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Democracy Rising PA v. Celluci

March 20, 2009

DEMOCRACY RISING PA AND TIM POTTS, PLAINTIFFS
v.
JOHN R. CELLUCI, CHARLES A. CLEMENT, JR., CHARLES J. CUNNINGHAM, III, CECILIA GRIFFEN GOLDEN, PATRICK JUDGE, EDWARD R. KLETT, G. CRAIG LORD, CHARLENE R. MCABEE, CYNTHIA N. MCCORMICK, JACK A. PANNELLA, CAROLYN W. RUDNITSKY, JAMES R. WEAVER, AND PAUL J. KILLION, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is a First Amendment challenge to Canon 7B(1)(c) of the Pennsylvania Code of Judicial Conduct, which regulates the campaign activitiy of candidates for judicial office. Plaintiffs Democracy Rising PA and Tim Potts (collectively "plaintiffs") seek declaratory and injunctive relief to remedy prospective harms, and compensatory relief to rectify prior constitutional injuries allegedly caused by the canon. Defendants are members of the Pennsylvania Judicial Conduct Board*fn1 and the Pennsylvania Office of Disciplinary Counsel*fn2 (collectively "defendants"). Presently before the court is defendants' motion to dismiss. (Doc. 42.) For the reasons that follow, defendants' motion will be granted.

I. Statement of Facts*fn3

In Pennsylvania, candidates for judicial office are selected in the first instance through a partisan primary process, which is followed by a general election. (See Doc. 41 ¶ 2.) Once elected, judges stand for periodic "retention," wherein voters simply decide whether to retain the judge, or to remove him or her from office. (Id.) The campaign conduct of candidates for judicial office is governed by the Pennsylvania Code of Judicial Conduct ("the Code"), a body of regulations promulgated by the Pennsylvania Supreme Court. See PA. CONST. art. V, § 10. Canon 7B(1)(c) of the Code prohibits judicial candidates from "mak[ing] statements that commit the candidate with respect to cases, controversies or issues that are likely to come before the court." PA. CODE OF JUDICIAL CONDUCT Canon 7B(1)(c) (2009). In the parlance of First Amendment election law, this clause is often referred to as a "commits clause."*fn4

Defendants are responsible for ensuring that both judges and lawyer-candidates comply with the Code. The Pennsylvania Board of Judicial Conduct ("the Board") receives and investigates complaints regarding the campaign activity of sitting judges seeking retention.*fn5 (See Doc. 41 ¶ 5.) If the Board determines that there is probable cause to pursue formal disciplinary action against a judge, it may file charges and prosecute the matter before the Pennsylvania Court of Judicial Discipline. (See id.) Lawyers seeking judicial office must also adhere to Canon 7 of the Code. (See id. ¶ 6); see also PA. RULES OF PROF'L CONDUCT R. 8.2(b) (2009). Failure to do so may result in prosecution by the Pennsylvania Office of Disciplinary Counsel ("ODC"). (See Doc. 41 ¶ 7); see also PA. RULES OF DISCIPLINARY ENFORCEMENT R. 207(b) (2009). It is in the context of this regulatory framework that the court approaches the facts underlying the instant dispute.

Democracy Rising PA ("Democracy Rising") is a nonpartisan organization whose stated mission is to enhance the transparency of Pennsylvania's elected government. (Doc. 41 ¶ 19.) Tim Potts ("Potts") is president of the organization.

(Id. ¶ 20.) Between January and March of 2007, plaintiffs designed*fn6 and distributed a questionnaire to each candidate for judicial election and retention in the Commonwealth. (Id. ¶¶ 34-35.) The questionnaire contained over thirty inquiries designed to elicit each candidate's "general views on reforming the state courts." (Id. ¶¶ 38, 46.) Topics of interrogation included "(a) transparency in court governance; (b) acknowledgment of, and deference to, the role of the legislature; (c) regularity in judicial decision-making; and (d) strict enforcement of constitutional limits on the process of government." (Id. ¶ 41.) Additionally, the questionnaire included the following disclaimer: "[Y]our answers to these general questions are not intended to bind your decision in any particular case where a specific set of facts may lead to a judgment different from the views you express here." (Id. ¶ 39.) Plaintiffs nonetheless intended to publicize the candidates' responses by posting them on Democracy Rising's website. (Id. ¶ 8.)

When the questionnaires were distributed in 2007, Canon 7B(1)(c) prohibited judicial candidates from "mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." (Id. ¶ 3 (emphasis added)). Plaintiffs assert that several candidates "indicated a desire and willingness to answer [the] questionnaire but specifically stated they were prohibited from answering . . . because of the [commits clause]."*fn7 (Id. ¶ 47.) The written responses of six judicial candidates are proffered in support of this assertion. Relevant portions of these responses are excerpted below:

I believe that the Pennsylvania Code of Judicial Conduct prohibits a judicial candidate from answering specific questions which commit, or appear to commit, the candidate to a specific position with regard to these subjects, or any subject matter whatsoever. . . . I believe the spirit of the Code of Judicial Conduct also prohibits a candidate from expressing an opinion which would lead to speculation, or the appearance, that the candidate has formed any opinion before engaging in the full judicial process. . . .

Canon 7 of the Pennsylvania Code of Judicial Conduct prohibits a judicial candidate from making statements which commit or appear to commit a candidate to a position on an issue which may come before the Court. As such, there are certain questions on your questionnaire which I must decline to answer. . . .

I believe that Canon 7 of the Pennsylvania Code of Judicial Conduct prohibits a judicial candidate from making statements which commit or appear to commit a candidate to a position. . . . Any answer I may give to the specific questions posed may lead to speculation or the appearance that I have a pre-formed opinion on such matters. Therefore, I must respectfully decline to provide answers to the questionnaire submitted. . . .

I must respectfully decline to provide answers to the questionnaire you have submitted. This decision is based on Canon 7 of the Pennsylvania Code of Judicial Conduct, which generally outlines prohibitions for judges as well as candidates for judicial office. Specifically, part B(1)(c) states that a candidate for a judicial office "should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the 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 . . . ." The question is beyond the scope of what is permissible for a judicial candidate to answer. . . .

In observance of [Canon 7], which is valid law in this Commonwealth, I decline to state my opinion with respect to any controverted legal issues which may come before the Pennsylvania Supreme Court, as this would give the impression that I am pre-judging cases which may come before the Court. Furthermore, I would point out that public statements by judges, offering opinions on disputed issues which may come before the Supreme Court, will only open the door to recusal motions by parties seeking to have those judges disqualified and removed from hearing those cases. . . . (Id. ¶¶ 48-53 (emphases added)).*fn8

Based on these candidates' unwillingness to respond, plaintiffs sought a preliminary injunction on May 10, 2007-five days prior to the Pennsylvania primary election-prohibiting defendants from enforcing the commits clause against any judicial candidate responding to Democracy Rising's questionnaire. (See Doc. 1 at 23.) The court held a hearing on the preliminary injunction on May 14, 2007, but before reaching a disposition, our sister court in the Eastern District of Pennsylvania preliminarily enjoined the Board and ODC from enforcing Canon 7B(1)(c).*fn9 See Pa. Family Inst., Inc. v. Celluci (PFI I), 489 F. Supp. 2d 447, 460 (E.D. Pa. 2007). Because the preliminary injunction concerned the same ethics provision challenged by the above-captioned plaintiffs, this court stayed the instant matter in order to avoid duplicative litigation and to promote judicial economy. (See Doc. 19.)

On October 16, 2007, the Eastern District issued a ruling granting the defendants' motion for summary judgment and vacating the preliminary injunction. See Pa. Family Inst., Inc. v. Celucci (PFI II), 521 F. Supp. 2d 351, 355 (E.D. Pa. 2007). The PFI II court found that Canon 7B(1)(c) was constitutional both facially and as-applied, but it did so by reading the commits clause narrowly and deleting the "appear to commit" language therefrom. According to the court, "the phrase 'or appear to commit' makes the commits clause unconstitutionally vague;'" by deleting the language, "the clause's core prohibition [remains] intact, [and] only the standard by which violations will be determined" is clarified. Id. at 380. PFI II thus read the narrowly-construed canon to state that "[c]andidates . . . for a judicial office . . . should not . . . make statements that commit the candidate with respect to cases, controversies or issues." Id. Under this construction, "the clause only prohibits a judicial candidate from pledging, promising, or committing to decide an issue or a case in a particular way once elected judge." Id. (internal citation and quotation marks omitted).

On March 17, 2008, the Pennsylvania Supreme Court adopted PFI II's narrow construction and deleted the constitutionally questionable "appear to commit" language. The revised Canon 7B(1)(c), which reflects the canon's current incarnation, reads: "Candidates, including an incumbent judge, for a judicial office . . . should not make statements that commit the candidate with respect to cases, controversies or issues that are likely to come before the court; . . . ." PA. CODE OF JUDICIAL CONDUCT Canon 7B(1)(c) (2009) (amended Mar. 17, 2008).

Plaintiffs argue that this revision is substantively meaningless and merely constitutes an attempt to "maintain an ambiguous ethics rule to discourage judicial candidates from answering questions during political campaigns." (Doc. 41 at 4.)

On April 7, 2008, plaintiffs moved to lift the stay and reopen the above-captioned matter. (See Doc. 36.) The court granted the motion and plaintiffs thereafter filed a second amended complaint. (Doc. 41.) Plaintiffs argue that in its amended form, Canon 7B(1)(c) remains unconstitutionally vague and overbroad, and thus impairs the speech of candidates for judicial office, as well as citizens desirous of collecting and publishing information on, and criticizing the opinions and philosophy of, judicial candidates. (See, e.g., id. ΒΆΒΆ 56, 59, 66.) Defendants filed a motion to dismiss on June 6, 2008, questioning the justiciability of plaintiffs' contentions ...


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