The opinion of the court was delivered by: Judge Conner
This case involves a constitutional challenge to § 1108(k) of the Public Official Employee Ethics Act ("Act"), 65 PA. CONS. STAT. § 1108(k). Presently before the court are the parties' cross-motions for summary judgment (Docs. 35, 39). Plaintiff Gene Stilp ("Stilp") seeks to permanently enjoin enforcement of § 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 ("Commission"). On June 29, 2009, this court granted a preliminary injunction, in part, against enforcement of § 1108(k) in so far as it prohibits a complainant from publicizing the fact that he or she has filed a complaint with the Commission. See Stilp v. Contino, 629 F. Supp. 2d 449 (M.D. Pa. 2009). On July 22, 2010, the Third Circuit Court of Appeals affirmed this court's decision to grant a preliminary injunction. See Stilp v. Contino, 613 F.3d 405 (3d Cir. 2010). For the reasons that follow, the plaintiff's motion for summary judgment (Doc. 35) will be granted, and the defendants' motion for summary judgment (Doc. 39) will be denied.
A. Factual Background*fn1
The parties are familiar with the facts, therefore they will only be briefly recounted.*fn2 For a more detailed account, see Stilp, 629 F. Supp. 2d at 453-56.
In 1978 the Pennsylvania General Assembly created the Pennsylvania State Ethics Commission ("Commission"), an independent state administrative agency, to enforce the provisions of the Public Official and Employee Ethics Act ("Act"). (Doc. 40 ¶ 2; Doc. 45 ¶ 2). The purpose of the Act is to prevent financial conflicts of interest between a public official's duties as an employee of the state and his or her private financial affairs. (Doc. 40 ¶ 2; Doc. 45 ¶ 2). Individuals who believe a public official has violated the Act may file a complaint with the Commission. Under the Act, individuals who file a complaint are subject to a confidentiality requirement. The Act states:
(k) Confidentiality. -- As a general rule, no person shall disclose or acknowledge to any other person any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which is before the commission. However, a person may disclose or acknowledge to another person matters held confidential in accordance with this subsection when the matters pertain to any of the following:
(1) final orders of the commission as provided in subsection (h);
(2) hearings conducted in public pursuant to subsection (g);
(3) for the purpose of seeking advice of legal counsel;
(4) filing an appeal from a commission order;
(5) communicating with the commission or its staff, in the course of a preliminary inquiry, investigation, hearing or petition for reconsideration by the commission;
(6) consulting with a law enforcement official or agency for the purpose of initiating, participating in or responding to an investigation or prosecution by the law enforcement official or agency;
(7) testifying under oath before a governmental body or a similar body of the United States of America;
(8) any information, records or proceedings relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which the person is the subject of; or
(9) such other exceptions as the commission by regulation may direct.*fn3 65 PA. CONS. STAT. § 1108(k). The Commission provides six reasons for the provision: to prevent an individual from disclosing the filing of complaints in order to manipulate the electoral process (Def. Hr'g Ex. 3, Legislative Journal of the Pennsylvania General Assembly of 1989, No. 14 at 251-55), to prevent use of the complaint process to undermine ongoing proceedings in another matter (Hr'g T. at 54-55), to prevent use of the complaint process as a means of retaliation (id. at 56-57), to allow Commission investigations to be carried out more effectively (id. at 57-60), to prevent damage to the reputation of government officials (id. at 60), to prevent an individual from filing complaints in an attempt to unduly influence the decisions of another governmental body (id. at 60-62), and to prevent the use of complaints to advance the political agenda of some while reducing the credibility of the Commission as a non-partisan agency. (Id.; see also Doc. 40 ¶¶ 20-26; Doc. 45 ¶¶ 20-26).*fn4
The Commission lacks authority to bring causes of action for violation of the provision, but it may refer violations to the state attorney general for prosecution.*fn5
Id. § 1107(13). Under Commission interpretation of the rules, a complainant violates the rule if he or she publicizes the fact of filing a complaint before or after actually filing the complaint, regardless of the complaint's validity.*fn6
On November 28, 2007, plaintiff Gene Stilp ("Stilp") issued a press release to various members of the media stating, inter alia, that "the Pennsylvania State Ethics Commission will be asked to investigate the use of taxpayer funds for political purposes. The contracts totaled $290,000 during 2007. [T]he complaint is attached." (Doc. 4 Ex. A; see also Doc. 38 ¶ 1; Doc. 46 ¶ 1). The following day, the Commission issued a letter to Stilp stating that his claim would not be pursued because he failed to identify a specific individual about whom the complaint referred. (Doc. 4 Ex. B; see also Doc. 38 ¶ 4; Doc. 46 ¶ 4). Stilp received a letter dated January 31, 2008, from the Commission stating that Stilp was the subject of an investigation because Stilp disclosed his complaint to the media in violation of § 1108(k) of the Act.*fn7 (Doc. 38 ¶ 5; Doc. 46 ¶ 5). On October 16, 2008, Stilp entered a consent decree with the Commission, acknowledging violation of the confidentiality provision and agreeing to pay a $500 fine. (Doc. 4 Ex. E; see also Doc. 40 ¶ 31, Doc. 45 ¶ 31). Stilp, a self-described "leading critic of the [Pennsylvania] state legislature" (Doc. 16 at 7), would like to file other complaints with the Commission and publicize these filings but fears criminal and civil liability.
On March 20, 2009, Stilp filed the present action pursuant to 42 U.S.C. § 1983 against the Commission,*fn8 John J. Contino ("Contino"), Executive Director of the State Ethics Commission, in his official capacity, and Pennsylvania Attorney General Thomas Corbett, Jr. ("Corbett") in his official capacity (collectively, "defendants"), to enjoin enforcement of § 1108(k) as a violation of First Amendment free speech rights, both on its face and as applied to Stilp. (Doc. 1-3). After a preliminary injunction hearing (Doc. 16) on April, 1, 2009, this court entered an order preliminarily enjoining enforcement of § 1108(k) (see Doc. 24). Defendants appealed entry of the preliminary injunction. (Doc. 27). On August 31, 2009, while the interlocutory appeal on the entry of the preliminary injunction was pending, the parties filed cross-motions for ...