LaVanchy v. Ziegler

JOHN LAVANCHY, Plaintiff, v. ELIZABETH ZIEGLER, et al., Defendants.

No. 2:21-CV-04238-MDH

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

January 27, 2022

ORDER

DOUGLAS HARPOOL UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff John LaVanchy's Motion for Temporary Restraining Order and Preliminary Injunction. (Doc 2). On January 24, 2022, the Court held a hearing regarding the pending motion. The matter is ripe for review. For the reasons set forth herein, Plaintiff's Motion for a temporary restraining order is DENIED. The motion for preliminary injunction is taken with the Court.

BACKGROUND

Plaintiff seeks a temporary restraining order and preliminary injunction which orders Defendants to cease enforcement of MO. CONST. art. III, § 2(a) (the “Lobbying Ban”):

After December 6, 2018, no person serving as a member of or employed by the general assembly shall act or serve as a paid lobbyist, register as a paid lobbyist, or solicit prospective employers or clients to represent as a paid lobbyist during the time of such service until the expiration of two calendar years after the conclusion of the session of the general assembly in which the member or employee last served and where such service was after December 6, 2018.

Plaintiff argues that the Lobbying Ban deprives him of his First Amendment freedom of speech and right to petition. Defendants are the Executive Director and Commissioners of the Missouri Ethics Commission (collectively, “MEC”).

In 2018, the Missouri Constitution was amended by initiative petition to enact Amendment 1, which contained revisions to the state's ethics and campaign finance laws. Amendment 1 included the Lobbying Ban.

Plaintiff has served as a Legislative Assistant to Missouri State Representatives Shane Roden and Andrew McDaniel since December 2017 and January 2014, respectively. In this capacity, Plaintiff testified that his duties include performing research for the representatives, scheduling meeting for the representatives, including with special interests and lobbyists, and having some level of control or connection to who has access-and how much access-to the representatives. Plaintiff also occasionally attends committee meetings in place of the representatives. Because he is an employee of the General Assembly, he is subject to the Lobbying Ban. Roden and McDaniel will leave office in January 2023 due to term limits, and LaVanchy's employment prospects “thereafter are unclear.” (Doc. 2 at 3). He argues that the Lobbying Ban is preventing him from finding suitable employment elsewhere. “Few private sector employers who value his skills and experience will consider him for employment because he is not allowed to speak to the government due to the Lobbying Ban....he is wary of even soliciting private-sector employments” Id. However, Plaintiff testified that he has not applied to any employers.

Plaintiff argues that the Lobbying Ban is an unconstitutional burden on his right to freedom of speech and right to petition. He admits that the Lobbying Ban only prohibits lobbying that is compensated and that he may therefore engage in any lobbying activities so long as he is not paid pursuant to the requirements of the Lobbying Ban. However, Plaintiff argues that “[d]enying compensation for the exercise of a constitutional right is a burden on that right.” (Doc 15 at 1). He further argues that the Lobbying Ban is overbroad as the phrase “no person serving as a member of or employed by the general assembly shall act or serve as a paid lobbyist, ” may capture employees-such as janitors purportedly employed by the general assembly- that the Government has no legitimate interest in prohibiting lobbying activity of.

STANDARD

Courts in the Eighth Circuit consider four factors when deciding whether to grant a preliminary injunction: (1) the movant's probability of success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance of movant's harm and the injury an injunction could inflict on other parties; and (4) the public interest. Heartland Academy Community Church v. Waddle, 335 F.3d 684 (8th Cir. 2003) (citing Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981)); see also Associated Producers Co. v. City of Independence, Mo., 648 F.Supp. 1255 (W.D. Mo. 1986). These same factors apply to the determination of whether to grant a temporary restraining order. GP3 II, LLC v. Bank of the West, 467 F.Supp.3d 765, 769 (W.D. Mo. 2020).

DISCUSSION

1. Plaintiff does not have a likelihood of success on the merits

“Since Dataphase, the Eighth Circuit has generally held that the likelihood of success on the merits is the most significant factor.” Champion Salt, LLC v. arthofer, No. 4:21-cv-00755-JAR, 2021 WL 4059727, at *6 (E.D. Mo. Sept. 7, 2021) (citing Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013)). In a challenge to a federal statute, state statute, or other “government action based on presumptively reasoned democratic processes, ” 4 the movant must show “a substantial likelihood of success on the merits[.]” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 731-32 (8th Cir. 2008) (en banc) (internal citations and quotations omitted). This burden requires the movant to demonstrate more than just a “fair chance” of success on the merits. Id. This more rigorous standard “reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.” Id. (citations omitted).

Under 42 U.S.C. § 1983, a plaintiff may hold state actors accountable for “deprivation of any rights, privileges, or immunities secured by the Constitution.” Plaintiff argues that MEC deprives Plaintiff of his First Amendment freedom of speech and right to petition by enforcing the Lobbying Ban. “Congress shall make no law... abridging the freedom of speech” or the right of the people “to petition the Government for a redress of grievances.” U.S. Const. amend. I. The First Amendment has been made applicable to the State of Missouri by operation of the Fourteenth Amendment. Thornhill v. Alabama, 310 U.S. 88, 95 (1940). Lobbying the government is protected under the First Amendment. E.g., F.T.C. v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 426 (1990).

In this case, Plaintiff conflates his right to speak and petition with his desire to receive compensation for doing so. Plaintiff admits that no portion of Article III, § 2(a) affects his right to say anything he wants to any member of the Missouri General Assembly on behalf of any client or special interest group. The restriction simply imposes a two-year waiting period for which Plaintiff may not be paid for attempts to influence government actions.

Plaintiff relies heavily on Citizens United for the proposition that “Government may not indirectly restrict speech by denying access to advisors or other assistance, because ‘effective public communication requires the speaker to make use of the services of others.'” (citing Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (2010) (quoting McConnell v. F.E.C., 540 U.S. 93, 251 (2003) (opinion of Scalia, J.)) However, Plaintiff's argument that speech is burdened by the Lobbying Ban because the compensation prohibition restricts “access” for speakers has little bearing on this case. Here, the speaker allegedly being burdened is the payor, or the entity who wishes to pay a person subject to the lobbying restriction to lobby for it. Plaintiff's speech is not directly burdened.

Moreover, the definition of “legislative lobbyist” in Mo. Rev. Stat. 105.470.5 further narrows the prohibitions of the Lobbying Ban. Under § 105.470.5:

...A “legislative lobbyist” shall also not include any member of the general assembly, an elected state official, or any other person solely due to such person's participation in any of the following activities:

a. Responding to any request for information made by any public official or employee of the legislative branch of government;

b. Preparing or publication of an editorial, a newsletter, newspaper, magazine, radio or television broadcast, or similar news medium, whether print or electronic;

c. Acting within the scope of employment of the legislative branch of government when acting with respect to the general assembly or any member thereof;

d. Testifying as a witness before the general assembly or any committee thereof;

Mo. Rev. Stat. § 105.470.5 (emphasis added). This means that the Lobbying Ban does not prohibit him from engaging in the activities above for compensation. The activities the Lobbying Ban directly prohibits include activities that implicate corruption or quid pro quo concerns the most- for example, Plaintiff is prohibited from being compensated for one-on-one lobbying-related meetings with elected officials.

To the limited extent Plaintiff's speech may be burdened, the Court finds that the Lobbying Ban is likely constitutional regardless of the level of scrutiny the Court applies. Plaintiff contends that strict scrutiny must be applied, while Defendants argue that the Lobbying Ban is contentneutral and is subject to exacting scrutiny. At this time, the Court declines to decide which scrutiny analysis the Lobbying Ban is subject to, because the Court concludes that the restriction likely meets the highest standard of strict scrutiny in any event.

Strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171, (2015) (citing Arizona Free Enterprise Club's Freedom Club PAC v Bennett,...