Supreme Court considers if governor can dissolve board reviewing death row inmate’s case

The Supreme Court of Missouri is set to decide whether Gov. Mike Parson had the authority to dissolve a board of inquiry created by former Gov. Eric Greitens to investigate death row inmate Marcellus Williams’ innocence claim.

Greitens created the board, consisting of five former judges, and stayed Williams’ execution, hours before he was to be killed. Greitens’ order followed the release of DNA test results that were unavailable at the time of the 1998 killing of Felicia Gayle but which, according to Williams’ attorneys, showed that DNA found on the knife used to stab Gayle matched an unknown person, not Williams.

Parson, however, disbanded that inquiry board last summer and lifted the stay after the board had existed for almost six years without, apparently, completing a report.

“We could stall and delay for another six years, deferring justice, leaving a victim’s family in limbo, and solving nothing,” Parson said in a written statement. “This administration won’t do that.”

Williams then sued Parson in the Cole County Circuit Court, asking a judge to invalidate Parson’s order. Parson, however, moved for judgment on the pleadings, arguing, in part, that the Missouri Constitution gives the governor complete discretion in considering clemency requests. Judge S. Cotton Walker denied that motion, stating that the relevant statute does not say the governor can disband an inquiry board.

Believing that Walker had unconstitutionally limited the governor’s clemency powers, Parson filed a petition for writ of prohibition or mandamus with the Missouri Supreme Court, which heard oral arguments on April 10.

Assistant Attorney General Michael Spillane, who represented Parson, told the court that Williams and the trial court judge were adding words to the statute concerning the governor’s powers to grant clemency and form an inquiry board.

“There’s nothing in the statute that says the governor can’t dissolve a board of inquiry. There’s nothing in the statute that says that he has to reinstate the board and take away his ending of a stay of execution. There’s simply nothing there,” he said. “One can’t add words to a statute.”

Saying otherwise would be an absurd interpretation of the statute, he argued, as that would mean a board created to serve the governor can exist forever without doing anything. Additionally, such a reading would conflict with the constitution, which gives the governor discretion to grant or deny clemency as he sees fit.

Judge W. Brent Powell questioned how Spillane’s reading could be accurate.

“With respect to the statute, what effect then, based on your argument, does it have at all? I guess a more specific question is, if the statute didn’t exist, could the governor appoint a board to do this work without this authority?” Powell said.

The governor could, Spillane said, but the statute gives the board extra powers, as it states it “is the duty of all persons and institutions to give information and assistance to the board.”

BCLP attorney Jonathan Potts, who represented Williams, argued it’s the governor who is adding words to the statute.

“Courts cannot insert words into a statute by implication. Instead, courts must give the General Assembly’s chosen words their ordinary, common meaning,” he said. “There is no dictionary in the world that defines the word ‘appoint’ to mean ‘dissolve.'”

Judge Powell asked Potts how his interpretation would not take away the governor’s right to determine commutations and pardons.

Potts argued that the governor does have an avenue for dissolving an entity but that he is required to submit a request to do so to the General Assembly, which could then vote it down if it wished. In Williams’ brief, that argument included a suggestion that Parson may not be able to do so if it would violate Williams’ rights.

Potts also suggested that his interpretation protects governors, ensuring that future administrations honor their decisions. Chief Justice Mary R. Russell asked if that meant Potts believes Parson could not pardon Williams before the board made its report, and if not, why the governor would be able to pardon but could not abolish the board before it concluded its work.

“We have no dispute whatsoever that the governor has complete and final authority over making the final decision whether to grant or deny clemency. But that decision is subject to the ability of the General Assembly to enact statutes,” Potts said.

Spillane, on rebuttal, suggested that Potts’ arguments would essentially give inquiry boards veto powers over the governor’s ability to grant clemency, as such boards could then simply keep existing without making a report until the end of time.

Attorney General Andrew Bailey has asked the Supreme Court to set a new execution date, though one has yet to be set. The St. Louis County Prosecuting Attorney’s Office in January asked for a delay while it reviews Williams’ claim of innocence, though the Supreme Court has not yet responded. Later that month, the Prosecutor’s Office filed a motion to vacate or set aside judgment in the St. Louis County Circuit Court. The Attorney General’s Office has filed a notice of intent to oppose.

The case is State ex rel. Parson v. Walker, SC100352.