1

IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

PROGRESS MISSOURI, INC., et al., ) ) Plaintiffs, ) ) vs. ) Case No. 15AC-CC00160 ) MISSOURI SENATE, et al., ) ) Defendants. )

PLAINTIFFS SUGGESTIONS IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS

COMES NOW Plaintiffs, by and through counsel, and oppose Defendants

Motion to Dismiss. In support thereof, Plaintiffs state as follows:

I. INTRODUCTION

Plaintiffs Petition makes two claims the first statutory, the second

constitutional. First, Defendants violated Missouris Sunshine Law when it denied

permission to Plaintiffs to film certain committee hearings. Second, Defendants

violated Plaintiffs rights to freedom of speech and association by requiring Plaintiffs to

join the Missouri Capitol News Association, a private organization, in order to record

hearings and by denying permission to Plaintiffs to film contrary to Senate Rule 96.

Under the law, the allegations in Plaintiffs Petition state a claim and are

justiciable. To begin with, Defendants misstate the facts. Plaintiffs have alleged that

Defendants do not allow persons, including the press, to record hearings and that

Senate Communications did not record certain committee hearings. Defendants

argument that Rule 96 complies with the Sunshine Law fails to the extent it is based on

alleged facts that Defendants fail to accept as true.

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Next, Missouris Sunshine Law applies to the Missouri Senate and its committees

and explicitly allows members of the public to record open meetings. Defendants argue

that Article III, Section 18 of the Missouri Constitution gives the Senate the right to

establish the rules of its own proceedings and therefore prohibit recording in all

instances or, alternatively, to allow some groups, like certain members of the press, to

record but not other groups. But, conditioning access and the ability to attend and

record open meetings is not, in any reasonable sense, a rule of proceeding. In addition,

the Missouri Constitution does not give one house of the Missouri General Assembly, let

alone individual Senators, the unilateral and discretionary right to suspend or modify a

state statute that was passed by both houses and approved by the Governor and which

applies to the Missouri Senate. This case does not raise a political question, but is a

straight-forward matter of constitutional and statutory interpretation, and falls within the

accepted authority of this court to determine the scope of the Senates authority and

meaning of the law.

Finally, Defendants mischaracterize the nature of Plaintiffs free speech and

association claim. The Petition is not based on a First Amendment right to record open

meetings. (Defs Brf. at p. 23.) Rather, Plaintiffs rely on the right to record as set forth

in the Sunshine Law. Defendants cannot use a policy, even one based on a rule of

proceeding, to unconstitutionally regulate that right. Moreover, Plaintiffs rely on the right

created by Defendants in Senate Rule 96 and in allowing the media and, in some

instances in the past Plaintiffs, to film open meetings. Having allowed cameras in

committee meetings and having given access to some groups to film, Defendants

violate Plaintiffs rights of free speech and association by: (1) forcing Plaintiffs to join a

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private news organization to get the same access; (2) drawing an unprincipled

distinction between the press and interested members of the public; (3) failing to follow

their own rule allowing cameras at committee meetings; and, (4) giving unfettered

discretion to Chairmen to deny the use of cameras. Notwithstanding and independent

of any constitutional right to videotape, Defendants as state actors cannot regulate

rights which they have created in a way that is arbitrary or discriminatory or excludes

persons contrary to constitutional norms.

Plaintiffs agree with Defendants on one point that the Missouri House and

Senate passed the Sunshine Law to reflect the states commitment to openness in

government. (Defs Brf. at p. 1) (citing News-Press and Gazette Co. v. Carthcart, 974

S.W.2d 576, 578 (Mo. App. W.D. 1998). It is ironic, then, that Defendants, who include

members of the states most important policy-making body, seek to unilaterally excuse

themselves from the Sunshine Law and advocate for a prerogative to limit if not prohibit

the recording of public meetings. This is contrary to the states policy in favor of

openness and only hinders the goals of a more informed public and of improving the

accountability of governmental bodies.

II. PLAINTIFFS FACTUAL ALLEGATIONS

Plaintiff Progressive Missouri, Inc. is a progressive advocacy organization and

Plaintiff Sean Soendker Nicholson is its executive director. (Pet. 3-4.) For years,

Progressive Missouri has filmed various hearings before House and Senate

Committees. (Pet. 14.) For example, in late January 2015, Progressive Missouri

filmed a hearing before a House Committee held off-site at the Jefferson City Country

Club. (Pet. 19.) These hearings and those covered by the Petition are open to the

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public, and include discussion and testimony of witnesses about state policy matters

and/or pending legislation. (Pet. 40-41.)

Progress Missouri posts recordings of Committee meetings on its website and

sometimes livestreams hearings. (Pet. 17.) It uses the recordings to monitor elected

officials and to inform the public and other organizations about policy matters from a

progressive point of view. (Pet. 18.)

Beginning in early February 2015, Defendants, Senators Mike Kehoe, David

Sater, and Mike Parson, and/or their representatives or agents informed Plaintiffs that

they could not film their committee meetings. (Pet. 21, 27, 32.) The Senators are

the Chairs of their committees. (Pet. 6-11.) Senator Kehoe stated that videotaping

is only allowed for press corps members with previous permission. (Pet. 23.)

(emphasis added). Senator Sater stated that videotaping is prohibited unless you are a

member of the media as recognized by the Missouri Capitol News Association and that

Senate Communications records every meeting. (Pet. 27.)

Progress Missouri continued to attempt to film committee meetings, as it had

done in the past. (Pet. 33, 37.) On March 10, 2015, Senator Parson stated at a

hearing that all cameras were prohibited and everybody with cameras and everything

just put them up. Put em up. No cameras. (Pet. 33.) (emphasis added). He stated

no exception for the press. (Pet. 33.) On March 31, a Senate doorkeeper

accompanied by two police officers instructed a representative of Progress Missouri,

who was in the process of setting up a camera to record a hearing before the Small

Business Committee, to not film the hearing. (Pet. 37.)

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Despite Senator Saters statement that Senate Communications records every

meeting, Senate Communications failed to record some meetings and portions of others

during this time period, including meetings that Progress Missouri specifically asked to

film. (Pet. 29-30, 35.) In addition, members of the Missouri Capitol News

Association did not attend and film all of the hearings which Progress Missouri wished

to film. (Pet. 42, 44.)

III. ARGUMENT

A. Legal Standard

A court deciding a motion to dismiss for failure to state a claim must assume that

all of the plaintiffs allegations are true, and must give the plaintiffs all reasonable

inferences arising from such allegations. Harris v. Missouri Dept of Conservation, 755

S.W.2d 726, 729 (Mo. App. W.D. 1988). If, viewed in this light, the allegations invoke

substantive principles of law, which if proved may entitle the pleader to relief, the

petition is not to be dismissed. Tyler v. Housing Authority of Kansas City, 781 S.W.2d

110, 112 (Mo. App. W.D. 1989).

B. Defendants Misstate Plaintiffs Allegations Regarding the Press and Senate Communications and Fail to Accept as True Facts that Show that Senate Rule 96 Does Not Comply with the Sunshine Law.

Section 610.020.3 of the Sunshine Law provides that a public body shall allow

for the recording by audiotape, videotape, or other electronic means of any public

meeting. Plaintiffs allege that the Missouri Senate and its committees are public bodies

and that committee hearings are open meetings. Plaintiffs have alleged that they

sought access to committee meetings to film hearings. Plaintiffs have also alleged that

Defendants prohibited them from filming. The alleged facts state a Sunshine law claim.

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Defendants contend that Plaintiffs have admitted that the Missouri Senate has

allowed for the recording of committee meetings. This is incorrect. Plaintiffs allege that

Defendants have stated that they have permission to deny persons, including the press,

the right to record. (Pet. 23.) Plaintiffs allege that on March 10 Senator Parson

announced at an open meeting that no cameras were allowed without making any

exception for the press. (Pet. 33.) And, Plaintiffs allege that they have not been

allowed to record meetings. (Pet. 55.) Plaintiffs existing allegations -- that

Defendants claim they may deny permission to anyone to record a meeting and that

Senator Parson said no cameras on March 10 with no exception for the media -- are

sufficient. The facts as accepted as true show that Defendants are not allowing for the

recording of meetings. The Court should not permit Defendants to go outside the

alleged facts, or make incorrect inferences about them, in a motion to dismiss. The

alleged facts, taken as true, entitle Plaintiffs to relief.1

Defendants are also incorrect in suggesting that Senate Communications records

every meeting. In fact, Plaintiffs specifically allege that Senate Communications failed

1 Notwithstanding, to the extent Defendants go outside the pleadings, Plaintiffs believe that evidence will show that Defendants have denied the public and the press the right to record meetings in other instances. For example, PoliticMO reported on April 1, 2015 that Senator Parson denied a request by Kermit Miller, a veteran report of Jefferson City television station KRCG, to film a hearing. See Eli Yokely, Senate committee denies requests of reporter, activist to film, PoliticMO (April 1, 2015) (available at: http://politicmo.com/2015/04/01/senate-committee-denies-requests-of-reporter-activist-to-film/). In addition, the St. Louis Post-Dispatch reported that Senator Parson announced at a hearing on May 11, on a pending bill on right to work, that there would be no audio or video recording allowed by journalists or the public. When radio journalists protested, Senator Parson allowed audio recording, but still denied video recording. See Kevin McDermott, You need to give me your phone camera restrictions in legislative hearings spur debate, St. Louis Post-Dispatch (May 12, 2015) (available at: http://www.stltoday.com/news/local/govt-and-politics/you-need-to-give-me-your-phone-camera-restrictions-in/article_45e1c620-b0be-5108-bf79-4713c563cd96.html.)

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to record meetings, even after Plaintiffs requested to film some of those meetings. (Pet.

29-30, 35.) To the extent Defendants rely on a purported allegation in their legal

argument that they allow for the recording of meetings by providing copies of recordings

made by Senate Communications, Defendants argument fails. People cannot obtain

copies of recordings that do not exist.

Defendants also misconstrue the law. The right to record in Section 610.020.3 is

not limited to the press. It is a right to the public, in a section of the Sunshine Law which

sets forth the requirements of public bodies to open their meetings to all. Limiting

recording to the press would be as absurd as limiting other rights in the Sunshine Law

to the press. It is especially absurd when the public body seeks to arbitrarily define the

press as members of particular private news organizations but not citizens who

distribute community newsletters or who write articles for free for advocacy

organizations. The public has the right to attend and film open meetings and to obtain

public records, not simply the press.

Likewise, Defendants do not allow for the recording of meetings by directing

their own staff, in Senate Communications, to film them and later provide copies to the

public. Plaintiffs allege that Senate Communications has failed to record meetings.

But, even if Senate Communications recorded every meeting, Plaintiffs would still have

the right to film them too. The verb allow means to approve of or to permit. Oxford

English Dictionary, http://www.oed.com/view/Entry/5460?redirectedFrom=allow#eid (last

visited June 4, 2015). The plain language of the provision requires a public entity to

approve or permit someone, other than itself, to do something. But, Defendants are not

allowing any member of the public to do any recording when Defendants record their

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own meetings and deny the public the right to record. Defendants interpretation is

patently inconsistent with the express public policy of the state, as stated in the

Sunshine Law, that meetings be open to the public and that the law be liberally

construed and their exceptions strictly construed to promote this public policy.

610.011.1, R.S.Mo. The Court should read the provision on the recording of meetings

liberally. It does not advance openness and public accountability for a public body to

restrict recording to one group or to provide copies of recordings after the fact. Rather,

it serves openness and public accountability for members of the public to be allowed to

record meetings on their own by the means they choose audiotape, videotape, or

other electronic means.

Defendants seek to justify their claim by a provision in the Sunshine Law that

states that a public body may establish guidelines regarding the manner in which such

recording is conducted so as to minimize disruption to a meeting. 610.020.3. They

contend that Rule 96 establishes these guidelines. (Defs Brf. at p. 11.) In light of

Defendants other contention, addressed later, that they may unilaterally exempt

themselves from the Sunshine Law by this same rule, it is inconsistent for Defendants to

rely on Rule 96 as compliance with the law. Defendants seek to have it both ways. But,

even considering Rule 96, this argument fails.

First, Defendants characterize Rule 96 as allowing members of certain press

organizations the Missouri Capitol News Association and Missouri Press Corps2 -- but

not others or the public to record meetings. But, the Rule is not worded so strictly. It

2 The Missouri Capitol News Association is a private organization, with its own bylaws, dedicated to covering news at the Capitol. (Pet. 63.) Plaintiffs are not aware of a separate organization called the Missouri Press Corps and assume that Defendants mean the News Association when they refer to the Press Corps.

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states, in the third sentence, that [p]ersons with cameras, flash cameras, lights or other

paraphernalia may be allowed to use such devices at committee meetings with the

permission of the Chairman as long as they do not prove disruptive to the decorum of

the committee. (Def.s Brf. at Ex. B.) The word [p]ersons by any reasonable

definition means more than the press; and persons, not just the press, can certainly

respect the decorum of a committee. In this regard, the Senate knows how to make

rules specific to the press. The first sentence of Rule 96 speaks about the use of

laptops by the press at the press table. (Def.s Brf. at Ex. B.) If Defendants wanted to

draft a guideline that allows the press to use cameras at committee meetings, but not

other persons, however unlawful, then it would have drafted the third sentence of Rule

96 like the first sentence to distinguish between the press and persons. But,

Defendants did not do this, and instead drafted a rule that plainly allows persons,

including the public, to use cameras at meetings.

Second, Plaintiffs allege that Senator Parson barred all cameras at least one

time. Thus, Defendants claim that they only allow members of the press to record

meetings in order to minimize disruption is contested. Since Defendants have denied

permission even to the press to record a meeting, regardless of the circumstances, then

Rule 96 does not really serve to control potential disruption.

Third, as noted above, the right to record meetings in the Sunshine Law is not

restricted to whom a public body defines as the press. The law allows a public body to

establish guidelines regarding the manner in which such recording is conducted so as

to minimize disruption to the meeting. 610.020.3, R.S.Mo. A fair reading of this

clause, and in particular its use of the word manner, is that it covers conduct that

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interferes with a entitys deliberations or the publics ability to listen and participate, such

as distracting lights and blocking aisles. The default is that the public and the press are

allowed to record a meeting, unless the manner in which they do so is disruptive.

Defendants view, as they claim with regard to Rule 96, goes too far. They would have

the Court hold that a public body may assume that the manner in which persons other

than professional journalists will record a meeting will be disruptive. This violates the

spirit and purpose of the Sunshine Law. It limits openness to the public rather than

expanding it. See also Tarus v. Borough of Pine Hill, 916 A.2d 1036, 1047-1048 (N.J.

2005) (citizen has right to videotape public meeting subject to neutral guidelines to

protect against disruption, such as the number and type of cameras, positioning, and

activity of operator, and lighting; public body unlawfully denied right where citizens

camera was compact, quiet and unobtrusive); Pinellas County Sch. Bd. v. Suncam,

Inc., 829 So.2d 989 (Fla. App. 2d Dist. 2002) (school board violated Florida Sunshine

Law when it denied corporations request to unobtrusively videotape meetings);

For Rule 96 to comply with the Sunshine Law, Defendants must show that the

particular manner in which Plaintiffs seek to record meetings will be disruptive. At this

stage of the case, Defendants cannot. Plaintiffs allege that they have recorded

meetings in the past without disruption. (Pet. 16.) Plaintiffs also allege that they will

not disrupt the decorum of any hearing. (Pet. 56.) Yet, Defendants have prohibited

them from using cameras at meetings. Thus, Plaintiffs have alleged sufficient facts to

state a Sunshine Law claim.

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C. Plaintiffs Sunshine Law Claim Presents a Justiciable Question Because Rule 96 is not a Procedural Rule and the Constitution Does not Allow Individual Members of the Senate to Exercise Discretion to Exempt Themselves from Statutory Obligations that Apply to Them.

The crux of Defendants claim is that Article III, Section 18 of the Missouri

Constitution permits individual Senators, pursuant to Senate Rule 96, to exempt

themselves from the Sunshine Law. But, Rule 96s provision on the recording of

meetings is not a rule of proceeding governed by Article III, Section 18. It has no effect

on how the Senate drafts laws, funds measures, assigns bills to Committee, amends

bills, and makes law. In addition, Defendants argument ignores the Courts authority to

interpret the Constitution and the laws. The Court is not precluded from reviewing an

action of the legislature simply because the Constitution gives the legislature the power

to act. Moreover, individual Senators do have the unilateral and discretionary right,

under a rule, to suspend or modify a state statute that was adopted by both houses and

approved by the Governor and which applies to them. Such a proposition would lead to

absurd, if not dangerous, results where the Senate could adopt rules exempting itself

from all types of laws.

To begin with, Missouris Sunshine Law undoubtedly applies to the Missouri

Senate and its committees. The law defines public governmental body as any

legislative, administrative, or governmental entity created by the constitution and

specifically includes any committee appointed by or at the direction of any of the

entities. 610.010(4). The Missouri Senate, created by Article III of the Constitution,

and its committees, fall under this definition.

In fact, Jay Nixon, when he was Attorney General, issued an Opinion Letter

specifically finding the General Assembly to be subject to the Sunshine Law. He opined

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that telephone billing records of an individual member of the House are public records

as defined by the Sunshine Law and must be made available for copying and

inspection. Opinion Letter No. 192-94 (August 25, 1994) (attached hereto as Exhibit 1).

Notably, in footnote I in that letter the Attorney General specifically distinguished an

earlier ruling in the Iowa case which Defendants rely on -- Des Moines Register and

Tribune Co. v. Dwyer and the argument that the legislature has the power to create

rules for its proceedings, stating that, due to differences in the various states

constitutions, statutes, and polices, the case was not applicable to the determination of

the issue in Missouri. Although this letter is not binding, this Court may certainly

question the Attorney Generals office taking the exact opposite position in this case.

Defendants argue that Plaintiffs Sunshine Law claim is a non-justiciable political

question. Article III, Section 18 gives the Missouri Senate the authority to determine

the rules of its own proceedings. But, Rule 96, with regard to the use of cameras at

committee meetings, is not in any fair sense a rule of proceeding.

In construing constitutional provisions, the Court ascribes to words the meaning

which the people understood them to have when the provision was adopted. State ex

rel. Danforth v. Cason, 507 S.W.2d 405, 408 (Mo. 1973). The Court gives the words

used their ordinary and usual meaning. Id. at 409 (citing Household Finance

Corporation v. Schaffner, 203 S.W.2d 734, 737 (Mo. 1974)).

As Defendants note, the provision in the Missouri Constitution giving the

legislature to power to determine its rules of proceedings was first adopted in 1820.3

3 It is notable that the first practical camera was not invented as of 1820. The daguerreotype was publicly unveiled in 1839. And, the first Kodak camera went on the market in 1888. Wikipedia, History of the camera,

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The Oxford English Dictionary notes use of the word proceedings around that time to

mean the carrying on of an action or series of actions. Oxford English Dictionary,

http://www.oed.com/view/Entry/151779?redirectedFrom=proceedings#eid (last visited

June 4, 2015). With regard to legislative action, the carrying on of action means the

steps taken to pass a bill. By every reasonable understanding of the term,

proceedings means the actions necessary to pass a bill drafting, referral to

committee, appropriating funds, amendments, readings, publication, and votes.

Whether a member of the public seeks to record a committee meeting has no effect on

this process. The recording of a meeting is not a step in the process of passing a bill.

And, recording a meeting does not alter the way the Senate reviews, amends, reads,

and passes a bill. See Watson v. Fair Political Practices Commission, 217 Cal. App. 3d

1059 (Cal App. 2d Dist. 1990) (term rules of proceedings relates to manner in which

legislature draft rules, appropriates funds, and chooses officers, and does not extend to

matters that affect citizens of the state).

The Sunshine Law confirms this limited definition of proceedings. Section

610.015, R.S.Mo. explicitly references the General Assemblys right to make rules

under the Missouri Constitution. It provides: Except as provided in section 610.021,

rules authorized pursuant to Article III of the Missouri Constitution and as otherwise

provided by law, all votes shall be recorded, and if a roll call is taken, as to attribute

each yea and nay vote, or abstinence if not voting, to the name of the individual

member of the public governmental body. 610.015, R.S.Mo. (emphasis added). This

http://en.wikipedia.org/wiki/History_of_the_camera (last visited June 4, 2015). It is likely that in 1820 people attended meetings of the legislature, made sketches, and took notes. A phone camera is simply a better and no more obtrusive method than quill and parchment to record a meeting.

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provision confirms that the Sunshine Law applies to the General Assembly; otherwise,

there would be no need to reference its power to make rules. Moreover, this provision

confirms that rules of proceeding are limited to the process of passing a bill, such as

recording votes. This is the only provision in the Sunshine Law exempting the General

Assembly from an obligation under the law by its power to make rules, and it is limited

to a basic internal procedural matter that does not affect others. The provision in the

law on the recording of open meetings does not include any reference to rules under

Article III or similar language.

The General Assembly, including the Senate, was surely aware of the scope of

its power under the Missouri Constitution to adopt rules of proceedings when it drafted

and passed the Sunshine Law. It also knew how to subject itself to the Sunshine Law

and how to exempt itself by reference to its rules. That the General Assembly referred

to its power to make rules to exempt itself from how the votes of its individual members

should be recorded, but not with regard to any other matter, including the recording of

meetings, is compelling evidence that the General Assembly understands its authority

on rules of proceedings to extend only to internal affairs on passing a bill, and not to

matters relating to the publics right to record committee meetings during that process.

Defendants argue that application of the Sunshine Law to the Missouri Senate is

a political question not subject to review because the people by Article III, Section 18

have made a textually demonstrable constitutional commitment to the Senate to

determine the rules of its own proceedings. (Defs Brf. at 14-15.) But, this argument

assumes that the Senates rules of proceedings extend to matters unrelated to the

actions required to enact a law. The Senate cannot simply label a matter a rule of

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proceeding, and thereby immunize itself from judicial review. Missouri case law is clear

that the courts have the power, indeed the responsibility, to determine whether the

Senate is acting beyond its constitutional authority. Rolla 31 School Dist. v. State, 837

S.W.2d 1, 3-4 (Mo. 1992) (court may review legislative action involving appropriations,

even though legislature has constitutional power to make appropriations; we reject the

contention that courts do not have jurisdiction to decide constitutional issues in areas in

which the legislature is entitled to supremacy by reason of the separation of powers

doctrine.); State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo. 1973) (court is not denied

jurisdiction by separation of powers doctrine to determine whether governor exceeded

his veto authority in striking words from bill but leaving appropriations standing).

Accordingly, this Court may find that Rule 96 is not a rule of proceeding and that the

Senate is acting beyond its authority in barring Plaintiffs from filming open meetings.

Danforth v. Banks, 454 S.W.2d 498 (Mo. 1970) does not help Defendants. That

case dealt with whether the Court had the power to review the legislatures decision that

a State Representative, Jet Banks, was qualified to be a member of the House. Under

the Constitution, a representative must be a resident. When the Attorney General

questioned whether Banks lived in his district, the Court refused to intervene, based on

language in Article III, Section 18 making each house the sole judge of the

qualifications of its members.

Banks does not say that the House can set its own qualifications or that the Court

cannot review the scope of the Houses authority in matters relating to qualifications. It

dealt with the simple question of who can judge an established qualification. In the

same vein, Banks does not mean that the Senate may simply declare a rule on cameras

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to be a rule of proceeding and exempt itself from the Sunshine Law, and the case does

not mean that the Court cannot review the Senates rules and actions. State ex rel.

Gralike v. Walsh, 483 S.W.2d 70 (Mo. 1972) is instructive. There, the Court rejected the

claim that only the Senate could disqualify a candidate from running in a primary

election due to questions about the candidates residency. The Court construed Article

III, Section 18 to limit the Senates power to judge qualifications to when a general

election had been held and the member sought his seat, and not before. Similarly,

here, the Court has the power to construe the scope of Article III, Section 18 with regard

to what constitutes a rule of proceeding and the Senates authority to exempt itself from

a law by a claimed rule. See also Powell v. McCormack, 395 U.S. 486, 547-548 (1969)

(court is not prevented from adjudicating claims regarding a U.S. representatives

qualifications to serve, notwithstanding constitutional provision giving the U.S. House

the power to adjudicate his qualifications, where action by House is contrary to the

basic principles of our democratic system).

Defendants further argue that Rule 96 controls over the Sunshine Law. Plaintiffs

agree that the Constitution gives the Senate the power to adopt rules relating to its own

affairs in passing a bill. But, this does not mean that the Senate can adopt a rule giving

individual Senators the power to suspend a law that applies to them. The required

method to change the law is for the Senate and the House to pass a new bill. Until they

do so, the Senate is bound by the law. See Bergman v. Mills, 988 S.W.2d 84, 89 (Mo.

App. W.D. 1999) (General Assembly lacks power to draft summary for referendum

where it had given that power to Secretary of State; General Assembly has all the

powers necessary to enable it to exercise in all respects its appropriate functions

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except so far as it may be restrained by the express provisions of the Constitution, or

by some express law made unto itself, regulating and limiting the same.) (emphasis

added).

Having enacted the Sunshine Law, the Senate must comply with its applicable

provisions like every other covered public body. It makes a mockery of the

constitutionally enshrined process for passing a law through both houses and

approval of the Governor or passage over his veto, see Mo. Const. Art. III, 31 if the

Senate can subsequently exempt itself from the law by unilaterally adopting a purported

rule of proceeding. A careful analysis of Article III, Section 18 does not lead to any

other conclusion. Article III, Section 18 does not create a right of any house to nullify

the law. It simply gives the Senate and the House to adopt rules relating to the

enactment of law.

Defendants argument gives the Senate a dangerous amount of power. If the

Senate can adopt a rule against the use of cameras, then under Defendants view it

could adopt a rule denying the use of pen and paper at meetings to take notes. Or, it

could adopt a rule denying the public any access to committee meetings. Or, it could

adopt a rule that only supporters of bill will be allowed to attend meetings. Or, it could

adopt a rule exempting it from other laws, for instance rules on the hiring of men and

women or employing interns that may otherwise violate the Missouri Human Rights Act.

The Senate would simply have to state that it is adopting a rule of proceeding. Nothing

under the Constitution sanctions such a result, and the Court should not give the Senate

a free pass to avoid the Sunshine Law in this case.

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Finally, the Court need not follow Des Moines Register and Tribune Co. v.

Dwyer, 542 N.W.2d 491 (Iowa 1996). Obviously, this court is not bound by a case from

another state. In addition, there are differences in the relevant law namely, the

Sunshine Law recognizes an exemption for Senate Rules on recording votes, but not for

the recording of meetings. Thus, the Court may find, as Attorney General Nixon did,

that Article III, Section 18 is not applicable in this case. Finally, this Court should

recognize the critical principal, as noted by the dissent in the Des Moines Register case,

that the Senate does not have the right to suspend a self-imposed statutory obligation

without first amending or repealing the statute. Id. at 503 (Harris, dissenting). Until the

Sunshine Law is changed, the Senate must comply with it, and cannot by rule exempt

itself from the laws provisions.

D. Plaintiffs Petition States a Claim for Violation of the Freedom of Speech and Association Because, Having Allowed Recording of Meetings to Some, Defendants cannot deny Plaintiffs the same Right.

It is well-accepted that the state legislature may not ignore constitutional

restraints even in following rules that it has the power to adopt. The Senate may not by

its rules ignore constitutional restraints or violate fundamental rights, and there should

be a reasonable relation between the mode or method of proceeding established by the

rules and the result which is sought to be obtained. United States v. Smith, 286 U.S. 6,

33 (1932) (citing United States v. Ballin, 144 U.S. 1, 5 (1892)). When application or

construction of a rule infringes on the constitutional rights of a member of the public, the

question presented is necessarily a judicial one. Yellin v. United States, 374 U.S. 109,

143-144 (1963).

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Plaintiffs constitutional claim is based on the established proposition that once

the state grants a right, it cannot deny that right in a discriminatory or unconstitutional

manner. Government may not grant the use of a forum to people but deny it to others

based on their message or views. See Police Department of the City of Chicago v.

Mosley, 408 U.S. 92, 96 (1972). Courts condemn such discrimination among different

users. Id. Similarly, because of their potential use as instruments for selectively

suppressing points of view, courts condemn licensing schemes and policies that lodge

broad discretion in a public official to permit speech-related activity. Id.; see also

Widmar v. Vincent, 454 U.S. 263 (1981) (having created a forum for use through its

policy of accommodating meetings, university cannot discriminate against users based

on religious nature of meeting).

Here, the State has granted a right. The Sunshine Law sets a public policy in

favor of openness and gives the public the right to record open meetings. In addition,

the Senate has created a right by Rule 96 stating that persons may use cameras at

committee meetings and by its actions sometimes granting permission to the press

and even Plaintiffs to record meetings. Accordingly, the Senate cannot discriminate

among people who seek to record meetings. But, this is exactly what it has done.

Defendants application of Rule 96 infringes on Plaintiffs constitutional rights by

discriminating against them.

First, Defendants are conditioning the right to record on Plaintiffs joining a private

news organization. This violates constitutional norms. As alleged in the Petition,

member of the News Association must be editorially independent of any interest group.

But, Plaintiffs are an advocacy organization and use recordings for the benefit of their

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goals and for progressive groups. They do not wish to join the News Association,

subject themselves to the groups requirements, and have to censor their own speech.

Defendants requirement burdens Plaintiffs right to free speech and association. They

cannot be compelled to join such an organization. Cf. Elrod v. Burns, 427 U.S. 347

(1976) (employee cannot be compelled to join political organization); Lathrop v.

Donohue, 367 U.S. 820 (1960) (lawyer may be compelled to join integrated bar, but not

fund its political speech).

Second, Defendants draw an unprincipled distinction between the press and the

public that is unconstitutional. Defendants define the press as members of one

particular private news organization. They do not afford the same recognition to

members of other news organizations, let alone to citizens who write articles, blog, and

post messages about policy matters. There may be no difference between a

professional journalist and citizen journalist in their work, but the Senate may allow one

to record sometimes but not the other. It may be that the Senate thinks that members

of the News Association are objective. But, this is a distinction based on the content of

speech. The Senate may also claim that giving access to the News Association is a

simple means to prevent too many people from filming. But, such a policy is not

reasonable. It is not based on how many people request to film a hearing and whether

the manner in which any person will record a meeting will be disruptive. A blanket

exception for the members of the press does not pass judicial scrutiny.

Third, as noted earlier, Defendants fail to follow the plain language of Rule 96

and are thereby acting in an arbitrary manner. The Rule does not limit the right to

record to the press. Rather, it allows persons to use cameras. Defendants

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application of the Rule to bar Plaintiffs and others from recording, even when Plaintiffs

have been allowed to record in the past, is unreasonable and bears no relation to the

goal to be obtained - proper decorum.

Fourth, Rule 96 gives unfettered discretion to individual Senators to permit the

use of cameras in violation of fundamental constitutional principles. Rule 96 provides

no criteria for a Senator to grant or deny permission. It may be said that the Senator

bases a decision on whether the recording will be disruptive, but the allegations, which

must be taken as true, refute this. Senators have sometimes allowed and have

sometimes denied Plaintiffs permission to record. Senator Parson has also at least

once barred all cameras. By Plaintiffs allegations, none of these decisions are based

on whether the person seeking to record will be disruptive. Rather, they are based on

the complete discretion given to Senators to grant or deny permission. This is

unconstitutional. Such discretion may be used to discriminate against Plaintiffs on the

basis of their speech and association how they intend to use the recordings, their

progressive stance, or who they assist.

A helpful case is Belcher v. Mansi, 569 F. Supp. 379 (D.R.I. 1983). The plaintiffs

there were denied permission to tape record a public school committee meeting. The

district court found it unnecessary to decide if they had a First Amendment right to

record the meetings. Rather, the district court noted like in Missouri that the state open

meetings law expressed a policy in favor of openness and the accountability of public

institutions, thus triggering constitutional principles. In addition, the district court noted

that the defendants had adopted a policy allowing its meetings to be taped, thereby

creating a right. Having done so, the district court held, the Committee assumed an

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obligation to justify its discrimination and exclusions under applicable constitutional

norms. Id. at 384 (citing Widmar v. Vincent, 545 U.S. 263, 267 (1981)). The district

court then held that the defendants policy on videotaping was unconstitutional because

it granted unbridled discretion to Committee members to decide whether leave to

record public meetings will be granted. Id. at 385. Such broad discretion violates

constitutional norms because it permits a public official to act as censor. Id.

Defendants rely on Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004) and argue that

there is no constitutional right to videotape government proceedings. But, Rice is not

applicable. Contrary to Defendants contention, Plaintiffs claim is not based on an

independent constitutional right to videotape. Rather, Plaintiffs claim is based on how

the Senate has treated them as opposed to other groups and the requirements which

the Senate has imposed on them. In this regard, the plaintiffs in Rice made no claim

that the Missouri Department of Corrections had granted a right to videotape executions

in the past. Nor was there any claim that state law allowed the videotaping of

executions. Nor was there any claim that the Department of Corrections had placed

conditions on plaintiffs but not others in videotaping executions. In fact, it appears that

the defendants in Rice had promulgated a blanket policy against cameras. By contrast,

here, the Sunshine Law and Senate Rule 96 allow persons to use cameras to record

meetings, and the Senate sometimes allows members of the press, as the Senate

defines the press, and even Plaintiffs to use cameras.

Because state law and the Senate have created the right to videotape open

meetings, Defendants cannot discriminate against people and the press who wish to

videotape such meetings. Plaintiffs have alleged that Defendants have denied them

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the right to film in ways that burden their right to free speech and association by

discriminating against them or treating them in an arbitrary manner. Accordingly,

Plaintiffs constitutional allegations state a claim.

IV. CONCLUSION

For the foregoing reasons, Defendants Motion to Dismiss should be denied.

Respectfully submitted, SCHUCHAT, COOK & WERNER _/s/ Christopher N. Grant___________ Christopher N. Grant (M.B.E. #53507) George O. Suggs (M.B.E. # 31641) 1221 Locust Street, Second Floor St. Louis, MO 63103-2364 Tel: (314) 621-2626 Fax: (314) 621-2378 cng@schuchatcw.com gos@schuchatcw.com

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

The undersigned certifies that a true and accurate copy of the foregoing was served upon all participating parties via the Courts electronic filing system on this 5th day of June 2015.

_/s/ Christopher N. Grant_ Christopher N. Grant

609476.docx