Calzone v. Summers

942 F.3d 415

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 - Appellees

No. 17-2654

United States Court of Appeals, Eighth Circuit.

Submitted: April 19, 2019

Filed: November 1, 2019

Allen J. Dickerson, Tyler Martinez, Zac Morgan, Owen Dennis Yeates, Institute for Free Speech, Alexandria, VA, David Edward Roland, Freedom Center of Missouri, Mexico, MO, for Plaintiff - Appellant.

Julie Marie Blake, Brian P. Weisel, Assistant Attorney General, Attorney General's Office, Jefferson City, MO, Sara Hilary Harrison, Assistant Attorney General, Attorney General's Office, Kansas City, MO, for Defendants - Appellees.

Before SMITH, Chief Judge, LOKEN, COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges, En Banc.

STRAS, Circuit Judge, with whom SMITH, Chief Judge, GRUENDER, ERICKSON, GRASZ, and KOBES, Circuit Judges, join.

Ronald Calzone frequently talks to Missouri legislators about political issues that are important to him. The State says that, because he runs a nonprofit corporation, he may do so only if he goes through the effort and expense of registering as a "legislative lobbyist," even though no one pays him and his activities do not involve spending money. We hold that this burden, as applied to Calzone, violates the First Amendment.

I.

Calzone is an active figure in Missouri politics. He "regularly speaks to legislators," sometimes in one-on-one meetings and other times by testifying before Missouri's General Assembly. Importantly, however, Calzone only talks and listens when pressing his views with legislators. He does not get paid in connection with his activities, nor does he "make expenditures for the benefit of" public officials.

Calzone often acts through a nonprofit corporation called Missouri First, Inc. The parties agree that this organization is effectively his alter ego: he is its incorporator, sole officer, president, director, and registered agent. According to Missouri First's charter, it seeks to "educat[e] and mobiliz[e] the public" about matters of civic importance and support various candidates and initiatives. Like Calzone himself, Missouri First spends and receives no money in pursuit of these goals.

According to Missouri, Calzone's ties to Missouri First make him a "legislative lobbyist." Mo. Rev. Stat. § 105.470(5). As relevant here, this label applies to "any natural person who acts for the purpose of attempting to influence" legislative activities and has been "designated to act as a lobbyist by any ... nonprofit corporation, association[,] or other entity." Id. § 105.470(5)(c). All lobbyists must navigate a maze of legal requirements.

They must first file a registration form, under penalty of perjury, with the Missouri Ethics Commission within five days of beginning any lobbying activities. Id. § 105.473.1. The form, which costs ten dollars to file, requires disclosure of the lobbyist's name and business address, as well as the names and addresses of anyone "employ[ed] for lobbying purposes." Id. This information becomes a matter of public record. Id.

There are also ongoing obligations. Lobbyists must update the Missouri Ethics Commission within one week of a "change in [their] employment or representation." Id. They are required to file monthly declarations, again under penalty of perjury, listing any expenditures they make. Id. § 105.473.3. And twice a year, they have to disclose what "proposed legislation [they] ... supported or opposed." Id. § 105.473.12. All of these reports are public too. Id. §§ 105.473.6, 105.477.4, .5.

Noncompliance carries severe penalties. In addition to hefty fines, violators face prison time—up to four years for repeat offenders. See id. §§ 105.473, 105.478, 558.002.1, 558.011.1(5), (7). Anyone can initiate an investigation simply by filing a complaint with the Missouri Ethics Commission. See id. §§ 105.472, 105.966. Calzone has faced two official complaints, including one that resulted in a formal inquiry.

Convinced that these restrictions violate his First Amendment free speech and petition rights, Calzone sought a permanent injunction to prevent members of the Missouri Ethics Commission from "enforcing [the law] against [him]."¹ In support of his request for individual injunctive relief, Calzone's focus has been on why the restrictions are unconstitutional in light of his particular method of advocacy. He has stressed, for example, that he "does not accept money for his activism, nor does he spend money on legislators and legislative staff when he communicates with them about his public policy beliefs." Suggestions in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunctive Relief at 11.

Calzone's lawsuit has so far been unsuccessful. The district court denied a permanent injunction and entered final judgment against Calzone. Working from stipulated facts, the court ruled that his as-applied challenge failed because enforcement of the law against him had a "substantial relation" to "sufficiently important" state interests. It also rejected Calzone's argument that the law is unconstitutionally vague.

II.

Both of Calzone's constitutional claims present purely legal questions that we review de novo. See Llapa-Sinchi v. Mukasey , 520 F.3d 897, 899 (8th Cir. 2008). The ultimate decision of whether to grant or deny a permanent injunction, however, lies within the district court's discretion. See Kittle-Aikeley v. Strong , 844 F.3d 727, 735 (8th Cir. 2016) (en banc).

A.

We begin with Calzone's claim that Missouri's lobbying requirements violate his freedom of speech and right to petition the government. See U.S. Const. amend. I. This challenge, unlike his void-for-vagueness claim, is as-applied, meaning that we must examine the constitutionality of the law in light of "the particular facts of [Calzone's] case." Phelps-Roper v. Ricketts , 867 F.3d 883, 896 (8th Cir. 2017) (citation omitted). And that means every fact, including that Calzone "does not make expenditures for the benefit of ... public officials ... in connection with" his advocacy.² Order at 6, June 26, 2017 (reciting the jointly stipulated facts); see also Verified Compl. at 1 ¶ 2 ("[H]e does not give legislators any gifts."); id. at 11 ¶¶ 56–60 (incorporating his allegations to support his request for an injunction). Cf. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez , 561 U.S. 661, 676, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (recognizing that litigants are "entitled to have their case tried upon" stipulated facts (brackets and citation omitted)); Gander v. Livoti , 250 F.3d 606, 609 (8th Cir. 2001) ("Valid stipulations are controlling and conclusive, and courts must enforce them.").

The dissenters suggest that there is something different about this case, primarily because Calzone has consistently emphasized his lack of pay over his lack of expenditures. But the test for forfeiture is not how many times a litigant has raised a particular issue or fact, but rather whether it has been raised in a timely manner. See United States v. Olano , 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (describing forfeiture as "the failure to make timely assertion of the right" (emphasis added and citation omitted)); Universal Title Ins. v. United States , 942 F.2d 1311, 1314 (8th Cir. 1991) (acknowledging our discretion to consider a "nuance or shift in approach" that a party did not "similarly urge[ ]" before the district court (citation omitted)). And here it has been. Calzone has raised the no-expenditures point at numerous steps in the litigation—starting with his appearance before the Missouri Ethics Commission; continuing with his complaint, his memorandum in support of a permanent injunction, and the joint stipulation of facts;³ and ending with his briefs to this court.⁴ Only the dissenters disagree.

Even Missouri seemingly reached the same conclusion long ago, having never raised a forfeiture objection despite numerous opportunities to do so. As counsel for Missouri put it at oral argument before the original three-judge panel, Calzone has

two reasons why he thinks he's special compared to other lobbyists. One is he's not buying lunch and giving money to [the] legislators. Two, his organization that has him in the post of president isn't paying him to be their president, et cetera. I understood his brief to say that both of these points were salient to his claim .

Oral Arg. at 18:00–19:45 (emphasis added). Missouri had a clear opportunity to raise forfeiture after it became apparent that a threshold disagreement between the members of the original panel was whether Calzone had preserved his no-expenditures point. See Calzone v. Summers , 909 F.3d 940, 946–47 (8th Cir. 2018), reh'g en banc granted, opinion vacated (Jan. 28, 2019); id. at 951–53 & n.5 (Stras, J., dissenting). Rather than doing so, however, Missouri continued to focus exclusively on the merits of Calzone's First Amendment challenge, both in its response to his petition for rehearing en banc and in the face of questioning from the en banc court. See Resp. Br. Appellees Pet. Reh'g or Reh'g En Banc at 2, 6–8, 11, 14; Oral Arg. at 31:38–32:11; see also Pl.–Appellant's Pet. Reh'g and Reh'g En Banc at 2–10 (leading with the argument that the panel majority had ignored aspects of his...