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PG Pub. Co. v. Aichele

United States District Court, W.D. Pennsylvania

October 9, 2012

PG PUBLISHING COMPANY d/b/a the Pittsburgh Post-Gazette, Plaintiff,
v.
Carol AICHELE, in her capacity as Secretary of the Commonwealth; the Allegheny County Board of Elections; and Mark Wolosik, in his capacity as Division Manager of the Allegheny County Elections Division, Defendants.

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Frederick N. Frank, Ellis W. Kunka, Frank, Gale, Bails, Murcko & Pocrass, P.C., Pittsburgh, PA, for Plaintiff.

Mary Lynch Friedline, Office of Attorney General, Kemal Alexander Mericli, Office of the Attorney General, Civil Litigation Section, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. Introduction

The Defendants in this action have filed motions to dismiss the Plaintiff's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Docket Nos. 30 & 32. The Plaintiff has moved to strike portions of a brief filed in support of one of the pending motions to dismiss. Docket No. 42. The Plaintiff also asks the Court to take judicial notice of comments reportedly made by Allegheny County Executive Richard Fitzgerald (" County Executive" ) during a recent press conference. Docket No. 43. In the event that such judicial notice is taken, the Plaintiff seeks leave to file a supplemental brief discussing the relevance of the County Executive's comments to this case. Docket No. 44. In addition, the Plaintiff and the county defendants have filed motions requesting the entry of a consent order that would terminate this action.

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Docket Nos. 52 & 58. Because the amended complaint " fail[s] to state a claim upon which relief can be granted," the motions to dismiss will be granted pursuant to Rule 12(b)(6). FED. R. CIV. P. 12(b)(6); Docket Nos. 30 & 32. The remaining five motions will be denied. Docket Nos. 42, 43, 44, 52 & 58.

II. Background

Plaintiff PG Publishing Co. (" PG" ) is the publisher of the Pittsburgh Post-Gazette, which is a daily newspaper circulated throughout western Pennsylvania. Docket No. 28 at ¶ 4. Defendant Carol Aichele presently serves as the Secretary of the Commonwealth of Pennsylvania (" Secretary" ). Id. at ¶ 5. The Allegheny County Elections Division (" Elections Division" ) is charged with the duty of administering the Commonwealth's election laws and regulations throughout Allegheny County, Pennsylvania. Id. at ¶ 6. Defendant Mark Wolosik currently serves as the Division Manager of the Elections Division (" Division Manager" ). Id. at ¶ 7.

The Pennsylvania Constitution gives the Commonwealth's General Assembly the authority to enact legislation governing the conduct of elections.[1]PA. CONST., ART. VII, § 6; Mixon v. Commonwealth of Pennsylvania, 759 A.2d 442, 450 (Pa.Commw.Ct.2000). Article VII, § 4, of the Pennsylvania Constitution mandates that " secrecy in voting be preserved." PA. CONST., ART. VII, § 4. Pursuant to its regulatory authority, the General Assembly has enacted 25 PA. STAT. § 3060, which provides:

§ 3060. Regulations in force at polling places
(a) Until the polls are closed, no person shall be allowed in the polling place outside of the enclosed space at any primary or election, except the watchers, voters not exceeding ten at any one time who are awaiting their turn to vote, and peace officers, when necessary for the preservation of the peace. No elector shall be allowed to occupy a voting compartment or voting machine booth already occupied by another, except when giving assistance as permitted by this act.
(b) No elector, except an election officer, clerk, machine operator or overseer, shall be allowed to re-enter the enclosed space after he has once left it, except to give assistance as provided by this act.
(c) No person, when within the polling place, shall electioneer or solicit votes for any political party, political body or candidate, nor shall any written or printed matter be posted up within the said room, except as required by this act.
(d) All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers, when permitted by the provisions of this act, must remain at least ten (10) feet distant from the polling place during the progress of the voting.
(e) When the hour for closing the polls shall arrive, all qualified electors who have already qualified, and are inside the enclosed space, shall be permitted to vote; and, in addition thereto, all those qualified electors who are in the polling place outside the enclosed space waiting to vote and all those voters who are in line either inside or outside of the polling place waiting to vote, shall be permitted to do so, if found qualified.
(f) It shall be the duty of the judge of election to secure the observance of the

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provision of this section, to keep order in the voting room, and to see that no more persons are admitted within the enclosed space than are permitted by this act. The judge of election may call upon any constable, deputy constable, police officer or other peace officer to aid him in the performance of his duties under this section.

General elections to fill federal, state and local offices are held on the Tuesday following the first Monday in November. 2 U.S.C. §§ 1, 7; 3 U.S.C. § 1; 25 PA. STAT. §§ 2751-2752. Four years ago, the general election was conducted on November 4, 2008. An attorney for PG contacted the Division Manager in October 2008 and inquired about the restrictions that the Elections Division would impose on Post-Gazette reporters covering the election at polling places throughout Allegheny County. Docket No. 31-1 at 11. In a letter to PG's counsel dated October 28, 2008, an attorney employed by Allegheny County's Department of Law stated as follows:

This letter is to confirm our telephone conversation of last week where I indicated that Allegheny County's policy is to prohibit photographs, video taping and any other type of recording inside the polling place. That prohibition extends to attempts to record activity in the polling place from outside of the polling place, for example, through an open door or window.
The Pennsylvania Constitution at Article VII, Section 4 mandates secrecy in voting. That provision, combined with the applicable provisions of the Pennsylvania Election Code limiting persons properly inside the polling place, prohibits any recording or attempt to record activity inside the polling place.
That prohibition does not, though, extend to outside the polling place. There seems to be no restriction on recording outside the polling place.

Id. at 12. By prohibiting attempts to photograph or record activities within polling places through open doors and windows, the Elections Division's policy was more restrictive than § 3060(d). 25 PA. STAT. § 3060(d).

PG commenced an action against Allegheny County and the Allegheny County Board of Elections (" Board" ) [2] in the Court of Common Pleas of Allegheny County on October 31, 2008, alleging that the policy promulgated by the Elections Division was violative of the First and Fourteenth Amendments to the United States Constitution and Article I, § 7, of the Pennsylvania Constitution. Docket No. 31-1 at 2-10. The complaint filed by PG alleged that, during previous elections, Allegheny County officials had " attempted to prevent news photographers who were located in places lawfully accessible to them from photographing in the direction of voting machines." Id. at 5, ¶ 7. It was further alleged that counties surrounding Allegheny County had not imposed similar restrictions on members of the media. Id.

PG sought a preliminary injunction prohibiting Allegheny County officials from enforcing the policy. Docket No. 31-2 at 4. Attached to its motion was a proposed order reading as follows:

AND NOW, to wit, this _____ day of November, 2008, upon consideration of Plaintiff's Motion for Preliminary Injunction and Complaint;

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AND upon having determined that Plaintiff will suffer immediate and irreparable injury as a result of Defendants' conduct, it is hereby ORDERED, ADJUDGED and DECREED that Plaintiff's Motion be and hereby is GRANTED.
Defendants and their agents are hereby prohibited from restricting or interfering with attempts of Plaintiff's agents and employees to photograph activities in and around polling places so long as Plaintiff's agents and employees are located in areas accessible to the public or into which they have otherwise been lawfully admitted.

Id. at 5. Judge Joseph James signed and dated the proposed order on November 3, 2008. Docket No. 31-4 at 2-3. At the end of the order, however, Judge James added the following sentence:

No photography shall be taken from inside the polling place or within ten (10) feet of the entrance of the polling place.

Id. at 2. This sentence was apparently added to clarify that Allegheny County officials were not prohibited from enforcing § 3060(d). 25 PA. STAT. § 3060(d).

Elections for federal offices are governed by the Help America Vote Act of 2002 (" HAVA" ) [42 U.S.C. § 15301 et seq. ]. Under § 302(a) of the HAVA, an individual who declares himself or herself to be an eligible voter in a given jurisdiction is entitled to " cast a provisional ballot" in the event that his or her name " does not appear on the official list of eligible voters for the [relevant] polling place," or if " an election official asserts that [he or she] is not eligible to vote." Pub.L. No. 107-252, § 302(a); 116 Stat. 1666, 1706-1707 (2002); 42 U.S.C. § 15482(a). A vote appearing on a provisional ballot is counted only if an election official later verifies the individual's eligibility to vote under state law. 42 U.S.C. § 15482(a)(4).

Pennsylvania's General Assembly recently enacted " Act 18," which revised the statutory provisions governing the conduct of elections.[3] 2012 Pa. Laws 18. The revisions became effective on March 14, 2012, when Act 18 was signed into law by Governor Tom Corbett. Id., § 12. Section 3 of Act 18 requires an individual to provide a " proof of identification" before voting. Id., § 3; 25 PA. STAT. § 3050(a). An individual who is unable to satisfy this requirement may cast only a provisional ballot.[4]25 PA. STAT. § 3050(a.2), (a.4).

On June 19, 2012, PG filed a motion to amend with the Court of Common Pleas, seeking changes to Judge James' order of November 3, 2008. Docket No. 31-5 at 2-9. PG requested that the following language be added to the order:

Starting with the November 6, 2012, Pennsylvania general election and continuing with all primary and general elections thereafter, The Post-Gazette's agents and employees are permitted to

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photograph and film (collectively " record" ) members of the electorate in the polling place as they register with the election officials, but are not permitted to record the electorate in the voting booths while they vote. Further, upon objection by any member of the electorate, The Post-Gazette's agent or employee shall cease recording the objector immediately.

Id. at 29. In support of its position, PG argued that reporters working for the Post-Gazette were constitutionally entitled to observe and cover the implementation and enforcement of Act 18. Id. at 6-8, ¶¶ 9-16. PG also maintained that newspaper reporters working in other Pennsylvania counties had been permitted to take photographs of voters inside of polling places. Id. at 5-6, ¶¶ 4-8. A hearing before Judge James was scheduled for July 17, 2012. Id. at 30.

PG commenced this action against the Secretary, the Division Manager and the Board on July 11, 2012, alleging that § 3060(d) could not be constitutionally applied to members of the media. Docket No. 1 at ¶¶ 1, 18, 22-29. The complaint filed by PG contained claims under 42 U.S.C. § 1983 for alleged violations of the First and Fourteenth Amendments. Id. at ¶¶ 21-35. The First Amendment claims were based on a contention that the continued enforcement of § 3060(d) in Allegheny County would interfere with the ability of Post-Gazette reporters to observe and cover the interactions between voters and election officials on Election Day. Id. at ¶¶ 17-29. PG also averred that the Defendants had violated its rights under the Equal Protection Clause by denying Post-Gazette reporters access to polling places while permitting reporters from other newspapers to photograph individuals in the act of voting. Id. at ¶¶ 14-15, 31-32, 34. Immediately after commencing this action, PG filed a praecipe to discontinue the proceedings in the Court of Common Pleas. Docket No. 31-6 at 2-4.

On July 31, 2012, the Secretary moved for the dismissal of PG's complaint. Docket No. 21. The Board and the Division Manager filed a separate motion to dismiss later that day. Docket No. 23. Efforts to resolve the case through the Court's alternative dispute resolution (" ADR" ) program were unsuccessful. Docket No. 29. PG filed an amended complaint on August 13, 2012, adding new factual allegations to support its claims under the Equal Protection Clause. Docket No. 28 at ¶¶ 14-18, 34-36, 38-39. The filing of the amended complaint effectively mooted the Defendants' earlier motions to dismiss. Brickell v. Clinton County Prison Board, 658 F.Supp.2d 621, 623 (M.D.Pa.2009). The Defendants filed new motions to dismiss on August 21, 2012. Docket Nos. 30 & 32. The parties advanced their respective positions during an oral argument session conducted on September 7, 2012. Docket No. 41.

The County Executive, who serves as the Chairman of the Board, conducted a news conference on September 11, 2012. Docket No. 43 at ¶ 1. The next morning, the website of the Post-Gazette posted an article about the news conference authored by Timothy McNulty (" McNulty" ). Docket No. 43-1. The pertinent part of the article stated as follows:

Allegheny County Executive Rich Fitzgerald said he wants the news media allowed into polling places on Election Day and was " totally blindsided" by a lawsuit the Pittsburgh Post-Gazette filed in federal court on the matter.
Mr. Fitzgerald opposes the state's new voter identification requirements and said he reached an agreement with the newspaper to not oppose its legal efforts to open up polling places to cameras on Nov. 6. So he was shocked when the

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Post-Gazette sought that access by suing the state and county in federal court July 11.
" If there is any type of voter ID challenge on election day— and we anticipate there will be many throughout our county and probably throughout the country— we think the disinfection of sunlight being there is going to be healthy for democracy," he said at a Tuesday news conference on the suit.
" So we agree with the Post-Gazette and have agreed with them all along. So it was very surprising to us, when we were telling them that we support their position, and we're going to go to court to support their position, that their lawyer— who should have known better— decided to file suit against a position that we don't hold."

Id. at 1. A later part of the article attributed comments to PG's counsel suggesting that Allegheny County had refused to agree to a consent order permitting media access to polling places on Election Day, leaving open the possibility that the Court of Common Pleas would deny relief on the basis of an " unconstitutional statute." Id. The article was published on Page B2 of the September 12, 2012, edition of the Post-Gazette. Timothy McNulty, Fitzgerald criticizes Post-Gazette over lawsuit on polling place access, PITTSBURGH POST-GAZETTE, September 12, 2012, at B2.

On September 20, 2012, PG moved to strike portions of the brief filed by the Secretary in support of her motion to dismiss. Docket No. 42. PG also asked the Court to take judicial notice of the statements attributed to the County Executive in McNulty's article. Docket No. 43. In addition, PG sought leave to file a supplemental brief discussing the importance of the County Executive's comments. Docket No. 44. The Secretary filed responses to those motions on September 26, 2012. Docket Nos. 48, 50 & 51.

PG, the Division Manager and the Board jointly moved for the entry of a consent order on September 27, 2012. Docket No. 52. The terms of the proposed order purported to enjoin the Board from denying " representatives of the media" access to polling places in Allegheny County for the purpose of taking " photographs and moving pictures" of voters during the " sign-in process." Docket No. 52-1 at 1-2. The term " sign-in process" was used to describe the implementation and enforcement of Act 18's " identification" requirement. Id. The proposed agreement also included a term requiring the Board to " notify and advise" the judges of election serving throughout Allegheny County of the right of media representatives to enter polling places on Election Day. Id. at 2. In exchange for those concessions, PG offered to withdraw its claims for money damages, its claims arising under the Equal Protection Clause, and its request for declaratory relief concerning the constitutionality of § 3060(d). Id. Although the Secretary declined to consent to the proposed agreement, its execution was conditioned on the discontinuance of PG's claims against her. Docket No. 52 at 2, ¶ 3.

An expedited judicial conference was held on the morning of September 28, 2012, to address this motion and the proposed order. Docket No. 54. Counsel for PG provided the Court with the background and basis of the motion and order to which counsel for the Board and Division Manager agreed. The Secretary, however, objected. Given same, the Court ordered oral argument on October 1, 2012. During the course of same, PG, the Division Manager and the Board revised their proposed order and submitted it for consideration. The revised proposal included a term requiring media representatives to stop recording a voter upon hearing his or her objection. Docket No. 56 at 2. The Secretary continued to object to the entry

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of a consent decree in this case. Docket No. 57. The Court granted an oral motion made by PG to delay a ruling in this matter until October 5, 2012. Id. No further filings were made as of the close of business on the fifth. The Court will now proceed to address all seven motions presently before the Court. Docket Nos. 30, 32, 42, 43, 44, 52 & 58.

III. The Nondispositive Motions Filed by PG

PG asks the Court to strike portions of the brief filed by the Secretary in support of her motion to dismiss. Docket No. 42. The motion to strike has been filed pursuant to Federal Rule of Civil Procedure 12(f), which permits a federal court to " strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f) (emphasis added). A brief filed by a party does not constitute a " pleading" within the meaning of Rule 12(f). FED. R. CIV. P. (7)(a)(1)-(7). PG's motion to strike will be denied on that basis. Hrubec v. National Railroad Passenger Corp., 829 F.Supp. 1502, 1506 (N.D.Ill.1993). The arguments advanced in support of PG's motion to strike are more properly regarded as advocacy in opposition to the Secretary's motion to dismiss. Essex Insurance Co. v. Foley, 827 F.Supp.2d 1326, 1327, n. 1 (S.D.Ala.2011).

Federal Rule of Evidence 201 permits a federal court to " judicially notice" an " adjudicative fact" that " is not subject to reasonable dispute" because it " is generally known within the trial court's territorial jurisdiction," or because it " can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." FED.R.EVID. 201(a), (b)(1)-(2). A federal court may take judicial notice of a newspaper article's existence. Selkridge v. United of Omaha Life Insurance Co., 360 F.3d 155, 162, n. 5 (3d Cir.2004). PG asks the Court to take judicial notice of the statements reportedly made by the County Executive during his news conference. Docket No. 43 at 1-2, ¶¶ 1-6. There is an obvious difference between accepting the fact of an article's existence and accepting the truth of the statements contained therein. Reports made by members of the press are frequently disputed. Montgomery County v. Microvote Corp., 320 F.3d 440, 444, n. 2 (3d Cir.2003). The Court ...


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