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Stilp v. Contino

June 29, 2009

GENE STILP, PLAINTIFF
v.
JOHN J. CONTINO AND THOMAS W. CORBETT, JR., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a motion (Doc. 2) for preliminary injunction filed by plaintiff Gene Stilp ("Stilp"). Stilp seeks to enjoin enforcement of § 1108(k) of the Public Official and Employee Ethics Act, 65 PA. CONS. STAT. § 1108(k), which prohibits disclosure by any person of information relating to an ethics complaint, preliminary inquiry, investigation, hearing, or petition for reconsideration that is pending before the Pennsylvania State Ethics Commission. The court held an evidentiary hearing on the motion on April 1, 2009,*fn1 after which the parties submitted additional briefing, (see Docs. 18, 20). For the reasons that follow, the motion for preliminary injunction will be granted in part and denied in part.*fn2

I. Factual Background

The Pennsylvania State Ethics Commission ("Commission") is an independent state agency responsible for administration and enforcement of the Public Official and Employee Ethics Act ("Act"). (Doc. 16 at 30.) The Act regulates financial conflicts of interest among public officials at the state and local level. (Id.) Defendant John Contino ("Contino") is the Commission's executive director. (Id. at 29.) He oversees the Commission's enforcement division, which investigates Act violations and ensures that public officials comply with the Act's various financial disclosure requirements. (Id. at 31-33.) Defendant Thomas Corbett, Jr., is Attorney General of the Commonwealth of Pennsylvania. The Attorney General's office is ultimately responsible for criminal enforcement of the Act.*fn3 (Id. at 80-81.)

A. Commission Investigations & Section 1108(k)

In 1978, the Pennsylvania state legislature created the Commission to police financial conflicts of interest that invariably arise to seduce those officials with whom the public places its trust. (See id. at 30); see also 65 PA. CONS. STAT. § 1101.1

("The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust."). Ethical misconduct investigations are initiated by one of two methods under the Act: (1) a private citizen may file a signed complaint with the Commission under penalty of perjury, or (2) the Commission may commence an investigation upon its own motion. (See Doc. 16 at 33); see also § 1108(a). There are three distinct phases to a Commission investigation. In the first, the Commission preliminarily reviews the complaint to ensure that allegations contained therein are sufficiently detailed to warrant further inquiry.*fn4 (See Doc. 16 at 34.) Complaints that fail to meet the threshold requirements are summarily dismissed. (See id. at 62-63.) Satisfaction of the threshold criteria requires the Commission to open a "probable cause period," during which it attempts to gather evidence concerning the allegations. (Id. at 36); see also § 1108(a). If the Commission uncovers probable cause of an ethics violation, a full investigation follows. (Doc. 16 at 36.); see also § 1108(c). In 2008, the Commission received 470 complaints; over 400 were summarily dismissed, seventy-five proceeded to a probable cause period, and the Commission initiated a full investigation in only forty cases. (Doc. 16 at 63.) As Contino explained, "by far the majority of complaints that come in the door do not even meet the threshold requirements." (Id.)

Strict confidentiality provisions govern all stages of the Commission's investigative process. Section 1108(k) of the Act states that "no person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary investigation, hearing or petition for reconsideration which is before the commission." This provision prohibits, inter alia, disclosure of the fact that an ethics complaint has been or will be filed with the Commission.*fn5*fn6 (Doc. 16 at 45, 64, 67-69; see also Pl. Hr'g Ex. 4.) The Act's prohibition on disclosure remains in effect during the pendency of the Commission's investigation. § 1108(k). According to Contino, however, § 1108(k) does not bar a complainant from publicizing the substantive allegations underlying his or her complaint as long as there is no reference to initiation of an ethics inquiry. (See Doc. 16 at 45.)

Eight exceptions to the confidentiality provision are set forth in the Act, permitting disclosure when: (1) the Commission has issued a final order, (2) the Commission conducts a public hearing on the matter, (3) a complainant is seeking the advice of counsel, (4) a complainant is appealing from a Commission order, (5) the purpose of the disclosure is to communicate with Commission staff in furtherance of an investigation, (6) a complainant is consulting with or responding to a request from law enforcement officials, (7) a complainant is testifying under oath before a governmental body, and (8) the subject of the complaint discloses the information. § 1108(k)(1)-(8).*fn7 Violation of § 1108(k) is a crime punishable by a fine of not more than $1000 and a period of imprisonment no greater than one year. § 1109(e).

B. Stilp's Conduct

Stilp is a private citizen who describes himself as "one of the leading critics of the [Pennsylvania] state legislature." (Doc. 16 at 7.) For the past several years, he has organized demonstrations protesting what he characterizes as government waste, and has initiated multiple lawsuits challenging legislative activities.*fn8 (Id. at 5-8.) In November 2007, Stilp became aware of allegations that Representative William DeWeese's*fn9 office was improperly using state tax revenues to fund political polling projects. (See id. at 9.) Concluding that these allegations were "something the ethics commission should investigate," Stilp completed a form complaint, wherein he demanded an inquiry into the purported misconduct.*fn10 (See id. at 9-12; Pl. Hr'g Ex. 1.) Before he filed the complaint, however, Stilp issued a press release headlined, "STATE ETHICS COMMISSION WILL BE ASKED TO INVESTIGATE POLITICAL NATURE OF $290,000 POLLING CONTRACT." (See Doc. 16 at 12-14; Pl. Hr'g Ex. 1.) A copy of Stilp's signed, notarized, but unfiled complaint was attached to the press release. (See Pl. Hr'g Ex. 1.) Hours after issuing the release, Stilp formally filed his complaint with the Commission. (Doc. 16 at 14.)

The Commission sent a letter to Stilp the following day, indicating that the complaint "failed to provide sufficient specific information to make a determination as to whether or not this matter should be pursued as an investigation." (Pl. Hr'g Ex. 2.) The letter further explained that the complaint "failed to identify a specific individual about whom [Stilp] was complaining." (Id.) As a result, the Commission summarily dismissed Stilp's complaint approximately twenty-four hours after it was filed. (Id.)

On January 31, 2008, Stilp received a letter from Contino on behalf of the Commission. (Pl. Hr'g Ex. 3.) This correspondence stated that the Commission was commencing an investigation into Stilp's disclosure to the media that he intended to file the November 2007 complaint against Representative DeWeese.*fn11 (Id.) The letter described criminal penalties applicable to Stilp's conduct, indicated that the Commission may issue subpoenas to compel witness attendance and document production, and advised that representation by counsel was appropriate. (See id.) The Commission thereafter began its investigation, which continued through October 2008. (See id.; see also Doc. 16 at 19-21.)

On October 16, 2008, Stilp entered into a consent decree with the Commission, under the terms of which he admitted to violating § 1108(k) of the Act and acceded to pay a $500 fine. (Pl. Hr'g Ex. 5.) The Commission agreed to forego additional criminal sanctions. (See id.) In its final order concluding the investigation, the Commission explained:

[Stilp] believed that distributing the complaint prior to [its] filing... would not breach the confidentiality provisions of the Ethics Act. However, we have held that the prohibition of Section 1108(k) of the Ethics Act encompasses a complaint that will be pending before this Commission.... Accordingly, we hold that a violation of Section 1108(k) of the Ethics Act occurred when [Stilp] disclosed or acknowledged to other persons information relating to a complaint he was filing or filed against a public official with the Commission." (Id. (emphasis in original)). Stilp complied with the terms of the decree, but has expressed the desire to file one or more complaints with the Commission in the future, and to disclose publicly his filing thereof. (See Doc. 16 at 25-27.) Stilp explained that he is wary of pursuing this course of conduct, however, "because of the ethics commission reaction if I was to publicize [the complaint] before I filed." (Id. at 26.)

C. Procedural History

On March 20, 2009, Stilp commenced the instant action by filing a complaint and moving for a preliminary injunction. (See Docs. 1, 2.) Stilp claims that § 1108(k) of the Act violates the First Amendment on its face and as applied to the above-described circumstances. The court heard testimony and received evidence on the motion for preliminary injunction on April 1, 2009, (see Doc. 16), and supplemental briefing followed, (see Docs. 18, 20). The motion has now been fully briefed and is ripe for disposition.

II. Discussion

The requirements for preliminary injunctive relief are well settled. The moving party must establish that: (1) there is a reasonable probability of success on the merits, (2) irreparable injury will result without injunctive relief, (3) granting the injunction will not result in even greater harm to the non-movant, and (4) the injunction is in the public interest. See Rogers v. Corbett, 468 F.3d 188, 192 (3d Cir. 2006); P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005) (explaining that the burden of demonstrating each element falls upon the movant); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001). Although each factor need not be established beyond doubt, they must combine to show the immediate necessity of injunctive relief. See Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002); see also Walgreen Co. v. Sara Creek Prop. Co., 966 F.2d 273, 275-79 (7th Cir. 1992); 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2948.3 (2d ed. 1995).

A. Reasonable Probability of Success on the Merits

To establish a reasonable probability of success on the merits, the moving party must produce sufficient evidence to satisfy the essential elements of the underlying cause of action. See Punnett v. Carter, 621 F.2d 578, 582-83 (3d Cir. 1980); McCahon v. Pa. Tpk. Comm'n, 491 F. Supp. 2d 522, 527 (M.D. Pa. 2007). Whether success is likely requires examination of legal principles controlling the claim and potential defenses available to the opposing party. See BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 264 (3d Cir. 2000). The mere possibility that the claim might be defeated does not preclude a finding of probable success if the evidence clearly satisfies the essential prerequisites of the cause of action. Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001) (citing 11A WRIGHT ET AL., supra § 2948.3). In the context of a First Amendment challenge, "[t]he most significant and, indeed, the dispositive prong of the preliminary injunction analysis... is whether the plaintiffs bore their burden of establishing that they had a reasonable probability of succeeding on the merits...." ACLU v. Ashcroft, 322 F.3d 240, 250-51 (3d Cir. 2003); see also ACLU v. Reno, 217 F.3d 162, 180 (3d Cir. 2000) (holding that a plaintiff that establishes a reasonable probability of succeeding on the merits of a First Amendment claim will "almost certainly" suffer irreparable injury, and that "[c]urtailing constitutionally protected speech will not advance the public interest"), vacated on other grounds sub nom., Ashcroft v. ACLU, 533 U.S. 973 (2001).

Stilp alleges that his First Amendment right to speech was unconstitutionally infringed, a claim that is actionable against defendants pursuant to 42 U.S.C. § 1983. Section 1983 affords an entitlement to relief where official action deprives an individual of his or her First Amendment rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978); see also Burnett v. Graham, 468 U.S. 42, 43-48 (1984) (assuming applicability of § 1983 as remedy for contravention of constitutionally protected speech). To enjoin application of an unconstitutional state statute under § 1983, a plaintiff must bring suit against those officials charged with enforcement of the contested measure. See Kentucky v. Graham, 473 U.S. 159, 166-67 & n.14 (1985); Ex Parte Young, 209 U.S. 123, 153-61 (1908). Accordingly, Stilp identifies Contino and Corbett as responsible for enforcement of § 1108(k) of the Act, and he seeks injunctive relief to conform defendants' official conduct to the contours of the First Amendment.

The First Amendment prohibits government from "abridging the freedom of speech." U.S. CONST. amend. I. An individual's publication of information regarding alleged governmental misconduct is speech "that has traditionally been recognized as lying at the core of the First Amendment." Butterworth v. Smith, 494 U.S. 624, 632 (1990). As the Supreme Court explained in New York Times Co. v. Sullivan, ours is a country with "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and... it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." 376 U.S. 254, 270 (1964). Consequently, executive or legislative branch efforts to prohibit criticism of public officials must be approached with great skepticism.

Government restrictions on speech "based on its content are 'presumptively invalid' and subject to strict scrutiny." Ysursa v. Pocatello Educ. Ass'n, --- U.S. ---, 129 S.Ct. 1093, 1098 (2009) (quoting Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 188 (2007)). Strict scrutiny requires that the contested speech restriction is "narrowly tailored to serve a compelling government interest." Pleasant Grove City v. Summum, --- U.S. ---, 129 S.Ct. 1125, 1132 (2009); Ashcroft, 322 F.3d at 251 ("Strict scrutiny requires that a statute (1) serve a compelling governmental interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of advancing that interest."). In the matter sub judice, the challenged provision-§ 1108(k) of the Act-penalizes an individual based upon the content of his or her speech; in particular, an individual is subject to prosecution based on whether he or she discloses that a complaint has been or will be filed. Therefore, strict scrutiny is appropriate.*fn12

Defendants acknowledge that § 1108(k) restricts speech critical of government officials, (see Doc. 18 at 6-7), but they claim that the confidentiality provision is narrowly tailored to effectuate important state interests. After all, § 1108(k) prohibits a complainant not from trumpeting allegations that a public official is responsible for violations of Pennsylvania's ethics laws, but from publicizing the fact that he or she filed a complaint with the Commission requesting an investigation into such conduct. According to defendants, this prohibition on disclosure is necessary to empower the Commission to wade through a myriad of ethical conundrums unimpeded by the swift current of the media.

Defendants proffer six governmental justifications in support of ยง 1108(k). The confidentiality provision is purported to prevent (1) publication of complaints in order to manipulate the electoral process, (2) utilization of a complaint as a means of retaliation, (3) utilization of a complaint to undermine an ongoing investigation in a separate matter, (4) utilization of a complaint in an attempt to influence an non-Commission government decision maker, (5) damage to the reputation of public officials, and (6) interference with ongoing Commission investigations. (See Doc. 16 at 47-62; Doc. 18 at 4-5.) Unless these interests are both ...


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