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Stilp v. Contino

July 22, 2010

GENE STILP,
v.
JOHN J. CONTINO, EXECUTIVE DIRECTOR OF THE STATE ETHICS COMMISSION, IN HIS OFFICIAL CAPACITY ONLY; THOMAS W. CORBETT, JR., ATTORNEY GENERAL OF PENNSYLVANIA, IN HIS OFFICIAL CAPACITY ONLY, APPELLANTS.



On Appeal from the United States District Court for the Middle District of Pennsylvania, (D. C. No. 1-09-cv-00524), District Judge: Hon. Christopher C. Conner.

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued on May 11, 2010

Before: BARRY and ROTH, Circuit Judges and HAYDEN*fn1, District Judge.

OPINION

The Pennsylvania Attorney General and the Executive Director of the State Ethics Commission appeal the District Court's grant of a preliminary injunction enjoining enforcement of 65 Pa. Cons. Stat. § 1108(k), a state statute mandating confidentiality in proceedings before the State Ethics Commission. We agree with the District Court that this statute, to the extent it prohibits a complainant from disclosing his own complaint and the fact that it was filed, unconstitutionally constrains political speech.We will affirm the narrow preliminary injunction granted by the District Court.

I. Background

Gene Stilp, plaintiff in this action, is a government watchdog who takes great pride in "publicly protesting actions of public officials within Pennsylvania state government." Stilp describes himself as "one of the best-known and most public protestors of fraud, waste and corruption within Commonwealth government." One of Stilp's tools for combating public corruption is the Pennsylvania Public Official and Employee Ethics Act (Ethics Act), 65 Pa. Cons. Stat. §§ 1101, et seq. However, the confidentiality provision of the Ethics Act precludes Stilp from publicizing the fact that he is filing a complaint with the State Ethics Commission. The limited question presented on appeal is whether, under the First Amendment, the state may subject Stilp to civil sanction or criminal punishment for publicly disclosing his own complaint*fn2 and the fact that he has filed it -- or intends to file it -- with the State Ethics Commission.

A. The State Ethics Act

The Pennsylvania Legislature enacted the Ethics Act to promote ethical conduct and integrity among individuals holding public office. The Ethics Act's statement of purpose provides:

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. In order to strengthen the faith and confidence of the people of this Commonwealth in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust.

Id. § 1101.1(a). The Ethics Act provides, inter alia, that "[n]o public official or public employee shall engage in conduct that constitutes a conflict of interest." Id. § 1103(a).

To implement and enforce the Ethics Act, the legislature authorized the creation of a State Ethics Commission empowered to "[m]ake recommendations to law enforcement officials either for criminal prosecution or dismissal of charges arising out of violations of [the Ethics Act]." Id. § 1107(15).

Defendant John J. Contino is Executive Director of the Ethics Commission.

The Ethics Act sets forth procedures for the filing and investigation of a complaint. Upon receiving "a complaint signed under penalty of perjury by any person or upon its own motion, the commission, through its executive director, shall conduct a preliminary inquiry into any alleged violation," to be completed within 60 days. Id. at § 1108(a). "If a preliminary inquiry establishes reason to believe that this chapter has been violated, the commission may, through its executive director, initiate an investigation to determine if there has been a violation." Id. § 1108(c).

The Ethics Act prohibits the filing of frivolous complaints, an infraction which the Ethics Commission is empowered to investigate. Id. § 1108(l). "Any person who willfully affirms or swears falsely in regard to any material matter" may be punished by a fine and five years' imprisonment. Id. § 1109(e). A person harmed by "wrongful use" of the Ethics Act, including the filing of frivolous complaints, is entitled to damages for:

(1) The harm to his reputation by a defamatory matter alleged as the basis of the proceeding.

(2) The expenses, including any reasonable attorney fees, that he has reasonably incurred in proceedings before the commission.

(3) Any specific pecuniary loss that has resulted from the proceedings.

(4) Any emotional distress that has been caused by the proceedings.

(5) Any punitive damages according to law in ...


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