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State ex rel. Calzone v. Missouri Ethics Commission

Court of Appeals of Missouri, Western District, Second Division

July 18, 2017


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

          Before: Edward R. Ardini, Presiding Judge, Karen King Mitchell, Judge, Anthony Rex Gabbert, Judge

          Anthony Rex Gabbert, Judge


         Missouri Ethics Commission (MEC) appeals the circuit court's Judgment granting a permanent writ prohibiting further action on a complaint filed with the MEC against Ron Calzone. The court held all prior action taken on the complaint to be void. MEC contends that the circuit court erred in its Judgment because a writ of prohibition is improper when used to disrupt an appeal of an administrative action to the Administrative Hearing Commission. MEC further contends that the court erred in its Judgment because the complaint filed with the MEC met the requirements of Section 105.957.2.[1] We reverse and remand with direction to quash the writ of prohibition.

         Factual and Procedural Background

         On November 4, 2014, "Michael Dallmeyer, attorney" filed an Official Complaint Form with the MEC pursuant to Section 105.957. He alleged therein that, since 2000, Ron Calzone had continuously lobbied members of the Missouri General Assembly on behalf of Missouri First, Inc., a Missouri non-profit organization incorporated by Calzone in 2000, without filing legislative lobbyist registration forms and filing fees in violation of Section 105.473.1. Dallmeyer alleged that Missouri First's "Methods of Operation" state that "... Legislative lobbying and citizen involvement may be used to … influence public policy" and that Calzone had lobbied members of the General Assembly on issues relating to the right to bear arms, common core standards, property rights, and privacy of records. Dallmeyer alleged that, when testifying before legislative committees, Calzone identifies himself as director of Missouri First, and then declares that he is not a registered lobbyist and does not need to be because he does not get paid. Dallmeyer's complaint was accompanied by a transmittal letter stating, "I am submitting on behalf of our client, Missouri Society of Governmental Consultants" (MSGC) and advising that "public or media communications should be directed to MSGC, while any communications or questions from MEC should be directed to the undersigned."

         On November 7, 2014, the MEC mailed a copy of the Official Complaint Form to Calzone and proceeded to review and conduct an investigation into Dallmeyer's complaint. On January 21, 2015, the MEC's investigator provided Calzone with a copy of the transmittal letter that had accompanied Dallmeyer's complaint. On April 21, 2015, the MEC filed a complaint with itself pursuant to Section 105.961.3 requesting a hearing and a determination of probable cause that Calzone had violated Sections 105.473.1 and 105.473.2. Upon finding a reasonable basis for the complaint, the MEC scheduled a hearing for September 3, 2015.

         On August 31, 2015, Calzone filed a motion to dismiss with the MEC alleging that Dallmeyer's allegations were "patently insufficient, " that Calzone had not been "designated" as a lobbyist by Missouri First, and that Calzone's activities did not fit within the definition of "legislative lobbying." He further contended that, even if there was probable cause to find him a designated legislative lobbyist, the statutory definition of "designate" is unconstitutionally vague and the statute is unconstitutionally overbroad in reaching "lobbyists" who are not compensated for their advocacy. Calzone's Motion to Dismiss acknowledged that Dallmeyer represented MSGC, indicating that the complaint was brought by "Mr. Dallmeyer individually, as required by state law, and not by the Society." The motion further stated:

Because it is a sworn complaint, presumably Mr. Dallmeyer has direct personal knowledge of the facts alleged therein and did not improperly rely upon hearsay in making his allegations. Respondent presumes that the Commission fully investigated the basis for Mr. Dallmeyer's sworn statement, but preserves the right to raise this issue should that belief prove to be misplaced.

         On September 3, 2015, the MEC held a closed hearing on Dallmeyer's complaint. At that hearing Calzone's motion to dismiss was denied. The MEC called four witnesses and introduced eight exhibits, including Dallmeyer's complaint. Dallmeyer's complaint was offered without objection for the purpose of establishing "that a Complaint was filed with the Commission, that it was signed under oath and verified by the complainant." Calzone exercised his Fifth Amendment right against self-incrimination, called no witnesses, and introduced one exhibit, the cover letter to Dallmeyer's complaint.

         On September 11, 2016, the MEC issued its Findings of Fact, Conclusions of Law, and Order against Calzone finding probable cause that he violated Sections 105.473.1 and 2. The Order requires Calzone to register as a lobbyist and file all required reports, cease and desist from attempting to influence legislation until after filing an annual lobbyist registration and other required reports, and pay a $1, 000 fine.

         On September 25, 2015, Calzone filed a Petition for Review with the Administrative Hearing Commission (AHC) under Section 105.961.5. The MEC filed an answer to that Petition on October 28, 2015. On December 18, 2015, Calzone filed a Motion for Decision on the Pleadings. The MEC filed its opposition to that motion and the AHC heard oral argument regarding that motion. On December 28, 2015, the MEC served its First Set of Interrogatories Directed to Petitioner Calzone. On February 3, 2016, the MEC filed a motion to file an amended Answer and submitted a proposed Amended Answer.

         On February 5, 2016, the AHC issued an order denying Calzone's Motion for Decision on the Pleadings. ...

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