                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
JOAN BRAY, et al.,              )
                    Appellants, )
                                )
v.                              )                  WD78807
                                )
MISSOURI DEPARTMENT OF          )                  FILED: July 26, 2016
CORRECTIONS,                    )
                   Respondent. )

                        Appeal from the Circuit Court of Cole County
                          The Honorable Patricia S. Joyce, Judge

               Before Division Four: Alok Ahuja, P.J., Mark D. Pfeiffer, C.J.
                                 and J. Dale Youngs, Sp.J.

       Four Missouri taxpayers filed suit in the Circuit Court of Cole County, alleging that the

State’s lethal-injection protocol for executing inmates violates federal and state law. The circuit

court dismissed the Taxpayers’ claims, finding that they lacked standing, that the Missouri

Supreme Court had exclusive jurisdiction over the case, and that the Taxpayers’ petition failed to

state a claim upon which relief could be granted. The Taxpayers appeal. We affirm.

                                      Factual Background

       Joan Bray, Jeanette Oxford, Elston McCowan, and Mary Ann McGivern (the

“Taxpayers”) filed a Verified Petition for Declaratory Judgment and Injunctive Relief, as well as

a Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction,

in the Circuit Court of Cole County on July 9, 2015. In their petition, the Taxpayers alleged that

the Department of Corrections’ current lethal-injection execution protocol violates both Missouri
and federal laws and regulations because of the Department’s purchase and use of pentobarbital

prepared by a compounding pharmacy. The Taxpayers alleged that the use of compounded

pentobarbital in executions violates state and federal laws concerning the compounding of FDA-

approved drugs; the purchase, distribution, transfer, and administration of controlled substances;

the dispensing of drugs without a valid prescription; and the licensing of compounding

pharmacies. The Taxpayers sought a declaratory judgment and injunctive relief prohibiting the

Department from continuing to use its current lethal-injection protocol.

       The Department was preparing to execute convicted murderer David Zink when the

Taxpayers’ petition was filed. The Missouri Supreme Court issued a Warrant of Execution

setting Zink’s execution date as July 14, 2015, and he was ultimately executed on that date.

While Zink’s execution was pending, the circuit court sustained the State’s motion to dismiss on

July 13, 2015. The circuit court’s dismissal relied on three independent grounds. First, the court

found that the Taxpayers lacked standing to sue. Second, the court held that it lacked

jurisdiction, because the Missouri Supreme Court has exclusive jurisdiction over cases involving

the death penalty. Third, the court held that the petition failed to state a claim for relief, because

the federal and state laws and regulations cited by the Taxpayers do not apply to the

Department’s performance of court-ordered executions.

       This appeal follows.

                                              Analysis

       The circuit court relied on three independent grounds to dismiss the Taxpayers’ petition.

To justify reversal, the Taxpayers must demonstrate that each of the reasons for dismissal cited

by the circuit court was erroneous; if we uphold any one of the grounds on which the circuit

court relied, we must affirm. Knight v. Con-Agra Foods, Inc., 476 S.W.3d 355, 358-59 (Mo.




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App. W.D. 2015) (quoting City of Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588,

590-91 (Mo. App. W.D. 2009)).

        We conclude that the Taxpayers have failed to show that the circuit court’s third basis for

dismissal (that their petition failed to state a claim on which relief could be granted) was

erroneous. Accordingly, we affirm the judgment without addressing the other two grounds cited

by the circuit court.

        The circuit court’s judgment provided a detailed explanation for its conclusion that the

petition failed to state a legally viable claim. The court first addressed the Taxpayers’ federal-

law claims. It explained:

                The intention of Congress to regulate executions would be an exercise of
        control over an area traditionally left to the States and would alter the usual
        balance between the States and the Federal Government. In such a case the
        intention of Congress to exercise control over the area traditionally left to the
        States must be unmistakably clear or it is presumed not to exist. . . .

                ....

               . . . The plain statement rule controls in the area of legal executions of
        criminals, because that area has traditionally been left to the States by Congress,
        and there is no plain statement in the [federal Controlled Substances Act
        (“CSA”)] or the [Food, Drug and Cosmetic Act (“FDCA”)] that those Acts are
        meant to regulate executions by lethal injection. The lack of a plain statement by
        Congress that it intended the FDCA and CSA to be enforced in the context of
        executions for state criminal convictions, an area traditionally left to the States by
        Congress, establishes that Missouri does not violate the FDCA or CSA by
        conducting lawful executions.


(Citations omitted.)

        The circuit court also concluded that, even without reference to the “plain statement”

rule, neither the FDCA nor the CSA applied to lawful executions. The court cited Gonzales v.

Oregon, 546 U.S. 243 (2006), which refused to apply the Controlled Substances Act to

physician-assisted suicide authorized by state law. The circuit court read Gonzales as holding



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that the CSA’s “main objectives” were to “combat[ ] drug abuse, and control[ ] the legitimate

and illegitimate traffic in controlled substances.” The circuit court concluded that the CSA’s

purposes are not implicated by the use of pharmaceutical products in court-ordered executions.

The circuit court then cited Heckler v. Chaney, 470 U.S. 821 (1985), to support its conclusion

that “[a] lawful execution simply does not fall within the subject matter controlled by the

FDCA.”

       The circuit court applied similar reasoning with respect to the Taxpayers’ state-law

claims. It noted that § 546.720, RSMo authorizes the Department of Corrections to carry out the

death penalty by lethal injection. In light of § 546.720, the circuit court concluded that making

executions subject to state laws concerning controlled substances and prescription drugs would

lead to “an absurd result.” According to the circuit court, the Taxpayers “read regulations that

have nothing to do with executions out of context in an attempt to block executions that are legal

under the applicable statute. . . . Reading the provisions harmoniously there is no violation of

Missouri law.”

       Taxpayers challenge the circuit court’s conclusion that the petition failed to state a claim

in their first and fourth Points Relied On. In their first Point, Taxpayers argue that the circuit

court “was required to accept as true the fact that [the Department] w[as] using a compounded

copy of pentobarbital because it was pleaded in the Verified Petition.” In their fourth Point, they

argue that the circuit court erred in finding that they failed to state a claim without conducting an

evidentiary hearing, because the trial court’s ruling made “a factual finding” “that [the

Department] did not violate the law,” “contrary to well-established law requiring that well-

pleaded facts be taken as true for purposes of a motion to dismiss.”




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       The Taxpayers’ arguments miss the mark. Taxpayers are correct that, in deciding

whether the petition stated a claim, the circuit court was required to accept all well-pleaded facts

in the petition as true, and to give those factual allegations “their broadest intendment.” See, e.g.,

Peters v. Wady Indus., Inc., No. SC94442, 2016 WL 3180586, at *3 (Mo. banc June 7, 2016);

Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). We see nothing in the circuit court’s

decision, however, which is inconsistent with the factual allegations in Taxpayers’ petition.

Although it may not say so expressly, the circuit court’s judgment can be read as assuming that

Taxpayers’ factual claims are true: that the Department is, in fact, using an unlicensed

compounding pharmacy to provide the Department with pentobarbital (an FDA-approved drug

which is otherwise commercially available) for use in executions. The circuit court’s judgment

does not dispute Taxpayers’ factual claims; instead, it holds that the Taxpayers’ factual

contentions are legally irrelevant, because neither the federal nor the state laws on which the

Taxpayers rely are applicable to the Department’s performance of lawful executions. While the

circuit court – quite properly – tested the Taxpayers’ factual allegations against the governing

legal standards, the court did not dispute those factual allegations, or make its own factual

findings contrary to the facts alleged in the petition.

       In their argument under Points I and IV, Taxpayers make repeated reference to the

allegations in the petition that the Department’s actions violate various federal or state laws or

regulations. For example, Taxpayers make the following argument under their fourth Point:

                 The Verified Petition contained express allegations that [the Department]
       w[as] unambiguously violating both state and federal law in at least five
       independent capacities, any one of which is sufficient to grant the relief sought in
       this lawsuit. It is literally impossible to treat the facts and allegations alleged as
       true and to find, as the Circuit Court erroneously did, that “[t]here is no violation
       of Missouri law in carrying out executions.” For instance, if this Court were to
       treat as true the allegations in the Verified Petition that [the Department] ha[s]
       manufactured, purchased, and used compounded copies of pentobarbital in blatant



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        violation of the state and federal laws cited – allegations [the Taxpayers] are
        absolutely prepared to establish as this case proceeds at the trial level – it is not
        possible for this Court to also conclude that [the Department] did not violate the
        law.

(Record citations omitted.)

        Taxpayers’ argument ignores the principle that, “although we treat all of the factual

allegations in a petition as true, and liberally grant to plaintiffs all reasonable inferences

therefrom, ‘[c]onclusory allegations of fact and legal conclusions are not considered in

determining whether a petition states a claim upon which relief can be granted.’” Hope Acad.

Corp. v. Mo. State Bd. of Educ., 462 S.W.3d 870, 874 (Mo. App. W.D. 2015) (quoting Hendricks

v. Curators of Univ. of Mo., 308 S.W.3d 740, 747 (Mo. App. W.D. 2010)). The circuit court was

not required to accept as true the Taxpayers’ legal contention that the Department’s actions

violated federal or state law, and it did not act improperly by reaching a contrary conclusion.

        Taxpayers have also failed to substantiate their claim that the circuit court was required to

conduct an evidentiary hearing before holding that the petition failed to state a claim. Indeed, it

is generally inappropriate for the circuit court to consider facts or evidence outside the pleadings

in ruling on a motion to dismiss for failure to state a claim. See, e.g., Hedrick v. Jay Wolfe

Imports I, LLC, 404 S.W.3d 454, 457 (Mo. App. W.D. 2013) (quoting Phelps v. City of Kansas

City, 371 S.W.3d 909, 912 (Mo. App. W.D. 2012)). We see no indication in the judgment that

the circuit court considered facts beyond those alleged in the petition, or that it made findings of

fact contrary to the petition’s factual allegations. Moreover, the Taxpayers have failed to

identify any additional facts or evidence which they would have presented at an evidentiary

hearing, to counter the circuit court’s legal conclusion that Missouri executions was not subject

to the federal and state laws on which the Taxpayers rely. State ex rel. Petti v. Goodwin-Raftery,

190 S.W.3d 501, 506 (Mo. App. E.D. 2006) (affirming dismissal despite appellants’ claim that



                                                   6
circuit court should have first conducted an evidentiary hearing, where the information in the

petition was adequate to determine that appellants’ claims lacked legal merit).

        Because the Taxpayers have failed to show that the circuit court erroneously concluded

that their petition failed to state a claim, we affirm the circuit court’s dismissal of the petition.

We express no opinion concerning the circuit court’s legal conclusion that the Department’s

performance of executions is exempt from the requirements of the Food, Drug and Cosmetic Act,

the Controlled Substances Act, and the other state and federal laws and regulations cited by the

Taxpayers. We decline to address the merits issues for a simple reason: the Taxpayers do not

challenge the circuit court’s legal conclusions on appeal. In finding that the Taxpayers’ petition

failed to state a claim, the circuit court’s judgment prominently relied on the “plain statement”

rule, Gonzales v. Oregon, 546 U.S. 243 (2006), Heckler v. Chaney, 470 U.S. 821 (1985), and

§ 546.720, RSMo. The Taxpayers’ briefing, however, does not discuss the “plain statement

rule,” or cite the cases or statute on which the circuit court’s legal conclusions are based.

Instead, Taxpayers’ briefing in Points I and IV is limited to the procedural arguments we have

discussed above. We will not address the merits of the circuit court’s ruling, when the Taxpayers

have not challenged the substantive basis for the circuit court’s decision. KCAF Investors,

L.L.C. v. Kansas City Downtown Streetcar Transp. Dev. Dist., 414 S.W.3d 470, 479 (Mo. App.

W.D. 2013) (refusing to address “arguments Appellants have not made”).1


        1
                  In their opening Brief, the Taxpayers argued that “[e]ntirely missing from the Circuit
Court’s order dismissing this case . . . is a single statute, case, or regulation permitting [the Department]
to violate the state and federal laws they are violating if they are doing so in the context of carrying out an
otherwise lawful execution.” Taxpayers’ Reply Brief repeats this claim: “The reality is that the Order
dismissing this case contains absolutely no legal authority for the theory that none of the laws alleged in
the Verified Petition somehow do not apply [sic] in the context of executions.” As our discussion in the
text should make clear, Taxpayers’ characterizations of the circuit court’s judgment are simply untrue –
the circuit court cited both caselaw and statutory authority to support its decision. Taxpayers’
mischaracterizations are emblematic of their failure to even acknowledge, much less address, the
substantive basis of the circuit court’s decision.


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                                          Conclusion
       We affirm the judgment of the circuit court dismissing the Taxpayers’ petition.



                                                   __________________________________
                                                   Alok Ahuja, Judge
All concur.




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