Appendix — Plante v. Gonzalez

United States

October Term, 1978

No.78- 84 4

KENNETH A. PLANTE, DEMPSEY J. BARRON,

PHILIP D. LEWIS, JACK D. GORDON, and JON

C. THOMAS,

Petitioners,

US.

LARRY GONZALEZ as Executive Director of the

Florida Commission on Ethics; BRUCE

SMATHERS, as Secretary of State of Florida;

THE FLORIDA COMMISSION ON ETHICS: and

REUBIN O’D ASKEW, as Governor of the State of

Florida,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

APPENDIX

TOBIAS SIMON, Esquire CHARLES L. CARLTON, Esquire

1492 South Miami Avenue 1430 Lakeland Hills Boulevard

| Miami, Florida 33130 Lakeland, Florida 33801

RICHARD McFARLAIN, Esquire Attorneys for Petitioners

P. O. Box 1123

Tallahassee, Florida 32302

INDEX TO APPENDIX

Memorandum Opinion and Order of United States

District Court, September 14, 1977............ 1

Opinion of United States Court of Appeals,

Fifth Circuit, June 30, 1978. ...........seeeees 15

Myers v. Hawkins, Fla. 1978, FLW, SCO, 431 ..... 63

Miscellaneous Newspaper Reports. ............... 73

App. i

IN THE UNITED STATES

DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TCA 77-0852

KENNETH A. PLANTE, et al.,

Plaintiffs,

vs.

LARRY GONZALEZ, et al.,

Defendants.

TCA 77-0868

JON C. THOMAS,

Plaintiff,

vs.

LARRY GONZALEZ, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The plaintiffs in these consolidated cases seek a

declaratory judgment that the financial disclosure re-

quirement imposed upon elected state and county of-

ficers by Article II, §8 of the Constitution of the State of

Florida contravenes personal privacy rights guaranteed

by the First, Fourth, Fifth, Ninth and Fourteenth

Amendments to the United States Constitution.

Jurisdiction is founded upon 42 USC §1983 and 28 USC

App. 1

§1343. All the plaintiffs in both lawsuits are members of

the Florida State Senate. The defendants are the

Florida Commission on Ethics, the Executive Director

of the Commission, and the Governor and Secretary of

State of the State of Florida.

Presently before the court are the defendants’ mo-

tions to dismiss for failure to state a claim upon which

relief can be granted. A hearing on this motion was held

on September 9, 1977. After careful consideration of the

arguments made by counsel and the relevant prece-

dents, it is the opinion of this court that the plaintiffs

cannot prevail under any state of facts which could be

proved in support of their claim. Cook & Nichol, Inc. v.

Plimsoll Club, 451 F. 2d 505 (5th Cir. 1971). Accord-

ingly, the motion to dismiss should be granted.

Article II, §8 of the Florida Constitution, popularly

known as the ‘Sunshine Amendment,” was placed on

the November, 1976, general election ballot by popular

initiative and was adopted by a 4-1 vote of the Florida

electorate. The portions of the Amendment that are per-

tinent to the present litigation provide as follows:

A public office is a public trust. The people

shall have the right to secure and sustain that

trust against abuse. To assure this right:

(a) All elected and constitutional officers

and candidates for such offices and, as may be

determined by law, other public officers, can-

didates, and employees shall file full and

public disclosure of their financial interests.

App. 2

(b) Schedule — On the effective date of

this amendment and until changed by law:

(1) Full and public disclosure of financial in-

terests shall mean filing with the secretary of

state by July 1 of each year a sworn statement

showing net worth and identifying each asset

and liability in excess of $1,000 and its value

together with one of the following:

a. A copy of the person’s most recent

federal income tax returh; or

b. A sworn statement which identifies

each separate source and amount of income

which exceeds $1,000. The forms for such

source disclosure and the rules under which

they are to be filed shall be prescribed by the

independent commission established in sub-

section (f), and such rules shall include dis-

closure of secondary sources of income.

(2) Persons holding statewide elective offices

shall also file disclosure of their financial in-

terests pursuant to subsection (h) (1).

It is not the plaintiffs’ contention that compelled

disclosure of a public officer’s personal finances con-

stitutes a per se violation of a constitutionally based

right of privacy. Rather, they argue that the Amend-

ment’s disclosure requirements sweep unnecessarily

broadly, placing an unwarranted and unreasonable bur-

den upon what they portray as a fundamental right to

privacy in personal financial affairs.

App. 3

See NAACP v. Alabama, 377 U.S. 288 (1964). The

general rule is that a fundamental constitutional right

may be intruded upon by a state only in furtherance of a

legitimate and compeling state interest, Shapiro v.

Thompson, 394 U.S. 618 (1968), and that the means

used to achieve that legitimate governmental purpose

must be no broader nor more limiting of personal liber-

ties than is necessary to attain the goal sought, Shelton

v. Tucker, 364 U.S. 479 (1960).

Reasoning from the cases cited in the preceding

paragraph and similar decisions, the plaintiffs conclude

the method chosen by the people of the State of Florida

for insuring the honesty of their representatives in state

and county government simply goes too far. Other, less

drastic means than those used in Article II, §8 of the

Florida Constitution, it is claimed, would be as effective

in serving the same purposes. Specifically, the plaintiffs

urge that there is no necessity for public officials to be

required to disclose the sources of their personal income,

the amount of income received from each source, and

the dollar value of personal assets. They argue that

revelation of sources of income will drive away the

clients and customers who utilize the private businesses

and services of public officers; listing of specific dollar

amounts will serve only to titillate the idly curious. The

plaintiffs further suggest that the public interest in

preventing corruption or conflict of interest may ade-

quately be satisified by the adoption of alternative

methods of disclosure that would be less intrusive upon

their privacy, among which would be a procedure requir-

ing only that financial disclosure forms be submitted to

an independent commisssion that would hold them in

App. 4

strict confidence unless and until charges of wrongdoing

are brought against a public officeholder.'

The basic flaw in the plaintiffs’ ‘less drastic

means” analysis is that it assumes there is a fundamen-

tal right of privacy inherent in the personal financial af-

fairs of public officers. This is an expansive view of the

constitutional privacy right that is unsupported by re-

cent Supreme Court decisions. It is true that the

Supreme Court has on several occasions recognized the

existence of a protected “zone of privacy”’ which the

state has little or no prerogative to invade. See Roe v.

Wade, 410 U. S. 113 (1973); Griswold v. Connecticut,

381 U. S. 479 (1965). Despite earlier doctrinal disagree-

ment as to the constitutional source of this guarantee of

personal privacy, Griswold, supra, it is now manifest

that it is a “liberty” safeguarded by the Due Process

Clause of the Fourteenth Amendment.’ As the court

noted in Whalen v. Roe, U. 8._., 51 L. Ed. 2d 64

(1977), the cases involving ‘“‘privacy’’ have involved at

least two distinct types of interests. “One is the in-

‘In addition, the plaintiffs profess that their constitutional ob-

jections would be obviated by a less burdensome financial dis-

closure requirement similar to that contained in Florida Statutes

§112.3145, the statutory precursor to Article II, §8 of the Florida

Constitution. The statute does not necessitate the detailing of asset

values, income amounts or the sources of income.

*This right of privacy, whether it be founded in the Fourteenth

Amendment’s concept of personal liberty and restrictions on state

action, as we feel it is, or, as the District Court determined, in the

Ninth Amendment’s reservation of rights to the people, is broad

enough to encompass a woman’s decision whether or not to ter-

minate her pregnancy.” Roe v. Wade, 410 U.S. at 153 (emphasis

added).

App. 5

dividual interest in avoiding disclosure of personal mat-

ters [which is the interest asserted by the plaintiffs in

the case at bar] and another is the interest in indepen-

dence in making certain kinds of important decisions.”’

U. S. at , 51 L. Ed. 2d at 73 (footnotes

omitted).

While the Supreme Court has acknowledged that

great deference is to be paid to certain personal privacy

values, it has cautioned that the substantive reach of

the Fourteenth Amendment in the realm of personal

privacy is not to be given a broad scope, but rather a

carefully circumscribed one.’ Only those “personal

rights that can be deemed ‘fundamental’ or implicit in

the concept of ordered liberty,’’’ are to be included

within the “guarantee of personal privacy.” Roe v.

Wade, supra, at 152, quoting Palko v. Connecticut, 302

U. S. 319 (1937). Formulated differently, the Constitu-

tion protects those privacy values that are “deeply

rooted in this Nation’s history and tradition.’’ Moore v.

City of East Cleveland, U.S. —__., 52 L. Ed. 2d 531,

540 (1977).

‘As Mr. Jusitce Powell stated for the plurality in Moore v. City

of East Cleveland,____U.S. at. 52 L. Ed.2d at 539:

Substantive due process has at times been a

treacherous field for this Court. These are risks when the

judicial branch gives enhanced protection to certain sub-

stantive liberties without the guidance of the more specific

provisions of the Bill of Rights. As the history of the

Lochner era demonstrates, there is reason for concern lest

the only limits to such judicial intérvention become the

predilections of those who happen at the time to be Mem-

bers of this Court. That history counsels caution and

restraint,

(Footnote omitted).

App. 6

To date the Supreme Court has extended the fun-

damental right of privacy only to a narrowly drawn area

surrounding family life and the types of highly personal

choice intrinsic to the family. “This privacy right en-

compasses and protects the personal intimacies of the

home, the family, marriage, motherhood, procreation,

and child rearing.”’ Paris Adult Theatre I v. Slaton, 413

U. S. 49, 65 (1973). Similar language is found in Paul v.

Davis, 424 U. S. 693, 713 (1976); and Whalen v. Roe,

U.S. at __, 51 L. Ed. 2d at 73 n. 26. Moreover, it

could hardly be claimed that the interest in personal

financial privacy asserted by the plaintiffs here shares

the same attributes of those interests the court has

deemed ‘‘fundamental.” ‘“ To equate this interest with

the fundamental decisions to marry and to bear and

raise children is to extend the limited substantive con-

tours of the Due Process Clause beyond recognition.”

Moore v. City of East Cleveland, OS ar.

L. Ed. 2d at 560 (Stewart, J., dissenting). Neither can it

be said that financial privacy is so “inherent in the con-

cept of ordered liberty’’ that its invasion by the state

would thwart basic notions of justice, Palko v. Con-

necticut, supra, or that it is so “‘deeply rooted in this Na-

tion’s history and tradition” as to warrant inclusion in

the roster of fundamental constitutional rights, Moore v.

City of Cleveland, supra. The secrecy of one’s personal

assets and business transactions has never been granted

the freedom from government scrutiny traditionally ac-

corded the “sanctity of the family’’, Moore v. City of

East Cleveland, U. S. at —_,, 52 L. Ed. 2d at 540,

as is demonstrated by the long-standing financial dis-

closure requirements imposed by welfare, social

security, tax, and securities regulation laws.‘

‘See Note, Fighting Conflicts of Interest in Officialdom: Con-

stitutional and Practical Guidelines for State Financial Disclosure

Laws, 73 Mich. L. Rev. 758 (1975).

App. 7

The conclusion that personal financial interests do

not rise to the constitutional level of those values of

privacy and liberty considered fundamental does not, of

course, close the inquiry in the present case. It is still

necessary to determine the proper standard of review to

be applied and to analyze this case in light of that

standard. Whalen v. Roe, supra, and Kelley v. Johnson,

425 U.S. 238 (1976), suggest that the appropriate test in

a case involving a non-fundamental privacy interest is

the rational basis test traditionally applied where

economic and social legislation is challenged as un-

constitutional, that is, whether the regulation bears a

rational relationship to the achievement of a legitimate

state interest. On the other hand, Nixon v. Ad-

ministrator of General Services, U.S. , §3 L.

Ed. 2d 867 (1977), which is closer factually to the case at

hand than are Whalen and Kelley, implies the necessity

of a “‘balancing test’’, by which the relative merits of the

public interest in disclosure are weighed against the

private interest in non-disclosure. Cf. Buckley v. Valeo,

424 U.S. 1 (1976).

Judged by a standard of rationality, Article II, §8 of

the Florida Constitution is undeniably constitutional. It

constitutes a reasoned effort to deal with the problems

posed by governmental corruption and the loss of public

confidence in the integrity of elected and appointed

state officials. Although the plaintiffs contend the

Amendment goes farther than is necessary to serve these

interests and includes provisions that have little relation

to the end sought, it is not the constitutional province of

the federal judiciary to question the necessity or wisdom

of a state legislative or constitutional enactment. Olsen

v. Nebraska ex rel Western Reference and Bond Ass’n.,

313 U.S. 236 (1941). This federal court’s inquiry ends

App. 8

with the determination that the provision challenged is

not arbitrary, but serves the intended purpose in a

rational manner. This court is unable to say that Article

II, §8 of the Florida Constitution is not ‘‘manifestly the

product of an orderly ‘and rational legislative decision.”’

Whalen v. Roe, U.S. at , 51 L. Ed. 2d at 72.

Even when measured according to the more ex-

acting ‘“‘balancing test’, the Amendment must still be

regarded as constitutional. In Nixon, supra, the

Supreme Court was confronted with the former Presi-

dent’s claim that the screening of presidential docu-

ments for the purpose of separating Mr. Nixon’s per-

sonal papers from those documents that belonged to the

government violated his right to privacy. The Court held

that Mr. Nixon had “‘a legitimate expectation of privacy

in his personal communications.”’ U.S. at___, 53

L. Ed. 2d at 905. Nevertheless. his expectation of

privacy was necessarily limited by the fact that ‘““when

he entered public life he voluntarily surrendered the

privacy secured by law for those who elect not to place

themselves in the public spotlight.” ay a

L. Ed. 2d at 900, citing New York Times Co. v. Sullivan,

376 U.S. 254 (1964). Carefully weighing the merits of the

asserted privacy interest ‘‘against the public interest in

subjecting the presidential materials of appellant’s ad-

ministration to archival screening,’’ the Court found the

statutory screening procedure to be constitutional.

Among the factors dictating this conclusion were “‘ap-

pellant’s status as a public figure, . . . his lack of any

expectation of privacy in the overwhelming majority of

the materials, [and] the important public interest in

preservation of the materials. . .” 1 Oe © Of

Ed. 2d at 905.

App. 9

Buckley v. Valeo, 424 U.S. 1 (1976), also provides

guidance as to the facotrs to be considered in a case of

this nature. In Buckley, the Supreme Court confirmed

the constitutionality of certain provisions of the Federal

Election Campaign Act of 1971 that required political

committes to keep records of the name and address of

each person making a political contribution in in excess

of $10 and the amount of the contribution given. If con-

tributions from any one person totalled more than $100,

the statute required that the donor’s occupation and

principal place of business also be recorded. This infor-

mation was to be reported to the Federal Election Com-

mission, and made available by the commission to the

public. These provisions were assailed on the ground

that they intruded upon the fundamental privacy of

association and belief guaranteed by the First Amend-

ment. The Supreme court applied the strict test of ‘‘ex-

acting scrutiny” traditionally utilized when legislation

is found to limit the exercise of First Amendment and

other fundamental rights. Nevertheless, it was held that

the governmental interests involved were “sufficiently

important to outweigh the possibility of infringement.”

Three such governmental interests served by the re-

quirement of public disclosure were identified: (1)

‘providing the electorate with information ‘as to where

political campaign money comes from and how it is

spent by the candiate’ in order to aid the voters in

evaluating those who seek federal office’; (2) deterrence

of corruption and avoidance of “the appearance of

corruption”; and (3) detection of campaign law viola-

tions. 424 U. S. at 66-68 (footnote omitted), quoting HR

Rep. No. 92-564, p 4 (1971).

The Nixon and Buckley decisions provide control-

ling precedent for the case at bar. As in Nixon, the

App. 10

plaintiffs here possess a substantial and legitimate in-

terest in maintaining the privacy of their personal finan-

cial affairs. The same countervailing governmental con-

siderations that weighed in favor of disclosure in Nixon

and Buckley, however, are also evident in this case. Like

Mr. Nixon, the plaintiffs, are public officials who have

chosen to divest themselves of a certain degree of the

privacy that ordinarily attaches to persons who have not

injected themselves into the public spotlight. Moreover,

by arguing that a more narrow disclosure requirement

would eliminate their constitutional objections, the

plaintiffs concede that they do not have a reasonable ex-

pectation of privacy in a substantial portion of the infor-

mation that the Sunshine Amendment requires to be

disclosed.

In addition, the Amendment can serve a panoply of

important state interests that are nearly identical to

those catalogued in Buckley. First, it could safeguard

and further what could be termed the voting public's

“right to know.’ It achieves this:purpose by giving the

electorate detailed information relating to each public

official's financial interests and property holdings. Such

knowledge ‘‘alert[s| the voter to the interests to which a

{ public officer] is most likely to be responsive.’’ Buckley,

424 U.S. at 67. Second, the Amendment could act as a

valuable deterrent to political corruption and conflicts

of interest. It may be true, as the plaintiffs insist, that

no dishonest public officeholder will voluntarily reveal

the receipt of unauthorized funds; however, it is un-

deniable that the disclosure requirement will tend to

{I|nformed public opinion is the most potent of all restraints

upon mis-government.”’ Grosjean v. American Press Co., 297 U.S.

233, 250 (1936).

App. 11

discourage those who might otherwise use public office

as a means toward improperly enriching themselves,

and that it will make corrupt practices even more risky

than was previously the case. Third, the Amendment

may help to create an atmosphere of trust and con-

fidence between the citizens of the State of Florida and

the persons they choose to represent them in govern-

ment. The disclosure requirement accomplishes this end

by seeking to banish the appearance of dishonesty and

fostering an awareness on the part of state and county

officers of their public duty to govern themselves

according to a high ethical standard. See Buckley,

supra, at 67: United States Civil Service Commission v.

National Association of Letter Carriers, AFL-CIO, 413

U.S. 548, 565 (1973). Fourth, disclosure of personal

assets and finances assists in the detection and in-

vestigation of violations of the law and the disciplining

and prosecution of lawbreaking government officials.

While this court cannot say that Article II, §8 of the

Florida Constitution necessarily constitutes the most

perfect means of achieving a diminution in political

corruption or that it is the wisest choice of means to ac-

complish that purpose, the vital state interests outlined

above are surely ample enough to outweigh the plain-

tiffs’ expectations of financial privacy and to sustain the

constitutionality of the Amendment. The Supreme

Court of Florida has held, in a case involving a statutory

disclosure provision, that, ‘‘The State of Florida has a

compelling interest in protecting its citizens from abuse

of the trust placed in their élected officials. . .”

Goldtrap v. Askew, 334 So.2d 20, 22 (Fla. 1976).

Although Goldtrap’s characterization of the state's in-

terest as “compelling’’ is not binding on the federal

courts, it does illustrate the great concern of the State of

App. 12

Florida in guaranteeing the honesty of its public officials

— a concern this court may properly recognize and

should not lightly ignore.

Finally, there is one additional consideration that

makes dismissal proper at this stage. Appeals of state

court decisions upholding the constitutionality of finan-

cial disclosure laws against the contention that they im-

permissibly infringed upon privacy rights have on three

separate occasions been dismissed by the United States

Supreme Court for lack of a substantial federal ques-

tion.® “According to Hicks v. Miranda, 422 U.S. 332

(1975), a vote to dismiss for want of a substantial federal

question is a vote on the merits of a case. When the

Supreme Court has “ ‘branded a question as insubstan-

tial, it remains so except when doctrinal developments

indicate otherwise’ " or until the Supreme Court in-

structs the lower courts to the contrary. Hicks, supra, at

344, quoting Port Authority Bondholders Protective

Committee v. Port of New York Authority, 387 F. 2d

259, 263 n. 3 (2d Cir. 1967). The dismissals by the

Supreme Court of appeals challenging other financial

disclosure laws are not decisive as to the issues raised in

the instant case, of course, since the provisions of the

statutes involved differed from those found in Article II,

§8 of the Florida Constitution. Hicks, supra, at 344, n.

14. The summary disposition given those cases on their

merits by the United States Supreme Court, however,

reveals the lack of substance ir, the arguments pressed

upon this court by the plaintiffs.

‘Stein v. Howlett, 289 N.E.2d 409 (Ill. 1972), appeal dismissed,

412 U.S. 925 (1973); Walsh v. Montgomery County, 336 A.2d 97

(Md. 1975), appeal dismissed, 424 U.S. 901 (1976); Fritz v. Gorton,

517 P.2d 911 (Wash. 1974), appeal dismissed, 417 U.S. 902 (1974).

App. 13

ORDER

It appearing to a certainty that the plaintiffs cannot

prevail under any state of facts which could be proved in

support of their claim, it is

ORDERED that the defendants’ motions to dismiss

are granted, and the plaintiffs’ complaints in support of

a declaratory judgment are hereby dismissed with

prejudice,

DONE AND ORDERED this 14th day of Septem-

ber, 1977.

/s/ WILLIAM STAFFORD

WILLIAM STAFFORD

UNITED STATES DISTRICT JUDGE

App. .14

Kenneth A. PLANTE et al., /

Plaintiffs-Appellants,

Vv.

Larry GONZALEZ, etc., et al.,

Defendants-Appellees.

Jon C. THOMAS, Plaintiff-Appellant,

ve

Larry GONZALEZ, etc., et al.,

Defendants-Appellees.

No. 77-3109.

United States Court of Appeals,

Fifth Circuit.

June 30, 1978.

Rehearing and Rehearing En Banc

Denied Aug. 31, 1978.

* * *

Appeals from the United States District Court for

the Northern District of Florida. ay

Before WISDOM, GODBOLD, and CLARK, Cir-

cuit Judges.

App. 15

WISDOM, Circuit Judge:

“(With the decline of religion the law has moved to

take over the preventive as well as the punishing func-

tion. A man must not only avoid the act that the crowd

considers criminal; he must avoid the opportunity, or

even the appearance of the opportunity to commit such

an act. Without a conscience it is only logical to assume

that he will succumb to temptation. Society, therefore,

now tries to legislate an end to temptation. . . . The

wrong is to be found not in the subjective intent of a

fiduciary to betray his trust; such intent will be deduced

from the mere existence of a factual situation that in the

average man might create temptation.””!

In 1976 the voters of Florida approved the

‘Sunshine Amendment” to the state constitution re-

quiring that certain elected officials make public

detailed information about their personal finances. Five

state senators sued the officials charged with ad-

ministering the financial disclosure provisions of the

amendment.? They argued that this exercise of the

public’s “right to know” violated their constitutional

right ‘not to be known’’. The district court upheld the

disclosure requirements. We affirm.

'‘Auchincloss, When Interests Conflict, N. Y. Times, May 22,

1978.

*The senators are Kenneth A. Plante, Dempsey J. Barron,

Philip D. Lewis, William Gorman, Jack D. Gordon, and Jon C.

Thomas. The defendants are the Executive Director of the Ethics

Commission, the Florida Secretary of State, the Governor, and the

Commission on Ethics.

App. 16

I,

- Florida entered the 1970’s with a relatively weak

statute forbidding public officials from acting in conflict

of interest. 1967 Fla.Laws 469 (replacement codified at

Fla.Stat.Ann. §112.311, et seq. (West 1978 Supp.)). The

statute covered officers and employees of state agencies,

counties, cities, and other political subdivisions, as well

as legislators and legislative employees. 1967 Fla.Laws

469, §3. The Act set standards of conduct. Violations

were grounds for removal from office or employment, as

well as misdemeanors, 1967 Fla.Laws 469, §7. No ad-

ministrative body regulated official ethics, and the Act

required no financial disclosure.

Political scandals rocked Florida in the seventies.

One result was a new law governing conflicts of interest.

The 1974 statute made numerous changes in the

previous law. The most important, for our purposes, was

that for the first time, certain officials and employees

were required to file statements of their financial in-

terests. Fla.Stat.Ann. §112.3145 (West Supp.1978). The

~ SFlorida’s Controller, Treasurer, and Superintendent of Educa-

tion were indicted for selling their influence. A legislative commit-

tee recommended that one state supreme court justice be im-

peached for similar activities. A second justice resigned under fire.

A third supreme court justice was reprimanded by the state body

supervising judicial conduct. N. Y. Times, April 27, 1975, at 35, col.

1. In 1976 U.S. Representative Robert L. F. Sikes was reprimanded

by the House of Representatives because as Chairman of the House

Appropriations subcommittee on military construction he had

helped pass legislation and secured government decisions from

which he benefitted financially. United States Senator Edward

Gurney was acquitted of federal charges stemming from alleged in-

fluence peddling. N. Y. Times, July 12, 1974, at 10, col. 1; October

28, 1976, at 19, col. 1.

App. 17

statute also created an administrative body to oversee

compliance, the Commission on Ethics. Fla.Stat.Ann.

§112.320 (West Supp.1978). Local officers, state officers,

and ‘‘specified employees’’, all terms carefully defined

in the Act, were covered by the disclosure requirement,

as were candidates for state or local elective office. The

Act required disclosure of five categories of personal

financial information:* (1) all sources of income ex-

ceeding five percent of gross income for the period

covered; (2) all sources of income to a business entity ex-

ceeding ten percent of its gross income, if the official

received an amount from the business entity which was

both more than ten percent of the official’s gross income

and more than $1500; (3) the location and description of

all Florida real estate excluding residences and vacation

homes, in which the official had more than a five per-

cent interest, and a general description of any intangible

personal property worth more than ten percent of the of-

ficial’s total assets; (4) the source of any gifts in excess of

$100, except gifts from family members or gifts received

through bequest or devise; and (5) every debt greater

than the official’s net worth. Fla.Stat.Ann. §112.3145

(West Supp.1978). In no case was the official required to

disclose a specific dollar amount. The disclosures were

to be listed in descending order of magnitude. The state-

ments were to be filed either with the Secretary of State,

by state officials and specified employees, or with a local

judge, by local officials. Such statements were “public

records’. Fla.Stat.Ann. §112.3146. The full text of the

relevant subsection is set out in Appendix A.

‘The law also requires quarterly disclosure of the names of any

clients represented by an official or employee for a fee or commis-

sion before governmental agencies.

App. 18

This legislation, even as amended in 1975, 1975

Fla.Laws 196, did not satisfy the public’s appetite for

stricter controls on conflicts of interest. The Florida

Constitution may be amended by popular initiative.

Fla.Const. art. XI, §3. A successful drive for signatures

to a petition put the “Sunshine Amendment” on the

Florida ballot in 1976. The initiative passed: 1,765,626

in favor, 461,940 opposed.

The amendment, now Article II, §8 of the Florida

Constitution, covers several aspects of conflicts of in-

terest. See Appendix B. The part particularly germane

to this appeal is subsection (h)(1):

“Full and public disclosure of financial in-

terests shall mean filing with the secretary of

state by July 1 of each year a sworn statement

showing net worth and identifying each asset

and liability in excess of $1,000 and its value

together with one of the following:

a. A copy of the person’s most recent

federal income tax return; or

b. Asworn statement which identifies each

separate source and amount of income which

exceeds $1,000. The forms for such source

disclosure and the rules under which they are

to be filed shall be prescribed by the in-

dependent commission established in sub-

section (f) [the statutorily created Commis-

sion on Ethics], and such rules shall include

disclosure of secondary sources of income.”

App. 19

Fla.Const. art. II, §8(h)(1). The constitutional amend-

ment applies to elected constitutional officials, can-

didates for such offices, and any other “public officers,

candidates, and employees” as determined by law.

Fla.Const. art. II, §8(a).°

The Florida Commission on Ethics set August 1,

1977, as the deadline for the first filing under the

amendment. On July 10, 1977, this suit was filed. The

senators sought a declaration that the amendment

violated rights guaranteed them by the ninth and four-

teenth amendments to the United States Constitution.

The senators alleged that they had complied with the

statutory disclosure requirements, but would resign

rather than comply with the demands of the Sunshine

Amendment.

On July 29, 1977, the district court denied the

senators’ application for a preliminary injunction for

failure to show a substantial chance of success on the

merits. The defendants moved to dismiss under Rule

12(b)(6) for failure to state a claim upon which relief

could be granted. After a hearing on September 9, 1977,

the court granted the motion.

The court held that the senators’ contentions foun-

dered, because the rights they asserted were not ‘‘fun-

5A law extending the disciosure provisions of the Amendment

to municipal officers, appointed officials, and other public officers

anc employees was passed by the legislature in 1977 but vetoed by

the governor. Appellants’ brief at 3, n. 3. The “persons holding

statewide elective office” referrcd to in $8(h)(2), not covered by

§8(a), appear to include only the members of the Florida Public

Service Commission. Brief of Common Cause, amicus, at 2.

App. 20

—— -

damental”’ constitutional rights: The right to privacy

extends only to intimate decisions, usually connected

with the family; any right to financial privacy does not

rise to constitutional significance. The court found that

the Amendment is constitutional when subjected to a

balancing test, possibly required by Nixon v. Ad-

ministrator of General Services, 1977, 433 U.S. 425, 97

S.Ct. 2777, 53 L.Ed.2d 867. Finding no legal protection

for the senators, the court dismissed their complaint.

Their appeal, expedited by this Court, followed.°

The senators raise two substantial constitutional

questions.’ First, they argue that the public disclosure of

their personal financial affairs violates their federally

protected right to privacy, derived from the shadows of

the Bill of Rights and made applicable to Florida

through the fourteenth amendment. Second, they argue

that the disclosure scheme unconstitutionally burdens

candidates for office, thus depriving voters of their right

to vote for candidates of their chcice. While many state

courts have ruled on the cuunstitutionality of similar

plans, thie appears to be a case of first impression for the

*Three amicus briefs were filed. The American Civil Liberties

Union filed a brief on behalf of the senators; the Florida Leaue of

Women Voters and Common Cause filed briefs on behalf of the

State.

"The senators also argue that the statute has no rational

relationship to any legitimate state ends. Appellants’ brief, 10-14.

Our analysis of the other constitutional challenges uses a standard

of review more strict than this argument utilizes. Our conclusion on

thos contentions, therefore, controls our conclusions on this one.

App. 21

lower federal bench.* We will deal with the second, less

difficult, issue first.

SMany state courts have ruled on similar plans.

ALABAMA. Comer v. City of Mobile, Ala. 1976, 337 So.2d 742,

with no privacy argument, upheld except in breadth of application.

ALASKA. Falcon v. Alaska Public Offices Comm'n, Alaska 1977,

570 P.2d 469, enjoined disclosure of doctor-official’s patients until

narrowing regulations are implemented because of the patient’s

right to privacy.

CALIFORNIA. City of Carmel-by-the-Sea v. Young, 1970, 2 Cal. 3d

259, 85 Cal Rptr. 1, 466 P.2d 225, struck down an Act which re-

quired disclosure by all officials of all interests on federal privacy

grounds. County of Nevada v. MacMillen, 1974, 11 Cal.3d 662, 114

Cal.Rptr. 345, 522 P.2d 1345, upheld a narrower replacement

statute.

FLORIDA. Goldtrap v. Askew, Fla.1976, 334 So.2d 20, upheld

Florida’s statutory disclosure requirement.

ILLINOIS. Buettell v. Walker, 1974, 59 Ill.2d 146, 319 N.E.2d 502,

upheld an executive order requiring disclosure of political contribu-

tions by some parties against a privacy claim, but found that it ex-

ceeded the governor’s authority. Illinois State Employee's Ass'n v.

Walker, 1974 57 Ill.2d 512, 315 N.E.2d 9, cert. denied sub nom.

Troopers Lodge No. 41 v. Walker, 1974, 419 U.S. 1058, 95 S.Ct. 642.

42 L.Ed.2d 656 (Powell and Blackmun, JJ., would have granted cer-

tiorari), upheld against state and federal privacy arguments an ex-

ecutive order requiring certain employees to make disclosures, in-

cluding dollar amounts. Stein v. Howlett, 1972, 52 Ill.2d 570, 289

N.E.2d 409, app. dism’d, 1973, 412 U.S. 925, 93 S.Ct. 2750, 37

L.Ed.2d 152, upheld a statute requiring state officeholders to make

financial disc’vsure.

MARYLAND. Montgomery County v. Walsh, 1975, 274 Md. 502,

336 A.2d 97, app. dism’d 1976, 424 U.S. 901, 96 S.Ct. 1091, 47

L.Ed.2d 306, upheld disclosure against a federal privacy argument,

finding no fundamental right of financial privacy and holding that

even if such a right existed, the state’s compelling interest justified

the statute and county ordinance involved.

MICHIGAN. Advisory Opinion on Constitutionality of 1975 PA 227

(Questions 2-10), 1976, 396 Mich. 465, 242 N.W.2d 3, held that

App. 22

similar treatment of high officials and local employees was invalid

and that the state interest did not justify the disclosures required of

the employees.

MINNESOTA. Klaus v.- Minnesota State Ethics Commission.

1976, 309 Minn. 430, 244 N.W.2d 672, upheld a disclosure law which

did not require dollar amounts against privacy attack, with dicta

concerning the privileged status of net worth and amount of in-

come.

MISSOURI. Chamberlin v. Missouri Elections Comm'n, Mo. 1976,

540 S.W.2d 876, sustained a disclosure law requiring attorneys to

identify the sources of their income over attorney-client privilege

and overbreadth objections.

NEVADA. Dunphy v. Sheehan, Nev. 1976, 549 P.2d 332, declared a

disclosure law unconstitutional on vagueness grounds, with dicta

opposing the use of dollar values.

NEW JERSEY. Lehrhaupt v. Flynn, Chan.Div. 1974, 129 N.J.

Super. 327, 323 A.2d 537, aff'd, App. Div. 1976, 140 N.J.Super. 250,

356 A.2d 35, upheld a town disclosure ordinance against a privacy

attack, finding that invasion of a fundamental right, if any, was

justified by the town’s interest. Kenny V. Byrne, App.Div. 1976,

144 N.J.Super. 243, 365 A.2d 211, upheld an executive order requir-

ing disclosure by certain appointed officials against a privacy

challenge while applying the rational relationship test.

NEW YORK. Hunter v. City of New York, N.Y. Sup.Ct. 1976, 88

Misc.2d 562, 391 N.Y.S.2d 389, aff'd, 1977, 58 A.D.2d 136, 396

N.Y.S. 186, upheld a New York City law requiring disclosure after

interpreting it to allow public disclosure only after employees had

an opportunity for a hearing on any specific privacy claims. Dwyer

v. Kahn, N.Y.Sup.Ct.1976, 88 Misc.2d 73, 387 N.Y.S.2d 535, up-

held Public Service Commission disclosure and divestiture rules

against privacy challenge. Evans v. Carey, 1976, 53 A.D.2d 109, 385

N.Y.S.2d 965, aff’d, 1976, 40 N.Y.2d 1008, 391 N.Y.S.2d 393, 359

N.E.2d 983, upheld an executive order requiring disclosure by em-

ployees and officials which included a provision for deleting ex-

tremely personal matters.

WASHINGTON. Fritz v. Gorton, 1974, 83 Wash.2d 275, 517 P.2d

911, app. dism’d, 1974, 417 U.S. 902, 94 S.Ct, 2596, 41 L.Ed.2d 208

upheld against privacy challenges a detailed disclosure law which

required disclosure of value ranges rather than dollar figures.

App. 23

Before we turn to the merits of the case, one ques-

tion demands attention. The Supreme Court has acted

on four cases from state supreme courts involving

similar plans. Montgomery Co. v. Walsh, 1975, 274 Md.

502, 336 A.2d 97, app. dism’d, 1976, 424 U.S. 901, 96

S.Ct. 1091, 47 L.Ed.2d 306; Illinois State Employees

Assn’'n v. Walker, 1974, 57 Ill.2d 512, 315 N.E.2d 9, cert.

denied, sub nom. Troopers Lodge No. 41 v. Walker,

1974, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 656; Fritz

v. Gorton, 1974, 83 Wash.2d 275, 517 P.2d 911, app.

dism’d, 1974, 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d

208; Stein v. Howlett, 1972, 52 Ill.2d 570, 289 N.E.2d

409, app. dism’d, 1973, 412 U.S. 925, 93 S.Ct. 2750, 37

L.Ed.2d 152. Denial of a petition for certiorari, of course,

carries no precedential weight. See Maryland uv.

Baltimore Radio Show, 1950, 338 U.S. 912, 917-19, 70

S.Ct. 252, 254-55, 94 L.Ed. 562, 565-66 (Justice

Frankfurter, separate opinion). The dismissal of an ap-

WISCONSIN. In re Kading, 1975, 70 Wis.2d 508, 235 N.W.2d 409,

upheld a Court rule requiring financial disclosure without dollar

values by judges against a privacy challenge.

We have discovered only one federal case dealing with a similar

issue. In O’Brien v. DiGrazia, 1 Cir. 1976, 544 F.2d 543, cert. denied

sub nom., O’Brien v. Jordan, 1977, 431 U.S. 914, 97 S.Ct. 2173, 53

L.Ed.2d 223, the First Circuit upheld an order by the Boston police

commissioner which required certain police officers to disclose their

families’ income sources, assets, rough expenditures, and copies of

their state and federal tax returns. This information was to be held

in confidence by the Commissioner’s office. The patrolmen had

been linked with organized crime. The Court was not convinced

that a right to financial privacy existed. ‘Privacy in the sense of

freedom to withold personal financial information from the govern-

ment or the public has received little constitutional protection.”

544 F.2d at 545-46. The Court then assumed that some right exists,

balanced the interests involved, and affirmed the lower court’s Rule

12(b)(6) dismissal of the complaint.

App. 24

peal or a summary affirmance, on the other hand, is a

disposition on the merits. The Supreme Court advised

lower courts in Hicks v. Miranda, 1975, 422 U.S. 332, 95

S.Ct. 2281, 45 L.Ed.2d 223, to follow

“the Second Circuit’s advice ... in Port

Authority Bondholders Protective Committee

v. Port of New York Authority, 387 F.2d 259,

263, n.3 (1967), that ‘unless and until the

Supreme Court should instruct otherwise, in-

ferior federal courts had best adhere to the view

that if the court has branded a question as un-

substantial, it remains so except when doc-

trinal developments indicate otherwise’. . . .”

422 U.S. at 344, 95 S.Ct. at 2289. In Hicks the Court

ruled that a three judge district court erred by not con-

sidering itself bound on the constitutionality of Califor-

nia’s obscenity law by an earlier law by an earlier

Supreme Court’s dismissal of a challenge to that Act.’

The Court did describe the method the lower courts should

follow in determining the effect to be given summary dismissals.

“Of course, Miller II [Miller v. California, 418 U.S. 915, 94

S.Ct. 3206, 41 L.Ed.2d 1158] would have been decisive

here only if the issues in Miller I] and the present case were

sufficiently the same that Miller II was a controlling prece-

dent. Thus, had the District Court considered itself bound

by summary dismissals of appeals by this Court, its initial

task would have been to ascertain what issues had been

properly presented in Miller II and declared by this Court

to be without substance.”

422 U.S. at 345 n. 14. 95 S.Ct. at 2290.

App. 25

The significance of Hicks was clarified by the Court

in Mandel v. Bradley, 1977, 432 U.S. 173, 97 S.Ct. 2238,

53 L.Ed.2d 199. In Mandel the lower court struck down

Maryland’s law regulating access to the ballot. The

lower court relied on the Supreme Court’s dismissal of

Tucker v. Salvera, 1976, 424 U.S. 959, 96 S.Ct. 1451, 47

L.Ed.2d 727, aff’g, E.D.Pa.1975, 399 F.Supp. 1258. This

reliance, the Court held, was misplaced:

“Summary affirmances and dismissals for

want of a substantial federal question without

doubt reject the specific challenges presented

in the statement of jurisdiction and do leave

undisturbed the judgment appealed from.

They do prevent lower courts from coming to

opposite conclusions on the precise issues pre-

sented and necessarily decided by those ac-

tions. After Salera, for example, other courts

were not free to conclude that the Pennsylvania

provision invalidated was nevertheless

constitutional.

The precedential significance of the sum-

mary action in Salera, however, is to be

assessed in the light of all of the facts in that

case; and it is immediately apparent that those

facts are very different from the facts of this

case.

432 U.S. at 176, 97 S.Ct. at 2240, 53 L.Ed.2d at 205. The

different facts in Mandel were the differences between

the Pennsylvania and Maryland statutes. Here, the

Supreme Court has upheld disclosure provisions in

App. 26

Washington, Illinois, and Maryland statutes. Each

statute differs from the others; each differs from the

Sunshine Amendment. The dismissals by the Supreme

Court caution us against finding the Amendment un-

constitutional. See Mandel v. Bradley, 432 U.S. 173,

179-80, 97 S.Ct. 2238, 2242, 53 L.Ed.2d 199, 206-07

(Justice Brennan, concurring). They did not relieve us of

our duty “to undertake an independent examination of

the merits’. 432 U.S. at 177, 97 S.Ct. at 2241, 53

L.Ed.2d at 205. We now turn to that task.

Il.

The American Civil Liberties Union, as amicus,

argues that the amendment unconstitutionally burdens

the right to run for office. If the amendment is upheld,

the appellants say that they will resign. Other can-

didates will be deterred from running. The A.C.L.U.

argues that this restriction on political activity equals or

exceeds that caused by the filing fees invalidated by the

Supreme Court in Lubin v. Panish, 1974, 415 U.S. 709,

94 S.Ct. 1315, 39 L.Ed.2d 702 and Bullock v. Carter,

1972, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92.

The right to run for office is not a ‘‘fundamental”

right. The Court has at times protected candidacy as a

way to protect the right to vote itself.

{T]he Court has not heretofore attached. . .

fundamental status to candidacy as to invoke a

rigorous standard of review. However, the

rights of voters and the rights of candidates do

not lend themselves to neat separation; laws

that affect candidates always have at least

App. 27

some theoretical, correlative effect on voters.

Of course, not every limitation or incidental

burden on the exercise of voting rights is sub-

ject to a stringent standard of review. . . In

approaching candidate restrictions, it is essen-

tial to examine in a realistic light the extent

and nature of their impact on voters.

Bullock v. Carter, 405 U.S. at 142 43, 92 S.Ct. at

856. The Supreme Court has examined such restrictions

in at least four contexts: loyalty oaths, Communist

Party v. Whitcomb, 1974, 414 U.S. 441, 94 S.Ct. 656, 38

L.Ed.2d 635; residency and durational requirements,

McCarthy v. Philadelphia Civil Service Comm'n, 1976,

424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (per

curiam); Sununu v. Stark, 1975, 420 U.S. 958, 95 S.Ct.

1346, 43 L.Ed.2d 435, aff'd mem. D.N.H.1974 (three

judge court), 383 F.Supp. 1287; petition requirements

for appearing on the ballot, Storer v. Brown, 1974, 415

U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714; American Party

v. White, 1974, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d

744; and filing fees, Lubin v. Panish, 1974, 415 U.S. 709,

94 S.Ct. 1315, 39 L.Ed.2d 702; Bullock v. Carter, 1972,

405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92. The loyalty

oaths and filing fees were invalidated, the residency and

durational requirements were upheld, and dispositions

of the petition requirements have varied."

“Age requirements for officeholding, though widespread, have

not been tested in the Supreme Court. Lower courts and commen-

tators have agreed that they need bear only a rational relationship

to state interests. See, e.g, Manson v. Edwards, 6 Cir. 1973. 482

F.2d 1076; Developments in the Law — Elections, 88 Harv.L.Rev.

1111, 1223-25. But see Note, Age and Durational Residency Re.

quirements as Qualifications for Candidacy: A Violation of Equal

Protection? 1973 U.II.L.F. 161, 177-78.

App. 28

Disclosure requirements may deter some people

from seeking office. As the Supreme Court has made

clear, however, mere deterrence is not sufficient for a

successful constitutional attack. Bullock v. Carter, 1972,

405 U.S. at 142-43, 92 S.Ct. 849. Otherwise, official

salary levels or the location of the capital city might fur-

nish the basis for a constitutional attack. The key to this

issue is who is excluded. These requirements are not un-

constitutional unless “they are so restrictive that they

deny a cognizable group a meaningful right to represen-

tation”. Tribe, American Constitutional Law, §13-19

(1978). See also Developments in the Law — Elections,

88 Harv.L.Rev. 1111, 1218, 1176-77 (1975). The loyalty

oath cases clearly denied representation to groups with

beliefs which could not be squared with the oath in-

volved. The filing fee cases denied access to the ballot to

poorly financed candidates. In Bullock the Court con-

cluded that the fees had a ‘‘real and appreciable impact

on the exercise of the franchise .. . related to the

resources of the voters supporting a particular candidate

._...’ 405 U.S. at 144, 92 S.Ct. at 856. The connection

with the group of poor voters prompted the scrutiny the

law received. The petition requirements also struck at a

group of voters, those outside the two major parties.

In contrast, the disclosure requirements do not

limit the choices of any particular group of voters. There

is no reason to believe that those most sensitive to their

privacy will be Republicans or Democrats, liberals or

conservatives, blacks or whites. Scrutiny is inap-

propriate as long as the requirement leaves ‘‘a sufficient

number of candidates eligible to represent the views of

any particular constituency”, Developments in the Law

— Elections, 88 Harv.L.Rev. 1111, 1218 (1975). As will

be discussed in more detail below, this scheme does res-

App. 29

pond to important state interests in a reasonable way.

Absent scrutiny, it is therefore constitu<ional. See Note,

Fighting Conflicts of Interest in Officialdom: Con-

stitutional and Practical Guidelines for State Financial

Disclosure Laws, 73 Mich.L.Rev. ‘58, 763-68 (1975)

[hereafter cited as Fighting Corflicts of Interest!'].

Il.

Americans have a constitutional right to privacy.

The right springs from several of the Bill of Rights

amendments, and is incorporated in the due process

protected by the fourteenth amendment.'? Griswold v.

Connecticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14

L.Ed.2d 510. Academic discussion of a right to privacy

dates at least to the common law arguments of Louis

Brandeis and Samuel Warren in 1890. Brandeis and

Warren, The Right to Privacy, 4 Harv.L.Rev. 193

''Another possibly relevant distinction between this case and

cases where the Supreme Court invalidated restriction is that dis-

closure acts merely as a deterrent. Unlike filing fees or petition re-

quirements, it does not force anyone off the ballot. In light of our

conclusions concerning the impact of the restriction, this distinc-

tion is unimportant.

"Some justices have seen privacy protected by the ninth

amendment. See Griswold v. Connecticut, 1965, 381 U.S. 479, 484,

85 S.Ct. 1678, 14 L.Ed.2d 510 (Justice Goldberg concurring, joined

by Chief Justice Warren and Justice Brennan). This seems to be a

distinction without a difference. ‘This right of privacy, whether it

be founded in the Fourteenth Amendment's concept of personal

liberty and restrictions upon state action, as we feel it is, or, as the

District Court determined, in the Ninth Amendment's reservation

of rights to people, is broad enough to encompass a woman's deci-

sion whether or not to terminate her pregnancy.” {emphasis

added]. Roe v. Wade, 1973, 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35

L.Ed.2d 147.

App. 30

(1890).'3 The volume of commentary has increased

geometrically since then." Yet, “[t]he concept of a con-

stitutional right of privacy still remains largely unde-

fined”. Kurland, The Private I, The University of

Chicago Magazine 7, 8 (Autumn 1976), quoted in

Whalen v. Roe, 1977, 429 U.S. 589, 599 nn.24, 97 S.Ct.

869, 51 L.Ed.2d 64. In Whalen the Court made an effort

to unsnarl some of the tangled strands of privacy.

‘3Justice Brandeis has been quoted over a 38 year period by

parties on both sides of this question. His 1890 article marshalled

common law support for an expansive right to privacy. But see

Pratt, The Warren and Brandeis Argument for a Right to Privacy,

1975 Public Law. 161. Twenty-four years later, in a series of articles

published during congressional consideration of what became of the

Clayton Act, he advocated public disclosure of corporate financial

arrangements in a passage which may have given this Amendment

its name.

“Publicity is justly commended as a remedy for social

and industrial diseases. Sunlight is said to be the best of

disinfectants; electric light the most efficient

policeman.”

L. Brandeis, Other People’s Money and How the Bankers Use It 62

(1914). Fourteen years later, in Olmstead v. United States, he dis-

sented from a decision approving wiretapping, characterizing

privacy as “the right to be let alone — the most comprehensive of

rights and the right most valued by civilized men”. Olmstead v.

United States, 1928, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed.

944.

4A far from exhaustive list of the excellent articles and books

in this area includes Gerety, Redefining Privacy, 12 Harv.Civ.R. —

Civ.L.L. Rev. 233 (1977); Henkin, Privacy and Autonomy, 74

Colum.L.Rev. 1410 (1974); Bloustein, The First Amendment and

Privacy: The Supreme Court Justice and the Philosopher, 28

Rutgers L.Rev. 41 (1974); A. Westin, Privacy and Freedom (1967);

and, generally, XIII Nomos (1971).

App. 31

“The cases sometimes characterized as

protecting ‘privacy’ have in fact involved at

least two different kinds of interest. One is the

individual interest in avoiding disclosure of

personal matters, and another is the interest in

independence in making certain kinds of im-

portant decisions.”’

429 U.S. at 598-600, 97 S.Ct. at 876. The senators argue

that the Sunshine Amendment violates both strands of

their privacy. We shall consider first the interest in in-

dependent decision-making, which might be called an

interest in autonomy, and then consider the interest in

avoiding disclosure, or confidentiality.

A.

The senators urge that disclosure of personal finan-

cial information adversely affects their familial affairs.

ne nature of financial investments, their

wisdom, worth or desirability are matters

decided by family councils for the family’s

benefit. Whether they should be exposed or

protected from exposure is a matter of great

family concern. Media publication of disclosed

wealth can bring mischief, even kidnappers or

other criminal attention to an office holder.

Financial privacy is and ought to be protected

from governmental intrusion . . . in the man-

ner that marital and family privacy is

protected. '

Plante complaint, 12, app. at 5.

App. 32

The senators are well-advised to try to tie their

charges to domestic matters. The Supreme Court has

characterized the autonomy branch of privacy as

involving

“matters relating to marriage, procreation,

contraception, family relationships, and child

rearing and education. In these areas it has

been held that there are limitations on the

States’ power to substantively regulate

conduct.”

Paul v. Davis, 1976, 424 U.S. 693, 713, 96 S.Ct.

1155, 1166, 47 L.Ed.2d 405. See also Paris Adult Theatre

I v. Slaton, 1973, 413 U.S. 49, 65-66, 93 S.Ct. 2628, 37

L.Ed.2d 446. When the Supreme Court has applied this

analysis, it has carefully examined the state actions to

determine whether they were the least restrictive means

to reach a compelling goal.'® After doing so, it has voided

regulations concerning contraception, Griswold v. Con-

necticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d

510; abortion, Roe v. Wade, 1973, 410 U.S. 113, 93 S.Ct.

'"These privacy cases seem to involve a fusion, or confusion, of

equal protection and due process standards. Least restrictive alter-

native and compelling state interest analysis have been used both

for the ‘‘upper tier’ of equal protection claims, those involving fun-

damental interests or suspect classifications, and for some first

amendment and privacy claims. Although due process and equal

protection arguments often may be transformed into each other,

and although the standard of review may be the same under either

characterization, there is value in maintaining the conceptual dis-

tinction. See Zablocki v. Redhail, 1978, 434 U.S. 374, 391-396, 98

S.Ct. 673, 683-86, 54 L.Ed.2d 618, 634-37 (Justice Stewart, con-

curring in the judgment). Privacy challenges are brought not as re-

quests for equal protection, but as demands for due process.

App. 33

705, 35 L.Ed.2d 147; and miscegenation, Loving v.

Virginia, 1967, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d

1010. It has also adopted, as reflecting this analysis, the

holdings of earlier cases concerning education of

children, Pierce v. Society of Sisters, 1925, 268 U.S. 510,

45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 1923,

262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, and com-

pulsory sterilization, Skinner v. Oklahoma, 1942, 316

U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. See Paris Adult

Theatre I v. Slaton, 413 U.S. at 65-66, 93 S.Ct. 2628;

Whalen v. Roe, 429 U.S. at 600 n.26, 97 S.Ct. 869. Our

question is whether the senators’ argument fits within

this field.

The parties suggest two different tests for determin-

ing whether their privacy interest is subject to this

protection. They offer the formulation from Meyer uv.

Nebraska, 1923, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67

L.Ed. 1042 that

“While this Court has not attempted to define

with exactness the liberty thus guaranteed | by

the fourteenth amendment] ... |wlithout

doubt, it denotes not merely the freedom from

bodily restraint but also the right of the in-

dividual ..., generally, to enjoy those

privileges long recognized at common law us es-

sential to the orderly pursuit of happiness by

free men.”

The defendants, and the district court, prefer the

language the Court used in Palko v. Connecticut, 1937,

302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, concerning

rights “implicit in the concept of ordered liberty”.

Neither standard appears helpful. Both authorities are

App. 34

of questionable strength. Meyer comes to us from the

hevday of substantive due process analysis. Palko’s

specific holding was overruled in Benton v. Maryland,

1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. Its

broader significance is as a statement of the ultimately

unsuccessful position in the “incorporation debate” con-

cerning the fourteenth amendment. See Adamson v.

California, 1947, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed.

1903 (especially Frankfurter, J., concurring, and Black,

J., dissenting) and Duncan v. Louisiana, 1968, 391 U.S.

145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (Black, J., concur-

ring). See generally, G. Gunther, Constitutional Law

506-47 (9th ed. 1975).'® Even if these statements main-

tain their full precedential weight, their words provide

no easy answers. Therefore, we turn to cases concerning

financial privacy, and to the considerations which sup-

port the autonomy branch of the right to privacy.

The senators rely on language from Justice Powell's

concurring opinion in California Bankers Ass'n v.

Shultz, 1974, 416 U.S. 21, 78, 94 S.Ct. 1494, 39 L.Ed.2d

812. California Bankers Ass'n was a challenge to

recordkeeping and disclosure requirements imposed by

the Bank Secrecy Act of 1970, 12 U.S.C. §§1829b, 1730d,

1951-59. The Secretary of the Treasury was authorized

to require banks to keep records of and report domestic

and international transactions. The Court avoided most

of the first and fifth amendment challenges to the Act,

and concentrated on the fourth amendment arguments.

Justice Powell, joined by Justice Blackmun, concurred

in the opinion of the Court upholding the requirements.

He was troubled, however, by the Act’s domestic

'“Palko was quoted with approval, however. in Roe v. Wade,

1973, 410 U.S. 113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147.

App. 35

reporting requirements. These empowered the Secretary

to require reports from financial institutions of domestic

monetary transactions and the parties involved. Justice

Powell concurred because the regulations promulgated

by the Secretary required reporting only currency

transactions of more than $10,000. He found the require-

ment unobjectionable, but only because it was narrowed

by the regulations.

“A significant extension of the regulations

reporting requirements, however, would pose

substantial and difficult constitutional ques-

tions for me. In their full reach, the reports ap-

parently authorized by the open-ended

language of the Act touch upon intimate areas

of an individual’s personal affairs. Financial

transactions can reveal much about a person's

activities, associations, and beliefs. At some

point, governmental intrusion upon these areas

would implicate legitimate expectations of

privacy.”

416 U.S. at 78-79, 94 S.Ct. at 1526.

This language was quoted with approval by the ma-

jority of the Court in Buckley v. Valeo, 1976, 424 U.S. 1,

96 S.Ct. 612, 46 L.Ed.2d 659.

“Moreover, the invasion of privacy of beliefs

may be as great when the information concerns

the giving and spending of money as when it

concerns the joining of organizations, for

‘financial transactions can reveal much about a

person’s activities, associations, and beliefs.”

[emphasis added]

App. 36

424 U.S. at 66, 96 S.Ct. at 657. Justice Powell’s discus-

sion in California Bankers may have concerned privacy

issues pure and simple. His mention of “intimate areas

of an individual’s personal affairs’ suggests as much.

The majority in Buckley, however, used that language

in a different context. Both the language quoted above

and the context from which it was taken show that the

Court’s concern was with the effects of disclosure on the

first amendment freedom of association. The Court

believed that the case potentially raised issues similar to

those raised in N.A.A.C.P. v. Alabama ex rel. Patterson,

1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. That

is a constitutional question we address below. It is not a

question concerning the autonomy branch of the right to

privacy. Although the Court has not explicitly rejected

placing financial matters within the autonomy right,

Justice Powell’s California Bankers concurrence, as

cited by the Court in Buckley, does not show that the

Court has adopted that position.'’ The only other

tederal authority we have discovered rejected the ap-

plicability of the autonomy privacy right to financial

information. O’Brien v. DiGrazia, 1 Cir. 1976, 544 F.2d

543.

The California Supreme Court came to the opposite

conclusion. In City of Carmel-by-the-Sea v. Young,

The dismissals for want of a substantial federal question in

Fritz v. Gorton, Stein v. Howlett, and Montgomery County v.

Walsh, seem to indicate the opposite. Justices Powell and

Blackmun did not dissent from those dispositions, but they would

have granted certiorari in the other case presenting these issues

which has reached the Supreme Court, Trooper's Lodge No. 41 v.

Walker, 1974, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 656. (Justice

Douglas wrote a brief statement supporting the denial of certiorari

on grounds other than those advanced by the parties or the lower

court).

App. 37

1970, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225, that

Court invalidated a sweeping disclosure law that

required every public officer to file financial statements

covering himself and his family. The Court relied on an

earlier California case, People v. Edwards, 1969, 71

Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713. In Edwards

the Court held that the fourth amendment prohibited a

search of outdoor trashcans because they were ‘‘ad-

junct[s] to the domestic economy”’, 80 Cal.Rptr. at 638,

458 P.2d at 718. In Carmel the Court held:

“(T]he right of privacy concerns one’s feelings

and one’s own peace of mind .. . and cer-

tainly one’s personal financial affairs are an es-

sential element of such peace of mind.

Moreover, personal financial affairs are clearly

more than the ‘adjunct to the domestic

economy’ referred to in Edwards . . . instead

they would appear to constitute the primary

supporting pillar of that economy. In any event

we are satisfied that the protection of one’s per-

sonal financial affairs, and those of his (or her)

spouse and children against compulsory public

disclosure is an aspect of the zone of privacy

which is protected ... .”’

85 Cal.Rptr. at 7, 466 P.2d at 231-32.

App. 38

_—

City of Carmel has been heavily criticized, both for

its use of Edwards and for its conclusion.'® Analysis of

the roots of the autonomy branch of privacy convinces

us that the critics are right.

There are two ways in which financial privacy could

fall within the autonomy branch of the right to privacy.

Financial privacy might itself involve the kind of crucial

decision-making protected by the Constitution. Alter-

natively, financial disclosure might have such a strong

impact on making familial decisions, those decisions

which are clearly within the privacy right, that it must

be prohibited to protect those choices.

Financial privacy does not fall within the autonomy

right on its own. The essence of that right is ‘the in-

terest in independence in making certain kinds of im-

portant decisions”. Walen v. Roe, 429 U.S. 599-600, 97

S.Ct. 876. Disclosure laws, unlike laws banning con-

traception, miscegenation, or abortion, do not remove

any alternatives from the decision-making process.

Their effect on financial decisions is more indirect. They

might deter some decisions. More basically, however,

disclosure laws do not involve decisions as important as

those in the earlier decided cases.

'SSee Note, Fighting Conflicts of Interest, 73 Mich.L.Rev. 758

(1975); Note, 45 Tulane L.Rev. 167 (1970); Note, The Con-

stitutionality of Financial Disclosure Laws, 59 Cornell 345 (1974);

Staines, A Model Act for Controlling Public Corruption Through

Financial Disclosure and Standards of Conduct, 51 Notre Dame

Law, 636 (1976). The case was received less critically by Note, 49

Texas L.Rev. 346 (1971) and Comment, Financial Disclosure by

Public Officials and Public Employees in Light of Carmel-by-the-

Sea v. Young, 18 U.C.L.A.L.Rev. 534 (1971).

App. 39

Our society has long regulated people's finances. In-

terference with business activity, through licensing, tax-

ing, and direct regulation, is common. All these

governmental actions impinge on the ability of the

individual to order his financial affairs. They do so

directly. The indirect effects caused by financial dis-

closure pale by comparison. At one time “‘liberty of con-—

tract’ was recognized as a major, if not the major, com-

ponent of the liberty guaranteed by the fourteenth

amendment. See, e.g., Allgeyer v. Louisiana, 1897, 165

U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832. See generally R.

McCloskey, American Conservatism in the Age of En-

terprise: 1865-1910, 72-126 (1951). That is no longer the

case.

By contrast, the family-linked concerns protected

by the autonomy branch of the right to privacy are also

strongly protected in non-privacy contexts. In Cleveland

Board of Education v. LaFleur, 1974, 414 U.S. 632, 94

S.Ct. 791, 39 L.Ed.2d 52, the Court used irrebuttable

presumption analysis to strike down mandatory mater-

nity leaves for pregnant teachers. In Zablocki v.

Redhail, 1978, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d

618, the Court invalidated a Wisconsin statute which

prohibited marriage by certain residents without court

permission. In Boddie v. Connecticut, 1971, 401 U.S.

371, 91 S.Ct. 780, 28 L.Ed.2d 113, the Court held that in-

digents may obtain divorces without paying filing fees.

The language of the opinion stresses the significance of

marriage, a significance enhanced by the Court's later

rejection of a similar argument aimed at bankruptcy fil-

ing fees. United States v. Kras, 1973, 409 U.S. 434, 93

S.Ct. 631, 34 L.Ed.2d 626. In Moore v. City of East

Cleveland, 1977, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d

531, four of the Justices stated that the family unit was

App. 40

entitled to constitutional protection as a matter of sub-

stantive due process. The family-related barriers

erected by the right to privacy stem from legal protec-

tions for the family and matters directly affecting the

family, much broader.than the legal protection accorded

personal finances. These, in themselves, are not the

kinds of decisions protected by the autonomy branch of

the right to privacy.

Nor can they be protected as incident to protection

of the family. The appropriate question is: What impact

will financial disclosure have upon the way intimate

family and personal decisions are made? Will it affect

the decision whether to marry? Will it determine when

or if children are born? There is no doubt that financial

disclosure may affect a family, but the same can be said

of any government action. While disclosure may have

some influence on intimate decision-making, we con-

clude that any influence does not rise to the level of a

constitutional problem.

The Court has limited the horizontal reach of the

privacy right in similar situations. In Whalen v. Roe,

1977, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64, the

Court assumed that protection of the autonomy right

could extend to decisions concerning medical care. It

recognized that the state law requiring that records be

kept concerning some drug prescriptions had dis-

couraged the use of those drugs. 429 U.S. at 603, 97 S.Ct.

869. This was held to have insufficient effects on the

patients’ decisions to constitute an invasion of the

patients’ rights. Similarly, in Planned Parenthood of

Central Missouri v. Danforth, 1976, 428 U.S. 52, 96

S.Ct. 2831, 49 L.Ed.2d 788, the Court upheld record-

keeping requirements for abortions over an objection

App. 41

that this would be governmental! interference with the

woman’s choice. Finally, in Poelker v. Doe, 1977, 432

U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528; Maher v. Roe,

1977, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484, and

Beal v. Doe, 1977, 4382 U.S. 439, 97 S.Ct. 2366, 53

L.Ed.2d 464, the Court held that neither states par-

ticipating in the medicaid program nor cities operating

municipal hospitals need provide free abortions to in- -

digent women. Although the cost of an abortion operates

as a much stronger influence on the choice involved than

does financial disclosure in this case, the Court held that

government actions which did not work as a bar to abor-

tions would not be subject to scrutiny. Maher v. Roe,

432 U.S. at 471-75, 97 S.Ct. 2381-83, 53 L.Ed.2d 493-95.

If such strong secondary effects on family do not de-

mand scrutiny, this financial disclosure law cannot re-

quire a close examination because of its impact on the

family. !9

Financial privacy is not within the autonomy

branch of the right to privacy. Disclosure does not di-

rectly affect such fundamental decisions that ‘‘we are

'"A similar distinction between direct and indirect impacts on

the family was made by the Court in Zablocki v. Redhail, 1978, 434

U.S.374, 98 S.Ct. 673, 54 L:Ed-2d 618, 631 n.12. Zablocki directly

forbade certain marriages. In Califano v. Jobst, 1977, 434 U.S. 47,

98 S.Ct. 95, 54 L.Ed.2d 228, the Court upheld sections of the Social

Security Act which terminated benefits upon marriage to an in-

dividual not entitled to benefits under that Act in the face of argu-

ments that this restricted the right to marry. Justice Marshall, for

the Court, found the difference in the “directness and substan-

tiality of the interference”, 434 U.S. 374, 98 S.Ct. 673, 681, 54

L.Ed.2d 618, 631 n.12. In Jobst, there was “no evidence that the

laws significantly discouraged, let alone made ‘practically impossi-

ble’, any marriages.’ Jd. Justice Rehnquist, dissenting, in

Zablocki,, felt that Jobst was not distinguishable.

App. 42

deprived of control over such intimacies of our bodies

and minds as to offend what are ultimately shared stan-

dards of autonomy’. Gerety, Redefining Privacy, 12

Harv.Civ.R.-Civ.L.L.Rev. 233, 268 (1977). Nor is its in-

direct effect on intimate decisions as strong as some

which the Court has held do not invoke strong con-

stitutional protection. The district court properly con-

cluded that the senators cannot bring their complaint

within this branch of the right to privacy.

B.

There is another strand to the right to privacy

properly called the right to confidentiality. See Gerety,

Redefining Privacy, 12 Har.Civ.Civ.L.Rev. 233 (1977).

The Supreme Court has defined this branch as ‘the in-

dividual interest in avoiding disclosure of personal

matters’. Whalen v. Roe, 429 U.S. at 599, 97 S.Ct. at

876.

In the constitutional arguments we have considered

thus far, the senators failed because their complaints

were not within the scope of the rights involved. Their

contentions do fall directly within this right. Our

problem in this section is 50 determine the proper stan-

dard of review of their claims, then apply it. The answer

is not easy.

This case is not analogous to cases requiring dis-

closure of organizational membership. See N.A.A.C.P.

v. Alabama ex rel. Patterson, 1958, 357 U.S. 449, 78

S.Ct. 1163, 2 L.Ed.2d 1488, Shelton v. Tucker, 1960, 364

U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Bates v. City of

Little Rock, 1960, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d

480; Louisiana ex rel. Gremillion v. N.A.A.C.P., 1961,

App. 43

366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301. Those cases

prevented states from requiring disclosure of mem-

bership in the N.A.A.C.P., either through requiring that

individuals disclose their membership, Bates v. City of

Little Rock, or that the organization disclose its mem-

bers. In those times and places the attempted restraint

on the freedom of association was patent. Similarly,

Buckley v. Valeo, 1976, 424 U.S. 1, 60-84, 96 S.Ct. 612,

46 L.Ed.2d 659, discussed campaign contributor dis-

clo.'re in the context of ‘‘privacy of association and

belief guaranteed by the First Amendment’. [emphasis

added| 424 U.S. at 29, 96 S.Ct. at 640. Cf. Talley v.

California, 1960, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559

(striking down ordinance prohibiting anonymous

pamphlets). Such disclosure requirements, because they

strike at first amendment freedoms, ‘“‘must survive ex-

acting scrutiny”. Buckley, 424 U.S. at 64, 96 S.Ct. 612.

Here, memberships, associations, and beliefs are

revealed, if at all, only tangentially. The Amendment

calls for disclosure of assets, debts, and sources of in-

come, each to be identified and valued. Although in

some particular situations, rigorous application of the

Amendment might implicate first amendment

freedoms, when considering the Amendment on its face

this threat is too remote to raise the issue."

“Without implying any views on the merits of a suit-which

properly raised the issue, we feel a substantial constitutional issue

might be raised by disclosure of one’s income tax returns. Such dis-

closure could be troublesome if it were to reveal the nature of

various contributions made by the official or candidate, such as

contributions to a church, a political party, or a charity. Regula-

tions by the Commission on Ethics might, of course, eliminate any

threat of such sensitive revelations. The issue must await another

case.

App. 44

The Supreme Court has twice explicitly considered

the confidentiality strand of privacy. In Whalen v. Roe,

1977, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64, the

challenge to New York’s prescription reporting require-

ment was based on both branches of privacy analysis.

The Court did not discuss the standard to be applied to

public disclosure, because it determined that the chance

of such disclosure occurring was minimal. Legally, such

information could be used only in judicial proceedings.

The state made unauthorized disclosure a crime

punishable by up to a year in prison and a $2,000 fine.

The Court discussed in some detail the extensive

security surrounding the data. 429 U.S. at 593-95, 97

S.Ct. 869. The possibility of ineffective judicial protec-

tion of information used in criminal proceedings was

held to be too remote to lead to invalidation of the

program. The Court then distinguished the disclosure to

employees of the state, who are under a duty to keep it

confidential, from disclosure to the public. Such dis-

closure was held to raise no more substantial con-

stitutional question than many widely accepted

reporting requirements. 429 U.S. at 602, 97 S.Ct. 869.

Because it determined that public disclosure was un-

likely, the Court did not address the standard to be ap-

plied to such public disclosure.

The other Supreme Court decision concerning this

right is Nixon v. Administrator of General Services,

1977, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867. The

Nixon case arose as a result of the Presidential

Recordings and Materials Preservation Act, Pub.L.

93-526, Title I, note following 44 U.S.C. §2107. The Act

purported to cover the disposition of the 42 million

pages of material and 880 tape recordings accumulated

by ex-president Nixon. The Act, as implemented by the

App. 45

Administrator’s regulations, provided that professional

archivist would examine all the materials and cull all

personal material from the documents. The Court

pointed out that screening was essential to assure the

public that all the public documents were in fact

retained and preserved. Although recognizing that

Nixon had a legitimate expectation of privacy in at least —

some of the materials, the Court balanced the interests

involved and upheld the iaw. The public interest was

important; the screening essential; the government

archivists “unblemished”; and the intrusion limited.

433 U.S. at 455-65, 97 S.Ct. at 2796-2802, 53 L.Ed.2d at

899-905.

Nixon does not resolve our problem. The case in-

volved not public disclosure but viewing and screening

of public and private documents by archivists. The

material which the Court and Nixon worried about in-

cluded ‘extremely private communications between

[him] and, among others, his wife, his daughters, his

physician, lawyer and clergyman, and his close friends

as well as personal diary dictabelts and his wife’s per-

sonal files’. 433 U.S. at 459, 97 S.Ct. at 2798, 53 L.Ed.2d

at 901. The Court did not speak in usual terms of stan-

dard of review. The Court found the Act’s invasion of

President Nixon’s privacy potentially troubling, but

‘‘balanced’’ the interests and termed the Act

“reasonable’’. It also stressed that there were no

alternatives to some screening.?!

21In Nixon v. Warner Communications, Inc., April 18, 1978,

U.S. __., 98 S.Ct. 1306, 55 L.Ed.2d 570, the Supreme Court

held that tape recordings used as evidence in the trial of severa!

Watergate defendants need not be released to the public. The deci-

sion did not include any discussion of anyone’s right to privacy.

App. 46

The Supreme Court has provided little specific

guidance.” Although in the autonomy strand of the

right to privacy, something approaching equal protec-

tion “strict scrutiny” analysis has appeared, we believe

that the balancing test, more common to due process

claims, is appropriate here. The constitutionality of the

amendment will be determined by comparing the in-

terests it serves with those it hinders.”°

The balancing standard seems appropriate. In

equal protection cases the Supreme Court has warned

against giving heightened attention to cases involving

new ‘‘fundamental interests”. San Antonio Independent

School District v. Rodriguez, 1973, 411 U.S. 1, 33-34, 98

S.Ct. 1278, 36 L.Ed.2d 16. The Court has avoided

proclaiming such a standard in the two cases raising the

issue in which it issued opinions, Whalen v. Roe and

Nixon v. Administrator of General Services. It has dis-

missed for want of a substantial federal question three

cases raising the question in financial disclosure con-

texts. Montgomery Co. v. Walsh, 1975, 274 Md. 502, 336

A.2d 97, app. dism’d, 1976, 424 U.S. 901, 96 S.Ct. 1091,

47 L.Ed.2d 306; Fritz v. Gorton, 1974, 83 Wash.2d 275,

517 P.2d 911, app. dism’d, 1974, 417 U.S. 902, 94 S.Ct.

2596, 41 L.Ed.2d 208; Stein v. Howlett, 1972, 52 Ill.2d

570, 289 N.E.2d 409, app. dism’d, 1973, 412 U.S. 925, 93

S.Ct. 2750, 37 L.Ed.2d 152; see discussion above at 5-7.

*2?Except, of course, through the dismissals for want of substan-

tial federal questions noted above.

>This may be consistent with the standard of review used in

the “autonomy” branch of privacy cases. Rather than consider

“compelling state interest” a label for immuizing circumstances, it

might reflect merely the great weight on the state’s end of the

traditional balancing test.

App. 47

Subjecting financial disclosure laws to the same

scrutiny accorded laws impinging on autonomy rights,

such as marriage, contraception, and abortion, would

draw into question many command forms of regulation,

involving disclosure to the public and disclosure to

government bodies.*4 ;

At the same time, scrutiny is necessary. The

Supreme Court has clearly recognized that the privacy

of one’s personal affairs is protected by the Constitution.

Something more than mere rationality must be

demonstrated. Otherwise, public disclosure require-

ments such as Florida’s could be extended to anyone, in

any situation.*®

The government requires many kinds of financial disclosure

from its citizens. The federal income tax is the best known.

Although the 1040 form is not well-loved, it is widely accepted both

by the general public and as a matter of constitutional law. Cf.

United States v. Sullivan, 1927, 274 U.S. 259, 47 S.Ct 607, 71 L.dd.

1037, upholding a conviction for failure to file an income tax return

against a Fifth Amendment claim. Social Security tax law requires

employers to tell the federal government the names, addresses, and

compensation of all their employees. Some public disclosure is re-

quired by the securities laws and regulations thereunder. E. g.,

Securities Act of 1933,§10(a)(1) and Schedule A(4), (14), 15 U.S.C.

§§77j(a)(1), 77aa(4), (14), requiring disclosure of names, addresses,

and remuneration of directors and officers in the prospectus;

Securities Exchange Act of 1934 §16(a), 15 U.S.C. §78p(a), requir-

ing insiders to disclose the amount and monthly changes in the

amount of their direct and indirect holdings of their company’s

stock.

25In this context it is interesting that the two state courts that

did strike down disclosure laws for privacy reasons struck down

laws that applied to local employees and minor officials as well as

high state officials. The Michigan Court expressly found the statute

sufficiently narrow for some high officials. City of Carmel-by-the-

Sea v. Young, 1970, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225; Ad-

visory Opinion on Constitutionality of 1975 PA 227 (Questions 2

10), 1976, 396 Mich. 465, 242 N.W.2d 3.

App. 48

The district court found that four important state

concerns are significantly advanced by the Amendment:

the public’s “right to know” an official’s interests,

deterrence of corruption and conflicting interests, crea-

tion of public confidence in Florida’s officials, and

assistance in detecting and prosecuting officials who

have violated the law. The importance of these goals

cannot be denied. The question is whether the Sunshine

Amendment significantly promotes them.

What the district court called the public’s “right to

know” is promoted by the Amendment. This phrase,

however, is misleading. Disclosure is helpful not because

it fulfills an independent “right”, but because it makes

voters better able to judge their elected officials and

candidates for those positions. All of the officials

covered by the Amendment are elected. It is relevant to

the voters to know what financial interests the can-

didates have. As the Supreme Court said, in discussing

campaign contributions, the knowledge will ‘alert the

voter to the interests to which a[n official] is most likely

to be responsive’. Buckley v. Valeo, 424 U.S. at 67, 96

S.Ct. at 657.

The senators contend that the Amendment will not

stop corruption. They make the reasonable point that

few officials are likely to make a public disclosure of il-

legal income. Yet, the existence of the reporting require-

ment will discourage corruption. Sunshine will make

detection more likely. The interest in an honest ad-

ministration is so strong that even small advances are

important.

The Amendment will not overnight restore (or

create) public confidence in Florida’s government.

App. 49

Although the events of recent years may have

strengthened the Sunshine Amendment, cynicism about

public officials is not a new, and easily reversed,

phenomenon. Disclosure may not completely remove

this doubt. It should help, however. And more effective

methods are not obvious.

The fourth interest discussed by the district court, |

aiding detection and prosecution of violations, seems

less affected by the Amendment than the others. While

misdeeds may be deterred by the need to file either

honest or perjurious financial statements, once they

have been committed, the statements may well be

useless.

The Supreme Court has considered the first,

second, and fourth goals in the context of campaign con-

tribution disclosure. The Court held them strong enough

to outweigh any infringement on first amendment rights

caused by the Act. Buckley v. Valeo, 424 U.S. at 66-68,

96 S.Ct. 612. The Supreme Court of Florida, in up-

hoiding the legislative percursor of this amendment,

found that “Florida has a compelling interest in

protecting its citizens from abuse of the trust placed in

their elected officials”. Goldtrap v. Askew, Fla.1976, 334

So.2d 20, 22.

Ranged against these important interests are the

senators’ interests in financial privacy. Their interest is

substantial. For better or for worse, money too makes

the world go round. Financial privacy is important not

only forthe reasons the California Supreme Court ac-

cepted: the threat of kidnapping, the irritation of

solicitations, the embarrassment of poverty. City of

Carmel-by-the-Sea v. Young, 1970, 2 Cal.3d 259, 85

App. 50

Cal.Rptr. 1, 9, 466 P.2d 225, 233. When a legitimate ex-

pectation of privacy exists, violation of privacy is

harmful without any concrete consequential damages.

Privacy of personal matters is an interest in and of itself,

protected constitutionally, as discussed above, and at

common law. See, e.g., Santiesteban v. Goodyear Tire &

Rubber Co., 5 Cir. 1962, 306 F.2d 9 (malicious reposses-

sion of goods in public may state privacy claim).

The extent of the interest is not independent of the

circumstances. Plaintiffs in this case are not ordinary

citizens, but state senators, people who have chosen to

run for office. That does not strip them of all con-

stitutional protection. Nixon v. Administrator of

General Services, 433 U.S. 425 at 457, 97 S.Ct. 2777 at

2797, 53 L.Ed.2d 867 at 900. It does put some limits on

the privacy they may reasonably expect. The first

amendment puts much greater restrictions on libel and

slander actions by public officials or public figures than

similar actions by private parties. New York Times v.

Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d

686, established that public official must show ‘‘actual

malice” to recover for libel. A public official, for pur-

poses of the New York Times test, includes elected of-

ficials and candidates for those positions, appointed of-

ficials, and employees ‘“‘who have, or appear to the

public to have, substantial responsibility for or control

over the conduct of governmental affairs”. Rosenblatt v.

Baer, 1966, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d

597. By comparison, private parties need only show fault

of some kind to recover actual damages. See Gertz v.

Robert Welch, Inc. 1974, 418 U.S. 323, 94 S.Ct. 2997, 41

L.Ed.2d 789; Time, Inc. v. Firestone, 1976, 424 U.S. 448,

96 S.Ct. 958, 47 L.Ed.2d 154. Even in financial matters,

public officials usually have less privacy than their

App. 51

private counterparts. The salaries of most officials, in-

cluding federal judges, are matters of public record.

Financial privacy is a matter of serious concern,

deserving strong protection. The public interests sup-

porting public disclosure for these elected officials are

even stronger. We join the majority of courts considering

the matter and conclude that mandatory financial dis-

closure for elected officials is constitutional.”®

That does not end our inquiry. The senators focus

their contentions on three specific features of the

Amendment: the requirement that values be assigned to

assets, the requirement that secondary sources of in-

come be disclosed, and the publication of their financial

statements. Each of these features must be individually

examined, its incremental benefits balanced against the

added violation of the officials’ privacy.

*6See Fritz v. Gorton, 1974, 83 Wash.2d 275, 517 P.2d 911, app.

dism'd, 1974, 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d 208; Stein v.

Howlett, 1972, 52 Ill.2d 570, 289 N.E.2d 409, app. dism'd, 1973, 412

U.S. 925, 93 S.Ct. 2750, 37 L.Ed.2d 152; Montgomery County v.

Walsh, 1975, 274 Md. 502, 336 A.2d 97, app. dism’d, 1976, 424 U.S.

901, 96 S.Ct. 1091, 47 L.Ed.2d 306; County of Nevada v. Mac-

Millen, 1974, 11 Cal.3d 662, 114 Cal.Rptr. 345, 522 P.2d 1345; Evans

v. Carey, 1976, 53 A.D.2d 109, 285 N.Y.S.2d 965, aff'd, 1977, 40

N.Y.2d 1008, 391 N.Y.S.2d 393, 359 N.E.2d 983; Goldtrap v. Askew,

Fla. 1976, 334 So.2d 20; Illinois State Employees Ass'n v. Walker,

1974, 57 Ill.2d 512, 315 N.E.2d 9, cert. den. sub nom. Troopers

Lodge No. 41 v. Walker, 1974, 419 U.S. 1058, 95 S.Ct. 642, 42

L.Ed.2d 656; In re Kading, 1976, 70 Wis.2d 508, 235 N.W.2d 409:

Klaus v. Minnesota Ethics Comm'n, 1976, 309 Minn. 430, 244

N.W.2d 672; Kenny v. Byrne, App.Div. 1976, 144 N.J.Super. 243,

365 A.2d 211

App. 52

The senators cite language from state court

opinions which approve schemes using dollar ranges

rather than exact figures.2”7 They argue that all of the

benefits of the statute could be obtained by requiring

only ranges of value, rather than demanding specific

figures. Their argument is unconvincing. While suf-

ficiently narrow ranges would convey much useful infor-

mation, increasing the specificity will increase the value

’

*7See County of Nevada v. MacMillen, 1974, 11 Cal.3d 662, 114

Cal.Rptr. 345, 350, 522 P.2d 1345, 1350 (‘“‘Moreover, unlike the 1969

act, the 1973 act does not require disclosure of the actual extent of

the official’s assets and interests, but only whether the value of his

investment or real property interest exceeds $10,000. . ."’); In re

Kaeding, 1976, 70 Wis.2d 508, 235 N.W.2d 409, 418 (“Most impor-

tantly, neither the dollar value nor the quantity of the assets need

be disclosed.’’); Klaus v. Minnesota State Ethics Comm'n, 1976,

309 Minn. 430, 244 N.W.2d 672, 676 (‘‘Nothing in our statute re-

quires a candidate to disclose his net worth or the amount of his in-

come, information which is traditionally personal and privileged.’’).

App. 53

of the information.” Acknowledging an. asset worth

$13,217 is little more an invasion of privacy than stating

that the asset is worth between $10,000 and $15,000.

While the incremental benefit may be slight, the in-

cremental harm is even slighter.

The Amendment states that the rules governing the |

financial statement shall require ‘disclosure of second-

ary sources of income’’. The Amendment offers an alter-

native to any statement of income sources: the official

may file a copy of his federal income tax return. The

secondary source requirement is effective only if the of-

ficial chooses not to do so. The meaning of ‘‘secondary

source” is unclear. The senators’ brief suggests the

Amendment demands that ‘names of patients and

clients who pay for non-govermental services from these

part-time public officers be revealed’’. Appellants’ brief

2*The Illinois Supreme Court quoted the trial judge to make

this point in Illinois State Employees Ass'n v. Walker, 1974, 57

Ill.2d 512, 315 N.E.2d 9, cert. den. sub nom. Troopers Lodge No. 41

v. Walker, 1974, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 656:

“While full financial disclosure is burdensome, anything

less would be ineffective in accomplishing the goal. The

disclosure of only the sources of significant business in-

terests and substantial amounts of income, as under the

Ethics Act [Ill.Rev.Stat. 1973, ch. 127, par. 601 et seq.|,

is useful as far as it goes, but the information exempted

is such that much corruption may go undetected. It is

misleading, and ultimately undermining of public con-

fidence, to institute a disclosure program having exemp-

tions as broad as the coverage. The inclusion of dollar

amounts is justified because it allows for detection of

many more types of unethical conduct.’ |emphasis

added]

315 N.E.2d at 17.

App. 54

at 23. In oral argument the State maintained that this

depended on the nature of the officer's employer. A

lawyer-legislator working for a law firm could list in-

come source as the law firm; a sole practitioner would

have to list all clients who paid more than $1,000 in fees.

The interest of the State in knowing who provided

an official with income is clear. This argument is

troubling only because rights of third parties intrude. A

doctor’s patients or a lawyer’s clients may have con-

fidential relationships protected by state law; customers

and clients of other fields may also be entitied to some

sort of protection. At least two state courts have con-

sidered this problem. the Missouri Supreme Court up-

held a requirement that lawyers reveal for publication

the names of their clients and the fees received tium

them. The Court found that the attorney-client privilege

was not a barrier to the law. It pointed out that

declaratory judgment actions could be brought on a case

by case basis for exemptions from this requirement.

Chamberlin v. Missouri Elections Commission, Mo.

1976, 540 S.W.2d 876. The Alaska Supreme Court came

to the opposite conclusion in a suit brought by a doctor.

The doctor challenged the disclosure requirement by

asserting the privacy rights of his patients. The Court

allowed this assertion of a third party’s rights, and held

that rules would be necessary to provide for some ex-

emptions from the requirement. The Court was not

troubled by disclosure in most cases, but felt that somie

visits would demand confidentiality, as when the doctor

was a psychiatrist specializing in treating sexual

problems. Falcon v. Alaska Public Offices Commission,

Alaska 1977, 570 P.2d 469.

App. 55

No clients or patients are parties to this suit. The

senators have not tried to assert the interests of their

clients or customers. The shape of the secondary source

requirement is unclear. If precise regulations on this

matter have been promulgated by the Florida Commis-

sion on Ethics, we have not found them. Commission

regulations might allow exemptions in sensitive situa:

tions. The Amendment provides an option, the federal

tax return, which eliminates any need to itemize income

sources. On the record before us, we cannot invalidate

this feature of the Amendment. We intimate no opinion

as to the outcome of a challenge to the application of the

secondary source requirement in some specific situation.

The senators’ final complaint is that the State's in-

terests would be served just as well by limiting dis-

closure to the Florida Commission on Ethics. This could

deter some corruption, restore some public confidence,

and detect some malfeasance. But the Florida voters

have decided that it could not provide the voting public

with the valuable information public disclosure creates:

something more is needed. This educational feature of

the Amendment serves one of the most legitimate of

state interests: it improves the electoral process. That

goal, recognized as important by the Supreme Court in

Buckley, can be met in no other way. That goal justifies

public publication of the senators’ financial statements.

IV.

We have reviewed the senators’ constitutional argu-

ments. The district court dismissed their complaint

for failure to state a claim upon which relief could be

granted. In Conley v. Gibson, 1957, 355 U.S. 41, 47, 78

S.Ct. 99, 102, 2 L.Ed.2d 80, the Supreme Court held:

App. 56

“{A] complaint should not be dismissed for

failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would

entitle him to relief.”

This case meets that test. To be sure, difficult questions

are presented by the senators, but they are questions of

law, not of fact. Our deliberations have led us to con-

clude that no law exists to support the senators’ com-

plaint.

We are not insensitive to the senators’ dilemma; nor

do we doubt the sincerity of their opposition to the

Amendment. Their privacy, and the privacy of the

others included in the Amendment, is severely limited

by it. We do not say that it is wise: the people of Florida,

by a four to one vote, have done that. We do say that, on

its face, it is constitutional. The judgment of the district

court is

AFFIRMED.

App. 57

APPENDIX A

§112.3145

(2) (a) A person seeking nomination or election to a

state or local elective office shall file a statement of

financial interests together with, and at the same time

he files, his qualifying papers.

(b) Each state or local officer and each specified

employee shall file a statement of financial interests no

later than 12 o’clock noon of July 15 of each year, in-

cluding the July 15th following the last year he 1s in of-

fice. Each state or local officer who is appointed and

each specified employee who is employed shall file a

statement of financial interests within 30 days from the

date of appointment or, in the case of specified em-

ployees, from the date on which the employment begins,

except that any person whose appointment is subject to

confirmation by the Senate shall file prior to confirma-

tion hearings or within 30 days from the date of appoint-

ment, whichever comes first.

(c) State officers and specified employees shall

file their statements of financial interests with the

Secretary of State. Local officers shall file their staie-

ments of financial interests with the Clerk of the Circuit

Court of the county in which they are principally em-

ployed or are residents. Persons seeking to qualify as

candidates for public office shall file their statements of

financial interests with the officer before whom they

qualify.

(3) The statement of financial interests for state of-

ficers, specified employees, local officers, and persons

App. 58

seeking to qualify as candidates for state or local office

shall be filed even if the reporting person holds no finan-

cial interests requiring disclosure, in which case the

statement shall be marked ‘“‘not applicable’. Otherwise,

the statement of financial interests shall include:

(a) All sources of income in excess of 5 percent of

the gross income received during the disclosure period

by the person in his own name or by any other person for

his use or benefit, excluding public salary. However, this

shall not be construed to require disclosure of a business

partner’s sources of income. The person reporting shall

list such sources in descending order of value with the

largest source first.

(b) All sources of income to a business entity in

excess of 10 percent of the gross income of a business en-

tity in which the reporting person held a material in-

terest and from which he received an amount which was

in excess of 10 percent of his gross income during the dis-

closure period and which exceeds $1,500. The period for

computing the gross income of the business entity is the

fiscal vear of the business entity which ended on, or im-

mediately prior to, the end of the disclosure period of the

person reporting.

(c) The location and description of real property

in this state, except for residences and vacation homes,

owned directly or indirectly by the person reporting,

when such person owns in excess of 5 percent of the

value of such real property, and the general description

of any intangible personal property worth in excess of 10

percent of the person’s total assets. For the purposes of

this paragraph indirect ownership shall not include own-

erships by a spouse or minor child.

App. 59

(d) A list of all persons, business entities, or

other organizations, and the address and a description of

the principal business activity of each, from whom he

received a gift or gifts from one source, the total of which

exceeds $100 in value during the disclosure period. The

person reporting shall list such benefactors in

descending order of value with the largest listed first.

Gifts received from a parent, grandparent, sibling child,

or spouse of the person reporting, or from a spouse of any

of the foregoing; gifts received by bequest or devise; gifts

disclosed pursuant to s. 111.011; or campaign contribu-

tions which were reported as required by law need not be

listed. For purposes of this paragraph a debt on which a

preferential rate of interest substantially below the rate

charged under the then customary and usual cir-

cumstances is charged shall be deemed a gift of an

amount equal to the amount represented by the dif-

ference between the preferential and customary rate

charged on the debt.

(e) Every debt which in sum equals more than

the reporting persons’s net worth.

App. 60

APPENDIX B

The Amendment has several different provisions.

Disclosure of campaign finances is required by subsec-

tion (b). Subsection (c) makes employees or officials

who breach their trust, and persons who induce the

breach, liable to the state for the amourt of damages.

Conviction of a felony involving breach of public trust

forfeits the official’s pension rights, according to subsec-

tion (d). Subsection (e) provides that covered officials

may not represent others before boards on which they

sat for two years following the end of their term.

Legislators may represent clients during their term of of-

fice only before judicial tribunals. Subsection (f) es-

tablishes an independent commission to investigate and

report alleged abuses. This commission is later iden-

tified as the Florida Commission on Ethics, established

by the 1974 legislation.

The full text, as relevant to financial disclosure,

follows.

Ethics in Government. —

A public office is a public trust. The people shall

have the right to secure and sustain that trust against

abuse. To assure this right:

(a) All elected constitutional officers and can-

didates for such offices and, as may be determined by

law, other public officers, candidates, and employees

shall file full and public disclosure of their financial

interests.

App. 61

(g) This section shall not be construed to limit

disclosures and prohibitions which may be established

by law to preserve the public trust and avoid conflicts

between public duties and private interests.

(h) Schedule — On the effective date of this

amendment and until changed by law:

(1) Full and public disclosure of financial in-

terests shall mean filing with the secretary of state by

July 1 of each year a sworn statement showing net worth

and identifying each asset and liability in excess of

$1,000 and its value together with one of the following:

a. A copy of the person’s most recent

federal income tax return; or

b. Asworn statement which identifies each

separate source and amount of income which

exceeds $1,000. The forms for such source dis-

closure and the rules under which they are to

be filed shall be prescribed by the independent

commission established in subsection (f), and

such rules shall include disclosure of secondary

sources of income.

(2) Persons holding statewide elective offices shall

also file disclosure of their financial interests pursuant

to subsection (h)(1).

(3) The independent commission provided for in

subsection (f) shall mean the Florida Commission on

Ethics.

App. 62

ee ee

KENNETH M. MYERS,

Petitioner,

Vv.

PAULA F. HAWKINS, Chairman, WILLIAM T.

MAYO, Commissioner, and WILLIAM H. BEVIS.

Commissioner, of and constituting the FLORIDA

PUBLIC SERVICE COMMISSION,

Respondents.

Case No. 52,639

(ENGLAND, C.J.) We are asked by Kenneth M. Myers,

a member of The Florida Bar and an elected state

senator, to review an order of the Florida Public Service

Commission which prohibits him from practicing before

that agency. The genesis of the present controversy was

Myers’ request for a declaratory statement from the

Commission, pursuant to Section 120.565, F.S. (1977),

as to whether he would be permitted to continue practic-

ing before the Commission! following the 1976 adoption

by the voters of Florida of the so-called ‘Sunshine

Amendment”’ to the Florida Constitution.2 Among the

provisions added to the Constitution by that amend-

ment was Article II, Section 8(e), which provides in per-

tinent part:

‘‘No member of the legislature shall personally

represent another person or entity for compen-

sation during term of office before any state

agency other than judicial tribunals.”

App. 63

The principal issues before us are whether the Public

Service Commission is a “judicial tribunal’’ within the

meaning of this provision, and if not whether the

amendment applies to legislators in office on its effec-

tive date.

+ * . *

Il

Inasmuch as Article II, Section 8(e), bars the ap-

pearance of legislators before the Public Service Com-

mission, we are forced to consider whether the prohibi-

tion extends to legislators in office when it became effec-

tive.22 The issue is a difficult one. In addition to the

complexity of the narrow legal question posed, it is ap-

parent that our decision with respect to the applicability

to incumbent legislators of the ‘during term’’ prohibi-

tion in Section 8(e) will determine as well the ap-

plicability, to a variety of incumbent officeholders, of

the two-year “after term’’ ban, containing identical

—

22. Although this issue was not originally argued by the par-

ties, the Court on its own motion directed that the parties file sup-

plementary briefs addressing this question. See Fla. R.App.P.

9.040(a). As noted earlier, Myers has served in the Florida Senate

continuously since 1968. His present four-year term began on

November 2, 1976.

App. 64

operative language, which appears as the first sentence

of the same constitutional provision.”"

We can quickly dismiss any concern that Section

8(e) has retroactive effect with respect to Myers’ pre-

1977 practice before the Public Service Commission. No

one suggests that his representation of clients at the

Commission before the amendment became effective

has breached the public trust.24 The question posed

here, although cast by the parties in terms of the amend-

ment’s “retroactivity” and “‘prospectivity,’’’> is whether

the application of Section 8(e) after its adoption imper-

missibly impairs, during the unexpired portion of

Myers’ four-year elective term, any of the rights, duties,

or privileges appertaining to or dependent upon his

public office. Five Florida decisions are said to bear on

this question, but three of them are readily

distinguishable.

23. In its entirety, Article II, Section 8(e), reads:

‘‘No member of the legislature or statewide elected of-

ficer shall personally represent another person or entity for

compensation before the government body or agency of

which the individual was an officer or member for a period

of two years following vacation of office. No member of the

legislature shall personally represent another person or en-

tity for compensation during term of office before any state

agency other than judicial tribunals. Similar restrictions

on other public officers and employees may be established

by law.”

24. The retroactive application of a constitutional amendment

to pre-adoption conduct was summarily rejected in Baillie v. Town

of Medley, 262 So.2d 693, 697 (Fla. 3DCA 1972), appeal dismissed,

279 So.2d 881 (Fla. 1973).

25. The labels “retroactive” and ‘prospective’ do not aid our

analysis.

App. 65

“In dealing with the problem of retroactivity, it is ex-

tremely difficult to establish definite criteria upon which

court decisions can be foretold. A statute must not act un-

reasonably upon the rights of those to whom it applies, but

what js reasonable and what is unreasonable is difficult to

state in advance of actual decisions.’. . . [T]he method to

be pursued is not the unerring pursuit of a fixed legal prin-

ciple to an inevitable conclusion. Rather it is the method

of intelligently balancing and discriminating between

reasons for and against.’ It is misleading to use the terms

‘retrospective’ and ‘retroactive,’ as has sometimes been

done, to mean that the act so labeled is unconstitutional,

since the question of validity rests on further subtle judg-

ments concerning the fairness or unfairness of applying the

new statutory rule to affect interests which accrued out

of events which transpired and under circumstances

which obtained when a different prior rule of law was in

force. ...

One of the fundamental considerations of fairness

recognized in every legal system is that settled expecta-

tions honestly arrived at with respect to substantial in-

terests ought not be defeated. There is evidence that

results achieved through application of judicial instinct,

manifested in the pattern of decisions on retroactivity

problems, are perhaps best explainable in terms of this

fundamental principle of justice.’’ 2 Sands, Sutherland

Statutory Construction Sec. 41.05, pp. 259-61 (4th ed.

1973).

If there is an appropriate characterization, Florida case law seems

to describe the application of a constitutional amendment to con-

duct following its effective date as prospective in nature. See State

ex rel. Judicial Qualifications Commission v. Rose, 286 So.2d 562,

563 (Fla. 1973). And see Department of Health & Rehabilitative

Services v. Harrell, 258 So.2d 340, 344 (Fla. 1IDCA 1972), cert. dis-

charged, 272 So.2d 151 (Fla. 1973), using the same term in the con-

text of conduct following a statutory change.

App. 66

In State ex rel. Judicial Qualifications Commission

v. Rose, 286 So.2d 562 (Fla. 1973), the Court refused to

apply to an incumbent judge a constitutional amend-

ment creating a mandatory retirement age which he had

passed at the time the amendment became effective.

The Rose decision, however, is not really helpful here.

There the Court was obliged to reconcile two competing

provisions of the newly adopted constitution, one

elevating Judge Rose to the status of a circuit judge as of

January 1, 1973, and the other prohibiting judicial ser-

vice by persons who had attained his then age. The

Court reconciled these two provisions to prevent the

ridiculous result of ‘‘elevating” a judge to a position he

was instantly ineligible to occupy.” Obviously the

problem there has no parallel here.

In Johnson v. Trader, 52 So.2d 333 (Fla. 1951), the

Court refused to apply a city ordinance enacted to

prohibit civil service employees from engaging in a li-

quor business to a Pensacola policeman who owned a li-

quor enterprise, without a reasonable post-adoption

period for compliance. In Johnson, of course, the Court

was forced to resolve a practical dilemma posed by the

precipitous enforcement of the municipality's

reasonable regulation governing the conduct of civil ser-

vice employees. In so doing, the Court fashioned an

equitable resolution for the parties grounded on the fac-

tual peculiarities of the manner in which the city had

handled its transactions with officer Johnson, and on

the need for concern with his accrued pension benefits. 2”

No similar due process concern or vested property right

affects Myers’ situation.

"26. 286 So.2d at 563.

27. 52 So.2d at 336-37.

App. 67

In Hall v. Strickland, 170 So.2d 827 (Fla. 1964), the

Court upheld a Dade County charter amendment which

terminated the offices of certain incumbent judges

whose terms had not expired. In Hall the Court was con-

fronted with two questions: whether a constitutional

ban against shortening the term of an incumbent judge

was applicable at all to a court created by municipal or- |

dinance, and whether the municipality’s particular

court was abolished or its incumbent judges removed.

By deciding that the constitutional prohibition did not

apply at all because of the particular court involved, and

that the court was abolished rather than its judges

removed, the Court avoided issues (like the one before

us) relative to the abridgment of an incumbent of-

ficeholder’s term.

More akin to the present situation are Holley v.

Adams, 238 So.2d 401 (Fla. 1970), and State ex rel.

Reynolds v. Roan, 213 So.2d 425 (Fla. 1968). In

Reynolds the Court refused to allow a school board to

oust its appointed superintendent — an attempt

grounded on a constitutional amendment directing that

school board superintendents shall serve at the pleasure

of. their appointing boards — when the incumbent

superintendent had received a pre-amendment board

appointment for a fixed term extending beyond the

amendment’s effective date. The Court’s opinion dis-

cussed to some extent whether superintendent

Reynolds’ appointed term was definite, and thereby

continuable to the end of its pre-amendment contract

duration, or indefinite, and thereby subject to the newly

created termination authority. The Court’s decision

hinged, however, on an absence of express language in

App. 68

the constitutional amendment directing its application

to existing contracts.”8

“{Ajn intention to apply the shortened term of

an office, or the changed qualifications thereof,

to an incumbent, resulting in his ouster from

the office before the end of his term, must be

clearly expressed in the statute or con-

stitutional amendment making the change

before it will be given that effect.’’2°

In Holley, by contrast, the Court did apply a newly-

enacted statute to incumbent officeholders—forcing a

direct curtailment of the term of office—but nowhere

identified the presence of an unambiguous directive in

the statute to the effect that it should apply to incum-

bents. Apparently, the Court there approached the ap-

plicability problem from another perspective. By first

concluding that the so-called ‘‘resign-to-run’’ statute

did not affect the qualifications of office®° or shorten by

its operation the term of office,*'! the Court eliminated

any possible reasons that the statute should not apply to

28. Both the Rose and Reynolds decisions express the view

that a constitutional provision can operate to eliminate an office or

a right, provided the amendment unambiguously expresses that in-

tention. The Hall decision illustrates office abolition.

29. 213 So.2d at 428.

30. See Holley, 238 So.2d at 405-06, as to the distinction be-

tween the eligibility for office and the qualifications of office.

31. “(T]he reduction of the term, if any, is caused solely by the

act of the office holder in abandoning the office which he presently

holds.”’ 238 So.2d at 407.

App. 69

incumbents. By this approach the need to consider an

expression of intent in the statute became unnecessary,

since the impermissible feature of statutory or con-

stitutional change—an effective ‘‘ouster’’—was not

present in the enactment.

Whether we approach the applicability of Section |

8(e) from the perspective of Reynolds or Holley, the con-

clusion is the same—Section 8(e) should not be con-

sidered applicable to persons in office on its effective

date.*?

A Reynolds approach would assume for the purpose

of discussion: an effective ouster by the constitutional

amendment and direct our attention to whether the

amendment on its face expresses an intention that it be

applied to those in office. If not, the amendment would

not be so applied. There can be no disagreement that

Section 8(e) on its face, or even in conjunction with

other provisions of the Sunshine Amendment, does not

express a clear and unequivocal intention to apply its

strictures to existing officeholders.** Compare the ex-

pressions. of intended application in the provisions con-

strued in Hall v. Strickland, 170 So.2d 827 (Fla. 1964),

and in Klein v. Schulz, 87 So.2d 406 (Fla. 1956). Under a

Reynolds approach, then, even assuming that Section

8(e) affects the qualifications of office, the absence of

32. We express no view on the applicability of a constitutional

or statutory change to persons who assyme office simultaneously

with the effective date of the change.

33. Indeed, the last sentence of Section 8(e) speaks prospec-

tively of action the legislature may take to expand that provision’s

coverage to other governmental personnel.

App. 70

clear language applying it to incumbents prevents its

applicability to Myers.

A Holley approach focuses attention directly on the

question assumed under a Reynolds approach—whether

the constitutional change has abolished the office,

changed the qualifications of office, or imposed new and

onerous requirements on some or all of the incumbents

who desire to continue in office.*4 The resign-to-run law

considered in Holley led the Court to conclude that

neither an ouster nor an impermissible burden on of-

ficeholding was imposed.*> The same cannot be said of

Section 8(e). To apply newly-created professional

limitations on a part-time Florida legislator in the midst

of his term of office obviously defeats expectations

honestly arrived at when the office was initially

sought.** The office itself is not abrogated or its duties

altered, of course, but the privileges of officeholding are

no less impaired by curtailing non-legislative employ-

ment opportunities than they would be if the office was

made full-time and outside employment prohibited

altogether.*? The abridgement in either case is tan-

tamount to changing the qualifications of office. There

34. New and onerous requirements for officeholding may be

considered the equivalent of an ouster. See 238 So.2d at 406-07.

35. “(The resign-to-run statute] is not a burden imposed upon

the office of circuit judge presently held by Holley. His term of of-

fice as circuit judge remains as before and this right is affected only

by the voluntary ect of the incumbent in office.’ 238 So.2d at 406.

36. See Sands, note 25 above.

37. See, for example, Art. V, Sec. 13, Fla. Const., prohibiting

certain outside employment for full-time judges.

App. 71

Palm Beach Post, August 9, 1977

was absolutely no employment limitation when the term H.

alf of Judges

of office was sought.** ,

We hold, therefore, that Section 8(e) does not apply | | I n P B Count y

to affected officials—legislators and statewide elected a

Worth $100,00

officers—who held office on its effective date.*® Myers,

i

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others during his senatorial term which began prior to ts Creat Judge Jame R Kast Ustag be eur ere ot ano Se ee or

bli i & comes close te being s millionaire Circeit Court Judge Jetm @. > Cart Harper am

January 4, 1977. The order of the Public Service Com- Set "OY Sint nancial Reranch valued hs render wt yc... SST S.A 1) wean oa

° ° . @ residence an Dessts

mission is quashed. treamerer Wr (Kia “Cammy tute Read ot S14.000, lhe property mm! somntinm, sad Comey, Josge Duos

ae a 0000 ot eve = T- recently appetmnad

Sere Se scw er: Sie hres

P P x .. eet img Amerces Con Goll Of Ment oat me 2 596,009 contomntem apart

It is so ordered. (Adkins, Boyd, Overton, and sam ngewe = soma, Lehman Carp. and T <" "Ee. san neat, Cam

Hatchett, JJ., Concur.) laren te ona cade ey eran erm Coen Coat, 6 es ee oe

cut Jedge Themss H. Johmeen with sm a am. (orem sperusest ast tue mute

. . . . . 51. ea) ¢ grant v ’ + '&

38. Not every statutory or constitutional impairment in the ex- Coctale at taae me she herund on sts Wf Dedge Meter Home ‘ FN panne

pectations of in the status of officeholders, either in their official or ther. prominent eal physics. amounts of tech im tne Predeatial ° ome wee SERIA, et

‘ . ‘ 4 hu alma a0 wbertaace Bank. Texaco, Tucseo Gas and Elec 25 4 S12 8 hems, $8.58 & cients

private capacity, will operate only as to future officeholders. This piu S608 worth of sch ia KM Grom He'faioed ine Gren meh i) eum A hal Soares ty Seah at

case does not present an occasion to announce other circumstances oe ht ee ee the fam Gectared 2 Soak Mamta Proper —

in which an impairment would be considered tantamount to an 4 aes ee: Soto. ot

ouster, to use the Reynolds phraseology. Wherever a line may ul- owe theme merges inna Ata ote beds ont um i = Denhee Med o ox wa fe

timately be drawn to separate permissible impairment from that can? S00 © “mecelanees MIE ood Howard H Harram dy, Teal Tene ead SL

which is impermissible, it is clear that this constitutional change so tae tolings uaa "ota ES seem toa fe

substantially abrogates Myers’ status as a part-time legislator and wag he Wants Care fe Gusts con tenses Br Eons en Rn

as a member of The Florida Bar that it would fall well outside the Wonts Mounts Prpertas ac vas Meda soe ee apy nae «shat, Saarty KWL the ae

. wed at $100,600, 18 percent af the and Son Shalioway tut bw tures tirenent syulam. and two care Fes

established boundary. ery AS Tenet st Lake Worth home, Dime me Nene Serna Cont, Jutge, James “R,

175 wm 19M. end HO there af : oelene py a

‘commen sieck f2 Deytes ty along Lame and s a heme velued af

39. The inapplicability of the ‘after term” ban of Section 8(e) antes come free Shee ly oid, Harries” Matad «Soon eo: 4 ree Cot See Macnee

to persons in office on its effective date rests on the same policy con- . ihe @ ums db ceimmme am. catg bee valued 5.01" ve.

siderations as the “during term” ban. The joinder of these prohibi- OS of doctors pet, raga fled bos — ——_ o- magess s pepert be

tions in the same constitutional paragraph, designed as we have in- Reweas! Beats Pas ig a techs, tccing, Gu ad a

dicated to prevent conflicts of private and public interests, quite pl re , Lowe Somer ee see & eye E>

plainly stems from the same ethical considerations and requires Loan, = Cite Federal Savings and merigaged 100 009 bene sat :

parallel treatment. The Standards and Conduct Committee of the f8 prepery a inT peut Reed be ont ie aor

Florida House of Representatives reached this same conclusion in ery ad 9 We fe renee He a aS ae ee

an opinion concerning the applicability of the “‘after term’ ban to cing Saree the Put Pre. mare, me ett wc, ht

House members in office on its effective date. Opin. No. 39, H.R.J., the sedges fling copies of bs 19M teruee, He gang! sites Plast oh

Reg. Sess. 888 (1978) tetas ay TD revealed ach the Florda National Bash

Prepares which grossed 812 Ss a v1 600 ‘te aus oe

° urement svete o

* * *

App. 72 App. 73

Palm Beach Post, August 2, 1977

Countians

Sunds}. Avugus 7. 1977

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