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Calzone v. Hagan

United States District Court, W.D. Missouri, Central Division

June 26, 2017

NANCY HAGAN, et. al Defendants.


          NANETTE K. LAUGHREY United States District Judge

         Plaintiff, Mr. Calzone contends that Missouri cannot require him to register as a lobbyist pursuant to Mo. Rev. Stat. § 1');">105.470, et seq. because he is not paid to be a lobbyist and Missouri's definition of lobbyist is unconstitutionally vague. He makes both a facial challenge to the statute and an applied challenge and thus contends that any application of Missouri's lobbying statute to him is a violation of his First Amendment rights.[1');">1" name="FN1');">1" id="FN1');">1">1');">1] [Docs. 1');">1, 2');">2]. In his pending Motion for a Permanent Injunction, he seeks to permanently enjoin the Defendants from enforcing or threatening to enforce Mo. Rev. Stat. § 1');">105.470(5)(c) and its attendant obligations against him. For the following reasons, the Court denies Mr. Calzone's motion.

         I. Background

         A. Procedural Background

         Under Missouri law, all lobbyists must register and make reports as required. Mo. Rev. Stat. § 1');">105.473. A lobbyist is defined for purposes of Missouri law as:

[A]ny natural person who acts for the purpose of attempting to influence the taking, passage, amendment, delay or defeat of any official action on any bill, resolution, amendment, nomination, appointment, report or any other action or any other matter pending or proposed in a legislative committee in either house of the general assembly, or in any matter which may be the subject of action by the general assembly and in connection with such activity who also: . . .
(c) Is designated to act as a lobbyist by any person, business entity, governmental entity, religious organization, nonprofit corporation, association or other entity.”

Mo. Rev. Stat. § 1');">105.470.

         Based on these statutes, the Missouri Ethics Commission received two complaints against Calzone, one in 2');">201');">14 and another in 2');">201');">16, asserting he violated the statute because he was designated as a lobbyist for Missouri First but had not registered, paid a lobbying fee, or made regular reports to the state as required. Missouri First is a not-for-profit corporation that was incorporated by Mr. Calzone. Its mission is to “. . . assert and defend the appropriate sovereignty of Missourians.” Mr. Calzone is Missouri First's registered agent and a director. He is the only officer of Missouri First. [Doc. 1');">17-1');">1, p. 1');">13 of 2');">239:1');">10-2');">22');">2].

         The 2');">201');">14 complaint against Calzone was filed by Missouri Society of Governmental Consultants. [Doc. 1');">1-2');">2, Exhibit B]. On September 3, 2');">201');">15, the Ethics Commission held a hearing on the complaint. Mr. Calzone did not testify at that hearing, invoking his Fifth Amendment rights. After considering the evidence submitted in that proceeding, the Missouri Ethics Commission found probable cause to believe that Mr. Calzone violated the lobbying statute because he:

….attempted to influence official action on matters pending before the Missouri Legislature in 2');">201');">13 and 2');">201');">14, and while doing so acted on behalf of Missouri First, Inc. and its members, as a regular pattern of conduct and consistent with a Charter purpose of Missouri First, Inc., and that Respondent Calzone knowingly did not register as a lobbyist.

[Doc. 1');">1-2');">2, p. 33');">33');">33');">33 of 52');">2]. The Commission specifically found that:

Since 2');">201');">13, Respondent Calzone has been designated by the action of Missouri First, Inc., and its constituent members for the purpose of attempting to influence official action on the bills, resolutions, amendments, and other matters, when Respondent Calzone, acting consistent with the purpose of Missouri First, Inc., and its member, met with legislators and legislators' staff to support or oppose matters pending before the Missouri Legislature, testified in opposition or support of matters pending before the Missouri Legislature, submitted witness forms as requested by individuals who provided those forms to Respondent Calzone through Missouri First, Inc., and by appearing as a witness before committees of the Missouri Legislature for the purpose of representing the interests of Missouri First, Inc., and its members.

Id. at 2');">27-2');">28 of 52');">2.

         Calzone appealed the decision of the Missouri Ethics Commission and the Administrative Hearing Commission ordered discovery. Calzone then sought a writ of prohibition from the Cole County Circuit Court, which Judge Beetem granted on procedural grounds, finding Missouri law does not allow corporations to file complaints with the Ethics Commission. [Doc. 2');">2-1');">1, p. 6');">p. 6');">p. 6');">p. 6]; Calzone v. Admin. Hearing Comm'n, Case No. 1');">16ACCC001');">155 (Mo. 1');">19th Cir. Sept. 2');">23, 2');">201');">16) (“Because the complaint . . . was not filed by a natural person . . . all actions taken on the complaint are and were void”). The Ethics Commission appealed that decision to the Missouri Court of Appeals on October 31');">1, 2');">201');">16, where it remains pending and is set for oral argument July 6, 2');">201');">17. WD801');">176.

         Another complaint against Calzone was filed before the Missouri Ethics Commission on October 1');">12');">2, 2');">201');">16. This complaint was substantively identical to the 2');">201');">14 complaint but was unquestionably filed by a natural person, Michael C. Reed. [Doc. 1');">1-2');">2, Exhibit A].

         On October 2');">21');">1, 2');">201');">16, Calzone filed suit in this Court seeking a temporary restraining order to prevent the enforcement of Mo. Rev. Stat. § 1');">105.470 against him. The Court initially abstained because of the October 1');">12');">2, 2');">201');">16 proceeding pending before the Missouri Ethics Commission. However, the 2');">201');">16 complaint was later dismissed by the Commission and this Court found it had no further basis for abstention. The case was then set for a TRO hearing at which neither Calzone nor anyone else testified. No documents were submitted to the Court other than Calzone's verified complaint and the transcript of the hearing before the Missouri Ethics Commission. The Court denied Calzone's Motion for a Temporary Restraining Order after finding he was unlikely to succeed on the merits of his claim. [Doc. 2');">20].

         On April 2');">25, 2');">201');">17, the Court held a hearing to consider Calzone's Motion for a permanent injunction, which this order now addresses. [Doc. 2');">29].

         B. Factual Background

         The evidence before the Court shows that Mr. Calzone is the incorporator and director of Missouri First Inc. [Doc. 1');">1-2');">2, p. 36 of 52');">2]. Mr. Calzone is the only officer of Missouri First. He is the registered agent of Missouri First and he is one of three members of the Board of Directors of Missouri First. [Doc. 1');">17-1');">1, p. 1');">13 of 2');">239:1');">10-2');">22');">2]. The Charter of Missouri First States:

Missouri First will give priority to educating and mobilizing the public to meet our objectives. Media advertising, public oratory, informational seminars, legislative lobbying, and citizen involvement may be used to teach or to influence public policy. . . . Missouri First will campaign for legislative and ballot issues . . .

[Doc. 1');">1-2');">2, p. 2');">26 or 52');">2] (emphasis added).

         Missouri First's website seeks members to join it to further the agenda of Missouri First:

By joining Missouri First, you place your name and influence on the right side of the issues affecting Missourians. The old saying “there is strength in numbers” holds true, especially when lobbying Missouri House and senate members. . . . All we ask is that you agree with the principles outlined in our Charter and fill out the form below. . . .We ask this form to be completed that we may better keep you informed on Missouri issues, and to bolster our [your] clout when fighting the war for sovereignty.

[Doc. 1');">17-1');">1, pp. 1');">14 of 2');">239:1');">13 - 2');">25; 1');">15 of 2');">239:1');">1-7] (emphasis in original).

         Missouri First's website also permits Missourians to fill out “witness forms” to give an opinion about proposed or pending legislation. Missouri First, Inc., states that it will present all witness forms to the appropriate committee of the Missouri General Assembly.

         Mr. Calzone regularly comes to meet with individual legislators, legislative staff, and other legislative groups, to talk about specific legislation and potential legislation, and what should be passed or blocked. Id. at 1');">18 of 2');">239:2');">21');">1-2');">25; 1');">19 of 2');">239:1');">1-3. He would typically identify himself as “Ron Calzone, Director of Missouri First, or Ron Calzone, a director of Missouri First.” Id. at 88 of 2');">239:1');">13-1');">18. On a witness form in the Missouri Senate:

Mr. Calzone identifie[d] himself as appearing on behalf -- not of himself but appearing on behalf of Missouri First, Inc. When he signed that and said I'm appearing on behalf of Missouri First, Inc., he was the only officer for Missouri First, Inc. He was the president and he was the secretary.

Id. at 1');">19 of 2');">239:4-1');">11');">1.

         Mr. Calzone is aware that people in Jefferson City have complained that he should be registered under Missouri law as a lobbyist because of his extensive lobbying activities in the Missouri Capitol. Mr. Calzone admits he clearly lobbies but contends he is not a “legislative lobbyist” under Missouri law. He also says “[t]hat his hat was-he felt his hat was to represent the faceless mask of citizens who did not have a lobbyist.” Id. at 96 of 2');">239:1');">18-2');">24. There is no evidence in the record that anyone other than Calzone has spoken to legislators to further the lobbying commitment of Missouri First, Inc.

         After the Court issued its ruling on Calzone's Motion for a temporary restraining order, the Parties submitted a list of stipulated facts. [Doc. 2');">28]. The Parties jointly stipulated as to the authenticity and admissibility of “bank records regarding the sole account, checking or otherwise, of Missouri First, Inc.” [Docs. 2');">28; 2');">28-1');">1]. The Parties also stipulated to the following:

1');">1. Plaintiff regularly speaks to legislators in an effort to persuade members of the General Assembly regarding legislation.
2');">2. No natural or artificial person pays Plaintiff in exchange for sharing his views on policy with members of the General Assembly.
3. Plaintiff does not make expenditures for the benefit of one or more public officials or one or more employees of the legislative branch of state government in connection with such activity.
4. Plaintiff is the president and a member of the board of directors of a Missouri nonprofit corporation, Missouri First, Inc.
5. When speaking to legislators, whether in testimony before the General Assembly or in inperson meetings, Plaintiff regularly notes that he is a director of Missouri First, Inc.
6. The board of directors of Missouri First, Inc. has never taken official action to name Plaintiff as the legislative ...

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