Calzone v. Summers

909 F.3d 940

Ronald John CALZONE, Plaintiff - Appellant

v.Donald SUMMERS, in His Official Capacity as Chairman of the Missouri Ethics Commission; Kim Benjamin, in Her Official Capacity as Vice-Chairwoman of the Missouri Ethics Commission; George Ratermann, in His Official Capacity as Commissioner of the Missouri Ethics Commission; Wayne Henke, in His Official Capacity as Commissioner of the Missouri Ethics Commission; Sherman Birkes, in His Official Capacity as Commissioner of the Missouri Ethics Commission; Cheryl Walker, in Her Official Capacity as Commissioner of the Missouri Ethics Commission; Elizabeth Ziegler, in Her Official Capacity as Executive Director of the Missouri Ethics Commission, Defendants - Appellees¹

No. 17-2654

United States Court of Appeals, Eighth Circuit.

Submitted: April 10, 2018

Filed: November 28, 2018

Rehearing En Banc Granted, Opinion Vacated January 28, 2019

Counsel who presented argument on behalf of the appellant was Allen J. Dickerson, of Alexandria, VA. The following attorneys also appeared on the appellant brief; David E. Roland, of Mexico, MO., and Owen D. Yeates, Zac Morgan, and Tyler Martinez, of Alexandria, VA.

Counsel who presented argument on behalf of the appellees was Julie Marie Blake, AAG, of Jefferson City, MO. The following attorney also appeared on the appellee brief; Sara H. Harrison, AAG, of Kansas City, MO.

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

SHEPHERD, Circuit Judge.

Appellant Ronald John Calzone seeks a permanent injunction against the Missouri Ethics Commission (the "Commission ") to prevent the Commission from enforcing against him Mo. Rev. Stat. §§ 105.470, 105.473 (together the "Missouri Statutes "),² which he claims violate his First Amendment right to freedom of speech. We disagree and affirm the district court’s³ denial of the permanent injunction.

I. Background

Calzone is the incorporator, president (the sole officer), director, registered agent, and one of three members of the Board of Directors (the "Board ") of Missouri First, Inc. ("Missouri First "). Missouri First is a non-profit organization, and its charter states that it uses legislative lobbying to influence public policy, mobilize the public, and meet Missouri First’s objectives. R. Doc. 34, at 4. On its website, it also states that "there is strength in numbers" when lobbying and solicits new members to help further advance Missouri First’s legislative agenda. R. Doc. 34, at 5.

Calzone regularly meets with legislators, legislative staff, and other legislative groups to discuss Missouri legislation. These meetings cover both specific legislation or proposed legislation and include Calzone and Missouri First’s opinion as to whether legislation should be passed or blocked. Calzone admits that when he met with legislators in Jefferson City, Missouri, he usually disclosed his affiliation with Missouri First, commonly by identifying himself as "Ron Calzone, Director of Missouri First" or "Ron Calzone, a director of Missouri First." R. Doc. 34, at 5. As the Director, sole officer, registered agent, and board member of Missouri First, Calzone is responsible for determining who will appear before the legislature and present Missouri First’s agenda. No evidence in the record suggests that anyone other than Calzone has represented Missouri First before the Missouri legislature. Calzone does not receive any compensation or make any expenditures when lobbying on behalf of Missouri First.

In 2014 and 2016, the Commission received two complaints against Calzone claiming that he violated the Missouri Statutes, which define who qualifies as a lobbyist and require those individuals to register as lobbyists and file regular lobbying reports. The Missouri Society of Governmental Consultants filed the first complaint, and the Commission found probable cause to believe that Calzone violated the lobbying statutes. Calzone appealed the decision, and the Administrative Hearing Commission ordered discovery. Calzone then sought a writ of prohibition from the Cole County, Missouri Circuit Court. The circuit court granted the petition, finding that the Missouri Society of Governmental Consultants is a corporation, and Missouri law does not allow corporations to file complaints with the Commission. The Commission appealed and the Missouri Court of Appeals reversed and remanded with directions to quash the writ. The Administrative Hearing Commission then stayed the proceedings pending this court’s decision. The second complaint was filed by Michael Reid, a natural person, and was substantively identical to the first. The Commission has dismissed the second complaint.

On October 21, 2016, Calzone filed suit in federal court stating the Commission violated his First Amendment rights and requesting a temporary restraining order to prevent the Commission from enforcing the Missouri Statutes against him or any other unpaid lobbyists. Initially, the district court abstained from hearing the case because the 2016 complaint was pending before the Commission, but, after the Commission dismissed the complaint, the district court resumed the temporary restraining order proceedings. The court denied Calzone’s request for a temporary restraining order, finding he was not likely to succeed on the merits.

Calzone also moved for a permanent injunction, challenging the constitutionality of the Missouri Statutes both facially and as applied to him. After a hearing, the court, applying exacting scrutiny, found that Missouri had a sufficiently important interest in governmental transparency and that requiring unpaid lobbyists to register with the government and file lobbying reports was substantially related to furthering that transparency interest. Thus, the court held Calzone’s as-applied challenge failed.

The district court then turned to Calzone’s facial challenge and found it lacking as well. The court determined that the word "designated" in the statute was not unconstitutionally vague because an ordinary person would have a reasonable opportunity to understand what the statute required. Because Calzone was the registered agent of Missouri First, the court reasoned, he had the authority to appoint himself as a lobbyist for Missouri First. The court held this action is within the plain meaning of the statute.

Thus, because the district court found both claims failed on the merits, it denied Calzone’s request for a permanent injunction. Calzone now appeals.

II. Discussion

We normally review the denial of a permanent injunction for abuse of discretion, Hinz v. Neuroscience, Inc., 538 F.3d 979, 986 (8th Cir. 2008) ; however, when "the determinative question is purely legal, our review is more accurately characterized as de novo ." Entm’t Software Ass’n v. Swanson, 519 F.3d 768, 771 (8th Cir. 2008) (internal quotation marks omitted) (finding de novo review appropriate for grant of permanent injunction related to First Amendment suppression of speech claim). "[T]o obtain a permanent injunction[,] the movant must attain success on the merits[,]" and the district court must determine that on balance "the threat of irreparable harm to the movant, ... the harm to the other party if the injunction is granted, ... and the public interest" weigh in favor of issuing the injunction. Bank One, Utah v. Guttau, 190 F.3d 844, 847 (8th Cir. 1999).

Calzone makes three separate claims on appeal. First, he argues that the district court erred by applying the wrong level of scrutiny to his constitutional claims. Second, he argues that Mo. Rev. Stat. § 150.473 is unconstitutional as applied to him. Finally, Calzone argues that Mo. Rev. Stat. § 150.470 is facially unconstitutional for vagueness. We address each issue in turn.

A. Level of Scrutiny

As a preliminary argument, Calzone asserts that the district court did not apply the correct level of scrutiny, claiming that strict scrutiny rather than intermediate or exacting scrutiny applies. It does not.

In Citizens United v. FEC, the Supreme Court held that "[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether." Citizens United v. FEC, 558 U.S. 310, 318, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). In Minnesota Citizens Concerned for Life, Inc. v. Swanson, we held that " ‘[l]aws that burden political speech are [generally] "subject to strict scrutiny," ...’ [b]ut this is not true when the law at issue is a disclosure law, in which case it is subject to ‘ "exacting scrutiny." ’ " Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874-75 (8th Cir. 2012) (en banc) (first alteration in original) (quoting Citizens United, 558 U.S. at 340, 366, 130 S.Ct. 876 ). Exacting scrutiny "requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest." Id. at 875 (internal quotation marks omitted).

Calzone argues that the district court inappropriately relied on Citizens United for the level of scrutiny because that case concerned campaign finance whereas this case involves lobbying. Calzone makes an inappropriate distinction. Citizens United did involve campaign finance, but the Supreme Court referred to disclosure and disclaimer requirements generally, and it made no distinction between disclosure statutes in campaign finance versus lobbying cases. Citizens United, 558 U.S. at 366, 130 S.Ct. 876 ; see also Swanson, 692 F.3d at 875. Because the statute at issue here is a disclosure statute, we apply exacting scrutiny. Iowa Right To Life Comm., Inc. v. Tooker, 717 F.3d 576, 589 (8th Cir. 2013).

B. As-Applied Challenge

Next, Calzone argues that the district court erred when it found that, as applied to him, an uncompensated person, Mo. Rev. Stat. § 105.473 satisfied exacting scrutiny. The Missouri statute does not differentiate between paid and unpaid lobbyists.⁴ Mo. Rev. Stat. § 105.470. Calzone asserts that Missouri only has a sufficient interest in having...