IN THE CIRCUIT COURT OF COLE COUNTY

STATE OF MISSOURI
PROGRESS MISSOURI, INC., et al.,
Plaintiffs,
vs.
MISSOURI SENATE, et al.,
Defendants.

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Case No. 15AC-CC00160

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.

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

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

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.)

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.

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-activistto-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-meyour-phone-camera-restrictions-in/article_45e1c620-b0be-5108-bf794713c563cd96.html.)

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

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

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

11

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

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.
13

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

14

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

15

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

16

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.

17

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

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