moved for summary judgment, and the court denied both motions.
Defendants' claim for Noerr-Pennington immunity is denied, because the University defendants' conduct arguably went beyond the mere "petitioning" of government that the Noerr-Pennington doctrine is designed to protect.
The Noerr-Pennington doctrine originated in the antitrust context as the proposition that competitors' collective use of legislative, administrative, or judicial process does not by itself constitute a Sherman Act violation. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965); California Motor Transp. v. Trucking Unlimited, 404 U.S. 508, 513, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972). The Third Circuit, along with other courts, has by analogy extended the doctrine's reasoning to offer protection to conduct in other areas.
In Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988), the Third Circuit upheld the dismissal of charges of civil conspiracy and tortious interference with business relations against private individuals and state officials who worked publicly to shut down a nursing home. The court said, "There can be no tortious action or impropriety when private citizens or public officials exercise their rights to notify the appropriate agencies or mobilize public opinion about a serious violation of the law." Id. at 159.
The defendants' conduct in the present case can be distinguished from that of the defendants in Brownsville. In that case, the defendants' conduct can fairly be characterized as complaining, albeit vigorously, to the proper authorities and then leaving it to those authorities to take the appropriate measures. As the court there put it, the conduct in question amounted to "calling [the defendant's] violations to the attention of state and federal authorities and eliciting public interest." 839 F.2d at 160. In Brownsville, the private individuals engaged in a "herculean" letter-writing campaign to government officials and the media. See 839 F.2d at 158. Plaintiffs' contention there was that, along with the letter-writing campaign (which was aggressive and successful enough to result in a segment about the nursing home's conditions airing on a nationally televised network television program), the Senator who chaired the Committee on Aging pressured state and federal regulators into decertifying the nursing home. . Writing letters to political representatives and to media organizations are activities that are paradigmatic examples of traditional forms of petitioning government that are necessary and desirable in our country's democratic and representative political system, and thus well within the category of conduct the Noerr-Pennington doctrine is designed to immunize. See Noerr, 365 U.S. at 137 ("The whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that people cannot freely inform the government of their wishes would . . . be particularly unjustified.").
In the instant case, though, the crux of plaintiffs' complaint is that the University went beyond merely complaining or petitioning the government: plaintiffs claim that defendants were integrally involved in not only initiating (or publicizing or vocalizing or rallying public support around) a complaint, but in, among other things, carrying out the Cease Operations order that L & I issued to plaintiffs' businesses. As set forth in the facts above, University police officers were present at the time the L & I representative executed the Cease Operations Order, and they directed patrons to leave because the businesses were being shut down. There is no petitioning element to this activity. As plaintiffs put it, "Here the University defendants went far beyond 'making their wishes known to their government.' " Pl. S.J. Resp. Memo. at 14. The official presence of a University police officer at the posting and execution of the Cease Operations Order went beyond mere petitioning, and thus there is genuine issue of material fact as to whether the University's course of conduct as a whole went beyond First Amendment protected activity.
BY THE COURT:
MARVIN KATZ, J.