Adams v. Askew, 73--3927

• Citation: 511 F.2d 700
• Decision Date: 21 April 1975
• Docket Number: No. 73--3927,73--3927
• Parties: James R. ADAMS et al., Plaintiffs-Appellants, v. Reuben O'D. ASKEW, as Governor of the State of Florida, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 700

511 F.2d 700 James R. ADAMS et al., Plaintiffs-Appellants,
v.
Reuben O'D. ASKEW, as Governor of the State of Florida, et
al., Defendants-Appellees. No. 73--3927. United States Court of Appeals,
Fifth Circuit. April 21, 1975.

Page 701

Charles R. Holley, Naples, Fla., Jack F. White, Jr., Clearwater, Fla., for plaintiffs-appellants.

Robert L. Shevin, Atty. Gen., of Fla., J. W. Chalkley, Jerry E. Oxner, Asst. Attys. Gen., Dept. of Legal Affairs, E. Burke Jolly, Asst. Gen. Counsel, Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before DYER, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Plaintiffs-appellants, James R. Adams, James B. Sanderlin and Jack Murphy brought suit below as a class action on behalf of all candidates for state office in Florida who qualified in 1972 by paying the filing fees imposed by Fla.Stat. Secs. 99.061, 99.092, 103.121 and 105.031(3), seeking both a declaratory decree under Title 28, U.S.C., Sec. 2201 that the statutes were unconstitutional, and a refund of the filing fees. ¹ Jurisdiction was invoked pursuant to Title 42, U.S.C., Sec. 1983 and Title 28, U.S.C., Sec. 1343.

Fla.Stat. Secs. 99.061, 99.092, and 103.121 required candidates for nonjudicial state offices to pay a filing fee of up to 5% of the annual salary of the office sought, 3% going to the state and 2% going to the candidate's political party unless reduced by the party executive committees. ² Named plaintiffs and the class they represent were able to pay and did pay the filing fees without any asserted undue burden on their financial resources.

The district court held that the Florida statutes were constitutional on their face and as applied to plaintiffs and dismissed the complaint for failure to raise any substantial constitutional issue. We affirm.

Page 702

Plaintiffs presented to the court below and urge on appeal three challenges to the 1972 Florida scheme: (1) the Florida statutes were unconstitutional under Bullock v. Carter, 1972, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 and Lubin v. Panish, 1974, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702, because they failed to provide an alternative means for candidate access to the ballot for those able but unwilling to pay the statutory fee; (2) the Florida statutes, by failing on their face to provide an alternative means of qualifying for indigents, a class constitutionally exempt under Bullock and Lubin, were void and unconstitutional as to all in spite of a three-judge court order then in effect in Fair v. Taylor, M.D.Fla.1972, 359 F.Supp. 304, vacated 1974, 416 U.S. 918, 94 S.Ct. 1916, 40 L.Ed.2d 276, enjoining the exaction of fees from indigent candidates; and (3) the Florida statute requiring a filing fee from candidates running in nonpartisan judicial elections is arbitrary and serves no valid governmental interest. We deal with each challenge in turn.

Plaintiffs first assert that the Supreme Court decisions in Bullock and Lubin required Florida to provide an alternative means of access to the ballot for those potential candidates who were able but simply unwilling to pay the required fee. They distill from these cases the rule that, regardless of indigency, any kind of filing fee other than a processing fee is unconstitutional per se, unless an alternative means of access to the ballot is provided by statute. ³

The district court ruled that plaintiffs misunderstood the constitutional thrust of Bullock and the order entered in Fair. We agree. Under the reasoning of Bullock and the recent Supreme Court decision in Lubin, decided subsequent to the dismissal below, we hold that plaintiffs are not entitled to a refund because the State of Florida was not constitutionally compelled to provide candidates able to pay the filing fees another route to the ballot.

In Bullock and Lubin, indigent candidates and their voting supporters successfully challenged fee systems which excluded their effective participation in the political process solely because of their indigency. Contrary to plaintiffs' assertions, however, the...