Appeals court rejects suit over Missouri execution protocol

ST. LOUIS -- A state appeals court has rejected a lawsuit over how Missouri obtains its lethal injection drug, the latest of many challenges to the execution protocol the courts have rejected.

In its ruling Tuesday, the Western District of the Missouri Court of Appeals cited a technical reason for its decision to uphold a lower court's ruling dismissing the case. The appeals court said the lawsuit failed to state a claim upon which relief could be granted.

The plaintiffs -- two former state lawmakers, a minister and a nun -- argued Missouri was breaking state and federal law by using an illegal prescription to obtain pentobarbital from a compounding pharmacy.

Their attorney, Justin Gelfand, said in a statement the case raises "profoundly important issues." He stopped short of saying an appeal would be filed but said, "We are disappointed by the appellate court's ruling and intend to consider all possible options."

A spokeswoman for the Missouri attorney general's office did not immediately respond to a message seeking comment.

The plaintiffs -- former lawmakers Joan Bray and Jeanette Oxford, Baptist minister Elston McCowan and Mary Ann McGivern, a member of the Sisters of Loretto -- were not challenging the death penalty, only practices used to obtain the drugs. Several death-row inmates, the media, including The Associated Press, and others also have filed lawsuits challenging the secretive nature of Missouri's procurement of lethal drugs.

Cole County Circuit Court Judge Patricia Joyce dismissed the lawsuit last July, ruling members of the public don't have standing to challenge Department of Corrections' operations and the Missouri Supreme Court has jurisdiction in lawsuits related to the death penalty.

The attorney general's office argued the lawsuit was trying to privately enforce federal food and drug laws and was a last-ditch effort to block the execution of David Zink, who had filed and lost similar lawsuits.

Zink, who abducted and killed a southwestern Missouri woman in 2001, was executed July 14, 2015, the day after Joyce's ruling.

Missouri obtains its execution drug from a compounding pharmacy corrections officials refuse to name. They also refuse to discuss whether the drug is tested. The procedure has drawn several lawsuits from death-row inmates and others.

The lawsuit alleged federal and state laws prohibit the use of compounded drugs commercially available in the marketplace and copies of drugs that are FDA-approved, such as pentobarbital. The plaintiffs also argue the state violates state and federal laws by requiring a physician to fill prescriptions for the drug without conducting a medical exam, and taxpayer money should not be used to buy the drugs.