Shondel Church; Randall Lee Dalton; Dorian Samuels; Viola Bowman; Brian Richman Plaintiffs - Appellees
State of Missouri; Michael L. Parson,  in his official capacity as Governor of the State of Missouri Defendants - Appellants Michael Barrett; H. Riley Bock; Charles R. Jackson; Craig Chval; A. Crista Hogan Defendants
Submitted: April 10, 2018
from United States District Court for the Western District of
Missouri - Jefferson City
GRUENDER, MELLOY, and BENTON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
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,  this court reverses and remands.
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.
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).
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."
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").
"[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.
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).
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.
"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.
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).
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.
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
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 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).
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.
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.")
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.
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 ...