No. 17-1055
United States Court of Appeals
for the Eighth Circuit
Christopher S. McDaniel,
Plaintiff-Appellee,
v.
Anne Precythe, in her official capacity,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Missouri
Brief of Appellee
Anthony E. Rothert
Jessie Steffan
ACLU of Missouri Foundation
906 Olive Street, Suite 1130
St. Louis, Missouri 63101
(314) 652-3114

Gillian R. Wilcox
ACLU of Missouri Foundation
406 West 34th Street
Suite 420
Kansas City, Missouri 64111
(816) 470-9933
Attorneys for Appellee

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 Summary of the Case
Appellee Christopher McDaniel is an investigative reporter whose work
primarily focuses on the death penalty. As part of his reporting, he has applied
to witness any Missouri execution by completing the Missouri Department of
Corrections’ State Witness Application form. He has never received a response.
He has been denied the opportunity to serve as a witness to any of the seventeen
executions Missouri has carried out since he submitted his application.
McDaniel filed suit under 42 U.S.C. § 1983, alleging the Department’s
policy or custom for choosing execution witnesses creates a substantial risk of
discrimination based on viewpoint or retaliation for First Amendment-protected
activity, including expressive activity or membership in a church or other
organization that supports or opposes to the death penalty.
Appellant filed a motion to dismiss the suit, asserting that it was barred
by the Eleventh Amendment.
The district court denied the motion to dismiss, and Appellant filed a
notice of appeal.

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 Table of Contents
Summary of the Case .......................................................................................... 2
Table of Authorities ............................................................................................ 4
Statement of the Case ......................................................................................... 7
Standard of Review ........................................................................................... 10
Summary of the Argument .............................................................................. 12
Argument ........................................................................................................... 13
I.

Eleventh Amendment immunity does not apply because McDaniel seeks

only prospective relief against the Director of the Missouri Department of
Corrections with respect to a policy carried out by the Director. .................. 13
II.

McDaniel has standing because he has plausibly alleged a concrete,

particularized, and actual injury-in-fact. ........................................................ 17
III.

There is no evidence in the record to suggest this action is moot. ........ 19

Conclusion.......................................................................................................... 19
Certificate of Compliance................................................................................. 21
Certificate of Service......................................................................................... 22

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 Table of Authorities
Adarand Constructors, Inc. v. Slater,
528 U.S. 216 (2000)..........................................................................................18
Alden v. Maine,
527 U.S. 706 (1999)..........................................................................................12
Andrus ex rel. Andrus v. Arkansas,
197 F.3d 953 (8th Cir. 1999) ............................................................................15
Balogh v. Lombardi,
816 F.3d 536 (8th Cir. 2016) ............................................................................13
Bill M. ex rel. William M. v. Neb. Dep’t of Health & Human Servs.,
408 F.3d 1096 (8th Cir. 2005) ..........................................................................10
Charleston Housing Auth. v. U.S. Dep’t of Agric.,
419 F.3d 729 (8th Cir. 2005) ............................................................................18
Cuffley v. Mickes,
208 F.3d 702 (8th Cir. 2000) ......................................................................16, 17
Dakota, Minn. & Eastern R.R. Corp. v. South Dakota,
362 F.3d 512 (8th Cir. 2004) ............................................................................13
Doe v. Nixon,
716 F.3d 1041 (8th Cir. 2013) ..........................................................................11
Edelman v. Jordan,
415 U.S. 651 (1974)..........................................................................................12
Ex parte Young,
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 209 U.S. 123 (1908)..............................................................................12, 13, 14
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000)..........................................................................................11
Hans v. Louisiana,
134 U.S. 1 (1890)..............................................................................................12
Hickman v. Missouri,
144 F.3d 1141 (8th Cir. 1998) ..........................................................................10
Holt v. Sarver,
442 F.2d 304 (8th Cir. 1971) ............................................................................15
Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261 (1997)....................................................................................12, 14
Karsjens v. Piper,
845 F.3d 394 (8th Cir. 2017) ............................................................................15
Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750 (1988)..........................................................................................16
Monroe v. Ark. State Univ.,
495 F.3d 591 (8th Cir. 2007) ............................................................................10
Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984)............................................................................................12
Roach v. Stouffer,
560 F.3d 860 (8th Cir. 2009) ............................................................................17
Rutan v. Republican Party,
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 497 U.S. 62 (1990)............................................................................................16
Shain v. Veneman,
376 F.3d 815 (8th Cir. 2004) ............................................................................10
Skelton v. Henry,
390 F.3d 614 (8th Cir. 2004) ............................................................................12
Verizon Maryland, Inc. v. Public Serv. Comm’n,
535 U.S. 635 (2002)..........................................................................................12
Wishnatsky v. Rovner,
433 F.3d 608 (8th Cir. 2006) ............................................................................17
Statutes and Other Authorities
42 U.S.C. § 1983 ...............................................................................................2, 9
Mo. Rev. Stat. § 546.740 ......................................................................................8
U.S. CONST. amend. 11 .....................................................................................12

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 Statement of the Case
As a death penalty reporter for BuzzFeed News, Christopher McDaniel
engages in extensive investigative reporting. (J.A. 7.) Through his work,
McDaniel has investigated and reported on Missouri’s actions related to its
execution of inmates. (J.A. 9.) At times McDaniel’s reporting has shone
unfavorable light on the actions of Missouri Department of Corrections
officials. (J.A. 9–10.) To ensure executions are carried out in a constitutional
manner, he applied in January 2014 to witness a Missouri execution by
completing the Missouri Department of Corrections’ State Witness Application
form. (J.A. 10.) He never received a response and has been denied the
opportunity to be a witness to any of the seventeen executions Missouri has
carried out since his application was submitted. (J.A. 11.)
In order to further understand the Department’s policies and customs
regarding the selection of execution witnesses, a public records request was
made in May 2014, seeking copies of records from a one-year period related to
applications to be an execution witness and the Department’s handling of those
applications. (J.A. 11.) The Department initially refused to provide the records
as required by Missouri law. 1 (J.A. 11.) Once the records were made available
to the public, McDaniel learned that every applicant who, like McDaniel,
expressed a desire to ensure that execution were carried out properly and

1

Litigation ensued. The Department was found to have knowingly violated
Missouri’s Sunshine Law.
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 constitutionally was denied the opportunity to witness an execution. (J.A. 11.)
Additionally, no one who is denied an opportunity to witness an execution
receives any response. (J.A. 11.)
Under Missouri Revised Statutes § 546.740, “the director of the
department of corrections . . . shall invite the presence of . . . at least eight
reputable citizens, to be selected by him . . . to witness the execution.” The
Department provides no guidelines governing requests to witness an execution
by members of the public or media, leaving the decision entirely to the
unfettered discretion of the Director. (J.A. 10–11.) There are no departmental
policies restricting the Director’s exercise of this discretion. (J.A. 10–11.)
McDaniel brought suit under 42 U.S.C. § 1983, alleging the Department’s
policies and customs related to the selection of execution witnesses allow the
Director to select or reject an applicant based on the applicant’s viewpoint,
expressive activity, and/or membership in a church or other organization.
(J.A. 7–13.)
The Director filed a motion to dismiss, asserting that McDaniel’s suit is
barred by Eleventh Amendment sovereign immunity. (See, e.g., J.A. 19.) The
Director also claimed that McDaniel did not have standing to bring the suit.
(See, e.g., J.A. 25.) The district court denied the motion to dismiss, finding that
the suit was not barred by the Eleventh Amendment because it fell within the Ex
parte Young exception. (J.A. 6–8.) The district court also found McDaniel has
standing because he has alleged the injury-in-fact of being deprived an equal
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 opportunity to witness an execution based on his exercise of his constitutional
rights. (J.A. 81–85.)

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 Standard of Review
This is an interlocutory appeal for the primary purpose of raising the
claim of sovereign immunity, over which this Court has jurisdiction under the
collateral-order doctrine. This Court reviews such claims de novo. Monroe v.
Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007).
The Director has also raised a standing issue. The claim that McDaniel
lacks standing would not be independently reviewable on interlocutory appeal
unless certified, which the Director did not request. However, it may
nonetheless be proper for this Court to consider standing. See Bill M. ex rel.
William M. v. Neb. Dep’t of Health & Human Servs., 408 F.3d 1096, 1098 n.1
(8th Cir. 2005), vacated on other grounds by 547 U.S. 1067 (2006). If this
Court chooses to address standing, its review is de novo. ACLU of Minn. v.
Tarek ibn Ziyad Acad., 643 F.3d 1088, 1092 (8th Cir. 2011). In order to assess
standing at this early stage, particularly because there has been no discovery and
the district court proceedings are stayed, this Court “accept[s] as true all of the
complaint’s material allegations and construe[s] the complaint in favour of the
complaining party.” Shain v. Veneman, 376 F.3d 815, 817 (8th Cir. 2004)
In addition, the Director argues the case is moot. Like standing, mootness
is not independently appropriate for interlocutory appeal. Again, it may
nonetheless be proper for this Court to consider mootness because it raises a
jurisdictional question. Hickman v. Missouri, 144 F.3d 1141, 1142 (8th Cir.
1998). The Director did not raise this argument in the district court, so this
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 Court’s review is necessarily de novo. The party asserting mootness bears the
“heavy burden of persua[ding] the court that the challenged conduct cannot
reasonably be expected to start up again.” Doe v. Nixon, 716 F.3d 1041, 1051
(8th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 189 (2000)).

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 Summary of the Argument
The basis for this interlocutory appeal is the Director’s claim of sovereign
immunity. But because this action seeks only prospective (declaratory and
injunctive) relief and presents a challenge only to a state agency policy entirely
controlled by the Director of that agency, it is a prototypical Ex parte Young
case. Dakota, Minn. & Eastern R.R. Corp. v. South Dakota, 362 F.3d 512, 516
(8th Cir. 2004). Therefore, immunity does not apply.
The Director also raises arguments about McDaniel’s standing. The
Department’s policy of leaving the selection of execution witnesses to the sole,
unfettered discretion of the Director has exposed McDaniel to a substantial,
unjustified risk of viewpoint discrimination that chills future expression.
McDaniel has alleged sufficient facts to show his injury is not speculative,
including that the Director does in fact require information concerning
viewpoint on its witness applications and then denied applications from
McDaniel and others who espouse similar viewpoints. Based on his allegations,
McDaniel has standing.
Finally, the Director raises mootness for the first time. There is absolutely
nothing in the record to show that the Department’s policy has changed or that
any change thereto will be permanent. Further, because proceedings are stayed
in the district court and discovery has not yet begun, McDaniel cannot even find
out about any policy changes. Thus, the action is not moot.

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 Argument
I.

Eleventh Amendment immunity does not apply because McDaniel seeks

only prospective relief against the Director of the Missouri Department of
Corrections with respect to a policy carried out by the Director.
State sovereign immunity, memorialized through common law and the
Eleventh Amendment, generally bars federal suits by private citizens against a
state absent the state’s consent. See U.S. CONST. amend. 11; Hans v.
Louisiana, 134 U.S. 1, 10–11 (1890); Alden v. Maine, 527 U.S. 706, 713
(1999). However, since Ex parte Young, 209 U.S. 123 (1908), the courts have
repeatedly recognized an “important exception” to state sovereign immunity:
“when a plaintiff sues a state official alleging a violation of federal law, the
federal court may award an injunction that governs the official’s future
conduct.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984)
(citing Edelman v. Jordan, 415 U.S. 651, 666–67 (1974)); see also Idaho v.
Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 276–77 (1997) (reaffirming
Edelman); Verizon Maryland, Inc. v. Public Serv. Comm’n, 535 U.S. 635, 645
(2002) (“In determining whether the doctrine of Ex parte Young avoids an
Eleventh Amendment bar to suit, a court need only conduct a straightforward
inquiry into whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.”); Skelton v. Henry, 390
F.3d 614, 617 (8th Cir. 2004). Thus, under Ex parte Young, “the Eleventh
Amendment bars damage relief against the States, but it does not prohibit
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 certain suits seeking declaratory and injunctive relief against state officers.”
Dakota, Minn. & Eastern R.R. Corp. v. South Dakota, 362 F.3d 512, 516 (8th
Cir. 2004).
For Ex parte Young to apply, the named state official “must have some
connection with the enforcement” of the challenged statute. Ex parte Young,
209 U.S. at 157. The Director insists that this suit falls outside Ex parte Young
because she is not taking an enforcement action by inviting execution witnesses.
But the claim here is that the Department’s policy of vesting unfettered
discretion in the Director is unconstitutional, and it is the Director alone who
carries out that policy.
The Director’s reliance on Balogh v. Lombardi, 816 F.3d 536 (8th Cir.
2016), is misplaced. In Balogh, plaintiffs challenged the constitutionality of a
statute they had violated. That statute prohibited disclosure of the identities of
individuals participating in executions and permitted those whose identities
were disclosed to sue. This Court concluded the Director lacked authority to
enforce that statute because it was the members of the execution team, not the
Director, who were authorized to sue. Balogh, 816 F.3d at 544.
In this case, McDaniel is not challenging a statute that creates a private
cause of action. Rather, he challenges the Department’s own internal policy
with respect to selection of execution witnesses, which the Director both
approves and implements. The Director not only has “some connection” to these
policies, Balogh, 816 F.3d at 545, she has all of the authority over them.
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 Because McDaniel challenges a policy for which the Director is solely
responsible, this action fits squarely within Ex parte Young.
Appellant raises a novel argument that the selection of execution witnesses
is a “core state function” and thus implicates a “special sovereignty interest.”
(E.g., J.A. 46–47.) This type of exception-to-an-exception comes from Idaho v.
Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997). In that case, an Indian tribe
brought an action against the state for an ongoing violation of its property
rights, in submerged land and lakes, sought prospective injunctive relief. In
concluding that the claim fell outside of Ex parte Young and was thus barred by
sovereign immunity, the Supreme Court characterized the action as the
functional equivalent of a quiet title action against the state of Idaho, which
implicated the state’s special sovereignty interest in its “control over a vast
reach of lands and waters long deemed by the State to be an integral part of its
territory.” Id. at 282. As the Court acknowledged, federal claims that potentially
intrude upon a state’s territorial sovereignty over public lands are “unusual,”
and the Coeur d’Alene exception to Ex parte Young is consequently narrow.
Id. at 281, 284, 287 (commenting that the navigable waters at issue “uniquely
implicate sovereign interests” and that the action involved “particular and
special circumstances”).
In an effort to create a new Ex parte Young exception, the Director
suggests that McDaniel seeks to intrude upon the State’s authority to control its
execution witness rooms. This suggestion seriously mischaracterizes
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 McDaniel’s claim for relief. He requests merely that the court enjoin the
Director from inviting any individual, other than the Attorney General, to serve
as execution witness until the Director establishes a policy for selection of
execution witnesses that comports with the Due Process Clause. This does not
prevent Missouri from carrying out any core state function.
In short, McDaniel has pled a routine Ex parte Young challenge to a state
policy. See, e.g., Karsjens v. Piper, 845 F.3d 394, 405–06 (8th Cir. 2017)
(rejecting state defendants’ argument that civilly committed plaintiffs lacked
standing because “their claim [was] not that they [were] all entitled to release
but rather that” a state agency’s implementation of state law “violate[d] the due
process clause”); Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953, 954 (8th Cir.
1999) (affirming denial of motion to dismiss on Eleventh Amendment grounds
where plaintiff sued director of state police department for injunctive relief
based on “allegedly unconstitutional supervisory policies”); Holt v. Sarver, 442
F.2d 304, 305 (8th Cir. 1971) (holding that state commissioner of corrections’
motion to dismiss on Eleventh Amendment grounds was properly denied where
inmates had sought declaratory judgment that prisons’ policies and practices
violated their constitutional rights). The district court did not err in declining to
dismiss the case.

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 II.

McDaniel has standing because he has plausibly alleged a concrete,

particularized, and actual injury-in-fact.
The Director argues that witnessing an execution is not a legally
protected interest because no court has recognized a constitutional right to view
an execution. This argument ignores that a suit alleging impermissible
viewpoint discrimination need “not [be] limited to valuable government benefits
or even benefits at all.” Cuffley v. Mickes, 208 F.3d 702, 707 n.5 (8th Cir. 2000)
(citing Rutan v. Republican Party, 497 U.S. 62, 72 (1990)). “Even though a
person has no ‘right’ to a valuable government benefit and even though the
government may deny him the benefit for any number of reasons, there are
some reasons upon which the government may not rely.” Id. McDaniel does not
claim to have an independent constitutional right to view an execution, only that
he has a constitutional right not to be denied admittance because of his
expressive activity. Witnessing an execution may be a strange benefit, but a
benefit nonetheless—one that cannot be denied for unconstitutional reasons.
In Lakewood v. Plain Dealer Publishing Company., 486 U.S. 750 (1988),
the Supreme Court held that vesting in a public official the unfettered discretion
to grant or deny a license can violate the First Amendment because it creates a
substantial, unjustified risk of viewpoint discrimination and thereby chills future
expression. See id. at 764 (“It bears repeating that in the area of freedom of
expression it is well established that one has standing to challenge a statute on
the ground that it delegates overly broad licensing discretion to an
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 administrative office, whether or not his conduct could be proscribed by a
properly drawn statute, and whether or not he applied for a license.”); Roach v.
Stouffer, 560 F.3d 860, 869 (8th Cir. 2009) (striking down Missouri statute that
gave committee unfettered discretion to “deny an application for a specialty
plate based solely on the organization’s viewpoint”); Wishnatsky v. Rovner, 433
F.3d 608, 611–12 (8th Cir. 2006) (holding that public law clinic could not deny
representation to potential client based on viewpoint even though potential
client had no right to that representation); Cuffley, 208 F.3d at 707, 712 (“Even
though a person has no ‘right’ to a valuable governmental benefit and even
though the government may deny him the benefit for any number of reasons,
there are some reasons upon which the government may not rely. . . . viewpointbased exclusion of any individual or organization from a government program
is not a constitutionally permitted means of expressing disapproval of ideas.”)
(internal quotation marks omitted). Here, McDaniel has alleged that the
Department asks explicitly for viewpoint information on its witness application
forms and routinely denies applicants to seek to ensure the death penalty is
carried out constitutionally. (J.A. 9–12.) These allegations taken as true, along
with the lack of any departmental policies to guide the Director’s discretion,
show that the Department’s policies and customs relating to the selection of
execution witnesses create a substantial, unjustified risk of viewpoint
discrimination.

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 III.

There is no evidence in the record to suggest this action is moot.
Appellant argues for the first time on appeal that the case is moot because

the Department has hired a new Director since McDaniel filed suit. Yet there is
no evidence in the record that the challenged policy has changed or even that it
will change at some definite point in the future. Even if the Department had
voluntarily changed its policy, “the heavy burden of persuading the court that the
challenged conduct cannot reasonably be expected to start up again lies with the
party asserting mootness.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216,
222 (2000) (per curiam) (internal quotation marks and brackets omitted)
(emphasis in original); Charleston Housing Auth. v. U.S. Dep’t of Agric., 419
F.3d 729, 740 (8th Cir. 2005) (“Defendants who argue mootness due to changed
circumstances based on their own behavior face a heavy burden.”). Given that
there is no evidence in the record whatsoever to demonstrate mootness and the
proceedings in the district court have been stayed, making it impossible for
McDaniel to discover any changes to policy, the Director has not met this burden.
Conclusion
This case fits squarely within Ex parte Young as a challenge to the
constitutionality of an internal agency policy over which the Director has
complete control. McDaniel requests only prospective injunctive relief.
McDaniel has alleged an injury-in-fact and, based on the allegations in his
complaint, easily meets the Article III requirements for standing. Finally, there
is no evidence whatsoever to show this action is moot. For these reasons, this
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 Court should affirm the district court’s denial of the motion to dismiss and
remand for further proceedings.
Respectfully submitted,
/s/ Anthony E. Rothert
Anthony E. Rothert, #44827
Jessie Steffan, #64861
ACLU of Missouri Foundation
906 Olive Street, Suite 1130
St. Louis, Missouri 63101
arothert@aclu-mo.org
jsteffan@aclu-mo.org
Gillian R. Wilcox, #61278
ACLU of Missouri Foundation
406 West 34th Street, Suite 420
Kansas City, Missouri 64111
(816) 470-9938
gwilcox@aclu-mo.org
Attorneys for Appellee

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 CERTIFICATE OF COMPLIANCE
The undersigned counsel for Plaintiff-Appellee hereby certifies that this
brief complies with the requirements of Fed R. App. P. 32(a)(5) and (6) because
it has been prepared in Microsoft Office Word 2010 in 14-point Times New
Roman, a proportionally spaced font.
I further certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B) because it contains 2955 words, excluding the parts
of the brief exempted under Rule 32(f), according to Microsoft Word.
Finally, I certify that this document was scanned for viruses with
Symantec Endpoint Protection, which is continually updated. According to the
virus scan, this file is free of viruses.
/s/ Anthony E. Rothert

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 CERTIFICATE OF SERVICE
I hereby certify that I filed the foregoing Appellee’s Brief electronically
with the Court’s CM/ECF system with a resulting electronic notice to all
counsel of record on April 3, 2017. I further certify that one true and correct
paper copy of the Brief will be sent via first-class mail to Appellant’s counsel
upon notice that this brief has been accepted for filing.

/s/ Anthony E. Rothert

22
Appellate
Appellate
Case: 17-1055
Case: 17-1055
Page: 22
Page:Date
22 Filed:
Date04/03/2017
Filed: 04/04/2017
Entry ID:
Entry
4519406
ID: 4520155
RESTRICTED