CopyCited 21 times | Published | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 25319, 2001 WL 1509579
...rida
(November 28, 2001)
Before BIRCH, COX and ALARCON*, Circuit Judges.
BIRCH, Circuit Judge:
Florida Right to Life Committee, Inc., (“FRL”)1 appeals from the district
court’s final judgment upholding § 106.08(5), Florida Statutes, a campaign finance
provision that precludes political candidates from making financial contributions to
certain organizations....
...abortion, euthanasia, and infanticide. To raise funds for its endeavors, FRL desired
to obtain contributions from candidates for public office in Florida. Candidates,
however, refrained from contributing because of concern over the application of §
106.08(5), Florida Statutes, which provides in part that “[c]andidates ....
...make contributions to any religious, charitable, civic, or other causes or
*
Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
1
Plaintiff Florida Right to Life Political Action Committee did not challenge the portion
of § 106.08(5), Florida Statutes, at issue here and consequently is not a party to this appeal.
2
organizations established primarily for the public good.”2
This and other problems experienced under state campaign finance laws,
Chapter 106, Florida Statutes, led FRL to bring this 42 U.S.C. § 1983 action. FRL
facially challenged § 106.08(5) and several additional Florida campaign finance
provisions as violative of its First and Fourteenth Amendment rights of expression
and association....
...After commencing this suit, FRL moved for partial summary judgment. The
district court granted FRL’s motion as to some of Florida’s campaign finance
provisions.3 The district court, however, denied FRL’s motion as to the ban on
contributions from candidates under §
106.08(5) because the court ruled that the
provision was susceptible to a narrowing construction. Following a bench trial on
other issues not raised here, the district court upheld §
106.08(5) as constitutional
2
Florida does not dispute that FRL is an organization established primarily for the public
good under §
106.08(5).
3
One of the provisions upon which the district court granted summary judgment in FRL’s
favor was §
106.011(1), which provides the definition of “political committee” under Florida
campaign finance law....
...3
“[p]ursuant to the reasoning set forth in [its summary judgment] Order.” R6-161-
24. Upon entry of final judgment, FRL timely commenced this appeal to challenge
the district court’s ruling with regard to § 106.08(5).
II. DISCUSSION
A. Justiciability
Prior to determining the constitutionality of § 106.08(5), Florida Statutes, we
must address threshold justiciability issues....
...nt, and (3) that
the injury is likely to be redressed by a favorable ruling.” Harris v. Evans,
20 F.3d
1118, 1121 (11th Cir. 1994) (en banc).
On appeal, Florida argues that FRL has not proven an actual or threatened
injury with regard to §
106.08(5). Florida contends that §
106.08(5) forbids
candidates from making contributions to organizations like FRL, but it does not
forbid the organizations themselves from soliciting or receiving such contributions.
Florida concludes that because §
106.08(5) places prohibitions on the conduct of
candidates, not the organizations, the provision only affects the rights of candidates.
Therefore, in Florida’s view, FRL cannot challenge §
106.08(5) unless it meets the
strict requirements for third-party standing, a doctrine that in rare circumstances
allows a party to premise its claim for relief on the constitutional rights of another
party. Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 629,
111 S. Ct. 2077,
2087 (1991).
We disagree. Third-party standing is unnecessary here because FRL
premises its § 1983 suit on the violation of its own constitutional rights caused by §
106.08(5)....
...Amendments, not on the separate and distinct constitutional rights of political
candidates.4 Thus, Florida’s argument based on third-party standing is misplaced.
Furthermore, FRL has demonstrated that it is suffering actual injury caused
by § 106.08(5). The record contains a letter sent to FRL by Katherine Harris, a
candidate for Secretary of State of Florida at the time,5 in which she explains that
she desires to contribute to FRL but has refrained because of § 106.08(5). This
letter shows that FRL is losing donations because of the provision and thus is
suffering an economic injury. This injury, in turn, will be redressed if § 106.08(5)
is held facially unconstitutional because candidates will no longer fear prosecution
and will proceed with their donations....
...2000) (noting
that “[t]he requirements for standing are somewhat more lenient for facial challenges to statutes
on the grounds of overbreadth” in the First Amendment context). Therefore, FRL could have
brought a First Amendment facial challenge to § 106.08(5) under the overbreadth doctrine even
if its own constitutional rights had not been violated, as long as FRL had established that it
suffered some type of injury caused by the challenged statute....
...1997).
Despite the low threshold for proving ripeness in the First Amendment
context, Florida argues that FRL’s claim is not ripe for two reasons. First, Florida
asserts that FRL’s contention that candidates would make contributions to the
organization absent § 106.08(5) is too speculative. Second, Florida asserts that
because FRL’s conduct is not directly regulated by § 106.08(5), FRL does not face
enforcement action if it chooses to solicit or receive candidate contributions....
...It
follows, according to Florida’s reasoning, that FRL will not suffer any hardship if
we withhold judicial consideration from its claim.
We disagree with Florida’s crabbed ripeness analysis. FRL’s assertion that
candidates would make contributions absent § 106.08(5) is not speculative because
the record substantiates it. As we have explained, the record contains a letter sent to
FRL from candidate Katherine Harris in which she states that she desires to
7
contribute to FRL but has chosen against it because of § 106.08(5). There is no
speculation here because the letter establishes that Florida electoral candidates
would contribute to FRL absent the § 106.08(5) prohibition.6 Indeed, the letter
shows that FRL is suffering actual hardship in the form of economic loss resulting
from foregone candidate contributions.
6
We also note that even though there is no current election and thus no “candidates” at
this time, FRL’s claim is not moot....
...e
expectation that the same complaining party would be subjected to the same action again.”
Weinstein v. Bradford,
423 U.S. 147, 149,
96 S. Ct. 347, 349 (1975) (per curiam). Election
periods are too short to fully litigate the constitutionality of §
106.08(5) before a given election
ends....
...We thus conclude that the present case falls within the contours of the
“capable of repetition, yet evading review” exception to mootness.
8
Moreover, it is far from obvious whether FRL can solicit and receive
candidate contributions prohibited under §
106.08(5) without itself facing the
hardship of criminal and civil penalties. The language found in §
106.19(1)(a) &
(2), which details the penalties for campaign law violations, is unclear on this
point.7 In any event, Florida’s focus on whether §
106.08(5) directly regulates FRL
is beside the point. FRL suffers an immediate injury because, as the Harris letter
demonstrates, §
106.08(5) has led candidates to refrain from contributing to FRL
out of fear of prosecution. This fear has credence because the Florida Election
Commission has taken action against several candidates for making donations. See
Burke, FEC No. 94-066; Waters, FEC No. 96-122. Thus, irrespective of whether §
106.08(5) directly regulates FRL, the record indicates that FRL suffers economic
hardship because of the provision. FRL has established that its claim is ripe, and its
substantive challenge can proceed.
B. Contributions by Candidates under §
106.08(5), Florida Statutes
7
Section
106.19(1)(a) provides that any “person who knowingly and willfully . . .
[a]ccepts a contribution in excess of the limits prescribed by s.
106.08 ....
...Whether an organization like FRL
is subject to these provisions is dependant on the interpretation that Florida courts give to the
“excess of the limits” language contained in §
106.19(1)(a). If that language is meant to limit
civil and criminal penalties to those subsections of §
106.08(5) that deal with contribution price
caps, then FRL does not face liability. A contrary result is reached if the courts interpret the ban
on contributions enunciated in §
106.08(5) as a “limit” on contributions for purposes of §
106.19(1)(a).
9
FRL challenges §
106.08(5), Florida Statutes, as facially unconstitutional
under the First and Fourteenth Amendments. FRL argues that §
106.08(5) should
be interpreted as precluding political candidates from making any donations to
public-minded organizations out of personal or campaign funds, save for in the
three particular circumstances enunciated in the provision. Consequently, FRL
contends that the district court erred in holding that §
106.08(5) can be narrowly
construed to avoid constitutional difficulties by applying the provision only to
candidate contributions made in exchange for political support. Extrapolating from
the district court’s construction, Florida argues that §
106.08(5) should be narrowly
construed as prohibiting candidates from using funds from their campaign account
for personal purposes, as in making personal donations to a charity or other
organization. We agree with FRL’s interpretation of §
106.08(5) because it best
accords with the plain language of that provision.
1. The Plain Language of §
106.08(5)
We review de novo a district court’s interpretation of a statute....
...Moreover, “it is
axiomatic” that in interpreting a statute, “a court must begin with the plain language
of the statute.” United States v. Prather,
205 F.3d 1265, 1269 (11th Cir. 2000).
Accordingly, we turn first to the precise wording of §
106.08(5), which states in
10
relevant part that “[c]andidates . . . may not . . . make contributions to any religious,
charitable, civic or other causes or organizations established primarily for the public
good.” In turn, §
106.08(5) delineates three distinct exceptions to this blanket rule.
First, “it is not a violation ....
...candidate has been a regular donor for more than 6 months.” Third, “[a] candidate
may purchase with campaign funds, tickets, admission to events, or advertisements
from religious, civic, political party, or charitable groups.”
Our reading of the plain language of § 106.08(5) leads us to conclude that the
provision creates a general rule forbidding political candidates from making any
donations out of personal or campaign funds to the organizations referenced therein.
This blanket restriction on donations is then diluted somewhat by the three distinct
exceptions. A wide range of donative options, however, remain forbidden to
candidates. Section 106.08(5) precludes a candidate from placing money in a
church offering plate when she visits for the first time. It precludes a candidate
from contributing to a charity she has just discovered. Indeed, it precludes a
candidate from almost all spontaneous acts of charitable giving. Thus, § 106.08(5)
11
sweeps broadly to curtail the donative impulses of candidates and, conversely, to
curtail the ability of many organizations to solicit and receive candidate donations.
As such, the provision is on a collision course with the First Amendment.
2. The District Court’s Narrowing Construction of § 106.08(5)
To avoid this collision with First Amendment values, the district court
narrowly construed § 106.08(5) and thus rejected FRL’s facial challenge to the
provision....
...facial
challenge,” and, as a federal court, “we must be particularly reluctant to rewrite the
terms of a state statute.” Id. Mindful of these interpretive principles, we turn to the
narrowing construction imposed by the district court upon § 106.08(5).
In ruling that § 106.08(5) passed constitutional muster, the district court
incorporated the reasoning contained in its prior order regarding FRL’s motion for
partial summary judgment....
...limited by the courts of that state to a range of conduct that may be constitutionally restricted.”
Dimmit v. City of Clearwater,
985 F.2d 1565, 1572 (11th Cir. 1993). This principle has no
bearing on the present case, however, because no Florida court has narrowed the scope of
§
106.08(5).
12
“contribution” in §
106.08(5) is subject to the definition of that term contained in §
106.011(3)(a). Section
106.011(3)(a) defines “contributions” as gifts and other
distributions “made for the purpose of influencing the results of an election.”9
Having determined that §
106.08(5) can be read in pari materia with §
106.011(3)(a), the district court had held in its prior order that the provision “is
readily susceptible to a narrowing construction that limits its reach to a contribution
made in exchange for political support.” R5-138-19. Based on its prior
interpretation of §
106.08(5), the court ruled that the provision was constitutional.
In contrast, we conclude that the plain language of §
106.08(5) will not bear the
district court’s narrowing construction.10
Because the district court relied on the definition of “contribution” contained
in §
106.011(3)(a) to conclude that §
106.08(5) was susceptible to a narrowing
construction, we must address the applicability of the former to the latter provision.
Section
106.011(3)(a) limits the meaning of “contribution” to gifts made in order to
influence election results,...
...or anything of value, including
contributions in kind having an attributable monetary value in any form, made for the purpose of
influencing the results of an election.”
10
Because we determine that contributions in the context of § 106.08(5) cannot be
circumscribed to include only donations made for the purpose of influencing an election
outcome, we do not reach the question of whether such a construction would itself render the
provision unconstitutional under the First Ame...
... therein apply to Chapter 106 “unless the context clearly indicates otherwise.”11 We
decide that context clearly does indicate that the definition of “contribution”
provided in §
106.011(3)(a) cannot be applied to the use of that term in §
106.08(5)
without effectively rewriting the latter provision.
We turn first to the interpretive canon of expressio unius est exclusio alterius
under which “the expression of one thing implies the exclusion of another.”
Federal Reserve Bank of Atlanta v. Thomas,
220 F.3d 1235, 1238 (11th Cir. 2000).
Under this canon, the three exceptions expressed in §
106.08(5) for certain “gifts of
money” and “donations” made by candidates imply the exclusion of other possible
types of donations from that list of exceptions. Yet, if the definition of
“contribution” contained in §
106.011(3)(a) applies to §
106.08(5), the latter
provision necessarily would contain a blanket exception for all donations that are
made for altruistic purposes rather than for the purpose of influencing election
results. Such a blanket exception would fly in the face of the three explicit
exceptions articulated in §
106.08(5), which under the expressio unius canon imply
the exclusion of all other possible exceptions.
It is also telling that the Florida legislature chose the terms “gifts of money”
11
Florida courts have refused t...
...context militates against it. See Ferre v.
State,
478 So.2d 1077, 1081-82 (Fla. Dist. Ct. App. 1985), aff’d
494 So.2d 214 (Fla. 1986).
14
and “donations” in articulating the three exceptions to §
106.08(5). If the general
rule under §
106.08(5) is that candidates cannot make contributions to certain
organizations for the purpose of influencing election results, there would be no need
to refer generally to “gifts of money” and “donations” in the exceptions to that rule.
That is, if the definition of “contribution” in §
106.08(5) itself does not encompass
ordinary gifts of money and donations, it would have been unnecessary to articulate
exceptions for types of contributions that already are exempted in the first instance
as a matter of definition. Otherwise the three exceptions listed in §
106.08(5) thus
would be entirely superfluous, and we look askance at interpretations that render
statutory language devoid of purpose and effect. In re Griffith,
206 F.3d 1389,
1393 (11th Cir. 2000).
Conversely, if we read the §
106.011(3)(a) definition of “contribution” in pari
materia with §
106.08(5) but interpret the three exceptions of §
106.08(5) so as not
to render them superfluous, we end up with a worse result still. If “contribution” in
§
106.08(5) only refers to candidate donations that are meant to influence election
results, then, to avoid the superfluousness concern, we would have to construe the
three exceptions as carving out a set of transfers in which a candidate can make
donations aimed at influencing election results....
...If
Florida has an interest in precluding candidates from making donations to influence
election results, it would be illogical for the state to exempt donations made for
such a purpose just because, for example, the candidate made the donation to an
organization in which he is a member. We refuse to interpret §
106.08(5) in this
manner when we can avoid this absurd result by concluding that the definition of
“contribution” contained in §
106.011(3)(a) does not apply....
...See United States v.
6640 S.W. 48th St.,
41 F.3d 1448, 1452 (11th Cir. 1995) (noting that a statute
should be construed in a manner that avoids an absurd result).
For the foregoing reasons, we conclude that the meaning of “contribution” in
§
106.08(5) cannot be narrowly construed as limited to the definition of that term
found in §
106.011(3)(a).12 To do so would “rewrite the clear terms” of §
106.08(5). See Dimmit,
985 F.2d at 1572. We instead interpret “contribute” more
generally as meaning to give or to donate. See The Random House Dictionary 442
12
Our conclusion is buttressed by the fact that in §
106.08(5) enforcement actions brought
before the Florida Election Commission, the Commission itself has not limited the scope of
“contribution” to include only donations made with the purpose of influencing election results.
See Burke, FEC No....
...1987) (defining “contribute” as “to give . . . to a common supply, fund, etc.,
as for charitable purposes”). Because the district court premised its interpretation
on the definition of “contribution” found in §
106.011(3)(a), we conclude that the
court erred in finding that §
106.08(5) was susceptible to a narrowing construction.
3. Florida’s Construction of §
106.08(5)
Building off of the district court’s narrowing construction, Florida argues that
§
106.08(5) should be read in view of the entire state campaign finance regime,
including §§
106.011(3)(a),
106.021(1)(b),13 and
106.11(1).14 Based on these
provisions, Florida contends that §
106.08(5) should be narrowly construed as only
prohibiting a candidate from using funds from his campaign account for personal
donation to an organization. We disagree with Florida because we would have to
rewrite §
106.08(5) before it could be read in this manner.15
We begin by noting that Florida’s interpretation cannot be reconciled with
the plain language of §
106.08(5)....
...Section
106.11(1) provides that a candidate’s “campaign account shall be separate from
any personal or other account and shall be used only for the purpose of depositing contributions
and making expenditures for the candidate.”
15
Because we determine that §
106.08(5) goes beyond prohibiting a candidate from using
funds from his campaign account for personal donations, we do not address whether Florida’s
construction of the provision would itself violate the First Amendment, as FRL has argued....
...Other donations from personal or business funds,
such as donations to a charity in which the candidate is a nonmember or new donor,
are not included among these exceptions. Certain types of donations from personal
or business funds thus remain within the scope of § 106.08(5)....
...campaign expenditures. Read together, Florida contends, these provisions show
that when “contribution” is used in Chapter 106, it means funds from a candidate’s
campaign account used in furtherance of the campaign. Consequently, Florida
argues, when §
106.08(5) forbids candidates from making contributions to an
organization, it should be read as precluding a candidate only from using campaign
account funds to make personal donations.
18
We reject this line of argument. As we have explained, the definition of
“contribution” in §
106.011(3)(a) does not apply to §
106.08(5). Florida’s
argument is premised in part on the applicability of §
106.011(3)(a), so its argument
becomes unhinged when that provision is deemed inapplicable with regard to §
106.08(5). Moreover, even if the definition of “contribution” under §
106.011(3)(a)
were applicable to §
106.08(5), Florida’s argument–arrived at through a synthesis of
several statutory provisions–still would be unpersuasive. If “contribution” in §
106.08(5) referred to candidate donations made in order to influence election
results, as it must if §
106.011(3)(a) were held to apply, it would be irrelevant
whether such donations came from personal or campaign account funds. The
relevant consideration would be the purpose or motive behind the donation, not the
particular account from which the funds were drawn. It follows that even if §
106.011(3)(a) did apply, §
106.08(5) still would proscribe candidate donations
beyond Florida’s proffered definition, which focuses too narrowly on the type of
account used by the candidate in making her donation.
For these reasons, we reject Florida’s attempt to construe narrowly §
106.08(5) as only precluding candidates from using campaign funds for the purpose
of making personal donations....
...To do otherwise would require us to ignore our
commitment, as a federal court, to be vigilant against rewriting the terms of state
19
statutes. See Dimmit,
985 F.2d at 1572. Florida’s construction of §
106.08(5) thus
fairs no better than the narrowing construction offered by the district court.
D. The Constitutionality of §
106.08(5)
We have concluded that the plain language of §
106.08(5) creates a blanket
rule forbidding political candidates from making any donations out of personal or
campaign funds to an organization, unless one of the three exceptions applies.
Florida concedes that if this is the proper interpretation of §
106.08(5), the
provision is facially unconstitutional. Thus, we hold that §
106.08(5) is facially
unconstitutional in that it infringes upon basic First and Fourteenth Amendment
rights of expression and association held by organization like FRL.16
III. CONCLUSION
In this appeal, we have concluded that §
106.08(5), Florida Statutes, cannot
be narrowly construed in a manner that avoids constitutional infirmities. As a
result, we have decided that the provision is facially unconstitutional under the First
and Fourteenth Amendments. Accordingly, we REVERSE the district court’s
ruling that §
106.08(5) is susceptible to a narrowing construction that survives
16
Because §
106.08(5) is facially unconstitutional, the entire subsection must be struck
down in its entirety. To remove one portion of §
106.08(5) while leaving the remainder of the
subsection intact would constitute “interference with the state legislative process.” Dimmitt,
985
F.2d at 1572....
CopyCited 7 times | Published | Supreme Court of Florida
...Gen., and Stephen Marc Slepin of Slepin & Schwartz, Tallahassee, for appellees. KARL, Justice. This cause is before us on direct appeal to review the final judgment of the Circuit Court in and for Leon County upholding the constitutionality of certain portions of the election law, Sections
106.011(2) and
106.08(1), Florida Statutes (1975), as they apply to the Dade County Judicial Trust Fund, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution....
...Vernmar, Ltd.,
151 So.2d 439 (Fla. 1963). The primary question presented for review in this cause is whether the Dade County Judicial Trust Fund is a "political committee" within the definition of Section
106.011(2), Florida Statutes (1975), and as utilized in Section
106.08, Florida Statutes (1975), and if so, whether Section
106.011(2) is unconstitutionally overbroad....
...In October, 1974, in response to his inquiry, the Secretary of State wrote Judge Sepe advising him that the Dade County Bar Association could not lawfully make a contribution of $1,800 to him as a candidate for circuit judge since the maximum contribution allowed by Section 106.08(1)(a) or (b), Florida Statutes (1975), is $1,000....
...Appellant voluntarily appeared before the Commission to respond to questions and to produce all documents requested. At the conclusion of the proceedings, the Commission issued a notice of determination on February 14, 1977, finding that probable cause exists to believe that the Dade Judicial Trust Fund has violated Section 106.08, Florida Statutes (1975), by having contributed as a political committee to candidates in excess of the amounts prescribed by Section 106.08, Florida Statutes (1975), notwithstanding warning of the Attorney General....
...it on the basis that this issue was moot. The trial court concluded that the Dade County Trust Fund is a political committee defined by Section
106.011, Florida Statutes (1975), and is subject to the limitations on campaign contributions imposed by Section
106.08, Florida Statutes (1975)....
...Organizations which are determined by the Department of State to be committees of continuous existence pursuant to s. 106.04 *1204 and political parties regulated by chapter 103 shall not be considered political committees for the purposes of this chapter... ." Section 106.08(1)(a) provides: "(1) No person or political committee shall make contributions to any candidate or political committee in this state, in moneys, material, or supplies or by way of loan, in excess of the following amounts: "(a) To a can...
...r how unwise or unpolitic they might be, so long as there is no plain violation of the Constitution. [Cases cited.]" See also In re Apportionment Law, SJR 1305,
263 So.2d 797 (Fla. 1972). We find that Section
106.011(2), Florida Statutes (1975), and Section
106.08, Florida Statutes (1975), are not unconstitutionally overbroad as applied to the Dade County Trust Fund because the Legislature did not exempt organizations who set up their own procedures for policing themselves. The Legislature, in promulgating Section
106.011(2) and Section
106.08, regulating campaign contributions, determined that individuals in a collective capacity should only be permitted to have a limited amount of political clout....
...able under the facts of this cause. We, therefore, cannot resolve the question of the constitutionality of the composition of the Elections Commission in the present cause. Accordingly, for the foregoing reasons, we find that Sections
106.011(2) and
106.08, Florida Statutes (1975), are not unconstitutional as applied to the Dade County Judicial Trust Fund and affirm the judgment of the trial court....
CopyCited 3 times | Published | District Court, N.D. Florida | 1978 U.S. Dist. LEXIS 17662
...Counsel, Florida Dept. of State, Tallahassee, Fla., for Bruce Smathers. MEMORANDUM OPINION STAFFORD, District Judge. On February 27, 1978, plaintiffs filed this action for declaratory and injunctive relief seeking to permanently enjoin enforcement of Fla.Stat. § 106.08(1)(d) (1977), which provides: (1) No person or political committee shall make contributions to any candidate or political committee in this state, for any election, in excess of the following amounts: * * * * * * (d) To any political commit...
...atewide election, $3,000. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343(3). On March 8 a hearing was held on plaintiffs' application for preliminary injunction and on March 29 an order was entered prohibiting defendants from enforcing section 106.08(1)(d), pendente lite....
...The estimated cost of the entire campaign is in excess of one million dollars. (Plaintiffs' ex. 3). Plaintiff Paul M. Bruun is an individual who, according to the allegations of the complaint, is desirous of contributing money to Let's Help Florida in an amount which exceeds the limitation of section 106.08(1)(d)....
...Because the *1007 committee currently espouses only one view, it may properly be said that the committee and its "members" are for all practical purposes identical, thereby satisfying the first sub-part of the NAACP v. Alabama, supra , test. Likewise, there is no doubt that section 106.08(1)(d) directly impacts upon the committee in curtailing its ability to effectively campaign for its position....
...ided court. It must, of course, be recognized that the Bellotti decision is distinguishable from the case at bar. The Massachusetts law at issue in that case directly prohibited political *1008 expression. This is clearly not the situation here, for section 106.08(1)(d) does not prohibit or limit the content of political speech and limits only indirectly the quantity of such speech....
...consultation with, any candidate, *1009 political committee, or agent of such candidate or committee. Fla.Stat. §
106.011(5). Plaintiff's Claim and The Legal Standard Let's Help Florida contends that the $3,000 contribution limitation contained in section
106.08(1)(d), as it relates to a committee supporting an issue in a statewide election, violates the First and Fourteenth Amendments to the Constitution of the United States....
...Were the court to accept defendants' rather ingenious argument the resultant effect on freedom to associate could well be catastrophic for it would leave a state free to regulate any pooling of resources so long as it did not restrict the right to combine. Accordingly, the fact that section 106.08(1)(d) of Florida's campaign finance act does not affect the "symbolic" act of associating with a political committee is of little consequence because it undeniably renders that association less effective. Finally, defendants claim that the constitutionality of section 106.08 has been decided by the Florida Supreme Court in Richman v....
...Shevin,
354 So.2d 1200 (Fla.1978). The facts and opinion of the court belie this position. In Richman the appellant was challenging the inclusion of the Dade County Judicial Trust Fund within the definition of a "political committee" as used in Fla. Stat. §§
106.011(2) and
106.08. The contribution limitations contained in section
106.08 were not in issue....
...ionality of the contribution limitation but, rather, only questions the imposition of such limitation on the Judicial Trust Fund. Richman v. Shevin, supra at 1204. It is therefore clear that any argument that Richman upholds the constitutionality of section 106.08, as that section applies to Let's Help Florida, is totally without merit....
...Defendants next contend that the contribution ceiling is necessary to assure that contributions which are received by a committee which has expressed a position on a particular issue are used in a manner which is consistent with that purpose. This argument appears to be an attempt by defendants to justify section 106.08(1)(d) by pointing out the weaknesses in the act as a whole....
...urpose and that purpose will not change during its campaign. (Testimony of Samuel Vitali). Further, even if it were established with reasonable certainty that such an abuse would occur, the statute at issue here does nothing to remedy or prevent it. Section 106.08(1)(d) limits contributions to political committees in support of or in opposition to an issue to be voted on in a state-wide election....
...It is therefore clear that in the context of an issue campaign and election, if there is to be one, the threat of corruption is minimal at best and is not sufficiently compelling to sustain this ceiling on contributions as it applies to plaintiff. Finally, defendants argue that if section 106.08(1)(d) is declared unconstitutional a political committee need only express an interest in an issue and it is then free to avoid all campaign contribution limitations....
...It cannot be disputed that large sums of money would be required to secure the petition signatures necessary to place such a proposed amendment before the electorate. It therefore becomes virtually impossible for persons with limited resources to utilize Art. XI § 3 under the present restrictions imposed by section 106.08(1)(d)....
...ida Constitution to a mere illusory right without demonstrating the existence of a compelling interest. Such an interest has not been shown in this case. ORDER In accordance with the foregoing opinion it is hereby ORDERED AND ADJUDGED that Fla.Stat. § 106.08(1)(d) (1977) as it applies to plaintiff Let's Help Florida only under the facts of this action is violative of the First and Fourteenth Amendments to the Constitution of the United States. The Clerk of this Court is directed to enter judgment in favor of plaintiff and against defendants declaring Fla.Stat. 106.08(1)(d) (1977) to be unconstitutional and permanently enjoining defendants from enforcing against plaintiff the limitations contained therein in the context of an issue election as defined in Fla.Stat....
...osen. [2] Throughout this litigation the defendants have been represented by different counsel. Recognizing that in the memoranda on file and at oral argument the defendants do not necessarily rely on the same arguments and authorities in support of section 106.08(1)(d), for ease of reference they will be treated collectively in this opinion....
CopyCited 2 times | Published | Supreme Court of Florida | 2001 WL 776667
...Thereafter, Brown inflated the number of hours that his law firm invoiced to Riscorp to recoup the reimbursement bonuses. Riscorp paid the invoices. *1084 The referee found that at the time Brown solicited the checks from his firm, Brown was not "politically active" and was not aware of section 106.08, Florida Statutes (1993), which limits contributions to candidates for statewide office to $500 per person and provides criminal penalties for making contributions in excess of that amount....
...However, Brown was again contacted by Riscorp in October 1994 regarding contribution checks for another campaign. This time, Brown became suspicious and asked another attorney in his firm to research the campaign contribution statutes. When the researching attorney notified Brown of section 106.08, Brown immediately met with Malone and strongly advised him that Riscorp should cease the campaign contribution activities....
...See Florida Bar v. Frederick,
756 So.2d 79, 86 (Fla.2000). In light of our narrow scope of review here, we approve the referee's factual findings and recommendations as to guilt. The Bar argues that the referee's finding that Brown was not aware of section
106.08, Florida Statutes (1993) (prohibiting campaign contributions in excess of $500) at the time Malone asked him to *1085 solicit contributions is clearly erroneous. At the hearing below, there was testimony on both sides of this matter, with Malone testifying that Brown informed him of section
106.08 prior to soliciting the contributions, and with Brown testifying that he was not aware of section
106.08 at the time....
...Malone to advise him to stop its reimbursement activities is also consistent with a finding that Malone lacked the intent to violate the campaign laws when he first agreed to the reimbursement scheme. The referee's finding that Brown was unaware of section 106.08 when he solicited the contributions is supported by Brown's testimony, and we decline to reach a different factual finding here. The Bar next contends that regardless of when Brown became aware of section 106.08, his solicitation of the contributions constituted a first-degree misdemeanor under section 106.08(7)(a), Florida Statutes (1993), and therefore the referee should have recommended guilt as to rule 4-8.4(b) (lawyer shall not commit criminal act which reflects adversely on lawyer's honesty, trustworthiness, or fitness). The referee found that "[t]he evidence did not establish that [Brown] knowingly and willfully violated section 106.08." Rule 4-8.4(b) provides that a lawyer is not to commit a criminal act "that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." Assuming without deciding that a violation of section 106.08 does not require that the violation be knowing and willful, [1] we conclude that a negligent violation of the statute in this instance does not reflect adversely on Brown's honesty, trustworthiness, or fitness....
...duct) for failing to report Malone's illegal activity to a higher authority in Riscorp. However, the referee recommended a finding of not guilty because Brown was unaware of the scope of Riscorp's reimbursement practices, and when he became aware of section 106.08, Brown advised Malone, then president of Riscorp, against the practice, and was assured by Malone that the practice would cease....
...nces, supports the referee's conclusion that Brown acted "as reasonably necessary in the best interests of the corporation" as envisioned by the rule. [2] Although additional steps might have been taken by Brown to alert others in the corporation of section 106.08, the Bar has failed to demonstrate that the referee's recommendation of not guilty is not supported by competent substantial evidence and we approve the referee's recommendation concerning rule 4-1.13(b)....
...WELLS, C.J., dissenting. I do not join in the majority opinion as to either guilt or discipline. I specifically do not agree with the referee's factual finding that Brown did not realize that his solicitation of these contributions was in violation of section 106.08....
...Therefore, I would suspend Brown for ninety-one days, which would then require proof of rehabilitation in order to end the suspension. QUINCE, J., concurs. NOTES [1] The statute provides that any person who "knowingly and willfully" makes a contribution to a candidate in excess of $500 commits a first-degree misdemeanor. § 106.08(1)(a), Fla. Stat. (1993). In this instance, the "person" is the corporation, Riscorp, because by reimbursing the contributions, it was in essence making contributions to candidates in excess of $500. Section 106.08(6) further provides that any " attorney or other representative of a corporation ......
...who aids, abets, advises, or participates in a violation of this section is guilty of a misdemeanor in the first degree." (emphasis added.) Because Brown, an attorney, "participated" in Riscorp's violation of the statute by soliciting the checks and participating in the reimbursement process, under section 106.08(6) Brown may have committed a criminal act, regardless of his lack of knowledge of the statute....
