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STATE OF MISSOURI
PROGRESS MISSOURI, INC., et al.,
Plaintiffs,
v.
MISSOURI SENATE, et al.,
Defendants.
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) Case No. 15AC-CC00160
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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
)
)
)
)
) Case No. 15AC-CC00160
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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,
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.
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.
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.
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,
7
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
9
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.
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 NonJusticiable 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
11
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 NewsPress 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 nonjusticiable 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
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.
2/
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what
constitutes
textually
demonstrable
constitutional
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.
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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,
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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.
18
C.
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 non20
violation of the rights of freedom of speech and association. Petition, 6078 (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
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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
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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
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List of
Members, Officers,
Committees and
RULES
OF THE
SENATE
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
SENATORIAL DISTRICTS
SENATORIAL DISTRICTS
Twelfth
Andrew
Atchison
Clay (part)
Clinton
Daviess
DeKalb
Gentry
Grundy
Harrison
Holt
Mercer
Nodaway
Putnam
Sullivan
Worth
Thirteenth
St. Louis County (part)
Fourteenth
St. Louis County (part)
Fifteenth
St. Louis County (part)
Sixteenth
Camden
Crawford
Dent
Phelps
Pulaski
Seventeenth
Clay (part)
Eighteenth
Adair
Chariton
Clark
Knox
Lewis
Linn
Macon
Marion
Pike
Ralls
Randolph
First
St. Louis County (part)
Second
St. Charles (part)
Third
Iron
Jefferson (part)
Reynolds
St. Francois
Ste. Genevieve
Washington
Fourth
City of St. Louis (part)
St. Louis County (part)
Fifth
City of St. Louis (part)
Sixth
Cole
Gasconade
Maries
Miller
Moniteau
Morgan
Osage
Seventh
Jackson (part)
Eighth
Jackson (part)
Ninth
Jackson (part)
Tenth
Audrain
Callaway
Lincoln
Monroe
Montgomery
Warren
Eleventh
Jackson (part)
SENATORIAL DISTRICTS
Scott
Wayne
Twenty-Eighth
Benton
Cedar
Dallas
Hickory
Laclede
Pettis
Polk
St. Clair
Twenty-Ninth
Barry
Lawrence
McDonald
Stone
Taney
Schuyler
Scotland
Shelby
Nineteenth
Boone
Cooper
Twentieth
Christian
Greene (part)
Twenty-First
Caldwell
Carroll
Howard
Johnson
Lafayette
Livingston
Ray
Saline
Twenty-Second
Jefferson (part)
Twenty-Third
St. Charles (part)
Twenty-Fourth
St. Louis County (part)
Twenty-Fifth
Butler
Carter
Dunklin
Mississippi
New Madrid
Pemiscot
Shannon
Stoddard
Twenty-Sixth
Franklin
St. Louis County (part)
Twenty-Seventh
Bollinger
Cape Girardeau
Madison
Perry
Thirtieth
Greene (part)
Thirty-First
Barton
Bates
Cass
Henry
Vernon
Thirty-Second
Dade
Jasper
Newton
Thirty-Third
Douglas
Howell
Oregon
Ozark
Ripley
Texas
Webster
Wright
Thirty-Fourth
Buchanan
Platte
Time of meeting.
Opening of daily sitting of Senate.
Order of business.
The daily call upon order of business.
Secretary's record upon order of
business. Record yeas and nays.
Order of bills for consideration.
Of the Doorkeeper.
Committees.
Membership.
Parliamentary Procedure.
Duties.
Offices and seating.
Resignation.
Interim meetings.
Reports.
Adoption of reports.
References.
Time of sitting.
When declared.
Presiding officer.
Rules of debate.
Amendments.
Reports and amendments.
Rules of procedure.
Quorum.
Rising of committee.
Voting procedure.
Motion to reconsider.
Signing bills. (Constitutional)
Approval of Governor.
Governor's veto. (Constitutional)
Procedure as to resolutions.
X. Privileged Motions.
Rule 72.
Rule 73.
Rule 74.
Rule 75.
Adjournment.
Motions that may be received during
debate.
Indefinite postponement.
Motions laid on the table.
Transgression of rules.
Censure by the Senate.
Senator shall speak but once, unless.
Senators, how addressed.
Division of the question.
Secrecy required.
XIV. Miscellaneous.
Rule 94.
Rule 95.
Rule 96.
Rule 97.
Rule 98.
Rule 99.
Rule 100.
Rule 101.
Rule 102.
Exhibit B