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Fight over execution rests for now on debate over who can be sued

California Department of Corrections

Is the American Civil Liberties Union of Missouri suing the right person in its effort to crack the veil of secrecy around executions in the state?

That question is in the hands of a three-judge panel of the U.S. Eighth Circuit Court of Appeals, following oral arguments Tuesday in St. Louis.

The First Amendment case traces its roots to a 2013 sunshine law request in which the ACLU asked the Department of Corrections for the name of the pharmacy that supplied the drugs for lethal injections in Missouri. On Oct. 8, and again on Oct 18, the DOC released documents relevant to the request, which the ACLU posted on its website. They included the names of people and pharmacies that supplied the state's execution drugs.

But just days later, the ACLU pulled the documents from the website. The reason? It feared lawsuits. On Oct. 18, DOC director George Lombardi expanded the members of the state's execution team to include the pharmacies. That put the ACLU at risk of a lawsuit under the state law making the names of execution team members confidential, and the organization sued Lombardi on 1st Amendment grounds. 

The current question in front of judges William Riley, Kermit Bye and Raymond Gruender is this -- is the ACLU suing the right person? And can they even sue Lombardi?

The 11th Amendment

The 11th Amendment to the U.S. Constitution forbids most private federal lawsuits against states or state actors unless the state actor is doing something unconstitutional.What the judges have to figure out in this case is whether Lombardi is closely enough connected to the allegedly unconstitutional acts.

Absolutely not, said Caroline Coulter, the assistant attorney general arguing the case for the state.

The director was simply doing his job when he changed the execution team, she said -- an act that is not unconstitutional. He also would not be the one to file the lawsuits feared by the ACLU -- the state law gives that right to the member of the execution team named. Therefore, Coulter said, not only is Lombardi immune from the lawsuit, the ACLU isn't even suing the right person.

The ACLU had, predictably, a completely different take.

It's a but-for situation, said Tony Rothert, the legal director of the ACLU of Missouri. If Lombardi had not used his authority to change the execution team after giving the documents that identified the pharmacies to the ACLU, the agency would not have feared lawsuits and therefore not have had a reason to take the documents down. That means he's closely enough connected to be sued.

"What the state's doing here is part of their scheme to keep executions secret so that the public doesn't know what has happened," Rothert said in an interview afterward. "There's more and more secrecy surrounding the execution process because I think the state recognizes that if the people of Missouri knew what was being done in the state and how it was being done in the state, they'd object."

A ruling from Riley, Gruender and Bye will come later.

Follow Rachel Lippmann on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.