Cranston v. Thomson

*731 McCLINTOCK, Justice

(dissenting).

I do not disagree with the majority in their view that an action for declaratory judgment must present a justiciable controversy and that the courts should not render advisory opinions. 1 My disagreement is with the application of those principles to the facts of this case and the expressed fear that a decision thereon would be “rendered without concrete factual background, * * * subject to speculation, and would create rather than diminish future controversies”.

As shown by their complaint, the individual plaintiffs at the time of filing the action were actual or potential candidates for political office within the state or were members of organizations interested in supporting political candidates. Pleadings and evidence establish that Wyoming AFL-CIO is a voluntary union of unions within the state, which by its constitution has the declared purpose to participate in the political life of the local, state, and national communities, including fostering legislation which will safeguard and promote the principle of collective bargaining. The constitution of the Wyoming Political Action Committee for Education (PACE) declares one of its objectives to be “to solicit and receive donations which shall in turn be contributed to campaigns of announced political candidates chosen for their support of education or to the political parties they represent”.

All pleadings further allege that application of the so-called Frisby amendment 2 to the activities of these individuals and organizations will constitute an improper and unconstitutional interference with the reasonable and practical exercise of their political rights. But under the view of the majority none of the plaintiffs may secure a determination of the invalidity of the statute because there is no justiciable controversy presented. A closing paragraph of the majority opinion sums up the objections to the action:

“Actually the requests presented by the three complaints were for advisory opinions on multifaceted matters, answers to which could scarcely fail to proliferate rather than resolve controversy.”

Considering the first of three requisites of justiciability said to be recognized in Brimmer v. Thomson, Wyo., 521 P.2d 574 , that there be parties who have existing and genuine, as distinguished from theoretical, rights and interests, I would first refer to the testimony of L. Keith Henning, chief executive officer of the state AFL-CIO, and Ed Brennan, state chairman of PACE.

Mr. Henning testified as to the operations of the organization since its inception in 1956. Each affiliated local union contributes to the state organization dues of 40 cents per month for each of its members, of which sum five cents is earmarked as a political fund, expended through a standing Committee on Political Education *732 (COPE). In addition to these funds, tickets are sold for $2.00 each to voluntary contributors to COPE’s activities. These funds are forwarded to the national AFL-CIO but one-half comes back for use by the state organization. At a state convention of delegates from the various local unions a determination is made to endorse certain candidates for federal, state, or local office, a two-thirds majority of the delegates being necessary for such endorsement. Information concerning such endorsements is disseminated among the membership and the general public. Contributions of financial help are made to some of these candidates, depending upon the importance to COPE of a particular race and the need of a candidate for support. Hen-ning testified concerning the difficulties of making such endorsements and contributions in the face of the Frisby amendment:

“The biggest problems that we have would be, number one, in getting. the two-thirds vote of the entire membership before we can spend monies in individual cases. This becomes a function of the executive end of the organization and it changes day to day and we just could not function if we had to receive a two-thirds membership vote on this. Also, the very great problem is that we don’t know where the money came from, what district it came from, and being able to decide that there were so many members in a certain county that we could expend funds on. There are also counties in the state that have officials up for election that we feel we have great interest in, yet we have very few members residing in that county.”

Specific examples of this last problem were testified to by Henning.

During the 1972 campaign some $7,500, not representing funds contributed by its member locals but as to which COPE acted as agent, were distributed to federal candidates. $5,800, representing contributions through the five cent levy and sale of tickets was expended in support of endorsed candidates. $6,000 of such funds were on hand for expenditure in the 1974 campaign (the testimony was given on June 21, 1974), but in the witness’ own words the “passage of the Frisby Amendment has put us at a standstill” because until some determination is made of the act the AFL-CIO could not proceed. Contributions would be made in the 1974 election campaign if the matter was settled.

Mr. Brennan, after stating the constitutional purpose of PACE, testified that his group consisted of some 1,000 members scattered through.the 23 counties of the state; that"all contributions to the committee were voluntary; that money was received from members of the teaching profession and the general public through drives, raffles, and other functions; that it had participated in the 1970 and 1972 elections, legislative, congressional and county, and had given financial support to a number of those candidates. Endorsement of candidates was in some instances expressed through supportive letters mailed to voters in the county where the candidate was running. At the time of the hearing there was a fund of some $4,100 available for financial support of candidates and the board of directors had gone through the entire list of incumbent legislators and others who might be seeking office and had reached a decision to support some.of the candidates. However, nothing could be done to effect this decision because the board was fearful of the criminal penalties that might result under the amendment.

The possibility of taking a “negative” vote, that is, one where the board would advise the membership of its decisions on various candidates and would consider them approved unless more than one-third of the membership should by letter disclose their rejection of such candidate, had been considered, but no decision reached. The board has been unable to come up with any feasible plan for taking votes of its 1,000 members that is economically feasible. In Brennan’s words: “We would spend more money collecting votes than we do have to give to candidates”, and the effect of this is that “we could not be effective as an organization”.

*733 I see nothing speculative or theoretical in this testimony. I view it as factual, a recitation of the manner in which these two organizations have operated up to the enactment of the amendment. I view as factual their testimony that they have funds on hand which they would like 'to spend in the support of candidates they consider favorable to their objectives but that they cannot do this because of the amendment.

The second requisite to the establishment of a justiciable controversy is said to be that the controversy must be one upon which the court may effectively operate as distinguished from an argument calling for an administrative, philosophic, or academic conclusion. I would consider this point more pertinent and of more importance were this an action only to obtain declarations as to the interpretation of the amendment, that is, if we were asked to tell the plaintiffs what they could or could not do and be in compliance with the statute. For example, PACE includes a prayer that the court answer certain questions as to whether designated conduct would constitute a violation of the statute. But this is an alternative prayer and all of the complaints specifically ask that subsection (e) be declared unconstitutional and void. To decide such a question, against the background of what I believe must be considered a factual situation, is not in my opinion an entry into any academic or philosophic discussion.

I hold the same views with respect to the third requisite cited by the majority, that the judicial determination must have the force and effect of a final judgment upon the rights, status, or legal relationships of a real party in interest. Again, upon my view that the plaintiffs have alleged and shown a definite and real interference with their method of operation, I do not see how it could possibly be said that a judgment declaring the statute unconstitutional would fail to be a final judgment upon the rights, status, or legal relationship of these plaintiffs, justifiably concerned with protecting their way of participating in political activity and therefore being real parties in interest. We had no difficulty in determining and declaring a criminal statute unconstitutional in Doe v. Burk, 513 P.2d 643 . Although by a split decision, in State v. Stern, 526 P.2d 344 , we declared our so-called breaking and entering statute unconstitutional. I would assume that these statutes may no longer be considered as effective in Wyoming. I would consider that a judgment that the Frisby amendment was unconstitutional would similarly have the practical effect of eliminating it from future concern to anyone. The Supreme Court of the United States in a host of cases, has held that the validity of a state statute may be properly challenged on constitutional grounds under the federal declaratory judgment law. 3 Under those decisions a declaration of unconstitutionality under the federal constitution is a final and effective judgment. I must disagree with the majority when they conclude that a declaration of unconstitutionality in this case would create or proliferate future controversies.

I am further of the opinion that to distinguish Brimmer on the basis that in that case there was an official opinion of the attorney general’s office which was adverse to the right of the defendants therein to seek the nomination for governor of the state, while in this case there is no such opinion is a distinction without significance. 4 Section 1-1052, W.S.1957 provides in plain language that:

“Any person * * * whose rights, status or other legal relations are affect *734 ed by a statute * * * may have determined any question of construction or validity arising under the * * * statute.”

It does not provide that anyone whose rights under a statute as interpreted by the attorney general or other public official may have such declaration. While there might be reason for declining to exercise discretion to make declarations under such posited circumstances as to be ridiculous, there is nothing fanciful about the situation in which the plaintiffs find themselves, and the Frisby amendment, not the Attorney General’s construction thereof, is what endangers the plaintiff’s exercise of political rights in the only manner in which they consider such exercise effective.

The foregoing relates only to the justici-ability of the action insofar as it seeks declarations as to the unconstitutionality of the Frisby amendment. However, all plaintiffs specifically raised the question that insofar as any legislation relating to the support of candidates for federal office is concerned, state laws are either inapplicable or invalid because federal legislation has preempted the field. This contention had been specifically rejected by an attorney general’s opinion, No. 12, dated April 29, 1974. If Brimmer is valid only because the there asserted right of the midterm senators to run for' the office of governor was clouded by the deputy attorney general’s “qualified no” opinion, then it would seem in this case that the asserted right of AFL-CIO and PACE to endorse and support federal candidates of their choice is similarly clouded and there is a justiciable controversy in that respect. Counsel for AFL-CIO argue this question in their brief and the Attorney General responds thereto but does not again comment after plaintiffs’ filed supplemental brief setting forth the final federal act and history thereof.

I shall not argue the merits of the Attorney General’s contention that'only a candidate for federal office would have standing to raise the question except to state that the action seeks to determine and protect the right of citizens, whether as individuals or associations, to express themselves in elections, a right which I consider a first amendment right of the first magnitude. I do not believe only a candidate has the standing to claim a constitutional right is clouded by improper state legislation. I think that a justiciable controversy on a serious question was raised by the pleadings, the briefs, and supplemental brief. I think that the majority improperly ignore that question.

I should add that I am convinced that subsection (e) of the Frisby amendment is unconstitutional and that the decision of this Court should be to that effect, notwithstanding that the district court did not reach a conclusion on that point. It is my opinion that the case of the plaintiffs was completely developed in the district court, the Attorney General presented all the evidence that he considered pertinent on the issues, and I find no questions of fact that should be left to the prior determination of the original trier of the fact. In the last analysis it is only this Court which can effectively decide the questions of validity under our state constitution, and we have an equal obligation, subject to the final review of the Supreme Court of the United States, to enforce the constitution of the United States. While the original necessity for haste has been eliminated by the normal delays in getting a case to trial and then to this Court, I see nothing to be gained by further consideration in the trial court. I believe that a decision of this Court should and would end the controversy.

*735 Counsel for AFL-CIO and PACE argue effectively and with citations of numerous authorities that subsection (e) is invalid under a number of state and federal constitutional provisions. Noting in passing that there is a very real vagueness of expression in certain portions of the subsection, 5 I do not think that this Court needs to reach or discuss all of the constitutional arguments raised, and I would hold the subsection unconstitutional because of its clear and unequivocal prohibiting of certain conduct by organizations other than political parties, except under conditions which the evidence shows could not be met in any practicable way so that in my opinion the statute amounts to a denial of the right of association and to operate as an association in the exercise of rights guaranteed under the first and fourteenth amendments to the United States Constitution and §§ 2, 3, 6, and 7 of Art. 1 of the Wyoming Constitution. While I find no cases directly in point, either of this Court or the Supreme Court of the United States, I do think that decisions of that court establish the principles that should govern our determination.

In Healy v. James, 408 U.S. 169, 181 , 92 S.Ct. 2338, 2346 , 33 L.Ed.2d 266 (1972), it is said that: “Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs.” In the same vein are Bates v. Little Rock, 361 U.S. 516, 523 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960), Sweezy v. New Hampshire, 354 U.S. 234, 250 , 77 S.Ct. 1203 , 1 L.Ed.2d 1311 (1957), and National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449, 460 , 78 S.Ct. 1163, 1170 , 2 L.Ed.2d 1488 (1958). In this last case it is said that:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. * * *

Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

As was said in Sweezy, 354 U.S. at 250 , 77 S.Ct. at 1212 , “Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association.” The individual plaintiffs in this action are persons who seek to associate and obtain the support of associations in political activity; AFL-CIO and PACE are organizations which seek to express and have their views known in political campaigns, and one of their methods of doing so is by the endorsement and support of candidates. Their activities are materially curtailed if not eliminated by the two-thirds vote requirement, and they are definitely discriminated against in their manner of contributions in that individuals, from within or outside the state, may make contributions in any election district they choose, while these associations may only contribute to the extent of the contributions by their members in the particular election district. They may not even seek the contributions of nonmembers for use in those areas. I confess myself unable to see how either subsections (e) (i) or (e) (ii) can be said to further any important interest of the state of Wyoming. I fail to see how a contribution by one person of $1,000 can be good and an equal contribution representing the combined donations of 1,000 persons can be evil. There is then a very real denial of *736 equal rights to those people who would combine their efforts to be politically effective.

Because of my conviction that the Frisby amendment is unconstitutional and my further question concerning its applicability to elections of federal candidates, I think it most unfortunate that a majority of this Court has seen fit to reject jurisdiction of the action, apparently brought in all good faith, and raising questions that are to me of substantial importance. I have cause to wonder how a solution of those problems will be reached. The Attorney General states that he does not want interested and conscientious citizens to flout the law, thereby risking civil penalties of considerable size, and even fine ánd imprisonment, but I find little help for these people in his suggestion that “[ijmaginative legal procedure could be employed to establish a valid factual situation which would define the issues yet fall short of incurring any penalty”. The brief does not suggest such procedures 6 and my imagination is not equal to the task he seeks to impose. The majority decision leaves this matter in the most regrettable situation that plaintiffs’ important political rights are clouded by the action or inaction of the Attorney General. The only alternative to risk of criminal liability seems to me to be an action in the federal courts under federal legislation relating to civil rights or declaratory judgments relief. I would have preferred action- by this Court.

. Brimmer v. Thomson, Wyo., 521 P.2d 574 ; Anderson v. Wyoming Development Company, 60 Wyo. 417 , 154 P.2d 318 ; Holly Sugar Corporation v. Fritzler, 42 Wyo. 446 , 296 P. 206 .

. Subsection (e) of § 22.1-389, W.S.1957, 1974 Int.Supp., provides in pertinent part that no monetary contribution or expenditure may be made by certain described organizations including trade associations and labor unions, unless:

“(i) The contribution or expenditure is approved by at least sixty-six and two-thirds percent (66%%) of the member's of - the organization who reside within the area from which the candidate may be elected. Any blanket endorsement which could be construed to circumvent the intent of this subsection is prohibited. The individual

vote and endorsement by the membership is required for each candidate who is to receive a contribution ; and

“(ii) The monies contributed or expended are from funds or contributions of only those members of the organization who reside within the district from which the candidate may be elected.

“Any device contrived to circumvent the intent and purpose of this subsection is prohibited.”

Violation of these prohibitions is punishable by imposition of civil penalties up to $10,000, plus costs and reasonable attorney fee, § 22.1-389(g), W.S.1957, 1974 Int.Supp., as well as a fine up to $1,000 and imprisonment in the county jail for not more than six months, § 22.1-405, W.S.1957, 1973 Cum. Supp.

. See Steffel v. Thompson, 415 U.S. 452 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974) ; Doe v. Bolton, 410 U.S. 179 , 93 S.Ct. 739 , 35 L.Ed. 2d 201 (1973).

. It would hardly be denied, I think, that the controversy in this case is much more realistic tlian that in Brimmer where all the contesting parties were in agreement as to answer to the question posed by the suit. A number of motions were submitted and disposed of by the district court after filing of extensive briefs and oral argument, with the *734 plaintiffs vigorously attacking the statute and tlie attorney general defending it with equal fervor. In Brimmer , only the deputy attorney general was heard to defend the “qualified no”, given in the opinion of March 13, 1974, to the query of whether a state senator could become a candidate for state office in the middle of his term. Actually, a withdrawal of the opinion by the attorney general himself would have eliminated the controversy entirely.

. I am at a loss to understand just what is meant by the . expression that “[a]ny blanket endorsement which could be construed to circumvent the intention of this subsection” ((e) (i)) and that “[a]ny device con--trived to circumvent the intent and purpose of this subsection” ((e) (ii)) are x>rohibited. However, I do not consider that they are so important to the section that the legislature would not have enacted it with the deletion of these two sentences,

. Although upon the oral argument of the case I particularly asked the Attorney General for examples of such possible procedures, I confess that I remain unenlightened.