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PENNSYLVANIA FAMILY INSTITUTE, v. BLACK

November 4, 2005.

PENNSYLVANIA FAMILY INSTITUTE, et al., Plaintiffs,
v.
THOMAS C. BLACK, III, et al., Defendants.



The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM

Before the court is Plaintiffs' Motion for a Preliminary Injunction. The Preliminary Hearing and Trial on the Merits was held on November 1, 2005. The parties have briefed the issues and the matter is ripe for disposition. For the reasons discussed below, the court finds that Plaintiffs lack standing and that the case is not ripe for adjudication. Accordingly, the court will deny the Motion for a Preliminary Injunction and will dismiss the Complaint, without prejudice.

I. Background

  A. Factual Background

  Plaintiffs' challenge the constitutionality of provisions of the Pennsylvania Judicial Canons and Rules Governing Standards of Conduct of District Justices. The specific provisions at issue are the following:

  1) Judicial Canon 7B(1)(c) and Rule 15D(3), which provide in relevant part that judicial candidates "should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" ("the pledges and promises clause") or "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court. . . ." ("the commitment clause"); and

  2) Judicial Canon 3C(1) and Rule 8A, which require a judge to recuse himself from proceedings in which the judge's "impartiality might reasonably be questioned" ("the recusal clause").

  Plaintiff Pennsylvania Family Institute ("PFI") is a non-profit research and education organization that is not associated with any political candidate, party, or campaign committee. Plaintiffs Ronald N. Cohen and Charles L. Stump are individuals and residents of Pennsylvania. Defendants are the members of the Pennsylvania Judicial Conduct Board and the Disciplinary Counsel of the Pennsylvania Office of Disciplinary Counsel.

  One of the things that PFI does is gather information about candidates for public office through questionnaires, which it then publishes to its members and other citizens. On September 2, 2005, PFI mailed a "2005 Pennsylvania Family Institute Judicial Candidate Questionnaire" to all Pennsylvania judicial candidates*fn1 for the November 8, 2005 election. The accompanying cover letter indicated that the questionnaire results would be published in a Voter's Guide posted on PFI's web site. In addition, the cover letter stated:
As a judicial candidate, we understand that you are subject to the Pennsylvania Code of Judicial Conduct. We believe your responses to our Questionnaire are constitutionally protected under Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which struck down on First Amendment grounds a Minnesota Judicial Canon that prohibited judicial candidates from "announc[ing] their views on disputed legal or political issues." However, if you remain fearful that you may not answer our Questionnaire under the Code of Judicial Conduct, then you should seek an advisory opinion from [the Pennsylvania Judicial Conduct Board or the Pennsylvania Lawyers' Disciplinary Board.]
The questionnaire contains the following questions:
1. Which of the following former U.S. Presidents best represents your political philosophy? John F. Kennedy/Jimmy Carter/Ronald Reagan/George Bush (former)/Undecided/Decline to Answer (circle one)
2. Which one of the current Justices of the U.S. Supreme Court most reflects your judicial philosophy? Rehnquist/Stevens/O'Connor/Scalia/Kennedy/ Thomas/Souter/Ginsburg/Breyer/Undecided/Decline to Answer (circle one)
3. Do you believe that Roe v. Wade, 410 U.S. 113 (1973), insofar as it recognizes a "right to privacy" that includes abortion under the United States Constitution, was correctly or incorrectly decided? Correctly Decided/Incorrectly Decided/Undecided /Decline to Answer (circle one)
4. Rate your judicial philosophy on a scale of 1-10 with "living document" approach being a "1" and "strict constitutionalist" or "originalist" being a "10." 1 2 3 4 5 6 7 8 9 10 Decline to Answer (circle one)
5. Do you believe that the Pennsylvania Constitution permits a display of the Ten Commandments in courtrooms? Yes/No/Undecided/Decline to Answer (circle one)
6. Do you believe that the Pennsylvania Constitution recognizes a right to same-sex marriage? Yes/No/ Undecided/Decline to Answer (circle one)
7. Do you believe that the Pennsylvania Constitution permits student-led prayers in public schools? Yes/ No/Undecided/Decline to Answer (circle one) 8. Please list the five organizations in which you are most involved as a member, through contributions, and/or through volunteering.
  In addition, each of the first seven questions included an asterisk next to the "Decline to Answer" option and each page of the questionnaire included the following footnote:
 
* This response indicates that I believe that I am prohibited from answering this question by Canon 7(B)(1)(c) of the Pennsylvania Canons of Judicial Conduct, which states that judicial candidates may not "make pledges or promises of conduct in office" or "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court," and that I will have to disqualify myself as a judge in any proceeding concerning this matter on account of Canon 3(C)(1) because my "impartiality might reasonably be questioned" if I answered this question.
  PFI attached sixteen completed questionnaires to its Brief in Support of its Motion for a Preliminary Injunction. Four candidates who returned those questionnaires provided answers other than "decline to answer" to all of the questions. With respect to questions one through seven, anywhere from four to eleven candidates circled "decline to answer," depending upon the question.
  One candidate specified that he declined to answer question one because "personal philosophy irrelevant for common pleas court, [sic]" but specified that he declined to answer question five because it could come before the court. Another candidate declined to answer questions five through seven but included statements of general beliefs that were not responsive to the specific questions posed. Otherwise, no candidates commented or elaborated on why they declined to answer particular questions. Finally, two sitting trial judges, Louis J. Farina and Michael A. Georgelis, did not return completed questionnaires but wrote a letter to Michael Geer, President of PFI, that stated:
Dear Mr. Geer:
This is in response to your request that we complete the Pennsylvania Family Institute's Voter Guide questionnaire. As sitting trial judges for the past 20 years, we have authored many published opinions (as well as unpublished that are available for public inspection in the County Law Library) that can be examined to evaluate our competency as trial judges. In deciding upon the issue of our retention, the electorate is not dealing with individuals whose judicial perspective and abilities are unknown or unknowable.
We must respectfully decline to complete your questionnaire as we believe it attempts to identify how a judge would approach and rule upon issues that may come before him/her as a sitting judge. We are aware of your organization and its work and intend no disrespect by declining to complete your questionnaire.
  PFI subsequently contacted Pennsylvania's Judicial Conduct Board ("the Board") regarding whether judicial candidates could respond to the questionnaire without fear of discipline. Joseph A. Massa, Jr., Chief Counsel for the Board, responded to the request in a letter dated October 12, 2005, stating that because the Board's role is to "review, investigate, and where merited, prosecute complaints of judicial misconduct by judges" it is prohibited from rendering advisory opinions.

  PFI next contacted the Ethics Committee of the Pennsylvania Conference of State Judges ("Ethics Committee") in a letter dated October 13, 2005, seeking an answer to the same question of whether judicial candidates could respond to the questionnaire. Anne E. Lazarus, Chair of the Ethics Committee, replied in a letter dated October 14, 2005, stating that she could not answer PFI's inquiry because the Committee "only give[s] advice to those individuals subject to the Code and those opinions are confidential to the advisees."

  B. Procedural History

  PFI filed a Verified Complaint for Injunctive and Declaratory Relief on October 24, 2005. On the same day, PFI filed a Motion for Preliminary Injunction and Temporary Restraining Order. The court held a hearing on the temporary restraining order on October 27, 2005. The court denied the motion for the temporary restraining order, but held ...


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