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INDEPENDENCE PUB. MEDIA OF PHILADELPHIA, INC. v. P

February 10, 1993

INDEPENDENCE PUBLIC MEDIA OF PHILADELPHIA, INC.
v.
PENNSYLVANIA PUBLIC TELEVISION NETWORK COMMISSION, et al.



The opinion of the court was delivered by: JOHN R. PADOVA

MEMORANDUM

 Padova, J.

 February 10, 1993

 Defendants move to reconsider and vacate portions of my Opinion and Order of November 16, 1992 (the "Opinion"). For the following reasons, I will deny their motion. *fn1"

 "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171, 90 L. Ed. 2d 982, 106 S. Ct. 2895 (1986). Defendants offer no newly discovered evidence, but contend that the Opinion contains the following three errors of law: (1) I should have abstained pursuant to Railroad Comm'n v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), from adjudicating plaintiff's "delegation" claims under the Pennsylvania Constitution; (2) I should have abstained under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), from adjudicating plaintiff's claims of institutional bias under the Federal constitution; and (3) my injunction of the TV Defendants was in violation of Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). I will address each of these assignments of error in turn.

 I. PULLMAN ABSTENTION

 Defendants argue that I should have abstained under Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643, from ruling upon plaintiff's claim that the Pennsylvania Constitution prohibits the Pennsylvania legislature from delegating to the TV Defendants the authority to appoint members of the PPTNC. In the Opinion, I held that Pullman abstention is not appropriate with regard to plaintiff's delegation claims because there exist no unsettled questions of state law underlying these claims. See Opinion at 8-10. Defendants now argue that whether the PPTNC exercises legislative power at all is an unsettled matter of law, and, therefore, this Court should have abstained from ruling on whether the Pennsylvania legislature's delegation of appointment power to the TV Defendants is unconstitutional.

 Plaintiff's state delegation claims and my ruling on those claims rest upon the holdings of the Supreme Court of Pennsylvania in Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250 (1974), and Commonwealth ex rel. Kane v. McKechnie, 467 Pa. 430, 358 A.2d 419 (1976). In those cases, the court held that "the power to appoint persons to conduct governmental functions cannot be delegated to private organizations." McHale, 329 A.2d at 251 (emphasis added). I found that Act 329 violates this principle in that it delegates to the TV Defendants, who are private parties, the power to appoint persons (PPTNC commissioners) to conduct governmental functions (e.g., distribution of state funds). See Opinion at 13-14.

 Defendants seize upon the term "governmental functions" to urge that this Court should abstain until the state courts have had an opportunity to resolve the ambiguity they feel is inherent in the term. *fn2" I disagree with defendants. The Commonwealth's highest court has already interpreted the term twice and stripped it of ambiguity for purposes of this discussion.

 In McHale, the state agency under consideration had been charged by the Pennsylvania legislature with the sole function of disbursing public funds. McHale. 359 A.2d at 251-52. The Supreme Court of Pennsylvania held, inter alia, that the agency was exercising "governmental functions" for purposes of determining whether there had been a violation of the Pennsylvania Constitution's anti-delegation doctrine. Id. Two years later, the same court stated that "whether one dollar or one million dollars of public funds is involved, the controlling principle of [McHale] is unaffected. . . . The decision in [McHale] was not limited to the governmental function of expending funds, but encompassed all governmental functions." McKechnie, 358 A.2d at 420 (emphasis added). Clearly, the court's decisions in these cases did not turn, as defendants contend, upon whether the Pennsylvania legislature delegated "legislative power or authority" to the agencies involved, but whether the agencies exercised "governmental functions." The court held that under the Pennsylvania Constitution, private parties cannot be given the authority to appoint individuals to distribute public funds or exercise any other governmental functions.

 In the Opinion, I found that one of the PPTNC's main responsibilities is to distribute public funds to Pennsylvania public television stations. See Opinion at 13-14 n.11. Based upon this finding, I concluded that the PPTNC was necessarily exercising "governmental functions," as that term was defined in McHale and McKechnie. See Id. at 13-14. I neither saw then, nor do I see now, any ambiguity whatsoever in the term. Accordingly, I concluded then, as I do now, that there are no unsettled issues of state law underlying plaintiff's state delegation claims that warrant abstention under Pullman.

 II. Younger Abstention

 In the alternative to their arguments for Pullman abstention, defendants contend that I should have abstained from deciding plaintiff's federal bias claims under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and its progeny. *fn3" "The Younger abstention doctrine is a prudential limitation on the federal courts' exercise of jurisdiction when a plaintiff requests that a federal court interfere with ongoing state proceedings." Ivy Club v. Edwards, 943 F.2d 270, 278 (3d Cir. 1991), cert. denied, U.S. , 117 L. Ed. 2d 507, 112 S. Ct. 1282 (1992). Defendants argue that my finding in the Opinion that federal notions of due process require PPTNC impartiality in considering plaintiff's requests for network interconnection and funding necessarily means that I must also find that there are ongoing state "proceedings" within the PPTNC; and that Younger protects these proceedings from interference by this Court.

 As an initial matter, I agree with defendants that the PPTNC's consideration of plaintiff's request for network interconnection and funding is a state "proceeding" to which Younger may apply. Younger applies only to state proceedings "judicial in nature." New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 109 S. Ct. 2506, 2519, 105 L. Ed. 2d 298 (1989)("NOPSI "). " The proper characterization of an agency's actions 'depends not upon the character of the body but upon the character of the proceedings.'" Id. (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 53 L. Ed. 150, 29 S. Ct. 67 (1908)). Although the "line dividing them may not always be a bright one . . . [there is] a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other." United States v. Florida E. Coast R.R., 410 U.S. 224, 245, 35 L. Ed. 2d 223, 93 S. Ct. 810 (1973)(explaining distinction recognized in Londoner v. City & County of Denver, 210 U.S. 373, 52 L. Ed. 1103, 28 S. Ct. 708 (1908), and Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 60 L. Ed. 372, 36 S. Ct. 141 (1915), between rulemaking and adjudication for purpose of determining when the mandates of procedural due process apply to agency activity). In other words,

 
'A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.'

 NOPSI, 109 S. Ct. at 2519 (quoting Prentis, 211 U.S. at 226). Thus, agency activity based upon present or past facts, rules and laws that singles out a particular entity for consideration on its own special circumstances is judicial in nature, and different from agency activity that seeks to create future rules or standards of general application, which is legislative in nature.

 In the Opinion, I found that in considering "plaintiff's request for network interconnection and funding, the PPTNC was and is acting in a judicial capacity, subject, therefore, to the due process requirement of impartiality. Opinion at 17-18. The PPTNC actions challenged by plaintiff in this lawsuit are those of rejecting plaintiff's specific request for network interconnection and funding. In considering that request, the PPTNC was and, presumably, is considering, among other things, WYBE's location, financial viability, programming, structure and management, and the veracity of WYBE's officials. See, e.g., Affidavit of Sheldon P. Siegel. The PPTNC also considered plaintiff's request in light of the duties and rights created by existing Act 329. See, e.g., Minutes of Regular Quarterly Meeting of the PPTNC of June 28, 1990 (attached as Exhibit 55 to Plaintiff's Brief in opposition to Defendants' Motions for Summary Judgment). Hence, in considering plaintiff's request, the PPTNC has been conducting an inquiry specific to plaintiff, based upon past and present facts and laws. Moreover, there has been no argument or evidence presented by either party that the ...


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