Swanson v. Kramer

512 P.2d 721, 82 Wash. 2d 511, 1973 Wash. LEXIS 703

• Court: Washington Supreme Court
• Decided: July 19, 1973
• Docket: 42502
• Status: Published

Opinions

Hale, C.J.

Plaintiffs sought nomination to public office at the September, 1972, primary election, claiming that they could not afford the filing fee nor the cost of campaign advertising in the state-distributed candidates’ pamphlet. They requested a declaratory judgment holding unconstitutional and void RCW 29.18.050, 29.24.070 and 29.80.050, which require the payment of candidate filing fees and for participating in the state’s candidates’ pamphlet. From a summary judgment of the Superior Court for Thurston County dismissing the complaint, the case comes here on an agreed statement of facts.

The plaintiffs are citizens of the United States, electors of the state, and qualified to run for public office. Before the candidate’s name may be placed on the ballot, the Secretary of State, under RCW 29.18.050, must require of him a fee equal to 1 percent of the annual salary of the office which he seeks. The Secretary of State prepares and furnishes a candidates’ pamphlet to. each registered voter in the state. RCW 29.80.010.

A candidates’ pamphlet containing the photograph and campaign statement of each eligible nominee who desires to participate is mailed to all voters of this state prior to each state general election by a mandate in RCW 29.80.010. In order for material to be published and distributed in the candidates’ pamphlet, RCW 29.80.050 requires a fee of $200 for United States Senator, Representative in Congress, and Governor, and $100 for other state offices. New or minor political parties, as the statute describes them, may nominate at conventions held on the day of the primary election. RCW 29.24.020. Candidates so nominated may then file their declarations of candidacy with the Secretary of State, but must, nevertheless, pay the 1 percent filing fee to get on the general election ballot. RCW 29.24.070.

According to the agreed statement of facts, plaintiffs Ann Montague and Judith A. Moschetto are members of the Socialist Workers Party and would seek that party’s nomination for Secretary of State and Seventh District Representative in Congress, respectively. Filing fees are $150 for the office of Secretary of State and $425 for the office of Congressman. Plaintiff Gary M. Johnson, candidate for the nonpartisan office of Superintendent of Public Instruction must pay a fee of $225 before his declaration of candidacy will be accepted and his name placed on the primary election ballot. The Secretary of State informed all plaintiffs, that, if they were nominated by convention, he would require payment of the filing fees before their names could go on the general election ballot; he would also require them to pay the statutory fees for their participation in the candidates’ pamphlet.

Plaintiffs Montague and Johnson, according to the statement of facts, were “unemployed, receiving no income, and living with family or friends.” Plaintiff Moschetto was “employed and earning between $400.00 and $500.00 per month.” It was agreed that each, for the purposes of this action, could not afford the filing fee or the fee for the candidates’ pamphlet. The record does not reveal that any of the plaintiffs, prior to commencing this suit, had attempted to raise campaign funds or solicit contributions with which to pay the fees.

Other parties joined in this action as plaintiffs, alleging that they are all qualified and registered voters, that they desire an opportunity to vote for plaintiff candidates who are financially unable to pay the filing fees, but that they will be unconstitutionally prevented from doing so because of the financial requirements of the statutes.

The parties agree, too, that the state’s interests in a filing fee system are “(1) prevention of overcrowded ballots, (2) assuring seriousness of candidacy, and (3) partially defraying election costs.” On this stipulated point, we take it to be a principle of statutory interpretation that, although the parties may agree as to the legislative intention or purpose and by agreement delineate what they believe the public interests may be, the views of a court of review may not be limited by the parties’ stipulation. The court, we believe, is not necessarily bound by such agreement and is free to reexamine the agreed premise, seek out and ascertain the legislative intentions, and sua sponte reach the same, a similar, or an altogether different conclusion.

Plaintiffs, as noted, appeal from a summary judgment of dismissal and the court’s denial of their motion for a summary judgment declaring the filing fees and pamphlet fees unconstitutional and the statutes prescribing them void. The filing fees and pamphlet fees are unconstitutional, they say, because they are not necessary to promote what is called a compelling state interest, they violate the equal protection clause and the due process clauses of the fourteenth amendment to the United States Constitution, and they contravene the freedom of expression provision of the First Amendment. We find these contentions untenable.

The statutes now under challenge cover a wide range of political activity. Fees for filing declarations of candidacy for partisan offices are prescribed as follows:

A fee of one dollar must accompany each declaration of candidacy for a precinct office without salary; a fee of ten dollars for any office with a compensation attached of one thousand dollars per annum or less; a fee equal to one percent of the annual compensation for any office with a compensation attached of more than one thousand dollars per annum.

RCW 29.18.050. Fees for certain nonpartisan offices are similarly assessed (RCW 29.21.010), and the same fee schedules prevail where nomination is by convention. RCW 29.24.070. Fees exacted for utilizing the state-distributed campaign pamphlet are likewise prescribed by statute. RCW 29.80.050.

Is it a denial of equal protection of the laws, due process of law, and freedom of speech and expression for the state to require a candidate’s filing fee of 1 percent of the annual salary as a condition precedent to having one’s name printed upon the ballot or to require a fee for participation as a nominee in a publicly prepared and distributed candidates’ campaign pamphlet?

The validity of the 1 percent filing fee for candidates was flatly upheld by this court as being both reasonable and constitutional in a case on all fours with this one in State ex rel. Boomer v. Nichols, 50 Wash. 529, 97 P. 733 (1908). There we said, at page 530:

The amount of the fee required is based on a per centum of the salary of the office for which the person is a candidate, instead of a fixed fee for all candidates alike, and it is this feature that is thought to render the requirement void. But we can see no reason why this is not a reasonable regulation. The fee exacted must be measured by the standard of the individual case, not by what others may be required to pay for running for another and different office.

Earlier, in passing upon this precise question, this court had sustained the filing fee statute in these words:

The right to exact a reasonable fee for the privilege of running for office may be sustained on the principle that fees in actions and proceedings in courts and for filing and recording papers are sustained, namely, that those who seek the benefit of a particular proceeding provided by law may be compelled to reimburse the state for a portion of the costs the state incurs in maintaining the instrumentalities necessary to carry into effect the particular proceeding.

State ex rel. Zent v. Nichols, 50 Wash. 508, 520, 97 P. 728 (1908). On the basis of these principles, a reasonable filing fee as a condition to having the candidate’s name printed on the ballot apparently has not since been questioned in the courts of this state.

Plaintiffs base their argument primarily upon the rationale of Bullock v. Carter, 405 U.S. 134, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972). That case, a unanimous decision of the seven justices sitting, we think, in essence sustains the instant filing fee statute and supports the Secretary of State’s position here. Bullock involved the candidates’ filing fee statutes of Texas, which, we think, prima facie prescribed an exorbitant and hence unreasonable and unconstitutional system of filing fees. In Texas, a candidate for office of county commissioner at the primary election was required to pay a fee of $1,424.60; one seeking nomination at the Democratic primary to the office of county judge was required to pay a filing fee of $6,300; and the third, a candidate seeking to be nominated as Democratic candidate for commissioner of the general land office, had to put up $1,000.

The Texas statutes in other contexts appeared to create a conglomeration of varied standards depending upon whether the office was countywide or statewide with little or no reference to the salary or other lawful emoluments. For example, the $6,300 demanded of one of the parties in Bullock represented 32 percent of the annual salary of $19,700 of the office of county judge; another office requiring a filing fee of $6,250 represented 76.6 percent of the annual salary of $8,160 for each o* «ther county offices; and the filing fee for county commissioner equaled 99.7 percent of the annual salary of $6,270. None of these candidates had the money with which to pay the fees of $1,424.60, $6,300 and $1,000, and were all denied places on the Democratic primary election ballot. So high were the filing fees, according to the Texas statutes, that on their face they have little relevance to the statutes of this state now under inquiry which fix the filing fees at only 1 percent of the annual salary.

But that is not the end of the differences. As the court pointed out in Bullock, at page 137:

Under the Texas statute, payment of the filing fee is an absolute prerequisite to a candidate’s participation in a primary election. There is no alternative procedure by which a potential candidate who is unable to pay the fee can get on the primary ballot by way of petitioning voters, and write-in votes are not permitted in primary elections for public office.

In Washington, however, there is no such categorical statutory bar against off-ballot participation in either our primary or general elections. “[A]ny voter may write in on the ballot the name of any person for whom he desires to vote for any office and such vote shall be counted the same as if the name had been printed on the ballot and marked by the voter . . .” RCW 29.51.170. Although running for office as a write-in or sticker candidate may put one under disadvantages, the right to do so, to a substantial extent, does operate to alleviate one of the unconstitutional features of the Texas statutes: Under the Washington statutes, one with no funds whatever may stand for election as a write-in candidate and his friends, followers and adherents may actually elect him, for the election history of this state shows many occasions when sticker candidates have not only made a good showing, but have won the office.

Bullock recognized the alternative of standing for election by sticker or write-in as an element tending to shore up the constitutionality of an election filing fee statute. The opinion acknowledges that the state has a broad power to fix voter qualifications and the manner of elections, recognizing this, however, as a power to be exercised in a manner consistent with the equal protection clause of the Fourteenth Amendment. The opinion categorically declares that the state does have a legitimate interest both in regulating the ballot and in partially relieving the. state treasury of the cost of conducting the primary election and “in this limited sense it cannot be said that the [Texas] fee system lacks a rational basis,” citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 16 L. Ed. 2d 169, 86 S. Ct. 1079 (1966).

Finally, there is the caveat at page 149, expressing what appears to us to be a rule of decision that, “It must be emphasized that nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees or licensing fees in other contexts.” (Italics ours.)

. There thus exists a legitimate interest of the state in legislation requiring the payment of a reasonable fee as a condition for having one’s name placed on the ballot. And the state has a legitimate interest, too, in spreading the costs of the election in modest degree more heavily among the candidates than among the electorate in general, because, in the very nature of things, the candidates derive some greater benefit from the elective process than do the people at large. We do not think that the constitution requires us to measure and strike a balance between the exercise of both of the two benefits, i.e., the right to vote and the right to run, for even with the collection of the filing fees the major costs of putting on the election will still be borne by the people through general taxation.

[Tjhose who seek the benefit of a particular proceeding provided by law may be compelled to reimburse the state for a portion of the costs the state incurs in maintaining the instrumentalities necessary to carry into effect the particular proceeding.

State ex rel. Zent v. Nichols, supra at 520.

The state has a legitimate interest, too, in discouraging frivolous and prankish candidacies, and use of the ballot for political stunts or for fraudulent filings. Although these probably are not completely obviated by the exaction of a reasonable filing fee, the legislature has a constitutional right to assume they are thus discouraged and reduced. Related to these considerations against frivolous and prankish filings and the employment of the ballot for political stunts is the possibility that a filing fee will tend to keep the ballot to a comprehensible and reasonable size, and will discourage pointless overcrowding — an overcrowding which may operate to deprive the electoral process of complete integrity and ultimately interfere with the voters’ exercise of a rational choice among the candidates and issues. The fee system, if reasonable and not unduly onerous, therefore, does rest on a rational basis in tending to attain legitimate state objectives and is a valid and constitutional exercise of legislative power.

The same rationale largely, we think, supports the requirement of a fee for including and distributing the candidate’s picture and campaign material in the official candidates’ pamphlet. No one disputes that having one’s picture and campaign material printed and circulated through the mails to all registered voters in the state at a charge of $100 or $200 is a bargain. All candidates for the same office desiring to participate in the candidates’ pamphlet received equal and uniform treatment both as to the space allotted and the word limit in the printed message. RCW 29.80.020. Because of the modest cost for benefits made available by the statutes providing for the candidates’ pamphlet to all .candidates upon the same terms and conditions, there appears to be no denial of equal protection or equal treatment at the hands of the state.

Perhaps the electorate would not countenance the publication and circulation of such a pamphlet wholly at public expense if no part of its cost whatever was to be shared by the candidates who, as a class, benefit the most from it. Thus, the alternative may be whether it is better to have a candidates’ pamphlet with part of its expense borne by candidates, or no pamphlet at all; whether it is better to have some modest and reasonable restraint placed upon the frivolous, idle, fraudulent or overcrowding use of the pamphlet, or abolish the pamphlet entirely. We think it neither a denial of equal protection nor an abridgment of freedom of speech or expression to require by statute the modest fees now required as a condition for inclusion of the candidates’ pictures and materials in the candidates’ pamphlet and its distribution at public expense.

Rosellini, Hunter, and Hamilton, JJ., concur.