                                             In the
                          Missouri Court of Appeals
                                     Western District

                                                 
PROGRESS MISSOURI, INC. ET AL.,                  
                                                    WD79459
                 Appellants,                        OPINION FILED:
v.                                               
                                                    JUNE 28, 2016
MISSOURI SENATE ET AL.,                          
                                                 
                Respondents.                     
                                                 
                                                 


                   Appeal from the Circuit Court of Cole County, Missouri
                        The Honorable Jon Edward Beetem, Judge

 Before Division Three: Mark D. Pfeiffer, P.J., James E. Welsh, Anthony Rex Gabbert, JJ.

       Progress Missouri, Inc. et al., (Progress) appeals the circuit court’s grant of Missouri

Senate et al.’s (the Senate) motion to dismiss Progress’s Petition alleging the Senate’s violation

of Section 610.020, RSMo 2000, Missouri’s Sunshine Law, and seeking a declaration that the

Senate had violated Progress’s freedom of speech and association, with an injunction barring the

Senate from prohibiting Progress and others from recording hearings before Senate committees.

Progress asserts two points on appeal. First, Progress contends that the circuit court erred in

granting the Senate’s motion to dismiss Count I of Progress’s petition because Progress’s

statutory claims do not invoke political questions immune from judicial review. Second,

Progress contends that the court erred in granting the Senate’s motion to dismiss Count II of

Progress’s petition because the petition states a claim for violation of freedom of speech and
association in that the Senate has granted the right to record open meetings to others and has

denied Progress that right in an unconstitutional manner. We affirm.

       On April 15, 2015, Progress filed a two-count petition. Count I of the petition alleges

that the Senate prohibited Progress from videotaping open meetings of various Senate

committees in violation of Missouri’s Sunshine Law, Section 610.020.3, which provides 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. No audio recording of any meeting, record, or vote
       closed pursuant to the provisions of section 610.021 shall be permitted without
       permission of the public body; any person who violates the provision shall be
       guilty of a class C misdemeanor.

Senate Rule 96 is a written guideline established by the Senate that addresses camera usage

within Senate committee meetings. It provides 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.” Count I of Progress’s petition argues that various chairmen of Senate committees

have prohibited Progress from filming meetings and Senate Rule 96 is not an exception to

Missouri’s Sunshine Law and does not allow the Senate to deny permission to Progress to

videotape hearings in the absence of evidence that such recordings will prove disruptive.

       Count II of Progress’s petition alleges that the Senate violated Progress’s freedom of

speech and association by (1) applying policies and Senate Rule 96 to prohibit Progress from

filming open meetings of committees, yet allowing the Missouri Capitol News Association to

film meetings, (2) making membership in the Missouri Capitol News Association a condition for

filming, (3) arbitrarily denying Progress permission to record meetings, and (4) giving Chairmen

of Senate committees unfettered discretion to deny permission to record open meetings.

                                                 2
        On May 22, 2015, the Senate filed a Motion to Dismiss Progress’s petition on the

grounds that, among other things, Progress’s petition acknowledged that committee meetings are

recorded by Senate Communications and made available to the public. The Senate argued that

the recording and availability of committee meeting recordings to the public via Senate

Communications, as well as allowing the Missouri Capitol News Association1 to record

meetings, satisfies Missouri’s Sunshine Law. The Senate contended that, Missouri’s Sunshine

Law explicitly authorizes the Senate to “establish guidelines regarding the manner in which such

recording is conducted so as to minimize disruption to the meeting” and the Senate has done just

that via Senate Rule 96. The Senate further argued that, its right to promulgate and enforce its

own rules was constitutionally governed as Missouri’s Constitution authorizes the Senate to

“determine the rules of its own proceedings.” Mo. Const., Art. III, § 18. Consequently, it

contended that any argument by Progress challenging Senate Rule 96 itself was nonjusticiable as

a “political question.”

        On June 30, 2015, the circuit court granted the Senate’s Motion to Dismiss on the

grounds that the Senate was given the constitutional authority to determine the rules of its own

proceedings, thereby invoking the political question doctrine and rendering Progress’s claims

regarding Senate Rule 96 and the Senate’s application of this rule nonjusticiable. The court also

found that Progress had no constitutional right, under free speech or association, to personally

record open public meetings. This appeal follows.

        “The standard of review for a trial court’s grant of a motion to dismiss is de novo.” Lynch

v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). We view the facts as true and in the light most

        1
          Progress’s petition states that the Missouri Press Corps and the Missouri Capitol News Association are one
in the same. The Senate, in its Suggestions in Support of Defendants’ Motion to Dismiss, references these as two
separate entities. The distinction, if any, is not significant to our analysis of the issues herein.

                                                         3
favorable to the plaintiff. Id. “If the petition sets forth any set of facts that, if proven, would

entitle the plaintiffs to relief, then the petition states a claim.” Id. We will affirm the dismissal if

it was appropriate on any ground supported by the motion to dismiss. Reid v. Steelman, 210

S.W.3d 273, 279 (Mo. App. 2006).

        In its first point on appeal, Progress contends that the circuit court erred in granting the

Senate’s motion to dismiss Count I of Progress’s petition because Progress’s statutory claims do

not invoke political questions immune from judicial review. Progress argues that, (1) Missouri’s

Sunshine Law binds the Senate, (2) the constitutionality of the Sunshine Law as applied to the

Senate is a question for this court to decide, and (3) the Senate’s actions transgress identifiable

textual limits in the Constitution. We find no error.

        As stated, Missouri’s Sunshine Law provides 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. In paragraph twenty-seven of Progress’s

petition under “FACTS APPLICABLE TO ALL COUNTS,” Progress states that it was informed

by Senator David Sater, Chairman of the Senate Seniors, Families, and Children Committee, that

Senate Communications records every committee hearing and that copies of those recordings can

be requested from its office. Although Progress’s petition states in paragraphs twenty-nine,

thirty, and thirty-five under “FACTS APPLICABLE TO ALL COUNTS” that Senate

Communications failed to record one committee meeting and portions of two other meetings, the

focus of Progress’s grievance in Count I is not with the inadequacy and/or unavailability of

committee meeting recordings via Senate Communications but, rather, with Progress’s inability



                                                   4
to also record the meetings. Progress’s petition argues that Missouri’s Sunshine Law requires the

Senate to allow any attendee to record committee meetings as long as doing so is not disruptive.

        First, because Missouri’s Sunshine Law expressly allows for the creation of guidelines

to effectuate the recording of public meetings while minimizing disruption, and there is no

dispute that the Senate requires Senate Communications to record committee meetings and to

make those recordings available to the public, Progress’s contention that the Senate must allow

Progress to personally record meetings fails to sufficiently articulate a claim for violation of the

statute. Contrary to Progress’s assertion, the statute does not state that all attendees must be

allowed to record meetings so long as doing so is not disruptive; rather, it grants discretion to

each individual public body affected by the law to define for itself, through guidelines, how best

to enforce the law while minimizing disruption to the meetings of that particular public body.

Progress’s petition ignores that Missouri’s Sunshine Law gives authority to the Senate to

promulgate rules to enforce the law and, simply, fails to allege or otherwise show how the rules

put in place by the Senate exceed the parameters of that authority. While Progress made the

general contention in its Suggestions in Opposition to Defendants’ Motion to Dismiss that “even

if Senate Communications recorded every meeting, Plaintiffs would still have a right to film

them too,” nowhere in Count I of Progress’s petition does Progress explain how Missouri’s

Sunshine Law mandates that right or how the mandate to “allow for the recording” is not

satisfied by the Senate directing Senate Communications to record committee meetings and to

make those recordings available to the public. While Progress further argued in its Suggestions

in Opposition to Defendants’ Motion to Dismiss that the Senate does not “allow for the

recording” of committee meetings because the Senate has stated that it “may” deny anyone

permission to record, an expression by the Senate that it “may” take measures at some future

                                                  5
point in time does not present a ripe controversy. “A justiciable controversy requires standing

and ripeness.” Geier v. Missouri Ethics Commission, 474 S.W.3d 560, 569 (Mo. banc 2015). “A

claim is not ripe for adjudication if it ‘rests upon contingent future events that may not occur as

anticipated, or indeed may not occur at all.’” Id. (quoting Texas v. United States, 523 U.S. 296,

300 (1998).

         Consequently, insofar as Senate Rule 96 might be considered a guideline under Section

610.020.3 that effectuates 610.020.3, Progress’s petition fails to state how this rule and the

Senate’s implementation of this rule is not in compliance with Missouri’s Sunshine Law.2

Beyond this, insofar as Senate Rule 96 is an internal rule governing its own proceedings,

Progress’s challenge to this rule presents a nonjusticiable political question.

         “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.” Maryland

Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218, 220 (Mo. banc 1985). Political

questions are immune from judicial review. Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854, 864

(Mo. App. 1985). The judiciary must decline deciding certain matters if

         ‘[p]rominant on the surface of any case held to involve a political question [there]
         is found a textually demonstrable constitutional commitment of the issue to a
         coordinate political department; or a lack of judicially discoverable and
         manageable standards for resolving it; or the impossibility of deciding without an
         initial policy determination of a kind clearly for nonjudicial discretion; or the
         impossibility of a court’s undertaking independent resolution without expressing
         lack of the respect due coordinate branches of government; or an unusual need
         for unquestioning adherence to a political decision already made; or the

         2
            While Progress further contended in its Suggestions in Opposition to Defendants’ Motion to Dismiss that
Senate Communications has failed to record all meetings, Progress’s petition makes no allegation that Senate
Communications’s failure to record was a violation of Missouri’s Sunshine Law. Progress acknowledges that one
such failure was due to “technical issues” and “replacing data storage devices” in Senate Communication cameras.
As stated above, Progress assumes that, even if Senate Communications recorded all meetings, the Senate would
still be in violation of Missouri’s Sunshine Law.


                                                         6
       potentiality of embarrassment from multifarious pronouncements by various
       departments on one question.’

Id. at 864 (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962)).

Missouri’s Constitution expressly provides that the Senate “may determine the rules of its own

proceedings.” Mo. Const. Art. III, § 18. This authority is only limited by “exceptions provided

in the Constitution itself.” State ex inf. Danforth v. Cason, 507 S.W.2d 405, 413 (Mo. 1973).

Therefore, insofar as Senate Rule 96 is a rule governing its own proceedings, it flows from the

Senate’s exercise of the commitment of power granted to it by the Missouri Constitution and is

not reviewable by this court.

       Progress contends that Senate Rule 96 is not a rule governing its own proceedings

because “proceedings” references the processing of bills and, therefore, “rules of its own

proceedings” is limited to “rules relating to the processing of bills.” We disagree. Progress

provides no persuasive support for this narrow interpretation, either through the plain language

of Missouri’s Constitution or relevant case law. We note that courts in other states have rejected

similar arguments.

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

Moines Register alleged that the Iowa Senate’s policy regarding release of Senate telephone

records violated Iowa’s open records law after the Des Moines Register was denied detailed

telephone records kept by the Iowa Senate. Id. at 494. The Iowa Constitution has a provision,

similar to Missouri’s Constitution, which grants authority to its legislative houses to “determine

its rules of proceedings.” Id. In Des Moines Register the lower court ruled that the Iowa

Senate’s policy regarding the release of its telephone records was within its constitutional

authority to “determine its rules of proceedings” and, therefore, the matter constituted a


                                                 7
nonjusticiable political question. Id. The newspaper appealed arguing that the court had

interpreted “rules of proceedings” too broadly and that genuine issues of material fact existed as

to whether the policy at issue was a rule of proceeding. Id. at 494-495. The Iowa Supreme

Court disagreed. While the Court declined to establish a “bright line” definition of a senatorial

rule of proceeding, indicating that such requires a case-by-case analysis, it determined after

review of several other states’ interpretations of similar constitutional language that, courts

generally give legislative “rules of proceedings” a broad interpretation. Id. at 498. The Court

noted:

         When faced with similar issues, courts have described legislative rules of
         proceedings as follows: (1) rules which govern the internal workings of the
         legislature; (2) statutes which relate solely to the internal organization of the
         legislature; (3) rules which apply to a branch of government itself rather than to
         members of that body; (4) internal rules which govern acts that occur in the
         regular course of the legislative process; and (5) internal operating procedures.

Id. (internal quotation marks and citations omitted). Garnering support from similar cases in

other states where open meetings/records laws allegedly conflicted with rules within state

legislatures, the Court concluded that the Iowa Senate’s rules governing release of its telephone

records were rules of procedure and, therefore, nonjusticiable. Id. at 500-503 (citing Moffitt v.

Willis, 459 So. 2d 1018, 1019 (Fla.1984) and Abood v. League of Women Voters, 743 P.2d 333,

334 (Alaska 1987)).

         Given that a plain understanding of the words “own proceedings” in Missouri’s

Constitution can undoubtedly encompass the Senate’s committee hearings, we find Progress’s

narrow interpretation of the constitutional language without support and, consequently, its

contention regarding the justiciability of its claims without merit.




                                                  8
        We find that the circuit court did not err in granting the Senate’s motion to dismiss Count

I of Progress’s petition. Insofar as Senate Rule 96 might be considered a guideline under

Section 610.020.3 that effectuates Section 610.020.3, Progress’s petition fails to state how this

rule and the Senate’s implementation of this rule is not in compliance with Missouri’s Sunshine

Law. Insofar as Senate Rule 96 is an internal rule governing its own proceedings, Progress’s

challenges regarding this rule present nonjusticiable political questions. Point I is denied.

        In its second point on appeal, Progress contends that the circuit court erred in granting the

Senate’s motion to dismiss Count II of Progress’s petition because the Petition states a claim for

violation of freedom of speech and association in that the Senate has granted the right to record

open meetings and has denied Progress that right in an unconstitutional manner. Progress argues

that the court misconstrued its claim to be that Progress has a “free-standing, constitutional right

to record” and that, its “theory is that once a state grants a right – in this case, access to record

committee meetings – it cannot deny that right in a discriminatory or unconstitutional manner.”

        First, we note that Progress’s petition makes no mention of its “theory” that once a state

grants a right it cannot deny that right in a discriminatory or unconstitutional manner. This

“theory” was first mentioned in Progress’s Suggestions in Opposition to Defendants’ Motion to

Dismiss. Nevertheless, because it is undisputed that Senate Communications records committee

meetings and makes those recordings available to Progress and, therefore, Progress has access to

the end product that Progress purports to desire – recordings – Progress’s constitutional argument

really does boil down to a claim that it has a free-standing, constitutional right to record.

        Progress acknowledges that Missouri’s General Assembly enacted Section 610.020 to

“reflect[] the state’s commitment to openness in government.” News-Press and Gazette Co. v.

Carthcart, 974 S.W.2d 576, 578 (Mo. App. 1998). To effectuate this commitment, Section

                                                   9
610.020 requires, among other things, that public bodies allow for the recording of public

meetings. Count II of Progress’s petition acknowledges its ability to obtain recordings of

committee meetings through Senate Communications but contends that “[r]equiring Plaintiffs to

obtain recordings of hearings through Senate Communications is not a reasonable alternative.”

Yet, neither the policy behind Missouri’s Sunshine Law, nor the law itself, creates a right to

personally record meetings. If the State has granted any right by its provision that a “public body

shall allow for the recording … of any open meeting,” it is the right to the end product, i.e.

recordings, not the right to personally record meetings which is a method to reach that end. It is

the end, not the means, which satisfies this law. As meeting recordings are available to Progress

upon request, Progress cannot support the allegations in Count II that it is being forced to join a

private organization or that Progress is being discriminated against “based on the content and/or

view of their message and what they intend to say.” Regardless of its views, message, or refusal

to join a private organization, Progress is not prohibited from accessing meeting recordings.

Therefore, because Missouri’s Sunshine Law gives the Senate the authority to establish rules

regarding recordings, and any right created by the statute to recordings of meetings is satisfied by

the Senate making recordings available to Progress, Progress’s allegation that “[r]equiring

Plaintiffs to obtain recordings of hearings through Senate Communications is not a reasonable

alternative” is insufficient to state a claim for a constitutional violation. Without a constitutional

claim, it is not within our province to trespass upon the Senate’s constitutional authority to

determine the rules of its own proceedings. This would be required to address Progress’s

additional allegations regarding the Senate’s internal policies and application of Senate Rule 96.

We find that the circuit court did not err in dismissing Count II of Progress’s petition for failure

to state a constitutional claim. Point II is denied.

                                                  10
       We conclude, therefore, that the circuit court did not err in granting the Senate’s motion

to dismiss Count I of Progress’s petition. Insofar as Senate Rule 96 might be considered a

guideline under Section 610.020.3 that effectuates Section 610.020.3, Progress’s petition fails to

state a claim with regard to how this rule and the Senate’s implementation of this rule is not in

compliance with Missouri’s Sunshine Law. Insofar as Senate Rule 96 is an internal rule

governing its own proceedings, Progress’s challenge to this rule presents a nonjusticiable

political question. Further, the circuit court did not err in granting the Senate’s motion to dismiss

Count II of Progress’s petition as it failed to state a constitutional claim. We affirm the circuit

court’s judgment.




                                                       Anthony Rex Gabbert, Judge


All concur.




                                                  11
