2018.01.22 Church v. Missouri Red Brief

No.
17-2857
IN THE
United States Court of Appeals for the Eighth Circuit
SHONDEL CHURCH, ET AL.,
Plaintiffs-Appellees,
v.
STATE OF MISSOURI AND ERIC GREITENS,

Defendants-Appellants.
On Appeal from the United States District Court for

the Western District of Missouri – Central Division
BRIEF FOR PLAINTIFFS-APPELLEES
Jason D. Williamson Anthony Rothert

ACLU FOUNDATION Jessie Steffan
125 Broad Street ACLU OF MISSOURI
18th Floor FOUNDATION
New York, NY 10004 906 Olive Street
Suite 1130
Robert Sills St. Louis, MO 63101
Aaron Scherzer (314) 652-3114
Matthew R. Shahabian
Camille J. Rosca Amy Breihan
ORRICK, HERRINGTON & MACARTHUR JUSTICE CENTER
SUTCLIFFE LLP AT ST. LOUIS
51 West 52nd Street 3115 South Grand Boulevard
New York, NY 10019 Suite 300
St. Louis, MO 63118
Counsel for Plaintiffs-Appellees

(Additional counsel listed on inside cover)
January 19, 2018
Appellate Case: 17-2857 Page: 1 Date Filed: 01/22/2018 Entry ID: 4621905
Will Melehani Gillian Wilcox
Evan Rose ACLU OF MISSOURI
Easha Anand FOUNDATION
ORRICK, HERRINGTON & 406 West 34th Street
SUTCLIFFE LLP Suite 420
The Orrick Building Kansas City, MO 64111
405 Howard Street
San Francisco, CA 94105 Anthony Tartaglio
Annie Prasad
James Maune ORRICK, HERRINGTON &
ORRICK, HERRINGTON & SUTCLIFFE LLP
SUTCLIFFE LLP 1000 Marsh Road
2050 Main Street Menlo Park, CA 94025
Suite 1100
Irvine, CA 92614
Marnee R. Rand*
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street NW
Washington, DC 20005
*Bar admission pending;

supervised by members of the
firm
ii
TABLE OF CONTENTS
Page(s)

TABLE OF CONTENTS .......................................................................... iii
TABLE OF AUTHORITIES ...................................................................... v
INTRODUCTION ...................................................................................... 1
STATEMENT OF THE ISSUES ............................................................... 4
STATEMENT OF THE CASE .................................................................. 6
Missouri Is Failing Its Constitutional Obligation to Provide
for Indigent Defense ................................................................ 6
Plaintiffs File a Class Action Petition in State Court Seeking
Prospective Equitable Relief................................................... 8
The District Court Correctly Denies the State Defendants’
Motions to Dismiss .................................................................. 9
SUMMARY OF THE ARGUMENT ........................................................ 11
ARGUMENT ............................................................................................ 14
I. Missouri Cannot Use Sovereign Immunity Against
Claims Seeking Prospective Equitable Relief To
Enforce Its Constitutional Obligations. ............................... 14
A. Wyman Holds That Missouri Has No Sovereign
Immunity Where a Plaintiff Seeks Prospective
Equitable Relief to Enforce the State’s
Affirmative “Duty Or Obligation.” .............................. 15
B. Wyman Is Consistent with Missouri Precedent,
with Other States’ Understanding of State
Sovereign Immunity, and with the Common Law. .... 22
iii
1. Missouri Courts Have Long Entertained
Equitable Claims Against the State Itself. ....... 23
2. The Majority of States Have Similarly Held
There Is No State Sovereign Immunity
Against Claims Seeking Prospective
Enforcement of Constitutional Obligations. ...... 31
3. Even at Common Law, Courts of Equity
Enforced the Crown’s Obligations. .................... 35
C. The Sixth Amendment Imposes an Affirmative
Duty on the States to Provide for Indigent
Defense That Cannot Be Defeated by State
Sovereign Immunity. ................................................... 40
II. Governor Greitens Is A Proper Ex parte Young
Defendant. ............................................................................. 43
III. Governor Greitens Cannot Rely On Legislative
Immunity. .............................................................................. 56
A. Legislative Immunity Is Not Available in an
Official Capacity Suit................................................... 56
B. The Governors’ Unilateral Decisions to Withhold
Money Already Legislatively Allocated to the
MSPD Are Beyond the Boundaries of Legislative
Immunity. ..................................................................... 58
C. Legislative Immunity Is Not Ripe............................... 63
CONCLUSION ........................................................................................ 66
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iv
TABLE OF AUTHORITIES
Page(s)
Federal Cases
281 Care Comm. v. Arneson,

638 F.3d 621 (8th Cir. 2011) ...................................................... 5, 44, 47
Alden v. Maine,
527 U.S. 706 (1999) .............................................................................. 42
Bogan v. Scott-Harris,
523 U.S. 44 (1998) ................................................................ 5, 58, 59, 61
Brown v. Plata,
563 U.S. 493 (2011) ........................................................................ 53, 64
Calzone v. Hawley,
866 F.3d 866 (8th Cir. 2017) ................................................................ 49
Council 31 of AFSCME v. Quinn,

680 F.3d 875 (7th Cir. 2012) ................................................................ 54
Cuyler v. Sullivan,
446 U.S. 335 (1980) .............................................................................. 18
Duit Constr. Co. v. Bennett,

796 F.3d 938 (8th Cir. 2015) ................................................................ 29
Edelman v. Jordan,
415 U.S. 651 (1974) ........................................................................ 22, 54
First English Evangelical Lutheran Church of Glendale v.

Cty. of L.A.,
482 U.S. 304 (1987) .................................................................... 5, 40, 41
Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) .............................................................................. 42
Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997) .............................................................................. 42
Kentucky v. Graham,
473 U.S. 159 (1985) .............................................................................. 57
Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,

523 U.S. 751 (1998) ........................................................................ 38, 39
Kitchen v. Herbert,
755 F.3d 1193, 1202 (10th Cir. 2014) .................................................. 45
Kittle-Aikeley v. Strong,
844 F.3d 727 (8th Cir. 2016) (en banc)................................................ 30
L.A. Cty. Bar Ass’n v. Eu,

979 F.2d 697 (9th Cir. 1992) .......................................... 5, 44, 46, 50, 51
Lapides v. Bd. of Regents,

535 U.S. 613 (2002) ........................................................................ 15, 29
Liddell v. Bd. of Educ. of City of St. Louis,

867 F.2d 1153 (8th Cir. 1989) .............................................................. 53
Luckey v. Harris,
860 F.2d 1012 (11th Cir. 1988) ............................................ 5, 44, 45, 48
Maine v. Moulton,
474 U.S. 159 (1985) .............................................................................. 18
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ............................................................... 36
New Hampshire v. Maine,

532 U.S. 742 (2001) .............................................................................. 63
Okpalobi v. Foster,
244 F.3d 405 (5th Cir. 2001) (en banc)................................................ 50
Papasan v. Allain,
478 U.S. 265 (1986) .............................................................................. 53
Parrish v. Dayton,
761 F.3d 873 (8th Cir. 2014) .......................................................... 52, 65
vi
Percefull v. Claybaker,
211 F. App’x 521 (8th Cir. 2006) (per curiam) .................................... 60
Printz v. United States,

521 U.S. 898 (1997) .............................................................................. 57
Roach v. Stouffer,
560 F.3d 860 (8th Cir. 2009) ............................................................ 5, 57
Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) .......................................................................... 38, 39
Seminole Tribe of Fla. v. Fla. Dep’t of Rev.,

750 F.3d 1238 (11th Cir. 2014) ............................................................ 30
Smyth v. Ames,
169 U.S. 466 (1898) .............................................................................. 28
Stanley v. Darlington Cty. Sch. Dist.,

84 F.3d 707 (4th Cir. 1996) .................................................................. 48
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) .................................................................................. 64
TNT Speed & Sport Center, Inc. v. Am. States Ins. Co.,
114 F.3d 731 (8th Cir. 1997) ................................................................ 31
United Fire & Cas. Ins. Co. v. Garvey,

328 F.3d 411 (8th Cir. 2003) .......................................................... 15, 16
United States v. O’Keefe,

78 U.S. (11 Wall.) 178 (1870) ............................................................... 36
Walters v. Nat’l Ass’n of Radiation Survivors,

473 U.S. 305 (1985) .............................................................................. 18
Woods v. United States,

724 F.2d 1444 (9th Cir. 1984) .............................................................. 48
Ex parte Young,
209 U.S. 123 (1908) ........................................................................ 28, 44
vii
Young v. Mercer Cty. Comm’n,
849 F.3d 728 (8th Cir. 2017) ................................................................ 59
State Cases
Ex parte Ala. Dep’t of Human Resources,

999 So. 2d 891 (Ala. 2008) ................................................................. ..33
Am. Trucking Ass’ns, Inc. v. Conway,

566 A.2d 1323 (Vt. 1989) ..................................................................... 34
Anthony K. v. State,
855 N.W.2d 802 (Neb. 2014) ................................................................ 33
In re Area 25 Public Defender Office,

No. 17PH-CV02226 (Mo. Cir. Ct. Phelps Cty. Jan. 11,
2018) ....................................................................................................... 8
Barrett v. Greitens,
No. WD80837, 2017 WL 6453618 (Mo. Ct. App. Dec. 19,
2017) ..................................................................................................... 63
Bender v. City of Seattle,

664 P.2d 492 (Wash. 1983) .................................................................. 34
Benson v. State,
710 N.W.2d 131 (S.D. 2006)................................................................. 34
Bowles v. State ex rel. Utah Dep’t of Transp.,

652 P.2d 1345 (Utah 1982) .................................................................. 34
Brooks v. State,
128 S.W.3d 844 (Mo. banc 2004) ......................................................... 23
Carson v. Sullivan,
223 S.W. 571 (Mo. banc 1920) ....................................................... 27, 28
Chiles v. Children,
589 So. 2d 260 (Fla. 1991) ............................................................. 62, 63
City & Cty. of S.F. v. Regents of Univ. of Cal.,

11 Cal. App. 5th 1107 (Cal. Ct. App. 2017) ......................................... 34
viii
City of Colo. Springs v. Conners,
993 P.2d 1167 (Colo. 2000) .................................................................. 34
City of East Orange v. Palmer,

220 A.2d 679 (N.J. 1966)...................................................................... 34
City of Kenosha v. State,

151 N.W.2d 36 (Wis. 1967) .................................................................. 33
City of Natchitoches v. State,

221 So. 2d 534 (La. Ct. App. 1969) ...................................................... 34
Claremont Sch. Dist. v. Governor,

761 A.2d 389 (N.H. 1999)..................................................................... 34
Columbia Air Servs., Inc. v. Dep’t of Transp.,

977 A.2d 636 (Conn. 2009) ................................................................... 34
Commonwealth v. Ky. Ret. Sys.,

396 S.W.3d 833 (Ky. 2013)................................................................... 34
Corum v. Univ. of N. Carolina Through Bd. of Governors,

413 S.E.2d 276 (N.C. 1992) .................................................................. 34
Dep’t of Rev. v. Kuhnlein,

646 So. 2d 717 (Fla. 1994) ............................................................. 34, 35
DiGiacinto v. Rector & Visitors of George Mason Univ.,

704 S.E.2d 365 (Va. 2011).................................................................... 34
Eastern Mo. Coalition of Police, Fraternal Order of Police,

Lodge 15 v. City of Chesterfield,
386 S.W.3d 755 (Mo. banc 2012) ......................................................... 31
Edwards v. McNeill,
894 S.W.2d 678 (Mo. Ct. App. 1995) ................................................... 43
Ga. Dep’t of Natural Res. v. Ctr. for a Sustainable Coast,

Inc.,
755 S.E.2d 184 (Ga. 2014) ............................................................. 32, 33
ix
Goines v. Mo. Dep’t of Soc. Servs.,
364 S.W.3d 684 (Mo. Ct. App. 2012) ............................................. 27, 30
In re Hinkebein,
No. SC96089 (Mo. banc Sept. 12, 2017) ................................................ 7
IBM v. Evans,
453 S.E.2d 706 (Ga. 1995) ................................................................... 33
Jones v. State Highway Comm’n,

557 S.W.2d 225 (Mo. banc 1977) ............................................. 17, 25, 33
Kaho’ohanohano v. State,
162 P.3d 696 (Haw. 2007) .................................................................... 34
Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res.,

335 P.3d 1088 (Alaska 2014) ............................................................... 33
Kubley v. Brooks,
141 S.W.3d 21 (Mo. banc 2004) ........................................................... 27
Koplar v. State Tax Comm’n,

321 S.W.2d 686 (Mo. 1959) .................................................................. 23
Leetaru v. Bd. of Trs. of Univ. of Ill.,

32 N.E.3d 583 (Ill. 2015) ...................................................................... 34
Li v. Feldt,
487 N.W.2d 127 (Mich. 1992) .............................................................. 34
Michael E. v. State,
839 N.W.2d 542 (Neb. 2013) ................................................................ 33
Mitchell v. Steffen,
487 N.W.2d 896 (Minn. Ct. App. 1992) ............................................... 34
Nelson v. State,
195 P.3d 293 (Mont. 2008) ................................................................... 34
O’Dell v. Sch. Dist. of Independence,

521 S.W.2d 403 (Mo. banc 1975) ................................................... 25, 26
Ohio Hosp. Ass’n v. Ohio Dep’t of Human Servs.,
579 N.E.2d 695 (Ohio 1991) ................................................................. 34
Patel v. Tex. Dep’t of Licensing & Regulation,

469 S.W.3d 69 (Tex. 2015) ................................................................... 34
Pellegrino v. R.I. Ethics Comm’n,

788 A.2d 1119 (R.I. 2002) .................................................................... 34
Pohl v. State Highway Comm’n,

431 S.W.2d 99 (Mo. banc. 1968) .......................................................... 23
Prager v. State,
20 P.3d 39 (Kan. 2001) ......................................................................... 33
Rocky Mtn. Oil & Gas Ass’n v. State,

645 P.2d 1163 (Wyo. 1982) .................................................................. 34
Rolla 31 Sch. Dist. v. State,

837 S.W.2d 1 (Mo. banc 1992) ............................................................. 23
Ryan v. State,
656 P.2d 597 (Ariz. 1982) ..................................................................... 33
Southers v. City of Farmington,

263 S.W.3d 603 (Mo. banc 2008) ......................................................... 26
State v. Hinds Cty. Bd. of Supervisors,

635 So. 2d 839 (Miss. 1994) ................................................................. 34
State ex rel. Hanosh v. State ex rel. King,

217 P.3d 100 (N.M. 2009) .................................................................... 34
State ex rel. Kansas City Symphony v. State,

311 S.W.3d 272 (Mo. Ct. App. 2010) ............................................. 27, 30
State ex rel. Mo. Dep’t of Agriculture v. McHenry,

687 S.W.2d 178 (Mo. banc 1985) ......................................................... 26
State ex rel. Mo. Pub. Def. Comm’n v. Pratte,

298 S.W.3d 870 (Mo. banc 2009) ..................................................... 4, 18
xi
State ex rel. Mo. Pub. Def. Comm’n v. Waters,
370 S.W.3d 592 (Mo. banc 2012) ......................................................... 19
State ex rel. Regional Justice Info. Serv. Comm’n v. Saitz,

798 S.W.2d 705 (Mo. banc 1990) ......................................................... 26
Tucker v. State,
394 P.3d 54 (Idaho 2017) ............................................................... 32, 34
W. Va. Lottery v. A-1 Amusement, Inc.,

807 S.E.2d 760 (W. Va. 2017) .............................................................. 34
Weinschenk v. State,
203 S.W.3d 201 (Mo. banc 2006) ......................................................... 23
Wilkinsburg Police Officers Ass’n ex rel. Harder v.

Commonwealth,
636 A.2d 134 (Pa. 1993) ....................................................................... 34
Wyman v. Mo. Dep’t of Mental Health,

376 S.W.3d 16 (Mo. Ct. App. 2012) . 4, 14, 16, 17, 18, 20, 21, 25, 27, 30
Constitutional Provisions
Mo. Const. art. I, § 18 ............................................................................... 18
Mo. Const. art. IV, § 1 .............................................................................. 45
Mo. Const. art. IV, § 2 .............................................................................. 45
Mo. Const. art. IV, § 17 ............................................................................ 46
Mo. Const. art. IV, § 27 ............................................................................ 60
Mo. Const. art. IV, § 27.1 ......................................................................... 62
Statutes
Mo. Rev. Stat. § 1.010 ......................................................................... 25, 26
Mo. Rev. Stat. § 27.030 ....................................................................... 46, 49
Mo. Rev. Stat. § 56.010 ............................................................................. 48

xii
Mo. Rev. Stat. § 56.060 ............................................................................. 48
Mo. Rev. Stat. § 106.010 ........................................................................... 46
Mo. Rev. Stat. § 304.230 ........................................................................... 49
Mo. Rev. Stat. § 537.600 ............................................................... 17, 20, 21
Mo. Rev. Stat. § 600.011 ............................................................................. 6
Mo. Rev. Stat. § 600.015(1) ...................................................................... 46
Other Authorities
William Blackstone, Commentaries ............................................. 35, 37, 38
John J. Gibbons, The Eleventh Amendment and State

Sovereign Immunity: A Reinterpretation, 83 Colum. L.
Rev. 1889 (1983) ................................................................................... 36
W.S. Holdsworth, The History of Remedies Against the

Crown, Part I, 38 L.Q. Rev. 141 (1922) ............................................... 38
W.S. Holdsworth, The History of Remedies Against the

Crown, Part II, 38 L.Q. Rev. 280 (1922) ............................................. 37
Carole Lewis Iles, Sovereign Immunity: A Framework for

Applying Current Missouri Law, 51 Mo. L. Rev. 535
(1986) .................................................................................................... 24
Integral, Oxford English Dictionary,

https://tinyurl.com/yab9bo6x (last visited Jan. 17, 2018) .................. 59
Louis L. Jaffe, Suits Against Governments and Officers:

Sovereign Immunity, 77 Harv. L. Rev. 1 (1963) ........................... 36, 37
Dan Margolies, Many Missouri Public Defenders Decline

New Cases After State Supreme Court Disciplines Lawyer,
KCUR (Oct. 6, 2017), https://tinyurl.com/yal48xws ............................. 7
Pawlett v. Atty. Gen.,

145 Eng. Rep. 550, 552 (Ex. 1667) ................................................ 36, 37
xiii
James E. Pfander, Sovereign Immunity and the Right to
Petition: Toward a First Amendment Right to Pursue
Judicial Claims against the Government, 91 Nw. U. L.
Rev. 899 (1997) ............................................................................... 35, 37
James R. Rasband, Equitable Compensation for Public Trust

Takings, 69 U. Colo. L. Rev. 331 (1998) .............................................. 39
The Federalist No. 81 (Alexander Hamilton) (Jacob Ernest

Cooke ed., 1961) ................................................................................... 39
13 Wright & Miller, Federal Practice and Procedure § 3524.3

(3d ed.) ................................................................................................. 30
xiv
INTRODUCTION
Defendants are playing a game of three-card monte, with
Plaintiffs’ Sixth Amendment rights as the money card. Plaintiffs and
the putative class—indigent defendants across the State of Missouri—
lack constitutionally adequate representation due to the crushingly
high caseloads public defenders in Missouri face. But the State of
Missouri and the Governor (the “State Defendants”) claim they are
immune from Plaintiffs’ suit to enforce the State’s affirmative
constitutional obligation to provide adequate counsel. The Director and
Commissioners of the Missouri State Public Defender (the “MSPD
Defendants”) do not assert immunity, but claim that they have done all
they can with the inadequate resources given to them by the State
Defendants.
Unsurprisingly, Defendants’ sleight of hand falls apart on closer
examination. MSPD attorneys cannot provide constitutionally
adequate representation to indigent defendants until their caseloads
are reduced, and therefore they cannot remedy the constitutional crisis
alone. The constitutional duty to provide competent representation to
indigent defendants is an obligation that falls directly on the State
itself, an obligation for which there is no immunity. The State
Defendants’ arguments to the contrary are mere misdirection.
The first card the State Defendants turn over is the State’s
sovereign immunity. But Defendants waived any Eleventh Amendment
immunity when they chose to remove this case to federal court, leaving
them with only the immunity they would be entitled to in Missouri’s
own courts. And under Missouri law, the State has no sovereign
immunity against a claim seeking prospective equitable relief to force it
to comply with an affirmative obligation, such as its obligation to
provide adequate counsel.
The second card the State Defendants show is immunity under
the Ex parte Young doctrine—the Governor argues that he cannot be
sued under Ex parte Young because he has no connection to this
ongoing constitutional crisis. But because the Governor’s immunity
derives from the State’s immunity, he, like the State, has no immunity
against Plaintiffs’ claims. And even if the State were immune from
suit, the Governor still would not be. The Governor has the requisite
connection to this constitutional violation to be sued under the Ex parte
Young exception to sovereign immunity, most strikingly through his
withholding of millions of dollars of legislatively allocated funding from
the MSPD.
The final card the State Defendants turn over in place of the
money card is the Governor’s claimed legislative immunity. But
Plaintiffs have sued the Governor in his official capacity; legislative
immunity is available only in a personal-capacity suit. Even if
legislative immunity were theoretically available here, the Governor’s
arguments are meritless and, as the District Court correctly held, not
ripe for review.
The stakes of this case are far too high to play the State
Defendants’ confidence game. The MSPD’s excessive caseloads make
constitutionally adequate representation of indigent defendants in
Missouri impossible. MSPD attorneys cannot effectively communicate
with their clients, investigate cases, engage in motion practice, prepare
for trial, or perform the other tasks needed for minimally adequate
representation. Indigent defendants often choose to plead guilty rather
than sit in jail for months or years while their attorneys attempt to find
time to defend their cases. And, in the past few months, the indigent-
defense crisis has exploded, with hundreds of defendants across the
State sitting on ever-growing “waitlists” to receive any representation
at all because MSPD attorneys, in keeping with a recent decision of the
Missouri Supreme Court, have stated that they cannot shoulder any
more cases without violating their ethical duties to their existing
clients.
Defendants cannot escape Gideon’s promise and its command.
The Constitution requires the State to provide indigent defendants with
the assistance of counsel before it can deprive them of their liberty.
Immunity provides no refuge from that duty. This Court should affirm
the District Court’s denial of the State Defendants’ motions to dismiss.
STATEMENT OF THE ISSUES
1. Whether the State of Missouri can invoke state-law sovereign
immunity to bar a claim seeking prospective equitable relief to remedy
the State’s failure to comply with its affirmative constitutional
obligation to provide adequate counsel to indigent defendants.
 Wyman v. Mo. Dep’t of Mental Health, 376 S.W.3d 16 (Mo.
Ct. App. 2012)
 State ex rel. Mo. Pub. Def. Comm’n v. Pratte, 298 S.W.3d 870
(Mo. banc 2009)
 First English Evangelical Lutheran Church of Glendale v.
Cty. of L.A., 482 U.S. 304 (1987)
2. If sovereign immunity bars Plaintiffs’ claims against the State,
whether Eric Greitens, Governor of the State of Missouri, has “some
connection” to Defendants’ failure to provide adequate counsel such that
he is a proper defendant to a claim seeking prospective equitable relief
under the Ex parte Young exception to sovereign immunity.
 281 Care Comm. v. Arneson, 638 F.3d 621 (8th Cir. 2011)
 Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988)
 L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697 (9th Cir. 1992)
3. Whether Governor Greitens can rely on absolute legislative
immunity based on his unilateral, post-legislative act of withholding
duly appropriated funds from the MSPD as a complete defense in an
official-capacity suit.
 Roach v. Stouffer, 560 F.3d 860 (8th Cir. 2009)
 Bogan v. Scott-Harris, 523 U.S. 44 (1998)
STATEMENT OF THE CASE
Missouri Is Failing Its Constitutional Obligation to Provide for

Indigent Defense
Public defense in Missouri is in shambles. For decades,
Defendants have failed to carry out the State’s obligation to adequately
represent poor people accused of crimes in Missouri. See JA20-24
(collecting studies).1 That failure has resulted in denial of counsel for
indigent defendants across the State.
The Missouri State Public Defender (MSPD), a state agency, is
charged with representing indigent defendants in criminal and juvenile
detention proceedings throughout the State. Mo. Rev. Stat. § 600.011 et
seq. But the State’s provision of resources and funds to the MSPD is
shockingly inadequate. Missouri spends an average of only $356 per
case, ranking 49th out of 50 states in per capita indigent defense
funding. JA18-19.
Without sufficient support from the State, overstretched and
underresourced MSPD attorneys are forced to handle far too many
1This brief uses “JA” to refer to the Joint Appendix, “Add” to refer to
the State Defendants’ Addendum, and “OB” to refer to the State
Defendants’ Opening Brief.
6
cases and to devote far too few hours to each case. Public defenders in
Missouri average just 8.7 hours in preparing the most serious non-
homicide felonies, amounting to less than 20 percent of the minimum
time recommended by the American Bar Association. JA22-23.
Overall, they are forced to devote fewer than the minimum hours
recommended by the ABA in more than 97 percent of their cases.
JA10, 23.
Since this lawsuit was filed in March 2017, the problem has gotten
worse. In September 2017, the Missouri Supreme Court disciplined a
public defender for violating his ethical obligations to his clients in part
due to his excessive workload. See In re Hinkebein, No. SC96089 (Mo.
banc Sept. 12, 2017). In response, public defenders throughout the
State have begun refusing new appointments on ethical grounds,
leading to waitlists for representation, standoffs with trial judges, and
to the forced appointment of local private counsel. See, e.g., Dan
Margolies, Many Missouri Public Defenders Decline New Cases After
State Supreme Court Disciplines Lawyer, KCUR (Oct. 6, 2017)
https://tinyurl.com/yal48xws. For example, the Presiding Judge of the
25th Judicial Circuit has gone so far as to suggest that public defenders
should work harder because “the law is a jealous mistress”; he has also
recommended implementing a practice of pro se disposition of low-level
felonies. In re Area 25 Public Defender Office, No. 17PH-CV02226, slip
op. at 3-4 (Mo. Cir. Ct. Phelps Cty. Jan. 11, 2018).
Plaintiffs File a Class Action Petition in State Court Seeking

Prospective Equitable Relief
Plaintiffs Shondel Church, Randall Lee Dalton, Dorian Samuels,
Viola Bowman, and Brian Richman were all charged with crimes in
Missouri state court and, as a result of their indigency, were entitled to
representation by the MSPD. JA14-15. 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
MPSD attorneys. JA37-51.
Accordingly, in March 2017, Plaintiffs filed a class-action petition
in Missouri state court seeking injunctive and declaratory relief 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. JA8. That petition named as defendants
the State of Missouri, and, in their official capacities, Governor Eric
Greitens; MSPD Director Michael Barrett; and MSPD Commissioners
H. Riley Bock, Charles R. Jackson, Craig Chval, and A. Crista Hogan.
Plaintiffs claim that based on the State’s systemic failure to
provide for adequate indigent defense, Defendants are violating their
and the putative class members’ right to counsel under the United
States and Missouri Constitutions. Plaintiffs asked the state court to
enter 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. JA59.
The District Court Correctly Denies the State Defendants’

Motions to Dismiss
Although Plaintiffs filed their petition in Missouri state court,
Defendants removed this case to federal court on the basis of federal
question jurisdiction. JA1. Once before the District Court, the MSPD
Defendants filed an answer that pleaded as an affirmative defense that
they have done all they can to meet their obligations and cannot remedy
the ongoing violation of Plaintiffs’ right to counsel. JA682-83.
The State Defendants filed two separate motions to dismiss: one
arguing that the District Court should dismiss for lack of jurisdiction;
the other for failure to state a claim. JA685-727. As relevant here, the
State Defendants argued that: (1) the State of Missouri has sovereign
immunity against Plaintiffs’ claims; (2) Governor Greitens has no
connection to the denial of Plaintiffs’ constitutional rights and so cannot
be sued under the Ex parte Young exception to sovereign immunity; and
(3) the Governor has absolute legislative immunity from suit.
The District Court denied the State Defendants’ motions in
relevant part in a thorough forty-eight-page opinion. Add1-48. With
respect to sovereign immunity, the District Court correctly held that
sovereign immunity was not available as a matter of Missouri law in a
case where, like here, the plaintiffs sought only prospective equitable
relief to enforce the obligations of the State itself. Add23-27.
The District Court also held in the alternative that Governor
Greitens was a proper defendant under the Ex parte Young exception to
sovereign immunity. Add27-30. Finally, because Plaintiffs’ petition
asked only for general equitable relief and because Governor Greitens’
legislative immunity argument potentially implicated only one aspect of
his role as a defendant in this case, namely, his withholding of MSPD
funds, the District Court held that the claims against Governor
Greitens were not barred by absolute legislative immunity. Add39-43.
10
The State Defendants appealed the District Court’s order to this
Court.2
SUMMARY OF THE ARGUMENT
I. The State of Missouri has no sovereign immunity from a claim
seeking prospective equitable relief to enforce the State’s affirmative
constitutional obligation to provide indigent defendants with adequate
counsel. Because the State Defendants removed this case to federal
court, they waived any Eleventh Amendment immunity beyond the
immunity available to them in state court as a matter of state law.
The Missouri Court of Appeals, in the only Missouri case to
address this issue, squarely held that the State cannot invoke sovereign
immunity to defeat a claim seeking prospective equitable relief to
remedy the State’s violation of its duty or obligation. The State’s
constitutional obligation to provide for indigent defense is an
affirmative duty that falls directly on the State itself. Under the
holding of the Missouri Court of Appeals, the State has no immunity
2Plaintiffs also moved in June 2017 for class certification. Dkt. No. 52.
That submitted motion remains pending.
11
against Plaintiffs’ prospective equitable claims to enforce its obligation
to provide adequate counsel.
This Court should follow that decision as the best evidence of state
law. It is consistent with Missouri precedent regularly upholding
injunctive relief against the State, with the majority of other states
similarly holding that state sovereign immunity is not a defense in an
action to enforce constitutional obligations, and with the historical
common law practice of courts of equity granting relief against the
Crown.
Moreover, the State cannot rely on state sovereign immunity to
render unenforceable the obligations it agreed to in the constitutional
compact when it joined the Union. Because the Sixth Amendment
imposes an affirmative duty on the State itself as a matter of federal
constitutional law, the State cannot invoke state sovereign immunity to
sidestep its constitutional obligations.
II. Because the State lacks sovereign immunity against Plaintiffs’
claims for prospective equitable relief, Governor Greitens, who derives
his official immunity from the State, likewise lacks immunity. This
Court therefore need not reach the question of whether the Ex parte
12
Young exception to sovereign immunity applies here. In the event the
Court does reach that issue, however, the District Court correctly held
in the alternative that the Governor has “some connection” to the
State’s failure to provide indigent defendants with adequate counsel
sufficient to make him a proper defendant under the Ex parte Young
exception to sovereign immunity.
The Governor is charged with ensuring that the State complies
with its affirmative constitutional obligations. He appoints all the
MSPD Commissioners. He has unilaterally withheld funds allocated to
the MSPD by law, exacerbating the MSPD’s resource crisis and
inability to provide adequate counsel. And he retains the residual
power to direct the Attorney General and his attorneys to assist in
prosecuting criminal cases. This provides a sufficient connection to the
State’s failure to provide for indigent defense to make the Governor a
proper defendant here.
III. Legislative immunity is irrelevant to this appeal. The
Governor cannot invoke legislative immunity, a personal defense, in
this official-capacity suit. Even if he could, the Governor’s unilateral
decision to withhold funds that the Legislature has already allocated to
13
the MSPD is not a formally legislative act that is integral to the
legislative process and is therefore not within the limited scope of
legislative immunity. Moreover, the District Court correctly held that
because it is unclear whether any final order in this case will require
the Governor to abstain from withholding MSPD funds, this issue is not
yet ripe for review.
ARGUMENT
I. Missouri Cannot Use Sovereign Immunity Against Claims

Seeking Prospective Equitable Relief To Enforce Its
Constitutional Obligations.
The State Defendants cannot rely on state sovereign immunity to
bar Plaintiffs’ claims because, as the Missouri Court of Appeals made
clear in Wyman v. Missouri Department of Mental Health, 376 S.W.3d
16, 23-24 (Mo. Ct. App. 2012), Missouri has no sovereign immunity
under state law for claims that seek prospective equitable relief to
enforce the State’s constitutional obligations. § I.A. This Court should
follow Wyman, which is consistent with Missouri precedent, with
similar precedent from other states, and with the common law
understanding that courts of equity enforced subjects’ rights against the
Crown. § I.B. Moreover, Missouri cannot rely on state sovereign
14
immunity to avoid obligations that the United States Constitution
imposes on the State itself. § I.C.
A. Wyman Holds That Missouri Has No Sovereign

Immunity Where a Plaintiff Seeks Prospective
Equitable Relief to Enforce the State’s Affirmative
“Duty Or Obligation.”
By removing Plaintiffs’ state-filed case to federal court, the State
Defendants waived the protections of Eleventh Amendment immunity
and are limited to the state-law sovereign immunity that Missouri
would be entitled to in its own courts. OB7-8; Lapides v. Bd. of Regents,
535 U.S. 613, 624 (2002). Accordingly, the issue here is whether, under
Missouri law, sovereign immunity bars a claim against the State that
seeks prospective equitable relief to enforce the State’s constitutional
obligation to provide indigent defendants with adequate counsel.
The Missouri Supreme Court has not addressed this question.
OB12. “When a state’s highest court has not decided an issue, it is the
task of this court to predict how the state supreme court would resolve
the issue.” United Fire & Cas. Ins. Co. v. Garvey, 328 F.3d 411, 413
(8th Cir. 2003). In making that prediction, decisions from the Missouri
Court of Appeals, while not binding, “are persuasive authority … [and]
should not be disregarded unless we are convinced by other persuasive
15
data that the highest state court would decide the issue otherwise.” Id.
(internal quotation marks and citations omitted).
Here, there is a Missouri Court of Appeals decision that squarely
addresses the question presented. In Wyman v. Missouri Department of
Mental Health, the Missouri Court of Appeals held that the State
cannot rely on sovereign immunity where the claim seeks prospective
equitable relief to enforce the State’s “duty or obligation.” 376 S.W.3d
at 24. Because Wyman is the “best evidence of what state law is,” this
Court should follow it. Garvey, 328 F.3d at 413.
In Wyman, the plaintiffs were current and former employees of a
state agency. Wyman, 376 S.W.3d at 18. They sued the agency for
violating Missouri anti-discrimination and anti-retaliation laws. Id.
The plaintiffs sought a broad array of remedies against the agency for
these allegedly illegal actions, including damages, a prospective
injunction, and reinstatement of their employment. Id. The trial court
dismissed their petition, holding that sovereign immunity barred all of
their claims. Id.
On appeal, the Missouri Court of Appeals held that although
sovereign immunity applied to the plaintiffs’ damages claims, immunity
16
did not bar their claims for equitable relief. With respect to damages,
the court explained that although the Missouri Supreme Court had
previously abrogated state common-law sovereign immunity for tort
damages in the seminal case of Jones v. State Highway Commission,
557 S.W.2d 225, 230 (Mo. banc 1977), the Missouri General Assembly
had reimposed most of the State’s immunity from tort damages by
statute, codified at Mo. Rev. Stat. § 537.600 et seq., meaning that
sovereign immunity barred the plaintiffs’ damages claims. Wyman, 376
S.W.3d at 19 & n.3.
But the court held precisely the opposite for the plaintiffs’ claims
seeking equitable relief. The court explained that “sovereign immunity
does not necessarily bar a claim for injunctive relief which seeks to
reverse a state agency’s prior violation of its statutory obligations, or to
prevent future violations.” Id. at 23. In Wyman, the plaintiffs alleged
that the State violated a statutory duty not to discriminate against its
employees for exercising their rights. Id. at 24. The court held that this
“‘duty and obligation’ plainly applies to the State …, and we perceive no
reason why sovereign immunity would prevent the State from being
subject to injunctive relief because it failed to comply with this ‘duty
17
and obligation,’ even though the State may not be subject to the ‘civil
action for damages’ created by” the anti-retaliation statute due to
sovereign immunity. Id. The court of appeals vacated the trial court’s
decision to dismiss the equitable claims on sovereign immunity grounds
and remanded for further proceedings on those claims. Id.
Wyman applies in full here. Plaintiffs are suing the State of
Missouri for violating its affirmative duty and obligation to provide
indigent defendants with adequate counsel. This is an obligation that
the Sixth Amendment to the United States Constitution and Article I,
Section 18, of the Missouri Constitution impose directly on the State
itself. See Maine v. Moulton, 474 U.S. 159, 170-71 (1985) (the Sixth
Amendment “imposes on the State an affirmative obligation”); Walters
v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 332 (1985) (the
Sixth Amendment “requires a State prosecuting an indigent to afford
him legal representation for his defense”); Cuyler v. Sullivan, 446 U.S.
335, 343-44 (1980); State ex rel. Mo. Pub. Def. Comm’n v. Pratte, 298
S.W.3d 870, 874-75 & n.4 (Mo. banc 2009) (indigent defendants’ right to
counsel is “a duty which constitutionally is the burden of the State”
(internal quotation marks omitted)).
18
Plaintiffs seek only prospective equitable relief on behalf of the
putative class. Specifically, Plaintiffs have asked for a declaratory
judgment stating that their right to counsel is being violated and an
order enjoining the ongoing violation of their right to counsel and
requiring Defendants to propose a remedial plan to the court. JA59.
Under Wyman, Missouri cannot invoke sovereign immunity to defend
itself from Plaintiffs’ claims for prospective equitable relief. See also
State ex rel. Mo. Pub. Def. Comm’n v. Waters, 370 S.W.3d 592, 607 (Mo.
banc 2012) (“The constitutional right to effective counsel … is a
prospective right ….”).
Faced with the inescapable holding of Wyman—and the fact that
it is the only Missouri case to squarely address this issue—the State
Defendants attempt to distinguish Wyman as inapposite. Their
arguments fail. According to the State Defendants, Wyman “addressed
only the question of whether § 537.600 bars a claim for injunctive
relief,” and its “interpretation of § 537.600 … did not rely on broader
sovereign-immunity principles.” OB15-16. Because “[t]he State does
not rely on § 537.600 in this case … Wyman is inapposite.” OB16.
19
But, as the District Court correctly recognized, the State’s
cramped reading of Wyman is untenable in light of the analysis in
Wyman itself. Add26. The court in Wyman stated that it was rejecting
the State’s “generic” immunity arguments, not merely “interpreting” the
scope of § 537.600’s immunity for tort damages. Wyman, 376 S.W.3d at
24; see also id. at 23 (holding that “general sovereign immunity
principles” did not bar plaintiffs’ equitable claims). The State’s
argument here is flatly contradicted by its brief in Wyman, which
argued, like here, that the plaintiffs’ claims for injunctive relief were
barred because the State had not consented to suit, without citing
§ 537.600. JA804-05.
The State Defendants suggest, oddly, that by limiting its opinion
to only “the general sovereign immunity argument raised by the
Department’s motion to dismiss,” Wyman, 376 S.W.3d at 24, the court
in Wyman was implicitly refusing to consider the argument the State
made in its appellate briefing that general principles of sovereign
immunity, and not just tort immunity under § 537.600, barred equitable
relief. OB15 & n.3. The State Defendants’ effort to confuse the scope of
20
the opinion in Wyman is belied by the full context of the paragraph in
which that sentence appears:
We accordingly reverse the trial court’s dismissal of Wyman’s

claim for equitable relief. We emphasize that our reversal
addresses only the general sovereign immunity argument raised
by the Department’s motion to dismiss. Because the Department’s
motion to dismiss made only a “generic” immunity argument, we
do not decide whether any specific form of equitable relief, or the
financial or other consequences of affording particular relief, may
implicate sovereign immunity. Nor do we address any other
defenses which may be available to Wyman's injunction claim.
Those matters remain open for consideration on remand.
376 S.W.3d at 24 (emphasis added) (footnote omitted).
The Wyman court was not, as the State Defendants contend,
distinguishing between tort damages immunity under § 537.600 and
the broader theory of injunctive immunity that the State pressed in its
appellate briefing to the Wyman court, to the District Court here, and
now to this Court. Rather, the Wyman court distinguished between
addressing the generic availability of sovereign immunity as a complete
defense to claims seeking equitable relief and not addressing the
specific availability of immunity as a defense to specific kinds of relief.
For example, in referencing whether “the financial or other
consequences of affording particular relief[] may implicate sovereign
immunity,” Wyman, 376 S.W.3d at 24, the court was alluding to the
21
impermissibility of using “equitable” remedies like restitution to obtain
the equivalent of retrospective money damages that would otherwise be
barred by sovereign immunity. See Edelman v. Jordan, 415 U.S. 651,
666-68 (1974) (holding Ex parte Young does not allow suits seeking
retrospective monetary relief, even if labeled “equitable”). The State
Defendants ignore the clear text of Wyman.
Wyman holds that where a plaintiff seeks prospective equitable
relief to enforce a “duty or obligation” of the State itself, sovereign
immunity does not apply. The Sixth Amendment and the Missouri
Constitution impose just such a duty. The State Defendants therefore
cannot rely on sovereign immunity to defeat Plaintiffs’ claims.
B. Wyman Is Consistent with Missouri Precedent, with

Other States’ Understanding of State Sovereign
Immunity, and with the Common Law.
As noted above, this Court defers to the decisions of the Missouri
Court of Appeals unless there is “persuasive data” that convinces the
Court that the Missouri Supreme Court would hold otherwise.
Persuasive data here only confirms that the Missouri Supreme Court
would agree with Wyman. Wyman is consistent with the Missouri
Supreme Court’s long history of upholding injunctions against the
22
State. § I.B.1. It is consistent with precedent from a legion of other
states. § I.B.2. And it is consistent with the common law
understanding that, unlike courts of law, courts of equity could
entertain claims seeking relief against the Crown. § I.B.3.
1. Missouri Courts Have Long Entertained

Equitable Claims Against the State Itself.
One reason why Wyman stands as the only reported Missouri case
to address the question of whether the State has sovereign immunity
against claims seeking equitable relief may be because the State
generally does not raise sovereign immunity as a defense to such
claims. Indeed, in at least five cases dating back more than half a
century, the Missouri Supreme Court affirmed or imposed an injunction
that was directed at the State or a state agency. See Weinschenk v.
State, 203 S.W.3d 201, 205 (Mo. banc 2006); Brooks v. State, 128 S.W.3d
844, 847 (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).
The State Defendants note that because the issue of sovereign
immunity was not raised in these cases, they are not binding on this
23
Court (OB16 n.4). But the State Defendants ignore the lesson of these
cases: it is perfectly ordinary as a matter of Missouri law to obtain an
injunction against the State itself that forces the State to comply with
its obligations. See also Carole Lewis Iles, Sovereign Immunity: A
Framework for Applying Current Missouri Law, 51 Mo. L. Rev. 535,
537-38 (1986) (“Suits for declaratory or injunctive relief are not barred
by [the sovereign immunity] doctrine.”). The fact that the Missouri
Supreme Court has never denied an equitable claim against the State
on sovereign-immunity grounds is powerful evidence that Wyman was
correctly decided.
Without any precedent supporting their position, the State
Defendants’ opening brief instead suggests that, absent a statutory
waiver, it may rely on sovereign immunity in all cases. The State offers
a syllogism: only the Missouri legislature can waive sovereign immunity
by statute; Missouri by statute has incorporated the common law; the
Wyman court did not point to any statute waiving common law
sovereign immunity for claims seeking equitable relief; therefore,
Wyman is inapposite. OB11-12.
24
But the key premise of this syllogism—that Missouri state
sovereign immunity is a legislative construct—is wrong. First, the
Missouri Supreme Court has never looked to statutory law alone to
determine the scope of state sovereign immunity. As Wyman notes, the
Missouri Supreme Court in Jones abrogated the common-law doctrine
of sovereign immunity from tort damages on its own accord. Wyman,
376 S.W.3d at 23. At the time Jones was decided, no Missouri statute
governed sovereign immunity. Rather, the Missouri Supreme Court
exercised its judicial power to determine what the common law
required. Jones, 557 S.W.2d at 230 (abrogating tort immunity as
“illogical and unconvincing and not compelled by constitutional
mandate”).
Second, the Missouri legislature’s adoption of English common law
by statute, see Mo. Rev. Stat. § 1.010, does not freeze the common law
into amber as a matter of Missouri law. Jones explains that this
statute merely incorporates the common law by reference as an existing
body of decisional law for the courts to apply; it does not create
statutory substantive law. 557 S.W.2d at 228 (adopting lengthy
treatment of this issue in O’Dell v. Sch. Dist. of Independence, 521
25
S.W.2d 403, 410-22 (Mo. banc 1975) (Finch, J., dissenting)). Because it
establishes only a body of decisional law, Section 1.010 does not require
legislative permission for the judiciary to interpret and develop the
common law. Id. Nothing in Missouri precedent required Wyman to
identify a legislative waiver of the State’s nonexistent immunity for
claims like Plaintiffs’.
In response to Jones, the Missouri General Assembly enacted
what is now § 537.600, which partially reimposed sovereign immunity
for cases involving tort damages. See Southers v. City of Farmington,
263 S.W.3d 603, 609 & n.5 (Mo. banc 2008). But it is only in the limited
context of construing this statutory immunity that courts have held that
any further waiver of that immunity by the State has to come from the
legislature itself. See, e.g., State ex rel. Regional Justice Info. Serv.
Comm’n v. Saitz, 798 S.W.2d 705, 708 (Mo. banc 1990).
In those cases—indeed, in virtually all of the Missouri cases the
State Defendants cite for the general proposition that the State cannot
be sued without its consent (OB9-12)—the question presented was only
whether the legislature had waived statutory immunity to damages like
that in § 537.600. See, e.g., State ex rel. Mo. Dep’t of Agriculture v.
26
McHenry, 687 S.W.2d 178, 182 (Mo. banc 1985). These cases do not
address whether the State could invoke sovereign immunity to bar
prospective equitable relief, which is not derived from any statute.
Cases interpreting the scope of statutory immunity like that in
§ 537.600 are entirely irrelevant to claims seeking prospective equitable
relief only. See Wyman, 376 S.W.3d at 23 & n.8; Kubley v. Brooks, 141
S.W.3d 21, 29 (Mo. banc 2004) (“Section 537.600 deals solely with the
State’s sovereign immunity … in tort ….”).
Recognizing that the bulk of the cases they cite do not even
arguably address the issue of sovereign immunity against equitable
relief, the State Defendants rely heavily on three cases: Carson v.
Sullivan, 223 S.W. 571 (Mo. banc 1920); State ex rel. Kansas City
Symphony v. State, 311 S.W.3d 272 (Mo. Ct. App. 2010); and Goines v.
Missouri Department of Social Services, 364 S.W.3d 684 (Mo. Ct. App.
2012). OB12-14. None of these cases actually address Missouri’s state-
law immunity against claims seeking prospective equitable relief, and
not one undercuts Wyman’s clear and recent holding.
In Carson, the plaintiffs sued Missouri state officials; the State
was not a party to the lawsuit. 223 S.W. at 571. The Missouri Supreme
27
Court upheld the availability of an injunction against the state officials.
Id. In support of its holding, the court cited the decision in Ex parte
Young, which held that the Eleventh Amendment does not bar suits
against state officers in federal court. The court stated in a single
sentence: “It is not to be understood from these [state officer] 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.” Id. (citing Ex parte Young,
209 U.S. 123 (1908); Smyth v. Ames, 169 U.S. 466 (1898)).
But in citing Ex parte Young and other state officer cases to
support its holding, the Carson court did not purport to hold that
Missouri could never be sued for injunctive relief. After all, the State
was not a party to the case and the injunction was upheld. The District
Court correctly recognized that this passing unconsidered dicta from
nearly 100 years ago does not resolve the question presented here and
does not undermine the clear holding of Wyman. Add26-27.
The State Defendants argue that the District Court
misapprehended the import of Carson’s discussion of state-officer suits.
They claim that Carson’s reference to the Ex parte Young doctrine—the
28
federal doctrine governing when state officers can be sued in federal
court—has some bearing on the scope of Missouri’s state-law sovereign
immunity. OB12-13. But the State Defendants overlook the key
premise of Ex parte Young: the Eleventh Amendment (not Missouri law)
provides the basis for the immunity of the State itself, even on claims
for injunctive relief, in federal court. See Duit Constr. Co. v. Bennett,
796 F.3d 938, 940 (8th Cir. 2015). The State Defendants waived the
protections of that Amendment when they chose to remove this case
from state court. Lapides, 535 U.S. at 624.
The State Defendants also argue that the Missouri Court of
Appeals’s decisions in Kansas City Symphony and Goines “would be
entirely inexplicable if the State’s sovereign immunity did not bar
claims for injunctive or declaratory relief.” OB13. But Kansas City
Symphony and Goines are perfectly consistent with Wyman: claims
seeking prospective equitable relief against the State are not barred by
sovereign immunity; claims seeking damages or retrospective relief are.
In Kansas City Symphony, the plaintiff Symphony sought a
declaratory judgment stating that they were owed money retroactively
from the State and an order “requiring the State to pay the delinquent
29
amount.” 311 S.W.3d at 275 (emphasis added). Despite seeking
“equitable” relief in the form of a declaratory judgment, this was clearly
a claim for impermissible retrospective money damages “camouflaged
as an injunction or a declaratory judgment.” Seminole Tribe of Fla. v.
Fla. Dep’t of Rev., 750 F.3d 1238, 1244-45 (11th Cir. 2014); accord
Kittle-Aikeley v. Strong, 844 F.3d 727, 742 (8th Cir. 2016) (en banc),
cert. denied, 137 S. Ct. 2216 (2017). That is precisely the kind of claim
that Wyman implies could be protected by sovereign immunity.
Wyman, 376 S.W.3d at 24. Not only is Kansas City Symphony
consistent with Wyman, Wyman cites Kansas City Symphony in support
of its holding that the State lacks sovereign immunity against claims
seeking prospective equitable relief. Id. at 23 (quoting Kansas City
Symphony, 311 S.W.3d at 276).
Goines is also inapposite. There, the only question was whether
sovereign immunity barred the plaintiff’s demand for attorneys’ fees; no
one disputed that the state agency could be held liable for declaratory
and injunctive relief. Goines, 364 S.W.3d at 685. Attorneys’ fees are an
issue that has long presented a “special problem” for the sovereign
immunity doctrine. See 13 Wright & Miller, Federal Practice and
30
Procedure § 3524.3 & n.66 (3d ed.). But that issue is inapposite to the
question of immunity for claims seeking prospective equitable relief.
In sum, Wyman is consistent with Missouri Supreme Court
precedent upholding equitable relief against the State. The State
Defendants present no “persuasive data” suggesting that the Missouri
Supreme Court would rule differently from Wyman.
2. The Majority of States Have Similarly Held There

Is No State Sovereign Immunity Against Claims
Seeking Prospective Enforcement of
Constitutional Obligations.
Wyman does not make Missouri an outlier. Quite the contrary, in
the majority of states to have considered this issue, sovereign immunity
does not bar a plaintiff from seeking equitable relief against the state
itself to enforce the state’s constitutional obligations. This body of
precedent from other states is further “persuasive data” suggesting that
the Missouri Supreme Court would agree with Wyman. See TNT Speed
& Sport Center, Inc. v. Am. States Ins. Co., 114 F.3d 731, 733-34 (8th
Cir. 1997) (in predicting “what the Missouri Supreme Court would
probably hold … , it [is] entirely proper … to consider relevant
precedents from other jurisdictions”); Eastern Mo. Coalition of Police,
Fraternal Order of Police, Lodge 15 v. City of Chesterfield, 386 S.W.3d
31
755, 762 (Mo. banc 2012) (citing precedent from other jurisdictions to
help resolve question of Missouri constitutional law).
Consider, for starters, the Idaho Supreme Court’s recent decision
in a case very much like this one: Tucker v. State, 394 P.3d 54 (Idaho
2017). There, like here, indigent defendants sued for equitable relief to
enforce Idaho’s constitutional obligation to provide adequate counsel.
The Idaho Supreme Court noted that “many other jurisdictions hold
that sovereign immunity does not apply when constitutional violations
are alleged, as a contrary rule would render constitutional rights
meaningless.” Id. at 61 (collecting cases). Finding these courts’
treatment of the state sovereign immunity persuasive, the court held
that sovereign immunity did not bar the plaintiffs’ claims for equitable
relief. Id. (declining to “leave parties unable to vindicate constitutional
rights against the State”).
The State Defendants cite (OB9) a Georgia case in support of their
argument that sovereign immunity bars claims seeking injunctive relief
against the State. See Ga. Dep’t of Natural Res. v. Ctr. for a
Sustainable Coast, Inc., 755 S.E.2d 184, 188 (Ga. 2014). That case,
while wrongly decided, addressed an injunction based only on state
32
statutory law, not constitutional rights, id. at 185-86; see also infra
§ I.C. And that case overruled prior Georgia precedent on the ground
that Georgia’s sovereign immunity was a matter of state constitutional
law that could not be modified by the courts, 755 S.E.2d at 188-91
(overruling IBM v. Evans, 453 S.E.2d 706 (Ga. 1995)), which is not the
case in Missouri, see Jones, 557 S.W.2d at 230. Georgia is one of only a
handful of states to have held that the state is immune from equitable
relief even where the state’s affirmative constitutional duties are
implicated.3
By contrast, as Tucker suggests, in thirty states plus Missouri—
the overwhelming majority of states to have considered this issue—
state sovereign immunity at the very least does not bar an action
against the state that seeks prospective equitable relief to enforce the
state’s constitutional obligations.4 Many of these opinions, like
3See Ex parte Ala. Dep’t of Human Res., 999 So.2d 891, 895 (Ala. 2008);
Prager v. State, 20 P.3d 39, 57 (Kan. 2001); Anthony K. v. State, 855
N.W.2d 802, 813 (Neb. 2014) (overruling Michael E. v. State, 839
N.W.2d 542, 551 (Neb. 2013)); City of Kenosha v. State, 151 N.W.2d 36,
38-39 (Wis. 1967).
4See Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088,
1095-96 (Alaska 2014); Ryan v. State, 656 P.2d 597, 598-600 (Ariz.
33
Missouri in Wyman and Idaho in Tucker, expressly recognize that a
state cannot escape an equitable action that seeks to enforce its
1982), superseded by statute on other grounds, as recognized in Glazer v.

State, 347 P.3d 1141, 1144 (Ariz. 2015); City & Cty. of S.F. v. Regents of
Univ. of Cal., 11 Cal. App. 5th 1107, 1113 & n.1 (Cal. Ct. App. 2017);
City of Colo. Springs v. Conners, 993 P.2d 1167, 1171-77 (Colo. 2000);
Columbia Air Servs., Inc. v. Dep’t of Transp., 977 A.2d 636, 643 (Conn.
2009); Dep’t of Rev. v. Kuhnlein, 646 So.2d 717, 721 (Fla. 1994);
Kaho’ohanohano v. State, 162 P.3d 696, 731-32 (Haw. 2007); Tucker,
394 P.3d at 61; Leetaru v. Bd. of Trs. of Univ. of Ill., 32 N.E.3d 583, 595-
96 (Ill. 2015); Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833, 840 (Ky.
2013); City of Natchitoches v. State, 221 So. 2d 534, 539 (La. Ct. App.
1969); Li v. Feldt, 487 N.W.2d 127, 132 (Mich. 1992), overruled on other
grounds by Pohutski v. City of Allen Park, 641 N.W.2d 219 (Mich. 2002);
Mitchell v. Steffen, 487 N.W.2d 896, 905-07 (Minn. Ct. App. 1992); State
v. Hinds Cty. Bd. of Supervisors, 635 So. 2d 839, 842 (Miss. 1994);
Nelson v. State, 195 P.3d 293, 296 (Mt. 2008) (Montana waived
sovereign immunity by constitutional amendment); Claremont Sch.
Dist. v. Governor, 761 A.2d 389, 391 (N.H. 1999); Corum v. Univ. of N.
Carolina Through Bd. of Governors, 413 S.E.2d 276, 291-92 (N.C. 1992);
State ex rel. Hanosh v. State ex rel. King, 217 P.3d 100, 102-04 (N.M.
2009); City of East Orange v. Palmer, 220 A.2d 679, 691-92 (N.J. 1966);
Ohio Hosp. Ass’n v. Ohio Dep’t of Human Servs., 579 N.E.2d 695, 700-01
(Ohio 1991); Wilkinsburg Police Officers Ass’n ex rel. Harder v.
Commonwealth, 636 A.2d 134, 137 (Pa. 1993); Pellegrino v. R.I. Ethics
Comm’n, 788 A.2d 1119, 1126 (R.I. 2002); Benson v. State, 710 N.W.2d
131, 140 (S.D. 2006); Patel v. Tex. Dep’t of Licensing & Regulation, 469
S.W.3d 69, 75-76 (Tex. 2015); Bowles v. State ex rel. Utah Dep’t of
Transp., 652 P.2d 1345, 1346 (Utah 1982); DiGiacinto v. Rector &
Visitors of George Mason Univ., 704 S.E.2d 365, 371 (Va. 2011); Am.
Trucking Ass’ns, Inc. v. Conway, 566 A.2d 1323, 1331 (Vt. 1989); Bender
v. City of Seattle, 664 P.2d 492, 497 (Wash. 1983); W. Va. Lottery v. A-1
Amusement, Inc., 807 S.E.2d 760, 772-73 (W. Va. 2017); Rocky Mtn. Oil
& Gas Ass’n v. State, 645 P.2d 1163, 1165-66 (Wyo. 1982).
34
affirmative obligations by invoking sovereign immunity. E.g., Dep’t of
Rev. v. Kuhnlein, 646 So.2d 717, 721 (Fla. 1994) (“Sovereign immunity
does not exempt the State from a challenge based on violation of the
federal or state constitutions, because any other rule self-evidently
would make constitutional law subservient to the State’s will.”); see also
supra n.4.
3. Even at Common Law, Courts of Equity Enforced

the Crown’s Obligations.
Finally, even if the State Defendants were correct that, despite
Wyman, despite the consistent line of Missouri Supreme Court cases
affirming equitable relief against the State, and despite the practice of
the majority of states, the Missouri Supreme Court would simply apply
an ancient version of English common law to the facts here (OB8-10),
the State Defendants still would not prevail. The common law has long
recognized the enforceability of the Crown’s obligations through the
equitable courts of Chancery and Exchequer.
For example, as Blackstone explained, subjects could invoke the
petition of right, through which the Chancery Court exercised its
equitable power to remedy violations of English law by the Crown. See
3 William Blackstone, Commentaries *254-56; accord James E. Pfander,
35
Sovereign Immunity and the Right to Petition: Toward a First
Amendment Right to Pursue Judicial Claims against the Government,
91 Nw. U. L. Rev. 899, 906-12 (1997). “[T]he true meaning of the
English expression ‘the king can do no wrong’ was that the king would
do no wrong, for if he did, the petition of right would set wrongs right.”
John J. Gibbons, The Eleventh Amendment and State Sovereign
Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1895-96 (1983);
accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“In
Great Britain the king himself is sued in the respectful form of a
petition, and he never fails to comply with the judgment of his court.”).5
Similarly, the Court of Exchequer granted equitable relief against
the Crown. In Pawlett v. Attorney General, the Exchequer, resting on
general equitable principles, allowed the plaintiff to sue to secure a
mortgage interest on property that had been forfeited to the Crown.
5 While a petition of right had to be endorsed “soit droit fait,” i.e., let
right be done, by the Crown for Chancery to exercise jurisdiction, that
technical endorsement was given as a matter of law. See United States
v. O’Keefe, 78 U.S. (11 Wall.) 178, 183-84 (1870) (“It is of no consequence
that, theoretically speaking, the permission of the Crown is necessary to
the filing of the petition [of right], because it is the duty of the King to
grant it, and the right of the subject to demand it.”); accord Gibbons,
supra, at 1896; Louis L. Jaffe, Suits Against Governments and Officers:
Sovereign Immunity, 77 Harv. L. Rev. 1, 5 (1963).
36
145 Eng. Rep. 550, 552 (Ex. 1667) (because “the King is the fountain
and head of justice and equity” he cannot be “defective in either”).
Pawlett “relies on the presumptive ‘equity’ of the Crown, rather than on
any royal consent, in its decision to grant injunctive relief in favor of the
petitioner.” Pfander, supra, at 914-15; accord Louis L. Jaffe, Suits
Against Governments and Officers: Sovereign Immunity, 77 Harv. L.
Rev. 1, 6-7 (1963) (“[T]he King was required to do equity ….”); W.S.
Holdsworth, The History of Remedies Against the Crown, Part II, 38
L.Q. Rev. 280, 280 (1922) (Pawlett “clearly recognized that the subject
was entitled to [equitable] relief against the Crown”).
The State Defendants ignore the history of the common law in
favor of tautological slogans. For example, the State Defendants pluck
out of context Blackstone’s statement that “no suit or action can be
brought against the king, even in civil matters,” OB9, which Blackstone
asserted as a response to the notion that the King could be subject to
suit by foreign entities—the emperors of Germany and Rome—as well as
the inability of the King’s common-law courts to exercise jurisdiction
over him. 1 Blackstone, supra, at *242-43; accord Pfander, supra, at
906-07 & n.26. Blackstone even presaged and rejected the State’s
37
misuse of this discussion: “Are then, it may be asked, the subjects of
England totally destitute of remedy, in case the crown should invade
their rights, either, by private injuries, or public oppressions? To this
we may answer, that the law has provided a remedy in both cases.” 1
Blackstone, supra, at *243 (citing the petition of right in Chancery).
And the most important assertion in the State Defendants’ brief
contains no citation to support its sweeping claim: “common-law
sovereign immunity … applies with equal force in cases seeking
equitable relief.” OB9. The State Defendants cite nothing from the
historical English common law showing that subjects could not obtain
relief in the courts of equity for the violation of their rights by the
Crown. Cf. W.S. Holdsworth, The History of Remedies Against the
Crown, Part I, 38 L.Q. Rev. 141, 142 (1922) (“It was recognised in Henry
III’s reign that … the King, as the fountain of justice and equity, could
not refuse to redress wrongs when petitioned to do so by his subjects.”).
The other authorities the State Defendants cite (OB8-9) fare no
better. For Santa Clara Pueblo v. Martinez, the State Defendants
ignore that tribal immunity is analogous to foreign sovereign immunity
and, like foreign immunity, is a matter of federal statutory law that can
38
be waived only by Congress. See 436 U.S. 49, 56-57 (1978); Kiowa Tribe
of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998). Federal tribal
and foreign immunity are irrelevant to the question of Missouri’s state-
law sovereign immunity in its own courts.
The State Defendants cite Hamilton’s statement in Federalist No.
81 that a sovereign is not amenable to suit without its consent, but
again ignore context: Hamilton was countering claims that the
Constitution would allow the states to be sued for damages in the
“foreign” sovereign of the federal courts. See The Federalist No. 81, at
548-49 (Alexander Hamilton) (Jacob Ernest Cooke ed., 1961); see also
James R. Rasband, Equitable Compensation for Public Trust Takings,
69 U. Colo. L. Rev. 331, 371-72 & n.168 (1998) (discussing common-law
sovereign immunity as applied to equitable payments for improvements
on land, i.e., retrospective monetary relief). Plaintiffs seek only
prospective equitable relief, not damages.
The State Defendants invoke the “common law,” but ignore
equity’s power to uphold rights. The State Defendants’ reductionist
view of immunity is contradicted by historical English practice and
understanding of the enforceability of the Crown’s obligations and
39
hardly presents this Court with “persuasive data” that the Missouri
Supreme Court in 2018 would hold that Wyman was wrongly decided.
C. The Sixth Amendment Imposes an Affirmative Duty

on the States to Provide for Indigent Defense That
Cannot Be Defeated by State Sovereign Immunity.
Although the District Court correctly held that Missouri could not
rely on sovereign immunity to defend against Plaintiffs’ claims as a
matter of Missouri law, Plaintiffs also argued in the alternative that the
State Defendants can be sued directly for equitable relief for failing to
comply with a federal constitutional obligation, here, the Sixth
Amendment. JA739 n.3. And although this Court should affirm on the
basis of the Missouri-law arguments described above and need not
reach this issue, this Court can affirm on the basis of any ground
appearing in the record below. Because the Supreme Court has already
stated that state sovereign immunity cannot be used to shirk
affirmative constitutional obligations in First English Evangelical
Lutheran Church of Glendale v. Cty. of L.A., 482 U.S. 304, 316 & n.9
(1987), this Court should likewise hold that state sovereign immunity—
unlike Eleventh Amendment immunity, which was waived in this
40
case—cannot be used to dodge the Sixth Amendment’s affirmative
obligation to provide counsel.
In First English, a landowner claimed that it had suffered a
regulatory “taking” under the Takings Clause based on a regulation
adopted by the County of Los Angeles. Id. at 307. The California courts
held that the landowner was not entitled to damages for a “temporary”
regulatory taking. Id. at 311-12. The Supreme Court reversed. It held
that because the “duty to pay [just compensation was] imposed by the
[Fifth] Amendment,” suits like the landowner’s were “founded upon the
Constitution of the United States” and could not be rejected by the
states. Id. at 315-16. And in reaching this holding, the Supreme Court
rejected the argument by the U.S. Solicitor General, as amicus curiae,
that “the prohibitory nature of the Fifth Amendment, … combined with
principles of sovereign immunity, establishes that the Amendment itself
is only a limitation on the power of the Government to act, not a
remedial provision.” Id. at 316 n.9 (emphasis added).
Because First English is a Takings case, it allows for damages
against the State itself notwithstanding ordinary principles of sovereign
immunity against damages claims. See id. at 315. But the more
41
general rule from First English is clear from its rejection of sovereign
immunity: where the Constitution places an affirmative obligation on
the State itself, the State cannot rely on state sovereign immunity to
defeat a suit that aims to force it to comply with that obligation. See
also Alden v. Maine, 527 U.S. 706, 754-55 (1999) (holding that states
had sovereign immunity against claims for damages created by
Congress, but cautioning that states are “bound by [the] obligations
imposed by the Constitution”); Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 271 (1997) (opinion of Kennedy, J.) (upholding immunity
but “express[ing] no opinion as to the circumstances in which the
unavailability of injunctive relief in state court would raise
constitutional concerns” with respect to “federal guarantees”).
The State Defendants’ assertion that “Plaintiffs brought only
state-law claims against the State of Missouri” is incorrect. OB7 n.2.
Plaintiffs allege that the State Defendants are violating the Sixth
Amendment, JA56—a duty imposed by the federal Constitution, for
which there is an implied right of action for equitable relief. See Free
Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477,
491 n.2 (2010) (there is “a right to [equitable] relief [for constitutional
42
claims] as a general matter, without regard to the particular
constitutional provisions at issue”).
The State Defendants’ contention that the affirmative obligations
imposed by the Constitution on the states may be enforced only by suits
against individual state officers and not the State itself is wrong. The
State Defendants would turn the constitutional pact into nothing more
than a nonbinding memorandum of understanding.
II. Governor Greitens Is A Proper Ex parte Young Defendant.
Because the State has no immunity here, Governor Greitens—
whose ability to invoke sovereign immunity in his official capacity is
entirely derived from the State’s sovereign immunity, see Edwards v.
McNeill, 894 S.W.2d 678, 682 (Mo. Ct. App. 1995)—similarly has no
immunity. The District Court held in the alternative that Governor
Greitens is a proper defendant under the Ex parte Young exception to
sovereign immunity. Because Governor Greitens has no immunity, the
question whether he falls into an exception from immunity is irrelevant,
and this Court need not address the State Defendants’ appeal of this
point.
43
But if this Court were to hold that sovereign immunity applies to
Plaintiffs’ claims against the State and reaches this question, the
District Court correctly held that the Governor is a proper defendant
here. Under Ex parte Young, a private party may seek prospective
injunctive relief against a state official so long as the defendant official
has “some connection with” the constitutional violation. Ex parte
Young, 209 U.S. at 157; accord 281 Care Comm. v. Arneson, 638 F.3d
621, 632-33 (8th Cir. 2011).
The “some connection” test is not a demanding one: the official
“does not need to be [the] primary authority” to enforce the obligation
and he need not “have the full power to redress a plaintiff’s injury.” 281
Care Comm., 638 F.3d at 632-33. Where, as here, a plaintiff claims that
a State has not fulfilled a constitutional duty, the proper question is
whether the state official has some responsibility to “give[] effect” to
that duty. L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992).
Applying this standard, in Luckey v. Harris, the Eleventh Circuit
allowed indigent defendants bringing a systemic Sixth Amendment
claim to sue the governor of Georgia for prospective equitable relief.
860 F.2d 1012, 1016 (11th Cir. 1988). The court held that the governor
44
was a proper defendant there because he was constitutionally
responsible for law enforcement in the state, was charged with
executing the laws faithfully, had the residual power to commence
criminal prosecutions, and had the final authority to direct the Attorney
General to prosecute on behalf of the state. Id.
Similarly, in Kitchen v. Herbert, the Tenth Circuit held that the
Utah governor was a proper defendant in a challenge to a same-sex
marriage ban. 755 F.3d 1193, 1202 (10th Cir. 2014). Although only
county clerks had the power to issue marriage licenses, the governor
was statutorily charged with supervising the official conduct of all
executive and ministerial officers and seeing that all official duties were
performed. Id.
The District Court correctly held that Governor Greitens, like the
governor in Luckey, has “some connection” to the State’s failure to meet
its obligation to provide indigent defendants with adequate counsel.
Add28-30. Governor Greitens possesses “supreme executive power” to
carry out the State’s obligations and is charged with “tak[ing] care that
the laws are distributed and faithfully executed.” Mo. Const. art. IV,
§§ 1-2. He has the power to “direct[] … the attorney general, or one of
45
his assistants [to] aid any prosecuting or circuit attorney in the
discharge of their respective duties in the trial courts.” Mo. Rev. Stat. §
27.030. He appoints all seven members of the MSPD Commission, see
Mo. Rev. Stat. § 600.015(1); Eu, 979 F.2d at 704 (holding California
governor’s power to appoint judges was a sufficient “connection” to the
challenged statute limiting the number of judges in Los Angeles
County), and, contrary to the State Defendants’ contention (OB19), has
the authority to remove those officials, see Mo. Const. art. IV, § 17; Mo.
Rev. Stat. § 106.010.
In addition, Governor Nixon, Governor Greitens’ immediate
predecessor, used his executive authority to impound nearly $7 million
in funding allocated by the legislature to the MSPD, further
exacerbating the ongoing Sixth Amendment violations in Missouri.
JA19. Governor Greitens has since ratified Governor Nixon’s
withholding of funds allocated to the MSPD. JA19, 664. These acts
demonstrate an even more direct “connection” between the Governor
and the ability to provide indigent defendants with adequate counsel
than in Luckey.
46
The State Defendants’ arguments to the contrary miss the mark.
They argue that because Missouri statutory law gives the MSPD
Defendants alone the power to oversee the day-to-day operations of the
MSPD, the Governor cannot be a proper Ex parte Young defendant
because he does not “exercise control over the Public Defender System.”
OB18-19.
But the Ex parte Young test does not require courts to determine
whether the official “exercises control” over the carrying out of the
challenged action. Rather, the test is whether the defendant has “some
connection” with the claimed violation, even if he is not solely
responsible, and even if he alone cannot afford the plaintiffs complete
relief. 281 Care Comm., 638 F.3d at 632-33. The Governor’s connection
here satisfies that standard.
Moreover, whether the Governor exercises control over the MSPD
as a matter of statutory law is irrelevant. Plaintiffs’ claim is not merely
that Defendants have failed to carry out a statutory obligation to
provide for indigent defense. Plaintiffs’ claim is that the Governor,
along with the other Defendants, has failed to “give effect” to the State’s
constitutional obligation to provide for indigent defense.
47
The State and the Governor cannot delegate a constitutional
obligation to an agency and then wash their hands of any responsibility
when that agency is hamstrung from executing that duty. See, e.g.,
Stanley v. Darlington Cty. Sch. Dist., 84 F.3d 707, 713 (4th Cir. 1996)
(state’s delegation of remedying segregation to local school districts
“does not absolve the state of its responsibility to ensure that the
violation is remedied”); accord Woods v. United States, 724 F.2d 1444,
1447 (9th Cir. 1984). Because the Governor has “some connection” to
the State’s ultimate failure to provide indigent defendants with
adequate counsel, he is a proper Ex parte Young defendant.
Next, the State Defendants’ efforts to distinguish Luckey fail. The
State argues that while the Georgia governor had authority to
commence and control criminal prosecutions, Governor Greitens does
not; only the Attorney General and local prosecuting attorneys do.
OB23 (citing Mo. Rev. Stat. §§ 56.010, 56.060). But these alleged
differences in the governors’ authority in Georgia and Missouri are
overstated. In Luckey, the Eleventh Circuit noted that the governor
“has the final authority to direct the Attorney General to ‘institute and
prosecute’ on behalf of the state.” Luckey, 860 F.2d at 1016. Similarly
48
here, Missouri law retains a residual role for the Governor in criminal
prosecutions: he may “direct[] … the attorney general, or one of his
assistants [to] aid any prosecuting or circuit attorney in the discharge of
their respective duties in the trial courts.” Mo. Rev. Stat. § 27.030.
The State Defendants also argue that Luckey was wrongly
decided, as it would “substantially undermine” the “some connection”
requirement and conflict with this Court’s precedent. OB24 (citing
Calzone v. Hawley, 866 F.3d 866, 870 (8th Cir. 2017)). Not so. In
Calzone, the plaintiffs challenged a statute allowing highway patrol
officers to conduct vehicle inspections as violating the Fourth
Amendment. 866 F.3d at 868-69 (citing Mo. Rev. Stat. § 304.230).
Because, however, the statute delegated enforcement exclusively to the
superintendent of the highway patrol, this Court held that only the
superintendent had a sufficient connection to the statute to be a proper
defendant under Ex parte Young. Id. at 870. The Governor was not a
proper defendant because he has no connection to the statute, not
because the superintendent “exercised control.” Id.
Unlike the statute in Calzone, the State’s constitutional obligation
to provide adequate counsel—and the Governor’s role in its failure to do
49
so—cannot be delegated exclusively to the MSPD. The State
Defendants’ citation to other cases involving the enforcement of statutes
is similarly inapposite. See, e.g., Okpalobi v. Foster, 244 F.3d 405, 421
(5th Cir. 2001) (en banc) (holding governor had no connection to statute
that could be enforced only by private litigants in civil litigation).
The State Defendants next argue that the Governor’s ability to
appoint the MSPD Commissioners is irrelevant, distinguishing Eu as a
case that directly challenged the governor’s ability to make judicial
appointments. OB25-26. But this argument ignores the reasoning
undergirding Eu. In Eu, the plaintiffs challenged the California
legislature’s limit on the number of judges for Los Angeles County. 979
F.2d at 700. The defendant governor and secretary of state, like the
Governor here, argued that it was the legislature—not executive branch
officials—that had the power to determine the appropriate number of
judges to be assigned to each county and claimed immunity from suit
based on their lack of connection to the establishment of the limit on
judges. Id. at 701, 704.
The Ninth Circuit rejected those arguments. Id. at 704. It held
that the governor’s power to appoint judges and the secretary of state’s
50
duty to certify judicial elections was a sufficient connection to the
challenged system—even though neither official had the power to
directly increase the number of judges. Id. Similarly here, although
the Governor alone cannot solve the indigent defense crisis in this state,
his role in the ongoing violation of those Sixth Amendment rights
through his appointment of MSPD Commissioners, in addition to his
ability to profoundly affect MSPD caseloads, is sufficient for Ex parte
Young purposes. Unlike the cases State Defendants cite (OB24-26),
Plaintiffs are not suing Governor Greitens merely as a surrogate for the
State; he has the power to remedy, at least in some significant measure,
the ongoing violation of Plaintiffs’ constitutional rights.
Finally, the State Defendants argue that the Governor’s unilateral
decision to withhold funds already appropriated to the MSPD by the
Governor does not bring him within the scope of the Ex parte Young
doctrine. But the State Defendants cite no case to support the notion
that a state official interfering with a state agency’s attempt to execute
a constitutional obligation lacks the requisite “connection” for purposes
of Ex parte Young.
51
The State Defendants argue that an injunction prohibiting the
Governor from reducing legislatively approved appropriations would be
barred by the Eleventh Amendment because the “essence of the relief
sought” would be payment from the State treasury. OB27-28. But
because the District Court has not yet issued an injunction in this case
restraining the Governor, this argument is not ripe for review. See
Parrish v. Dayton, 761 F.3d 873, 875-76 (8th Cir. 2014); see also infra
§ III.C (discussing the same argument in the context of legislative
immunity).
Moreover, even if the Court were to address the issue now, the
State Defendants’ argument is meritless. Plaintiffs are not asking
Defendants to pay them or the class any money. They are asking for
the State to provide adequate counsel to indigent defendants in the
State of Missouri. That may require more State expenditures—to hire
more public defenders, provide existing defenders with more resources,
and so on. And it may not require more expenditures—if MSPD
caseloads are reduced through other means, existing resources may be
sufficient to provide Plaintiffs with constitutionally adequate counsel.
52
Either way, where the State or its officers are violating
constitutional obligations, federal district courts have broad equitable
powers to fashion injunctive remedies—including funding obligations—
that will coerce the State into complying with its constitutional duties.
See Liddell v. Bd. of Educ. of City of St. Louis, 867 F.2d 1153, 1155 (8th
Cir. 1989) (“This court has repeatedly held, however, that imposition of
state funding obligations as part of a comprehensive constitutional
remedy does not violate the eleventh amendment.”); accord Brown v.
Plata, 563 U.S. 493, 538, 545 (2011) (upholding injunction to build more
prisons or release prisoners in Eighth Amendment challenge to
California’s prison system); Papasan v. Allain, 478 U.S. 265, 278, 282
(1986) (holding remedy to eliminate disparity in educational funding in
violation of equal protection, “even a remedy that might require the
expenditure of state funds,” was not barred by the Eleventh
Amendment).
In short, Plaintiffs seek adequate counsel, not money. Whatever
money is spent to comply with the constitutional obligation to provide
adequate counsel is ancillary to the overarching remedial goal:
providing Plaintiffs and the class with constitutionally adequate
53
counsel. Accordingly, any future order requiring the Governor to
refrain from impounding funds allocated to the MSPD would be a
proper exercise of the District Court’s broad equitable power to remedy
ongoing constitutional violations.
No case the State Defendants cite stands to the contrary. They
merely reaffirm the uncontroversial proposition that a plaintiff cannot
use “equitable” relief to force the State to pay him money directly. In
Council 31, the plaintiff union sought an injunction that would require
the State to pay its members owed wage increases. Council 31 of
AFSCME v. Quinn, 680 F.3d 875, 878 (7th Cir. 2012). In Edelman, the
plaintiff class sought an injunction that would retroactively pay them
benefits they argued were wrongly withheld. 415 U.S. at 656. Plaintiffs
are not asking for any money that would go to them—any funding
required here would be for the purpose of enabling the State to provide
adequate defense to indigent defendants.
Finally, consider the upshot of Defendants’ combined positions.
According to the State Defendants, the State is absolutely immune as a
matter of Missouri law, notwithstanding Wyman. According to
Governor Greitens, because Missouri statutory law delegates the duty
54
to provide indigent defendants with adequate counsel to the MSPD, he
cannot be sued under Ex parte Young. And according to the MSPD
Defendants, although they can be sued under Ex parte Young, the
actions of the State and the Governor have tied their hands—they are
doing what they can to provide counsel and can do no more.
Moreover, playing a late attempt at a trump card, the State
Defendants filed a motion before the District Court—the day before
Plaintiffs’ brief was due to this Court and nearly a year after Plaintiffs
filed this lawsuit—seeking to realign the MSPD Defendants as
plaintiffs. Dkt. No. 134. The State Defendants’ position is apparently
not only that they are they immune from suit; in their view there is no
proper state official Plaintiffs can sue to enforce the State’s
constitutional obligation to provide adequate counsel.
This is a hustle. Defendants’ array of defenses cannot turn the
State’s Sixth Amendment obligation into a right that has no remedy.
Given his role in this crisis, Governor Greitens has no sovereign
immunity here.
55
III. Governor Greitens Cannot Rely On Legislative Immunity.
Finally, Governor Greitens argues that even if he has no sovereign
immunity here, absolute legislative immunity bars any claim that
might interfere with his ability to withhold funds that the legislature
has already allocated to the MSPD. But legislative immunity is a
personal defense that is not available to Governor Greitens in this
official-capacity suit. § III.A. Even if the defense were hypothetically
available to the Governor here, the Governor’s unilateral decision to
impound funds allocated to the MSPD is not an act entitled to
legislative immunity. § III.B. Finally, because at this juncture in the
case it is not clear whether a reparative injunction will require
restricting the Governor from impounding funds allocated to the MSPD,
this argument is not ripe for this Court’s interlocutory review. § III.C.
A. Legislative Immunity Is Not Available in an Official

Capacity Suit.
Plaintiffs have sued Governor Greitens in his official capacity as
Governor of the State of Missouri. JA15. But legislative immunity “is a
personal defense that is available only when officials are sued in their
individual capacities; the immunities officials enjoy when sued
personally do not extend to instances where they are sued in their
56
official capacities.” Roach v. Stouffer, 560 F.3d 860, 870 (8th Cir. 2009)
(internal quotation marks omitted); accord Kentucky v. Graham, 473
U.S. 159, 167 (1985). In Roach, this Court held that Missouri
legislators sued in their official capacities could not claim the defense of
personal legislative immunity. 560 F.3d at 870. Similarly here,
Governor Greitens cannot invoke the personal defense of absolute
legislative immunity.
The State Defendants’ efforts to distinguish Roach fail. They
argue that in Roach, the plaintiffs sued to enjoin enforcement of a state
statute as facially unconstitutional, “a judgment effectively against the
State,” whereas here the Governor may be enjoined from exercising his
constitutionally authorized discretion in a particular way. OB30 n.5.
There is no basis in law for holding that, although personal defenses
like legislative immunity cannot be employed in facial official capacity
suits, they can still be used in as-applied official capacity suits. See
Printz v. United States, 521 U.S. 898, 930-31 (1997) (“a directive to an
official in his or her official capacity” is “no different from a suit against
the State itself”). Accordingly, if this Court reaches this unripe issue,
see infra III.C, it should hew to Roach and hold that legislative
57
immunity is unavailable to the Governor here as he is sued in his
official capacity for prospective injunctive relief.
B. The Governors’ Unilateral Decisions to Withhold

Money Already Legislatively Allocated to the MSPD
Are Beyond the Boundaries of Legislative Immunity.
Even if legislative immunity could apply here, which it cannot, the
Governor’s unilateral decision to impound money that has already been
allocated to executive agencies by the legislature is not protected by
legislative immunity. Although legislative immunity may be invoked
by executive officials, that immunity is implicated only when the
challenged action implicates the concern—reflected in the common law
and in Article I’s Speech and Debate clause—that legislators be
insulated from personal liability for acts taken in the process of
advancing democracy through the legislature. Bogan v. Scott-Harris,
523 U.S. 44, 48-54 (1998).
Legislative immunity is thus a limited form of immunity. As the
Supreme Court explained in Bogan, the defendant executive’s act must
be “formally legislative” such that it is an “integral step[] in the
legislative process.” Id. at 55. In Bogan itself, the relevant act was
introducing a budget and signing into law an ordinance. Both of those
58
acts were “integral” to the legislative process because, without them,
the relevant legislation could not be enacted. See Integral, Oxford
English Dictionary, https://tinyurl.com/yab9bo6x (last visited Jan. 17,
2018) (“necessary to the completeness or integrity of the whole”). The
Court cited examples of similar cases involving acts that were
“integral”—i.e., necessary—to the legislative process, such as signing or
vetoing a pending bill. Bogan, 523 U.S. at 55; accord Young v. Mercer
Cty. Comm’n, 849 F.3d 728, 733 (8th Cir. 2017).
Second, Bogan also suggested, but did not decide, that to qualify
for legislative immunity the act needed to be not only “formally
legislative” but also legislative in substance. The Court explained:
We need not determine whether the formally legislative character

of petitioners’ actions is alone sufficient to entitle petitioners to
legislative immunity, because here the ordinance, in substance,
bore all the hallmarks of traditional legislation. The ordinance
reflected a discretionary, policymaking decision implicating the
budgetary priorities of the city and the services the city provides
to its constituents.
523 U.S. at 55-56 (emphasis added).
Under Bogan, the Missouri Governor’s unilateral power to
withhold money already allocated to the MSPD by legislative enactment
is not “formally legislative” because it is not “integral” to the legislative
59
process. Governor Nixon directed his executive branch’s Office of
Administration to withhold money already allocated to the MSPD by
legislation. JA19, 817, 840. As the State Defendants concede (OB35),
Governor Nixon claimed the ability to withhold that money under
Article IV, Section 27 of the Missouri Constitution, which specifically
gives the Governor alone the authority to reduce expenditures by state
agencies if actual revenues fall below estimated revenues. After
Governor Greitens assumed office, he refused to release these withheld
funds. JA19, 664.
Nothing about the exercise of this power is “integral” to the
legislative process—that process was complete when the legislature
passed and the Governor signed the appropriations bill allocating these
funds to the MSPD in the first place. JA816-17, 824, 833. Nothing
about the Governor’s decision to reduce state expenditures after the fact
changes the validity of or is necessary to the enactment of that duly-
passed legislation. This is merely an order from the Chief Executive to
an executive agency to take an executive act in withholding allocated
funds. See Percefull v. Claybaker, 211 F. App’x 521, 523 (8th Cir. 2006)
60
(per curiam) (“Legislative immunity … has no application where an
executive official orders the performance of executive tasks.”).
The State Defendants’ argument to the contrary rests on
conflating the question of whether the Governor’s act is “formally
legislative,” i.e., whether it is “integral to the legislative process,” with
whether it is substantively legislative, i.e., whether it is a
“policymaking” decision typically within the legislative sphere. For
example, the State Defendants suggest (OB32) that because the
ordinance the mayor signed in Bogan was a “discretionary,
policymaking decision implicating the budgetary priorities of the city,”
523 U.S. at 55-56, it was “integral” to the legislative process. But that
ignores the Supreme Court’s actual analysis, which held first that by
signing the ordinance, thereby duly enacting it, the Mayor’s act was
“formally legislative” and an “integral step[] in the legislative process.”
Id. at 55. The Court did not decide whether that formal character was
alone sufficient to invoke immunity because it was also substantively
legislative as a policymaking decision. Id. at 55-56. But regardless of
whether it is a substantively legislative policymaking decision, the act
61
must be formally legislative in character. Here, the Governor’s act is
not.
The State Defendants’ brief explains that to enact appropriations,
Missouri law requires the legislature to pass an appropriations bill and
the Governor to sign or veto that bill, and that the Governor’s decision
to sign or veto is legislative. OB33. No dispute here—had the Governor
vetoed the appropriations bill or exercised his line-item veto power to
reduce appropriated expenditures before that appropriations bill was
duly enacted into law, that would have been a legislative act.
What the State Defendants never explain, however, is why the
power to later impound duly-legislated appropriations after a bill is
enacted into law is still “integral” to the legislative process. They
simply assert that the Governor’s “appropriation-reduction power is
functionally legislative.” OB33. But when the appropriations bill is
enacted, the legislative function is complete. See Mo. Const. art. IV, §
27.1 (“The governor … may reduce the expenditures of the state or any
of its agencies below their appropriations.” (emphasis added)).6
6The State Defendants cite Chiles v. Children, 589 So.2d 260, 265 (Fla.
1991), to argue that the power to reduce appropriations is “legislative.”
62
Moreover, when the MSPD sued Governor Nixon in 2016 for
withholding these funds as violating the separation-of-powers doctrine,
the Governor contended that both the MSPD’s function and his
authority to withhold funding were executive powers. JA856-57. He
prevailed on that argument, JA845-46, and Governor Greitens, who was
automatically substituted for Governor Nixon in his official capacity,
recently prevailed on appeal, see Barrett v. Greitens, No. WD80837,
2017 WL 6453618, at *5-6 (Mo. Ct. App. Dec. 19, 2017). Judicial
estoppel precludes the Governor from now arguing a contrary position
to this Court. See New Hampshire v. Maine, 532 U.S. 742, 749-51
(2001).
C. Legislative Immunity Is Not Ripe.
The District Court correctly recognized that because Plaintiffs’
requested injunction does not necessarily require the court to enjoin the
Governor from withholding funds allocated to the MSPD, the issue of
OB33. But in Chiles, the Florida Supreme Court merely held that the
Florida legislature had violated its separation-of-powers doctrine by
delegating its exclusive legislative power to reduce appropriations to the
governor. 589 So.2d at 265-66. It is not an immunity case and is
irrelevant to interpreting the Missouri Governor’s constitutionally
exclusive executive power to withhold duly-appropriated funds from
agencies.
63
whether that act is protected by legislative immunity is not yet ripe.
Add42-43. Defendants accuse Plaintiffs of leaving their request for
relief “vague and indefinite” as a way to avoid a ruling on legislative
immunity. OB36. Not so. Plaintiffs asked the District Court to:
1) Declare that Defendants are violating their right to counsel;
2) Enjoin Defendants from continuing to violate their right to
counsel; and
3) Require Defendants to propose to the court a plan for how they
will comply with the court’s injunction and their obligation to
provide adequate counsel.
JA59.
There is nothing “vague or indefinite” about requiring the State to
explain how it will meet its constitutional duty, rather than forcing the
court or Plaintiffs to guess or to require more coercive steps to compel
compliance in the first instance. Plaintiffs seek a definitive ruling from
the District Court while also properly allowing Defendants to first
determine how best to achieve an ultimate remedy. See, e.g., Brown,
563 U.S. at 506-10; Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 (1971).
64
Whether this case will restrain the Governor in a way that
implicates the Governor’s purported legislative immunity for
impounding MSPD funds is therefore not only speculative and unripe,
but is within Defendants’ control in the first instance. There is no
reason for this Court, on an interlocutory appeal from a collateral order,
to provide an advisory opinion on whether or not impounding MSPD
funds would implicate legislative immunity. See Parrish, 761 F.3d at
875-76.
Moreover, the State Defendants are wrong to suggest that any
purported legislative immunity for the act of withholding funds renders
the Governor absolutely immune from Plaintiffs’ claims. The State
Defendants imply that because “[u]nderlying every critical allegation of
this lawsuit is the contention that the State has not adequately funded
the public-defender system,” and because the “only role” the Governor
plays in this underfunding is withholding appropriated funds, the
Governor is absolutely immune from suit. OB32-33. But, as explained
supra, § II, this is not a lawsuit for money.
The “critical allegation” of Plaintiffs’ claims is that the State is
systemically failing to provide indigent defendants in Missouri with
65
adequate counsel. This failure is caused by excessive caseloads, which
in part can be traced to inadequate funding. But the funding issues do
not change the heart of Plaintiffs’ claims: whatever the explanation
may be, Defendants have failed to meet their constitutional duty to
provide the putative class with adequate counsel. Even if the
Governor’s legislative immunity defense to withholding funds were ripe
and correct on the merits, it is not an absolute defense to the Governor’s
overarching failure to carry out this constitutional command.
CONCLUSION
This Court should affirm the District Court’s order denying the
State Defendants’ motions to dismiss on immunity grounds and dismiss
the unripe portions of the appeal.
Respectfully submitted,
/s/Anthony Rothert
Jason D. Williamson Anthony Rothert
ACLU FOUNDATION Jessie Steffan
125 Broad Street ACLU OF MISSOURI
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ORRICK, HERRINGTON & MACARTHUR JUSTICE CENTER
66
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supervised by members of the
firm
January 19, 2018
67
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App.
P. 32(a)(7)(B)(i) because this brief contains 12,900 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word 2010 in Century Schoolbook 14-point font.
This brief has been scanned for viruses pursuant to Eighth Circuit
Local Rule 28A(h)(2) and is virus-free.
ACLU OF MISSOURI FOUNDATION
/s/ Anthony Rothert

Anthony Rothert
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Eighth
Circuit by using the appellate CM/ECF system on January 19, 2018.
I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF
system.
ACLU OF MISSOURI FOUNDATION
/s/ Anthony Rothert

Anthony Rothert

2018.01.22 Church v. Missouri Red Brief

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No.

STATE OF MISSOURI AND ERIC GREITENS,

On Appeal from the United States District Court for

BRIEF FOR PLAINTIFFS-APPELLEES

Jason D. Williamson Anthony Rothert

Counsel for Plaintiffs-Appellees

*Bar admission pending;

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