Wetherington v. Adams, TCA 1408.

Decision Date29 January 1970
Docket NumberTCA 1408.
Citation309 F. Supp. 318
PartiesGary Lee WETHERINGTON, Plaintiff, v. Tom O. ADAMS, individually, and as Secretary of State of Florida, and as Commissioner of Elections, Defendant.
CourtU.S. District Court — Northern District of Florida

Gary Lee Wetherington, pro se.

Earl Faircloth, Atty. Gen. for the State of Florida, for defendant.

Before DYER, Circuit Judge, and KRENTZMAN and ARNOW, District Judges.

OPINION AND ORDER

ARNOW, District Judge:

Complaint was filed by Plaintiff, the thrust of which seeks declaratory judgment that Chapter 99, Laws of Florida, Subsection (1) of Section 99.092, as amended by the 1967 Legislature, violates the Fourteenth Amendment of the Constitution of the United States. Jurisdiction was sought to be invoked under 28 U.S.C.A. § 1343 and 42 U.S.C.A. § 1983, and there was requested the convening of a three judge district court under 28 U.S.C.A. § 2281. Filed with the complaint was a motion for temporary restraining order and preliminary injunction directed to the Defendant Secretary of State of Florida in his capacity as Commissioner of Elections. Motion was filed by the Defendant to dismiss the complaint on the ground, among others, of its failure to state grounds upon which relief can be granted.

The district court, without convening a three judge court, considered the complaint and dismissed it for failure to state a claim upon which relief could be granted. On appeal, United States Court of Appeals for the Fifth Circuit reversed, 406 F.2d 724, saying its consideration by a three judge district court was required. Following that decision, a three judge district court has been convened, and hearing has been held.

The Florida statute under attack here on constitutional grounds provides in substance that those who seek nomination for political office as candidates are required to pay a stipulated sum as a qualifying fee as a prerequisite to their names being placed upon the ballot. In this instance the Plaintiff alleges that he seeks a seat in the legislature of the State of Florida and the filing fee for that office is $300.00 as a result of the 1967 amendment. Prior to that time, the filing fee for such office was $60.00.

During the time this suit has been pending, the Florida Legislature has increased the legislative salaries to $12,000.00. This increase in salary may require a larger filing fee for nomination for a legislative office in ensuing elections but such result would not affect the issues that are pending before this Court.

Plaintiff urges that the $300.00 requirement imposes an unconstitutional condition upon him as a prospective candidate, i.e., it establishes the necessity for money and is, therefore, discriminatory against those without the necessary funds. He contends this is a denial of his constitutional rights due to his lack of wealth. The attack is twofold: (1) against any filing fee at all, and, alternatively (2) against the $300.00 filing fee in this instance as excessive. He contends violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

With the Legislature's raising the salary, the contention of excessiveness of the filing fee may be given short shrift.1 Even without that action on its part, however, it can be, and is, said, as a matter of law, that the size of the fee is not such as to raise any constitutional question of intentional or purposeful discrimination, or of unreasonableness, in violation either of the equal protection clause, or of the due process clause of such amendment. Were it, under the statute, raised to 5% of the annual salary, even more clearly no such constitutional question would be presented.

There remains the issue presented by Plaintiff whether the Florida Statutes, in requiring any filing fee for nomination of candidates, violates the due process clause, or the equal protection clause, of the Fourteenth Amendment to the Constitution of the United States.

The Supreme Court in 1943 put the Plaintiff's due process clause argument to rest by holding that "an unlawful denial by state action of a right to state political office is not a denial of a right of property or of liberty secured by the due process clause." Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 400, 88 L.Ed. 497 (1943). Although there have since that time been significant developments in judicial construction of the due process clause, it remains reasonable to assume, and hold, that, so long as it is reasonable, a filing fee as a precondition to candidacy for nomination to state office in a political party primary would not be violative of the due process clause. In the first place, it is difficult to perceive a "property right" in a state-created office aside from that of the state's citizens generally. Additionally, the filing fee precondition does not constitute a total denial to persons desirous of candidacy of having votes cast for them and counted; they can run as write-in candidates by following the non-cost procedures of Fla.Stat. § 99.023 (1967), F.S.A., which result in consideration as normal fee-paying candidates except that the names do not appear on the official ballot.

It is the majority position that reasonable fees may be imposed. 25 Am. Jur.2d Elections § 182. This is the position taken by Florida. Bodner v. Gray, 129 So.2d 419, 89 A.L.R.2d 860 (Fla. 1961).

Snowden v. Hughes, supra, did not dispose of the Plaintiff's equal protection argument. The Plaintiff here asserts, rather than as a violation of state law, the state's law itself classifies on the basis of wealth; no such argument was asserted in Snowden. The Plaintiff seeks to establish himself in a position such as that of the petitioners in Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).

"In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and interests of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). In considering the facts and circumstances of the filing fee requirements, this Court must consider the Florida election laws in their totality.

The Florida election laws are divided into party nominations for election and general elections by nominated candidates for office, as are the laws of virtually all the states. Party nomination may be won...

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21 cases
  • Lubin v. Panish 8212 6852
    • United States
    • U.S. Supreme Court
    • March 26, 1974
    ...820, 25 L.Ed.2d 81 (1970), and to prevent the overwhelming of voting machines—the modern counterpart of ballot flooding, Wetherington v. Adams, 309 F.Supp. 318, 321 (NDFla.1970). A majority of States have long required the payment of some form of filing fee,3 in part to limit the ballot and......
  • Socialist Workers Party v. Welch
    • United States
    • U.S. District Court — Southern District of Texas
    • October 27, 1971
    ...There has been disagreement among the Courts in assessing the interests of the states in regulating elections. In Wetherington v. Adams, 309 F.Supp. 318 (N.D.Fla.1970), the Court, applying the less stringent "rational basis" test, held that there was a reasonable state interest to be protec......
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    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • February 5, 1970
  • Carter v. Dies
    • United States
    • U.S. District Court — Northern District of Texas
    • December 21, 1970
    ...these fees any more palatable. Williams v. Rhodes, supra, and Jenness v. Little, supra. The Court is aware of the fact that in Wetherington v. Adams, supra, filing fees for a primary election were upheld as constitutional. The plaintiff in that case was a candidate and the issues were decid......
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