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Democracy Rising PA v. Celluci


March 20, 2009


The opinion of the court was delivered by: Judge Conner


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. ¶¶ 56, 59, 66.) Defendants filed a motion to dismiss on June 6, 2008, questioning the justiciability of plaintiffs' contentions and arguing that the complaint fails to state a claim upon which relief can be granted.*fn10 (See Doc. 42.) The motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for "lack of subject-matter jurisdiction." FED. R. CIV. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) therefore challenges the power of a federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.").

Motions under Rule 12(b)(1) may take one of two forms. A "facial" attack "contests the sufficiency of the pleadings." Common Cause of Pa. v. Pennsylvania, --- F.3d ---, 2009 WL 467171, at *4-5 (3d Cir. Feb. 26, 2009) (quoting Taliaferro, 458 F.3d at 188). The court assumes the veracity of the allegations in the complaint but must examine the pleadings to ascertain whether they present an action within the court's jurisdiction. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). The court should grant such a motion only if it appears with certainty that assertion of jurisdiction would be improper. Empire Kosher Poultry, Inc. v. United Food & Commercial Workers Health & Welfare Fund of Ne. Pa., 285 F. Supp. 2d 573, 577 (M.D. Pa. 2003); see also Kehr Packages, 926 F.2d at 1408-09. If the complaint is merely deficient as pleaded, the court should grant leave to amend before dismissal with prejudice. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

In contrast, a "factual" attack argues that, although the pleadings facially satisfy jurisdictional prerequisites, one or more of the allegations is untrue, rendering the controversy outside of the court's jurisdiction. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In such circumstances, the court is both authorized and required to evaluate the merits of the disputed allegations because "the trial court's . . . very power to hear the case" is at issue.

Mortensen, 549 F.2d at 891; see also Atkinson, 473 F.3d at 514. In the motion sub judice, defendants present a facial attack on the court's subject matter jurisdiction; the court will analyze the justiciability claims accordingly.

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

A. Justiciability

Article III of the Constitution "limits the 'judicial power' to the resolution of 'cases' and 'controversies,'" McConnell v. Fed. Elec. Comm'n, 540 U.S. 93, 225 (2003), the existence of which "is a prerequisite to all federal actions, including those for declaratory or injunctive relief," Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003). The case or controversy requirement ensures that the judiciary's function is confined to "redress[ing] or prevent[ing] actual or imminently threatened injury to persons caused by private or official violation of law." Summers v. Earth Island Inst., --- U.S. ---, 129 S.Ct. 1142, 1148 (2009). In fact, the Supreme Court has declared that "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation on federal-court jurisdiction to actual cases or controversies." Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 127 S.Ct. 2553, 2562 (2007). The case or controversy requirement mandates that: (1) the plaintiff has standing to bring the action and (2) the plaintiff's claim is ripe for adjudication and (3) the claim does not suffer from mootness. Defendants contend that the allegations raised by plaintiffs lack all three elements of justiciability. The court will address each doctrine in turn.

1. Standing

Article III standing requirements are well established, and require a plaintiff to prove: (1) injury in fact, (2) a causal connection between the injury and the challenged action, and (3) a likelihood that the injury is redressible by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Pa. Psychiatric Soc'y v. Green Spring Health Servs., 280 F.3d 278, 288 n.8 (3d Cir. 2002). A plaintiff "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." Lujan, 504 U.S. at 561; see also Summers, --- U.S. ---, 129 S.Ct. at 1149 (stating that the plaintiff "bears the burden of showing that he has standing for each type of relief sought"). However, "at the pleading stage, general factual allegations of injury resulting from defendants' conduct may suffice," for on a motion to dismiss, the court presumes "that general allegations embrace those specific facts that are necessary to support the claim." Maio v. Aetna, Inc., 221 F.3d 472, 500 (3d Cir. 2000) (quoting Lujan, 504 U.S. at 561).

A plaintiff seeking injunctive relief "must show that he is under threat of suffering 'injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Summers, --- U.S. ---, 129 S.Ct. at 1149 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)); City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983) (declining to relax the standing requirement for plaintiffs seeking prospective relief). Relatedly, a party requesting a declaratory judgment must meet the constitutional standing requirements, "but need not have suffered the 'full harm expected.'" Khodara Envtl., Inc. v. Blakely, 376 F.3d 187, 193 (3d Cir. 2004) (quoting The St. Thomas-St. John Hotel & Tourism Ass'n v. Virgin Islands, 218 F.3d 232, 240 (3d Cir. 2000)); see also Lyons, 461 U.S. at 104 (dismissing declaratory action for lack of standing when plaintiff was unable to demonstrate "he may again be subject to [the challenged illegal action]").

In the First Amendment context, courts have eased traditional standing requirements to permit both potential speakers and potential recipients of speech to assert claims. See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976); Pa. Family Inst., Inc. v. Black, 489 F.3d 156, 165 (3d Cir. 2007). The rights of potential recipients of speech, however, are wholly derived from the rights of the speaker. In Virginia State Board, the Supreme Court opined: "Freedom of speech presupposes a willing speaker. But where a speaker exists . . . the protection afforded is to the communication, to its source and to its recipients both." 425 U.S. at 756; see also Black, 489 F.3d at 165 ("A precondition of asserting this 'right to receive,' however, is the existence of a 'willing speaker.'"). Standing concerns underlie the "willing speaker" requirement, which exists not "to tie the third party's interests to those of the speaker, but to ensure that there is an injury in fact." United States v. Wecht, 484 F.3d 194, 203 (3d Cir. 2007). Consequently, "where one enjoys a right to speak, others hold a 'reciprocal right to receive' that speech, which 'may be asserted' in court." Black, 489 F.3d at 165 (quoting Va. State Bd., 425 U.S. at 757).

In order to maintain a "right to listen" claim, the plaintiff must clearly establish that a willing speaker exists. Black, 489 F.3d at 166. Absent such proof, a court must dismiss the claim for lack of standing. Id. The Third Circuit recently explained a plaintiff's burden in the following manner:

[I]f there is no infringement claimed by a speaker-that is, someone who is willing to state that his rights were infringed upon, or that his exercise of rights was chilled by [the regulation in question,] there can be no violation of the right to listen. In determining standing, the right to listen depends entirely on the infringement on the rights of a willing speaker.

Id. at 166. A speaker is willing if he or she would have spoken but for the challenged speech regulation. Id.

Plaintiffs in the instant matter allege that Canon 7B(1)(c) abridges their right to collect and distribute information-an assertion that clearly invokes the right to listen. Additionally, plaintiffs argue that the canon directly violates their right to speak by infringing the ability to criticize candidates for judicial office. This "right to criticize" claim is merely a restyled right to listen contention, for the alleged abridgement occurs only because the candidates in question refrain from answering plaintiffs' questionnaire.*fn11 The court will thus focus its analysis on plaintiffs' right to listen to the speech of judicial office-seekers.

Plaintiffs point to the statements of six judicial candidates-reproduced supra-as evidence that Canon 7B(1)(c) impermissibly obstructs the speech of willing speakers. Four of the candidates specifically reference Canon 7 to justify their refusal to reply to plaintiffs' questionnaire. Although such evidence may establish the existence of willing speakers in early 2007, it is insufficient to do so in the present. The canon to which these four judicial candidates refer no longer exists and the language currently embodied in Canon 7B(1)(c) is significantly more narrow than it was when plaintiffs distributed their questionnaire.*fn12 Four of plaintiffs' respondents also cite the "appears to commit" language as justification for their silence; this language has subsequently been removed from Canon 7B(1)(c) by the Pennsylvania Supreme Court.*fn13 Plaintiffs present no evidence that but for the present-day Canon, judicial candidates would be willing to speak. See Black, 489 F.3d at 166 (requiring proof that a speaker "would have spoken" but for the challenged speech regulation). Rather, their evidence indicates that certain candidates may have been willing to speak but for an outdated Canon. This evidence is insufficient. Plaintiffs cannot satisfy the standing requirement for prospective relief by proffering evidence that a now-nonexistent regulation obstructed speech. Absent indicia of a prospective harm, plaintiffs lack a cognizable injury in fact. See Summers, --- U.S. ---, 129 S.Ct. at 1149; Lyons, 461 U.S. at 112. The court will thus dismiss the claims requesting both injunctive and declaratory relief for want of Article III standing.

With respect to the claims seeking compensatory relief, plaintiffs' evidence is sufficient to satisfy the standing requirement. Under the 2007 version of Canon 7B(1)(c), plaintiffs have demonstrated that several judicial candidates possessed a willingness to speak but for the canon. Multiple candidates specifically cite the canon or its language and one-Gary Gilman-references provision 7B(1)(c) in particular. (See Doc. 41 ¶¶ 48-53.) Additionally, each candidate who cited the canon did so unprompted, see Black, 489 F.3d at 168 (finding causation more likely when candidates cite ethics provisions unprompted), and indicated that the canon prohibited their response, see id. at 167; see also N.D. Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021, 1028-29 (D.N.D. 2005) (finding willing speaker when candidate indicated that the North Dakota Code of Judicial Conduct prevented his response); Family Trust Found. of Ky., Inc. v. Wolnitzek, 345 F. Supp. 2d 672, 680-82 (D. Ky. 2004) (finding willing speakers when candidates expressed desire to respond but for judicial canons). It is true that some of the candidates may have withheld a reply irrespective of Canon 7B(1)(c)'s existence, but five individual candidates justified their silence by referencing Canon 7 or its "appear to commit" language.*fn14

The court finds that this evidence adequately establishes the existence of a willing speaker. Accordingly, plaintiffs have standing to seek compensatory relief for the injuries suffered when judicial office-seekers refused to answer the questionnaires in early 2007.

2. Ripeness & Mootness

The doctrine of ripeness is designed to prevent a party from prematurely litigating an action. Khodara, 376 F.3d at 196; Peachlum, 333 F.3d at 433. Ripeness requires a "real, substantial controversy between parties having adverse legal interests." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) (quoting Ry. Mail Ass'n v. Corsi, 326 U.S. 88, 93 (1945)). The inquiry requires a court to consider factors such as whether: (1) "the parties are in a 'sufficiently adversarial posture to be able to present their positions vigorously,'" (2) "the facts of the case are 'sufficiently developed to provide the court with enough information on which to decide the matter conclusively,'" and (3) "a party is 'genuinely aggrieved so as to avoid expenditure of judicial resources on matters which have caused harm to no one.'" Khodara, 376 F.3d at 196 (quoting Peachlum, 333 F.3d at 433-34). Speech regulations often pose special difficulties for parties wishing to a present a live controversy, advanced in a "clean-cut and concrete form," see Renne v. Geary, 501 U.S. 312, 322 (1991) (quoting Rescue Army v. Mun. Court of L.A., 331 U.S. 549, 584 (1947)). Therefore, First Amendment challenges require relaxation of the ripeness inquiry, for "unconstitutional statutes or ordinances tend to chill protected expression among those who forbear speaking because of the law's very existence." Peachlum, 333 F.3d at 435.

The mootness doctrine necessitates that a litigant maintain standing to prosecute his or her lawsuit throughout the duration of the litigation. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980); see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). If at any point a claim ceases to "present[] a live case or controversy, the claim is moot and the federal court lacks jurisdiction to hear it." Nextel West Corp. v. Unity Twp., 282 F.3d 257, 261 (3d Cir. 2002). When a regulation is amended after litigation has commenced-and amendment eliminates those aspects of the regulation challenged by the suit-any claim for injunctive or declaratory relief becomes moot. See id. at 261-62 (collecting cases); see also Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir. 2003) (quoting Powell v. McCormack, 395 U.S. 486, 517-18 (1969)); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). The potential of compensatory relief typically avoids dismissal of a claim for mootness. See, e.g., Donovan, 336 F.3d at 218 (finding that plaintiff's claims for damages and attorney's fees continued to present live controversy even if claims for declaratory and injunctive relief were moot); Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir. 1985) ("[T]he availability of damages or other monetary relief almost always avoids mootness.")

Plaintiffs' lack of standing requires the court to dismiss those claims seeking prospective relief, and renders further discussion thereof superfluous to the court's disposition.*fn15 Plaintiffs' claims seeking monetary relief, however, are ripe and not moot. Potts contends that he spent time and money creating the questionnaire that was distributed by Democracy Rising. Plaintiffs thereafter solicited the response of numerous judicial candidates, some of whom ostensibly declined to answer because of Canon 7B(1)(c). These contentions concern an injury that allegedly transpired in early 2007; the extent of the injury is unaffected by the canon's recent amendment. Plaintiffs sufficiently allege that they had a right to listen to speech that was chilled, see Peachlum, 333 F.3d at 434-35 (relaxing ripeness standard in the context of a First Amendment challenge), and their request for damages allays mootness concerns, see Donovan, 336 F.3d at 218; Jersey Cent., 772 F.2d at 41. The court will therefore deny defendants' motion to dismiss the claims for compensatory relief on the grounds that they are not ripe or moot.

B. Claims Under 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of other federal laws. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir. 2004). To establish a claim under this section, the plaintiff must show the deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

In the action sub judice, plaintiffs allege the abridgement of their First Amendment right to listen. As discussed supra, plaintiffs have standing to assert claims seeking compensatory relief only-specifically, that the 2007 version of Canon 7B(1)(c) was unconstitutional and that it effected an injury upon plaintiffs. Plaintiffs seek monetary relief against each defendant in his or her official and individual capacity. Defendants contend that such claims are barred by theories of sovereign and qualified immunity. The court will assess these arguments seriatim.

1. Eleventh Amendment Sovereign Immunity

The Eleventh Amendment precludes private federal litigation against a state and its agencies.*fn16 Hans v. Louisiana, 134 U.S. 1, 15-16 (1890); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). This is a jurisdictional bar subject to only two exceptions: (1) Congress may specifically abrogate a state's sovereign immunity by exercising its enforcement power under the Fourteenth Amendment, or (2) a state may waive its sovereign immunity by consenting to suit. Coll. Sav. Bank v. Fla. Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). It is well settled that Congress had no intention to abrogate the states' sovereign immunity by enacting § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Furthermore, Pennsylvania has unequivocally withheld its consent to such suits. See 42 PA. CONS. STAT. § 8521(b); see also Lombardo, 540 F.3d at 196 n.3; Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

In the instant matter, defendants represent members of the Pennsylvania Judicial Conduct Board and the Pennsylvania Office of Disciplinary Counsel. Under the Pennsylvania Constitution, all state courts and many agencies within the judicial branch are part of a unified judicial system governed pursuant to the general supervisory and administrative authority vested in the Pennsylvania Supreme Court. See PA. CONST. art. V, §§ 1, 2, 10; see also Callahan v. City of Phila., 207 F.3d 668, 672 (3d Cir. 2000); Ludwig v. Berks County, Civ. A. No. 07-2127, 2007 WL 2463306, at *2 (E.D. Pa. Aug. 28, 2007). The Pennsylvania Supreme Court has explicitly held that the Judicial Conduct Board is an agency contained within the unified judicial system. See Commonwealth ex rel. Judicial Conduct Bd. v. Griffin, 918 A.2d 87, 94-95 (Pa. 2007) (interpreting provisions of PA. CONST. art. V, § 18). In addition, the Disciplinary Board of the Supreme Court of Pennsylvania-of which the Office of Disciplinary Counsel is a part-is encompassed within the unified judicial system. See Law Office of Christopher S. Lucas & Assocs. v. Disciplinary Bd. of the Supreme Court, 320 F. Supp. 2d 291, 295 (M.D. Pa. 2004), aff'd, 128 F. App'x 235 (3d Cir. 2005). Both agencies, as well as officials thereof, are thus immune from suit under the Eleventh Amendment principles described above. See Benn v. First Judicial Dist., 426 F.3d 233, 240-41 (3d Cir. 2005) (holding that when an arm of the unified judicial system is sued, the Commonwealth is the real party in interest); see also Will, 491 U.S. at 71 ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.").

Plaintiffs' official capacity claims represent nothing more than an attempt to bring suit against agencies of the state. As such, they are jurisdictionally barred by the Eleventh Amendment and must be dismissed. Leave to amend will be denied as futile. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile).

2. Individual Liability & Qualified Immunity

Qualified immunity protects a state actor who has committed constitutional violations if the plaintiff's rights were not "clearly established" when the individual acted. Pearson v. Callahan, --- U.S. ---, 129 S.Ct. 808, 815 (2009). The state actor is amenable to suit only if a reasonable person would have known that the state actor's conduct infringed the plaintiff's constitutional rights. Id.; see also Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007). No liability will attach if a reasonable state actor could have believed that the challenged conduct was lawful.*fn17 Springer v. Henry, 435 F.3d 268, 280 (3d Cir. 2006) ("[T]he court should ask whether the [official] acted reasonably under settled law in the circumstances.") (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991) (second alteration in original)). The doctrine provides officials "immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and "ensure[s] that 'insubstantial claims' against government officials will be resolved prior to discovery," Pearson, --- U.S. ---, 129 S.Ct. at 815 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)).

Plaintiffs argue that "defendants are not entitled to a qualified immunity defense because the challenged canon in force at the time of plaintiffs' injury violated clearly established constitutional rights announced in [Republican Party of Minnesota v.] White." (Doc. 44 at 31.) According to plaintiffs, the 2007 version of Canon 7B(1)(c) was conspicuously antithetical to the First Amendment. Plaintiffs contend that defendants, who were responsible for enforcing the canon, are thus accountable for the constitutional harms inflicted thereby. This contention is without merit.

A reasonable person would have concluded that the 2007 version of Canon 7B(1)(c) was constitutional. The ruling in Republican Party of Minnesota v. White held invalidated a judicial canon that read: "a candidate for a judicial office, including an incumbent judge, shall not announce his or her views on disputed legal or political issues." 536 U.S. 765, 768 (2002) (internal quotation marks omitted) (emphasis added). Shortly thereafter, the Pennsylvania Supreme Court issued an order revising Canon 7B(1)(c) so that it would comport with the requirements of the First Amendment.*fn18 See In re Amendment of Canon 7B(1)(c) of the Code of Judicial Conduct, 2002 Pa. LEXIS 3194, at *1 (Pa. Nov. 21, 2002). The amended canon was challenged on First Amendment grounds in 2007 in the Eastern District of Pennsylvania, and the court found that the narrowly-interpreted canon passed constitutional muster. See PFI II, 521 F. Supp. 2d 351. Thus, two judicial tribunals assessed the legality of Canon 7B(1)(c) and determined that it passed constitutional scrutiny. Defendants did not act unreasonably in arriving at a like-minded conclusion. The court finds that in 2007 plaintiffs' rights were not clearly established. Therefore, the court concludes that defendants are properly shielded by the doctrine of qualified immunity. The motion to dismiss plaintiffs' individual capacity claims requesting compensatory relief will be granted, and leave to amend will be denied as futile. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile).

IV. Conclusion

For the foregoing reasons, the court will dismiss the First Amendment claims levied against Canon 7B(1)(c) of the Pennsylvania Code of Judicial Conduct. Plaintiffs lack standing to seek declaratory or injunctive relief, and the allegations requesting compensatory relief are barred by the doctrines of sovereign and qualified immunity. Leave to amend is futile and will therefore be denied.

An appropriate order follows.


AND NOW, this 20th day of March, 2009, upon consideration of defendants' motion (Doc. 42) to dismiss, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. The motion (Doc. 42) to dismiss is GRANTED. All claims against defendants are DISMISSED. Leave to amend is denied as futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

2. The Clerk of Court is directed to CLOSE this case.

CHRISTOPHER C. CONNER United States District Judge

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