The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION FOR JUDGMENT ON THE PLEADINGS
In the context of a township council meeting, what is the correct balance between free speech rights versus parliamentary rules, including a limitation on comments by a township councilman? Defendant Linda Tarlini's Motion for Judgment on the Pleadings challenges Plaintiff Donald Mobley's allegations of First Amendment violations of free speech, right to petition, and retaliation; a Fourteenth Amendment violation of equal protection; and a Pennsylvania Constitution violation of free speech. The allegations arise from both parties' participation as Council members at the Bristol Township Council meeting on February 5, 2009.
Although Plaintiff's Complaint is conclusory, he has filed, in opposition to Defendant's Rule 12(c) Motion, an affidavit asserting by Defendant's personal and political animosity against him. Federal Rule 12(d) requires the Court to convert this to a Motion for Summary Judgment and allow some time for reasonable discovery, followed by supplemental briefing. Fed. R. Civ. P. 12(d). The Court will therefore schedule a prompt telephone conference and instructs counsel to discuss a proposed discovery schedule before the conference. As such, Defendant's Motion for Judgment on the Pleadings will be denied without prejudice as to the free speech and First Amendment claims, but the Court will grant the Motion as to the equal protection claim.
However the Court writes to review the applicable law as to all claims so that the parties are aware of the legal standard to be applied on summary judgment after supplemental briefing.
I. Factual Background and Procedural History
Plaintiff Don Mobley is a citizen of Bucks County and is a currently-sitting Bristol Township Councilman. (Compl. 1.) Defendant Linda Tarlini is the President of the Council. (Compl. 1.) On February 5, 2009, both parties attended a Bristol Township Council meeting as sitting members of the Council. (Compl. 1.) During the Council meeting, a motion was made and seconded concerning an application for a $5.5 million federal grant; the grant would be used to match a state loan for local sewer plant improvement projects. (Compl. ¶ 6; Ans. ¶ 6, Ex. A 23:30-23:45.)*fn1 After the motion was made, Plaintiff asked a question about the amount of the loan. (Ans. Ex. A 23:53.) Discussion ensued, and during the discussion, Plaintiff spoke twice on the topic of the motion. (Ans. Ex. A 25:33-29:55.) Prior to Plaintiff's second comment on the motion, Defendant stopped Plaintiff from speaking because not all Council members had spoken a first time on the motion. Defendant explained, "As long as another Council member wants to talk I have to allow them to talk first." (Ans. Ex. A 28:05.) After Vice President Rick Pluta spoke about the need to apply for the grant quickly, Defendant then allowed Plaintiff to speak a second time. (Ans. Ex. A 29:05.) Plaintiff's comments included the statement:
I agree that we have to do this. But I tell you what, I don't like the way that things are done quietly behind closed the door and at the last minute. If you want the people to support you, then you bring it out to the people and you let them know exactly what you're spending and what you're earmarking those dollars for. (Ans. Ex. A 29:31-29:46.) Defendant then commented on Plaintiff's remarks, and Plaintiff responded to Defendant. (Ans. Ex. A 29:55-31:13.) Vice President Pluta then spoke a second time, with a brief interruption by Plaintiff. (Ans. Ex. A 31:15-32:23.)
When Plaintiff attempted to speak a third time on the motion, Defendant told Plaintiff that he was not allowed to speak more than twice on the same subject pursuant to Robert's Rules of Order.*fn2 (Ans. ¶ 7.) Their exchange went as follows:
Mobley: Well, to the chair.
Tarlini: Excuse me, Mr. Mobley. In the Robert's Rules of Order, each Council person is allowed to speak twice on the same subject.
Mobley: Russ, can you give me an opinion on that, please?*fn3
Tarlini: Mr. Mobley. Mr. Mobley, I have the floor at the moment. I'll tell you what it says.
Mobley: Dictatorship all over again. [applause in the background]
Tarlini: Mr. Mobley, I'm reading from the Robert's Rules of Order.
Mobley: It's amazing, Linda. When you want to speak, you always had your opportunity to speak . . . (Ans. Ex. A 32:25-32:55.) Defendant then turned off Plaintiff's microphone. (Ans. Ex. A at 32:55.) Defendant asserts that Plaintiff's microphone was "turned off solely because he attempted to speak for a third time regarding the same motion," in violation of Robert's Rules, and "after explicitly seeking confirmation from the Solicitor." (Ans. ¶¶ 7, 8.)
The rule in question in Robert's Rules of Order states: NUMBER OF SPEECHES ON THE SAME QUESTION PER MEMBER PER DAY. Unless the assembly has a special rule providing otherwise, no member can speak more than twice to the same question on the same day . . . . Merely asking a question or making a brief ...