Chamberlin v. Missouri Elections Commission

540 S.W.2d 876

• Court: Supreme Court of Missouri
• Decided: June 21, 1976
• Docket: 59505
• Status: Published

Opinions

HENLEY, Judge.

This is an action for declaratory judgment and injunctive relief. It presents questions involving the constitutionality of parts¹ of the Missouri Campaign Finance and Disclosure Law (hereinafter the Campaign Law) enacted by the initiative in 1974 effective January 1, 1975.²

Howard Chamberlin and William Bryan Miller (hereinafter plaintiffs or Mr. Chamberlin, Mr. Miller),³ brought this action against the Missouri Elections Commission and its members ⁴ (hereinafter the Commission), and Ralph L. Martin, prosecuting attorney of Jackson county,⁵ as defendants.⁶ John C. Danforth, attorney general of Missouri, intervened as a party defendant (hereinafter Intervenor). Both plaintiffs are attorneys-at-law licensed to practice in this state. Mr. Chamberlin was a candidate for the office of Mayor of the city of Lota-wana in the spring, 1975, election and at that time was a stockholder in a professional legal corporation in which he held an interest of more than 10%. A client paid the corporation more than $500 for his professional services during the 12 months preceding the election. He did not comply with the provisions of either subsection 1(5) or subsection 1(6) of § 130.035.⁷ Mr. Miller has held since 1968 the office of judge of the municipal court of Raytown, a part-time judgeship. He was a candidate for and was reelected to that office April 6, 1976. It is agreed that he is a sole practitioner and, although the record is not clear, the case was tried and submitted on the theory that the facts were (1) since January 1, 1975, a client has paid him more than $100 for professional services, and (2) he has failed to comply with subsection 1(5).

By this action, plaintiffs sought a judgment declaring subsections 1(5) and 1(6) of § 130.035 unconstitutional and void on the ground, among others, that they violate rights guaranteed plaintiffs by the equal protection clause of the Fourteenth Amendment of the United States Constitution “by subjecting them to classifications that impose unequal burdens of disclosure upon them without advancing any rational or justifiable state interest in such classifications * * * In addition to a declaratory judgment, plaintiffs also sought relief enjoining defendants from compelling them to comply therewith.

Plaintiffs’ “equal protection” ground for relief is that these subsections make an arbitrary and unreasonable difference between the reporting requirements of a candidate who is a lawyer practicing alone (sole practitioner) and a lawyer who, having a 10% or more interest therein, practices in the form of a professional legal corporation (corporate practitioner); that the latter is favored and the sole practitioner invidiously discriminated against in that the sole practitioner is required to report as a source of income the identity of each client who paid him in excess of $100 (the greater burden of disclosure), whereas the corporate practitioner is required to report as a source of income only the identity of each client who paid the corporation more than $500, and then only if it was paid on behalf of or for services rendered by the candidate, as distinguished from another stockholder of the corporation (the lesser burden of disclosure). Other grounds for relief raised by plaintiffs will be referred to and discussed in connection with their cross-appeal.

The trial court filed a memorandum opinion, and entered judgment upholding plaintiffs’ Fourteenth Amendment “equal protection” claim. The judgment, omitting a part not pertinent to the issues on appeal, is as follows:

1. “Plaintiffs are not excused from complying with the terms and provisions of Sections 130.035 1.(5) and (6) on the ground that compliance by them would violate the attorney-client privilege of confidentiality and the terms of that statute are not unconstitutional as applied to said plaintiffs under the facts of the case.

2. “Sections 130.035 1.(5) and (6) V.A. M.S. constitute an unlawful arbitrary classification in violation of the Fourteenth Amendment to the Constitution of the United States and are declared to be unconstitutional and void.

3. “Plaintiffs Chamberlin and Miller are excused from complying with Sections 130.035 [1^(5) and (6) and Defendants are permanently enjoined from compelling Plaintiffs to comply with said Sections and from instituting criminal prosecution to compel compliance.”

Defendants and Intervenor appealed from that portion of the judgment quoted in paragraphs numbered two and three. Plaintiffs appealed from that portion quoted in paragraph numbered one.

Defendants and Intervenor contend the trial court erred in reaching the constitutional question and in declaring subsections 1(5) and 1(6) unconstitutional, because they are susceptible of construction in harmony with the constitution. In State ex rel. State Highway Commission v. Paul, et al., 368 S.W.2d 419 (Mo.banc 1963), the court said (l.c. 422):

“It is a cardinal rule of statutory construction that where a statute is fairly susceptible of a construction in harmony with the Constitution it must be given that construction by the courts and, unless the statute is clearly repugnant to the organic law, its constitutionality must be upheld. City of Joplin v. Industrial Commission of Missouri, Mo., 329 S.W.2d 687, 692[6]; Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 167[8]; State on inf. Dalton v. Metropolitan St. Louis Sewer Dist., 365 Mo. 1, 275 S.W.2d 225, 234[23]; State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876, 882-883[5]; State ex rel. Barrett v. May, 290 Mo. 302, 235 S.W. 124, 126[3].

“Courts will not ordinarily pass on constitutional questions where the case presented may be properly decided without doing so. McIntosh v. Connecticut General Life Ins. Co., Mo., 366 S.W.2d 409, 412[2]; City of St. Joseph v. Roller, Mo., 363 S.W.2d 609, 612[6]; Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484, 497[23].”

We conclude that subsections 1(5) and 1(6) are fairly susceptible of a construction that will obviate any need to reach and decide the Fourteenth Amendment question decided by the trial court. Read together, an ambiguity clearly appears from these two subsections in that different amounts or “floors” ($100 and $500) are fixed as reporting requirements for the same person. Subsection 1(5) appears to require the candidate to report the source of any income in excess of $100 received by him, while subsection 1(6) appears to require the candidate to report the source of any income in excess of $500 paid for services rendered by him to “any sole proprietorship * * * In other words, under the first of these two subsections the reporting requirements of a candidate who is a sole practitioner (a sole proprietorship) is governed by a $100 floor, while under the second the reporting requirements of the same person, a candidate who is practicing as a sole proprietorship (a sole practitioner), is governed by a higher floor: $500, the amount also set for the corporate practitioner.

This conflict or inequality in the level of the “floor” set by these two subsections for reporting the source of gifts, salaries, fees or other income received by the candidate, his spouse or minor children within the prescribed period of time reasonably may be, and is, resolved by construing the two subsections to require that the candidate who is a sole practitioner shall use the same floor ($500) as that set for a sole proprietorship and those who practice in the form of a partnership or corporation. We believe this construction to be consistent with the intent and purpose of the Campaign Law. With this conflict resolved, we consider and hold that a sole practitioner and a corporate practitioner are required by subsections 1(5) and 1(6) to report as follows:

1. Where the income received within the prescribed period of time is in excess of $100 but not in excess of $500, the candidate who is either (A) a sole practitioner or (B) a corporate practitioner shall report as the “source” of this income, not the name and address of each person by whom such amount was paid, but the business entity (sole proprietorship or corporation) from which he receives his income.

2. Where the income received within the prescribed period of time from any one person is in excess of $500, the candidate who is:

A. a sole practitioner shall report as the “source” of this income the name and address of each person by whom such amount was paid; and

B. a corporate practitioner holding a 10% or more interest in and who has rendered any service to the corporation which resulted in such income, shall report as the “source” thereof the name and address of each person by whom such amount was paid.

Plaintiffs, in rebuttal, argue that this construction of subsections 1(5) and 1(6)⁸ “create differential burdens of disclosure which have no rational relationship to any justifiable state interest and the classifications are, therefore, in violation of the equal protection clause of the [Fourteenth Amendment].” In attempting to demonstrate their contention, plaintiffs refer only to hypothetical fact situations which they assert present differences in burdens of disclosure, none of which are applicable to the facts of this case. Our decision is confined to and based upon the very narrow factual situation this case presents. The hypothetical fact situations pointed to by plaintiffs will be ruled upon when, and if, they are presented as live issues in a case.

As noted above, plaintiffs appealed from that portion of the judgment which stated that they are not excused from complying with provisions of subsections 1(5) and 1(6) on the asserted ground that compliance would violate the attorney-client privilege. A question is raised by the Commission, but not pressed, as to whether plaintiffs may appeal since the overall judgment was favorable to them. At the same time the Commission and Intervenor have recognized that points briefed by plaintiffs on their cross-appeal may be urged as alternate grounds in support of affirmance and have replied thereto in their briefs as respondents. We treat these points of plaintiffs as alternate grounds in support of affirmance of the judgment.

Plaintiffs contend that subsections 1(5) and 1(6) are unconstitutional in that they infringe upon the attorney-client privilege protected by the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. We agree with the determination of the trial court that, under the facts of this case, these subsections are not unconstitutional as applied to plaintiffs.

We note that Mr. Chamberlin testified that he has clients who do not desire or will not permit him to disclose their identity, but he did not state that disclosure of their identity would subject them to harm, would have the effect of disclosing the substance of the client’s communication, or would in any other respect violate the attorney-client privilege. On this point plaintiffs rely primarily upon testimony by attorneys, not parties in this case, that on occasion an attorney-candidate might be compelled to make disclosures required by subsections 1(5) and 1(6) which could result in violation of the attorney-client privilege and thereby, they contend, violate the client’s Fifth and Sixth Amendment rights.

We held above that in certain specified circumstances all candidates are required to disclose by name and address the identity of various sources of income. Plaintiffs insist that a blanket exception should be made for candidates who are attorneys, by allowing them to avoid disclosure of the identity of clients who might fall within the purview of the statute, on the ground that the attorney-client privilege requires it.

We believe that insofar as the disclosure requirements of these subsections are concerned the attorney-client privilege generally will remain inviolate. We say this because the well-established rule is that identity of a client is not within the scope of the privilege. VIII Wigmore; § 2313. Mauch v. Commissioner of Internal Revenue, 113 F.2d 555 (3rd Cir. 1940); United States v. Long, 328 F.Supp. 233, 236 (E.D.Mo.1971); In re Grand Jury Proceedings, 517 F.2d 666 (5th Cir. 1975). There is a very narrow exception to this rule: e. g., the identity of a client may be shrouded and the privilege recognized “when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication.” N.L.R.B. v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965).

In the well-known case of Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), cited by plaintiffs in support of the claimed privilege, the court cautioned that whether or not identity of a client is privileged “must be assessed on a case to ease basis, depending on the particular facts of each case.” 279 F.2d at 631.

There is no evidence in this case which brings these plaintiffs within the exception to the rule.

Plaintiffs further assert that “notwithstanding the fact that neither [of them] had * * * a client whose interest would be prejudiced by disclosure of the fact of representation” they have standing in this type of action under the “overbreadth doctrine” to attack the constitutionality of subsections 1(5) and 1(6) as applied to the obligations and rights of others (not parties hereto) to whom the attorney-client privilege is applicable. In this connection, plaintiffs refer to attorneys who testified that an attorney-candidate whose practice is largely in the criminal law field may be, in some circumstances, forbidden to disclose the source of fees, because disclosure might in certain hypothetical situations result in incriminating the client.

We applied the overbreadth doctrine in City of St. Louis v. Burton, 478 S.W.2d 320 (Mo.1972), striking down a “loitering” ordinance whose apparent reach was much broader than the true intent of the ordinance. However, employment of the doctrine has been narrowed somewhat; it is used “sparingly and only as a last resort.” Broaderick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). For the most part it is applicable only when the reach of the law is substantially excessive and its application normally is in First Amendment cases rather than cases involving regulation of political conduct. Its inapplicability is demonstrated by the treatment of campaign contribution disclosure requirements in the decision of the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

The Buckley case considered a constitutional challenge of the Federal Campaign Finance law. It was alleged that the statute called for potential unconstitutional disclosures that would unduly “chill” constitutionally-protected political activities. The court recognized a possible constitutional problem with compelled disclosure, and stated that to uphold such a disclosure requirement, there must be a “‘substantial relation’ between the governmental interest and the information required to be disclosed.” 96 S.Ct. at 656.

Such governmental interest must be “sufficiently important to outweigh the possibility of infringement” upon claimed constitutional rights. Importantly, the court concluded in reference to election campaign laws that “disclosure requirements are of this magnitude.” 96 S.Ct. at 657.

The court in Buckley rejected, as we do, a claim of harm from disclosure where such was “highly speculative” and not presently before the court. It was concluded that the statute would stand until an actual case corroborates and justifies the claim of anticipated harm and unconstitutional application. We adopt the “as applied” approach endorsed in Buckley.

In sum, there has been no showing in this case that a serious barrier presently exists precluding compliance by plaintiffs with the statutory requirement that they, as candidates for office, disclose the names and addresses of their clients who have paid more than $500 for their services.

If problems involving issues of attorney-client privilege or denial of rights or privileges guaranteed by the constitution should arise in a specific case, procedures are available to test the efficacy of the disclosure requirements “as applied” to that situation: (1) an advisory opinion by the Commission could be requested; or (2) a declaratory judgment could be sought in an actual controversy. But until such controversy arises, we decline to strike down these subsections of the Campaign Law on the grounds stated by plaintiffs where the narrow facts before the court do not support their contentions.

The judgment is reversed.

HOLMAN, FINCH and DONNELLY, JJ., concur. SEILER, C. J., concurs in result in separate opinion filed. BARDGETT, J., dissents in separate dissenting opinion filed. MORGAN, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

1 . Subsections 1(5) and 1(6) of § 130.035, RSMo Supp.1975. References to sections of the statutes will be to this Supplement unless otherwise stated.

2 . Laws of Missouri, 1974, pp. 937-953.

3 . There was a third plaintiff in the trial court: Dorothy Knutter, wife of a candidate for office in the Kansas City 1975 election, who was held to have no standing to sue. She did not appeal.

4 . Samuel B. Murphy, David E. Blanton, Robert F. Karsch, Ed Bohl, D. W. Gilmore and Frank E. Nutt.

5 . This defendant appealed but did not file a brief.

6 . There was another defendant in the trial court, the Kansas City Board of Election Commissioners, which did not appeal.

7 . These subsections are as follows:

“1. Every candidate shall file reports in writing with the appropriate officer, at the times prescribed in section 130.045. The reports shall be subscribed and sworn to by the candidate before an officer authorized to administer oaths, setting forth in detail all contri-buttons received and expenditures made by the candidate in endeavoring to secure his nomination or election. Each report shall set forth:

* * * * * *

“(5) A specific listing of the source, by name and address, of any gifts or income in excess of one hundred dollars received by the candidate or the candidate’s spouse or minor children during the preceding twelve months or the time of the last report, whichever is later; and

“(6) A specific listing of the source, by name and address, of any gifts, salaries, fees, or other income which for the twelve-month period preceding the filing date, individually or in the aggregate exceeds five hundred dollars which has been paid on behalf of or for services rendered by the candidate to any sole proprietorship, partnership or corporation in which the candidate or the candidate’s spouse holds an interest of ten percent or more.”

8 . Suggested by the Commission and Intervenor.