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Electronically Filed - Jackson - Independence - September 18, 2018 - 03:57 PM

1816-CV24367

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI


AT INDEPENDENCE

Jeffrey J. Carey )
)
Plaintiff )
)
v. ) Case No:
)
Representative Rebecca Roeber ) Division:
SERVE AT: )
603 NE Clubhouse Dr )
Lee’s Summit, MO 64086 )
)
And )
)
Rick Roeber )
SERVE AT: )
603 NE Clubhouse Dr )
Lee’s Summit, MO 64086 )
)
Defendants )

PETITION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF FOR


VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE PLAINTIFF

COMES NOW the Plaintiff, Jeffrey J. Carey, pro se and by and through his attorney of record,

William Cownie and for his Petition for Declaratory Judgment and Injunctive Relief for

Violation of the Constitutional Rights of the Plaintiff states and alleges as follows:

PARTIES

1. Plaintiff Jeffrey J. Carey is an individual resident of the City of Lee’s Summit, County of

Jackson, State of Missouri and is a constituent of the 34th District of the Missouri House

of Representatives.

2. Defendant Representative Rebecca Roeber (“Representative Roeber”) is an individual

resident of the City of Lee’s Summit, County of Jackson, State of Missouri and is the
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elected representative of the 34th District of the Missouri House of Representatives and a

candidate for re-election on November 6, 2018.

3. Defendant Rick Roeber is an individual resident of the City of Lee’s Summit, County of

Jackson, State of Missouri and is a designated administrator of the Facebook page

https://www.facebook.com/RebeccaRoeberForDistrict34MoHouseOfRepresentatives/

4. The page referenced above is registered to an email address belonging to Representative

Roeber.

FACTUAL ALLEGATIONS

5. Plaintiff is a constituent of Representative Roeber and has closely followed her legislative

activities and documented her position on issues that are of importance to the voters in

her district.

6. On or about June 26, 2015 Representative Roeber sat down for an interview with

Comcast Newsmakers regarding charter school legislation (HB 42) in Missouri wherein

she stated:

a. “The Senate did expand [the provisions of HB 42 to include] charter schools, they

wanted it throughout the state.”;

b. [After changes in conference committee] “now it’s just in counties where there

are under-performing schools.”;

c. “I’m hearing from my superintendent in Lee’s Summit that he doesn’t like it

because we’re in Jackson County.”;

d. “The education community is pushing back on this mightily.”

https://youtu.be/w4iF75ikgfU
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7. Per her financial disclosure form filed with the Missouri Ethics Commission, on or about

November 30, 2016 Representative Roeber accepted a free trip to Washington, D.C. to an

event sponsored by ExcelInED. See Financial Disclosure attached hereto as Exhibit A.

It is noted and of interest that these receipts were not reported as lobbyist gifts and

therefore were only discoverable to the public in the event someone requested

Representative Roeber’s financial disclosures from the Missouri Ethics Commission as

they are not available online.

8. ExcelInEd is a charter school advocacy organization and regularly lobbies government

officials for its charter school and school choice agenda.

9. On January 18, 2017 Rebecca Roeber was the sole sponsor of HB 634. As introduced by

Representative Roeber on that date, the bill would have expanded charter schools to

every school district in the state including Lee’s Summit RVII. See HB 634 attached

hereto as Exhibit B.

10. On January 27, 2017 Representative Roeber was one of 21 elected officials nationwide to

sign a letter issued by ExcelInEd in support of the nomination of Betsy DeVos to

Secretary of Education in which they stated that “On this week, National School Choice

Week, we the undersigned endorse this champion of choice and the education reforms

needed to improve the future of every child in America. And we strongly advocate for her

confirmation as our next U.S. Secretary of Education.” See ExcelInEd open letter in

support of DeVos attached hereto as Exhibit C.

11. DeVos has been instrumental in the expansion of for-profit charter schools in Michigan

and it was reported that “A 2016 review commissioned by the National Education Policy

Center found that Michigan’s per-pupil spending, compared with that of neighboring
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Midwestern states, had fallen ‘from the middle of the pack to near the bottom.’” and that

“Michigan’s K-12 system is among the weakest in the country and getting worse. In little

more than a decade, Michigan has gone from being a fairly average state in elementary

reading and math achievement to the bottom 10 states. It’s a devastating fall.”

https://www.nytimes.com/2017/09/05/magazine/michigan-gambled-on-charter-schools-

its-children-lost.html

12. On or about August 29, 2017 Representative Roeber granted another interview to

Comcast Newsmakers discussing the bill she introduced in which she vowed that

“Charter schools are going to be back again.”

https://comcastnewsmakers.com/Videos/2017/08/29/school-choice-charter-schools

13. Per her financial disclosure form filed with the Missouri Ethics Commission, on or about

September 24, 2017 Representative Roeber accepted a free trip to Bonita Beach, Florida

to an event sponsored by EdChoice. See Exhibit A.

14. EdChoice is a charter school advocacy organization and regularly lobbies government

officials for its charter school and school choice agenda.

15. On November 11, 2017, in response to a tweet noting that Governor Eric Greitens had

turned over more than half of the state school board, Representative Roeber retweeted a

message about that occurrence and stated “Change on the way.” See Exhibit D attached

hereto.

16. Though former Governor Greitens’ campaign finances remain very murky, it has been

publicly reported that over $370,000 came from school choice advocacy organizations

including the DeVos family. https://www.kansascity.com/news/politics-

government/article152989334.html
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17. Plaintiff is concerned about the agenda collectively pursued by Representative Roeber,

Secretary DeVos, and former Governor Eric Greitens to expand for-profit charter schools

nationwide and, particularly, to the Lee’s Summit RVII school district.

18. Plaintiff registered as a constituent of Representative Roeber through the Facebook

feature called “Town Hall” and this allowed him to comment on posts made through that

forum as a constituent of Representative Roeber.

19. Plaintiff also started a Facebook page to collect information regarding Representative

Roeber’s record for public viewing which is located at

https://www.facebook.com/roeberiswrong

20. The website officially linked to Facebook Town Hall by Representative Roeber is the

following:
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https://www.facebook.com/townhall

21. Facebook describes Town Hall as “a place on Facebook for civic discovery and

engagement where you can: See the names and contact information of local, state and

federal government officials representing you. Contact your government officials

directly through Facebook. Connect with your government officials by following them.”

https://www.facebook.com/help/278545442575921?helpref=related

22. Defendants intentionally created, or caused to be created, the Rebecca Roeber For

District 34 Missouri House Facebook page and linked it to the designated public forum

created by Facebook in general and to Town Hall in particular.

23. Plaintiff followed Representative Roeber’s Town Hall page in order to engage in civic

discovery and engagement, to engage with her and her representatives regarding her

agenda, and to educate those following and commenting on her posts about

Representative Roeber’s charter school agenda and the potential for harm to RVII.

24. Representative Roeber, by and through her page administrator Rick Roeber, has engaged

in a practice of systematically hiding the comments made by the Plaintiff so that only the

Plaintiff and his friends on Facebook can see the comments he makes in the Town Hall

public forum. See screenshots from another constituent of the posts to the page as a

friend and as someone that is not a friend on Facebook attached hereto as Exhibit E.

25. Plaintiff has made request that the Defendants stop hiding his comments as evidenced by

the following exchange on September 11, 2018:


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26. On September 7, 2018 Representative Roeber posted the following on her Town Hall

page:
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27. The Plaintiff commented “Your opponent, Jim Ripley was a teacher too. The key

difference is that he supports the RVII public schools. You started promoting a charter

school agenda for Lee’s Summit. The Superintendent told you it was bad for Lee’s
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Summit. Your response was to take free trips to DC and the beach from charter schools

advocates and then to propose state-wide charter schools. Thanks but I’ll give my support

to an RVII advocate over that.”

28. The comment outlined at Paragraph 27 was hidden from view from other users of the

Town Hall forum. When another user noted a number of hidden comments (all made by

the Plaintiff) Rick Rober told them “You don't want to [see them] [Facebook user name

redacted] ... some untruths about Rebecca wanting charter schools for Lee's Summit.

Districts that excel would NEVER be a consideration and most people that are honest

know this….”

29. As demonstrated herein, Plaintiff’s comment was true and Rick Roeber’s comment was

not.

30. Representative Roeber’s Town Hall page posts a wide variety of political issues and is

regularly used to disseminate information regarding Representive Roeber’s activities as

an elected official with an opportunity for comment and debate by Facebook users. Even

without the Town Hall designation by Facebook, it is a public forum.

JURISDICTION AND VENUE

31. Plaintiff and Defendants are all residents of the County of Jackson, State of Missouri.

32. On information and belief, the decision to censor Plaintiff’s speech expressed through the

Facebook Town Hall forum was made in the City of Lee’s Summit, County of Jackson,

State of Missouri by Rick Roeber.

33. On information and belief, the authority to manage her Town Hall Facebook page was

delegated to Rick Roeber by Representative Roeber and they are acting in concert in

these actions as evidenced by Rick Roeber’s “we” comment in Paragraph 25.


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34. This lawsuit makes claim under the Missouri and Federal Constitution for violation of

Plaintiff’s right to free speech and Jurisdiction is vested in this Court pursuant to the

Declaratory Judgment Act and Chapter 526 RSMo.

COUNT I – DECLARATORY JUDGMENT

35. Plaintiff incorporates by reference the allegations made above as if more fully set forth

herein.

36. Plaintiff’s right to freedom of expression is guaranteed by Article I, Section 8 of the

Missouri Constitution which states in relevant part “[t]hat no law shall be passed

impairing the freedom of speech, no matter by what means communicated: that every

person shall be free to say, write or publish, or otherwise communicate whatever he will

on any subject,…”

37. Plaintiff’s right to freedom of expression is guaranteed by the United States

Constitution’s First Amendment which states in relevant part that “Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech….”

38. As the United States “Supreme Court recognized just a few [months] ago, social media

platforms like Facebook and Twitter provide ‘perhaps the most powerful mechanisms

available to a private citizen to make his or her voice heard.’ Packingham v. North

Carolina, slip op. at 8, 582 U.S. ____ (2017). These platforms have been

‘revolution[ary],’ not least because they have transformed civic engagement by allowing

elected officials to communicate instantaneously and directly with their constituents.

‘Governors in all 50 States and almost every Member of Congress have set up [Twitter]

accounts for this purpose,’ id. at 5, allowing citizens to ‘petition their elected
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representatives and otherwise engage with them in a direct manner,’ id. at 8. Twitter

enables ordinary citizens to speak directly to public officials and to listen to and debate

others about public issues, in much the same way they could if they were gathered on a

sidewalk or in a public park, or at a city council meeting or town hall.” Knight First

Amendment Institute v. Donald J. Trump et al, 1:17-cv-05205, United States District

Court for the Southern District of New York. {“Knight First Amendment Lawsuit”) See

Complaint attached hereto as Exhibit F.

39. The Knight First Amendment Lawsuit sought declaratory judgment and injunctive relief

arising out of President Trump’s blocking of individuals on Twitter commenting on posts

made on his @realdonaldtrump (as opposed to his official) Twitter account.

40. Though it is asserted that all social media spaces created by elected officials which

provide an opportunity for comment, interaction, and dialogue are designated public

forums, Facebook has explicitly designated websites connected to its Town Hall feature

as “a place on Facebook for civic discovery and engagement” and Representative Roeber

has purposefully availed herself of this forum to express political views.

41. Representative Roeber’s Facebook page at issue in this litigation is a designated public

forum.

42. As the Court noted in its ruling granting declaratory judgment in the Knight First

Amendment Lawsuit, “the ‘interactive space’ where [social media users] may directly

engage with the content of the [elected official’s] tweets -- are properly analyzed under

the ‘public forum’ doctrines set forth by the Supreme Court, that such space is a

designated public forum, and that the blocking of the plaintiffs based on their political
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speech constitutes viewpoint discrimination that violates the First Amendment. “ See

Declaratory Judgment attached hereto as Exhibit G.

43. Despite request, the Defendants have not remedied past violations of Plaintiff’s freedom

of speech under the Missouri and United States Constitutions and have refused to

unconditionally assure Plaintiff that they will not do so in the future.

44. The dispute regarding whether Defendants have violated Plaintiff’s rights is judiciable by

this Court and Plaintiff has a legally protectable interest.

45. The controversy is ripe for judicial determination and important public policy

considerations relating to political speech on social media platforms are implicated.

46. A reversal of these particular Defendants’ position, even if offered, would not provide an

adequate remedy as nothing would prevent future violations by these Defendants absent a

judicial declaration.

47. Plaintiff does not have adequate remedy at law.

WHEREFORE, for the foregoing reasons, Plaintiffs seeks declaration against all Defendants that

the Facebook page at issue in this litigation is a public forum, that the hiding of comments by

Facebook users that express dissenting views constitutes viewpoint discrimination under the

Missouri and United States constitutions, for the costs of this action, and for such other and

further relief as the Court deems just and proper on the premises.

COUNT II – TEMPORARY RESTRAINING ORDER, PRELMINARY INJUNCTION,


AND INJUNCTIVE RELIEF

48. Plaintiff incorporates by reference the allegations made above as if more fully set forth

herein.
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49. Plaintiff has suffered and is likely to continue to suffer harm that cannot be remedied or

repaired in light of the impending election on November 6, 2018.

50. Defendants have demonstrated a willingness to violate the Plaintiff’s civil rights and

injunctive relief is appropriate to remedy past harms and enjoin future harms.

51. In the absence of relief, Plaintiff will suffer immediate and irreparable injury, loss, or

damage as follows:

a. Existing posts for which Plaintiff’s Constitutional rights have already been

violated will continue to be silenced in the Town Hall and on Facebook;

b. There is a substantial likelihood that future posts will be censored;

c. Representative Roeber will be able to continue to deny how harmful her agenda

may be for the Lee’s Summit RVII school district in a designated public forum

without meaningful challenge;

d. Plaintiff will be deprived of the opportunity to speak in a designated public forum

during the days preceding a very important election; and

e. The public will be deprived of a discourse about issues that relate to the education

of our children.

52. As the relief requested is a remedy for the violation of constitutional rights of the

Plaintiff, a bond would be inappropriate or, in the alternative, should be set at a nominal

amount.

53. Plaintiff has provided 24 hour notice at the time of service of this Petition to the

Defendants that a hearing will be held on Plaintiff’s request for a temporary restraining

order and mandamus.


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54. Plaintiff believes that the facts are simple in this matter and that the Court should

consolidate the hearing on the request for preliminary injunction with the trial on the

merits of this cause of action prior to November 6, 2018.

WHEREFORE, for the foregoing reasons, the Plaintiff asks for the following relief in the form

of a temporary restraining order:

a) That Defendants be enjoined from censoring Plaintiff’s social media posts in the future;

b) That all of Plaintiff’s past posts be restored; and

c) For such other and further relief as the Court deems just and proper.

WHEREFORE, for the foregoing reasons, the Plaintiff asks for the following relief in the form

of a preliminary and/or permanent injunction on or before November 6, 2018:

a) That all Defendants be enjoined from censoring Plaintiff’s social media posts in the

future;

b) That all of Plaintiffs past posts be restored:

c) That the posts on which Plaintiff’s message was censored, in order to allow public

discussion of the content of the posts that was denied in the past, should be shared by

the page to the public on Facebook with the following introductory statement: “Per

Order of the Jackson County Circuit Court due to Representative Roeber’s violation

of Jeffrey Carey’s Constitutional rights, this post is being re-published with Mr.

Carey’s comments un-censored.”; and

d) For such other and further relief as the Court deems just and proper.

Respectfully submitted,
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By: /s/ William S. Cownie
William S. Cownie Mo. Bar No. 32368
EARNSHAW & COWNIE LAW FIRM, P.C.
1328 NE Windsor Dr
Lee’s Summit MO 64086
816-525-9200
816-246-9049 (F)
bill@cownielawoffices.com
ATTORNEY FOR PLAINTIFF

By: /s/ Jeffrey J. Carey


Jeffrey J. Carey Mo. Bar No. 46156
BOYD, KENTER, THOMAS & PARRISH, LLC
229 SE Douglas Street, Suite 210
Lee’s Summit, MO 64063
Telephone: (816) 246-9445
Facsimile: (816) 838-9800
E-mail: jcarey@bktplaw.com
PRO SE

VERIFICATION

STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )

I, Jeffrey J. Carey, am competent to testify regarding the matters set forth herein, am of

lawful age, and being first duly sworn, state and depose upon oath that I am of sound mind, capable

of making this affidavit, and that I am personally acquainted with the facts herein stated:

1. My name is Jeffrey J. Carey.

2. I am the Plaintiff in this action.

3. The facts set forth herein are true, correct, and accurate to the best of my knowledge and

belief.

FURTHER AFFIANT SAYETH NOT.


Electronically Filed - Jackson - Independence - September 18, 2018 - 03:57 PM
In Witness whereof, I have hereunto subscribed my name and affixed my official seal this
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