Battaglia v. Adams
| Decision Date | 13 May 1964 |
| Docket Number | No. 33389,33389 |
| Parties | Anthony S. BATTAGLIA et al., Relators, v. Tom ADAMS, Secretary of State, State of Florida, Respondent. |
| Court | Florida Supreme Court |
Parker, Parker & Battaglia and Anthony S. Battaglia, St. Petersburg, for relators.
James W. Kynes, Atty. Gen., and Wilson W. Wright, Asst. Atty. Gen., for respondent.
This is an original proceeding in mandamus filed by the relators to test the right of the respondent, as Secretary of State of the State of Florida, to comply with the request of The Honorable Richard M. Nixon that his name not be placed on the Florida Presidential Primary Ballot. Jurisdiction attaches under the constitutional authority of this court to 'issue writs of mandamus and quo warranto when a state officer, board, commission, or other agency arthorized to represent the public generally, * * * is named as respondent.' Section 4(2), Article V, Fla.Const. F.S.A. The factual background to this matter is as follows:
On March 3, 1964--the qualifying deadline being noon of that day--the relators qualified as a slate of delegates to the Republican National Convention pledged to Richard M. Nixon. Under date of March 4th, the following telegram was sent by Mr. Nixon to the respondent:
In accordance with Mr. Nixon's request, and in reliance upon the advice of the Attorney General of Florida that he was justified in complying with such request (Attorney General's Opinions 064-32 and 064-37, dated March 9th and 10th, respectively), the respondent refused to certify the name of Mr. Nixon for inclusion on the primary ballot and also removed the names of the relators from the primary ballot.
By the mandamus proceeding sub judice, the relators request this court to direct the respondent 'to place the names of Richard M. Nixon and the relators as a slate of delegates pledged to Richard M. Nixon, on the primary ballot, or in the alternative, place the names of the relators as an unpledged slate of delegates to the Republican National Convention on the said ballot * * *'.
At the conclusion of oral argument counsel requested expeditious determination of the cause in view of the close proximity in point of time of the primary elections. The court thereafter entered its judgment denying the motion of peremptory writ and dismissing the cause, and announced that an opinion setting forth the reasons would be subsequently filed. This opinion sets forth our reasons for so holding.
In State ex rel. Burch v. Gray, Fla.1960, 125 So.2d 876, this court denied without opinion a petition for mandamus under facts very similar to those here present. There, a nominating petition was filed by a slate of electors of a minority party (the so-called National States Rights Party) naming Governor Orval Faubus of Arkansas as their candidate for president. This was done without Governor Faubus's permission; and he sent a telegram to the then Secretary of State of Florida directing that his name be withdrawn from the Florida ballot as a candidate for president. There, as here, the Secretary of State requested the opinion of the then Attorney General as to his duties in the matter. He was advised by the Attorney General (The Honorable Richard W. Ervin, now a member of this court) that Governor Faubus was within his legal rights in demanding that his name not be used--that 'the use of his name might well be a violation of his right of privacy above discussed.' See Attorney General's Opinion 060-171, dated October 11, 1960. As noted above, a petition for mandamus to compel the Secretary of State to include the name of Governor Faubus on the general election ballot was then filed in this court and was denied by us without opinion--thereby holding, in effect, that the relators had not shown a clear right to the relief requested. it was upon this opinion of the Attorney General, and the action of this court in refusing the relief requested, that the present Attorney General based his opinion that Mr. Nixon's request should be granted and his name removed from the nominating petition and primary ballot.
And we agree that Mr. Nixon, like Governor Faubus, has an absolute right to say whether or not his name shall be advanced as a candidate for president or any other office by the relators or any other group. An unauthorized use of a person's name in this respect is recognized as a violation of his right of privacy. See State ex rel. LaFollette v. Hinkle, 131 Wash. 86, 229 P. 317, in which the court upheld the of Mr. LaFollette to prohibit the use of his name by the so-called LaFollette State Party as their candidate for a state office. As pointed out by the court in the LaFollette case, nothing so exclusively belongs to a man or is so personal and valuable to him as his name, inasmuch as his reputation and the character he has built up are inseparably connected with it. See also 77 C.J.S. Right of Privacy § 5, p. 409; 41 Am.Jur. 940, Privacy, Sec. 20, and page 944, Section 24; and the cases collected in the annotation in 138 A.L.R. at page 22.
The relators recognize the applicability of the 'right of privacy' rule in this situation but argue that Mr. Nixon by his governmental and political activities over the last several years and during the current presidential-election year, has 'waived any right of privacy in this area' that he may have had. We do not agree. The fact that he may have consented to the use of his name in the Oregon primary, as stated by relators, does not mean that he has given a blanket consent to all comers, in whatever situation, to use his name in preferential primaries all over the Country. Mr. Nixon has unquestionably, as contended by relators, 'by his accomplishments, fame, or mode of life * * * become a public personage, and he thereby relinquishes at least a part of his right of privacy', 41 Am.Jur., Privacy, p. 938, quoted in Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430; but this permissible 'invasion' of the right of privacy of one who has become a public personage relates to the dissemination of legitimate news items or other matters of public interest. As stated in Jacova v. Southern Radio and Television Company (Fla.1955) 83 So.2d 34, '* * * the right of privacy does not necessarily protect a person against the publication of his name or photograph in connection with the dissemination of legitimate news items or other matters of public interest.' But this...
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