Shondel Church v. State of Missouri

          Submitted: April 10, 2018

          Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before GRUENDER, MELLOY, and BENTON, Circuit Judges.

          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 (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.

         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. . . . 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 (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 (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 (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 (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.

         "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. 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. See also Nevada v. Hall, 440 U.S. 410, 414-16 (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. "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. "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, quoting In re Ayers, 123 U.S. 443, 505 (1887).

         "[N]either logic nor precedent supports the proposition that a state 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 (1990), quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (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, 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 not beyond the strong arm of a court of equity.

Merchants' Exchange of St. Louis v. Knott, 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, 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, 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." 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 (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 ...