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IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT
NO. 14-1388
DAVID ZINK, et al., ))
MICHAEL ANTHONY TAYLOR, ))
Plaintiffs/Appellants, ) D.C. No. 12-4209-BP)
v. ) THIS IS A CAPITAL CASE)
GEORGE LOMBARDI, et al., )) Execution scheduled for
Defendants/Appellees ) 12:01 a.m., February 26, 2014
APPELLANT MICHAEL TAYLORS MOTION FOR STAY OFEXECUTION BASED ON STATES VIOLATIONS OF
EQUAL PROTECTION AND DUE PROCESS
This motion concerns only the district courts denial of Mr. Taylors motion
appearing at Docket Entry 363. Mr. Taylor has also appealed the district courts
denial of two other motions, appearing at Docket Entries 343 and 353. His appeal as
to those motions will follow later today.
The Missouri Department of Corrections has executed three prisoners in three
months despite stay proceedings at all three levels of the federal judiciary. Aside from
undermining the rule of law, the defendants conduct violates their own written
procedures. Those procedures prohibit defendants from even removing the prisoner
from his holding cell when legal activity is in process to prevent the execution. See
Exhibit A (procedure at 11:15 p.m.). Defendants have serially violated a core aspect
of their written protocol, leaving no assurance that the various plaintiffs in this case
will be executed in a consistent and established manner, or that defendants consider
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themselves bound by their own procedures at all. See Cooey v. Kasich, 801 F. Supp. 2d
623, 652-59 (S.D. Ohio 2011) (deviation from core aspects of written protocol
violated equal protection); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044,
1054-59 (S.D. Ohio 2012), affd, 671 F.3d 601 (6th Cir. 2012) (same). Mr. Taylor is
entitled to a stay of execution because the defendants conduct offends the due
process and equal protection guarantees of the Fourteenth Amendment.
Moreover, the district courts order denying a stay is plainly and distinctly
erroneous in numerous respects:
!It misapprehends the merits of Mr. Taylors claims, requiring him to show a
full-fledged violation of the Eighth Amendment in order to show that the state
violates equal protection and due process by deviating from written procedures that
protect Mr. Taylors Eighth Amendment rights. See Ohio Execution Protocol Litig., 840 F.
Supp. 2d at 1054 (Eighth Amendment violation not required; stay of execution
granted); Ohio Execution Protocol Litig., 671 F.3d 601, 602 (6th Cir. 2012) (upholding
stay of execution because state is obligated to abide by its own protocol).
!It reasons that the allowance of judicial review is not a core aspect of the
States execution protocol, even though the state adopted a written protocol at the
district courts insistence in earlier litigation, and did so for the purpose of allowing
pre-execution judicial review. Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL
1779035 (Doc. No. 195) at 5 & 7-9 (Order of June 26, 2006); Ringo v. Lombardi, 706 F.
Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment requires protocols
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several days earlier. Setting aside the fact (a) that the underlying motion was filed
earlier than parallel motions prior to the last three executions, (b) that the jurists
whose authority has been flouted by the State over the last three executions have
blamed the States conduct for carrying out those executions during stay remedies
and not the prisoners conduct for filing them, (c) that the State did not even execute
Herbert Smulls until five days after the Missouri Supreme Court scheduled Mr.
Taylors execution date, and (d) that it is impossible for Mr. Taylor to have brought
his claim at a time that it could be resolved without a stay of execution, the district
courts premise does not remotely warrant its conclusion. Litigating under a death
warrant is the most harrowing of lawyerly activities and circumstances, and it is
precisely because of his other painstaking remedies that Mr. Taylor was unable to file
the underlying motion before he did. Mr. Taylor is not dilatory for preparing and
filing some stay remedies earlier than others; all days consist of but 24 hours.
Mr. Taylor is entitled to a stay of execution, and the district court plainly erred
by denying one.
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TABLE OF CONTENTS
I. Factual background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The Department of Corrections executed plaintiff Joseph Franklinon November 20, 2013, even though viable stay proceedings werepending in the district court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. The Department of Corrections executed plaintiff Allen Nicklassonon December 11, 2013, even though viable stay proceedings werepending in the Eighth Circuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. The Department of Corrections executed plaintiff Herbert Smullson January 29, 2014, even though viable stay proceedings were
pending in the Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Viable claims remained pending at the time of the last threeexecutions because the courts had not resolved them, and notbecause of any deliberate strategy by plaintiffs counsel to ensurethe pendency of stay motions throughout the period of an execution
warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. The Department of Corrections written procedures prohibit anexecution during the pendency of legal proceedings to stay it. . . . . . . 11
II. Defendants refusal to follow their own written execution proceduresviolates the Fourteenth Amendments guaranty of equal protection becauseit leaves the defendants free to vary their method in core respects fromexecution to execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. Equal protection requires reliable compliance with core aspectsof the States written execution policies. . . . . . . . . . . . . . . . . . . . . . . . . 14
B. The allowance of judicial review is a core aspect of Missourisexecution procedure, as evidenced by judicial outrage at the Statespractices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. The district courts earlier order denying a stay to Allen Nicklassonmaterially strengthens Mr. Taylors entitlement to stay.. . . . . . . . . . . . 20
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III. Defendants conduct over the past three executions violates a state-createdprotection respecting the punishment of persons convicted of crime, andfor this reason violates the Due Process Clause of the Fourteenth
Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV. The district courts order misapprehends the legal basis of Mr. Taylorsclaims and misapplies the relevant considerations for granting a stay ofexecution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A. The allowance of judicial review is a core aspect of the stateswritten execution procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
B. Mr. Taylor need not show that Missouris execution method violatesthe Eighth Amendment in order show that the defendants are
violating due process and equal protection by not following theirestablished and written procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. The States Chronological Sequence of Execution unambiguouslyforbids the execution process from commencing when stayremedies are pending.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
D. Mr. Taylor did not delay, unduly or otherwise, the preparation andfiling of the underlying motion for stay. . . . . . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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I. Factual background
A. The Department of Corrections executed plaintiff Joseph Franklinon November 20, 2013, even though viable stay proceedings were
pending in the district court.
On November 18, 2013, Mr. Franklin moved the district court for an order
staying his execution. The motion attached documents showing recent changes that
the defendants had not disclosed by supplementation of their discovery responses. It
also included a supplemental declaration from Dr. Larry D. Sasich showing the flaws
and unanswered questions in such late-disclosed or nearly undisclosed document
from the defendants. ECF Doc. 157. At 4:19 p.m. on November 19, 2013, the court
stayed Mr. Franklins execution. ECF Doc. 163. Mr. Franklin had sought the stay on
four grounds; the court granted relief on one groundthe violation of the Eighth
Amendment to the United States Constitutionand expresslyrefrained from
reaching the remaining grounds:
Because the Court finds that the stay of execution must be granted on thegrounds that Plaintiffs have shown a substantial likelihood of success onthe merits of their Eighth Amendment claim, the Court declines to discussPlaintiffs other arguments on the merits at this time.
Id.at 12.
Defendants appealed the courts order to the Eighth Circuit. At 12:09 a.m. on
November 20, 2013, the court vacated the stay. ECF Doc. 366-1. The Eighth Circuit
thereafter denied Mr. Franklins petitions for rehearing and for rehearing en banc,
over three dissenting votes, with three additional judges not participating in the
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decision. ECF Doc. 366-2. At 3:40 a.m. on November 20, 2013, counsel for Mr.
Franklin then filed an application for stay in the U.S. Supreme Court. ECF Doc. 366-
3.
At approximately 5:01 a.m. on November 20, 2013, while the United States
Supreme Court proceedings were still pending, counsel for Mr. Franklin filed a
renewed motion for stay on the basis of the grounds the district court had reserved
ruling thirteen hours earlierexplaining that these grounds did not require the
heightened evidence that the Eighth Circuit held to be missing from Mr. Franklins
Eighth Amendment claim. ECF Docs. 167, 366-4. Opposing counsel received notice
of this filing through the district courts electronic filing system at that time. ECF
Doc. 366-4. Joseph W. Luby, counsel for Mr. Franklin, called the emergency number
for the clerk of the district court at approximately 5:10 a.m. to insure that the court
was alerted to the filing. At 5:18 a.m., counsel for Mr. Franklin and the Zink
defendants received notice, via email, that the United States Supreme Court had
denied the application for stay. ECF Doc. 366-5.
At 5:24 a.m., November 20, 2013, Mr. Luby sent an email to defense counsel
Susan D. Boresi, Michael J. Spillane, and Stephen D. Hawke, reminding them of the
filing and stating his expectation that no execution would occur while it was pending:
Dear Counsel:
As you know, we have filed a renewed motion for stay of execution, askingthe Court to consider the grounds that it declined to consider after findingthat Mr. Franklin had sufficiently proven a viable Eighth Amendment
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claim. I have contacted the emergency number [for] the U.S. DistrictCourt, and the clerk with whom I spoke is contacting Judge Laughrey toalert her of our motion. In the meantime, I expect you and your clients torefrain from executing Mr. Franklin while this matter remains pending.
ECF Doc. 366-6. Mr. Luby never received any electronic notice that might have
indicated that his email to defense counsel was not successfully delivered. And he has
never received a response to this email. Despite the electronic notice of filing from
the district court and the foregoing e-mail from appointed counsel, the defendants
injected Mr. Franklin with some substance at 6:07 a.m. and pronounced him dead at
6:17 a.m. ECF Doc. 366-7. At that time, the motion that the plaintiffs had filed in the
district court (ECF Doc. 167) remained pending. On November 20, 2013, after the
defendants had executed Mr. Franklin, the district court denied his motion for stay as
moot. ECF Doc. 170.
B. The Department of Corrections executed plaintiff Allen
Nicklasson on December 11, 2013, even though viable stayproceedings were pending in the Eighth Circuit.
On December 3, 2013, counsel filed a motion for a stay of Allen Nicklassons
execution with the district court, citing some of the same facts set out above. ECF
Docs. 184 at 4, 188 at 8-10. On Monday, December 9, 2013, the Eighth Circuit
granted a stay to Mr. Nicklasson on the basis of a claim arising in light ofMartinez v.
Ryan, 132 S. Ct. 1309 (2012). See Nicklasson v. Roper, Eighth Circuit Case No. 13-3091.
The states attorneys sought rehearing en banc, which the Eighth Circuit denied on
the evening of December 10, 2013, by vote of 8-2-1. Respondents counsel filed an
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application to vacate the stay in the Supreme Court. The Supreme Court vacated the
Martinez-based stay at approximately 10:00 p.m. on December 11, 2013, by a vote of
five to four.
In the meantime, counsel for Nicklasson had already asserted his numerous
bases for the district court to stay his execution on account of the Zinklitigation. See
ECF Doc. 184 (filed Dec. 3, 2013). The district court declined to rule on that motion
because the Eighth Circuits stay remained in effect. ECF Doc. 194. Counsel for Mr.
Nicklasson pressed the district court for a ruling in the event that the Supreme Court
might vacate the Eighth Circuits stay. At 10:50 a.m. on December 11, counsel filed
an emergency conditional motion for stay, urging the district court to rule the
pending motion and explaining that opposing counsel refused to ensure that their
clients would refrain from executing Mr. Nicklasson if a motion for stay remained
pending in the event of an order from the Supreme Court vacating theMartinezstay.
SeeECF Doc. 195. Eighteen minutes later, the district court denied the motion. ECF
Doc. 196. At 3:46 p.m., counsel filed a motion for stay in the Eighth Circuits Appeal
No. 13-3664. At 3:55 p.m., counsel filed an emergency motion for conditional stay in
the same appeal.
Unfortunately for Mr. Nicklasson, the Eighth Circuit panel to which the
motions were directed did not resolve them until after the Supreme Court issued its
10:00 p.m. order vacating theMartinezstay. At 10:11 p.m., the Eighth Circuit panel
denied the stays Mr. Nicklasson had sought on appeal. ECF Doc. 366-8. At 10:31
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p.m., counsel for Mr. Nicklasson moved the Eighth Circuit en banc for rehearing as
well as for a stay of execution. ECF Doc. 366-9.
According to MissouriNet: Attorney General Chris Koster informed the
Department of Corrections at 10:43 p.m. that there were no legal impediments to
the execution. ECF Doc. 366-10 (article from MISSOURINET). The next minute,
the defendants injected Mr. Nicklasson with something, and at 10:52, they
pronounced him dead. ECF Doc. 366-11(article from The Guardian).
C. The Department of Corrections executed plaintiff Herbert Smullson January 29, 2014, even though viable stay proceedings were
pending in the Supreme Court.
In the case of Herbert Smulls, there were three actions in which counsel
sought and, in some instances, received stays of execution. One concerned the
ongoing grievance with the Eighth Circuits grant of an extraordinary writ to allow
the respondents to avoid discovery in this case. A second raised Due Process Clause
and First Amendment claims arising from the Zinklitigation. A third involved a claim
arising under Batson v. Kentucky, 476 U.S. 79 (1986), which counsel asserted in a
motion to recall the mandate before the Missouri Supreme Court, and as to which
counsel thereafter petitioned the United States Supreme Court for a writ of certiorari.
On January 28, 2014, the United States Supreme Court entered a stay pending
further order of the Court in Mr. Smullss Batsoncase. ECF Doc. 364-1. Later that
day, a panel of the Eighth Circuit entered a stay pending the U.S. Supreme Courts
determination of the petition for writ of certiorari in Zink v. Lombardi, concerning the
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Eighth Circuits grant of mandamus relief in favor of the Zinkdefendants. ECF Doc.
364-2. The Eighth Circuit did not rule at that time on two other grounds (due process
and First Amendment) presented in support of the request for stay. Id.Those
grounds remained pending. The Eighth Circuit did not address them until January 29.
At 4:34 p.m. on January 29, counsel for Mr. Smulls received notification that
the Supreme Court had vacated its prior stay in Mr. Smullss Batsoncase, and had
denied his application for stay (but not the petition for certiorari) in Zink. ECF Doc.
364-3. The order contained no ruling on the certiorari petition in Zink. At 6:28 p.m.,
the Zinkdefendants filed an application to vacate the Eighth Circuits grant of a stay
of execution based on the pending Zinkpetition in the Supreme Court challenging
the grant mandamus relief. Between 8:30 and 8:50 p.m. counsel for Mr. Smulls filed a
motion for conditional stay in the Eighth Circuit and a renewed motion for stay,
seeking the courts rulings on the unexhausted Due Process Clause and First
Amendment claims that Mr. Smulls had presented in the January 28 application for
stay. ECF Docs. 365-1.
At 9:00 p.m., in preparation for the contingency that the U.S. Supreme Court
might vacate the Eighth Circuits stay on the Zinkmandamus grounds and that the
Eighth Circuit might also deny his application for a stay on the separate Due Process
Clause and First Amendment grounds, counsel for Mr. Smulls lodged a petition for
writ of certiorari and application for stay based on Mr. Smullss due process and First
Amendment claims. At that time, the petition and application were lodged with the
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application and petition for writ of certiorari based on these claims, those remedies
were now ripe for ruling. At 10:07 p.m. counsel for Mr. Smulls received the written
order from the Eighth Circuit of which the clerk had orally notified them eight
minutes earlier. This transmission contained Judge Byes three-page dissenting
opinion on the due process claim. Counsel for Mr. Smulls then submitted that
opinion to the Supreme Court in further support of his application for stay and
petition for writ of certiorari. ECF Doc. 364-4.
At 10:11 p.m., Mr. Smullss Due Process and First Amendment petition and
application were pending in the Supreme Courtsupplemented by Judge Byes
vigorous dissenting opinion. At that very time, the defendants began the execution,
starting the administration of a lethal drug. Counsel for Mr. Smulls did not find out
the timing until later, through press reports. While they proceeded to kill Mr. Smulls,
the defendants kept his counsel completely in the dark as they were awaiting the
Supreme Courts ruling. At 10:20 p.m. Mr. Smulls was pronounced dead. Not until
10:24 p.m. did the U.S. Supreme Court deny Mr. Smullss petition for certiorari and
application for stay. ECF Doc. 364-5.
Throughout the evening, counsel for Mr. Smulls, Cheryl A. Pilate, had sent a
series of e-mails to defense counsel, apprising them of the status of filings on behalf
of Mr. Smulls and the courts decisions. ECF Doc. 364-6. At no point, until 10:24
p.m., was Mr. Smulls without either a stay or a pending application for stay.
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D. Viable claims remained pending at the time of the last threeexecutions because the courts had not resolved them, and notbecause of any deliberate strategy by plaintiffs counsel toensure the pendency of stay motions throughout the period of anexecution warrant.
Seeking to justify the Department of Corrections conduct, opposing counsel
recently testified before a Missouri legislative committee that the prisoners attorneys
pursue a very deliberate strategy to ensure there is always a stay motion pending
during the course of a death warrant, which is a de factorepeal of the death penalty.
Counsel suggested that stay proceedings were pending during the last three
executions only because the still-pending motions were sprung on the courts and the
State at the eleventh hour.
But the circumstances of each case disprove counsels characterization of
them. In the Franklin case, counsel filed a renewed motion for stay in the district
court after the court left unresolved promising claims that do not require the same
evidence that Mr. Franklin was held to have lacked. It was no fault of Mr. Franklins
attorneysand certainly not their deliberate strategythat Judge Laughrey would
grant a stay on Mr. Franklins most demanding claim while leaving the other grounds
unresolved. And it was entirely reasonable for counsel to seek a ruling on those
unresolved grounds.
Likewise, in the Nicklasson case, the Eighth Circuit panel did not rule on the
Zink-based motion for stay until 10:11 p.m. on the date of the warrant, or some ten
minutes after the Supreme Court vacated the Eighth Circuits stay on Mr.
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NicklassonsMartinezlitigation that challenged his underlying conviction and
sentence. Counsel for Mr. Nicklasson simply took the next logical step after the
Eighth Circuits adverse ruling: they immediately moved the full Eighth Circuit for a
stay of execution and rehearing en banc, advancing the same grounds that had been
filed in the district court eight days earlier. That motion was filed at 10:31 p.m., but
the State began executing Mr. Nicklasson at about 10:43 p.m., after the Attorney
General informed the DOC that there were no legal impediments to the execution.
Neither did counsel for Mr. Smulls spring a last-minute surprise on the State or
the courts. Counsel were simply seeking a ruling on remedies that had been pending
before the Eighth Circuit for more than 24 hours, and which had been presented to
the district court days earlier. The conditional and renewed motion for stay asked the
Eighth Circuit for relief on two grounds that remained unresolved. The State was well
aware of these grounds, and indeed, it had earlier filed (at 2:42 p.m. on January 29) a
motion asking the Eighth Circuit to expedite its ruling on the two unresolved claims.
That ruling finally came at 10:07 p.m., with the Eighth Circuit denying a stay despite
Judge Byes vigorous three-page dissent in support of the due process claim. The
underlying stay theories had already been lodged with the Supreme Court in
anticipation of the Eighth Circuits ruling, and the issues became ripe for the Supreme
Court as soon as the Eighth Circuit had resolved them at 10:07 p.m. The State
nevertheless began injecting Mr. Smulls with a lethal chemical at 10:11 p.m., and
pronounced him dead at 10:20 p.m. Four minutes later, the Supreme Court sent word
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Defendants insist that the written procedures allow the Director to authorize
an execution when stay proceedings are pending. See ECF Doc. 354, at 22-23. But
that argument is implausible, because the rules very language provide for the
Director to advise the Warden to escort the prisoner out of the holding cell only
when no stay is in place and no legal activity is in process to prevent the
execution. (emphases added). For that matter, the district court has already rejected
the defendants reading of the procedures. In the course of denying a stay to Allen
Nicklasson, the district court agreed that the defendants had violated their own
procedures by prematurely executing Joseph Franklin; the district court simply
believed that the defendants were unlikely to violate their own rules again:
Because Defendants have violated a portion of their protocol on oneoccasion does not mean Defendants are likely to do it again. Mr.Nicklasson has provided nothing more than speculation that at some pointin the future, a condemned prisoner may be executed in a manner different
than another prisoner. Without more, proof of Defendants one timeviolation is not sufficient to create a significant likelihood of success on hisequal protection claim.
ECF Doc. 196 at 10.
Defendants also argue that no prisoner could ever be executed if they were
obligated to follow the protocol as written, because counsel could simply file stay
application after stay application until the twenty-four hours of the execution warrant
expired. ECF Doc. 354 at 23. That assertion ignores the merits of the filings made
on behalf of Messrs. Franklin, Nicklasson, and Smulls, as well as the requirement that
any federal filing must be made in good faith and not to cause unnecessary delay. See
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Fed. R. Civ. P. 11(b)(1). Defendants have never suggested that any of the grounds
were frivolous. Indeed, Franklins grounds involved claims that were easier to satisfy
than the Eighth Amendment claim on which the district court granted a stay, and
Nicklassons and Smulls claims were both supported by the dissenting views of
multiple Eighth Circuit judges. If the defendants had reason to believe that bad-faith
pleadings were being filed, they ought to have sought relief under Rule 11 rather than
evading the courts power and duty to say what the law is. Defendants instead
divested the reviewing courts of jurisdiction by deciding for themselves that the
prisoners claims were unavailing.
II. Defendants refusal to follow their own written execution proceduresviolates the Fourteenth Amendments guaranty of equal protectionbecause it leaves the defendants free to vary their method in corerespects from execution to execution.
Defendants do not consider themselves bound by their own execution
protocol. Therefore, Plaintiffs lack any assurance that otherwise similarly situated will
be executed through established and consistent procedures, or that the States written
policies will be followed at all. The States willingness to engage in core deviations
from its own execution protocol burdens each prisoners right to equal protection
and to be free of cruel and unusual punishment, but without serving any legitimate
governmental interest. Cooey v. Kasich, 801 F. Supp. 2d 623, 652-59 (S.D. Ohio 2011)
(deviation from core aspects of written protocol violated equal protection); In re
Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1054-59 (S.D. Ohio 2012) (same),
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affd, 671 F.3d 601 (6th Cir. 2012). These defects burden each prisoners fundamental
rights.See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (due process recognizes liberty
interest in states compliance with state law); Ringo v. Lombardi, 706 F. Supp. 2d 952,
962 (W.D. Mo. 2010) (Eighth Amendment requires execution protocols that include
adequate safeguards against unnecessary pain); Bush v. Gore, 531 U.S. 98, 109 (2000)
(criticizing court-ordered statewide remedy that failed to ensure uniformity of voting
rights from county to county; statewide remedy requires at least some assurance that
the rudimentary requirements of equal treatment and fundamental fairness are
satisfied).
A. Equal protection requires reliable compliance with core aspectsof the States written execution policies.
The purpose of the equal protection clause is to secure every person within
the States jurisdiction against intentional and arbitrary differential treatment,
whether occasioned by express terms of a statute or by its improper execution
through duly constituted agents. Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000); Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923). The Equal
Protection Clause embodies the general rule that States must treat like cases alike but
may treat unlike cases accordingly. Vacco v. Quill, 521 U.S. 793, 799 (1997). The
states cannot make distinctions which either burden a fundamental right (with or
without violating that right), target a suspect class, or intentionally treat one person
differently from others similarly situated without any rational basis for the difference.
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Id.; Village of Willowbrook, 528 U.S. at 564. When an equal protection claim implicates
a burden on the fundamental rights of a group of persons, the state action involved is
subjected to strict judicial scrutiny.Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312
(1976); Gavin v. Branstad, 122 F.3d 1081, 1089 (8th Cir. 1997). State action fails such
scrutiny unless it is necessary to achieve a compelling governmental interest and is
narrowly tailored to do so. See Citizens United v. FEC, 558 U.S. 310, 340 (2010);
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
Equal protection is implicated by a states policy and practice of deviating from
core aspects of its written and established execution policies, which exist to protect
the prisoners interest in avoiding an execution that constitutes cruel and unusual
punishment. See Baze v. Rees, 553 U.S. 35, 56 (2008) (concluding that, on the record
evidence, petitioners had not demonstrated substantial risks of serious pain [i]n light
of these safeguards that Kentucky follows); Ringo, 706 F. Supp. 2d at 962 (noting
that the Eighth Amendment requires protocols that include adequate safeguards
against unnecessary pain). What this means is that any core deviation from the
protocol is permissible only if it is narrowly tailored to a compelling governmental
interest. In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054. Defendants
cannot make such a showing, because executions without observance of prescribed
safeguards serve no legitimate interest: Plaintiff has demonstrated that the only
rationale for core deviations that eliminate safeguards and introduce greater
uncertainty into the execution process is to simply complete the executions at all or
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nearly all costs. Cooey, 801 F. Supp. 2d at 653.
Mr. Taylor and each other plaintiff will also prevail under a class of one
theory of equal protection, under which a state is forbidden from treating one
individual differently from other similarly situated individuals unless the state has a
rational basis for doing so. Village of Willowbrook, 528 U.S. at 564. The class of one
theory presupposes that like individuals should be treated alike, and that to treat
them differently is to classify them in a way that must survive at least rationality
review.Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 605 (2008). To measure such
disparate treatment, a claim generally requires the existence of a clear standard
against which departures, even for a single plaintiff, could be readily assessed. Id.at
602. Under this theory, Mr. Taylor can show that Defendants non-compliance with
their written policies arbitrarily or intentionally treats each condemned inmate
differently and that such disparate treatment serves no legitimate state interest. See In
re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054-59; Cooey, 801 F. Supp. 2d at
652-59.
From all appearances, the defendants actions in executing Messrs. Franklin,
Nicklasson, and Smulls, and deviating from their written execution policies, were
intentional, and were not based on any individualized concerns about the condemned
inmate, but rather on interests of administrative convenience. But that interest does
not justify disparate treatment of similarly situated individuals. See Rinaldi v. Yeager,
384 U.S. 305, 310 (1966); Frazier v. Manson, 703 F.2d 30, 35 (2d Cir. 1983). When the
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defendants actions are unrelated to the achievement of any combination of legitimate
purposes, a court can only conclude that those actions are irrational. Kimel v. Florida
Bd. of Regents, 528 U.S. 62, 84 (2000); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d
at 1054.
B. The allowance of judicial review is a core aspect of Missourisexecution procedure, as evidenced by judicial outrage at theStates practices.
Defendants dispute that they have a core principle of refraining from
executions when judicial remedies are pending. ECF Doc. 354 at 22. But the fact that
defendants do not like a provision of their own protocol, and wish it did not mean
what it says, does not mean that it is not a core principle. As an abstract matter, of
course, the availability of judicial review is key to ensuring that executions are
humane.See Ringo v. Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he
Eighth Amendment requires protocols that include adequate safeguards against
unnecessary pain, and superior courts have indicated that the involvement of
medical professionals and rules for administration enhances such safeguards.).
Allowance of court review is indeed a core principleof the states policy. Since these
particular provisions affect both the actions of the state in the execution process and
the prisoners access to the courts, its importance is clear. Counsel for Messrs.
Franklin, Nicklasson, and Smulls acted in reliance on opposing counsels good faith
when they notified them of pending stay remedies and the courts efforts to resolve
them. Counsel for defendants simply ignored these entreaties and the motions they
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described. Mr. Taylor should not suffer the same fate.
Lest there be any doubt on the importance of judicial review, the courts have
made known their displeasure with the States conduct. On December 28, 2013,
Judge Laughrey disclosed to two of plaintiffs counsel the identities of defendants
compounding pharmacy and laboratory. ECF Doc. 242. Judge Laughrey later vacated
that order, recognizing that she issued it without knowing that the Eight Circuit had
stayed her discovery rulings the previous evening. ECF Doc. 244. But the facts that
were otherwise described by Judge Laughrey remain true. On the one hand, defense
counsel twice refused to comply with the courts discovery orders when their
motions to stay those orders were pending. On the other, defendants had by then
carried out two executions while the prisoners motions for stay were pending. In
effect, defendants had appointed themselves as their own judges:
Defendants seem to think that they are able to decide for themselves whenit is appropriate to comply with an order of a court and when it is not
when they can proceed in the face of pending litigation and when theyneed not be concerned about pending litigation.
ECF Doc. 242 at 2.
Eighth Circuit Judge Kermit Bye was even more outspoken in his criticism. He
was alarmed that defendants executed Allen Nicklasson before the Eighth Circuit
could determine Mr. Nicklassons motion for stay and petition for rehearing en banc:
At approximately 10:52 p.m. on December 11, 2013, Missouri executedAllen Nicklasson before this court had completed its review ofNicklassons request for a stay of his execution, a request he brought in apending action challenging the constitutionality of Missouris execution
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SeeOral Argument in Forrest v. Steele, Eighth Circuit Case No. 12-2888, at 44:55
through 45:40 (available online at
http://8cc-www.ca8.uscourts.gov/OAaudio/2014/2/122888.mp3).
The issue here, of course, is not whether the State has an abstract right to
execute a prisoner when a stay motion is pending. It is whether the States own
provision to stay its hand in the face of such a motion is a core provision of its
execution procedures. And it plainly is, because state officials are not a court. It is
emphatically the province and duty of the judicial department to say what the law is.
Marbury v. Madison, 1 Cranch 137, 177 (1803).
C. The district courts earlier order denying a stay to AllenNicklasson materially strengthens Mr. Taylors entitlement tostay.
Although the district court declined to issue a stay of execution to Mr.
Nicklasson, its reasoning strongly supports a stay for Mr. Taylor. The district court
both (a) rejected the defendants argument that the protocol allows an execution
whenever the Director says so, and (b) ruled that Mr. Nicklassons claim was
speculative because the defendants had violated their written procedures in only
the single case of Joseph Franklin.
Because Defendants have violated a portion of their protocol on oneoccasion does not mean Defendants are likely to do it again. Mr.Nicklasson has provided nothing more than speculation that at some
point in the future, a condemned prisoner may be executed in amanner different than another prisoner. Without more, proof ofDefendants one time violation is not sufficient to create a significantlikelihood of success on his equal protection claim.
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ECF Doc. 196 at 10 (emphasis added).
But no one is speculating now. The defendants have since executed two more
prisoners before the federal courts had a final say on whether doing so violated the
federal constitution.Nicklasson v. Lombardi, Eighth Circuit Case No. 13-3664,
Amended Order dated Dec. 23, 2013, at 2 (Bye, J., dissenting); Exhibit B at 2. The
State had thumbed its nose at all three levels of the federal judiciary over the course
of three executions in three months, and all in violation of its own written
procedures. Defendants misconduct equals or exceeds that of their Ohio
counterparts: [T]he only rationale for core deviations that eliminate safeguards and
introduce greater uncertainty into the execution process is to simply complete the
executions at all or nearly all costs. Cooey, 801 F. Supp. 2d at 653.
III. Defendants conduct over the past three executions violates a state-created protection respecting the punishment of persons convicted of
crime, and for this reason violates the Due Process Clause of theFourteenth Amendment.
In Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), the Supreme Court of the
United States held that when a states statutes provided for jury sentencing of the
petitioner before them, and the state courts did not enforce this procedural guaranty
in his favor when he was on trial for a crime, the failure to do so violated the Due
Process Clause of the Fourteenth Amendment. See alsoToney v. Gammon, 79 F.3d 693,
699 (8th Cir. 1996); Wilkins v. Bowersox, 933 F.Supp. 1496, 1525-26 (W.D. Mo. 1996),
affd, 145 F.3d 1006 (8th Cir. 1998).
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The district court required the defendants privies to adopt a written
protocolwhich they had not beforefor the very purpose of affording judicial
review of execution practices before-the-fact. Taylor v. Crawford, No. 05-4173-CV-C-
FJG, 2006 WL 1779035 (Doc. No. 195) at 5 & 7-9 (Order of June 26, 2006). The
protocols provisions for not proceeding with an execution while judicial review is in
progress is a straightforward protection of persons convicted of crime in respect to
punishment. The right not to be killed at the very moment that a court of competent
jurisdiction is considering the specific method is a state-created, federally protected
liberty interest. Defendants could have left this provision out when the district court
ordered them to create the protocol. The fact that it is a part of the protocol is why
they maintain that its current version is confidential under the state statute, Mo.
Rev. Stat. 546.720.2-.4, and why they have attempted to protect themselves from
discovery and from legislative and professional oversight.
It is the height of arbitrariness to defend a lawsuit by killing the plaintiffs one
by one, especially when the courts have not resolved the questions placed before
them. Citing Hill v. McDonough, 547 U.S. 573, 583-84 (2006), defense counsel and the
Attorney General argue that the mere presence of litigation does not entitle a prisoner
to a stay of execution. That is indeed what Hilland other authorities say, but it does
not excuse the States conduct. The issue is not whether and when a federal court
might grant a stay. It is whether the State should refrain from executing the prisoner
so that the court can decide whether to issue a stay in light of the particular litigation
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before it. This simple distinction is not lost on the judiciary: While the current
protocol litigation is not among the category of cases for which Nicklasson was
entitled to an automatic stay of his execution, it was nonetheless a claim that Missouri
would violate the federal constitution by executing him.Nicklasson v. Lombardi, Case
No. 13-3664, Order of Dec. 23, 2013, at 14 (Bye, J., dissenting from the denial of
rehearing); Exhibit B at 14.
Not content to let the courts decide the constitutional issue presented, the
States pattern is to resolve the prisoners claim for itself by executing the claimant.
That is the basis of Judge Byes outrage at the defendants conduct: Nicklasson was
entitled to have this court complete its equitable review under Hillto determine
whether he was entitled to a stay before Missouri executed him. Id.at 14-15.
Fundamental to the rule of law is the principle that, [W]here there is a legal right,
there is also a legal remedy by suit or action at law.Marbury v. Madison, 1 Cranch 137,
163 (1803), quoting William Blackstone, Commentaries on the Laws of England(1769).
The State is free to contest a claim of legal right. But that does not make it proper for
the State to extinguish the claim by means of self-help.
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order and insistence of the district court in earlier litigation, and for the specific
purpose of allowing judicial review of the States execution methods. See Taylor v.
Crawford, No. 2:05-4173-CV-C-FJG, 2006 WL 1779035 at 7-8 (W.D. Mo. June 26,
2006). The purpose of that Order was to make possible the very before-the-fact
judicial review the defendants now seek to avoid. The Eighth Circuit relied on the
protocol to approve the means of lethal injection with FDA-compliant
pharmaceuticals. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007). Those safeguards
are meaningless without the availability of judicial review to enforce them. See Ringo v.
Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment
requires protocols that include adequate safeguards against unnecessary pain, and
superior courts have indicated that the involvement of medical professionals and
rules for administration enhances such safeguards.).
B. Mr. Taylor need not show that Missouris execution method violates theEighth Amendment in order show that the defendants are violating due
process and equal protection by not following their established andwritten procedures.
The district court next reasoned that Mr. Taylor has not shown aviolationof
a fundamental right because he has not shown that the defendants execution
method violates the Eighth Amendment. ECF Doc. 370 at 3-4; Exhibit C at 3-4
(emphasis added). But Mr. Taylors claims require no such thing. The equal
protection claim is viable not because the defendants are, or are not, violating the
Eighth Amendment, but rather, because they are violating core safeguards in a
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manner that burdens and threatenstheir constitutional rights, including those
protected by the Eighth Amendment. See Cooey v. Kasich, 801 F. Supp. 2d 623, 652-59
(S.D. Ohio 2011) (deviation from core aspects of written protocol violated equal
protection); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1054-59 (S.D.
Ohio 2012), affd, 671 F.3d 601 (6th Cir. 2012).
The Ohio litigation makes this point abundantly clear, and the authorities
specifically reject the district courts reasoning:
Defendants attempt to transform Plaintiffs Fourteenth Amendmentclaim into a pure Eighth Amendment claim. But the former claimsufficiently targets that the sweeping core deviations at least burdenPlaintiffs fundamental right by negating some of the precise proceduralsafeguards that this Court and the Sixth Circuit heralded in priordiscussions of Eighth Amendmentclaims in this same litigation.
Cooey, 801 F. Supp. 2d at 653 (emphases in original); Cooey v. Kasich, Nos. Nos.
2:04cv1156, 2:09cv242, 2:09cv823, 2:10cv27, 2011 WL 5326141, at *4 (S.D.
Ohio Nov. 4, 2011); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054. The
Sixth Circuit affirmed a stay of execution on this basis, ruling that the State must
abide by its own procedures: We agree with the district court that the State should
do what it agreed to do: in other words it should adhere to the execution protocol it
adopted. In re Ohio Execution Protocol Litig., 671 F.3d 601, 602 (6th Cir. 2012).
That obligation extends beyond the Equal Protection Clause. Mr. Taylor has
already explained that the State violates due process by violating its own written
procedure that it adopted at the district courts insistence. SeePart III, above. Due
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process additionally guarantees a prisoners access to the courts. Lewis v. Casey, 518
U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 825 (1977). That right is
meaningless if the State is free to execute the prisoner before his claims are resolved.
Defendants conduct is thoroughly illegitimate. SeeExhibit D at 3 (Letter from Prof.
James Liebman) (motion for stay should be resolved, not unilaterally by one party to
the dispute, but by the decision of a neutral court of law).
C. The States Chronological Sequence of Execution unambiguouslyforbids the execution process from commencing when stay remedies are
pending.
The district court reasoned that it was unclear whether the defendants
conduct over the last three executions violates their written procedures. Exhibit C at
4; ECF Doc. 370 at 4. Of course, a stay does not require Mr. Taylor to show an clear
and unambiguous entitlement to relief, but only a significant possibility of success on
the merits. Hill v. McDonough, 547 U.S. 573, 584 (2006). In any event, there is no merit
to the defendants argument that an execution may proceed whenever the Director
authorizes it to. The full provision for 11:15 p.m. reads as follows:
11:15 PM Director of the Department of Corrections/designee advises(ERDCC Warden) that (Inmate Name) may be escorted to theexecution room if no stay is in place and no legal activity is inprocess to prevent the execution.
If there is pending legal activity to halt the execution process,(Inmate Name) will remain in his holding cell and there will be noIV or line established until authority is granted to do so by theDirector of the Department of Corrections/designee.
Exhibit A at 2-3. Defendants seize on the last clause, suggesting that the Director is
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free to authorize an execution by granting the authority to do so. ECF Doc. 367 at
5. But the directive expressly cabins the Directors power to give that authorization:
the Director has that authority when no stay is in place and no legal activity is in
process to prevent the execution. If the Director had such authority duringthe
pendency of stay proceedings, then there would be no purpose served by language
allowing him to do so in the absenceof such proceedings. Defendants reading of
the provision makes most of its language pointless.
For that matter, an earlier order of the district court already rejects Defendants
strained reading of the policy. When opposing Allen Nicklassons motion for stay, the
defendants made the same argument in that case that they made in this one. ECF
Doc. 187 at 16-17. But the district court rejected that argument. It concluded
that Defendants had violated their procedures by executing Joseph Franklin when
stay remedies were pending, but it reasoned that Defendants were unlikely to do so
again. SeeECF Doc. 196 at 10 (Because Defendants have violated a portion of their
protocol on one occasion does not mean Defendants are likely to do it again.). Of
course, Defendants diddo so again during the next two executions.
D. Mr. Taylor did not delay, unduly or otherwise, the preparation and filingof the underlying motion for stay.
The district court also reasoned that Mr. Taylor had unnecessarily delayed the
assertion of his equal protection and due process claims. Exhibit C at 2; ECF Doc.
370 at 2. Although Mr. Taylors execution date was not scheduled until January 24,
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the district court noted that Herbert Smulls execution took place on January 29. Id.
The court also observed that Mr. Taylor has numerous attorneys, and that Mr. Taylor
filed two other motions for stay several days earlier than the one asserting his equal
protection and due process claims. Id.
But these circumstances do not justify denying a stay. For one thing, capital
litigation under a death warrant is a harrowing process, and the reason that Mr.
Taylors motion was filed several days after the others is precisely because counsel
were hurriedly and all-encompassingly engaged in litigating Mr. Taylors other
motions. The mere fact that the last motion was filed after the other ones does not
mean that counsel were sitting on their hands, or that time and resources were
available to assert this motion at the same time as the earlier ones. Counsel direct the
courts attention, in particular, to their painstaking and detailed recounting of the
circumstances surrounding the last three executions, and also to the development of
twenty-one related exhibitsall of which are exceedingly painstaking tasks. SeeECF
Docs. 363 at 1-13; ECF Docs. 364-366.
For another thing, the mere fact of a five-day period between the filing of a
motion and an execution date is unremarkable under the circumstances of this case
and is not a sufficient basis for denying a stay. The underlying motion was filed well
in advance stay motions that were filed in relation to the last three executions, and as
to which Defendants filing below does not dispute that Defendantsare responsible
for the fact of having killed three prisoners while the courts were still considering
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their claims. See, e.g., ECF Doc. 157 (Franklin stay motion filed Nov. 18, 2013;
execution scheduled Nov. 20, 2013); ECF Doc. 301 (Smulls stay motion filed Jan. 26,
2014; execution scheduled Jan. 29, 2014). The type of delay described by the
district court is not the type of delay that justifies the denial of a meritorious stay
motion. There is a a strong equitable presumption against the grant of a stay where a
claim could have been brought at such a time as to allow consideration of the merits
without requiring entry of a stay. Hill, 547 U.S. at 584. But there is no way that Mr.
Taylor could have fully litigated his claim without needing a stay. He and his fellow
plaintiffs asserted the instant claims in their First Amended Complaint (filed Dec. 3,
2013) as well as their Second Amended Complaint (filed January 27, 2014). ECF
Docs. 183, 312. The State carried out the three illegitimate executions at issue on
November 20, December 11, and January 29. A trial is set in the district court for
June 2014. Mr. Taylor should be allowed to litigate his claim, rather than having them
extinguished by his execution.
Finally, it is the Defendants themselves who are responsible for the fact that
three prisoners have been executed while their claims were pending, as well as the
fact that Mr. Taylor and his fellow plaintiffs face the same fate. That, anyway, is what
has been found the jurists whose authority the State has flouted. According to Judge
Laughrey, Defendants seem to think that they are able to decide for themselves ...
when they can proceed in the face of pending litigation and when they need not be
concerned about pending litigation. ECF Doc. 242 at 2. According to Judge Bye,
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Nicklasson was entitled to have this court complete its equitable review under Hill
to determine whether he was entitled to a stay before Missouri actually executed
him.Nicklasson v. Lombardi, Case No. 13-3664, Amended Order dated Dec. 23, 2013,
at 2 (Bye, J., dissenting), at 14-15 (Exhibit B). And according to Chief Judge Riley, I
think you need to be a little more patient. SeeOral argument in Forrest, No. 12-2888,
at 45:35 - 45:40.
CONCLUSION
For all the foregoing reasons, Mr. Taylor respectfully requests that the Court
grant his motion for stay of execution, and afford such other relief as law and equity
require.
Respectfully submitted,
SEAN K. KENNEDYFederal Public Defender
DATED: February 24, 2014 By s/ Matthew B. LarsenMatthew B. LarsenDeputy Federal Public Defender321 East 2nd StreetLos Angeles, CA 90012Phone: (213) 894-2911
Counsel for Appellant M.A. Taylor
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CERTIFICATE OF SERVICE
I hereby certify a true and correct copy of the foregoing was forwarded fortransmission via Electronic Case Filing (ECF) this 24th day of February, 2014, to
Susan D. Boresi, Esq.Michael Joseph Spillane, Esq.Stephen David Hawke, Esq.
Andrew Tyler Bailey, Esq.David James Hansen, Esq.
Assistant Attorneys GeneralP.O. Box 899
Jefferson City, Missouri 65102
s/ Matthew B. LarsenMATTHEW B. LARSEN