Ferre v. State ex rel. Reno

• Decision Date: 13 August 1985
• Docket Number: No. 84-2102,84-2102
• Citation: 478 So.2d 1077,10 Fla. L. Weekly 1955
• Parties: 10 Fla. L. Weekly 1955 Maurice FERRE, Appellant/Cross-Appellee, v. The STATE of Florida, ex rel. Janet RENO, as State Attorney of the Eleventh Judicial Circuit, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1077

478 So.2d 1077

10 Fla. L. Weekly 1955

Maurice FERRE, Appellant/Cross-Appellee, v. The STATE of Florida, ex rel. Janet RENO, as State Attorney of the Eleventh Judicial Circuit, Appellee/Cross-Appellant.

No. 84-2102.

District Court of Appeal of Florida,

Third District.

Aug. 13, 1985.

Fine, Jacobson, Schwartz, Nash, Block & England and Mitchell R. Bloomberg, Miami, for appellant/cross-appellee.

Jim Smith, Atty. Gen., and Janet Reno, State Atty., and Anthony C. Musto, Asst. State Atty., for appellee/cross-appellant.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The appellant, Maurice Ferre, is the Mayor of the City of Miami. Following his re-election to that office in November 1981, he accepted and retained $35,000 in the form of 35 post-election contributions of $1,000 each.

Some time later, the State filed a civil complaint against Ferre, in which, as amended, it was alleged that he had accepted and failed to return the $35,000 of post-election contributions in violation of Sections 106.141(10) ¹ and 106.08(2) , FLORIDA STATUTES (1981)², respectively. The State asked that the trial court assess a $1,000 civil penalty on account of Ferre's acceptance of the contributions, ³ and a civil penalty of "twice the amount contributed" on account of Ferre's failure to return the contributions. ⁴

Ferre responded by asserting that (1) Florida's statutes prohibiting a candidate for office from accepting post-election contributions and requiring that a candidate who has accepted post-election contributions return them infringe upon his free exercise of political speech and thereby are unconstitutional as violative of rights guaranteed him by the First Amendment to the United States Constitution; (2) the money received by him does not fall within the definition of contributions under the statutes involved; and (3) the mandatory penalty of "twice the amount contributed" set forth in Section 106.08(5) violates the constitutional prohibition against excessive punishment. There being no genuine issue of material fact requiring resolution, the trial court entered summary judgment for the State, limiting, however, the penalty for violation of Section 106.08(5) to $35,000. Ferre appeals, and the State cross-appeals.

Ferre's claims here are identical to his claims in the court below, and we reject them in their entirety. Thus, we differ from the trial court in one respect only: the trial court having found that Ferre received and failed to return $35,000 in post-election contributions, it was required by Section 106.08(5), Florida Statutes (1981), to order Ferre to pay as a penalty a sum equal to twice the amount of the contributions, that is, $70,000, since such a penalty, in our view, is not unconstitutionally excessive.

We assume for present purposes that the statutes prohibiting the acceptance, and requiring the return, of post-election contributions impact on rights guaranteed by the First Amendment to the United States Constitution, ⁵ that Ferre has standing to challenge their constitutionality, ⁶ and that they significantly limit First Amendment rights rather than merely regulate the time, place and manner of expression. ⁷ However, because even a significant interference with the freedom of political association ⁸ will be sustained where the State, as here, "demonstrates a sufficiently important interest and means closely drawn to avoid unnecessary abridgement of associational freedoms," Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 638, 46 L.Ed.2d 659, 691 (1976); see also Cousins v. Wigoda, 419 U.S. 477, 488, 95 S.Ct. 541, 548, 42 L.Ed.2d 595, 604 (1975); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405, 421 (1963); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, 237 (1960), we conclude that the statutes under attack are not unconstitutional.

What, then, are the sufficiently important or compelling state interests which are advanced by the statutes under consideration? The first, as should be obvious, is the prevention of corruption and the appearance of corruption. Surely, the Legislature could determine that a post-election contribution to a winning candidate could be a mere guise for paying the officeholder for a political favor. At the least, such a contribution, if not in fact corrupt, could be viewed by the public as corrupt. ⁹ As the United States Supreme Court recently noted in Federal Election Commission v. National Conservative Political Action Committee, --- U.S. ----, ----, 105 S.Ct. 1459, 1469, 84 L.Ed.2d 455 (1985), "[t]he hallmark of corruption is the financial quid pro quo: dollars for political favors." Indeed, in Buckley v. Valeo, the Court solely relied on the governmental interest in preventing corruption and the appearance of corruption as its basis for upholding the limitations on the amount of contributions:

"It is unnecessary to look beyond the Act's primary purpose--to limit the actuality and appearance of corruption resulting from large individual financial contributions--in order to find a constitutionally sufficient justification for the $1,000 contribution limitation .... To the extent that large contributions are given to secure political quid pro quos from current and potential office holders, the integrity of our system of representative democracy is undermined ....

"Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in financial contributions."

Buckley v. Valeo, 424 U.S. at 26-27, 96 S.Ct. at 638-39, 46 L.Ed.2d at 692.

A second compelling governmental interest is the goal of allowing the public to be informed before an election of the identities of persons contributing to the campaign of a particular candidate. In the absence of the challenged statutes, a candidate could conceal the identity of supporters until after the election when it is too late for the revelation to be considered by the voters in casting their ballots. ¹⁰ Again, the State's interest in this regard, as recognized in Buckley v. Valeo, is significant:

"[D]isclosure provides the electorate with information 'as to where political campaign money comes from and how it is spent by the candidate' in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office."

Buckley v. Valeo, 424 U.S. at 66-67, 96 S.Ct. at 657, 46 L.Ed.2d at 715 (footnote omitted).

These compelling interests are recognized as being among the most fundamental interests that the government has in regulating the electoral process:

"In the last two decades, Congress and almost all the States have passed laws regulating campaign financing. Analyzing these laws, commentators have delineated the following four legislative goals: stemming the rising costs of campaigns; maximizing the distribution to the public of information about the candidates; equalizing the opportunity of every aspirant to political office; and reducing the potential for corruption by large contributors. Theoretically, a law that achieves these four goals would be considered an ideal regulation of a privately or publicly financed electoral system."

Moynahan, Florida's Campaign Finance Law: A Restoration of the Public's Confidence, 28 U.Fla.L.Rev. 458, 459 (1976) (footnotes omitted).

We think it clear that the challenged statutes are reasonably designed to maximize the distribution of information by allowing the public to be aware of a candidate's financial supporters at a time when such awareness can have an impact at the polls, and reduce the potential for corruption and the appearance of corruption by removing the possibility of the giving of a post-election contribution in return for a political quid pro quo. When we weigh these compelling governmental interests against the minimal impact on First Amendment rights, we can only conclude that the regulations are not constitutionally infirm. Ferre, however, argues that Sadowski v. Shevin, 345 So.2d 330 (Fla.1977), dictates a contrary result. There, the Florida Supreme Court invalidated a statute that precluded a candidate from making major political expenditures prior to qualifying for office. ¹¹ We find Sadowski plainly distinguishable from the present case. First, the statute in Sadowski, being directed to expenditures, was a much more severe intrusion into First Amendment rights than are the present statutes. Indeed, this very distinction between expenditures, as in Sadowski, and limitations on contributions, as here, formed the basis for the Court in Buckley to find unconstitutional limits on expenditures by candidates, while upholding limits on contributions. See Federal Election Commission v. National Conservative Political Action Committee, 53 U.S.L.W. at 4296.

"[A]lthough the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions."

424 U.S. at 23, 96 S.Ct. at 636, 46 L.Ed.2d at 690.

Second, none of the compelling governmental interests which support the statutes here under consideration were involved in Sadowski, and, indeed, the governmental interest advanced in support of the statute in Sadowski--to prevent less than serious candidates from seeking office--was found not to be served by the statute limiting expenditures.

Ferre also asserts that the governmental interests could be...