WAIVER OF CANDIDATES' PAMPHLET FEE FOR INDIGENTS

ELECTIONS ‑- CANDIDATES ‑- INDIGENTS ‑- WAIVER OF CANDIDATES' PAMPHLET FEE FOR INDIGENTS

A candidate for elective office may not qualify to have his statement entered in the official candidates' pamphlet provided for by chapter 29.80 RCW by filing a declaration that he is without sufficient assets or income in lieu of paying the fees required by RCW 29.80.050.

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                                                              September 23, 1976

Honorable Bruce K. Chapman
Secretary of State
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 59

Dear Sir:

            By recent letter you have requested our opinion concerning the fees for candidates' pamphlet statements which are required by RCW 29.80.050.  Specifically you have asked us

            ". . . whether an individual candidate may qualify to have his statement included in the Official Candidates' Pamphlet by filing a declaration that he is without sufficient assets or income in lieu of the fees required by RCW 29.80.050?"

            We answer this question in the negative.

                                                                     ANALYSIS

            Chapter 29.80 RCW provides for the periodic publication, prior to each state general election at which federal or state officials are to be elected, of

            ". . . a candidates' pamphlet containing photographs and campaign statements of eligible nominees who desire to participate therein: . . ."  (RCW 29.80.010.)

            RCW 29.80.050, however, requires all nominees desiring to have their photographs and campaign statements so published by the state to pay a prescribed fee.  The full text of this statute, to which you have specifically referred in your letter, reads as follows:

            "Nominees shall pay for their prorated space in the candidates' pamphlet allocated according to the respective offices sought as follows:

            "(1) For United States senator, United States representative and governor, each shall pay two hundred dollars.  The nominees for  [[Orig. Op. Page 2]] each position shall equally share no less than two full pages.

            "(2) For all state offices voted upon throughout the state, except for that of governor, each shall pay one hundred dollars.  The nominees for each position shall equally share no less than one full page.

            "(3) For state senator, judge of the court of appeals and judge of the superior court, each shall pay fifty dollars.  The nominees for each position shall equally share no less than one full page.

            "(4) For state representative, each shall pay twenty-five dollars.  The nominees for each position shall equally share no less than one‑half page.

            "All such payments shall be made to the secretary of state when the statement is offered to him for filing and be transmitted by him to the public printer to be used as a credit offset to the cost of printing the candidates' and voters' pamphlet.

            "Nominees for president and vice president of each political party certified by the secretary of state shall together be entitled to one page without charge.  Each such page so allocated shall not contain more than five hundred words in addition to the pictures of the nominees concerned."

            Clearly, there is nothing in this statute which purports to entitle a given nominee to a waiver of the fee therein provided for because of his or her indigency.  Thus, any ruling in favor of such a right would, of necessity, have to be based upon the premise that RCW 29.80.050, supra, is constitutionally unenforceable with respect to those nominees who claim to be, in the words of your question, ". . . without sufficient assets or income . . ." to pay the fee provided for therein.

            Such a contention, however, has only recently been rejected by our state supreme court in a case directly in  [[Orig. Op. Page 3]] point.  See, Swanson v. Kramer, 82 Wn.2d 511, 512 P.2d 721 (1973), wherein the court, at pages 518-519, said:

            ". . .  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."

            In addition, as you know, the Washington court in Swanson v. Kramer, supra, also upheld the constitutionality of the statutory filing fee for candidates which is provided for by RCW 29.18.050.  Subsequently, however, the United States Supreme Court invalidated a substantially identical California filing fee statute in Lubin v. Panish, 415 U.S. 709, 39 L ed.2d [[L.Ed.2d]]702, 94 S.Ct. 1315 (1974), following which this office, in AGO 1974 No. 12 [[to A. Ludlow Kramer, Secretary of State on June 28, 1974]](copy enclosed) informed you that

            ". . . the requirements of RCW 29.18.050 are no longer constitutionally enforceable with respect to candidates for office in the state of Washington who wish to file for public office but who are unable to pay the filing fees prescribed by that statute."

            In so advising you, however, we took care to explain that the conclusion which we felt compelled to reach, notwithstanding the usual presumption of constitutionality which this office ordinarily attaches to any duly enacted statute, was based upon the fact that we found the Lubin case to be indistinguishable and thus, under the supremacy clause of Article VI of the United States Constitution, to present an insurmountable constitutional obstacle to any further efforts by your office to require filing fees of indigent candidates.

             [[Orig. Op. Page 4]]

            On the other handLubin v. Panish, supra, had nothing whatsoever to do with the constitutionality of a fee statute such as RCW 29.80.050, supra.  The fee which is required to be paid by that statute does not constitute a condition precedent to candidacy at all but, instead, it only pertains to the utilization, by a nominee, of an optional, and publicly financed, means of publicizing his or her candidacy.  Therefore, the provisions of that statute (unlike RCW 29.18.050) still remain subject, as far as this office is concerned, to our long-standing policy (in the absence of a supreme court ruling directly to the contrary) of presuming the constitutionality of any duly enacted statute of this state.  As explained in our earlier letter opinion to your office of May 2, 1972 [[to A. Ludlow Kramer, Secretary of State an Informal Opinion AIR-72528]], copy enclosed (which dealt, notably, with the constitutional enforceability of our filing fee statute prior to either Swanson v. Kramer,supra, or Lubin v. Panish, supra),

            "'. . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction.'"

            In essence, the constitutional status of the candidates' pamphlet statute, RCW 29.80.050,supra, at the present time is (with one exception) the same as was that of RCW 29.18.050, the filing fee statute, at the time of that 1972 letter opinion ‑ as distinguished from its later status at the time of AGO 1974 No. 12.  Moreover, the only difference between the two situations is one which supports, rather than detracts from, your continued enforcement of RCW 29.80.050; namely the fact, as above indicated, that the candidates' pamphlet fee thus provided for has specifically been upheld by our state supreme court in Swanson v. Kramer, supra.

            For the foregoing reasons, therefore, our answer to your question must be in the negative.  Although candidates' filing fees need no longer be paid by those who are unable to do so, a nominee may not presently qualify to  [[Orig. Op. Page 5]] have his statement and/or photograph included in the official candidates' pamphlet ". . . by filing a declaration that he is without sufficient assets or income in lieu of the fees required by RCW 29.80.050."

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General