United States District Court, M.D. Pennsylvania
November 4, 2005.
PENNSYLVANIA FAMILY INSTITUTE, et al., Plaintiffs,
THOMAS C. BLACK, III, et al., Defendants.
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
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.
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
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?
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
5. Do you believe that the Pennsylvania Constitution
permits a display of the Ten Commandments in
courtrooms? Yes/No/Undecided/Decline to Answer
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
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
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
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
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 the Preliminary Hearing and trial on
the merits*fn2 soon thereafter, on November 1, 2005.
At the November 1, 2005 hearing the parties debated the issues
of standing and ripeness, as well as Plaintiffs' claims that the
various provisions are unconstitutional either facially or as
applied or both. The weight of Defendants' arguments, at the
hearing and in their Memorandum in Opposition of Plaintiffs'
Motion for Preliminary Injunction, rested upon Plaintiffs'
failure to identify any judicial candidates as "willing
speakers." Defendants argue, therefore, that Plaintiffs fail to
satisfy threshold standing and ripeness requirements. The court
will address these arguments below. II. Discussion
A. Standing Requirements
Three well-established constitutional standing requirements are
set forth in Lujan v. Defenders of Wildlife: 1) "injury in
fact" that is "concrete and particularized" and "actual or
imminent"; 2) a causal connection between the injury alleged and
the "challenged action of the defendant"; and 3) the injury is
likely (speculation is insufficient) to be "redressed by a
favorable decision." 504 U.S. 555, 560-61 (1992). Moreover,
"[t]he party invoking federal jurisdiction bears the burden of
establishing these elements. Since they are not mere pleading
requirements but rather an indispensable part of the plaintiff's
case, each element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof. . . ."
Id. at 561 (internal citations omitted).
When, as in the instant case, the plaintiff "is not himself the
object of" the challenged government action or inaction, standing
is not precluded but is "ordinarily `substantially more difficult
to establish.'" Id. at 562. In addition, prudential standing
requirements typically require that plaintiff "must assert
[their] own legal rights and interests and cannot rest [their]
claim to relief on the legal rights or interests of third
parties." Sec'y of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947, 955 (1984). However, in the First Amendment context the
Supreme Court has relaxed its traditional rules of standing to
permit "attacks on overly broad statutes with no requirement that
the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with the requisite
narrow specificity." Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486
(1965)). The relaxation of standing requirements within the First Amendment context reflects concerns
that society would otherwise suffer a greater harm if free speech
were chilled because potential speakers choose not to speak
rather than risk punishment. See Sec'y of State of Md.,
467 U.S. at 956-57.
Accordingly, the First Amendment extends protection to
recipients of speech as well as to the source of the speech. Va.
State Bd. of Pharm. v. Va. Citizens Consumer Council,
425 U.S. 748, 756 (1976). However, "[f]reedom of speech presupposes a
willing speaker." Id. Thus, even in a relaxed First Amendment
context, the standing of "listeners" turns upon the existence of
a "willing speaker." See Spargo v. N.Y. State Comm'n on Judicial
Conduct, 351 F.3d 65, 83-85 (2d Cir. 2003).
B. Ripeness Requirements
The ripeness doctrine precludes a court from hearing a dispute
before it is "sufficiently concrete to satisfy the constitutional
and prudential requirements of the doctrine." Khodara Envtl.,
Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) (citing Abbott
Labs. v. Gardner, 387 U.S. 136, 148-149 (1967), overruled on
other grounds, Califano v. Sanders, 430 U.S. 99 (1977)). In
determining ripeness, the court considers factors such as
"whether the parties are in a `sufficiently adversarial posture
to be able to present their positions vigorously,' whether the
facts of the case are `sufficiently developed to provide the
court with enough information on which to decide the matter
conclusively,' and whether a party is `genuinely aggrieved so as
to avoid expenditure of judicial resources on matters which have
caused harm to no one.'" Id. (citing Peachlum v. City of New
York, 333 F.3d 429, 433-34 (3d Cir. 2003). The ripeness inquiry is two-fold. The court must examine 1)
"the fitness of the issues for judicial determination" and 2)
"the hardship of the parties of withholding court consideration."
Abbott Labs, 387 U.S. at 149.
Plaintiffs lack standing because they fail to adduce sufficient
evidence of a willing speaker. The court's finding that
Plaintiffs' failure to present a sufficiently ripe claim is
similarly based upon this insufficiency in the existing factual
record. Thus, the court's standing and ripeness findings overlap
to some extent; accordingly, the court will address both issues
Plaintiffs fail to specifically identify any judicial candidate
who is a willing speaker. Plaintiffs cannot establish standing as
listeners or receivers of protected speech unless they are able
to identify a willing speaker. Spargo, 351 F.3d at 84 n. 19.
(citing Competitive Enter. Inst. v. U.S. Dept. of Transp.,
856 F.2d 1563, 1566 (D.C. Cir. 1988) (noting that "a government
regulation cannot cause [a First Amendment deprivation to a
listener] unless plaintiffs can identify a willing speaker");
Basiardanes v. City of Galveston, 682 F.2d 1203, 1211 (5th Cir.
1982) (stating that listeners "have standing only if there is a
speaker who wishes to express himself or herself")).
Other courts that have considered the virtually identical issue
regarding constitutionality of judicial canon provisions have
determined that standing requirements were met, but in different
factual circumstances than are presently before this court.
Standing for non-candidate parties has been proper in other cases
because either a judicial candidate was also a plaintiff or made
an affirmative statement that he or she would engage in speech but for the
judicial canons.*fn3 In Family Trust Foundation of Kentucky
v. Wolnitzek former Circuit Judge Will T. Scott stated that he
could not answer some of the questionnaire's questions due to the
judicial canons, although he wanted to. 345 F. Supp. 2d 672,
682 (E.D. Ky. 2004), stay denied by 388 F.3d 224 (6th Cir.). In
addition, Janet Stumbo, a sitting Justice of the Supreme Court of
Kentucky, stated in a letter to the plaintiffs that she
"regret[ted] that [she was] unable to participate in [the]
educational endeavor" due to the judicial canons. Id. (emphasis
In North Dakota Family Alliance, Inc. v. Bader, candidate
Steven L. Marquart wrote a letter stating "[a]s much as [he]
would like to respond to the questions, the North Dakota Code of
Judicial Conduct [prevented him] from doing so."
361 F. Supp. 2d 1021, 1028-29 (D.N.D. 2005) (emphasis added). Another candidate,
Leo F.J. Wilking wrote "unfortunately, I am prohibited by Canon
5 . . . from responding to this type of survey." Id. at 1029
In Spargo, the court determined that third party plaintiffs
McNally and Kermani had standing insofar as their claims were
inextricably intertwined with those of Thomas J. Spargo, an
incumbent judge who was also a plaintiff in the action.
351 F.3d at 83 (McNally's and Kermani's claims were vacated along with
Spargo's under the Younger doctrine and could not independently
survive abstention because McNally and Kermani failed to identify
any other candidates who were willing speakers). Finally, although standing was not an issue before the Supreme
Court in Republican Party of Minnesota v. White, a judicial
candidate was one of the plaintiffs, so the willing speaker
requirement appears to have been satisfied there as well.
536 U.S. 765, 768 (2002).
In contrast, the instant Plaintiffs, none of whom are judicial
candidates themselves, fail to provide any affirmative statements
by candidates that would indicate that any of the candidates are
willing speakers. Plaintiffs offer only the "decline to answer"
questionnaire responses, linked to the boilerplate footnote, as
such evidence. However, although those responses may be
sufficient to establish that the candidates believed that the
judicial canons prevented them from providing those answers, they
fail to establish that any of the candidates would have provided
the answers but for the judicial canons.
Moreover, absent such evidence, the court refuses to speculate
as to the candidates' personal beliefs regarding the judicial
canons. Put simply, on the record before the court, it is just as
likely as not that the candidates believe that it is more prudent
for them to refrain from providing such answers or otherwise hold
independent beliefs that are consistent with the goals of the
judicial canons. Therefore, Plaintiffs fail to satisfy their
burden of establishing that a willing speaker exists and are
unable to satisfy standing requirements.
Plaintiffs have also argued to some extent that they have
willing speakers with respect to the questions that candidates
have provided answers for, but that PFI is still chilled from
publishing that information by the canons. The court is not
persuaded by this argument. Granted, the four candidates who
answered all of the questions and the other candidates who
provided answers to at least some of the questions appear to be willing speakers with respect to the
answers provided. However, there is nothing barring PFI from
disseminating that information. In order for Plaintiffs to claim
that they are injured from the chilling of speech, they would, as
a practical matter, need to show that speech has been chilled.
The candidates have spoken; thus, no speech has been chilled in
Moreover, Plaintiffs' argument that the chilling occurs when
PFI refrains from publishing the provided responses out of fear
that the candidates will be punished is too speculative on the
instant facts. The court will not address the merits of whether,
in the First Amendment context, punishment to candidates who have
already chosen to answer the questions would establish standing
for the instant non-candidate Plaintiffs. The court does not
reach that issue here because the fear of punishment is simply
The ripeness inquiry does not require Plaintiffs to take steps
that would conclusively subject candidates to sanctions or other
hardships before the court may hear the claim. See Abbott
Labs., 387 U.S. at 153. However, a comparison with prior cases
illustrates that the present factual record is insufficient to
support Plaintiffs' stated fear.
In Wolnitzek, the factual record included decisions of
Kentucky courts that had already examined how the state's
disciplinary bodies had interpreted the judicial canons in
enforcement actions. 345 F. Supp. 2d at 688, 691-92 (discussing
Ackerson v. Ky. Judicial Retirement and Removal Comm'n,
776 F. Supp. 309 (W.D. Ky. 1991); and Deters v. Judicial Retirement and
Removal Comm'n, 873 S.W.2d 200 (Ky. 1994); and Summe v.
Judicial Retirement and Removal Comm'n, 947 S.W.2d 42 (Ky.
1997)). Moreover, following the Supreme Court's White decision, the Kentucky Judicial Conduct Commission and Ethics
Committee issued memoranda stating that Kentucky's judicial
canons were still valid post-White. Wolnitzek,
345 F. Supp. 2d at 694. In contrast, the present record is devoid of any
interpretation of the judicial canons by Pennsylvania's courts,
the Pennsylvania Judicial Conduct Board, or the Pennsylvania
Office of Disciplinary Counsel. In sum, the facts of this case
are not sufficiently developed for this court to rule
conclusively. Thus, Plaintiffs fail to establish that the case is
ripe for adjudication.
For the foregoing reasons, Plaintiffs fail to satisfy standing
and ripeness requirements. Accordingly, the court will deny
Plaintiffs' Motion for a Preliminary Injunction and dismiss the
Complaint, without prejudice. An appropriate order will issue. ORDER
In accordance with the accompanying memorandum of law, IT IS
HEREBY ORDERED THAT:
1) Plaintiffs' Motion for a Preliminary Injunction is DENIED;
2) Plaintiffs' Complaint is DISMISSED, without prejudice; and
3) The Clerk of Court is directed to close the file.
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