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.
August 13, 1985.
478 So. 2d 1077
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
Ferre responded by asserting that (1) Florida‘s statutes prohibiting a candidate
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
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 association8 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
“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, 470 U.S. 480 (1985).
“[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.”
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 satisfied by less restrictive means. His argument here, however, is limited to the singular proposition that the goal of preventing corruption and the appearance of corruption can be achieved by less intrusive means. The argument ignores the other compelling governmental interest which justifies the statute.
We turn now to Ferre‘s contention that since
Lastly, we consider the State‘s contention on its cross-appeal that the trial court, having found that Ferre received and failed to return $35,000 of contributions, erred in not imposing a $70,000 penalty under
“Any person who knowingly and willfully violates the provisions of this section shall, in addition to any other penalty prescribed by this chapter, pay to the State a sum equal to twice the amount contributed in violation of this chapter. Each campaign treasurer shall pay all amounts contributed in violation of this section to the State for deposit in the General Revenue Fund.”
Without dispute, this provision is mandatory in nature, since the word “shall,” when used in such a statute, carries such a connotation. See Neal v. Bryant, 149 So.2d 529 (Fla. 1962); Florida Tallow v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970). The trial court, however, finding that “the mandatory imposition of the penalty as requested by the State, as applied to the facts in this case, would be unreasonably harsh and oppressive and would bear no reasonable relationship to the offense committed or the wrong sought to be redressed,” imposed a civil penalty against defendant in the amount of $35,000, the exact amount of money unlawfully accepted by defendant.
Ferre does not contend that the provision is not mandatory. Instead, he argues that the imposition of such a fine would be unconstitutionally excessive. We think, however, that when the fine imposed is, as it was below, an amount equal to the amount of money unlawfully accepted and retained, the fine does no more than put the defendant in the same position as he would have been in had he not violated the law. In essence, then, such a penalty is not a penalty at all. In contrast, the penalty provided for by statute of a sum equal to twice the amount of money unlawfully accepted and retained clearly bears a rational
In Amos v. Gunn, 84 Fla. 285, 364, 94 So. 615, 641 (1922) (on rehearing), the court announced that a fine is not “excessive in violation of the Constitution unless it is plainly and undoubtedly in excess of any reasonable requirements for redressing the wrong.” Clearly, the fine here is not in excess of any reasonable requirement for redressing the wrong. Indeed, the constitutional propriety of a fine that doubles the amount of money involved in the violation of a law has already been recognized. In Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), the plaintiff in error was found to have sold spirituous, vinous and malt liquors without having paid a required license tax of $300.00. The law set the penalty for such a violation “at not less than double the amount required for such license.” 26 Fla. at 74, 7 So. at 372. The trial court imposed a fine of $900.00. On appeal, the court stated:
“Under the statute, the judge could not fine the accused less than double the tax required for a license to sell spirituous, vinous, and malt liquors, $600; but he could impose a fine in excess of that amount, provided the fine imposed did not violate the bill of rights, which prohibits ‘excessive’ fines. In the case of Frese v. State, 23 Fla. 267, 2 South. Rep. 1, it is held that a fine of $900, under the same statute that the plaintiff in error was convicted under, was not excessive; and we so hold in this case.”
Surely, if a statute requiring a minimum fine of twice the amount of money involved in an unlawful act is proper, and if, under that statute, fines that triple the amount of money are upheld, there can be no question that the statute here does not require the imposition of an excessive fine under the Florida Constitution.12
For the reasons given, the judgment of the case is remanded to the trial court to modify the penalty of $35,000 to $70,000, and, as modified, the judgment is affirmed.
Affirmed in part; reversed in part, and remanded with directions to modify the penalty.