Ron Calzone's challenge to a Missouri Ethics Commission investigation belongs at the Administrative Hearing Commission, not the Cole County Circuit Court, three judges of the Missouri Court of Appeals ruled Tuesday.
In an 11-page opinion written by Judge Anthony Rex Gabbert, the appeals court overturned Circuit Judge Jon Beetem's Sept. 23, 2016, judgment prohibiting the AHC from continuing the case because the original complaint "with the Missouri Ethics Commission was not filed by a natural person, but by an entity (through) its agent."
Calzone's lawyer, Dave Roland of Mexico, told the News Tribune: "Mr. Calzone intends to ask the Missouri Supreme Court to review this decision.
"In the meantime, Mr. Calzone will also continue his fight in federal court to establish that the (U.S. Constitution's) First Amendment does not permit the government to force unpaid citizen activists to register with and report to the government as if they are paid, professional lobbyists."
Calzone, of Dixon, founded and heads the group "Missouri First," and regularly testifies on issues at state House and Senate committee hearings.
As the appeals court's ruling noted, Calzone tells lawmakers that he "is not a registered lobbyist and does not need to be because he does not get paid."
While some lawmakers have questioned that position, it didn't become a legal battle until November 2014, when Jefferson City attorney Michael Dallmeyer filed a complaint with the Ethics Commission on behalf of the Missouri Society of Governmental Consultants.
The complaint said that - since 2000, when he founded Missouri First - Calzone "had continuously lobbied members of the Missouri General Assembly on behalf of Missouri First without filing legislative lobbyist registration forms and filing fees in violation" of state law.
After a Sept. 3, 2015, hearing, the commission found probable cause that Calzone had violated two state law sections and ordered him to register as a lobbyist, 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.
Two weeks later, Calzone appealed to the AHC.
In April 2016, after the hearing commission denied Calzone's motion for a protective order and granted part of the Ethics Commission's motion to compel discovery, Calzone asked the Cole County Circuit Court to prohibit the case from going forward.
In that motion, the appeals court noted, Calzone argued "that the court's intervention was necessary because the MEC and AHC had no jurisdiction to act on Dallmeyer's complaint against Calzone," because the complaint "had been filed on behalf of a non-natural person (while state law) requires all complaints such as Dallmeyer's to be filed by a 'natural person.'"
Ultimately, Beetem agreed.
But, Gabbert wrote for the appeals court, state law requires the Ethics Commission "to receive any complaint making allegations such as those in Dallmeyer's complaint against Calzone, which alleged violations of the statutory requirements imposed on lobbyists," then review the complaint to determine if it falls within the law's guidelines and, if so, to investigate "the merits of the complaint."
And, the appeals court said, the commission's "determination as to statutory compliance is subject to review by the AHC."
Once the Administrative Hearing Commission makes a decision, the appeals court noted, one or both of the parties then can appeal to the circuit court.
But in Calzone's case, since the AHC had not reached a decision, the appeals court decided "Calzone had not exhausted his administrative remedies prior to seeking the writ of prohibition" in the circuit court - and that Beetem should not have blocked the hearing commission "from performing its statutorily mandated review of Calzone's appeal of the MEC decision."
Roland and Calzone noted the appeals court ruling put the issue back to the hearing commission, and did not order Calzone to register as a lobbyist.
Still, Roland said: "(Judge) Beetem correctly recognized that because the Society's complaint was unlawful, the Ethics Commission's harassment of Mr. Calzone should be put to an end. But the court of appeals has now ruled that even where it is clear that a complaint was unlawfully filed, circuit courts may not intervene to terminate the commission's wasteful, burdensome administrative process."