## IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT JOAN BRAY, et al. , Appellants ,

v. MISSOURI DEPARTMENT OF CORRECTIONS , Respondent . ) ) ) ) ) ) ) ) WD 78807
F ILED : July 26, 2016

Appeal from the Circuit Court of Cole County The Honorable Patricia S. Joyce , Judge Before Division Four: Alok Ahuja, P.J., Mark D. Pfeiffer, C. J.

and J . Dale Youngs, Sp.J. Four Missouri taxpayers filed suit in the Circuit Court of Cole County, alleging that the State’s lethal

- injection protocol for executing inmates violates federal and state law. The c ircuit

c ourt dismissed the T axpayers’ claims, finding that the y lacked standing, that the Missou ri Supreme Court had exclusive jurisdiction over the case, and that the T axpayers ’ petition failed to state a claim upon which relief could be granted

. The T axpayers appeal. We affirm.
Fact ual Background Joan Bray, Jeanette Oxford, Elston McCowan, and M ary Ann McGivern ( the

“ Taxpayers ”) filed a Verified Petition for Declaratory Judgment and Injunctive Relief , as well as a Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction , in the Circuit Court of Cole County on Ju l y 9, 2015. In their petition, the Taxpayers alleged that the Department of Corrections’ current lethal

- injection execution protocol violate s both Missouri2

and federal laws and regulations because of the Department’s p urchase and use of p entobarb ital prepared by a compounding pharmacy

. T he Taxpayers alleged that the use of compounded pentobarbital in executions violate s state and federal law s concerning the compounding of FDA

approved drug s; the purchase, distribution, transfer, and administration of controlled substances; the dispensing of drugs without a valid prescription; and the licensing of compounding pharmacies. The Taxpayers sought a declaratory judgment and injunctive relief prohibitin g the Department from continuing to use its current leth al

- injection protocol

. The Department was preparing to execute convicted murderer David Zink when the Taxpayers’ petition was filed

. The Missouri Supreme Court issued a Warrant of Execution setting Zink’s execution date as July 14, 2015 , and he was ultima tely executed on that date

. While Zink’s execution was pending, the c ircuit c ourt sustained the State’s motion to dismiss on July 13, 2015. The circuit court’s dismiss al relied on three independent grounds. First, the court found that the Taxpayers lacked standing to sue

. Second, the court held that it lacked jurisdiction, because the Missouri Supreme Court ha s exclusive jurisdiction over cases involv ing the death penalty

. Third, the court held that the petition failed to state a claim for relief , because the federal and state laws and regulations cited by the Taxpayers d o not apply to the Department’s performance of court

- ordered executions. This appeal follows. Analysis The circuit court relied on three independent grounds to dismiss the Taxpaye rs’ petition.
T o justify reversal , the Taxpayers must demonstrate that each of the reasons for dismissal cited by the circuit court was erroneous; if we uphold any one of the grounds on which the circuit court relied, we must affirm. Knight v. Con

- Agra F oods, Inc. , 476 S.W.3d 355, 358

- 59 (Mo.3

App. W.D. 2015) (quoting City of Peculiar v. Hunt Martin Materials, LLC , 274 S.W.3d 5 88, 590

- 91 (Mo. App. W.D. 2009)). We conclude that the Taxpayers have failed to show that the circuit court’s third basis for dismissal (that their petition failed to state a claim on which relief could be granted) was erroneous. Accordingly, we affirm the judgment without addressing the other two grounds cited by the circuit court. The circuit court’s judgment provided a detail ed explanation for its conclusion that the petition failed to state a legally viable claim . The court first addressed the Taxpayers’ federal

law claims. It explained:

The intention of Congress to regulate executions would be an exercise of control over an area traditionally left to the States and would alter the usual balance between the States and the Federal Government. In such a case the intention of Congress to exercise control over the area traditionally left to the States must be unmistakably clea r or it is presumed not to exist.

. . .

. . . . . . . The plain statement rule controls in the area of legal executions of criminals, because that area has traditionally been left to the States by Congress, and there is no plain statement in the [fed eral Controlled Substances Act (“CSA”)] or the [Food, Drug and Cosmetic Act (“FDCA”)] that those Acts are meant to regulate executions by lethal injection. The lack of a plain statement by Congress that it intended the FDCA and CSA to be enforced in the c ontext of executions for state criminal convictions, an area traditionally left to the States by Congress, establishes that Missouri does not violate the FDCA or CSA by conducting lawful executions.
(Citations omitted.) The circuit court also concluded th at, even without reference to the “plain statement” rule, neither the FDCA nor the CSA applied to lawful executions. The court cited Gonzales v. Oregon , 546 U.S. 243 (2006), which refused to apply the Controlled Substances Act to physician

- assisted suicid e authorized by state law. T he circuit court read Gonzales as holding4

that the CSA ’s “main objectives” were to “combat[ ] drug abuse, and control[ ] the legitimate and illegitimate traffic in controlled substances .” The circuit court concluded that the CSA ’s purposes are not implicated by the use of pharmaceutical products in court

- ordered executions. The circuit court then cited Heckler v. Chaney , 470 U.S. 821 (1985), to support its conclusion that “[a] lawful execution simply does not fall within the subject matter controlled by the FDCA.” The circuit court applied similar reasoning with respect to the Taxpayers’ state

- law claims. It noted that § 546.720, RSMo authorizes the Department of Corrections to carry out the death penalty by lethal injection. In light of § 546.720, the circuit court concluded that making executions subject to state laws concerning controlled substances and prescription drugs would lead to “an absurd result.” According to the circuit court, the Taxpayers “read regulations tha t have nothing to do with executions out of context in an attempt to block executions that are legal under the applicable statute. . . . Reading the provisions harmoniously there is no violation of Missouri law.” Taxpayers challenge the circuit court’s conclusion that the petition failed to state a claim in their first and fourth Points Relied On. In their first Point, Taxpayers argue that the circuit court “was required to accept as true the fact that [the Depart ment] w[as] using a compounded

co p y of pentobarbital because it was pleaded in the Verified Petition.” In their fourth Point, they argue that the circuit court erred in finding that they failed to state a claim without conducting an evidentiary hearing, b ecause the trial court’s ruling made “a factual finding” “that [the Department] did not violate the law,” “contrary to well

- established law requiring that well

pleaded facts be taken as true for purposes of a motion to dismiss.”5

The Taxpayers ’ arguments mi ss the mark. Taxpayers are correct that, in deciding whether the petition stated a claim, the circuit court was required to accept all well

- pleaded facts in the petition as true, and to give those factual allegations “their broadest intendment.” See , e.g . , Peters v. Wady Indus., Inc. , No. SC94442, 2016 WL 3180586, at *3 (Mo. banc June 7, 2016); Bromwell v. Nixon , 361 S.W.3d 393, 398 (Mo. banc 2012). We see nothing in the circuit court’s
decision , however, which is inconsistent with the factual allegation s in Taxpayers’ petition

. Although it may not say so expressly, the circuit court’s judgment can be read as assum ing that Taxpayers’ factual c laims are true: that the Department is, in fact, using an unlicensed compounding pharmacy to provide the Department with pentobarbital ( an FDA

- approved drug which is otherwise commercially available ) for use in executions . The circuit court’ s judgment does not dispute Taxpayers’ factual claim s ; instead, it holds that the Taxpayers’ factual

conten tions are legally irrelevant, because neither the federal nor the state laws on which the Taxpayers rely are applicable to the Department’s performance of lawful executions. While the circuit court

– quite properly

– tested the Taxpayers’ factual allegati ons against the governing legal standards, the court did not dispute th os e factual allegations, or make its own factual findings contrary to the facts alleged in the petition

. In their argument under Points I and IV, Taxpayers make repeated reference to th e allegations in the petition that the Department’s actions violate various federal or state laws or regulations. For example, Taxpayers make the following argument under their fourth Point:

The Verified Petition contained express allegations that [the D epartment] w[as] unambiguously violating both state and federal law in at least five independent capacities, any one of which is sufficient to grant the relief sought in this lawsuit. It is literally impossible to treat the facts and allegations alleged a s true and to find, as the Circuit Court erroneously did, that “[t]here is no violation of Missouri law in carrying out executions.” For instance, if this Court were to treat as true the allegations in the Verified Petition that [the Department] ha [s] man ufactured, purchased, and used compounded copies of pentobarbital in blatant6

violation of the state and federal laws cited

– allegations [the Taxpayers] are absolutely prepared to establish as this case proceeds at the trial level

– it is not possible for this Court to also conclude that [the Department] did not violate the law. (Record citations omitted.) Taxpayers ’ argument ignores the principle that, “although we treat all of the factual allegations in a petition as true, and liberally grant to plaintiffs all reasonable inferences therefrom, ‘[c]onclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted.’” Hope Acad. Corp. v. Mo. State Bd. of Educ. , 462 S.W.3d 870, 874 (Mo. App. W.D. 2015) (quoting Hendricks v. Curators of Univ. of Mo. , 308 S.W.3d 740, 747 (Mo. App. W.D. 2010) ). The circuit court was not required to accept as true the Taxpayers’ legal conte ntion that the Department’s actions violated federal or state law, and it did not act improperly by reaching a contrary conclusion. Taxpayers have also failed to su bstantiate their claim that the circuit court was required to conduct an evidentiary hearing before holding that the petition failed to state a claim. Indeed, it is generally inappropriate for the circuit court to consider facts or evidence outside the pleadings in ruling on a motion to dismiss for failure to state a claim. See , e.g. , Hedrick v . Jay Wolfe Imports I, LLC , 404 S.W.3d 454, 457 (Mo. App. W.D. 2013) (quoting Phelps v. City of Kansas City , 371 S.W.3d 909, 912 (Mo. App. W.D. 2012)). We see no indication in the judgment that the circuit court considered facts beyond those alleged in th e petition, or that it made findings of fact contrary to the petition’s factual allegations. Moreover, the Taxpayers have failed to identify any additional facts or evidence which they would have present ed at an evidentiary hearing, to counter the circuit court’s legal conclusion that Missouri executions was not subject to the federal and state law s on which the Taxpayers rely. State ex rel. Petti v. Goodwin

- Raftery , 190 S.W.3d 501, 506 (Mo. App. E.D. 2006) (affirming dismissal despite appellants’ claim that7

circuit court should have first conducted an evidentiary hearing, where the information in the petition was adequate to determine that appellants’ claims lacked legal merit). Because the Taxpayers have failed to show that the circuit court erroneously concluded that their petition failed to state a claim, we affirm the circuit court’s dismissal of the petition. We express no opinion concerning the circuit court ’s legal conclusion that the Department ’s performance of executions is exempt from the requirements of the Food, Drug and Cosmetic Act, the Controlled Substances Act, and the other state and federal laws and regulations cited by the Taxpayers . We decline to address the merits issues for a simple reason: the Taxpayers do not challenge th e circuit court’s legal conclusion s on appeal. In finding that the Taxpayers’ petition failed to state a claim, the circuit court’s judgment prominent ly reli ed o n the “pla in statement” rule, Gonzales v. Oregon , 546 U.S. 243 (2006), Heckler v. Chaney , 470 U.S. 821 (1985), and § 546.720, RSMo . T he Taxpayers’ briefing , however, does not discuss the “plain statement
rule ,” or cite the cases or statute on which the circuit cour t’s legal conclusions are based

. Instead, Taxpayers’ briefing in Points I and IV is limited to the procedural arguments we have
discus sed above. We will not address the merits of the circuit court’s ruling, when the Taxpayers have not challenged the subs tantive basis for the circuit court’s decision

. KCAF Investors, L.L.C. v. Kansas City Downtown Streetcar Transp. Dev. Dist. , 414 S.W.3d 470, 479 (Mo. App. W.D. 2013) (refusing to address “arguments Appellants have not made”). 1

1 In their opening Brief, the Taxpayers argued that “[e]ntirely missing from the Circuit Court’s order dismissing this case . . . is a single statute, case, or regulation permitting [the Department] to violate the state and federal laws they are violating if they are doing so in the context of carrying out an otherwis e lawful execution.” Taxpayers’ Reply Brief repeats this claim: “The reality is that the Order dismissing this case contains absolutely no legal authority for the theory that none of the laws alleged in the Verified Petition somehow do not apply [ sic ] in the context of executions.” As our discussion in the text should make clear, Taxpayers’ characterizations of the circuit court’s judgment are simply untrue

– the circuit court cited both caselaw and statutory authority to support its decision. Taxpa yers’ mischaracterizations are emblematic of their failure to even acknowledge, much less address, the substantive basis of the circuit court’s decision.8 Conclusion We affirm the judgment of the circuit court dismiss ing the Taxpayers’ petition.

__________________________________ Alok Ahuja, Judge All c oncur.