IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JOAN BRAY,
Respondent,
v.
GEORGE LOMBARDI, ET AL.,
Appellants.
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS, ET AL.,
Respondents,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS,
Appellant.
GUARDIAN NEWS & MEDIA,
LLC, ET AL.,
Respondents,
v.
MISSOUR DEPARTMENT OF
CORRECTIONS,
Appellant.

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No. WD79893

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No. WD79894

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No. WD79895

 MOTION TO INTERVENE
Proposed Intervenor M7,1 by and through undersigned counsel, and for its Motion
to Intervene, states as follows:
I.

Introduction
Less than two weeks after learning that various actions have been filed seeking to

compel disclosure of the identity of Missouri’s suppliers of drugs for lethal injections
pursuant to Missouri’s Sunshine Law, M7, a supplier of lethal chemicals, moves to
intervene pursuant to protect M7’s First and Fourteenth Amendment rights to freedom of
speech, which encompasses M7’s First Amendment right to anonymity. Specifically, the
current action involves the appeal of three trial court judgments concerning the disclosure
of the identity of suppliers of the drug pentobarbital used to administer lethal injections in
Missouri. (LF164-68; 413-21; 624-26). The information was sought through requests for
public information made by the Respondents on the Missouri Department of Corrections
(“Department”) under Missouri’s Sunshine Law, RSMo §§ 610.010, et seq. (LF16; 249;
450-53) (“Requests”). The Department responded to the Requests indicating that records
that could reveal identities of the suppliers of pentobarbital were closed under § 546.720,
which prohibits the disclosure of the identity of a member of an execution team. (LF19;
264; 496). After the Respondents filed suit for violation of the Sunshine Law, the trial
court determined that suppliers of lethal injection drugs are not members of the execution

1

Contemporaneous with this Motion to Intervene, M7 has filed a Motion to Proceed

Anonymously under the pseudonym M7.
2

 team protected under § 546.720 and therefore ordered the disclosure of records
identifying the suppliers, who have been identified under the pseudonyms “M6” and
“M7.” (LF414). The Department has appealed these decisions, and M7 now seeks to
intervene in this appeal in order to assert its interests in protecting the disclosure of M7’s
identity. M7 learned of these appeals less than two weeks ago and was unable to assert
its rights in the trial court.
If this Court requires the Department to disclose the name of M7 in response to the
Requests, M7’s economic and physical well-being will be placed directly in jeopardy and
M7’s constitutional First and Fourteenth Amendment First Amendment rights, including
the right to anonymity, will be violated. Pursuant to Missouri Supreme Court Rule
52.12(a)(2) and (b), M7 is entitled to mandatory, or alternatively, permissive, intervention
in this matter in order to assert a claim that disclosure under the Sunshine Law will be
unduly burdensome and subject M7 to financial retribution and harassment and violate
M7’s First and Fourteenth Amendment rights to freedom of speech.
II.

Argument
The right to intervene in Missouri actions is governed under Missouri Rule of

Civil Procedure 52.12, which provides intervention by right or by permission. The
provisions of Rule 52.12 also apply to appellate courts pursuant to Rule 41.01(a)(1).
Pursuant to Rule 52.12(a)(2), which governs intervention by right, “anyone shall be
permitted to intervene in an action” “when the applicant claims an interest relating to the
property or transaction that is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or impede the applicant’s
3

 ability to protect that interest, unless the applicant’s interest is adequately represented by
existing parties.”
To intervene as a matter of right, the movant must prove all of the following
requirements are met: (1) the applicant must have an interest in the subject matter; (2) a
disposition of the action may impede the ability of the applicant to protect that interest;
and (3) the applicant’s interests are not adequately represented by the existing parties.
Allred v. Carnahan, 372 S.W.3d 477, 481 (Mo. Ct. App. W.D. 2012).

“When an

applicant satisfies the elements, the right to intervene is absolute, and the motion to
intervene may not be denied.” McMahon v. Geldersma, 317 S.W.3d 700, 705-06 (Mo.
Ct. App. W.D. 2010). This Court has held that the Rule 52.12 “should be liberally
construed to permit broad intervention.”

State ex rel. St. Joseph, Mo. v. Ass’n of

Plumbing, Heating and Cooling Contractors, Inc. v. City of St. Joseph, 579 S.W.2d 804,
806 (Mo. Ct. App. W.D. 1979). Here, M7 meets all of these elements.
First, M7 undoubtedly has a recognized interest in the subject matter of the
appeals. The appeals squarely address the issue of whether the identity of suppliers of
drugs used for lethal injections in Missouri is subject to disclosure under the Sunshine
Law. M7 is the supplier whose identity will be revealed if the trial court’s judgments are
affirmed and the requested records are disclosed. Accordingly, M7 has a direct interest in
the outcome of the appeals.
More importantly, M7’s interest may be impaired as a result of the outcome of
these appeals. If the trial court’s judgments are affirmed, disclosure of M7’s identity will
unduly burden M7 by subjecting M7 to harassment and economic reprisals at the hand of
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 anti-death penalty advocates. Courts have recognized that revealing the identity of the
supplier often leads to pressure from death-penalty opponents to pressure and harass drug
suppliers to refuse to sell drugs used for lawful executions. For example in In re
Lombardi, 741 F.3d 888, 894 (8th Cir. 2014), the Eighth Circuit cited to a letter in the
record “from a compounding pharmacy in Texas that demanded the Texas Department of
Criminal Justice return a supply of compounded pentobarbital sold for use in executions,
because of a ‘firestorm,’ including ‘constant inquiries from the press, the hate mail and
messages,’ that resulted from publication of the pharmacy’s identity.” Indeed, the
plaintiffs in the underlying case in In re Lombardi, a group of death row inmates in
Missouri, alleged that maintaining confidentiality prevented “’the suppliers’ associations,
customers, and prescribing or referring physicians from censoring or boycotting them,’
and unreasonably restricts the associations of health-care professionals ‘from decertifying or otherwise censuring them or boycotting them.’” Id. at 889-90. See also
Zink v. Lombardi, 783 F.3d 1089, 1106, 1113 (8th Cir. 2015) (en banc); Landigran v.
Brewer, 625 F.3d 1132 (9th Cir. 2010) (noting that twenty-four hours after state attorney
general conceded that lethal drug was imported from Great Britain, one journalist
suggested that the supplier might be criminally liable under EU regulation) (dissenting
opinion).

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 Indeed, as set forth in M7’s Declaration, attached hereto as Exhibit A,2 if the
appeals are affirmed and M7’s identity is revealed, M7 will cease supplying Missouri
with pentobarbital in order to prevent retribution, both physical and financial, from deathpenalty opponents. If the trial court’s judgments are affirmed, M7 will, at best, be forced
to cease its lawful sale of prescription drugs to the state of Missouri and, at worst, be
subjected to personal retribution from death-penalty opponents.

M7’s interests in

protecting its identity as a supplier of lethal injection drugs is undeniably at stake in this
proceeding, and, unless this Court allows M7 to intervene, M7’s interests will be
impaired without affording M7 any opportunity to protect those interests.

This is

particularly true where M7 was not informed of these appeals or the underlying actions
until September 7, 2016.
Lastly, M7’s interests are not adequately protected by existing parties to the
appeals. At the outset, it is important to note that “the fact that two parties are on the
same side of the dispute is not enough, in and of itself, to preclude intervention.” Allred
v. Carnahan, 372 S.W.3d 477, 486 (Mo. App. W.D. 2012). “Rather, the determination of
whether a proposed intervenor’s interest is adequately represented by an original party to
an action usually turns on whether there is an identity or divergence of interest between

2

M7’s Declaration was filed as an attachment to a Motion to Intervene filed in the Eighth

Circuit Court of Appeals involving the disclosure of M7’s identity. M7’s Motion to
Intervene in order to assert M7’s First Amendment rights in that matter was granted on
September 13, 2016.
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 the proposed intervenor and the party.” Id. Here, although M7 will be intervening on
behalf of the Department, M7’s interest is distinct from the Department’s interest. The
Department has argued that the identity of M7 should not be disclosed because M7 is a
member of the execution team protected under § 546.720.

In contrast to the

Department’s interest in having access to chemicals necessary to carry out capital
punishment, M7’s interest is personal in nature and concerns M7’s First and Fourteenth
Amendment right to proceed anonymously.3

The First Amendment provides that

“Congress shall make no law … abridging the freedom of speech...or the right of the
people peaceably to assemble.” US. Const. amend. I. “The First Amendment applies to
the states by incorporation into the Fourteenth Amendment.” Gibson v. Brewer, 952
S.W.2d 239, 246 (Mo. banc 1997). This extends to any application of state power,
including judicial decisions. Id. Indeed, the United State Supreme Court has recognized
that compelled disclosure of information pursuant to a state sunshine law request may
implicate First Amendment rights. See John Doe #1 v. Reed, 561 U.S. 186 (2010).
The speech and expression at issue in these appeals involves a hotly debated
political and social issue, namely the appropriateness of the death penalty. The right to

3

M7’s freedom of speech rights under Article I, section 8 of the Missouri Constitution

are also at issue in these appeals. Courts generally construe this provision consistent with
the protections afforded under the First Amendment. See Kansas City Premier
Apartments, Inc. v. Missouri Real Estate Com’n, 344 S.W.3d 160, 169 n.4 (Mo. banc
2011).
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 act in support of, or against, any particular social or political issue is one that has been
strongly protected. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47
(1995) (speech that touches on matters of political life, discussion of governmental or
public affairs and advocacy of controversial points of view are the core or essence of the
First Amendment). Furthermore, a component of the First Amendment is the right to
speak or express oneself with anonymity. See, e.g. Buckley v. American Constitutional
Law Found., 525 U.S. 182 (1999) (invalidating on First Amendment grounds, a Colorado
statute that required initiative petition circulators to wear identification badges);
McIntyre, 514 U.S. 334 (overturning on First Amendment grounds Ohio law that
prohibited distribution of campaign literature that did not contain the name and address of
the person issuing the literature). “The decision in favor of anonymity may be motivated
by fear of economic or official retaliation, by concern about social ostracism, or merely
by a desire to preserve as much of one’s privacy as possible.” McIntyre, 514 U.S. at 34132. Accordingly, M7’s interest in this appeal arises out of a desire protects its First
Amendment right to proceed anonymously. Because this interest is different than the
interests sought to be protected by the Department, M7’s interests will not be adequately
protected by the Department’s involvement.
Even if this Court determines that M7 is not entitled to intervention as a matter of
right under Rule 52.12(a), M7 alternatively requests permissive intervention pursuant to
Rule 52.12(b).

Rule 52.12(b) provides for permissive joinder when the proposed

intervenor’s claim has a question of law or fact in common with the action. Here, as set
forth in more detail above, M7’s claim is that the appeals should be reversed and M7’s
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 identity remain confidential and protected.

Plainly, this claim is in common with

questions of law and fact presented in these appeals. Namely, in addition to M7’s
assertion of First and Fourteenth Amendment rights, M7 agrees that it is a member of the
execution team protected from disclosure under § 546.720.

(LF20-21; Tr. 26).

Accordingly, in the event that this Court denies M7 leave to intervene as a matter of right,
this Court should nevertheless permit M7 to intervene in this matter.
III.

Conclusion
M7 has established grounds to intervene in this proceeding as a matter of right.

Specifically, M7’s interest in protecting its identity as a supplier of lethal chemicals is
directly at stake in these proceedings. If this Court refuses to grant M7 leave to intervene
and affirms the trial court’s decision, the result will be a determination of M7’s interests
without any opportunity of M7 to protect those interests. Moreover, because M7’s
interests are different from the interests of the Department, M7’s interests are not
adequately represented by the parties to these appeals. Alternatively, even if M7 is not
entitled to intervene as a matter of right, M7’s claim that the trial court’s judgment should
be reversed raises questions of fact and law in common with the Department’s appeals,
and therefore, M7 is entitled to permissive intervention.
WHEREFORE, Proposed Intervenor M7 respectfully requests that the Court grant
the Motion to Intervene, order that M7 is an appellant in this proceeding by intervention,
and grant any other necessary or appropriate relief.

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 Respectfully submitted,
BLITZ, BARDGETT & DEUTSCH, L.C.

By:

/s/ Teresa Dale Pupillo
Glenn A. Norton, #33222
Teresa Dale Pupillo, #42975
Aaron W. Sanders, #64133
120 South Central Ave., Suite 1500
St. Louis, Missouri 63105
(314) 863-1500
(314) 863-1877 (facsimile)
gnorton@bbdlc.com

tpupillo@bbdlc.com
asanders@bbdlc.com
Counsel for Intervenor M7

CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of September, 2016, the foregoing was filed
electronically with the Clerk of the Court to be served by operation of this Court’s
electronic filing system upon all counsel of record.

/s/ Teresa Dale Pupillo
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