1119

Kenneth A. PLANTE et al., Plaintiffs-Appellants, v. Larry GONZALEZ, etc., et a!., Defendants-Appellees.

Jon C. THOMAS, Plaintiff-Appellant, v. Larry GONZALEZ, etc., et al., Defendants-Appellees.

No. 77-3109.

United States Court of Appeals, Fifth Circuit.

June 30, 1978.

Rehearing and Rehearing En Bane Denied Aug. 31,1978.

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."^{Footnote 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.^{Footnote 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.

I.

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.^{Footnote 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: ^{Footnote 4} 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. (1) all The amendment, now Article II, § 8 of the Florida Constitution, covers several as-

pects of conflicts of interest. See Appendix B. The part particularly germane to this appeal is subsection (h)(l): "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: 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 indepen dent commission established in subsec tion (f) [the statutorily created Com mission on Ethics], and such rules shall include disclosure of secondary sources of income." Fla.Const. art. II, § 8(h)(l). 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). ^{Footnote 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. ^{Footnote 6}

The senators raise two substantial constitutional questions. ^{Footnote 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

for the lower federal bench. ^{Footnote 8}

We will deal with the second, less difficult, issue first.

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 I11.2d 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 I11.2d 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 "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 branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise'

422 U.S. at 344, 95 S.Ct. at 2289. In Hicks the Court ruled that a three judge district court erred by not considering itself bound on the constitutionality of California's obscenity law by an earlier law by an earlier Supreme Court's dismissal of a challenge to that Act. ^{Footnote 9}

The significance of Hicks was clarified by the Court in Mandel v. Bradley, 1977,  432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199. In Mandel the lower court struck down Maryland's law regulating access to the ballot. The lower court relied on the Supreme Court's dismissal of Tucker v. Salera, 1976, 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727, aff'g, E.D.Pa.1975, 399 F.Supp. 1258. This reliance, the Court held, was misplaced: "Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. After Salera, for example, other courts were not free to Conclude that the Pennsylvania provision invalidated was nevertheless constitutional.

The precedential significance of the summary action in Salera, however, is to be assessed in the light of all of the facts in that case; and it is immediately apparent that those facts are very different from the facts of this case." 432 U.S. at 176, 97 S.Ct at 2240, 53 L.Ed.2d at 205. The different facts in Mandel were the differences between the Pennsylvania and Maryland statutes. Here, the Supreme Court has upheld disclosure provisions in Washington, Illinois, and Maryland statutes. Each statute differs from the others; each differs from the Sunshine Amendment. The dismissals by the Supreme

Court caution us against finding the Amendment unconstitutional. See Mandel v. Bradley,  432 U.S. 173, 179-80, 97 S.Ct.

2238, 2242, 53 L.Ed.2d 199, 206-07 (Justice Brennan, concurring). They did not relieve us of our duty "to undertake an independent examination of the merits". 432 U.S. at 177, 97 S.Ct. at 2241, 53 L.Ed.2d at 205.

We now turn to that task.

II.

The American Civil Liberties Union, as amicus, argues that the amendment unconstitutionally burdens the right to run for office. If the amendment is upheld, the appellants say that they will resign. Other candidates will be deterred from running.

The A.C.L.U. argues that this restriction on political activity equals or exceeds that caused by the filing fees invalidated by the Supreme Court in Lubin v. Vanish, 1974,  415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 and Bullock v. Carter, 1972,  405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92.

The right to run for office is not a "iunaamental" right. The Court has at times protected candidacy as a way to protect the right to vote itself. [T]he Court has not heretofore attached . fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review ... In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.

Bullock v. Carter, 405 U.S. at 142-43, 92 S.Ct. at 856. The Supreme Court has examined such restrictions in at least four contexts: loyalty oaths, Communist Party v. Whitcomb, 1974,  414 U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635; residency and durational requirements, McCarthy v. Philadelphia Civil Service Comm'n, 1976,  424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (per curiam); Sununu v. Stark, 1975, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435, aff'd mem. D.N.H.1974 (three judge court), 383 F.Supp. 1287; petition requirements for appearing on the ballot, Storer v. Brown, 1974,  415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714; American Party v. White, 1974,  415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744; and filing fees, Lubin v. Panish, 1974,  415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702; Bullock v. Carter, 1972,  405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92. The loyalty oaths and filing fees were invalidated, the residency and durational requirements were upheld, and dispositions of the petition requirements have varied. ^{Footnote 10}

Disclosure requirements may deter some people from seeking office. As the Supreme Court has made clear, however, mere deterrence is not sufficient for a successful constitutional attack. Bullock v. Carter, 1972, 405 U.S. at 142-43, 92 S.Ct. 849. Otherwise, official salary levels or the location of the capital city might furnish the basis for a constitutional attack. The key to this issue is who is excluded. These requirements are not unconstitutional unless "they are so restrictive that they deny a cognizable group a meaningful right to representation". Tribe, American Constitutional Law, § 13-19 (1978). See also Developments in the Law'Elections, 88 Harv.L. Rev. 1111, 1218, 1176-77 (1975). The loyalty oath cases clearly denied representation to groups with beliefs which could not be squared with the oath involved. The filing fee cases denied access to the ballot to poorly financed candidates. In Bullock the Court concluded that the fees had a "real

and appreciable impact on the exercise of the franchise . . . related to the resources of the voters supporting a particular candidate . . .." 405 U.S. at 144, 92 S.Ct. at 856. The connection with the group of poor voters prompted the scrutiny the law received. The petition requirements also struck at a group of voters, those outside the two major parties.

In contrast, the disclosure requirements do not limit the choices of any particular group of voters. There is no reason to believe that those most sensitive to their privacy will be Republicans or Democrats, liberals or conservatives, blacks or whites. Scrutiny is inappropriate as long as the requirement leaves "a sufficient number of candidates eligible to represent the views of any particular constituency", Developments in the Law'Elections, 88 Harv.L.Rev. 1111, 1218 (1975). As will be discussed in more detail below, this scheme does respond to important state interests in a reasonable way. Absent scrutiny, it is therefore constitutional. See Note, Fighting Conflicts of Interest in Officialdom: Constitutional and Practical Guidelines for State Financial Disclosure Laws, 73 Mich.L.Rev. 758, 763-68 (1975) [hereafter cited as Fighting Conflicts u of Interest ].

III.

Americans have a constitutional ngni to privacy. The right springs from several of the Bill of Rights amendments, and is incorporated in the due process protected by the fourteenth amendment. ^{Footnote 12}

Griswold v. Connecticut, 1965,  381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. Academic discussion of a right to privacy dates at least to the common law arguments of Louis Brandeis and Samuel Warren in 1890. Brandeis and Warren, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). ^{Footnote 13}

The volume of commentary has increased geometrically since then. ^{Footnote 14}

Yet, "[t]he concept of a constitutional right of privacy still remains largely undefined". Kurland, The Private I, The University of Chicago Magazine 7, 8 (Autumn 1976), quoted in Whalen v. Roe, 1977,  429 U.S. 589, 599 nn.24, 97 S.Ct. 869, 51 L.Ed.2d 64. In Whalen the Court made

an effort to unsnarl some of the tangled strands of privacy. "The cases sometimes characterized as protecting 'privacy' have in fact involved at least two different kinds of interests.

One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." 429 U.S. at 598-600, 97 S.Ct. at 876. The senators argue that the Sunshine Amendment violates both strands of their privacy.

We shall consider first the interest in independent decision-making, which might be called an interest in autonomy, and then consider the interest in avoiding disclosure, or confidentiality.

A.

The senators urge that disclosure of personal financial information adversely affects their familial affairs. The nature of financial investments, their wisdom, worth or desirability are matters decided by family councils for the family's benefit. Whether they should be exposed or protected from exposure is a matter of great family concern. Media publication of disclosed wealth can bring mischief, even kidnappers or other criminal attention to an office holder. Financial privacy is and ought to be protected from governmental intrusion in the manner that marital and family privacy is protected. Plante complaint, f 12, app. at 5.

The senators are well-advised to try to tie their charges to domestic matters. The Supreme Court has characterized the autonomy branch of privacy as involving "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States' power to substantively regulate conduct." Paul v. Davis, 1976,  424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405. See also Paris Adult Theatre I v. Slaton, 1973,  413 U.S. 49, 65-66, 93 S.Ct. 2628, 37 L.Ed.2d 446. When the Supreme Court has applied this analysis, it has carefully examined the state actions to determine whether they were the least restrictive means to reach a compelling goal. ^{Footnote 15}

After doing so, it has voided regulations concerning contraception, Griswold v. Connecticut, 1965,  381 U.S. 479, 85 S.Ct. 1678,14 L.Ed.2d 510; abortion, Roe v. Wade, 1973,  410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; and miscegenation, Loving v. Virginia, 1967,  388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010. It has also adopted, as reflecting this analysis, the holdings of earlier cases concerning education of children, Pierce v. Society of Sisters, 1925,  268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 1923,  262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, and compulsory steriliza tion, Skinner v. Oklahoma, 1942,  316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. See Paris Adult Theatre I v. Slaton, 413 U.S. at 6566, 93 S.Ct. 2628; Whalen v. Roe, 429 U.S. at 600 n.26, 97 S.Ct. 869. Our question is whether the senators' argument fits within this field.

The parties suggest two different tests for determining whether their privacy interest is subject to this protection. They offer the formulation from Meyer v. Nebraska, 1923,  262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 that "While this Court has not attempted to define with exactness the liberty thus guaranteed [by the fourteenth amendment] . . . [wjithout doubt, it de-

notes not merely the freedom from bodily restraint but also the right of the individual . . ., generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." The defendants, and the district court, prefer the language the Court used in Palko v. Connecticut, 1937,  302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, concerning rights "implicit in the concept of ordered liberty". Neither standard appears helpful. Both authorities are of questionable strength. Meyer comes to us from the heyday of substantive due process analysis. Palko's specific holding was overruled in Benton v. Maryland, 1969,  395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. Its broader significance is as a statement of the ultimately unsuccessful position in the "incorporation debate" concerning the fourteenth amendment. See Adamson v. California, 1947,  332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (especially Frankfurter, J., concurring, and Black, J., dissenting) and Duncan v. Louisiana, 1968,  391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (Black, J., concurring). See generally, G. Gunther, Constitutional Law 506-47 (9th ed. 1975). ^{Footnote 16}

Even if these statements maintain their full precedential weight, their words provide no easy answers. Therefore, we turn to cases concerning financial privacy, and to the considerations which support the autonomy branch of the right to privacyThe senators rely on language from Justice Powell's concurring opinion in California Bankers Ass'n v. Shultz, 1974,  416 U.S. 21, 78, 94 S.Ct. 1494, 39 L.Ed.2d 812. California Bankers Ass'n was a challenge to recordkeeping and disclosure requirements imposed by the Bank Secrecy Act of 1970, 12 U.S.C. §§ 1829b, 1730d, 1951-59. The Secretary of the Treasury was authorized to require banks to keep records of and report domestic and international transactions. The Court avoided most of the first and fifth amendment challenges to the Act, and concentrated on the fourth amendment arguments. Justice Powell, joined by Justice Blackmun, concurred in the opinion of the Court upholding the requirements. He was troubled, however, by the Act's domestic reporting requirements. These empowered the Secretary to require reports from financial institutions of domestic monetary transactions and the parties involved. Justice Powell concurred because the regulations promulgated by the Secretary required reporting only currency transactions of more than $10,000. He found the requirement unobjectionable, but only because it was narrowed by the regulations. "A significant extension of the regulations' reporting requirements, however, would pose substantial and difficult constitutional questions for me. In their full reach, the reports apparently authorized by the open-ended language of the Act touch upon intimate areas of an individual's personal affairs. Financial transactions can reveal much about a person's activities, associations, and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy." 416 U.S. at 78-79, 94 S.Ct. at 1526.

This language was quoted with approval by the majority of the Court in Buckley v.

Valeo, 1976,  424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659. "Moreover, the invasion of privacy of beliefs may be as great when the information concerns the giving and spending of money as when it concerns the joining of organizations, for 'financial transactions can reveal much about a person's activities, associations, and beliefs'." [emphasis added] 424 U.S. at 66, 96 S.Ct. at 657. Justice Powell's discussion in California Bankers may have concerned privacy issues pure and simple. His mention of "intimate areas of an individual's personal affairs" suggests as much. The majority in Buckley, however, used that language in a different context.

Both the language quoted above and the context from which.it was taken show that the Court's concern was with the effects of disclosure on the first amendment freedom of association. The Court believed that the case potentially raised issues similar to those raised in N.A.A.C.P. v. Alabama ex rel Patterson, 1958,  357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. That is a constitutional question we address below. It is not a question concerning the autonomy branch of the right to privacy. Although the Cou