# Appendix — Plante v. Gonzalez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1129

## Text

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 constituThis 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

therefore, is not barred from practicing before the Public Wy MARTHA MUSGROVE By pg BO ER Crest “Coat ine Wie
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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
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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
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App. 72 App. 73

Palm Beach Post, August 2, 1977

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25} ef iy 4 phy as i} Shae af i al :
Ca et LUT ee ER ’ :
eit Hy ™ iF ite Fi i lia i] i 5 tee it Hah :
SE A aE
mie gagencsnyy | SuUNNHA ERqyT SY :
8 tyr | ee 2
it al Ht a ! iy fas
ii i, aan ea Ha mu y ‘
: 2 } f e TE S
‘Aan ee it Rt GY
i We ; Hh rH agit i ; Bi pee ey bend
TH ve i Me are. wer
PE HE ll i i Ht at Hi it ne } Yt a f
A ee Lene
Rae: of i ye til {at a Wslette RA at

_* - = _—* *

reg Ho ET

Pe eee renee ee

vated! 3¢ Ai } tt HA iH
age il aca

ia if at ig
i al

inte i
TH
ari a jie Le i hte

aoe i it

Bt ai i i i Hi |
Att ya Dei i at i 3
Zhe i ils ba ia

App. 76

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2102%3A2. Public record. Not legal advice.