Plante v. Gonzalez

Decision Date30 June 1978
Docket NumberNo. 77-3109,77-3109
Citation575 F.2d 1119
Parties3 Media L. Rep. 2590 Kenneth A. PLANTE et al., Plaintiffs-Appellants, v. Larry GONZALEZ, etc., et al., Defendants-Appellees. Jon C. THOMAS, Plaintiff-Appellant, v. Larry GONZALEZ, etc., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Tobias Simon, Miami, Fla., Charles L. Carlton, Lakeland, Fla., Richard C. McFarlain, Tallahassee, Fla., Nelson, Hesse, Cyril, Weber & Sparrow, Sarasota, Fla., for Plante, et al.

William E. Williams, Tallahassee, Fla., for Thomas.

Douglas C. Kearney, Asst. Atty. Gen., James D. Whisenand, Deputy Atty. Gen., Tallahassee, Fla., for defendants-appellees.

Parker D. Thomson, Miami, Fla., for amicus curiae League of Women Voters of Fla., Inc.

Appeals from the United States District Court for the Northern District of Florida.

Before WISDOM, GODBOLD, and CLARK, Circuit Judges.

WISDOM, Circuit Judge:

"(W)ith the decline of religion the law has moved to take over the preventive as well as the punishing function. 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." 1

In 1976 the voters of Florida approved the "Sunshine Amendment" to the state constitution requiring that certain elected officials make public detailed information about their personal finances. Five state senators sued the officials charged with administering the financial disclosure provisions of the amendment. 2 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.

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 administrative body regulated official ethics, and the Act required no financial disclosure.

Political scandals rocked Florida in the seventies. 3 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 interests. Fla.Stat.Ann. § 112.3145 (West Supp.1978). The 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: 4 (1) all sources of income exceeding five percent of gross income for the period covered; (2) all sources of income to a business entity exceeding 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 percent interest, and a general description of any intangible personal property worth more than ten percent of the official'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 statements 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.

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 "Full and public disclosure of financial interests 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:

of conflicts of interest. See Appendix B. The part particularly germane to this appeal is subsection (h)(1):

a. A copy of the person's most recent federal income tax return; 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 subsection (f) (the statutorily created Commission on Ethics), and such rules shall include disclosure of secondary sources of income."

Fla.Const. art. II, § 8(h)(1). The constitutional amendment applies to elected constitutional officials, candidates for such offices, and any other "public officers, candidates, and employees" as determined by law. Fla.Const. art. II, § 8(a). 5

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 fourteenth 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 foundered, because the rights they asserted were not "fundamental" 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. Administrator 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. 6

The senators raise two substantial constitutional questions. 7 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 choice. While many state courts have ruled on the constitutionality of similar plans, this appears to be a case of first impression Before we turn to the merits of the case, one question 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 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; 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 v. 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 appeal 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

                for the lower federal bench.  8 We will deal with the second, less difficult, issue first

"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, inferior federal courts had best adhere to the view that if the court has...

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