein. Missouri Attorney General by Jeremiah Morgan and Cristian Stevens. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: Katie Wirt (Text entry only.) This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/13/2019)
235 ORDER entered by Judge Nanette K. Laughrey. The oral argument hearing set for Tuesday, June 18, 2019, at 2:00 PM is cancelled. Signed on 6/13/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/13/2019)
236 ELECTRONIC TRANSCRIPT of Teleconference held 6/13/2019 before Judge Nanette K. Laughrey. Court Reporter: Katie Wirt, 816−512−5608, katie_wirt@mow.uscourts.gov. Number of pages: 46. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 7/8/2019 unless otherwise directed by the court. Release of Transcript Restriction set for 9/26/2019.(Wirt, Katie) (Entered: 07/01/2019)
237 ORDER SETTING TRIAL DOCKET BEGINNING MONDAY, AUGUST 19, 2019. Signed on 7/3/19 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 07/03/2019)
238 ORDER entered by Judge Nanette K. Laughrey. The Attorney General's motion to intervene, Doc. 222 , is denied. The related motion to stay proceedings, Doc. 224 , is denied as moot. However, the Attorney General may, within two weeks of the date of this Order, file an amicus brief not exceeding 25 pages that addresses whether the proposed consent judgment comports with Missouri law and whether it will unavoidably and adversely affect public safety and welfare in a concrete and particularized way. Plaintiffs and the MSPD Defendants will each have two weeks after the filing of such amicus brief to file a response. (Attachments: # 1 Exhibit 1) (Jackson, Rachel) (Entered: 07/12/2019)
239 Consent MOTION for extension of time to file pretrial submissions filed by Jason D. Williamson on behalf of All Plaintiffs. Suggestions in opposition/response due by 7/29/2019 unless otherwise directed by the court. (Williamson, Jason) (Entered: 07/15/2019)
240 ORDER entered by Judge Nanette K. Laughrey. Plaintiffs' consent motion to extend the deadline for pretrial submissions, Doc. 239 , is granted. Trial Briefs, Motions in Limine, the Memo on Pretrial Conference, and witness and exhibit lists are due August 16, 2019. Responses to Motions in Limine are due August 19, 2019. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) Modified on 7/17/2019 to include response deadline to Motions in Limine. (Matthes Mitra, Renea). (Entered: 07/16/2019)
241 ORDER entered by Judge Nanette K. Laughrey. On July 12, 2019, the Court entered an Order permitting the Attorney General to file, on or before July 26, 2019, an amicus brief addressing whether the proposed consent judgment comports with Missouri law and whether it will unavoidably and adversely affect public safety and welfare in a concrete and particularized way. Doc. 238 . The Court permitted Plaintiffs and the MSPD Defendants two weeks to respond to any amicus brief filed by the Attorney General. Id. The Court now further directs the Attorney General and the parties to also address in their respective briefs any issues associated with enforcement of the proposed consent decree, if it is to be entered. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) (Entered: 07/16/2019)
242 NOTICE OF APPEAL as to 238 Order on Motion to Intervene,,, Order on Motion to Stay,, by Missouri Attorney General. Filing fee $ 505, receipt number AMOWDC−6417391. (Morgan, Jeremiah) (Entered: 07/26/2019)

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243 MOTION to stay Pending Appeal filed by Jeremiah J. Morgan on behalf of Missouri Attorney General. Suggestions in opposition/response due by 8/9/2019 unless otherwise directed by the court. (Morgan, Jeremiah) (Entered: 07/26/2019)
244 SUGGESTIONS in support re 243 MOTION to stay Pending Appeal filed by Jeremiah J. Morgan on behalf of Intervenor Defendant Missouri Attorney General. (Attachments: # 1 Exhibit)(Related document(s) 243 ) (Morgan, Jeremiah) (Entered: 07/26/2019)
245 TRANSMISSION of Notice of Appeal Supplement to US Court of Appeals, 8th Circuit via electronic mail. Related document 242 Notice of Appeal. (Geiser, Angel) (Entered: 07/26/2019)
246 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 7/26/2019 at 04:00 PM. The parties shall call conference number 877−336−1828, access code: 8503666 to participate. Signed on 7/26/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 07/26/2019)
247 NOTICE of filing Amicus Brief by Missouri Attorney General re 238 Order on Motion to Intervene,,, Order on Motion to Stay,, (Morgan, Jeremiah) (Entered: 07/26/2019)
248 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on July 26, 2019. Mr. Morgan stated that the Attorney General will file his amicus brief in opposition to the proposed consent judgment today. Mr. Morgan asked the Court to stay consideration of the proposed consent judgment pending his appeal of the Court's order denying the Attorney General's motion to intervene. The Court struck the trial setting and will consider the arguments raised in the briefing regarding whether the Court should approve the proposed consent judgment. If the proposed consent judgment is entered, the Court would stay its operation pending appeal. Mr. Rothert and Mr. Mermelstein requested an opportunity to be heard regarding the stay if the consent judgment is entered. Appearances: Plaintiffs by Anthony Rothert, Jason Williamson, Gillian Wilcox and Amy Breihan. Defendants by Greg Mermelstein. Missouri Attorney General by Jeremiah Morgan. Courtroom Deputy: Renea Matthes Mitra. Court Reporter: Katie Wirt (Text entry only.) To order a transcript of this hearing please contact Katie Wirt, 816−512−5608, katie_wirt@mow.uscourts.gov. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 07/29/2019)
249 ORDER entered by Judge Nanette K. Laughrey. The Attorney General's motion to stay, Doc. 243 , is granted in part and denied in part. The Court has struck the trial date. In the event any consent order is entered, the Court will stay enforcement pending resolution of the Attorney General's appeal on the issue of intervention. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) Modified on 8/1/2019 to show copy of order emailed to the Eighth Circuit(Geiser, Angel). (Entered: 07/29/2019)
250 USCA Case Number from Eighth Circuit is 19−2584 for 242 Notice of Appeal filed by Missouri Attorney General. Briefing schedule entered by the Court of Appeals is attached. Transcript due by 9/9/2019. (Attachments: # 1 USCA Case Number)(Geiser, Angel) (Entered: 08/06/2019)
251 Consent MOTION for extension of time to respond to Attorney General's amicus brief in opposition to the parties' Proposed Consent Judgment filed by Jason D. Williamson on behalf of All Plaintiffs. Suggestions in opposition/response due by 8/20/2019 unless otherwise directed by the court. (Williamson, Jason) (Entered: 08/06/2019)
252 ORDER entered by Judge Nanette K. Laughrey. Plaintiffs' consent motion for an extension of time, Doc. 251 , is granted. The deadline for the Parties' responses to the Attorney General's amicus brief is extended to August 23, 2019. This is a TEXT ONLY ENTRY. No document is attached. (Jackson, Rachel) (Entered: 08/06/2019)
253 Appeal Remark re 242 Notice of Appeal : Notification letter from the Clerk of the Court editing the caption of USCA case number 19−2584. (Attachments: # 1 USCA Case Caption)(Geiser, Angel) (Entered: 08/20/2019)
254 RESPONSE to order re 238 Order on Motion to Intervene,,, Order on Motion to Stay,, 241 Order,,, 252 Order on Motion for Extension of Time, response to amicus brief of

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attorney general filed by Anthony E. Rothert on behalf of Plaintiffs Viola Bowman, Randall Lee Dalton, Brian Richman, Dorian Samuels. (Related document(s) 238 , 241 , 252 ) (Rothert, Anthony) (Entered: 08/23/2019)
255 RESPONSE to order re 238 Order on Motion to Intervene,,, Order on Motion to Stay,, 241 Order,,, MSPD Defendants' Response to Attorney General's Amicus Brief as to the Proposed Consent Judgment filed by John Gregory Mermelstein on behalf of Defendants Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. (Attachments: # 1 Index MSPD Defendants' List of Exhibits for its Response to Attorney General's Amicus Brief, # 2 Exhibit Exhibits A − Q)(Related document(s) 238 , 241 ) (Mermelstein, John) (Entered: 08/23/2019)
256 ORDER entered by Judge Nanette K. Laughrey. Oral argument will be presented on the proposed consent judgment on 10/17/2019 at 11:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 10/07/2019)
257 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on October 17, 2019. Oral argument presented on the proposed consent judgment. The Court took the matter under advisement. Appearances: Plaintiffs by Jason Williamson, Amy Breihan, Megan Crane, and Anthony Rothert. Defendants by Greg Mermelstein. Missouri Attorney General by Jeremiah Morgan and Jason Lewis (not a participant). Court Reporter: Jean Crawford. Courtroom Deputy: Renea Matthes Mitra. (Text entry only.) To order a transcript of this hearing please contact Jean Crawford, 816−512−5642, jean_crawford@mow.uscourts.gov. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 10/17/2019)
258 NOTICE of appearance by Megan G Crane on behalf of All Plaintiffs (Attorney Megan G Crane added to party Viola Bowman(pty:pla), Attorney Megan G Crane added to party Shondel Church(pty:pla), Attorney Megan G Crane added to party Randall Lee Dalton(pty:pla), Attorney Megan G Crane added to party Brian Richman(pty:pla), Attorney Megan G Crane added to party Dorian Samuels(pty:pla))(Crane, Megan) (Entered: 10/17/2019)
259 ELECTRONIC TRANSCRIPT of Teleconference − Oral Argument held 10/17/2019 before Judge Nanette K. Laughery. Court Reporter: Jean Crawford, 816−512−5642, jean_crawford@mow.uscourts.gov. Number of pages: 29. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 11/25/2019 unless otherwise directed by the court. Release of Transcript Restriction set for 2/13/2020.(Crawford, Jean) (Entered: 11/18/2019)
261 ORDER entered by Judge Nanette K. Laughrey. The parties' joint motion for entry of the proposed consent judgment, Doc. 221 , is denied. Signed on 01/27/2020 by District Judge Nanette K. Laughrey. (Thompson, Amy) (Entered: 01/27/2020)
262 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 1/29/2020 at 11:00 AM regarding the status of the case. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 1/28/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 01/28/2020)
263 ORDER entered by Judge Nanette K. Laughrey. The Telephone Conference previously set for 1/29/2020 at 11:00 AM is reset for 1/30/2020 at 09:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 1/28/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 01/28/2020)
264 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on January 30, 2020. The Court inquired about the status of the remaining Plaintiffs and whether they continue to be represented by a public defender. Mr. Williamson

02/11/2020 02/13/2020 02/14/2020
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requested additional time to discuss the issue with his clients and to discuss mediation with Defendants. The Court will set another status conference in two weeks. Appearances: Plaintiffs by Jason Williamson. Defendants by Greg Mermelstein. Missouri Attorney General by Jeremiah Morgan and Jason Lewis (not a participant). Court Reporter: None. Courtroom Deputy: Renea Matthes Mitra. (Text entry only.) This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) Modified on 2/14/2020 to correct date of teleconference.(Matthes Mitra, Renea). (Entered: 01/30/2020)
265 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 2/13/2020 at 10:00 AM regarding the status of the case. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 2/11/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 02/11/2020)
266 ORDER entered by Judge Nanette K. Laughrey. The Teleconference previously set for 10:00 AM on 2/13/2020 is reset for 2/14/2020 at 02:00 PM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 2/13/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 02/13/2020)
267 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on February 14, 2020. The Court inquired about the status of the case. Mr. Mermelstein stated that, although the Public Defender Commission is aware of the Court's ruling regarding the consent judgment, the Commission has not yet met to discuss how to proceed. The next Commission meeting is scheduled for April 2020. The Court stayed the case until May 1, 2020. However, at that time, the case will need to move forward. Appearances: Plaintiffs by Jason Williamson, Anthony Rothert, and Amy Breihan. Defendants by Greg Mermelstein. Missouri Attorney General by Jeremiah Morgan (not a participant). Court Reporter: None. Courtroom Deputy: Renea Matthes Mitra. (Text entry only.) This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 02/14/2020)
268 ORDER entered by Judge Nanette K. Laughrey. The Court's stay of this action is due to expire on May 1, 2020. The parties are directed to submit a joint status report on or before that date regarding how the parties plan to proceed on Plaintiffs' individual claims. Signed on 04/24/2020 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Thompson, Amy) (Entered: 04/24/2020)
269 NOTICE of appearance by George Michael Stewart on behalf of Michael Barrett (Attorney George Michael Stewart added to party Michael Barrett(pty:dft))(Stewart, George) (Entered: 04/29/2020)
270 Motion to allow Richard L. Kroeger, Jr. to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−6839209) filed by George Michael Stewart on behalf of Michael Barrett. (Stewart, George) (Entered: 04/29/2020)
271 Motion to allow Ted Gianaris to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−6839246) filed by George Michael Stewart on behalf of Michael Barrett. (Stewart, George) (Entered: 04/29/2020)
272 ORDER granting 270 motion to appear pro hac vice entered by Clerk of Court. Attorney Richard L. Kroeger, Jr. for Michael Barrett allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

04/29/2020

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached. (Berner, Crystal) (Entered: 04/29/2020)
273 ORDER granting 271 motion to appear pro hac vice entered by Clerk of Court. Attorney Ted Gianaris for Michael Barrett allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

04/29/2020 04/29/2020
04/29/2020 04/30/2020 04/30/2020
04/30/2020 05/01/2020
05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached. (Berner, Crystal) (Entered: 04/29/2020)
274 MOTION to withdraw as attorney filed by John Gregory Mermelstein on behalf of Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. Suggestions in opposition/response due by 5/13/2020 unless otherwise directed by the court. (Mermelstein, John) (Entered: 04/29/2020)
275 ORDER entered by Judge Nanette K. Laughrey. In light of the fact that other counsel continue to represent all Missouri State Public Defender (MSPD) Defendants: Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval, and A. Crista Hogan, John Mermelstein's Motion for Leave to Withdraw as Counsel, Doc. 274 is granted. Signed on 4/29/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 04/29/2020)
276 MOTION to withdraw as attorney for MSPD Defendants filed by Patrick J. Berrigan on behalf of All Defendants. Suggestions in opposition/response due by 5/13/2020 unless otherwise directed by the court. (Berrigan, Patrick) (Entered: 04/29/2020)
277 MOTION to withdraw as attorney Easha Anand filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 5/14/2020 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 04/30/2020)
278 ORDER entered by Judge Nanette K. Laughrey. In light of the fact that other counsel continue to represent all Missouri State Public Defender (MSPD) Defendants: Michael Barrett, H. Riley Bock, Charles R. Jackson, Craig Chval, and A. Crista Hogan, Patrick J. Berrigan's Motion for Leave to Withdraw as Counsel, Doc. 276, is granted. Signed on 4/30/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 04/30/2020)
279 ORDER entered by Judge Nanette K. Laughrey. In light of the fact that other counsel continue to represent the Plaintiffs, Easha Anand's Motion to Withdraw as Co−Counsel for Plaintiffs, Doc. 277 , is granted. Signed on 4/30/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 04/30/2020)
280 NOTICE of appearance by George Michael Stewart on behalf of H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson (Attorney George Michael Stewart added to party H. Riley Bock(pty:dft), Attorney George Michael Stewart added to party Craig Chval(pty:dft), Attorney George Michael Stewart added to party A. Crista Hogan(pty:dft), Attorney George Michael Stewart added to party Charles R Jackson(pty:dft))(Stewart, George) (Entered: 05/01/2020)
281 This document has been deleted. Motion to allow Richard L. Kroeger to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−6839209) filed by George Michael Stewart on behalf of H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. (Stewart, George) Modified on 5/4/2020 (Berner, Crystal). (Entered: 05/01/2020)
282 This document has been deleted. Motion to allow Ted Gianaris to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−6839246) filed by George Michael Stewart on behalf of H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. (Stewart, George) Modified on 5/4/2020 (Berner, Crystal). (Entered: 05/01/2020)
283 STATUS REPORT by Viola Bowman. (Rothert, Anthony) (Entered: 05/01/2020)
284 Motion to allow Richard L. Kroeger, Jr. to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−6839209) filed by George Michael Stewart on behalf of H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. (Stewart, George) (Main Document 284 replaced on 5/4/2020) (Berner, Crystal). (Entered: 05/01/2020)
285 Motion to allow Ted Gianaris to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−6839246) filed by George Michael Stewart on behalf of H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson. (Stewart, George) (Main Document

05/04/2020 05/04/2020

285 replaced on 5/5/2020) (Berner, Crystal). (Entered: 05/01/2020)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 5/1/20 as Document No. 281 & 282, Pro Hac Vice. The document has been deleted as the incomplete document was filed. Counsel has refiled the complete document. This is a text entry only − no document is attached. (Berner, Crystal) (Entered: 05/04/2020)
286 ORDER granting 284 motion to appear pro hac vice entered by Clerk of Court. Attorney Richard L. Kroeger, Jr. for Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan and Charles R Jackson allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

05/05/2020

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached. (Berner, Crystal) (Entered: 05/04/2020)
287 ORDER granting 285 motion to appear pro hac vice entered by Clerk of Court. Attorney Ted Gianaris for Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan and Charles R Jackson allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

05/06/2020 05/08/2020
05/12/2020 05/13/2020

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached. (Berner, Crystal) (Entered: 05/05/2020)
288 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 5/8/2020 at 10:00 AM regarding the status of the case. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 5/6/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/06/2020)
289 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on May 8, 2020 regarding the status of the case. Mr. Rothert reported that mediation has not been scheduled with the new counsel for defendants. Mr. Kroeger stated that Defendants will need to obtain approval from the Commission for approving or rejecting going forward with mediation and the Commission does not meet again until June 16, 2020. The Court gave Plaintiffs two options: 1) go forward with a bench trial on June 2, 2020, or 2) dismiss the case without prejudice. The Court asked Plaintiffs if they would like time to make a choice, and Mr. Rothert responded that they would. Mr. Kroeger stated that Defendants may need to take depositions prior to the trial. Mr. Rothert stated that discovery is closed. The Court ordered the parties to contact the Court by Monday, May 11, 2020, if they cannot reach a consensual agreement regarding the depositions. Appearances: Plaintiffs by Anthony Rothert and Jason Williamson. Defendants by Michael Stewart, Richard Kroeger, Jr., and Ted Gianaris. Missouri Attorney General by Jeremiah Morgan. Court Reporter: None. Courtroom Deputy: Renea Matthes Mitra. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/08/2020)
290 NOTICE of appearance by Kayla DeLoach on behalf of All Plaintiffs (Attorney Kayla DeLoach added to party Viola Bowman(pty:pla), Attorney Kayla DeLoach added to party Shondel Church(pty:pla), Attorney Kayla DeLoach added to party Randall Lee Dalton(pty:pla), Attorney Kayla DeLoach added to party Brian Richman(pty:pla), Attorney Kayla DeLoach added to party Dorian Samuels(pty:pla))(DeLoach, Kayla) (Entered: 05/12/2020)
291 AMENDED SCHEDULING ORDER: Bench Trial set for June 2, 2020 at 09:00 AM by Video Teleconference before District Judge Nanette K. Laughrey. Memo on Pretrial Conference due by May 26, 2020. Exhibit List due by May 26, 2020. Trial Briefs due by May 26, 2020. Proposed Findings of Fact and Conclusions of Law due

05/13/2020 05/13/2020 05/13/2020 05/15/2020
05/18/2020 05/18/2020 05/19/2020 05/19/2020

ten days after the trial. Motions in Limine due by May 21, 2020. Responses to Motions in Limine due by May 27, 2020. Signed on 5/13/2020 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 05/13/2020)
292 ORDER entered by Judge Nanette K. Laughrey. A status Telephone Conference is set for 5/15/2020 at 10:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 5/13/2020 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/13/2020)
293 MOTION to withdraw as attorney Anthony Tartaglio, Robert Sills, and Evan Rose filed by Anthony E. Rothert on behalf of Viola Bowman. Suggestions in opposition/response due by 5/27/2020 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 05/13/2020)
294 ORDER entered by Judge Nanette K. Laughrey. In light of the fact that other counsel continue to represent Plaintiffs, Anthony Tartaglio, Robert Sills, and Evan Rose are granted leave to withdraw. (Doc. 293 ). Signed on 5/13/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/13/2020)
295 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on May 15, 2020 regarding the status of the case. The Court ruled that additional discovery will not be permitted because discovery as closed. The parties may engage in consensual discovery. Mr. Kroeger stated Defendants are ready for trial June 2, 2020. Mr. Williams estimated Plaintiffs case will take approximate four days and will call 20−25 witnesses. Mr. Kroeger estimated Defendants case will take one day to present. The Court took the matter under advisement and will reconvene the teleconference at a later time. Appearances: Plaintiffs by Anthony Rothert, Jason Williamson and Amy Breihan. Defendants by Michael Stewart, Richard Kroeger, Jr., and Ted Gianaris. Missouri Attorney General by Jeremiah Morgan and Jason Lewis. Court Reporter: None. Courtroom Deputy: Renea Matthes Mitra. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/15/2020)
296 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 5/19/2020 at 10:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 5/18/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/18/2020)
297 Document 297 has been removed as it was incorrectly filed in this case. Modified on 5/19/2020 (James, Carrie). (Entered: 05/18/2020)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 5/18/20 as Document No. 297, Motion. The document has been deleted as the document was filed improperly in this case. This is a text entry only − no document is attached. (James, Carrie) (Entered: 05/19/2020)
298 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on May 19, 2020. The Court informed the parties that the courthouse will now be open beginning June 1, 2020 for non−jury trial hearings. The Court asked for argument on the issue of standing. Oral argument presented by the parties. Mr. Williamson stated Plaintiffs are seeking a declaratory judgment that the circumstances surrounding Ms. Bowman's representation are the result of an unconstitutional system and that Ms. Bowman must be provided adequate representation. Defendants stated that it appears only one Plaintiff with potential standing remains and thus the remedy would need to be tailored to her specific case. The Court will permit Plaintiff to file briefing on this issue within 10 days and directed Plaintiffs to submit an example of a declaratory judgment they might seek. The Defendants may file an additional brief on the issue within the same 10 days. The parties were in agreement to delay the June 2, 2020 trial in order to resolve this issue. The Court will strike all currently pending deadlines. The Court will find another date for the bench trial as soon as possible. Mr. Williamson informed the Court that the ACLU has banned work travel until after Labor Day. Appearances: Plaintiffs by Jason Williamson and Amy Breihan. Defendants by Richard Kroeger, Jr., and Ted Gianaris. Missouri Attorney General by Jeremiah

05/29/2020 05/29/2020 06/08/2020
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Morgan and Jason Lewis. Court Reporter: None. Courtroom Deputy: Renea Matthes Mitra. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/19/2020)
299 NOTICE of filing MSPD−Defendant's Bench Brief on Lack of Standing of Remaining Plaintiffs by Michael Barrett, H. Riley Bock, Craig Chval, A. Crista Hogan, Charles R Jackson re 298 Telephone Conference,,,,,, (Stewart, George) (Entered: 05/29/2020)
300 NOTICE of filing OF PLAINTIFFS BENCH BRIEF IN SUPPORT OF VIOLA BOWMANS STANDING TO SEEK DECLARATORY AND INJUNCTIVE RELIEF by Viola Bowman, Shondel Church, Randall Lee Dalton, Brian Richman, Dorian Samuels re 298 Telephone Conference,,,,,, (Breihan, Amy) (Entered: 05/29/2020)
301 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 6/11/2020 at 11:00 AM regarding the trial setting. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 6/8/20 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/08/2020)
302 ORDER entered by Judge Nanette K. Laughrey. Today, June 10, 2020, the parties notified the Court that they have reached a resolution. In light of the parties' forthcoming stipulation of dismissal, the teleconference regarding the trial setting scheduled for June 11, 2020 is cancelled. Signed on 06/10/2020 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Thompson, Amy) (Entered: 06/10/2020)
303 STIPULATION of dismissal without prejudice by Viola Bowman. (Williamson, Jason) (Entered: 06/15/2020)
304 NOTICE of filing Regarding Pending Appeal by Missouri Attorney General (Morgan, Jeremiah) (Entered: 06/19/2020)
305 USCA Judgment and/or Opinion as to 242 Notice of Appeal filed by Missouri Attorney General This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (Berner, Crystal) (Entered: 07/08/2020)
306 MANDATE of US COURT OF APPEALS as to 242 Notice of Appeal filed by Missouri Attorney General with mandate issued on 07/29/2020. (Berner, Crystal) (Entered: 07/30/2020)
307 ORDER entered by Judge Nanette K. Laughrey. At the direction of the Eighth Circuit, the Court vacates its July 12, 2019 Order denying the Missouri Attorney General's motion to intervene, Doc. 238. Signed on 8/4/20 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 08/04/2020)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

Randall Lee DALTON, et al., Plaintiffs,
v. Michael BARRETT, et al.,
Defendants.1

)

)

)

)

)

No. 17-cv-04057-NKL

)

)

)

)

)

ORDER

Pending before the Court is Plaintiffs’ motion for class certification, Doc. 52. For the

following reasons, the motion is denied.

I. Background

This lawsuit challenges the adequacy of the Missouri State Public Defender (MSPD),

which provides legal representation to all indigent citizens accused or convicted of crimes in

Missouri state court. Named Plaintiffs filed this putative class action alleging that Missouri “has

failed to meet its constitutional obligation to provide indigent defendants with meaningful

representation.” Doc. 1-2, p. 2. The crux of Plaintiffs’ allegations is that the MSPD is underfunded

and overworked, and Plaintiffs seek only injunctive and declaratory relief aimed at correcting the

issues.

A. Missouri Indigent Defense Overview

The State of Missouri relies almost exclusively on local MSPD offices to provide indigent

1 The caption reflects the current parties. Although originally captioned Church v. State of Missouri, the Court has found that plaintiff Shondel Church lacked standing, Doc. 69, p. 33, and plaintiffs’ claims against the State of Missouri and the Governor have been dismissed. Doc. 211.

Case 2:17-cv-04057-NKL Document 212 Filed 02/26/19 Page 1 of 13

defense services in all 114 counties and St. Louis City. MSPD comprises three distinct parts: the Trial Division, subdivided into 33 district offices across the State; the Appellate/Post-Conviction Division, subdivided into six offices; and the Capital Division, subdivided into three offices. MSPD employs approximately 376 attorneys—including roughly 313 in the Trial Division—and approximately 200 administrative staff, support staff, paralegals, and investigators. The MSPD represents indigent defendants in over 100,000 cases each year, counting new cases and cases carried over from previous years.
1. Funding MSPD is funded almost exclusively from Missouri’s general revenue. The level of funding provided by the State is less than one half of one percent of the State’s general revenue. In fiscal year 2016, the MSPD Trial Division handled more than 75,000 cases; with its funding, the MSPD spent an average of $356 per case. Since the establishment of MSPD in its current form in 1989, there have been at least ten independent evaluations of Missouri’s public defense system.2 One such study, conducted by the Sixth Amendment Center, determined that Missouri’s per capita spending on indigent defense is approximately one-third of the average of the 35 states surveyed. According to the study, in fiscal year 2015 Missouri spent $6.20 per resident for indigent defense services, compared to an average of $18.41 per capita among the other States in the study. Missouri currently ranks 49th among the 50 states in funding for indigent defense.
2. Workloads In 1993, the MSPD Commission sought the assistance of The Spangenberg Group (TSG) in studying the internal operations of the Missouri public defense system, including issues related to budgeting, staffing, and allocation of resources. TSG’s report concluded that MSPD “lack[ed]
2 The reports from those studies are in the record at Docs. 1-3, 1-4.
2
Case 2:17-cv-04057-NKL Document 212 Filed 02/26/19 Page 2 of 13

the necessary resources to provide competent representation,” and that “[t]he legal staff needs to be increased as soon as possible.” Doc. 1-3, pp. 86–106.
In 2005, the Missouri Bar Association formed a Public Defender Task Force to work in conjunction with the MSPD Commission to address those deficiencies. The task force commissioned TSG to conduct another study into the MSPD. The report warned that, despite the best efforts of MSPD’s attorneys, many public defenders were routinely failing to comply with MSPD’s Public Defender Guidelines for Representation and the Missouri Rules of Professional Conduct. Doc. 1-3, pp. 111–38.
In January 2007, an interim committee of the Missouri Senate released its report on MSPD. The committee found that the caseloads of public defenders were “too large,” and recommended that “caseloads . . . be reduced, support staff be increased, the number of public defenders be increased . . . [and] the base salary of public defenders be[ ] increased.” Docs. 1-3, pp. 140–50; 14, pp. 1–4.
In 2009, the Missouri Bar Association retained TSG for another report. TSG concluded that public defender workloads had worsened since its 2005 report and, as a result of those workloads, public defenders were failing to (1) conduct prompt interviews of their clients following arrest, (2) spend sufficient time interviewing and counseling their clients, (3) advocate effectively for pretrial release, (4) conduct thorough investigations of their cases, (5) pursue formal and informal discovery, (6) file appropriate and essential pleadings and motions, (7) conduct necessary legal research, and (8) prepare adequately for pretrial hearings, trial, and sentencing. Doc. 1-4, pp. 6–73.
In June 2014, the ABA and accounting firm RubinBrown released a study of Missouri’s public defender system, which included an assessment of public defender workloads for both adult
3
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and juvenile matters. Doc. 1-7. The researchers calculated the minimum number of hours (excluding court time, travel, and administrative tasks) that an attorney would need to devote to different types of cases in order to provide constitutionally adequate representation. The study determined that a constitutionally adequate attorney would need to spend a minimum of 106.6 hours on a non-capital murder/homicide case; at least 47.6 hours on an A/B felony; at least 25.0 hours on a C/D felony; at least 63.8 hours on a felony sex offense; at least 11.7 hours on a misdemeanor; at least 9.8 hours on a probation violation; and at least 19.5 hours on a juvenile case. Doc. 1-4, pp. 75–121.
In 2015, MSPD attorneys were able to spend, on average, 84.5 hours on each non-capital murder/homicide case; 8.7 hours on each A/B felony; 4.4 hours on each C/D felony; 25.6 hours on each felony sex offense; 2.3 hours on each misdemeanor; 1.4 hours on each probation violation; and 4.6 hours on each juvenile case. Id. Under the ABA’s analysis, “attorneys in the St. Louis County office [were] at 265% workload capacity,” and throughout the state, for example: “239% capacity for the Springfield office, 254% for Jefferson City, and 254% for Farmington.” Doc. 14, pp. 124–126. MSPD Trial Division attorneys were able to devote the minimum required hours to only 2.4% of all A/B felony cases (or 97 out of 4,127 total A/B felony cases) and 1.4% of C/D felony cases (or 311 out of 21,491 total C/D felony cases). Doc. 1-4, pp. 189–99.
In 2012, the Missouri Supreme Court upheld the validity of a rule promulgated by the MSPD Commission that “permit[ted] a district defender office to decline additional appointments when it ha[d] been certified as being on limited availability after exceeding its caseload capacity for at least three consecutive calendar months.” State ex rel. Missouri Public Defender Commission v. Waters, 370 S.W.3d 592, 597 (Mo. 2012). After that decision, however, public defenders who attempted to turn away cases faced resistance from prosecutors, judges, and
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legislators. In some circuits, cases that were turned away were assigned to non-MSPD attorneys with no criminal defense experience, and who were not compensated for their time.
The then-head of MSPD was told that if local offices continued to turn away cases, the legislature would pass a bill to privatize the entire system. The legislature passed Mo. Rev. Stat. § 600.062, which prevents the director of MSPD or the MSPD Commission from “limit[ing] the availability of a district office or any division director, district defender, deputy district defender, or assistant public defender to accept cases based on a determination that the office has exceeded a caseload standard.” Under Section 600.062, MSPD “may not refuse to provide representation” unless it receives “prior approval from a court of competent jurisdiction.” Since the legislature’s enactment of 600.602, no MSPD office has refused cases in any consistent or systematic way.
B. Plaintiffs’ Proposed Class Plaintiffs seek certification of a class of similarly situated individuals who currently are or will be represented by MSPD defined as follows:
All indigent persons who are now or who will be during the pendency of this litigation under formal charge before a state court in Missouri of having committed any offense the penalty for which includes the possibility of confinement, incarceration, imprisonment, or detention (regardless of whether actually imposed), and who are eligible to be represented by MSPD. Doc. 53, pp. 1–2. Plaintiffs’ Class Action Petition for Injunctive and Declaratory Relief, Doc. 12, includes five claims for relief: (I) Violation of the Sixth and Fourteenth Amendments to the U.S. Constitution; (II) Violation of Article 1, Section 18(a) of the Missouri Constitution; (III) Violation of the Fifth and Fourteenth Amendments to the United States Constitution; (IV) Violation of Article 1, Section 10 of the Missouri Constitution; and (V) Violation of Missouri Criminal and Juvenile Codes. Plaintiffs ask this Court to: “Declare that Defendants are obligated to provide
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constitutionally adequate representation to indigent criminal defendants and juvenile respondents, including at their initial appearances;” “Declare that the constitutional and statutory rights of Missouri’s indigent criminal defendants and juvenile respondents are currently being violated by Defendants on an ongoing basis;” “Enjoin Defendants from continuing to violate the rights of indigent defendants by providing constitutionally deficient representation;” and “Enter an injunction that requires Defendants to propose and implement, subject to this Court’s approval and monitoring, a plan to ensure that all indigent criminal defendants and juvenile respondents in the State of Missouri are provided with constitutionally adequate legal representation.” Id. at 52. II. Discussion
Under Federal Rule of Civil Procedure 23, a motion for class certification involves a twopart analysis. First, under Rule 23(a), the proposed class must satisfy the requirements of “numerosity, commonality, typicality, and fair and adequate representation.” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013). Second, the proposed class must meet at least one of the three requirements of Rule 23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).
Plaintiffs carry the burden to show that the class should be certified. See Luiken, 705 F.3d at 372. This burden is met only if, “after a rigorous analysis,” the Court is convinced the Rule 23 requirements are satisfied. Comcast, 569 U.S. at 33 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 341 (2011)). Rigorous analysis may further “entail some overlap with the merits of the plaintiff’s underlying claim,” because “[t]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. at 33–34 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)). However, the Court’s inquiry on a motion for class certification is “tentative,” “preliminary,” and “limited.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). “Rule 23 grants courts no
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license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id.
A. Plaintiffs Fail to Satisfy Rule 23(a)’s Commonality Requirement Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). However, as “any competently crafted class complaint literally raises common ‘questions,’” merely raising common questions—“even in droves”—is insufficient to obtain class certification. Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (citation omitted). Plaintiffs must show that their class claims “depend upon a common contention” that “is capable of classwide resolution,” such that the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350. Put another way, “what matters to class certification is not the raising of common questions . . . but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (emphasis in original) (internal quotations omitted). Plaintiffs propose several “questions of law or fact,” which they argue are common to the entire class. The “basic, unadorned question,” according to Plaintiffs, “is whether the State has met its obligation to provide counsel.” Doc. 53, p. 11 (citing Hurrell-Harring v. State of New York, 914 N.Y.S.2d 367, 372 (App. Div. 2011)). That overriding question purportedly “breaks down into several sub-questions . . . .” Id. at 12. Specifically:
a) Whether MSPD attorneys’ inability to adequately perform the basic tasks of representation stems from MSPD’s high workloads; b) Whether MSPD’s high workloads are a result of Defendants’ course of conduct; c) Whether MSPD attorneys are laboring under an actual conflict of
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interest because of their high workloads, which ensure that any time spent providing constitutionally adequate representation to one client is time not spent providing such representation to another;
d) Whether Defendants have created circumstances such that even where counsel is nominally available, “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is small,” constructively depriving Plaintiffs of counsel in violation of United States v. Cronic, 466 U.S. 648 (1984);
e) Whether MSPD attorneys are able to adequately perform the basic tasks necessary to meet the minimum requirements for constitutionally sufficient counsel, such as communicating with clients, investigating cases, and counseling clients regarding guilty pleas;
f) Whether Defendants have created a likelihood of constitutionally deficient performance on MSPD’s part and resulting prejudice on the part of Plaintiffs; and
g) Whether Defendants have systematically denied Plaintiffs actual representation at critical stages of their cases.
Id. Plaintiffs maintain that each of these questions requires an analysis of MSPD at the system-
wide level, and does not depend on the particular circumstances of individual cases. The Court
disagrees.
None of the questions that Plaintiffs present are apt to generate common answers, and
instead the answers may vary depending upon any one of a number of factors, including the
Plaintiffs’ location and type of criminal charge, and may even vary among individual MSPD
attorneys. For instance, the Plaintiffs cannot establish the answer to “whether the State has met its
obligation to provide counsel,” without providing evidence from each of MSPD’s forty-two offices
and three divisions. The answer could quite conceivably be yes in one MSPD office, but no in
another.
The present matter is similar to Wal–Mart Stores, Inc. v. Dukes. There, the U.S. Supreme
Court explained that while “commonality requires the plaintiff to demonstrate that the class
members ‘have suffered the same injury,’” that does not mean “merely that they have all suffered
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a violation of the same provision of law.” Dukes, 564 U.S. at 350 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). In Dukes, the Supreme Court concluded that a proposed Title VII class of millions of female employees, challenging discretionary decisions made by managers in 3,400 stores across the country, did not satisfy Rule 23’s commonality requirement because there was no common policy that bridged the “conceptual gap” between the individual claims of discrimination, and the existence of a class of persons who all suffered the same injury. Id. at 352– 53. Likewise, here, Plaintiffs have failed to bridge the conceptual gap between their contention that the MSPD is underfunded and overworked, and their allegation that every putative class member has suffered a common injury of inadequate counsel. Even assuming that the MSPD is underfunded and overworked, Plaintiffs would still need to provide evidence that it causes injury to every class member, which would require individualized evidence.
Plaintiffs attempt to distinguish Dukes by offering “the State’s policy of underfunding its public defender program” as the “common policy that was missing in Dukes.” Doc. 68, p. 6. However, the Court is not persuaded. Not every MSPD office receives the same amount of resources, much less requires the same amount. Indeed, while Plaintiffs emphasize that the State of Missouri spends only an average of $356 per assigned case, Defendants point out that in Kansas City, the average cost per assigned case in 2016 was $566.69, and in St. Louis City, the average cost per assigned case was $525.00. Plaintiffs may attempt to prove that all three are underfunded, but that will require evidence from each office, and may also require further narrowing among the types of criminal charge. Moreover, that the MSPD is underfunded is not Plaintiffs’ main contention in this lawsuit, and Plaintiffs do not seek an increase in funding.
Plaintiffs rely on three cases to support their position, but each is distinguishable. Two are state court cases, in which Wal-Mart Stores, Inc. v. Dukes is inapplicable. See Hurrel-Harring,
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914 N.Y.S.2d at 367; Rivera v. Rowland, No. CV95545629, 1996 WL 677452 (Conn. Super. Ct. Nov. 8, 1996).3 The third case, Wilbur v. City of Mount Vernon, 298 F.R.D. 665 (W.D. Wash
2012), involved a much smaller class than the Plaintiffs propose in the present matter. In Wilbur,
the class included indigent defendants before only two municipal courts. Id. at 666. Moreover,
the Wilbur plaintiffs challenged a specific policy of the public defender system, which made it
impossible for counsel to engage in confidential communications with their clients. Id. at 667.
Here, the Plaintiffs seek to certify a statewide, 10,000+ member class, with no common policy
other than alleged system-wide underfunding.
Accordingly, the Court finds that Plaintiffs fail to establish Rule 23(a)’s commonality
requirement.
B. Plaintiffs Fail to Satisfy Any Rule 23(b) Requirements
1. Rule 23(b)(1)
Plaintiffs first argue for certification under Rule 23(b)(1)(B), which allows certification
where separate actions would risk “adjudications with respect to individual class members that, as
a practical matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to protect their
interests.” Fed. R. Civ. P. 23(b)(1)(B). The Advisory Committee Notes to Rule 23(b)(1)(B)
provide:
[Rule 23(b)(1)(B)] takes in situations where the judgment in a non-class action by or against an individual member of the class, while not technically concluding the other members, might do so as a practical matter. The vice of an individual action
3 Although Rivera v. Rowland explains that “Connecticut courts commonly rely on federal case law to aid them in their analysis,” it was decided in 1996, nearly fifteen years before Dukes. 1996 WL 677452 at *2. Hurrel-Harring v. State of New York makes no mention of federal law, and indeed required that the common questions of law or fact “predominate over any questions affecting only individual members,” 914 N.Y.S.2d 367 (App. Div. 2011), which is not applicable here.
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would lie in the fact that the other members of the class, thus practically concluded, would have had no representation in the lawsuit . . . [This] reasoning applies to an action which charges a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of security holders or other beneficiaries, and which requires an accounting or like measures to restore the subject of the trust. Fed.R.Civ.P. 23(b)(1)(B) Advisory Committee Notes (1966 Amendment). To qualify as a class action under Rule 23(b)(1)(B), it must be shown that “the shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 834 (1999). Typically, class actions under Rule 23(b)(1)(B) involve “the presence of property which call[s] for distribution or management,” often when claims are made “by numerous persons against a fund insufficient to satisfy all claims.” Id. Plaintiffs attempt to argue that the existing pool of public defenders is a limited, finite resource. Plaintiffs also argue that if a plaintiff succeeds on an individual suit for inadequate representation, it necessarily would “substantially impede the ability of other indigent defendants to obtain adequate counsel, because other indigent defendants would then have access to even fewer public defender resources.” Doc. 53, p. 16. The Court disagrees. There is no limited fund of public defenders, and the resolution of one indigent defendant’s inadequate assistance claim would not preclude others from seeking similar relief. The supply of public defenders can be expanded by the legislature, as can its funding. Indeed, regardless of whether the funding and staffing of MSPD is adequate, both appropriations and the amount of public defenders have increased over the past twenty five years. Accordingly, it follows that if a plaintiff were to succeed on an individual suit for inadequate representation, it would not necessarily impede any other potential plaintiff from raising a similar claim.
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Plaintiffs fail to satisfy Rule 23(b)(1)(B).4 2. Rule 23(b)(2) Plaintiffs also argue for certification under Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Although a Rule 23(b)(2) class is not required to satisfy the additional predominance and superiority requirements of Rule 23(b)(3), “the class claims must be cohesive.” Ebert v. General Mills, Inc., 823 F.3d 472, 480 (8th Cir. 2016) (quoting Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998)). Because a (b)(2) class is mandatory, and class members are not permitted to opt out, “the cohesiveness requirement of Rule 23(b)(2) is more stringent than the predominance and superiority requirements for maintaining a class action under Rule 23(b)(3).” Id. For purposes of 23(b)(2), cohesiveness requires that “the relief sought must perforce affect the entire class at once.” Id. (citing Dukes, 564 U.S. at 361–62) In contrast, cohesiveness is lacking where “each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. at 480–81. Plaintiffs’ proposed class is not sufficiently cohesive. The class includes indigent defendants charged with everything from first degree murder to passing bad checks and causing personal injury while boating while intoxicated. It includes indigent defendants in major metropolitan areas, such as Kansas City and St. Louis, as well as rural areas, such as Kirksville. The proposed class would require evidence and inquiries into far too many individual circumstances. See Rubenstein, 2 Newberg on Class Actions § 4:34 (5th ed.) (“In determining
4 Moreover, “[t]he Supreme Court has cautioned against ‘adventurous application of Rule 23(b)(1)(B).’” Elizabeth M. v. Montenez, 458 F.3d 779, 786 n.3 (8th Cir. 2006) (quoting Ortiz, 527 U.S. at 845).
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whether cohesiveness is present, courts tend to focus on whether adjudication is likely to break down into individual inquiries.”).
Furthermore, although Plaintiffs maintain that a single injunction would provide relief to each member of the class, their proposal “requires Defendants to propose and implement . . . a plan to ensure that all indigent criminal defendants and juvenile respondents in the State of Missouri are provided with constitutionally adequate legal representation.” Doc. 53, p. 17. While that is technically just one injunction, it is not specific, and alone will not provide relief to all class members. Under the injunction, the Defendants’ plan could take different forms for different Plaintiffs, depending on a variety of factors. Indeed, there is no certainty that the single injunction would benefit all class members equally, if at all. Furthermore, Plaintiffs have an individual remedy, in that they could bring their claims individually, and obtain an individual injunction or declaratory judgment. Therefore, this is not an instance where Defendants’ conduct can only be enjoined as to all class members or none. See Dukes, 564 U.S. at 360 (“The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.”).
As the proposed class is not sufficiently cohesive, Plaintiffs fail to satisfy Rule 23(b)(2). III. Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Certify a Class, Doc. 52, is denied. s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge
Dated: February 26, 2019 Jefferson City, Missouri
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

Randall Lee DALTON, et al.,

Plaintiffs,

v.

Case No. 2:17-cv-04057-NKL

Michael BARRETT, et al.,

Defendants.

ORDER The Missouri Attorney General moves to intervene as a defendant in this action. Doc. 222. For the following reasons, the Attorney General’s motion to intervene is denied. I. Background On March 9, 2017, Plaintiffs initiated this case in state court as a putative class action against the State of Missouri and the Governor (the “State Defendants”) as well as the Director and Commissioners of the Missouri State Public Defenders (the “MSPD Defendants”). Doc. 1-2 (Petition). Plaintiffs allege that Missouri “has failed to meet its constitutional obligation to provide indigent defendants with meaningful representation,” largely because the MSPD is underfunded and overworked. Id. at p. 2. Plaintiffs seek declaratory and injunctive relief that provides “indigent criminal defendants and juvenile respondents with constitutionally adequate legal representation.” Id. at 52. On April 7, 2017, the State Defendants, through the Attorney General of the State of Missouri, removed the case to federal court. Doc. 1 (Notice of Removal). On removal, the case was included in the Western District of Missouri’s Mediation and Assessment Program (“MAP”) and assigned to an outside mediator. Doc. 4 (Notice of Inclusion for MAP); Doc. 48 (Amended

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Notice of Inclusion for MAP). The Court set a discovery deadline of December 15, 2017, and trial was set for May 14, 2018. Doc. 35 (Scheduling Order). Shortly after removal, however, the State Defendants—both represented by the Attorney General—filed a motion to dismiss arguing that the State and Governor are shielded by sovereign immunity. Doc. 18 (State Defendants’ Motion to Dismiss). The Court denied the motion. Doc. 69 (Order on Motion to Dismiss). The State Defendants filed a notice of appeal. Doc. 70 (Notice of Appeal).
While the appeal was pending, the Court extended the discovery deadline, and the parties conducted substantial discovery. The parties, including the State Defendants, who were represented by the Attorney General, also participated in mediation. Doc. 225-2 (Letter Scheduling Mediation). Trial was rescheduled for May 29, 2018. Doc. 86.
After discovery was complete, the State Defendants, through the Attorney General, moved to stay the case pending appeal and to realign the MSPD Defendants with Plaintiffs. Doc. 133 (Motion to Stay); Doc. 134 (Motion to Realign MSPD Defendants as Plaintiffs). The MSPD Defendants and Plaintiffs opposed the motion to realign, citing divergent interests and the untimeliness of the motion. Doc. 140 (MSPD Defendants’ Suggestions in Opposition to Motion to Realign); Doc. 143 (Plaintiffs’ Suggestions in Opposition to Motion to Realign). The motion was denied without prejudice; the trial was twice continued, and later struck entirely pending the appeal.
On January 10, 2019, the Eighth Circuit reversed the Court’s decision on sovereign immunity. See Doc. 206; Church v. Missouri, 913 F.3d 736 (8th Cir. 2019). After the mandate was issued, the Court dismissed the State Defendants, Doc. 211, and denied Plaintiffs’ motion for class certification, Doc. 212. On March 1, 2019, the remaining parties—Plaintiffs and the MSPD Defendants—were ordered to proceed to mediation within 30 days, and to submit a proposed
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scheduling order. The parties proceeded to the Court-ordered mediation on March 15, 2019, and trial was set for August 19, 2019.
On March 27, 2019, while mediation efforts were underway, the MSPD Defendants wrote to the Attorney General to request coverage by the state legal expense fund. See 225-3, p. 1. In response, the Attorney General sought information concerning the MSPD Defendants’ “plans regarding defense of the case, trial plan, etc.,” but the MSPD Defendants, citing the State Defendants’ motion to realign (which had asserted the existence of a conflict between the State Defendants and the MSPD Defendants) and the confidential nature of the mediation, declined to share such details. Id. at pp. 3–6.
On May 13, 2019, the parties filed a joint motion for entry of a consent judgment. Doc. 221. The proposed consent judgment states that Plaintiffs would likely succeed on the merits based on “overwhelming admissible evidence” showing that MSPD is “grossly overburdened, and that the burden under which [MSPD] operates routinely and systematically harms indigent criminal defendants by depriving them of competent counsel.” Exhibit 1 (Proposed Consent Judgment), § III(j). The proposed consent judgment requires that the MSPD take certain actions to ensure constitutionally adequate representation for Plaintiffs and other indigent defendants. Id. at §§ IV– XVI. It also provides for the appointment of a monitor with reporting obligations, establishes a rubric by which the MSPD would determine when an individual public defender has reached capacity, and requires the MSPD to ensure that public defenders do not exceed the workload capacity established by the proposed consent judgment. Id. at §§ XVII–XIX. Finally, it provides a mechanism for dispute resolution, id. at § XX, and permits enforcement by a defined group of third-party beneficiaries. Id. at § XXI.
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On May 14, 2019, the day after the parties moved for entry of the proposed consent judgment, the Attorney General filed a motion to intervene, Doc. 222 (Attorney General’s Motion to Intervene), and a motion to stay the case pending resolution of the motion to intervene, Doc. 224 (Attorney General’s Motion to Stay). II. Discussion
A. Timeliness When a party seeks to intervene—whether as of right or otherwise—“the motion must be timely.” ACLU of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1093 (8th Cir. 2011). Timeliness is “determined by considering all the circumstances of the case,” Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994, 998 (8th Cir. 1993), including: (1) how far the litigation has progressed at the time of the motion for intervention; (2) the prospective intervenor’s prior knowledge of the pending action; (3) the reason for the delay in seeking intervention; and (4) whether the delay in seeking intervention may prejudice the existing parties, U.S. Bank Nat’l Ass’n v. State Farm Fire & Cas. Co., 765 F.3d 867, 869 (8th Cir. 2014). It is undisputed that the Attorney General has known of this suit since at least April 2017, when, on behalf of the State Defendants, he removed the case from state court to federal court. Doc. 1. Thereafter, the Attorney General actively litigated this case for nearly two years as counsel for the State Defendants. On April 21, 2017, the Attorney General moved for dismissal of both State Defendants, and on February 26, 2019, he succeeded. The Attorney General was fully aware that the dismissal would leave the MSPD Defendants—whom the Attorney General had characterized as having legal interests that “mirror those of the Plaintiffs”, Doc. 134, p. 1—as the sole defendants in this case.
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If the Attorney General wanted the State to have an active role in opposing the Plaintiffs’ claims and any settlement between the Plaintiffs and the MSPD Defendants, he should not have sought immediate dismissal of the State as a defendant. See In re Living Hope Sw. Med. Servs., LLC, No. 13-04055, 2014 WL 3368191, at *4 (W.D. Ark. July 10, 2014) (“If [defendant] believed that his interests would be implicated in the proceeding such that he should be allowed to litigate those interests, he should not have agreed to be dismissed as a defendant.”), aff’d, 598 F. App’x 467 (8th Cir. 2015). Further, given that the Attorney General knew from the outset the nature of the relief sought and had previously expressed concern that the MSPD Defendants did not share the State’s interests, he should have sought to intervene to protect the State’s interests, at the latest, right after securing dismissal of the State Defendants in late February 2019.1 See Chamness v. Bowen, 722 F.3d 1110, 1121–22 (9th Cir. 2013) (affirming denial of intervention as untimely when movant had two to four weeks’ prior notice of potential impairment and litigation was near its end); R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 8–9 (1st Cir. 2009) (affirming finding that two-and-a-half-month delay made motion to intervene untimely, especially when parties had reached a settlement).
To the extent that the Attorney General seeks to intervene in his individual capacity, to protect interests unique to the Attorney General and his office, the Attorney General was in a position to move to intervene at an even earlier date—at the outset of this case in 2017; following the Court’s denial of the motion to realign the MSPD Defendants with Plaintiffs on April 17, 2018, Doc. 190; shortly after dismissal of the State Defendants on February 26, 2019, Doc. 211; or following referral of the case to mediation on March 1, 2019, Doc. 213.
1 Indeed, the Attorney General knew of the risk on January 10, 2019, when the Eight Circuit Court of Appeals issued its opinion that the State Defendants must be dismissed and would no longer be parties in the case.
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The Attorney General did not, however, seek to intervene until a day after the motion for entry of the consent judgment was filed, on May 14, 2019. Doc. 222. The Attorney General argues that he did not intervene sooner because he did not know until he saw the proposed consent judgment that the parties would enter into a settlement agreement that would be adverse to the State and its Attorney General. But the relevant question is when he would have been on notice that there was a risk that his interests would not be adequately protected by the MSPD Defendants. See Floyd v. City of New York, 770 F.3d 1051, 1059 (2d Cir. 2014) (reasoning that notice of potential resolution did not justify prior delay when movant “should have known that [its] ‘interests might not be adequately represented’ far in advance of any indication that the [parties] might settle the dispute” (citation omitted)); see also Harris v. Pernsley, 113 F.R.D. 615, 619–20 (E.D. Pa. 1986) (finding that “the [DA] was not entitled to wait for ‘official notice’ of a proposed settlement to attempt to intervene” but rather, “was required to move to intervene as soon as he knew or should have known that his interests were no longer adequately protected”), aff’d, 820 F.2d 592 (3d Cir. 1987).
Further, if the Attorney General felt that he was entitled to a seat at the table during mediation in order to protect his interests or the interests of the State generally, he was at liberty to move to intervene shortly after the Court ordered the parties to proceed to mediation on March 1, 2019. Doc. 213. See Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 948 (7th Cir. 2000) (“[I]f [the movant] was concerned about settlement negotiations not taking its interests into account, it should have moved to intervene at such a time when it would have been able to participate in them.”).
In short, given the Attorney General’s knowledge of the case for a “significant period of time,” prior involvement in mediation and resultant familiarity with the relief sought by Plaintiffs,
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and early concern (dating back to January 2018) that its interests may not adequately be represented by the MSPD Defendants, the Attorney General’s delay in seeking to intervene is unjustified. See In re Wholesale Grocery Prods. Antitrust Litig., 849 F.3d 761, 767 (8th Cir. 2017) (noting that would-be intervenor’s knowledge of the litigation “often weighs heavily in cases where the would-be intervenor was aware of the litigation for a significant period of time before attempting to intervene”); Arrow v. Gambler’s Supply, Inc., 55 F.3d 407, 409 (8th Cir. 1995) (affirming denial of motion to intervene as untimely when movant “monitored [the] suit . . . for nearly two years and then moved to join the litigation when the parties reached a settlement agreement one month before the trial date”).
Moreover, the parties would be prejudiced by the Attorney General’s late intervention in this case. The parties have engaged in extensive written discovery, conducted more than fifteen depositions, disclosed three experts along with their written reports, engaged in time-consuming settlement discussions, and ultimately, through the MAP, reached an agreement that is satisfactory to each party. The parties have invested significant work to avoid the uncertainties of trial. To permit the Attorney General to enter the case as a party at this late juncture would be a substantial burden on the parties that did their work in a timely fashion as ordered by the Court. See U.S. Bank Nat. Ass’n, 765 F.3d at 870 (concluding “[i]t was reasonable for the [district] court to think the parties could be prejudiced by having to cover the same ground again”); R & G Mortg. Corp., 584 F.3d at 9 (reasoning that when “proposed intervention [is] aimed at disrupting [a] settlement, the harm that intervention would have worked to the original parties [is] manifest”). Tardy intervention after the parties have reached a resolution of their differences and on the cusp of trial
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is prejudicial.2 Thus, in light of the Attorney General’s two-year knowledge of the action and failure to
provide a reasonable explanation for the delay in seeking intervention, the advanced stage of this litigation, and the substantial risk of prejudice to the existing parties who have reached an amicable resolution, the Court finds that the Attorney General’s motion to intervene is untimely.
B. Intervention as of Right Even if the Attorney General’s motion to intervene had been timely, the Court would deny the motion to intervene as a matter of right because the Attorney General has failed to demonstrate a “cognizable interest in the subject matter of the litigation” that “might be impaired by the disposition of the case.” Chiglo v. City of Preston, 104 F.3d 185, 187 (8th Cir. 1997). Although Rule 24 is “liberally construed with all doubts resolved in favor of the proposed intervenor,” an applicant must nonetheless demonstrate that (1) he has a “cognizable interest in the subject matter of the litigation,” (2) the interest may be “impaired” as a result of the litigation, and (3) the interest “is not adequately protected by the existing parties to the litigation.” South Dakota ex rel. Barnett v. U.S. Dep’t of Interior, 317 F.3d 783, 785 (8th Cir. 2003) (citing Chiglo, 104 F.3d at 187); see also Fed. R. Civ. P. 24(a)(2).
1. Interest For the purposes of Rule 24(a)(2), an asserted interest must be “significantly protectable,” Donaldson v. United States, 400 U.S. 517, 531 (1971), which has been interpreted to mean “legally
2 “[E]ven absent any prejudice, the district court [i]s free to conclude that given the progress of the litigation, the [would-be intervenors’] knowledge of it, and the [would-be intervenor’s] failure to adequately explain the delay, the motion was untimely.” Tarek ibn Ziyad Acad., 643 F.3d at 1095 (affirming denial of motion to intervene as untimely in the absence of prejudice); Arrow, 55 F.3d at 409 (reasoning that even if intervention would not prejudice existing parties, the progress of the litigation and intervenors’ knowledge of it permitted the district court to find motion untimely).
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protectable,” United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 839 (8th Cir. 2009) (citing New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir. 1984)). In other words, Rule 24(a)(2) requires more than a “generalized interest” or stake in the litigation. Id. (“[A]n undifferentiated, generalized interest in the outcome of an ongoing action is too porous a foundation on which to premise intervention as of right” (quoting Pub Serv. Co. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998))).
a. The Capacity in Which the Attorney General Seeks to Intervene The nature of the Attorney General’s interest is circumscribed by the capacity in which he seeks to intervene. As the discussion of timeliness above indicates, the capacity in which the Attorney General seeks to intervene is not clear. The Attorney General states that he seeks to intervene in his “official capacity,” but not as counsel for the State or other state entities. Doc. 231, p. 1; see also Doc. 236 (Oral Argument Transcript), p. 4. However, this assertion appears inconsistent with longstanding jurisprudence that a lawsuit against a state official in his or her official capacity “is no different from a suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits [naming] state officials in their official capacity . . . should be treated as suits [naming] the State.”).3
3 Oral argument did not clarify the Attorney General’s position: The Court: I want to know specifically who is seeking to intervene and in what capacity. Mr. Morgan: The Attorney General is seeking to intervene in his official capacity as the Attorney General. . . . The Court: “Official capacity is when [the Attorney General is] representing the state, he is the state, he’s acting as a state actor. Or are you saying he is entering . . . in his capacity as the Attorney General, not on behalf of the
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To the extent that the Attorney General seeks to intervene in his official capacity, as the State, the State forfeited that right when it sought and obtained its dismissal based on sovereign immunity. “The law of the case doctrine prevents the relitigation of a settled issue in a case and requires courts to adhere to decisions made in earlier proceedings.” KPERS. v. Blackwell, Sanders, Matheny, Weary & Lombardi, L.C., 114 F.3d 679, 687 (8th Cir. 1997). On the State’s motion and appeal, which the Attorney General brought, the Eighth Circuit concluded that Plaintiffs’ claims against the State are barred by sovereign immunity. See generally Church, 913 F.3d 736. Accordingly, the law of this case—indeed the law of the Eighth Circuit—is that the State cannot be held liable on Plaintiffs’ claims. As the State was granted dismissal on the basis of sovereign immunity and cannot be liable for Plaintiffs’ claims, intervention by the Attorney General on behalf of the State is not proper.
Insofar as the Attorney General seeks to intervene on behalf of the MSPD Defendants, see Doc. 223, p. 10 (“The Attorney General will assert the defense that Defendants have [provided constitutionally-adequate representation to criminal defendants].”), he has failed to articulate any legal basis for doing so. Under Missouri law, the MSPD is an “independent department” of Missouri’s judicial branch vested with the responsibility of providing counsel to indigent defendants facing incarceration. Mo. Rev. Stat. § 600.019.1; see also State ex rel. Mo. Pub. Def. Comm’n v. Pratte, 298 S.W.3d 870, 875–76 (Mo. banc 2009) (discussing history of MSPD). The
State, not in any way on behalf of the State as an entity or on behalf of the government or on behalf of any other state actor, solely as the Attorney General of the State of Missouri? Mr. Morgan: “The Attorney General. Yeah, your Honor, it’s solely as the Attorney General. . . . Certainly he is entering in his . . . constitutional and statutory capacity as the Attorney General.” Doc. 236, 5:17–6:22.
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Attorney General, in contrast, has no legal duties or powers with regard to the provision of legal
representation for indigent defendants. It is the MSPD Defendants, not the Attorney General, that
would incur liability if the MSPD’s representation of the Plaintiffs were found to violate the
Constitution. As a legally independent government entity, it is the MSPD that is vested with the
right and authority to litigate on its own behalf, as it has done at various times in recent years and
throughout this case.4 Thus, the Attorney General does not have authority to intervene to assert
defenses on the MSPD Defendants’ behalf over their objections.
b. The Interests of the Attorney General
The Attorney General provides only vague descriptions of the “broad interests” allegedly
at stake for him individually in this litigation.5 Doc. 231, p. 1. The Attorney General asserts
interests in “protect[ing] the interests of the State and all of its citizens,” Doc. 223 (Suggestions in
4 See, e.g., Pratte, 298 S.W.3d at 872 (MSPD represented by counsel Mermelstein, among others); State ex rel. Mo. Pub. Def. Comm’n v. Waters, 370 S.W.3d 592, 596 (Mo. banc 2012) (same); Barrett v. Greitens, 542 S.W.3d 370, 374 (Mo. Ct. App. 2017) (MSPD Director represented by counsel Mermelstein).
5 The Attorney General’s failure to file a proposed pleading, as required by Federal Rule of Civil Procedure 24(c), only compounds the issue, as the Court is unable to look to the Attorney General’s proposed answer or counterclaim for context in identifying the alleged interest at stake or how he plans to protect that interest in this litigation. United Fire & Cas. Co. v. Titan Contractors Serv., Inc., No. 10-2076, 2012 WL 3065517, at *6 (E.D. Mo. July 27, 2012) (“The proposed intervenors have not, however, complied with Rule 24(c) which requires a motion to intervene to ‘be accompanied by a pleading that sets out the claim or defense for which intervention is sought.’ Therefore, the exact parameters of the proposed intervention are not known.” (quoting Fed. R. Civ. P. 24(c)); see also United Fire & Cas. Co. v. Titan Contractors Serv., Inc., No. 10-2076, 2014 WL 4851801, at *4 (E.D. Mo. Sept. 29, 2014) (denying intervention in part because the movants “ha[d] not complied with the requirements of Rule 24(c), and d[id] not seek to assert their own individual claims or defenses against either party”). This is more than a mere formality. St. Charles Tower, Inc. v. Cty. of Franklin, Mo., No. 09-987, 2009 WL 3852462, at *1 (E.D. Mo. Nov. 17, 2009) (“This requirement is not merely a procedural formality, but is integral to the Court’s necessary analysis of the legal rights asserted by the intervenor, and concomitant issues such as standing and jurisdiction.”). A pleading is essential for an analysis of the Rule 24 factors, especially given the unusual procedural posture of this case. Further, neither during nor after oral argument did the Attorney General seek to clarify his defenses or counterclaims.
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Support of Motion to Intervene), p. 2; “the state’s criminal justice and prosecution system,” id. at
4; “enforcement of the General Assembly’s statutory purposes,” id.; “ongoing criminal
proceedings,” id. at 5; “ensur[ing] that the rule of law is upheld,” id. at 7; “protecting public safety,
promoting the public welfare, and ensuring the integrity of a criminal prosecution.” id. at 8;
“health, safety, and welfare of all Missourians,” Doc. 231, p. 3; and “the overall functioning of the
justice system,” id. The Attorney General also speaks generally about the “state’s police power to
protect its people,” and his interest “[a]cting on behalf of the State” as “the state’s chief lawyer
and law enforcement officer.” Doc. 223, p. 3.
The Attorney General cites the fact that both common law and Mo. Rev. Stat. § 27.010 et
seq. confer upon him the “broad authority,” Doc. 231, p. 3, to, “[w]hen directed by the governor .
. . aid any prosecuting or circuit attorney in the discharge of their respective duties in the trial
courts and in examinations before grand juries,” id. § 27.030, “appear on behalf of the state in the
court of appeals and in the supreme court,” id. § 27.050, and to
institute, in the name and on the behalf of the state, all civil suits and other proceedings at law or in equity requisite or necessary to protect the rights and interests of the state, and enforce any and all rights, interests or claims against any and all persons, firms or corporations in whatever court or jurisdiction such action may be necessary; and he may also appear and interplead, answer or defend, in any proceeding or tribunal in which the state’s interests are involved. id. § 27.060. The Attorney General argues that Mo. Rev. Stat § 27.060, as interpreted by the
Missouri Supreme Court in Dunivan v. State, 466 S.W.3d 514, 518 (Mo. 2015), gives him the
unconditional statutory right to intervene. However, Dunivan considered whether Section 27.060
provided absolute authority to intervene under Missouri Rule 52.12(a)(1), which permits
intervention as of right “when a statute of th[e] state confers an unconditional right to intervene.”
But the Attorney General removed this case to federal court, so whether the Attorney General’s
legal duties under Missouri law are sufficient for intervention as of right is a question of federal 12
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law. Harris v. Pernsley, 820 F.2d 592, 597 n.7 (3d Cir. 1987); New Orleans Pub. Serv., Inc, 732 F.2d at 466 n.29 (“[A]s this is a suit in federal court, federal law governs the requirements for intervention, standing and real party in interest status, including the character of interest which is necessary for such purposes.”). The Federal Rules of Civil Procedure require a federal, rather than a state, statute to confer an unconditional right to intervene, Fed. R. Civ. P. 24(a)(1), and the Attorney General has not pointed to any such statute.
Moreover, the authorities the Attorney General cites as conferring a right to intervene in federal court contemplate interests more specific than those articulated here and involved intervention on a more limited basis than the Attorney General proposes. See, e.g., Pfizer Ireland Pharm. v. Albers Med., Inc., 225 F.R.D. 591, 592–93 (W.D. Mo. 2004) (granting the Government leave to intervene for the limited purpose of seeking a stay of discovery when continuation of civil discovery would put overlapping criminal investigation at risk).
2. Risk of Impairment and Adequacy of Representation Even affording the Attorney General the benefit of any doubt and assuming, for the purpose of this motion, that the interests articulated by the Attorney General can be legally protectable in federal court, the Court cannot find on the record presented that the Attorney General’s interests, even liberally construed, may be impaired by this litigation. A proposed intervenor must “demonstrate that the subject matter of the action affects its interests in a direct rather than tangential way.” Metro. St. Louis Sewer Dist., 569 F.3d at 839. Intervention is not appropriate when any impact on the claimed impairment is “‘contingent upon the occurrence of a sequence of events’” beyond the litigation. Id. at 840 (quoting Standard Heating & Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 571 (8th Cir. 1998)).
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The Attorney General asserts that requirements in the consent judgment that the MSPD “take certain actions in criminal trials and appeals,” including “conducting discovery under certain timelines, requesting hearings, filing briefs, and seeking oral argument,” will affect his work in “routinely appear[ing] on the other side of a party represented by a public defender.” Doc. 223, pp. 5–6. However, the Attorney General does not articulate how a change in the MSPD’s litigation strategies would impair his own interests. Indeed, the actions described would likely improve the quality of the litigation and therefore would advance the Attorney General’s interest in avoiding postconviction motions based on constitutionally defective representation. Further, any suggestion that the proposed consent judgment will somehow result in an increase of appeals or habeas proceedings in which the Attorney General is required to appear is purely hypothetical. The proposed consent judgment does not concede that the MSPD has provided constitutionally inadequate representation, and how much weight may be ascribed to the consent judgment in future challenges to the MSPD’s prior legal representation is purely speculative. In short, the Attorney General has not shown that this lawsuit is likely to affect the Attorney General’s interests in any direct way.
The Attorney General also asserts that, under the consent judgment, “prosecutors may be asked to eliminate incarceration as a possible sentence in criminals proceedings”; “courts may be required to entirely dismiss criminal cases”; and “[i]ndividuals accused of some of the most serious felonies in Missouri—rape, kidnapping, armed robbery—may walk free without undergoing a trial because a public defender’s office will refuse to take any cases that will require an attorney to work more than 40 hours per week.” Doc. 223, p. 6.6 This, in turn, the Attorney General argues,
6 The Attorney General takes specific issue with the portion of the proposed consent judgment that “provid[es] for dismissal of a case ‘in lieu of processing additional indigence applications when
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will hamper his ability to protect the public safety, promote the public welfare, and ensure the
integrity of criminal prosecutions.
However, these outcomes are contingent on multiple factors beyond the disposition of this
case, and the Attorney General has not established, or even argued, that these contingencies are
likely. Moreover, the proposed consent judgment does not appear to alter, or prevent the Attorney
General from performing, any of his duties. It does not obligate the Attorney General to take or
refrain from taking any action, nor could he be held in contempt for violating the proposed consent
judgment. Thus, while the proposed consent judgment may have some indirect effects on the
Attorney General’s enforcement function, any such effects would not create the kind of direct,
substantial impairment that permits intervention as of right. See Harris, 820 F.2d at 600 (denying
intervention in case involving unconstitutional prison conditions despite district attorney’s
argument that a cap on prison inmates could hinder his ability to prosecute crimes because the
[the 40 hour-per-week] standard has been reached.’” Doc. 223, p. 7 (quoting Exhibit 1, p. 29). But the proposed consent judgment merely requires that the MSPD:
notif[y] the circuit court that the caseload standard has been reached in order to promptly allow the court to: (1) appoint private counsel pursuant to State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (1981) and Willamson v. Vardeman, 674 F.2d 1211 (1982); (2) engage with the prosecutor regarding the elimination of incarceration as a possible sentence for the offense(s) charged, thus eliminating the constitutional right to an attorney pursuant to Scott v. Illinois, 440 U.S. 367, 373-74 (1979); (3) dismiss the case per the requirements set forth in Ruddy and Williamson; or (4) take any other actions that are consistent with the constitutions of the United States and Missouri, and that do not violate the requirements and limitations of this Consent Judgment. Exhibit 1, pp. 29–30. Dismissing the case per the requirements set forth in Ruddy and Williamson is only one of several options left to the criminal court’s discretion. The relevant language in the consent judgment does not purport to require the criminal court or the prosecutor to do anything at all. Id.
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district attorney had “no function in the administration of the prisons” and could not be held liable for any unlawful conditions).
The Attorney General also asserts that the consent judgment implicates his interest in “ensur[ing] that the rule of law is upheld” because it “undermines statutes that address the workload and resources of Missouri public defenders.” Doc. 223, pp. 6, 7. However, the Attorney General has not established that the interest might be impaired or inadequately protected absent his intervention. “‘[I]f an existing party to the suit is charged with the responsibility of representing the intervenor’s interests, a presumption of adequate representation arises’” that is “‘not overcome’” by “‘[a] difference of opinion concerning litigation strategy or individual aspects of a remedy.’” F.T.C. v. Johnson, 800 F.3d 448, 452 (8th Cir. 2015) (quoting Chiglo, 104 F.3d at 187 and Jenkins ex rel. Jenkins v. Missouri, 78 F.3d 1270, 1275 (8th Cir.1996)). Thus, notwithstanding any conflict of interest between the MSPD Defendants and the Attorney General, the MSPD’s own interest in ensuring that it operates in accordance with state law creates the presumption of adequate representation. Moreover, the Court is required to independently evaluate whether the proposed consent judgment is consistent with the Constitution, statutes, and jurisprudence, and it cannot approve a consent judgment that is contrary to law. See St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 268 (8th Cir. 2011) (“While parties can settle their litigation with consent decrees, they cannot agree to ‘disregard valid state laws.’” (quoting Perkins v. City of Chicago Heights, 47 F.3d 212, 216 (7th Cir. 1995))). Thus, while the Attorney General has an interest in upholding the rule of law in the State of Missouri, he cannot show that the interest will
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be unprotected here, because the interest is shared by both the MSPD and the Court. Insofar as the consent judgment violates the law, the Court will not enter it.7
C. Permissive Intervention The Court also finds that permissive intervention is unwarranted. Under Rule 24(b)(1), a court may grant a party permission to intervene in a case if the party “has a claim or defense that shares with the main action a common question of law or fact.”8 In determining whether to permit intervention, courts consider whether: (1) “the motion to intervene is timely”; (2) “the movant’s claim shares a question of law or fact in common with the main action”; and (3) “intervention will unduly delay or prejudice adjudication of the original parties’ rights.” Franconia Minerals (US) LLC v. United States, 319 F.R.D. 261, 266 (D. Minn. 2017). “The principal consideration in ruling on a Rule 24(b) motion is whether the proposed intervention would unduly delay or prejudice the adjudication of the parties’ rights.” Barnett, 317 F.3d at 787. As discussed above, intervention by the Attorney General as a full-party defendant at this stage in the case would result in substantial delay and prejudice to the adjudication of the parties’ rights. The parties to this case have reached a resolution which, according to them, will end the MSPD Defendants’ practice of creating waiting lists and that aims to ensure that the MSPD
7 As explained below, the Court will permit the Attorney General to submit an amicus brief to assist the Court in its determination of whether the proposed consent judgment is consistent with the law. 8 Although the Attorney General cites Rule 24(b)(2) as grounds for permissive intervention in his motion, Doc. 222, the entirety of his argument in the Suggestions in Support, Doc. 223, and Reply, Doc. 231, is premised on and specifically cites only Rule 24(b)(1)(B). Additionally, the Attorney General did not highlight in a separate pleading any provision he is charged with administering that is implicated in this case because no pleading was filed. In any event, Rule 24(b)(3) requires a court to consider delay and prejudice regardless of whether intervention is sought under Rule 24(b)(1) or (b)(2), the following analysis would apply under Rule 24(b)(2) as well.
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Defendants provide Plaintiffs with attorneys who will have time to provide constitutionally adequate representation. The Attorney General’s request that the Court now undo the work of the parties and MAP mediator in reaching a settlement, and instead make a “reasonable adjustment to the scheduling order” to permit “additional discovery”9 in a case that is over two years old, is unjustified. Doc. 223, p. 9.
Moreover, denial of permissive intervention is appropriate where a would-be intervenor’s proposed pleading fails to raise any claim or defense that is “different from those of the existing parties.” Standard Heating & Air Conditioning Co., 137 F.3d at 573; see also Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1233 (10th Cir. 2010) (noting that the “relevant” interests of a would-be intervenor “are the interests pursued in its proposed complaint in intervention”). Here, because the Attorney General did not file a proposed answer or counterclaim, the Court is unable to assess whether the Attorney General’s proposed claims or defenses differ from those of the parties. This problem is compounded by the Attorney General’s failure to articulate how he would be directly and concretely injured if intervention is denied.
For the above reasons, permissive intervention is denied. D. Amicus Brief Although the Court finds that the Attorney General has not made a showing sufficient to warrant intervention, in light of the Court’s obligation to consider whether the proposed consent judgment comports with applicable law, the Court will permit the Attorney General to submit an amicus brief concerning whether the proposed consent judgment is consistent with Missouri law
9 He does not specify how much or what additional discovery would be needed, or whether additional hearings also would be needed. At oral argument, the Attorney General also expressed an intent to file dispositive motions. Doc. 236, p. 21:16–18.
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and whether the proposed consent judgment will unavoidably and adversely affect public safety and welfare in a concrete and particularized way. III. Conclusion
For the reasons discussed above, the Attorney General’s motion to intervene, Doc. 222, is denied. The Attorney General’s related motion to stay these proceedings, Doc. 224, is denied as moot. However, the Attorney General may, within two weeks of the date of this Order, file an amicus brief not exceeding 25 pages that addresses whether the proposed consent judgment comports with Missouri law and whether it will unavoidably and adversely affect public safety and welfare in a concrete and particularized way. Plaintiffs and the MSPD Defendants will each have two weeks after the filing of the amicus brief to file a response.

Dated: July 12, 2019 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

RANDALL LEE DALTON, et al.,

Plaintiffs,

v.

Case No. 2:17-cv-04057-NKL

MICHAEL BARRETT, et al.,

Defendants.

ORDER Before the Court is the joint motion by Plaintiffs Randall Lee Dalton, Viola Bowman, Brian Richman, and Dorian Samuels, and Defendants Michael Barrett, H. Riley Block, Craig Chval, A. Crista Hogan, and Charles R. Jackson, members of the Missouri State Public Defender Commission, for entry of their proposed consent judgment. Doc. 221. For the reasons discussed below, the joint motion is denied.

I. BACKGROUND a. Missouri Indigent Defense1
The State of Missouri relies extensively on local Missouri State Public Defender (MSPD) offices to provide indigent defense services in all its 114 counties and St. Louis City. MSPD employs approximately 376 attorneys and 200 administrative staff, support staff, paralegals, and Investigators, and represents indigent defendants in over 100,000 cases each year.
Since the establishment of MSPD in its current form in 1989, there have been at least ten independent evaluations of Missouri’s public defense system. A 1993 study by The Spangenberg

1 These are the facts as described in Plaintiffs’ Complaint, Doc. 1-2, and the exhibits attached thereto, Doc. 1-3, 1-4.
1
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Group (TSG) concluded that MSPD “lack[ed] the necessary resources to provide competent representation” and that the “legal staff needs to be increased as soon as possible.” Doc. 1-3, pp. 86–105. A second TSG study in 2005, commissioned by the Missouri Bar Association Public Defender Task Force, determined Missouri’s public defense system was “on the verge of collapse.” Doc. 1-3, pp. 111-138. In 2007, an interim committee of the Missouri Senate released a report finding that public defenders’ caseloads were too large and needed to be reduced. Doc. 1-3, pp. 140-50; 1-4, pp. 1–4. A third TSG study in 2009, again commissioned by the Missouri Bar Association, concluded that the workloads had increased since 2005 and that public defenders were unable to adequately meet with clients following arrest, advocate for pretrial release, thoroughly investigate cases, pursue discovery, file appropriate pleadings and motions, conduct necessary research, or prepare for hearings, trial, and sentencing. Doc. 1-4, pp. 6–73. In 2014, the American Bar Association released results of a commissioned report indicating that public defenders across the state were operating well over capacity, including working at 265% capacity in the St. Louis County Office, 254% capacity in the Jefferson City office, and 239% capacity in the Springfield office. Doc. 1-4, pp. 124–26. A 2016 study by the Sixth Amendment Center determined that Missouri’s per capita spending on indigent defense is approximately onethird of the average of 25 states surveyed, at $6.20 per resident as compared to the $18.41 average. Doc. 1-4. In 2015, Defendant MSPD Director Michael Barrett requested additional funding from then-Governor Nixon to no avail, and when the legislature subsequently approved additional funding, the funding was vetoed and withheld.
Plaintiffs’ factual allegations illustrate the potential consequences of an inundated public defense system. Ms. Bowman was arrested in January 2015, and her public defender, who was also a District Defender of a MSPD District office and therefore had other administrative and
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managerial job responsibilities in addition to a 228-case caseload, requested over thirty continuances, including multiple continuances of Ms. Bowman’s trial, resulting in her spending over 1,500 days in pre-trial detention. After being arrested in May 2016, Mr. Samuels cycled through three public defenders over the next year who repeatedly requested continuances without consulting Mr. Samuels while Mr. Samuels remained in jail. The last of these public defenders indicated his workload of over 200 cases was making it impossible for him to adequately prepare for the case. Also in 2016, Mr. Richman was arrested, yet over the next year he only met with his attorney on a handful of occasions and always at the courthouse, all while Mr. Richman remained in pre-trial detention without any preliminary hearing. In 2017, Mr. Dalton, a physically disabled and mentally impaired man, was held in jail for over a month without consulting with counsel. When he finally did meet his public defender, it was in the courtroom at his hearing. At this proceeding, because the public defender did not seem familiar with the case, Mr. Dalton’s sister requested to approach the bench and she, rather than the public defender, had to make a bond application for her brother.
b. The Current Litigation On March 9, 2017, Plaintiffs filed a class action lawsuit in Missouri state court seeking injunctive and declaratory relief from Defendants in their official capacities as members of the MSPD Commission, as well as against the State of Missouri and then-Governor Eric R. Greitens. Plaintiffs alleged Defendants had failed to meet their constitutional obligation to provide indigent defendants with meaningful representation. Plaintiffs and the putative class claimed to “have been denied representation altogether at some critical stages of their proceedings, have been constructively denied counsel at others because MSPD’s excessive workloads would hamstring
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even the best of lawyers, and have not received the basic investigation and counseling that the Sixth Amendment demands.” Doc. 1-2, p. 45.
On April 7, 2017, the Defendants removed the action to federal court. Shortly thereafter on April 21, 2017, the State of Missouri and then-Governor Greitens moved to dismiss, arguing that the doctrine of sovereign immunity barred all claims against these two Defendants, that legislative immunity barred all claims against Defendant Greitens, and that Plaintiffs lacked Article III standing, had adequate alternative legal remedies, and failed to state plausible constitutional claims. Doc. 18, Doc. 20. The Court denied these motions. Order, Doc. 69. Relevant here, the Court found that Missouri was not entitled to sovereign immunity for this suit seeking prospective equitable relief, and that then-Governor Greitens was subject to suit under the Ex Parte Young doctrine permitting declaratory and injunctive relief against state officers. Id.
On appeal, the Eighth Circuit determined the Governor and the State of Missouri should be dismissed. Church v. Missouri, 913 F.3d 736 (8th Cir. 2019). With respect to the Governor, the Eighth Circuit held that the Ex Parte Young doctrine did not apply, because the Governor’s general enforcement authority, appointment of all MSPD Commissioners, and appropriationreduction authority did not constitute “some connection” to the State’s Sixth Amendment obligation, and therefore the Governor was shielded from suit and liability under sovereign immunity and legislative immunity. Id. at 753. Further, the Eighth Circuit found that Missouri’s state sovereign immunity did apply, barring all suits against the State, including those seeking prospective equitable relief. Id. at 745–46. In finding that no common law exception to Missouri’s sovereign immunity applied here, the Eighth Circuit cited the Missouri Supreme
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Court’s rejection of the possibility that “the state itself can be enjoined.” Id. at 746 (citing Carson v, Sullivan, 284 Mo. 353, 223 S.W. 571, 571 (Mo. banc 1920)).
On February 26, 2019, the Court denied Plaintiffs’ motion for class certification. Order, Doc. 212. The parties entered mediation, which resulted in a settlement and their proposed consent judgment, which was filed on May 13, 2019. Doc. 221.
On May 14, 2019, the Attorney General of Missouri moved to intervene. Doc. 222. Though the Court denied this motion, Order, Doc. 238, the Attorney General was permitted to file an amicus brief concerning their position on the proposed consent judgment, which they did on July 26, 2019. Doc. 247.
c. The Proposed Consent Judgement The terms of the proposed consent judgment impose a variety of obligations on MSPD spanning from the time a defendant applies for public defender services through the appeals process. For example, MSPD must ensure public defenders argue for release at every client’s initial appearance and/or for a bail amount that the client can afford to pay, Part VI(e); spend sufficient time meeting with clients prior to a bail hearing, and if bail is set at an amount a client cannot afford and they remain detained, prioritize these clients with motions for a speedy trial unless there is good cause to refrain from doing so, Part VII(c),(f); answer all client correspondence within ten days of receipt and all phone messages within two days of receipt, Part VIII(b); appropriately pursue discovery and train public defenders in proper pre-trial investigation and pre-trial motion practice Part XI, XII; request and review all discovery in the case and conduct any further investigation prior to advising any client to plead guilty, Part XIII. The proposed consent judgment also provides for a monitor, who on an ongoing basis would assess the extent to which MSPD is complying with the terms of the consent judgment,
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and a reporting mechanism whereby MSPD must provide the monitor and Plaintiffs’ counsel
with quarterly data demonstrating compliance. As another enforcement mechanism, indigent
persons who are or should be represented by MSPD, yet who have not received counsel at a
critical stage or who have been placed on a waiting list for representation, may seek as third-
party beneficiaries to enforce the consent judgment. Part XXI(c).
The cornerstone of the entire agreement is the caseload capacity standard. See Part
XVIII. Using data and analysis by the accounting firm RubinBrown, the proposed consent
decree imposes a caseload standard on individual public defenders. The caseload standard
operates from a baseline of forty available work hours per week, fifty-two available work weeks
per year, with no time allotted for vacation, sick time, training, administrative functions, or
holidays. Using RubinBrown data estimating workload averages per type of case (e.g.
Murder/Homicide, A/B Felony, Misdemeanor, etc.), MSPD must ensure that, over the course of
any given calendar month period, public defenders are not assigned more than 173.3 hours’
worth of cases. The proposed consent judgment provides that “if accepting an additional case
would mean requiring any public defender’s assigned caseload to exceed the MSPD caseload
standard, the MSPD office in question shall not accept any additional cases, and shall not process
any further indigence applications, until an appropriately experienced public defender with a
caseload that falls under the cap becomes available. To do otherwise . . . would violate this
Consent Judgment.” Part XVIII(k). The proposed consent judgment further provides,
“In lieu of processing additional indigence applications when this standard has been reached and placing such defendants on a wait list for public defender services, the MSPD shall ensure that the relevant District Defender promptly notifies the circuit court that the caseload standard case been reached in order to promptly allow the court to: (1) appoint private counsel pursuant to State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (1981) and Willamson v. Vardeman, 674 F.2d 1211 (1982); (2) engage with the prosecutor regarding the elimination of incarceration as a possible sentence for the offense(s) charged, thus eliminating
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the constitutional right to an attorney pursuant to Scott v. Illinois, 440 U.S. 367, 373-74 (1979); (3) dismiss the case per the requirements set forth in Ruddy and Williamson; or (4) take any other actions that are consistent with the constitutions of the United States and Missouri, and that do not violate the requirements and limitations of this Consent Judgment. Part XVIII(l).
II. LEGAL STANDARD “Consent decrees should[] spring from—and serve to resolve—a dispute within the
court's subject-matter jurisdiction; come within the general scope of the case from the pleadings; and, further the objectives of the law on which the complaint was based.” E.E.O.C. v. Prod. Fabricators, Inc., 666 F.3d 1170, 1172 (8th Cir. 2012) (citing Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986)).
“When reviewing a proposed consent decree, the trial court is to review the settlement for fairness, reasonableness, and adequacy.” United States v. Metro. St. Louis Sewer Dist. (MSD), 952 F.2d 1040, 1044 (8th Cir. 1992). Relevant considerations include, but are not limited to, the interest of the public, federalism, the relative strength of Plaintiff’s claim, and whether the consent decree resolves the actual controversy in the complaint. See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903, 157 L. Ed. 2d 855 (2004) (“Consent decrees entered in federal court must be directed to protecting federal interests.”); E.E.O.C., 666 F.3d at 1172 (same); United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1435 (6th Cir. 1991) (considering the strength of the parties’ respective legal positions); Nat'l Credit Union Admin. Bd. v. True Yang Vangh, No. 15-CV-3871 (WMW/KMM), 2018 WL 6437423, at *2 (D. Minn. June 29, 2018) (considering “whether the consent judgment reflects a resolution of the allegations in the complaint,” “the relative strength of the parties’ positions,” and “protecting the public interest”); United States v. City of Waterloo, No. 15-CV-2087-LRR, 2016 WL 254725, at
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*5 (N.D. Iowa Jan. 20, 2016) (considering “whether the decree reflects a resolution of the actual controversy in the complaint”); United States v. Telluride Co., 849 F. Supp. 1400, 1402 (D. Colo. 1994) (considering whether a consent decree addressing defendant’s environmental pollution would accomplish the goal of cleaning the environment, whether it “reflect[ed] the relative strength or weakness of the government’s case,” and “whether the consent decree is in the public interest”).
“Although the law favors settlements, federal courts in adopting consent decrees are not mere ‘recorders of contracts' from whom parties can purchase injunctions.” Angela R. by Hesselbein v. Clinton, 999 F.2d 320, 324 (8th Cir. 1993) (quoting Local 93, Int’l Ass'n of Firefighters, 478 U.S. at 525)). “A consent decree is a judicial act. Thus, before entering such a decree, the Court must ensure that it does not ‘put the court's sanction on and power behind a decree that violates Constitution, statute, or jurisprudence.’” Missouri v. Westinghouse Elec., LLC, 487 F. Supp. 2d 1076, 1088 (E.D. Mo. 2007) (quoting United States v. City of Miami, Fla., 664 F.2d 435, 441 (5th Cir. 1981)). III. DISCUSSION
The Missouri Attorney General raises several arguments in his amicus brief as to why the Court should reject the proposed consent judgment. The Attorney General asserts that the
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agreement violates Missouri state law provisions § 600.0622 and § 600.063,3 that it grants MSPD
authority that it does not have under Missouri law to supervise county jails, that the judgment
would likely have a deleterious effect on public safety in Missouri, and that the judgment in
effect would provide class-wide relief when the Court has already denied Plaintiffs’ motion for
class certification. See Doc. 247. However, even if the Court were to find in Plaintiffs’ and
MSPD’s favor on each of the state’s arguments, the Court would still deny the parties’ request
for the consent decree they propose.
2 § 600.062 provides: “Notwithstanding the provisions of sections 600.017 and 600.042 to the contrary, neither the director nor the commission shall have the authority to limit the availability of a district office or any division director, district defender, deputy district defender, or assistant public defender to accept cases based on a determination that the office has exceeded a caseload standard. The director, commission, any division director, district defender, deputy district defender, or assistant public defender may not refuse to provide representation required under this chapter without prior approval from a court of competent jurisdiction.” Mo. Rev. Stat. § 600.062.
3 § 600.063 provides, in relevant part: (1) Upon approval by the director or the commission, any district defender may file a motion to request a conference to discuss caseload issues involving any individual public defender or defenders, but not the entire office, with the presiding judge of any circuit court served by the district office. The motion shall state the reasons why the individual public defender or public defenders will be unable to provide effective assistance of counsel due to caseload concerns. When a motion to request a conference has been filed, the clerk of the court shall immediately provide a copy of the motion to the prosecuting or circuit attorney who serves the circuit court. (2) If the presiding judge approves the motion, a date for the conference shall be set within thirty days of the filing of the motion. The court shall provide notice of the conference date and time to the district defender and the prosecuting or circuit attorney. (3) Within thirty days of the conference, the presiding judge shall issue an order either granting or denying relief. If relief is granted, it shall be based upon a finding that the individual public defender or defenders will be unable to provide effective assistance of counsel due to caseload issues . . . (5) Nothing in this section shall deny any party the right to seek any relief authorized by law nor shall any provisions of this section be construed as providing a basis for a claim for post-conviction relief by a defendant.
Mo. Rev. Stat. § 600.063.
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The most crucial provision of the proposed consent judgment is the caseload capacity standard. In order for MSPD to meet the numerous other requirements contained in the agreement, including those concerning client communication and visitation, investigation, motion practice, and appearances, public defenders must have the time do so. The studies and allegations reviewed above repeatedly link MSPD’s caseload size to the ability to provide adequate counsel. Thus, MSPD’s ability to reduce public defenders’ current caseload and maintain the specified caseload standard is critical to the operation of the proposed consent judgment as a whole. The importance placed on the caseload standard is demonstrated by the mandatory language used in the proposed consent judgment, including that MSPD “shall not accept any additional cases and shall not process any further indigence applications, until an appropriately experienced public defender with a caseload that falls under the cap becomes available. To do otherwise . . . would violate this Consent Judgment.” Part XVIII(k). Given this language, Plaintiffs or a third-party beneficiary would be permitted to bring a contempt motion in this Court against MSPD for failing to adhere to the caseload capacity standard, or for failing to adhere to any of the other obligations imposed by the proposed consent agreement. Such a motion, however, could also affect the MSPD in state court, because the current record suggests there will not be enough public defenders to permit the MSPD to both comply with the consent decree and to comply with Missouri state court orders assigning indigent defendants to the MSPD.
Under Missouri law, Missouri circuit courts assign indigent defendants to the MSPD. See, e.g., Mo. Code Regs. tit. 18, § 10-3.010(1)(B) (“Upon motion by either party, the court in which the case is pending shall have authority to determine whether the services of the public defender may be utilized by the defendant.”) Both Plaintiffs and MSPD agree that if entered, the
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consent judgment would not require “prosecutors or judges, none of whom are parties to this
case, to take any specific action in any specific case,” Doc. 228, p. 9, and indeed the Court “may
not enter a consent decree that imposes obligations on a party that did not consent to the decree,”
Local No. 93, Int'l Ass'n of Firefighters, 478 U.S. at 529. Thus, the consent decree in this Court
would not prevent a state court from ordering the MSPD to represent an indigent defendant even
if such representation violates the consent decree. The MSPD would then have to choose
between being subject to contempt for violating the consent decree in this Court or being subject
to a penalty for failing to represent an indigent defendant as ordered by the state court. Viewed
from this enforcement perspective, the proposed consent decree appears illusory because the
MSPD is caught between conflicting judicial decrees and there is no practical remedy. Further, to hold otherwise, would seriously implicate federalism concerns,4 and the Eighth Circuit’s
immunity findings in this case. See Church, 913 F.3d at 742–47.
Finally, the consent decree does not “come within the general scope of . . . the
pleadings.” E.E.O.C.. 666 F.3d at 1172. There is no class certified in this case; the pleadings are
limited to the rights of the named Plaintiffs. Yet the remedy proposed covers all indigent
persons who are or should be represented by the MSPD, yet have not received counsel at a
critical stage or who have been placed on a waitlist. The parties have not explained how such an
4 “The underlying idea is that a federal injunction of ongoing state proceedings is likely to breed resentment and hostility in the state judiciaries and even risk disobedience of the federal court’s orders. Therefore, avoiding injunctions of state courts is a way of limiting friction between state and federal courts.” Erwin Chemerinsky, Federal Jurisdiction 766 (6th ed. 2012). See also O’Shea v. Littleton, 414 U.S. 488, 500 (refusing to enter an injunction against state courts where plaintiffs sought “an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials . . . This seems to us nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger v. Harris . . . and related cases sought to prevent.”)
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expansive remedy is needed to address the rights of the named Plaintiffs or how as a practical matter such a consent decree applicable to so many indigents in the state criminal justice system could effectively be enforced.
The Court is sympathetic to the difficult position the MSPD system and its attorneys are in. Ultimately, the staffing problems identified in the record may result in specific state criminal convictions being set aside because of Sixth Amendment violations and/or additional ethics complaints against public defenders, even though the public defenders are not at fault for the staffing problems. Nonetheless, the proposed consent decree is not the vehicle to ensure that the MSPD and the State of Missouri meet their legal obligation to provide constitutionally adequate representation to indigent defendants.

IV. CONCLUSION For the reasons discussed above, the motion for entry of the proposed consent judgment
is DENIED.

Dated: January 27, 2020 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

RANDALL LEE DALTON, et al., Plaintiffs,
v. MICHAEL BARRETT, et al.,
Defendants.

) ) ) ) ) Case No. 17-04057-CV-C-NKL ) ) ) )

AMICUS BRIEF OF THE MISSOURI ATTORNEY GENERAL AS TO THE PROPOSED CONSENT JUDGMENT

As requested by this Court’s July 12, 2019 Order, the Missouri Attorney

General respectfully submits this amicus brief concerning the proposed consent

judgment. The Attorney General, as Missouri’s constitutional officer charged with

representing the interests of all Missourians, upholding and defending Missouri law,

and protecting public safety, strongly urges the Court to reject the proposed consent

judgment for several reasons.

First, Missouri law expressly prohibits the Missouri State Public Defender

(“MSPD”) system from limiting the availability of an attorney to accept cases based

on a determination that a public defender’s office has exceeded a caseload standard.

However, the proposed consent judgment imposes a caseload standard on every

attorney and office in the public defender system. The proposed consent judgment

prohibits the MSPD from assigning cases to an attorney that might result in an

attorney working more than 2,080 hours per year, or 40 hours per week. This

circumvents the necessity of making individualized determinations, and would be

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made without the opportunity to receive evidence or testimony on the development of this caseload standard. And if the Court enters the proposed consent judgment, it never will.
Second, the proposed consent judgment directly contravenes or undermines the legislative intent of other Missouri statutes and rules governing the representation of criminal defendants. And the proposed consent judgment will require public defenders to take certain actions in litigation that may run afoul of an attorney’s obligations under the Missouri Rules of Professional Responsibility.
Third, the proposed consent judgment is likely to have a deleterious effect on public safety in Missouri. If this Court enters the proposed consent judgment, Missouri judges will be unable to consider the caseloads, capabilities, skills, and experiences of individual MSPD attorneys. Instead, the District Defender leading a regional MSPD office must only notify the appropriate Missouri trial court judge that the caseload standard has been breached. At that point, the judge’s only practical options will be to dismiss a case, work towards eliminating incarceration as a sanction, or appoint private counsel. Untold numbers of indigent defendants may be released from jail or not sentenced at all, regardless of the severity of their charged crimes.
Finally, the proposed consent judgment is wholly attenuated from any live issues present with the four remaining plaintiffs in this case. When this case was filed, it was about five plaintiffs and whether they are being provided with constitutionally adequate representation by the Missouri State Public Defender’s
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office. Just months before trial, the remaining parties have asked this Court to enter a proposed consent judgment that expressly disclaims any finding that Defendants violated any criminal defendant’s constitutional rights (Doc. 222-1, Consent Judgment, Section II(n)). Instead, the proposed consent judgment provides relief on a class-wide basis to all current and future indigent criminal defendants and to the entire MSPD system. This Court has already declined to certify this case as a class action. Entering the proposed consent judgment would undermine this Court’s previous ruling.
I. The proposed consent judgment contravenes Missouri statutes governing the appointment of public defenders to indigent criminal defendants. A. Missouri law prohibits imposing a brightline caseload standard on public defenders based on hours worked.
Section 600.062, RSMo, expressly prohibits the MSPD from limiting the availability of any public defender office or individual attorney “based on a determination that the office has exceeded a caseload standard.” In spite of this clear Missouri law, the proposed consent judgment requires the MSPD to limit the availability of its attorneys based on a caseload standard. The proposed consent judgment provides that “the MSPD shall ensure that public defenders not exceed the MSPD caseload standard.” (Consent Judgment, Section XVIII(e)). The proposed consent judgment fixes the caseload standard at 173.3 hours’ worth of cases on a monthly basis. (Consent Judgment, Section V(f)). This amount was calculated to “equal 40 hours a week, 52 weeks a year.” (Consent Judgment, Section XVIII(f)). The caseload standard in the proposed consent judgment will drive the MSPD’s
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assignment of cases to its attorneys, directly contravening the unambiguous bar in § 600.062, RSMo, against implementing caseload standards.
What is more, the proposed consent judgment contains no provision for this caseload standard to be reexamined or adjusted over the proposed consent judgment’s seven-year term. The caseload standard in the proposed consent judgment is simply not permitted by Missouri law. And the basis for these numbers has not been briefed by the parties to the lawsuit or subjected to judicial scrutiny. If the Court enters the proposed consent judgment, they never will be.
Though the MSPD is statutorily prohibited from implementing a bright-line rule based on hours worked for assigning cases, Missouri law does provide mechanisms for public defenders to obtain relief if their caseload is preventing them from providing effective assistance of counsel. Under § 600.063, RSMo, an individual MSPD attorney can request a conference to discuss caseload issues with the presiding judge of the circuit court serving an MSPD district office. The attorney must “state the reasons why the individual public defender or defenders will be unable to provide effective assistance of counsel due to caseload concerns.” § 600.063.1, RSMo. After filing the motion and conferring with the court, the court may decide that the individual attorney does not have a caseload preventing him from providing effective assistance of counsel, or the court may grant limited relief. Section 600.063.2 allows the court to appoint a private attorney, place a case on a waiting list, grant continuances, or take other actions.
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MSPD defenders have used this very provision throughout the State, but the MSPD is now attempting to circumvent it. The proposed consent judgment substitutes an individual attorney’s assessment of his own caseload with a caseload standard—one that is expressly prohibited by § 600.062, RSMo. Instead of filing a motion with a circuit court to discuss caseload management issues and allowing the circuit court to consider factors specific to that individual attorney, the proposed consent judgment provides that an attorney shall “notif[y] the circuit court that the caseload standard has been reached.” (Consent Judgment, Section XVIII(l)). Upon being notified, the circuit court may then appoint private counsel, dismiss the case, or engage with the prosecutor about eliminating incarceration as an offense. (Id.). Sections 600.062 and 600.063, RSMo, only allow the exemption of individual attorneys from taking cases. The exemption cannot, under the statutes, be based exclusively on a caseload standard. And the statutes only permit that exemption if the circuit court approves the exemption based on a finding that the individual attorney has an excessive caseload preventing that individual attorney from providing effective assistance of counsel.
The proposed consent judgment robs Missouri state courts of their jurisdiction and responsibility to assess an individual attorney’s caseload, skills, experience, and capabilities. If this Court enters the proposed consent judgment, the mechanisms in § 600.063, RSMo, become illusory. Under the proposed consent judgment, a court will simply be notified that a caseload standard has been reached. If a court is so notified, the court can provide only certain relief. The court will be unable to engage in its
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judicial function to truly analyze whether the attorney is able to provide effective assistance of counsel. Whereas a court can conduct an individualized assessment tailored to the specific attorney making a motion under § 600.063, RSMo, the proposed consent judgment establishes a universal rule applicable to all MSPD offices and attorneys. The proposed consent judgment therefore replaces the court’s own independent assessment of a matter, undermining the role of a judge and Missouri statutes.
MSPD attorneys have pursued the judicial conferences under § 600.063, RSMo, and courts have rejected (although not in every instance) their arguments that their caseloads prevent them from providing effective assistance of counsel. In one recent case, the Jackson County Circuit Court considered detailed information about the caseload for the District 16 Public Defender’s Office. In re: Area 16 Public Defender Office III (Case No. 1716-MC14505, Circuit Court of Jackson County). The Court noted that during a 10-year period, while the number of attorneys in the office remained essentially consistent, the office saw a 63% reduction in the number of cases assigned to the office. “Based on the specific information and data,” the Court noted, “it is not reasonable to conclude, under any standard or legal burden, that the District 16 office has caseload issues.” Id. at p. 15 (emphasis in original).
So, despite the MSPD’s efforts to convince Missouri courts that their caseloads prevent them from providing constitutionally adequate representation to indigent defendants, the MSPD urges this Court to enter a proposed consent judgment as a backdoor way of imposing a caseload standard throughout the entire MSPD system.
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The proposed consent judgment has no appreciation for nuance of the capabilities, skills, or demands of individual MSPD attorneys or even regional MSPD offices. Instead, the proposed consent judgment will impose a single standard, prohibited by Missouri law, on all MSPD attorneys and offices. It effectively grants the MSDP—a defendant to the lawsuit—class-wide relief.
Granting class-wide relief to the MSPD is especially unwarranted because MSPD attorneys have, in fact, successfully pursued caseload relief under § 600.063, RSMo. See In re: Missouri State Public Defender District 21, St. Louis County Trial Office (Case No. 18SL-CC00129, St. Louis County Circuit Court). If an individual public defender does have an excessive caseload preventing him or her from providing effective assistance of counsel, the statutory procedures have been proven to work. Subjecting all MSPD attorneys to the 40-hour per week caseload standard forces all public defenders to limit their representation, even if they are capable of providing effective assistance of counsel with a higher caseload.
B. The proposed consent judgment will grant the MSPD authority that it does not have under Missouri law.
The proposed consent judgment also grants the MSPD authority that it does not have under Missouri law. Section VIII(e) of the proposed consent judgment places the MSPD in a supervisory authority over county jails’ provision of applications for public defender services. Specifically, the MSPD shall ensure that “county jails are aware of and in compliance with all relevant laws regarding the provision of such applications.” However, no Missouri law grants the MSPD authority to serve as a compliance monitor for county jails. Moreover, the proposed consent judgment does
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not address the consequences if a jail does not comply with this provision. If the MSPD takes on an oversight role over county jails’ provision of applications for public defender services, it is unclear whether the MSPD or the jail is ultimately liable if the jail falls short of its obligation.
Section VIII(e) of the proposed consent judgment requires the MSPD to “take appropriate legal steps to ensure that county jails and state prisons are in compliance with all laws and rules regarding access to counsel and the privacy of client communications.” The terms do not make clear what “appropriate legal steps” the MSPD may take, but Missouri law already makes the Director of the Department of Corrections responsible for the operation of state prisons. Under § 217.025.1, RSMo, the Director of the Department of Corrections is entrusted with the “general supervision, management and control” of Missouri’s prison system. No Missouri law grants the MSPD supervisory authority over the state prison system.
Furthermore, none of the proposed findings of fact in the proposed consent judgment addresses issues with privacy of client communication and defendants’ communication with their attorneys inside Missouri’s prisons or jails. This relief was not sought in the plaintiffs’ Complaint, and the facts set forth in the proposed consent judgment do not support granting it. The proposed consent judgment therefore grants the MSPD—the defendants in this lawsuit—powers it does not have under Missouri law. The expansion of the MSPD’s powers only reinforces the fact that the ACLU and the MSPD are not truly adverse parties in this lawsuit.
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C. The proposed consent judgment is not premised on facts to support a violation of federal law and thereby override Missouri law.
“While parties can settle their litigation with consent decrees, they cannot agree to disregard valid state laws, and cannot consent to do something together that they lack the power to do individually.” Perkins v. City of Chicago Heights, 47 F.3d 212, 216 (7th Cir. 1995) (internal citations omitted). State entities, like the MSPD, “cannot enter into an agreement allowing them to act outside their legal authority, even if that agreement is styled as a ‘consent judgment’ and approved by a court.” St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 270 (8th Cir. 2011). If a consent judgment’s terms are not “narrowly tailored so as to infringe state sovereignty as minimally as possible,” the consent judgment is invalid and unenforceable. Id. (citing Perkins). In Kurtz, the Eighth Circuit reversed the district court’s entry of a consent judgment that contravened Missouri law because the consent judgment’s remedy was not “necessary to rectify a violation of federal law” and it was not narrowly tailored to minimize infringement on state sovereignty. Id. at 270-71.
The proposed consent judgment clearly contravenes Missouri law and undermines the Missouri Supreme Court Rules, as discussed below. The remedies provided in the proposed consent judgment are simply not necessary to rectify any violation of federal law.
First, the proposed consent judgment expressly disclaims any federal constitutional violation. In Section II(n), the proposed consent judgment states that the “MSPD does not admit that the constitutional rights of any specific indigent defendant or defendants, including plaintiffs, have been violated.” The closest the
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proposed consent judgment comes to finding a constitutional violation is speculation that “there is a high likelihood that Plaintiffs would be able to prove their constitutional claims against the MSPD.” (Consent Judgment, Section III(j)). Absent any finding that any plaintiff’s constitutional rights have been violated, a consent judgment that contravenes state law is not permitted under controlling Eighth Circuit precedent.
Second, even if this Court were to interpret the proposed consent judgment as supporting an actual violation of the Constitution by the MSPD, the relief granted by the proposal is not necessary to rectify that violation. As discussed below, only one of the remaining four plaintiffs in this case has standing to proceed with this lawsuit to trial. And that plaintiff, Viola Bowman, has been represented by the same public defender for over four years. That public defender has not moved to withdraw from Ms. Bowman’s case, and the Attorney General’s Office could not find record of him filing a motion under § 600.063, RSMo. Granting systemic relief to tens of thousands of current and future criminal defendants and to the entire MSPD system based on speculation that one person’s federal constitutional rights might be violated is not narrowly tailored to minimize intrusions into Missouri’s state sovereignty and the statutory scheme of Chapter 600, RSMo.
II. The proposed consent judgment imposes on MSPD attorneys different ethical standards from the Missouri Rules of Professional Conduct, and it will supplant several Missouri Supreme Court Rules for criminal practice and procedure.
In a number of ways, the proposed consent judgment will require MSPD attorneys to take actions that may undermine or conflict with their ethical obligations
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under the Missouri Rules of Professional Conduct. The proposed consent judgment could have included a provision exempting MSPD from taking actions that conflict with their ethical obligations. Instead, the only instances in which the Rules of Professional Conduct are mentioned in the proposed consent judgment are in the provisions that talk about conflicts of interest created by excessive workloads.
For example, Section VII(b) of the proposed consent judgment requires MSPD attorneys to promptly file a motion for a bail review hearing if the trial court declines to release a client pre-trial, or if a client is unable to post bail. However, Rule 4-3.1 of the Rules of Professional Conduct prohibit Missouri attorneys from making unmeritorious claims and contentions. By requiring MSPD attorneys to file certain motions in all cases, there is a reasonable likelihood that they will be put in a position where they will file a pleading in violation of Rule 4-3.1.
In addition, by imposing a caseload standard on all MSPD attorneys and offices, the proposed consent judgment likely undermines Rule 4-1.1. That Rule states that Missouri attorneys shall provide competent representation to a client with the appropriate “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” But the new caseload standard was developed by an accounting firm’s many-years-old study of the number of hours an attorney should devote to a specific type of case. While the proposed consent judgment does not expressly prohibit an MSPD attorney from spending more time on a given case, the caseload standard is inextricably linked with how many hours an attorney should
11 Case 2:17-cv-04057-NKL Document 247 Filed 07/26/19 Page 11 of 20

spend on a case, regardless of the legal knowledge, skill, thoroughness and preparation necessary for the representation.
Finally, the proposed consent judgment will affect the way that criminal cases are prosecuted and tried in Missouri, undermining the Missouri Supreme Court Rules. For example, Missouri Supreme Court Rule 25.02(b) requires discovery requests to be filed within 20 days of arraignment. However, Section X(b) of the proposed consent judgment drastically reduces this to only two days after arraignment in felony cases, contrary to Missouri Supreme Court Rules. The proposed consent judgment therefore substitutes the trial strategy and judgment of individual public defenders, forcing them to propound discovery in 10% of the time that the Missouri Supreme Court Rules allow. In other places, too, the proposed consent judgment substitutes the trial strategy of individual public defenders by mandating them to take certain actions in discovery, trial, and appeal that are not mandated by the Missouri Supreme Court rules, including filing motions, requesting hearings, filing briefs, and seeking oral argument. (See generally Consent Judgment, Section X).
III. The proposed consent judgment will adversely impact public safety and limit the availability of public defenders to provide representation to clients needing their services.
The proposed consent judgment will not only affect MSPD attorneys and the plaintiffs to this case, it will impact the entire criminal justice system. As discussed in Part I above, the proposed consent judgment will substitute a circuit court’s assessment under § 600.063, RSMo, of an individual public defender’s workload.
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Instead, under the proposed consent judgment, all a public defender has to do is notify a trial court that his caseload has exceeded 173.3 hours’ worth of cases. After receiving this notification, a court’s options are limited. These options include entirely dismissing a case or eliminating incarceration as an offense, regardless of the severity of the charged crime. (Consent Judgment, Section XVIII(l)). Nothing in Missouri law authorizes courts to take these actions based entirely on an individual public defender’s workload. The proposed consent judgment, on the other hand, does just that, providing for dismissal of a case “in lieu of processing additional indigence applications when this standard has been reached.” (Id.).
Individuals accused of some of the most serious felonies in Missouri—rape, kidnapping, armed robbery—may walk free without undergoing a trial because a public defender’s office will refuse to take any cases that will require an attorney to work more than 40 hours per week. And that threshold may be even lower, because the proposed consent judgment allows the MSPD to seek downward adjustments in the caseload standard. (Consent Judgment, Section XVIII(o)). Upon notification that an attorney’s caseload standard has been met, courts may also eliminate incarceration as a possible penalty for a charged offense. The relief sought in the case and in the proposed consent judgment will cause grave risks to public safety in a concrete and particularized way.
And critically, the proposed consent judgment will limit the availability of public defenders to represent indigent defendants—the very people they should be representing. By indiscriminately limiting the number of hours worked per public
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defender, it is entirely likely that many indigent defendants will not be able to gain access to a lawyer at all. The proposed consent judgment acknowledges that the MSPD currently maintains a waitlist of indigent defendants awaiting public defender services. “During their time on a waitlist, indigent defendants have no access to legal representation whatsoever.” (Consent Judgement, Section II(m)). It is unclear if the MSPD will continue to maintain a waitlist, because the proposed consent judgment states that “in lieu of . . . placing such defendants on a wait list for public defender services, the MSPD shall ensure that the relevant District Defender promptly notifies the court that the caseload standard has been reached.” (Consent Judgment, Section XVIII(l)). Even if the MSPD continues placing defendants on a waitlist, more and more indigent defendants will be prosecuted without being provided access to a public defender.
The United States and the Missouri Constitutions require that criminal defendants receive adequate assistance of counsel. But instead of ensuring that an individual defendant is receiving adequate counsel, the proposed consent judgment flips the focus from the defendant to the public defender. There is no guarantee that limiting the caseloads of the entire MSPD system ensures that any current or future defendant charged with a crime will receive adequate assistance of counsel. If anything, the proposed consent judgment limits the availability of attorneys to provide counsel.
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IV. The proposed consent judgment inappropriately grants classwide relief, and it will be enforceable by untold numbers of criminal defendants.
The proposed consent judgment makes as third-party beneficiaries “all
indigent persons who are now, or who will be, under formal charge before a state
court in Missouri . . . and who are represented by MSPD, or should be represented by
MSPD[.]” These third parties, representing an untold number of present and future
criminal defendants, can sue to enforce the terms of the proposed consent judgment.
However, this Court has already refused plaintiffs’ motion—notably unopposed by
the MSPD—to certify this case as a class action.
In its order denying class certification, the Court rejected the plaintiffs’
argument that this case “requires an analysis of MSPD at the system-wide level, and
does not depend on the particular circumstances of individual cases.” [Doc. 212, p.
8]. The Court reasoned:
None of the questions that Plaintiffs present are apt to generate common answers, and instead the answers may vary depending upon any one of a number of factors, including the Plaintiffs’ location and type of criminal charge, and may even vary among individual MSPD attorneys. For instance, the Plaintiffs cannot establish the answer to “whether the State has met its obligation to provide counsel,” without providing evidence from each of MSPD’s forty-two offices and three divisions. The answer could quite conceivably be yes in one MSPD office, but no in another.
[Id.]. The Court found that the 10,000+ indigent criminal defendants in Missouri do
not share common questions of law and fact. The plaintiffs could not “’bridge the
conceptual gap’ between their contention that the MSPD is underfunded and
15
Case 2:17-cv-04057-NKL Document 247 Filed 07/26/19 Page 15 of 20

overworked, and their allegation that every putative class member has suffered a common injury of inadequate counsel.” [Id. at p. 9].
The consent judgment would without a doubt grant class-wide relief to “all indigent persons who are now, or who will be, under formal charge before a state court in Missouri,” (Consent Judgment, Section XXI(c)), flouting this Court’s order denying class certification just a few short months ago. This is especially inappropriate because only one of the four plaintiffs in this lawsuit is currently on trial. Each of the four plaintiffs are, or were, actually represented by counsel in their criminal cases. See Case Nos. 15CT-CR02237-01; 16CT-CR1306-01; 15CY-CR00043; 16AO-CR00722-01; 17MG-CR00068-1.
As of the date of this brief, plaintiffs Randall Lee Dalton, Dorian Samuels, and Brian Richman have pleaded guilty. These three plaintiffs were represented by counsel during their plea proceedings. By pleading guilty, they have waived any claims they may have for ineffective assistance of counsel, unless the claim is limited to how an attorney’s conduct affected the guilty plea. Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005) (By pleading guilty, a defendant “waived any claim that counsel was ineffective except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.”). Any claims they may have at this point regarding effective assistance of counsel are moot and not justiciable. See id.; see also Tolen v. State, 934 S.W.2d 639, 643 (Mo. App. E.D. 1996) (Where a guilty plea is “both counselled and voluntary, claims of failure to investigate
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factual issues are subsumed and rendered moot by the guilty plea.”) (citations and editing marks omitted).
And because they have pleaded guilty, they should be dismissed from this lawsuit. Notably, the MSPD—who, as a self-interested defendant, will immensely benefit from a reduction in the hours worked by its attorneys—has not sought dismissal of these three plaintiffs. This Court has previously dismissed the original lead plaintiff to this case, Shondel Church, after Mr. Church pleaded guilty. [Doc. 69]. Just as this Court held that Mr. Church lacked standing to be a plaintiff after his guilty plea, Plaintiffs Dalton, Samuels, and Richman, too, lack standing and should be dismissed.
That leaves one plaintiff left to shoulder the burden for obtaining class-wide relief on behalf of thousands of indigent non-party criminal defendants and the entire MSPD system. Viola Bowman was charged with first-degree murder and armed criminal action, and her case is set for trial in October 2019. She has been represented by the same MSPD attorney since shortly after her arraignment in January 2015. That attorney has not sought to withdraw from her case, and the Attorney General’s Office has not found record of him filing a motion or obtaining relief under § 600.063, RSMo. And Ms. Bowman does not appear to have requested that the court appoint her a new attorney in her criminal case. Because her case is ongoing, she can raise any claims for ineffective assistance of counsel during her trial or on appeal. Missouri Supreme Court Rules 24.035 and 29.15 provide for postconviction relief in the event she claims ineffective assistance of counsel.
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In addition, the proposed consent judgment raises substantial questions about enforcement. As third-party beneficiaries with enforcement rights (Consent Judgment, Section XXI(c)), presumably any future indigent criminal defendant can seek relief in this Court if the MSPD does not comply with the judgment’s terms. Given the breadth of the terms—e.g., an attorney’s hours worked, communication with a public defender’s clients, filing of motions, and serving of discovery—this Court may be faced with countless motions to enforce the consent judgment. Those motions to enforce would typically, and appropriately, be addressed during the course of a criminal defendant’s prosecution. But if a criminal defendant’s public defender does not propound discovery within two days of an indictment, respond to a client’s phone message within two days of receipt, or provide a client with a copy of a motion within five days of filing, the defendant is presumably authorized to file a civil motion to enforce the consent judgment in this Court.
Furthermore, the proposed consent judgment vests significant authority in a court-appointed Monitor to oversee the MSPD’s compliance with the terms of the consent judgment. The dispute resolution procedures provide that Plaintiffs’ counsel—the ACLU—must bring to the Monitor’s attention any issues about the MSPD’s compliance with the consent judgment. (Consent Judgment, Section XX). Notably, the proposed consent judgment does not authorize the plaintiffs themselves—the only parties truly entitled to relief in this lawsuit—to bring these issues to the Monitor’s attention. Rather, the ACLU, who may not represent any future criminal defendants affected by the MSPD’s counsel in a criminal case, is
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granted authority to serve as a check on the MSPD system. Granting Plaintiffs’ counsel such expansive rights, completely untethered to the representation given to an individual criminal defendant, is extraordinary and unwarranted.
The proposed consent judgment will make monumental changes to the way that criminal defendants are prosecuted, tried, and represented by counsel in Missouri. These changes will based on one plaintiff who has been represented by the same public defender for over four years and who does not appear to have raised any claims for ineffective assistance of counsel in her criminal case. This Court should preside over this case at trial, and the MSPD should defend the adequacy of its representation given to the individual plaintiffs in this lawsuit. Public policy, Missouri law, and this Court’s own prior decisions in this case dictate that this Court should not grant class-wide relief and open the floodgates to untold numbers of motions or lawsuits by current and future criminal defendants, who already have recourse under state law.
CONCLUSION For the reasons stated, the Court should not enter the proposed consent judgment.
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Respectfully submitted, ERIC S. SCHMITT Attorney General /s/ Jeremiah J. Morgan Jeremiah J. Morgan
Deputy Attorney General, Civil Missouri Bar No. 50387 Cristian M. Stevens Deputy Attorney General, Criminal Missouri Bar No. 48028 Missouri Attorney General’s Office P.O. Box 899 Jefferson City, MO 65102 Phone: 573-751-3321 Fax: 573-751-9456 ATTORNEYS FOR INTERVENOR THE MISSOURI ATTORNEY GENERAL CERTIFICATE OF SERVICE I hereby certify that on the 26th day of July, 2019, a true and correct copy of the foregoing was filed with the Clerk of the Court using the Court’s online case filing system, and thereby served on all parties in the case.
/s/ Jeremiah J. Morgan Jeremiah J. Morgan
20 Case 2:17-cv-04057-NKL Document 247 Filed 07/26/19 Page 20 of 20

 
 913 F.3d 736 (2019)
Shondel CHURCH; Randall Lee Dalton; Dorian Samuels; Viola Bowman; Brian Richman, Plaintiffs-Appellees v.
State of MISSOURI; Michael L. Parson,[1] in His Official Capacity as Governor of the State of Missouri, Defendants-Appellants 737*737
Michael Barrett; H. Riley Bock; Charles R. Jackson; Craig Chval; A. Crista Hogan, Defendants
No. 17-2857.
United States Court of Appeals, Eighth Circuit.
Submitted: April 10, 2018. Filed: January 10, 2019.
Appeal from United States District Court for the Western District of Missouri — Jefferson City.
741*741 Counsel who presented argument on behalf of the appellants was D. John Sauer, of Jefferson City, MO. The following attorneys appeared on the appellant brief; Michael Martinich-Sauter and Joshua M. Divine of Jefferson City, MO.
Counsel who presented argument on behalf of the appellees was Matthew R. Shahabian, of Washington, DC. The following attorneys also appeared on the appellee brief; Anthony E. Rothert and Jessie M. Steffan, of Saint Louis, MO., Jason D. Williamson, of New York, NY., Gillian R. Wilcox, of Kansas City, MO., Amy E. Breihan, of Saint Louis, MO., Aaron Scherzer, Robert L. Sills and Camille J. Rosca of New York, NY., Easha Anand, Evan Rose, and Will Melehani of San Francisco, CA., James Maune of Irvine, CA., Marnee R. Rand of Washington, DC., and Anthony Tartaglio and Annie Prasad of Menlo Park, CA.
Before GRUENDER, MELLOY, and BENTON, Circuit Judges.
740*740 BENTON, Circuit Judge.
This is a class action against the State and governor of Missouri, the director of the Missouri State Public Defender office, and the commissioners of the Missouri State Public Defender Commission. The plaintiffs alleged that the State "has failed to meet its constitutional obligation to provide indigent defendants with meaningful representation." Invoking sovereign immunity, the State and governor moved to dismiss. The governor also invoked legislative immunity. The district court denied the motion. Church v. Missouri, 268 F.Supp.3d 992 (W.D. Mo. 2017). The director and commissioners do not appeal. Having jurisdiction under 28 U.S.C. § 1291 through the collateral order doctrine,[2] this court reverses and remands.

I.
The Sixth Amendment guarantees indigent defendants in criminal cases the right to appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Because the right to counsel is "fundamental and essential to a fair trial," it is "protected against state invasion by the Due Process Clause of the Fourteenth Amendment." Id. at 341-42, 83 S.Ct. 792.
The State usually provides counsel through the Missouri State Public Defender. See State ex rel. Missouri Pub. Def. Comm'n v. Pratte, 298 S.W.3d 870, 875 (Mo. banc 2009) (indigent defense is "a duty which constitutionally is the burden of the State," and "[w]hen a defendant is found to be indigent in Missouri, the defendant's Sixth Amendment right to counsel is usually met by the judge appointing the `Office of State Public Defender'") (citation omitted). Here, the plaintiffs "were all charged with crimes in Missouri state court and, as a result of their indigency, were entitled to representation by the MSPD." They bring this lawsuit "on behalf of themselves and a putative class of all indigent defendants in criminal and juvenile proceedings in Missouri who are eligible for representation by the MSPD." The putative class does not include individuals seeking post-conviction relief. See Mo. Sup. Ct. R. 24.035(e), 29.15(e) (requiring appointment of counsel for all pro se, indigent, post-conviction movants).
The plaintiffs allege: "The State's indigent defense budget is shockingly inadequate.... 742*742 Without sufficient funding, overstretched and under-resourced [MSPD] attorneys are forced to handle far too many cases and to devote far too few hours to each case." They argue they "have suffered and continue to suffer the denial of adequate counsel at critical stages of their criminal cases due to these systemic caseload problems among MSPD attorney." They seek "a declaratory judgment stating that their right to counsel is being violated and an order enjoining the ongoing violation of their rights and requiring Defendants to propose a remedial plan to the court."
II.
The State of Missouri invokes sovereign immunity for itself. "This court reviews de novo questions of sovereign immunity." Fryberger, 889 F.3d at 473. "Sovereign immunity is the privilege of the sovereign not to be sued without its consent." Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011). The Eleventh Amendment is "one particular exemplification of that immunity." Federal Mar. Comm'n v. South Carolina State Ports Auth., 535 U.S. 743, 753, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). The State removed this case to federal court, waiving its Eleventh Amendment immunity. See Lapides v. Board of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) ("We conclude that the State's action joining the removing of this case to federal court waived its Eleventh Amendment immunity").
But "[s]tates also enjoy a broader sovereign immunity, which applies against all private suits, whether in state or federal court." Beaulieu v. Vermont, 807 F.3d 478, 483 (2d Cir. 2015), citing Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636

(1999) ("We have ... sometimes referred to the States' immunity from suit as `Eleventh Amendment immunity.' The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment."). The Supreme Court "has repeatedly held that the sovereign immunity enjoyed by the States extends beyond the literal text of the Eleventh Amendment." Fed. Mar. Comm'n, 535 U.S. at 754, 122 S.Ct. 1864.
"The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." Id. at 760, 122 S.Ct. 1864. Developed at common law, "immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution." Alden, 527 U.S. at 713, 119 S.Ct. 2240. See also Nevada v. Hall, 440 U.S. 410, 414-16, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) (explaining sovereign immunity's common-law origins). "States entered the Union with their sovereign immunity intact, unlimited by Article III's jurisdictional grant." Stewart, 563 U.S. at 253, 131 S.Ct. 1632. "The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity." Alden, 527 U.S. at 716, 119 S.Ct. 2240. "The founding generation thought it `neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.'" Id. at 748, 119 S.Ct. 2240, quoting In re Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887).
"[N]either logic nor precedent supports the proposition that a state 743*743 waives its general state sovereign immunity by removing an action from state court to federal court." Beaulieu, 807 F.3d at 486. Missouri's state sovereign immunity applies unless "it is waived or a statutory or recognized common law exception, such as consent, is applicable." Metropolitan St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 914 (Mo. banc 2016). The plaintiffs assert both a waiver and a common-law exception, contending that sovereign immunity does not apply in Missouri when a plaintiff seeks prospective equitable relief to enforce the State's affirmative duty or obligation.
A.
Courts "give effect" to a state's waiver of sovereign immunity "only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.'" Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990), quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Express language does appear in section 537.600, RSMo 2016, which "carve[s] out limited exceptions [for negligent operation of motor vehicles and dangerous conditions of public property] to a general rule of immunity." Bellefontaine, 476 S.W.3d at 921.
Emphasizing two Missouri Court of Appeals opinions, the plaintiffs argue that sovereign immunity does not bar a claim for equitable relief to enforce the State's affirmative "duty or obligation." In Wyman v. Missouri Department of Mental Health, 376 S.W.3d 16, 23 (Mo. App. 2012), the court of appeals said it "found no case which applies § 537.600 to a claim

seeking only equitable relief." The Court of Appeals then stated that "sovereign immunity does not necessarily bar a claim for injunctive relief which seeks to reverse a state agency's prior violation of its statutory obligations, or to prevent future violations." Wyman, 376 S.W.3d at 23. In 2018, the Court of Appeals-citing the district court's decision here-quoted and followed Wyman. Missouri State Conf. of NAACP v. State, 563 S.W.3d 138, 147, 2018 WL 5492832, at *6 (Mo. App. Oct. 30, 2018).
Both the Wyman and NAACP opinions fail to address the abundant contrary Missouri authority on sovereign immunity. In 2016 and 2017, the Supreme Court of Missouri stated: "Sovereign immunity is the rule, not the exception." Bellefontaine, 476 S.W.3d at 914; Newsome v. Kansas City Mo. Sch. Dist., 520 S.W.3d 769, 775 (Mo. banc 2017). Of critical importance here, the Missouri Supreme Court held that
in the absence of an express statutory exception to sovereign immunity, or a recognized common law exception such as the proprietary function and consent exceptions, sovereign immunity is the rule and applies to all suits against public entities.
Bellefontaine, 476 S.W.3d at 921-22 (emphasis added). Because—except for statutory and common-law exceptions—sovereign immunity bars all suits against the State, it bars suits for prospective equitable relief.
The plaintiffs claim that Bellefontaine covers only suits for damages because that is all the plaintiff there sought. To the contrary, Bellefontaine follows the long-established Missouri precedent on sovereign immunity. Granting injunctive relief against an unconstitutional law in 1908, the Missouri Supreme Court held:
That the sovereign state may not be sued is a truism.... But defendants.... ministerial officers, charged to be about to do irreparable injury.... are 744*744 not beyond the strong arm of a court of equity.
Merchants' Exchange of St. Louis v. Knott, 212 Mo. 616, 111 S.W. 565, 574 (Mo. banc 1908) (agreeing with the Ex parte Young doctrine for state injunction cases just two months after the United States Supreme Court's decision). The Missouri Supreme Court has repeatedly followed this approach.
The amenability of respondents as executive or administrative officers of the State to the restrictive power of the courts in a proceeding of this character has been frequently declared in a number of cases.... It is not to be understood from these cases that the state itself can be enjoined; but, when its officers act in an unconstitutional or illegal manner they are not to be regarded as acting for the state, and they may be enjoined.
Carson v. Sullivan, 284 Mo. 353, 223 S.W. 571, 571 (Mo. banc 1920) (citing several cases including Merchants' Exchange and Ex parte Young). See, e.g., Nacy v. Le Page, 341 Mo. 1039, 111 S.W.2d 25, 25-26 (Mo. banc 1937) ("because the state may not be sued without its consent" and because a garnishment "seeks to compel action on the part of the state," a state court may not require the State to submit to a legal writ of garnishment) (changed by § 525.310, RSMo 1943); State ex rel. Eagleton v. Hall, 389 S.W.2d 798, 801 (Mo. banc 1965)

(a will-contest suit affecting residuary estate left to state is a suit against the state, thus barred by sovereign immunity), quoted in Bellefontaine, 476 S.W.3d at 921; Garland v. Ruhl, 455 S.W.3d 442, 446 (Mo. banc 2015) (even when a statute authorizes award of attorney fees against the state, sovereign immunity prevents ordering the state to do so, due to strict construction of the statute).
Because the two Court of Appeals opinions have a limited consideration of controlling Missouri Supreme Court cases and fail even to address contrary authority, the Wyman and NAACP cases are not instructive as to how the Missouri Supreme Court would decide the sovereign immunity issue in this case. See United Fire & Cas. Co. v. Titan Contractors Serv., Inc., 751 F.3d 880, 885 n.2 (8th Cir. 2014).
The plaintiffs cite five cases where the Missouri Supreme Court affirmed injunctions directed at the State. See Weinschenk v. State, 203 S.W.3d 201, 205 (Mo. banc 2006); Brooks v. State, 128 S.W.3d 844, 851 (Mo. banc 2004); Rolla 31 Sch. Dist. v. State, 837 S.W.2d 1, 7 (Mo. banc 1992); Pohl v. State Highway Comm'n, 431 S.W.2d 99, 107 (Mo. banc 1968); Koplar v. State Tax Comm'n, 321 S.W.2d 686, 697 (Mo. 1959). These five cases, plaintiffs assert, show it is "perfectly ordinary" to enjoin the State itself to force compliance with its obligations.
First, in the three most recent cases, state officials-subject to Missouri's Ex parte Young doctrine-were also named as defendants. Weinschenk, 203 S.W.3d at 204 n.1 (secretary of state); Brooks, 128 S.W.3d at 846 (attorney general); Rolla, 837 S.W.2d at 2 & n. 2 (naming the "various state officials" who were defendants). The Pohl case is an "injunction suit by taxpayers." Pohl, 431 S.W.2d at 100. See Manzara v. State, 343 S.W.3d 656, 658-59 (Mo. banc 2011) (reviewing history of taxpayer suits since 1873 and holding "when a public interest is involved and public monies are being expended for an illegal purpose, taxpayers have the right to enjoin the action" so "government officials conform to the dictates of the law"). The Koplar case is a judicial review of administrative decisions under the Missouri Administrative Procedure Act-specifically held to be a "waiver of sovereign immunity." 745*745 See St. Louis County v. State, 424 S.W.3d 450, 454 n.3 (Mo. banc 2014) (statute authorizing judicial review of administrative decisions is a waiver of sovereign immunity). As a result, none of these five cases even hint at the threshold question presented here: whether Missouri's sovereign immunity covers suits for prospective equitable relief. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004). See also Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist., 493 S.W.3d 847, 855 (Mo. banc 2016) ("Judicial decisions must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.") (citation omitted).
Second, adopting the plaintiffs' view creates a judicial exception to sovereign immunity. But Bellefontaine rejects that, explaining it would "not judicially create an exception to the common law rule of sovereign immunity" to address the specific situation there because the issue presented "policy concerns ... for the legislature." Bellefontaine, 476 S.W.3d at 923.

The legislature—not the judiciary— must waive sovereign immunity. Id. at 921 ("This Court cannot read into the statute an exception to sovereign immunity or imply waivers not explicitly created in the statute."). See also Winston v. Reorganized Sch. Dist. R-2, Lawrence Cnty., 636 S.W.2d 324, 328 (Mo. banc 1982) ("[W]e are mindful of the oft repeated principle that, within constitutional limits, a sovereign may prescribe the terms and conditions under which it may be sued, and the decision to waive immunity, and to what extent it is waived, lies within the legislature's purview."). The parties have not cited a Missouri statute that waives sovereign immunity for prospective equitable relief. The five cases they cite, Wyman/NAACP, or other states' decisions cannot serve as a substitute.
True, Bellefontaine does not address the precise issue here. But it says that sovereign immunity "is the rule—not the exception—even in the absence of prior cases specifically addressing this issue." Bellefontaine, 476 S.W.3d at 922. "When there is no state supreme court case directly on point, our role is to predict how the state supreme court would rule if faced with the [same issue] before us." Blankenship v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010) (alteration in original) (citation omitted). See also Craven v. University of Colo. Hosp. Auth., 260 F.3d 1218, 1231 (10th Cir. 2001) (applying the same rule to a sovereign immunity issue). This court predicts that the Missouri Supreme Court would apply Bellefontaine's long-established principles to cases involving prospective equitable relief. Missouri does not have a waiver of sovereign immunity for prospective equitable relief "stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." Feeney, 495 U.S. at 305, 110 S.Ct. 1868.
B.
Plaintiffs also assert a recognized common law exception to sovereign immunity. See Bellefontaine, 476 S.W.3d at 921-22 (stating sovereign immunity applies to all suits, in the absence of a recognized common law exception). The Bellefontaine case notes two such exceptions, consent and "proprietary function" (of municipalities). Id. Neither of these apply here.
746*746 Citing Blackstone, law review articles, a common-law case, and other state courts, the plaintiffs argue that "even at common law, courts of equity enforced the Crown's obligations." See generally Armstrong v. Exceptional Child Ctr., Inc., ___ U.S. ___, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015) ("It is true enough that we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law.... The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.") (emphasis added), citing Ex Parte Young, 209 U.S. 123, 150-51, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (other citations omitted).
The State counters, with arguments based on the "law or equity" phrase in the Eleventh Amendment and the Supreme Court's words in an Eleventh Amendment case that

sovereign immunity applies regardless of whether a private plaintiff's suit is for monetary damages or some other type of relief. See [Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)] ("[W]e have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment").
Fed. Mar. Comm'n, 535 U.S. at 765-66, 122 S.Ct. 1864 (emphasis added).
These expertly briefed arguments are beside the point. The Missouri Supreme Court is the "custodian" of the common law in Missouri. Townsend v. Townsend, 708 S.W.2d 646, 64950 (Mo. banc 1986). That Court has rejected that "the state itself can be enjoined." Carson, 223 S.W. at 571, following Merchants' Exchange, 111 S.W. at 574. A recognized common law exception to Missouri's sovereign immunity does not apply here.
III.
The plaintiffs argue that even if sovereign immunity bars prospective injunctive relief, the State "can be sued directly for equitable relief for failing to comply with a federal constitutional obligation, here, the Sixth Amendment." They stress First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), and Reich v. Collins, 513 U.S. 106, 115 S.Ct. 547, 130 L.Ed.2d 454 (1994).
In First English, the Supreme Court stated it "has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution." First English, 482 U.S. at 316, 107 S.Ct. 2378. It footnoted:
The Solicitor General urges that the prohibitory nature of the Fifth Amendment, combined with principles of sovereign immunity, establishes that the Amendment itself is only a limitation on the power of the Government to act, not a remedial provision. The cases cited in the text, we think, refute the argument of the United States that "the Constitution does not, of its own force, furnish a basis for a court to award money damages against the government."
Id. at 316 n.9, 107 S.Ct. 2378 (citations omitted). In Reich, the Court explained that "a long line of cases" establishes that "due process requires a `clear and certain' remedy for taxes collected in violation of federal law," and that "a denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of the United States by compulsion is itself in contravention of the Fourteenth Amendment, the sovereign immunity States traditionally 747*747 enjoy in their own courts notwithstanding." Reich, 513 U.S. at 108, 109110, 115 S.Ct. 547 (citations and internal quotation marks omitted).
According to the plaintiffs, these cases (particularly the footnote in First English) mean that "where the Constitution places an affirmative obligation on the State itself, the State cannot rely on state sovereign immunity to defeat a suit that aims to force it to comply with that obligation." But that is too broad a reading. Instead, the cases mean that "where the Constitution requires a particular remedy, such as through the Due Process Clause for the

tax monies at issue in Reich, or through the Takings Clause as indicated in First English, the state is required to provide that remedy in its own courts, notwithstanding sovereign immunity." DLX, Inc. v. Kentucky, 381 F.3d 511, 528 (6th Cir. 2004) (emphasis added). For the situation at issue here, the Constitution does not require a "particular" or "clear and certain" remedy.
Congress may also abrogate state sovereign immunity by providing an enforcement mechanism for constitutional violations:
We have held also that in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its § 5 enforcement power. By imposing explicit limits on the powers of the States and granting Congress the power to enforce them, the Amendment fundamentally altered the balance of state and federal power struck by the Constitution. When Congress enacts appropriate legislation to enforce this Amendment, federal interests are paramount, and Congress may assert an authority over the States which would be otherwise unauthorized by the Constitution.
Alden, 527 U.S. at 756, 119 S.Ct. 2240 (internal citations and quotation marks omitted). See also United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) ("insofar as Title II [of the ADA] creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity."). No statutory enforcement mechanism exists here.
IV.
The governor asserts sovereign immunity. The plaintiffs argue that sovereign immunity does not shield the governor because he is an Ex parte Young defendant. "Under the Ex Parte Young doctrine, a private party can sue a state officer in his official capacity to enjoin a prospective action that would violate federal law." 281 Care Committee v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011). The doctrine "rests on the premise—less delicately called a `fiction'—that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes." Stewart, 563 U.S. at 255, 131 S.Ct. 1632 (internal citation omitted). See also Hutchinson, 803 F.3d at 957 ("Enforcement of unconstitutional legislation `is simply an illegal act upon the part of [the] state official,' and the State may not immunize officials from suit for such violations of the Constitution."), quoting Young, 209 U.S. at 159, 28 S.Ct. 441.
"In determining whether this exception applies, a court conducts `a straightforward inquiry into whether [the] complaint alleges [1] an ongoing violation of federal law and [2] seeks relief properly 748*748 characterized as prospective.'" 281 Care, 638 F.3d at 632, quoting Verizon Maryland, Inc. v. Public Serv. Comm'n of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (alterations added). On the first inquiry, the official must have "some connection to the enforcement of the challenged laws." Calzone v.

Hawley, 866 F.3d 866, 869 (8th Cir. 2017), citing Young, 209 U.S. at 157, 28 S.Ct. 441. See also 281 Care, 638 F.3d at 632. "Without that connection, the officer would be sued merely `as a representative of the state' in an impermissible attempt to `make the state a party.'" Hutchinson, 803 F.3d at 960, quoting Young, 209 U.S. at 157, 28 S.Ct. 441. "[T]hat connection does not need to be primary authority to enforce the challenged law." 281 Care, 638 F.3d at 632. "Nor does the [state officer] need to have the full power to redress a plaintiff's injury in order to have `some connection' with the challenged law." Id. at 633.
Ruling that the governor is an Ex parte Young defendant, the district court identified three connections to the enforcement of the State's Sixth Amendment obligation to provide indigent defendants with adequate counsel.
A.
The district court noted the governor's general-enforcement authority. The Missouri Constitution says, "The supreme executive power shall be vested in a governor," and "The governor shall take care that the laws are distributed and faithfully executed, and shall be a conservator of the peace throughout the state." Mo. Const. art. IV, §§ 1-2. The district court also cited a Missouri statute: "When directed by the governor, the attorney general, or one of his assistants, shall aid any prosecuting or circuit attorney in the discharge of their respective duties in the trial courts and in examinations before grand juries...." § 27.030, RSMo.
The district court concluded that these provisions make the Missouri governor like the Georgia governor in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988). There, indigent defendants sought injunctive relief against a governor to remedy Sixth Amendment violations. Luckey, 860 F.2d at 1013. The Eleventh Circuit held that Georgia's governor had "some connection" and was an "appropriate part[y] against whom prospective relief could be ordered" because:
According to the Georgia constitution, the governor is responsible for law enforcement in that state and is charged with executing the laws faithfully. The governor further has the residual power to commence criminal prosecutions, and has the final authority to direct the Attorney General to "institute and prosecute" on behalf of the state.
Id. at 1016 (internal citations omitted).
The governor here argues that this court's Calzone decision trumps Luckey. The Calzone plaintiff sought an injunction against the Missouri governor in a challenge to the constitutionality of a state statute. Calzone, 866 F.3d at 869. This court held that neither the statute nor the Missouri Constitution's general-enforcement provision make the governor an Ex parte Young defendant:
No provision in Chapter 304 or the statutes defining his executive authority specifically authorizes the governor to enforce the vehicle inspection statutes. See Mo. Rev. Stat. § 26.010-.225. The Missouri Constitution confers upon the governor the duty to "take care

that the laws are distributed and faithfully executed," Mo. Const. art. IV, § 2, but such a general executive responsibility is an insufficient connection to the enforcement of a statute to avoid the Eleventh 749*749 Amendment. See Fitts v. McGhee, 172 U.S. 516, 530, 19 S.Ct. 269, 43 L.Ed. 535 (1899).
Id. at 870.
The plaintiffs try to distinguish Calzone because the statute there "delegated enforcement exclusively to the superintendent of the highway patrol," meaning "[t]he Governor was not a proper defendant because he has no connection to the statute.... Unlike the statute in Calzone, the State's constitutional obligation to provide adequate counsel—and the Governor's role in its failure to do so—cannot be delegated exclusively to the MSPD."
Although Calzone is factually distinguishable, its guidance on the Missouri governor's general-enforcement authority is consistent with this court's precedent. See Hutchinson, 803 F.3d at 961; Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), abrogated on other grounds by Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015).
In Bruning, the Nebraska governor and attorney general were Ex parte Young defendants in a suit to enjoin enforcement of a state constitutional amendment. Bruning, 455 F.3d at 864. This court found a sufficient connection to the enforcement of the amendment because "the Governor and the Attorney General have broad powers to enforce the State's Constitution and statutes." Id. The Hutchinson decision clarifies that statement from Bruning:
[T]he court's statement [in Bruning] must be read in context. In Bruning, the "broad powers" of the officials included authority to enforce the constitutional amendment at issue. The Nebraska attorney general has power to enforce the Nebraska Constitution by bringing suit for a declaratory judgment that a state statute is unconstitutional, or for an injunction prohibiting the enforcement of a state statute on the grounds that it is unconstitutional. The Nebraska governor has some connection to the enforcement of the Nebraska Constitution because he may direct the attorney general to file suit to enjoin application of an unconstitutional state statute. That sort of enforcement authority is lacking with respect to [the] statute [at issue in Hutchinson] that provides only for private civil enforcement.
Hutchinson, 803 F.3d at 961 (internal citations omitted).
The Bruning and Hutchinson decisions mean that a governor's general-enforcement authority is "some connection" if that authority gives the governor methods of enforcement. The governor in Bruning had a method of enforcement because he could direct the attorney general to seek equitable relief. But the governors in Calzone and Hutchinson did not have a comparable enforcement mechanism.
Nor does the governor here. The district court's reliance on section 27.030 is insufficient because that provision covers aiding prosecution, not defense. The governor's generalenforcement authority is not "some connection" to enforcement of the State's Sixth Amendment obligation. See Calzone, 866 F.3d at 870. See also Air Evac EMS, Inc. v.

Texas, Dep't of Ins., Div. of Workers' Comp., 851 F.3d 507, 517 (5th Cir. 2017) ("[A] state governor with a broad duty to uphold state law is not a proper defendant."); Los Angeles Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) ("[A] generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit."); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) ("The mere fact that a governor is under a general 750*750 duty to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute.").
B.
The district court ruled the governor had "some connection" because he "appoints all seven members of the MSPD Commission." Church, 268 F.Supp.3d at 1013, citing § 600.015.1, RSMo ("The commission shall be composed of seven members... appointed by the governor with the advice and consent of the senate."). The district court cited the Ninth Circuit's decision in Eu, where a bar association sued a governor to challenge a state statute that limited the number of judges in a county. Eu, 979 F.2d at 699. The governor had "a duty to appoint judges to any newly-created judicial positions," which the Ninth Circuit considered to be "a specific connection to the challenged statute," placing the governor within Ex parte Young's scope. Id. at 704.
Invoking Eu, the plaintiffs argue: "although the Governor alone cannot solve the indigent defense crisis in this state, his role in the ongoing violation of those Sixth Amendment rights through his appointment of MSPD Commissioners, in addition to his ability to profoundly affect MSPD caseload, is sufficient for Ex parte Young purposes." The governor counters with this court's decision in Balogh v. Lombardi, 816 F.3d 536 (8th Cir. 2016).
In Balogh, a Missouri statute gave a private right of action against anyone who, without the approval of the Director of Corrections, knowingly discloses the identity of an executionteam member. Balogh, 816 F.3d at 539. The statute also gave the director authority to select those members. Id. This court ruled that the director's selection authority is only "administrative or ministerial," and not "some connection" to the statute's enforcement:
Although the director's authority to delineate the members of the execution team does affect who might have a private right of action against [someone disclosing the identity of execution team members], it has nothing to do with an execution team member's potential prosecution of such an action. Selection of the execution team constitutes implementation of the statute in an administrative or ministerial sense and is not analogous to enforcing the statute's non-disclosure provision through a civil or criminal prosecution. The director's authority to define the members of the execution team is not an enforcement action within the meaning of Ex Parte Young and its progeny.
Id. at 546.
Like in Balogh, appointing members of the MSPD Commission is an administrative act. See State ex rel. Sikes v. Williams, 222 Mo. 268, 121 S.W. 64, 65 (Mo. banc 1909)

("The confirmations by the Senate of appointments made by the Governor are not legislative acts.... Such acts by the Governor concerning appointments are merely administrative...."). It does not give the governor some connection to the State's Sixth Amendment obligation. The Balogh decision, not Eu, binds this court.
C.
The district court concluded the governor met the "some connection" requirement because of his appropriation-reduction authority:
Governor Greitens's predecessor, Governor Nixon, affirmatively used his executive authority to withhold roughly $7 million in funding allocated by the Missouri Legislature to the MSPD, thereby demonstrating an even more direct 751*751 "connection" to the challenged conduct. Governor Greitens has since upheld Governor Nixon's withholding of funds allocated to the MSPD.
Church, 268 F.Supp.3d at 1012-13 (internal citation omitted). In addition to arguing that his appropriation-reduction authority is not "some connection", the governor asserts legislative immunity.
"[S]tate legislators enjoy common-law immunity from liability for their legislative acts." Supreme Court of Va. v. Consumers Union of U. S., Inc., 446 U.S. 719, 732, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). "[O]fficials outside the legislative branch are entitled to legislative immunity when they perform legislative functions." Bogan v. Scott-Harris, 523 U.S. 44, 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Id. at 54, 118 S.Ct. 966. The act must be legislative "in substance," bearing "all the hallmarks of traditional legislation," and "in form," involving "integral steps in the legislative process." Id. at 55, 118 S.Ct. 966.
The district court suggested that the governor's "withholding of funds is a legislative function entitled to legislative immunity." Church, 268 F.Supp.3d at 1020. It emphasized Abbey v. Rowland, 359 F.Supp.2d 94, 100 (D. Conn. 2005):
Nothing could be more integral to the legislative process than [proposing a budget]. The Governor's choices of exactly how to cut the budget may have been discretionary, but they were policy choices of broad import. The fact that any budget reduction would necessarily have an adverse impact on some employment does not change the budgetary decision from a legislative to an administrative function.
Indeed, the Supreme Court has said that a "discretionary, policymaking decision implicating the budgetary priorities of the [government] and the services the [government] provides to its constituents" is a "hallmark[] of traditional legislation." Bogan, 523 U.S. at 55-56, 118 S.Ct. 966. And in Missouri, "the budget process ... begins and ends with the Governor," making the governor's appropriation reduction legislative in form. See Missouri Health Care Ass'n v. Holden, 89 S.W.3d 504, 508 (Mo. banc 2002). The Missouri Constitution "does not

permit the state to spend money it does not have" and "broadly authorizes the Governor to balance the state's budget in the event that state revenues fall below the revenue expectations." Id. at 506-07, citing Mo. Const. art. IV, § 27. A Missouri governor's appropriation reduction is a legislative act.
The district court, however, ruled that it was premature to apply legislative immunity "because it is unclear what the terms of any injunction entered would include.... That finding is subject to change should the Plaintiffs request any remedies that would violate Gov. Greitens' immunity from acts `integral' to the legislative process." Church, 268 F.Supp.3d at 1020. By that rationale, the remedy—not the challenged act—guides whether legislative immunity applies.
The governor counters: "legislative immunity is an immunity from suit, not merely an immunity from the award of certain types of relief. The district court's rationale would enable any plaintiff to defeat legislative immunity merely by making a vague and indefinite request for `injunctive and declaratory relief.'"
The Supreme Court's decision in Consumers Union addresses this issue. There, the Supreme Court of Virginia, in addition to its inherent authority, used its statutory 752*752 authority to promulgate a professional ethics code. Consumers Union, 446 U.S. at 721, 100 S.Ct. 1967. The Virginia legislature "vested in the court virtually its entire legislative or regulatory power over the legal profession." Id. at 722, 100 S.Ct. 1967. The court also had the power to enforce its professional ethics code. Id. at 722-24, 100 S.Ct. 1967.
The plaintiffs believed that the code's provision on attorney advertisement violated the First Amendment. Id. at 726, 100 S.Ct. 1967. They sued the Virginia Court and its chief justice in his personal and official capacity under 42 U.S.C. § 1983, seeking a declaration that the provision was unconstitutional and an injunction against its enforcement. Id. at 725-26, 100 S.Ct. 1967. The chief justice and the court asserted legislative immunity. Id. at 730, 100 S.Ct. 1967. The Supreme Court concluded (1) the Virginia court's promulgation of the professional ethics code was a legislative act, (2) "the Virginia Court and its members are immune from suit when acting in their legislative capacity," and (3) legislative immunity applies to suits for equitable relief. Id. at 731-32, 734, 100 S.Ct. 1967.
The Supreme Court, however, did not apply legislative immunity: "If the sole basis for appellees' § 1983 action against the Virginia Court and its chief justice were the issuance of, or failure to amend, the challenged rules, legislative immunity would foreclose suit against appellants." Id. at 734, 100 S.Ct. 1967 (emphasis added). But the Court concluded that the Virginia court's enforcement authority was a non-legislative act: "the Virginia Court performs more than a legislative role with respect to the State Bar Code. It also hears appeals from lower court decisions in disciplinary cases, a traditional adjudicative task; and in addition, it has independent enforcement authority of its own." Id. "For this reason the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief." Id. at 736, 100 S.Ct. 1967.

Under Consumers Union, the "basis" for suit governs whether legislative immunity "foreclose[s] suit." The Second Circuit, however, has a different interpretation of Consumers Union: legislators "must still show, before they are afforded the protections of legislative immunity as to claims for injunctive relief, that the requested relief would enjoin them in their legislative capacities." State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 93 (2d Cir. 2007). According to the Second Circuit, the Consumers Union decision
applied legislative immunity to bar plaintiff's claims for injunctive relief insofar as the relief sought would compel the defendants to perform a legislative act—the repeal or amendment of the state's bar code to conform with constitutional requirements. The Court concluded, however, that legislative immunity did not bar claims for injunctive relief that would enjoin the defendant justices from committing a distinctly non-legislative act—independent enforcement of the unconstitutional provisions of the bar code against particular individuals.
Id. at 88, citing Consumers Union, 446 U.S. at 733-36, 100 S.Ct. 1967. The Second Circuit assumed that the Consumers Union plaintiffs sought "declaratory and injunctive relief that would have forced the Supreme Court [of Virginia] to amend or repeal the code." Id. at 8384. Through that assumption, the Second Circuit appears to interpret Consumers Union's enforcement discussion to mean that if the suit sought only amendment or repeal, then that suit would have been barred by legislative immunity. Id. By the Second Circuit's reading of the case, the suit also 753*753 sought an injunction against enforcement, meaning legislative immunity was not a bar in Consumers Union.
But Consumers Union does not say that the plaintiffs there sought to amend or repeal the code. The Court's only reference to amendment or repeal was as a "basis" for suit—the Virginia court's "issuance of, or failure to amend, the challenged rules." Consumers Union, 446 U.S. at 734, 100 S.Ct. 1967. True, the Consumers Union plaintiffs did seek an injunction against enforcement. But the Virginia's court's enforcement of the professional ethics code also was a basis for suit: "[M]ere enforcement authority does not create a case or controversy with the enforcement official; but in the circumstances of this case, a sufficiently concrete dispute is as well made out against the Virginia Court as an enforcer...." Id. at 736, 100 S.Ct. 1967 n.15. In other words, the Virginia court's enforcement—in addition to its promulgation—of the professional ethics code was a nonlegislative act that violated the First Amendment, providing a separate basis for suit not barred by legislative immunity. See Alia v. Michigan Supreme Court, 906 F.2d 1100, 1107 (6th Cir. 1990) (Wellford, J., dissenting) (analyzing Consumers Union and concluding "to the extent the individual justices acted in a rulemaking capacity, they are entitled to legislative immunity, but to the extent they acted in an enforcement capacity, they are not entitled to claim legislative immunity") (underlines added).
In the end, these ambiguities do not impact the result here. In Consumers Union, the Supreme Court states: "If the sole basis for appellees' § 1983 action against the Virginia Court and its chief justice were the issuance of, or failure to amend, the challenged rules, legislative immunity would foreclose suit against appellants." Consumers Union, 446 U.S. at 734, 100 S.Ct. 1967 (emphasis added). In the complaint here, the plaintiffs allege:

As chief executive of the State, Governor Greitens bears ultimate responsibility for the provision of constitutionally mandated services, including indigent defense, to the people of Missouri. The Governor of Missouri appoints the members of the Missouri State Public Defender Commission, with the advice and consent of the Senate. The Governor has claimed the authority to withhold money budgeted to the Missouri State Public Defender's Office and has exercised that claimed authority in recent years, including fiscal year 2017.
As discussed above, to the extent the plaintiffs claim that the governor's generalenforcement authority and appointment authority are non-legislative acts that lead to a constitutional violation, the governor is subject to sovereign immunity for those acts because they do not satisfy Ex parte Young.
That leaves as "the sole basis" for the plaintiffs' action against the governor his appropriation reduction—a legislative act—meaning legislative immunity "foreclose[s] suit" against him. See id. at 734, 100 S.Ct. 1967. The Supreme Court used the word "suit," not "remedy." This approach is consistent with how the Supreme Court treats sovereign immunity: "Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit." Fed. Mar. Comm'n, 535 U.S. at 766, 122 S.Ct. 1864 (emphasis added).
Even if the governor's appropriation-reduction authority is not shielded by sovereign immunity through Ex parte Young, legislative immunity, a separate defense, forecloses suit against the governor. See Consumers Union, 446 U.S. at 734, 100 S.Ct. 1967. See also Tolman v. Finneran, 171 F.Supp.2d 31, 37-38 (D. Mass. 2001) ("Short of the exceptional 754*754 case, it is unlikely that Ex Parte Young is broad enough to abrogate legislative immunity and authorize suit against a legislator acting in a purely legislative capacity.").[3]
* * * * * * *
The judgment is reversed, and the case remanded for proceedings consistent with this opinion.[4]
[1] While this appeal was pending, Eric R. Greitens resigned as governor of Missouri. His successor, Michael L. Parson, is automatically substituted under Federal Rule of Appellate Procedure 43(c)(2). See Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 952 n.1 (8th Cir. 2015).
[2] See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Fryberger v. University of Ark., 889 F.3d 471, 473 (8th Cir. 2018); McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1048 (7th Cir. 2013); Scott v. Taylor, 405 F.3d 1251, 1253 (11th Cir. 2005).
[3] The plaintiffs argue that legislative immunity is a personal defense that does not apply to official-capacity suits, like the one here. They cite Roach v. Stouffer, 560 F.3d 860 (8th Cir. 2009), quoting a Second Circuit decision: "immunity, either absolute or qualified, is a personal defense that is available only when officials are sued in their individual capacities; the immunities officials enjoy when sued personally do not extend to instances where they are sued in their official capacities." Roach, 560 F.3d at 870, quoting Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007). But under Consumers Union, legislative immunity applies to official-capacity suits. Consumers Union, 446 U.S. at 725-26, 734, 100 S.Ct. 1967. See also Scott v. Taylor, 405 F.3d 1251, 1254 n.4, 1255 (11th Cir. 2005) (analyzing Consumers Union and Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and "hold[ing] that the legislator defendants in the instant official capacity suit for prospective relief are entitled

to absolute immunity."). The Second Circuit-recognizing the tension between Almonte and Consumers Unionlimited Almonte to "claims against local-level officials, rather than state officials." Rowland, 494 F.3d at 86, 88 ("claims for injunctive relief against defendant state officials, sued in their official capacities, may be barred by the doctrine of legislative immunity"). To the extent Roach conflicts with Consumers Union, this court is bound by Consumers Union.
[4] This court grants the plaintiffs' motion for leave to file a sur-reply. In reaching this decision, this court considered the sur-reply attached to the motion.