IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

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

DEFENDANTS MOTION TO DISMISS

Defendants, the Missouri Senate, Senator Mike Kehoe, Senator David

Sater, and Senator Mike Parson, along with the Missouri Senate Commerce,

Consumer Protection, Energy and the Environment Committee, the Missouri

Senate Seniors, Families and Children Committee, and the Missouri Senate

Small Business, Insurance and Industry Committee, by and through counsel,

the Missouri Attorney General, move to dismiss the above-captioned case,

and state in support as follows:

1. On April 15, 2015, Plaintiffs filed Case No. 15AC-CC00160,

regarding attempts to personally record hearings before select committees of

the Missouri Senate. In their Petition, Plaintiffs allege a violation of

Missouri Sunshine Law, 610.010, et seq., RSMo (2013 Cum. Supp.), and a

violation of the rights of freedom of speech and association.

2. As set forth in the accompanying suggestions in support,

2

incorporated herein by reference, the Plaintiffs claims fail.

WHEREFORE, Defendants respectfully request this Court to issue an

Order and Judgment dismissing Plaintiffs Petition, and for such other and

further relief this Court deems just and proper.

Respectfully submitted, CHRIS KOSTER Missouri Attorney General By: /s/ Jeremiah J. Morgan

Jeremiah J. Morgan Mo. Bar #50387 Deputy Solicitor General P.O. Box 899 Jefferson City, Missouri 65102-0899 Telephone: (573) 751-1800 Facsimile: (573) 751-0774 jeremiah.morgan@ago.mo.gov

ATTORNEYS FOR DEFENDANTS

3

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served

via Missouri CaseNet e-filing system, this 22nd day of May, 2015, to:

Christopher N. Grant George O. Suggs SCHUCHAT, COOK & WERNER 1221 Locust Street, Second Floor St. Louis, Missouri 63103 cng@schuchatcw.com gos@schuchatcw.com Attorneys for Plaintiffs

/s/ Jeremiah J. Morgan Jeremiah J. Morgan Deputy Solicitor General

IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

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

SUGGESTIONS IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

Defendants, the Missouri Senate, Senator Mike Kehoe, Senator David

Sater, and Senator Mike Parson, along with the Missouri Senate Commerce,

Consumer Protection, Energy and the Environment Committee, the Missouri

Senate Seniors, Families and Children Committee, and the Missouri Senate

Small Business, Insurance and Industry Committee, by and through counsel,

the Missouri Attorney General, submit the following Suggestions in Support

of Defendants Motion to Dismiss.

INTRODUCTION

The Missouri House and Senate passed, and the Governor signed, the

open records law to reflect the states commitment to openness in

government. See News-Press and Gazette Co. v. Cathcart, 974 S.W.2d 576,

578 (Mo. App. W.D. 1998). And in 2004, that openness was expanded again

by the General Assembly to allow for the recording by audiotape,

2

videotape, or other electronic means of any open meeting. 610.020.3

(emphasis added). The Missouri Senate itself has done just that allowed for

the recording of its committee meetings.

Plaintiffs admit in their Petition that members of the Missouri Capitol

News Association and the Missouri Press Corps are allowed to record

Missouri Senate committee meetings. Petition, 23, 26, 27 & Exhibit 3. In

addition, Plaintiffs admit that committee meetings are recorded by Senate

Communications and made available to the public. Petition, 23, 27 &

Exhibit 3.

What is more, Missouris open records law provides that a public body

may establish guidelines regarding the manner in which such recording is

conducted so as to minimize disruption to the meeting. 610.020.3. Again,

the Missouri Senate has done just that, having passed Senate Rule 96 for the

recording of committee meetings. But the Missouri Senates authority to

establish guidelines is more than just statutory, it is constitutional. The

Missouri Constitution, starting in 1820 and continuing to today, authorizes

the Missouri Senate to determine the rules of its own proceedings. Mo.

Const., Art. III, 18.

The constitutional authority of the Missouri Senate to determine the

rules of its own proceedings is more than an interesting side-note to the

openness of committee meetings, it actually ends the inquiry. It makes the

3

matter, in the words of the Missouri Supreme Court, a political question,

State ex info. Danforth v. Banks, 454 S.W.2d 498, 500 (Mo. banc 1970),

entirely immune from judicial review. Bennett v. Mallinckrodt, Inc., 698

S.W.2d 854, 864 (Mo. App. E.D. 1985). Even the Lieutenant Governor, who is

the President of the Senate, Mo. Const., Art. IV, 10, must conform to

procedural rules of the senate authorized and adopted pursuant to Art. III,

18. State ex info. Danforth v. Cason, 507 S.W.2d 405, 413-14 (Mo. banc

1973).

The Missouri Senate has constitutionally adopted rules for the

recording of committee meetings and those rules are controlling in this case

so long as those rules do not violate some other provision of the

constitution. 16 C.J.S. Constitutional Law 338. Plaintiffs, of course, allege

that being denied the opportunity to personally record committee meetings is

a violation of their freedom of speech or association rights under the

constitution. Not so. As the Eighth Circuit has held, neither the public nor

the media has a First Amendment right to videotape, photograph, or make

audio recordings of government proceedings that are by law open to the

public. Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004). As such, Plaintiffs

claims should be dismissed as political questions or for failure to state a

claim.

4

STATEMENT OF FACTS

On a motion to dismiss, the pleadings are liberally construed and all

well-pleaded facts are accepted as true and construed in a light most

favorable to the pleader. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 410

(Mo. App. W.D. 2000). Here, Plaintiffs assert that they have been denied the

right, under Missouris open records law, 610.010, et seq., RSMo (2013

Cum. Supp.),1/ and the Missouri Constitution, Mo. Const., Art. I, 8, to

personally record Missouri Senate committee meetings. The alleged facts

(and associated law) in this case are dispositive of the claims.

A. The Missouri Senates Constitutional Authority.

Like most state constitutions, the Missouri Constitution establishes

separation of powers as a fundamental principle of government:

The powers of government shall be divided into three

distinct departmentsthe legislative, executive and

judicialeach of which shall be confided to a separate

magistracy, and no person, or collection of persons,

charged with the exercise of powers properly belonging

to one of those departments, shall exercise any power

properly belonging to either of the others, except in

1/ All references to the Revised Statutes of Missouri will be to the 2013

Cumulative Supplement unless otherwise noted.

5

the instances in this constitution expressly directed

or permitted.

Mo. Const., Art. II, 1 (emphasis added).

Along with this declaration concerning separation of powers, the

Missouri Constitution describes the various powers of government, including

the legislature. Article III relates specifically to the legislative department

and provides the following powers of the General Assembly of the State of

Missouri, including the Missouri Senate:

Each house shall appoint its own officers; shall be

sole judge of the qualifications, election and returns

of its own members; may determine the rules of its

own proceedings, except as herein provided; may

arrest and punish . . . any person not a member, who

shall be guilty of disrespect to the house by any

disorderly or contemptuous behavior in its presence

during its sessions; may punish its members for

disorderly conduct; and, with the concurrence of two-

thirds of all members elect, may expel a member . . . .

Mo. Const., Art. III, 18 (emphasis added).

The provision authorizing the Missouri Senate to determine the rules

of its own proceedings was adopted with the 1945 Constitution. But it was

6

not new to the 1945 Constitution. Its origins are in the very first Constitution

of the State of Missouri. The original 1820 Constitution provided, as the

Missouri Constitution does today, that [e]ach house may determine the rules

of its proceedings. 1820 Mo. Const., Art. III, 18.

B. Rules Governing the Missouri Senates Proceedings.

Pursuant to its constitutional authority, the Missouri Senate has, for

many years, adopted a number of rules, including rules relating to the

proceedings of its various committees. There are currently more than 100

rules governing the Missouri Senates proceedings. See Exhibit A.

In 1983, the Senate adopted Senate Rule 96, which provided as follows:

[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 dont prove disruptive to the decorum of

the committee. Exhibit B. On January 12, 2015, Senate Rule 96 was

readopted and is essentially identical today: [p]ersons with cameras, flash

cameras, lights, or other paraphernalia may be allowed to use such devices

at the committee meetings with the permission of the Chairman as long

as they do not prove disruptive to the decorum of the committee.

http://www.senate.mo.gov/15info/Journals/RDay03011275-91.pdf#toolbar=1.

According to the Plaintiffs, members of the Missouri Capitol News

Association and the Missouri Press Corps are authorized by the Missouri

7

Senate, under Rule 96, to record committee meetings. Petition, 2, 23, 26,

27 & Exhibit 3. The Senate Communications office has also been instructed

to record committee meetings and make those recordings available to the

public. Petition, 23, 26, 27, & Exhibit 3.

C. Missouris Open Records Law.

In 1973, the Missouri legislature passed the open records law. See

610.010, et seq. Since then, the open records law has been amended several

times. One such amendment occurred in 2004 when the legislature added the

following relevant provision:

A public body shall allow for the recording by

audiotape, videotape, or other electronic means of

any open meeting. A public body may establish

guidelines regarding the manner in which such

recording is conducted so as to minimize disruption to

the meeting.

610.020.3.

Pursuant to this provision, Plaintiffs have sought to personally record

certain Missouri Senate committee meetings. Plaintiffs allege that although

all Missouri Senate committee meetings are open to the public, including

those at issue in this case, Plaintiffs have been denied the opportunity to

personally record the meetings. Petition, 32, 33, & 39. As a result,

8

Plaintiffs allege in Count I a violation of Missouris open records law. In

Count II, Plaintiffs allege a violation of the rights of freedom of speech and

association under the Missouri Constitution.

9

ARGUMENT

Standard of Review

A motion to dismiss for failure to state a claim is solely a test of the

adequacy of the plaintiffs petition. City of Lake St. Louis v. City of OFallon,

324 S.W.3d 756, 759 (Mo. banc 2010) (quoting Reynolds v. Diamond Foods &

Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002)). As such, a court reviews

the petition in an almost academic manner, to determine if the facts alleged

meet the elements of a recognized cause of action, or of a cause that might be

adopted in that case. Id. (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d

303, 306 (Mo. banc 1993)).

A primary consideration in any case is justiciability. Foster v. State, 352

S.W.3d 357, 359 (Mo. banc 2011). Indeed, an actual, justiciable controversy is

a fundamental, underlying requisite. Glick v. Allstate Ins. Co., 435 S.W.2d

17, 20 (Mo. App. W.D. 1968). And cases involving political questions are

non-justiciable so long as there is a textually demonstrable constitutional

commitment of the issue to a coordinate political department. State ex info.

Danforth v. Banks, 454 S.W.2d 498, 500 (Mo. banc 1970) (quoting Baker v.

Carr, 369 U.S. 186 (1962)).

Here, the Missouri Constitution provides that the Missouri Senate

may determine the rules of its own proceedings. Mo. Const. Art. III, 18.

They have done so in this case, adopting rules that allow for the recording of

10

committee meetings and thereby making the Plaintiffs open records law

claim not only subject to dismissal as non-justiciable but also for failure to

state a claim. Similarly, Plaintiffs claim of free speech and association under

the Missouri Constitution fails and should be dismissed.

I. Missouri Senate Rules Comply With the Open Records Law, Allowing for the Recording of Senate Committee Meetings.

The open records law requires that [a] public body shall allow for the

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

meeting. 610.020.3 (emphasis added). Even before considering the

application of this provision to the Missouri Senate, it should be clear that by

rule and practice, and by admission of the Plaintiffs, the Missouri Senate has

done just that allowed for the recording of its committee meetings.

Plaintiffs, after all, admit in their Petition that the Missouri Senate allows

members of the Missouri Capitol News Association and the Missouri Press

Corps to record committee meetings. See Petition, 23, 26, 27, & Exhibit 3.

Furthermore, anyone can obtain a copy of recordings made of committee

meetings from Senate Communications. See, e.g., Petition, 23, 27 &

Exhibit 3.

What is more, the open records law itself provides that [a] public body

may establish guidelines regarding the manner in which such recording is

conducted so as to minimize disruption to the meeting. 610.020.3 (emphasis

11

added). Again, there is no dispute that the Missouri Senate has done just

that. The Missouri Senate has established guidelines in Senate Rule 96

regarding the manner in which recording is conducted and has done so in an

effort to minimize disruption.

Instead of permitting any and all persons with a camera or a phone to

record whenever and in whatever manner they desire, the Missouri Senate

has established reasonable guidelines to control the potential chaos and

disruption of committee meetings. Allowing members of the Missouri Capitol

News Association and the Missouri Press Corps to record as well as making

recordings available through Senate Communications are not only reasonable

guidelines to minimize disruption, they are consistent with the open records

law.

The Missouri Constitution commits to the Senate the authority to

determine the rules of its own proceedings for the purposes of minimizing

disruption, Mo. Const. Art. III, 18, and the open records law does the same.

Thus, the open records law claim in this case should be dismissed because it

fails to state a claim.

II. The Plaintiffs Open Records Law Claim is Also a Non-Justiciable Political Question Because the Missouri Senate is Constitutionally Authorized to Determine the Rules of Its Own Proceedings, Which it has Done.

In Count I of the Petition, Plaintiffs purport to pit Missouris open

records law, 610.010, et seq., against Missouri Senate rules, which are

12

expressly authorized by the Missouri Constitution.2/ Mo. Const. Art. III, 18.

It is no real contest, however, as the Missouri Constitution, and the rules

authorized thereby, unquestionably prevail over statutes, even important

statutes like the open records law.

It is worth noting at the outset the obvious point that the open records

law is a set of statutory provisions. Passed in 1973 for the first time, the

provisions carry no constitutional imprimatur. While they reflect the states

commitment to openness in government, they must yield to other provisions

of law, and in particular to constitutional interests and limitations. See News-

Press and Gazette Co. v. Cathcart, 974 S.W.2d 576, 578 (Mo. App. W.D. 1998)

(citing MacLachlan v. McNary, 684 S.W.2d 534, 537 (Mo. App. E.D. 1984) and

610.011).

In this case, the Plaintiffs claim under the open records law is a non-

justiciable political question. The Missouri Constitution commits to the

Missouri Senate the authority to determine the rules of its own proceedings.

Mo. Const. Art. III, 18. When a constitution authorizes a coordinate branch

of government to control its own proceedings, the exercise of that authority is

not subject to judicial inquiry. See 16 C.J.S. Constitutional Law 338 ([I]t is

entirely the prerogative of a legislature to make, interpret, and enforce its

2/ Like the Missouri Supreme Court in Johnson v. State, 366 S.W.3d

11, 22 (Mo. banc 2012), we assume without conceding that the open records laws apply to the General Assembly.

13

own procedural rules . . . .). Even the legislatures disregard of a rule of

procedure is not a subject for judicial inquiry. 16 C.J.S. Constitutional Law

338.

A. Legislative Rules of Procedure are Non-Justiciable Political Questions.

A state legislature is authorized to establish rules governing its own

proceedings, and so long as those rules do not violate some other provision of

the constitution, it ordinarily is not within a courts prerogative to approve,

disapprove, or enforce them. 16 C.J.S. Constitutional Law 338; see 9 ALR

6th 177 (There are certain areas reserved for the legislature and executive.).

For example, it is well settled that [i]nternal procedural aspects of the

legislative process . . . and rules of procedure are not subject to judicial

control or revision. 16 C.J.S. Constitutional Law 338. This is what courts

uniformly call the political question doctrine.

The political question doctrine establishes a limitation on the

authority of the judiciary to resolve issues, decidedly political in nature, that

are properly left to the legislature. Bennett v. Mallinckrodt, Inc., 698 S.W.2d

854, 863-64 (Mo. App. E.D. 1985). In fact, the political question doctrine

requires more than just the recognition of legislative authority over the

matter. If a case involves the resolution of a political question, the matter is

immune from judicial review. Id. at 864 (emphasis added). As a consequence,

the appropriate remedy is dismissal for nonjusticiability on the basis of a

14

political questions presence. Id.

The Missouri Supreme Court has recognized and follows the political

question doctrine, where there is found a textually demonstrable

constitutional commitment of the issue to a coordinate political department.

Banks, 454 S.W.2d at 500 (quoting Baker v. Carr, 369 U.S. 186 (1962)). The

doctrine is understandably rooted in separation of powers principles. Id. at

502 (quoting 16 C.J.S. Constitutional Law 106, p. 491) ( The legislative

function, except as limited by state or national constitutions, is equal and not

subordinate to the judicial function, and the legislature is the ultimate

guardian of the liberties and welfare of the people in quite as great degree as

the courts. ).

But what constitutes a textually demonstrable constitutional

commitment of the issue to a coordinate political department? We need not

go far to answer this question. In Banks, 454 S.W.2d at 500, the Missouri

Supreme Court considered the very same article and section of the Missouri

Constitution that is at issue in this case Art. III, 18. Id. As is obvious by

Art. III, Sec. 18, of the Constitution of Missouri, the people of this state have

specifically made a textually demonstrable constitutional commitment to its

house of representatives power to be the sole judge of the qualifications of its

own members. That fact is not debatable. Banks, 454 S.W.2d at 500.

Of course, one might argue that the Missouri Supreme Court in Banks

15

merely considered the sole judge provision of Art. III, 18 a political

question, and not the provision relating to the Missouri Senates authority to

determine the rules of its own proceedings. The same analysis, however, is

equally applicable. The people of this state have specifically made a

textually demonstrable constitutional commitment to its [senate] to

determine the rules of its own proceedings. Banks, 454 S.W.2d at 500. It is

a commitment that goes back to the very first Constitution of the State of

Missouri, wherein the people provided that [e]ach house may determine the

rules of its proceedings. 1820 Mo. Const., Art. III, 18. The same

commitment is fully in force today.

Moreover, courts and authorities from around the country recognize

that a state legislatures authority to establish rules governing its own

proceedings is a political question not subject to judicial review. See, e.g., Des

Moines Register and Tribune Co. v. Dwyer, 542 N.W.2d 491 (Iowa 1996) (It is

a firmly-established principle that when a challenge to a legislative action

involves a political question, the judiciary may not intervene or attempt to

adjudicate the matter.) (citing Abood v. League of Women Voters of Alaska,

743 P.2d 333, 336 (Alaska 1987), Moffitt v. Willis, 459 So.2d 1018, 1022 (Fla.

1984), State ex rel. LaFollette v. Stitt, 338 N.W.2d 684, 687 (Wis. 1983),

Opinion of the Justices, 381 So.2d 183 (Ala. 1980), State ex rel. Lynch v.

Conta, 239 N.W.2d 313, 335 (Wis. 1976), Coggin v. Davey, 211 S.E.2d 708,

16

710 (Ga. 1975), State ex rel. Todd v. Essling, 128 N.W.2d 307, 318 (Minn.

1964), Opinion of the Justices, 170 A.2d 657, 659 (Me. 1961), State ex rel.

Johnson v. Hagemeister, 73 N.W.2d 625, 629 (Neb. 1955), and Witherspoon v.

State ex rel. West, 103 So. 134, 138 (Miss. 1925)).3/ And so it is in this case.

B. The Missouri Senate Has Constitutionally Established Rules of Procedure Applicable in This Case.

In accordance with the constitutional authority provided to the

legislature, the Missouri Senate has routinely adopted rules for its own

proceedings. See Mo. Const. Art. III, 18. As of 2015, there are more than

100 Senate Rules governing Senate proceedings, including rules that apply in

this case. See http://www.senate.mo.gov/15info/rules/RuleBook.pdf. These

rules are not unlike the rules of civil procedure governing the proceedings of

the judiciary. See Banks, 454 S.W.2d at 502.

Beginning as early as 1983, and continuing to the present, Senate Rule

3/ See also 16 C.J.S. Constitutional Law 338 ([I]t is entirely the prerogative of a legislature to make, interpret, and enforce its own procedural rules . . . [which are] not a subject for judicial inquiry.) (citing Bd. of Trustees of Judicial Form Retirment Sys. v. Attorney General of Com., 132 S.W.3d 770 (Ky. 2003), LeRoux v. Secretary of State, 640 N.W.2d 849 (Mich. 2002), State ex rel. Grendell v. Davidson, 716 N.E.2d 704 (Ohio 1999), State ex rel. Masariu v. Marion Superior Court No. 1, 621 N.E.2d 1097 (Ind. 1993), Application of Forsythe, 450 A.2d 594 (N.J. App. Div. 1982), judgment affd, 450 A.2d 499 (N.J. 1982), Lewis v. Klein, 383 N.E.2d 872 (N.Y. 1978), and Schwab v. Ariyoshi, 564 P.2d 135 (Haw. 1977)); 9 ALR 6th 177, 26 ([T]he judiciary should not intrude into areas reserved for the legislature and executive.) (citing Hughes v. Speaker of the N.H. House of Representatives, 876 A.2d 736 (N.H. 2005), Dintzis v. Hayden, 606 A.2d 660 (Pa. 1992), and Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. App. 2001)).

17

96 has provided that [p]ersons with cameras, flash cameras, lights, or other

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

with the permission of the Chairman as long as they do not prove disruptive

to the decorum of the committee.

The current Senate Rule 96 is essentially identical to the 1983 version

and commits to the discretion of the Chair of any Senate committee the

decision concerning whether to permit persons with cameras, etc. to use such

devices during the committee meetings. The Senate Committee Chairs in this

case have allowed members of the Missouri Capitol News Association, the

Missouri Press Corps, and Senate Communications to record committee

meetings, but have not allowed Plaintiffs to personally record the committee

meetings at issue (although recordings are available to them). Des Moines

Register and Tribune Co., 542 N.W.2d at 496 (It is entirely the prerogative of

the legislature, however, to make, interpret, and enforce its own procedural

rules, and the judiciary cannot compel the legislature to act . . . .).

These Senate Rules are no small matter either for the Missouri Senate

or for courts applying the rules. The decision in State ex info. Danforth v.

Cason, 507 S.W.2d 405, 413-14 (Mo. banc 1973), aptly demonstrates the

importance of Senate Rules. In Cason, the Missouri Supreme Court

considered a significant conflict between the Missouri Lieutenant Governor

and the Missouri Senate. Apparently, the Senate was attempting to remove,

18

by rule, the Lieutenant Governors authority to preside over the Senate. The

Court ultimately held in favor of the Lieutenant Governor, but only because

there was a specific constitutional provision that made the Lieutenant

Governor president of the senate, and therefore entitled to preside over the

body. Id at 416.

In the course of its decision, the Missouri Supreme Court in Cason

noted that Art. III, 18 does confer on the senate the right to establish its

own procedural rules and the only exceptions to those rules must be in the

Constitution itself. Id. at 413. The Missouri Supreme Court further

concluded that the Lieutenant Governor, despite being the constitutionally

authorized president and presiding officer of the Senate must conform to

procedural rules of the senate authorized and adopted pursuant to Art. III,

18. Id. at 413-14.

Courts have a duty and obligation to protect the right of the legislative

department . . . to exercise those powers specifically delegated to it and

[r]efusal to do as much would constitute an encroachment upon the

legislature . . . and do violence to that separation of powers so fundamentally

vital to our form of government. Banks, 454 S.W.2d at 500 (citing Art. II,

Sec. 1, Constitution of Missouri, 1945). Here, the Missouri Senate has

exercised the power delegated to it, and it is incumbent upon the judiciary to

protect the exercise of that power.

19

C. Constitutionally Authorized Senate Rules Control Over Open Records Laws.

Although no Missouri court has been called upon to consider whether

Missouri Senate Rules control over conflicting provisions of the open records

law, the result should easily follow from the controlling authority concerning

political questions and the Constitution. Yet, Plaintiffs argue that Senate

Rule 96 is not an exception to Missouris Sunshine Law and does not allow

Defendants to deny permission to Plaintiffs to videotape hearings in the

absence of evidence that such recordings will prove disruptive. Petition,

57. Senate Rule 96 is certainly not an exception to the open records law;

instead, it controls over the open records law. As the Missouri Supreme Court

said in Cason, the only exceptions to the Senate Rules must be in the

Constitution itself. Cason, 507 S.W.2d at 413. And the open records law is

not in the Constitution.

Courts outside of Missouri have also concluded that rules governing

legislative proceedings govern over the open records law. See, e.g., Des Moines

Register and Tribune Co., 542 N.W.2d 491 (Iowa 1996). In Des Moines

Register and Tribune Co., for example, the Iowa Supreme Court considered

this very conflict and held:

The Open Records Statute, does not, nay cannot

precede our authority and duty to first determine

what rights are exclusively given to the legislature by

20

our Constitution. Were it otherwise, we could always

preempt a consideration of a constitutional question

involving the legislatures exclusive domain where a

statute could be interpreted to apply to the

legislature itself.

Des Moines Register and Tribune Co., 542 N.W.2d at 496.

The Missouri Senates constitutional authority to establish the rules of

its own proceedings is also both first in time and most recent. Article III, 18

was part of the Missouri Constitution passed in 1945, and predates that

constitution going back to statehood in 1820. In contrast, Missouris open

records law was originally passed in 1973. It has been amended several times

since then. In 2004 it was amended to include that [a] public body shall

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

any open meeting. A public body may establish guidelines regarding the

manner in which such recording is conducted so as to minimize disruption to

the meeting. 610.020.3.

Article III, 18 has remained in force during the entire span of time

that the open records law has been in force. As have the Senate Rules, and in

particular Senate Rule 96. Indeed, Senate Rule 96 was most recently

readopted in January 2015. As such, Senate Rule 96 controls over the open

records law and, therefore, Plaintiffs claim should be dismissed as a non-

21

justiciable political question.

III. Missouri Senate Rule 96 Does Not Violate Free Speech or Association Rights.

In Count II of the Petition, Plaintiffs allege a Missouri constitutional

violation of the rights of freedom of speech and association. Petition, 60-

78 (citing Mo. Const., Art. I, 8). There is, however, no constitutional right,

either under free speech or association, to record (whether video or audio)

open public meetings. And there is no dispute that all meetings were open to

the public. Petition, 39 (Hearings before Senate Committees are open to

the public, including the hearings noted above.).

Instead of asserting free speech and association rights under the

United States Constitution, Plaintiffs take a different tact and claim only free

speech and association rights under the Missouri Constitution. While

provisions of our state constitution may be construed to provide more

expansive protections than comparable federal constitutional provisions,

analysis of a section of the federal constitution is strongly persuasive in

construing the like section of our state constitution. Kansas City Premier

Apartments, Inc. v. Missouri Real Estate Commn, 344 S.W.3d 160, 170 (Mo.

banc 2011) (quoting Doe I v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006)).

Here, the federal authority is on point and dispositive.

In Rice v. Kempker, 374 F.3d 675 (8th Cir. 2004) the Eighth Circuit

made abundantly clear that we hold that neither the public nor the media

22

has a First Amendment right to videotape, photograph, or make audio

recordings of government proceedings that are by law open to the public. Id.

at 678-79 (citing Whiteland Woods, L.P. v. Twp. of West Whiteland, 193 F.3d

177, 184 (3rd Cir. 1999) (holding that public has no right to videotape

Planning Commission meetings that were required to be public); United

States v. Kerley, 753 F.2d 617, 621 (7th Cir. 1985) (holding that the public has

no right to videotape trial even when the defendant wishes it to be

videotaped); Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23

(2nd Cir. 1984) (There is a long leap, however, between a public right under

the First Amendment to attend trials and a public right under the First

Amendment to see a given trial televised.), cert. denied, 472 U.S. 1017, 105

S.Ct. 3478, 87 L.Ed.2d 614 (1985); United States v. Hastings, 695 F.2d 1278,

1284 (11th Cir. 1983), cert. denied, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d

303 (1983) (holding that the press had no right to videotape criminal trials);

cf. Nixon v. Warner Commcns Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 55

L.Ed.2d 570 (1978) (holding that no First Amendment right existed to publish

or copy exhibits displayed in court); United States v. McDougal, 103 F.3d 651,

659 (8th Cir. 1996), cert. denied, 522 U.S. 809, 118 S.Ct. 49, 139 L.Ed.2d 15

(1997) (holding that First Amendment right of access does not extend to

videotaped deposition testimony of then-President Clinton)).

The foundation of Plaintiffs claim is the alleged prohibition on

23

videotaping open meetings or filming open meetings. Petition, 1 & 2.

Yet, without a First Amendment right to record open meetings, there can be

no infringement of either free speech rights or freedom of association rights.

Moreover, not only were the committee meetings open to the public in this

case, including Plaintiffs, but Plaintiffs had reasonable access to recordings of

the meetings. It follows that if there is no free speech or association right to

record public proceedings, there is certainly no right to personally record

meetings already open to the public and recorded.

CONCLUSION

For the foregoing reasons, Plaintiffs Petition should be dismissed and

Defendants granted such other relief as the Court deems proper.

24

Respectfully submitted, CHRIS KOSTER Missouri Attorney General By: /s/ Jeremiah J. Morgan

Jeremiah J. Morgan Mo. Bar #50387 Deputy Solicitor General P.O. Box 899 Jefferson City, Missouri 65102-0899 Telephone: (573) 751-1800 Facsimile: (573) 751-0774 jeremiah.morgan@ago.mo.gov

ATTORNEYS FOR DEFENDANTS

25

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served

via Missouri CaseNet e-filing system, this 22nd day of May, 2015, to:

Christopher N. Grant George O. Suggs SCHUCHAT, COOK & WERNER 1221 Locust Street, Second Floor St. Louis, Missouri 63103 cng@schuchatcw.com gos@schuchatcw.com Attorneys for Plaintiffs

/s/ Jeremiah J. Morgan Jeremiah J. Morgan Deputy Solicitor General

List of

Members, Officers,

Committees and

RULESOF THE

SENATE

98th General Assembly

First Regular Session

2015

Exhibit A

TABLE OF CONTENTS

Page

COMMITTEES

Meeting Times . . . . . . . . . . . . . . . . . . . . . . 43

Standing Committees . . . . . . . . . . . . . . . . . 45

DISTRICTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INDEX TO RULES . . . . . . . . . . . . . . . . . . . . 58

MEMBERSHIP ROSTER . . . . . . . . . . . . . . . 51

OFFICERS OF THE SENATE . . . . . . . . . . . 55

PARTY OFFICERS . . . . . . . . . . . . . . . . . . . . 56

RULES OF THE SENATE . . . . . . . . . . . . . . . 9

SYNOPSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2

SENATORIAL DISTRICTS

SENATORIAL DISTRICTS

FirstSt. Louis County (part)

SecondSt. Charles (part)

ThirdIronJefferson (part)ReynoldsSt. FrancoisSte. GenevieveWashington

FourthCity of St. Louis (part)St. Louis County (part)

FifthCity of St. Louis (part)

SixthColeGasconadeMariesMillerMoniteauMorganOsage

SeventhJackson (part)

EighthJackson (part)

NinthJackson (part)

TenthAudrainCallawayLincolnMonroeMontgomeryWarren

EleventhJackson (part)

TwelfthAndrewAtchisonClay (part)ClintonDaviessDeKalbGentryGrundyHarrisonHoltMercerNodawayPutnamSullivanWorth

ThirteenthSt. Louis County (part)

FourteenthSt. Louis County (part)

FifteenthSt. Louis County (part)

SixteenthCamdenCrawfordDentPhelpsPulaski

SeventeenthClay (part)

EighteenthAdairCharitonClarkKnoxLewisLinnMaconMarionPikeRallsRandolph

3

SENATORIAL DISTRICTS

SchuylerScotlandShelby

NineteenthBooneCooper

TwentiethChristianGreene (part)

Twenty-FirstCaldwellCarrollHowardJohnsonLafayetteLivingstonRaySaline

Twenty-SecondJefferson (part)

Twenty-ThirdSt. Charles (part)

Twenty-FourthSt. Louis County (part)

Twenty-FifthButlerCarterDunklinMississippiNew MadridPemiscotShannonStoddard

Twenty-SixthFranklinSt. Louis County (part)

Twenty-SeventhBollingerCape GirardeauMadisonPerry

ScottWayne

Twenty-EighthBentonCedarDallasHickoryLacledePettisPolkSt. Clair

Twenty-NinthBarryLawrenceMcDonaldStoneTaney

ThirtiethGreene (part)

Thirty-FirstBartonBatesCassHenryVernon

Thirty-SecondDadeJasperNewton

Thirty-ThirdDouglasHowellOregonOzarkRipleyTexasWebsterWright

Thirty-FourthBuchananPlatte

4

RULES OF THE SENATE

RULES OF THE SENATE

Synopsis

I. Time of meeting and procedure.

Rule 1. Time of meeting.Rule 2. Opening of daily sitting of Senate.

II. Order of business and procedure thereunder.

Rule 3. Order of business.Rule 4. The daily call upon order of business.Rule 5. Secretary's record upon order of

business. Record yeas and nays.Rule 6. Order of bills for consideration.

III. Call of the Senate.

Rule 7. Alphabetical order and voting procedure.Rule 8. Quorum and requirements as to

attendance.

IV. Powers and duties of officers of the Senate.

Rule 9. Of the President. (Constitutional)Rule 10. Of the President Pro Tem.Rule 11. Of the President.Rule 12. Of the President Pro Tem.Rule 13. Of the President Pro Tem.Rule 14. Of the President Pro Tem.Rule 15. Of the President.Rule 16. Of the President Pro Tem.Rule 17. Of the President Pro Tem.Rule 18. Of the Secretary.Rule 19. Of the Secretary.Rule 20. Of the Secretary.Rule 21. Of the Secretary.Rule 22. Of the Sergeant-at-Arms.Rule 23. Of the President Pro Tem.

5

RULES OF THE SENATE

Rule 24. Of the Doorkeeper.

V. Standing Committees of the Senate.

Rule 25. Committees.Rule 26. Membership.Rule 27. Parliamentary Procedure.Rule 28. Duties.Rule 29. Offices and seating.Rule 30. Resignation.Rule 31. Interim meetings.

VI. Reports of Committees.

Rule 32. Reports.Rule 33. Adoption of reports.Rule 34. References.Rule 35. Time of sitting.

VII. Committee of the Whole.

Rule 36. When declared.Rule 37. Presiding officer.Rule 38. Rules of debate.Rule 39. Amendments.Rule 40. Reports and amendments.Rule 41. Rules of procedure.Rule 42. Quorum.Rule 43. Rising of committee.

VIII. Legislative Procedure for Enactment of Bills.

Rule 44. Pre-filing of bills - seniority.Rule 45. Senate consent calendar.Rule 46. Bill setting forth new matter.Rule 47. Explanation of cost.Rule 48. Limitation on introduction of bills.

(Constitutional)Rule 49. Printing of bills.Rule 50. Referral to committee and report

thereon.

6

RULES OF THE SENATE

Rule 51. Record vote of committee.(Constitutional)

Rule 52. Time for perfection and third reading.Rule 53. Procedure in case of adverse reports.Rule 54. Laws passed by bill. (Constitutional)Rule 55. Read three different days.

(Constitutional)Rule 56. Amended or rejected. (Constitutional)Rule 57. Title provision. (Constitutional)Rule 58. Revived or re-enacted.

(Constitutional)Rule 59. Emergency clause. (Constitutional)Rule 60. Amendment of bills.Rule 61. Amendments. (Constitutional)Rule 62. Amendments. (Constitutional)Rule 63. Amendments. (Constitutional)Rule 64. Substitute bill.Rule 65. Motions.

IX. Final Passage yeas and nays.

Rule 66. Voting procedure.Rule 67. Motion to reconsider.Rule 68. Signing bills. (Constitutional)Rule 69. Approval of Governor.Rule 70. Governor's veto. (Constitutional)Rule 71. Procedure as to resolutions.

X. Privileged Motions.

Rule 72. Adjournment.Rule 73. Motions that may be received during

debate.Rule 74. Indefinite postponement.Rule 75. Motions laid on the table.

XI. Of Decorum and Debate.

Rule 76. Addressing the Chair.Rule 77. Right to the floor.

7

RULES OF THE SENATE

Rule 78. Transgression of rules.Rule 79. Censure by the Senate.Rule 80. Senator shall speak but once, unless.Rule 81. Senators, how addressed.Rule 82. Division of the question.Rule 83. Secrecy required.

XII. Previous Question.

Rule 84. How the previous question shall be put.Rule 85. Debate.

XIII. Motions How Put.

Rule 86. On demand, must be in writing.Rule 87. How presented.Rule 88. Withdrawal.Rule 89. How voted on.Rule 90. Yeas and nays.Rule 91. Senators required to vote.Rule 92. Reconsideration.Rule 93. Right of protest.

XIV. Miscellaneous.

Rule 94. Admission to Senate Chamber.Rule 95. Absentees.Rule 96. Laptop Computers and Smoking.Rule 97. Authority beyond rules.Rule 98. Amendment of rules.Rule 99. Verification of voting.Rule 100. Request voting.Rule 101. Committee meetings time and place.Rule 102. Introduction of guests.

8

RULES OF THE SENATE

committee meeting, or a conference committee meetingshall be shown as absent with leave (committee). It shallbe the responsibility of the member to advise thesecretary of the senate of his or her attendance at suchcommittee meeting.

Rule 96. 1. Laptop computers may be used by thepress at the press table and by the research staff at theresearch table in the Senate Chamber as long as theiruse does not violate Rule 78 or is otherwise disruptive tothe business of the Senate. No person shall take anyphotograph in the Senate Gallery. Persons with cameras,flash cameras, lights, or other paraphernalia may beallowed to use such devices at committee meetings withthe permission of the Chairman as long as they do notprove disruptive to the decorum of the committee.Smoking is not permissible in the Senate Chamber orGallery, the Kirchoff Gallery, the Pershing Gallery, theBingham Gallery, committee rooms, lounge, the hallways,restrooms or elevators.

2. For the purpose of compliance with the Americanswith Disabilities Act, the President Pro Tem maydesignate a portion of the Senate Chamber as handicapaccessible and such areas shall not be considered a partof the floor of the Senate for the purposes of section21.420, RSMo. Persons using such area shall not lobbymembers of the Senate while going to and from or whileusing the designated area.

Rule 97. In cases not provided for in these rules, thesenate shall be governed by the rules laid down in thepractice and procedures adopted by the Senate of theUnited States and Jefferson's Manual, including the U.S.Senate practice that a substitute amendment to a firstdegree amendment is subject to a second degreeperfecting amendment.

Rule 98. No standing rule or order of the senate shallbe rescinded or changed without one day's notice beinggiven of the motion thereof, which notice shall be printedin the journal of the senate, and then only by a vote of atleast a majority of the senators elected; except that any

41Exhibit B

20150522MotionToDismiss20150522SuggestionsInSupportOfMotionToDismiss20150522SuggestionsInSupportOfMotionToDismiss_ExhibitA20150522SuggestionsInSupportOfMotionToDismiss_ExhibitB