Stoner v. Fortson

• Decision Date: 02 August 1974
• Docket Number: Civ. A. No. C74-1300A.
• Citation: 379 F. Supp. 704
• Parties: J. B. STONER v. Ben W. FORTSON, Jr., Individually and as Secretary of State of Georgia; and Arthur Bolton, Individually and as Attorney General of Georgia.
• Court: U.S. District Court — Northern District of Georgia

379 F. Supp. 704

J. B. STONER v. Ben W. FORTSON, Jr., Individually and as Secretary of State of Georgia; and Arthur Bolton, Individually and as Attorney General of Georgia.

Civ. A. No. C74-1300A.

United States District Court, N. D. Georgia, Atlanta Division.

August 2, 1974.

J. B. Stoner, Marietta, Ga., pro se.

Arthur K. Bolton, Atty. Gen., H. Andrew Owen, Jr., Asst. Atty. Gen., Atlanta, Ga., for defendant.

Before BELL, Circuit Judge, and O'KELLEY and HENDERSON, District Judges.

O'KELLEY, District Judge:

This action was heard before a court of three judges pursuant to 28 U.S.C. §§ 2281 and 2284, presenting the question of whether the Campaign Financing Disclosure Act hereinafter "the Act" enacted by the Georgia General Assembly in 1974 requiring candidates for certain offices, inter alia, to disclose the names and addresses of contributors to their campaigns, is violative of the United States Constitution. This court has jurisdiction under 42 U.S.C. § 1983; 28 U.S.C. §§ 2201, 2281, and 2284.

The plaintiff in this case is J. B. Stoner, a candidate for the office of Lieutenant Governor of Georgia, who alleges that the Act is unconstitutional on three grounds: (1) It violates Article I, Section 9 of the Constitution, being an ex post facto law; (2) it violates the fourteenth amendment's equal protection clause; and (3) it violates the fourteenth and first amendment rights of free speech and association.

The Act in question was enacted by the Georgia General Assembly for the declared purpose of furthering "its responsibility to protect the integrity of the democratic process and to insure fair elections" for enumerated offices and "to institute and establish a requirement of public disclosure of campaign contributions and expenditures relative to the seeking of such offices." The Act permits each candidate to have but one campaign committee and requires all contributions to be made directly to the candidate or to that committee. The name and address of the chairman and treasurer of the campaign committee must be filed with the Georgia Secretary of State before the committee may accept contributions, and no contribution may be accepted while there is a vacancy in one of those offices.

Anonymous contributions are prohibited by the Act. The committee and/or candidate must keep detailed records of contributions and expenditures and disclosures must be filed with the Secretary of State giving the amount, name, and mailing address of any person contributing $101 or more during the twelve preceding months (separate contributions of less than $101 knowingly received from a common source are aggregated annually) and the amount, name, and mailing address of any person to whom an expenditure of $101 or more is made (separate expenditures of less than $101 to the same person are likewise aggregated annually). Contributions accepted or expenditures made prior to the effective date of the Act and within the twelve month period covered must be disclosed to the extent the information is shown in the candidate or committee's records or on information otherwise known to them. These reports so made to the Secretary of State are kept available for public inspection and copying and are preserved for a period of five years.

A knowing violation of any of the Act's provisions subjects one to a fine of not more than $5,000 or imprisonment of one year or both.

This Act was initially challenged on various state and federal constitutional grounds (including each ground alleged in the present action) before the Georgia Supreme Court in Fortson v. Weeks, 232 Ga. 472, 208 S.E.2d 68, June 20, 1974, rehearing denied July 9, 1974). In that case the Georgia Supreme Court struck down portions of the Act as violative of the Georgia Constitution and thus eliminated them from the Act. Other provisions were interpreted and construed, but the basics of the Act as set forth above were upheld against both state and federal constitutional attacks. Mr. Stoner was not a party to that action, and on Friday, June 28, 1974, Mr. Stoner sought from this court an order temporarily restraining the enforcement of the provisions of the Act with respect to him. This court issued an order whereby Mr. Stoner was to comply fully with the Georgia law except that his disclosures pursuant to the Act would be mailed to this court in a sealed envelope rather than filed with the Secretary of State, which envelope would be retained pending final disposition of the action, at which time it would either be returned to Mr. Stoner or forwarded to the Georgia Secretary of State depending on the decision of this court.

It was stipulated at oral argument by both parties that the decision would be based on a prayer for a permanent injunction rather than a temporary one and would be considered as if the defendants had filed a motion to dismiss the action.

The defendants did subsequently file two separate motions to dismiss raising numerous grounds. The defendants did not move to dismiss on the ground that the entire complaint failed to state a claim upon which relief could be granted, but from the stipulation at oral argument, the court will consider this case as if such a motion had been made.

STANDING

The first issue this court must face is plaintiff's standing to assert the constitutional rights presented. In his complaint plaintiff asserts his right to bring this action on the ground that he is a candidate for the office of Lieutenant Governor of Georgia in the Democratic primary. At first there might appear to be problems under Moose Lodge v. lrvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) and McGowan v. Maryland, 366 U.S. 420, 81 S.Ct 1101, 6 L.Ed.2d 393 (1961) since in addition to contending the classification of offices covered by the Act denied him equal protection, plaintiff also contends that his contributors' first amendment rights of free speech and association are infringed upon. Under Moose Lodge and McGowan it is settled plaintiff can only raise his own constitutional rights. Plaintiff contends he has standing under NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), where the N.A.A. C.P. was allowed to assert the same rights for its members. At oral argument, in answer to a question from this court, plaintiff acknowledged that he had made contributions and planned future contributions to his own campaign. This court feels that this fact puts plaintiff in the class of contributors with a concurrent right to assert the first amendment rights of such contributors. Also, while plaintiff is not an association such as the N.A.A.C.P. with the same nexus with its members, nevertheless, the Supreme Court recognized in NAACP v. Alabama that "the reasonable likelihood that the NAACP itself through diminished financial support and membership may be adversely affected if production is compelled is a further factor pointing towards our holding that petitioner has standing . . . ." Id. at 459-460, 78 S.Ct. at 1170. This reasoning applies equally well to the case sub judice. We hold that plaintiff has standing to raise the constitutional issues before this court for the reason that he is, in fact, a contributor coupled with the fact there is a reasonable likelihood his financial support will be diminished. Thus, plaintiff has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues. . . ." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). See also Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

EX POST FACTO

The original tenor of plaintiff's first contention was that since prior contributors might not have chosen to contribute if their names were to be disclosed, a law passed subsequent to the contribution requiring disclosure of such prior contribution was ex post facto. Of course, an ex post facto law is one that either "makes an action done before the passing of the law, and which was innocent when done, criminal . . . or aggravates a crime . . . or changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed . . . ." Love v. Fitzharris, 460 F.2d 382, 384 (9th Cir. 1972) quoting Calder v. Bull, 3 U.S. (3 Dall) 386, 390, 1 L.Ed. 648 (1798). Nothing legal when done is made a crime by this Act. The Georgia Constitution has an even stricter ex post facto clause than does the federal Constitution, see Ga.Code Ann. § 2-302, Const. art. I, § III, par. 2, also prohibiting retroactive laws; however, the Georgia Supreme Court found no violation of this provision by the Act. See Fortson v. Weeks, supra. Nevertheless, this issue is moot in the case sub judice. At the hearing plaintiff disclosed that he had received no contributions prior to the date the Act was passed; therefore, there is no question of his having to disclose such contributions, and no ruling on this issue is made.

EQUAL PROTECTION

Plaintiff next contends that the Act deprives him of equal protection of the laws inasmuch as it "applies to certain State Offices, such as Lieutenant Governor, but does not apply to Judges of the Georgia Supreme Court or any other State Courts." In addressing the equal protection question, the classification challenged must first be delineated by the court so that the proper standard of judicial scrutiny will be applied. Cases involving equal protection issues reveal two general standards to be used by the courts in making their determination: (1) The "reasonableness" or "rational basis test" where a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it," McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). The reasoning under this test is that legislatures are presumed to have legislated within the limits of the constitution even though there may be some inequality. See also McDonald v....