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Jamal v. Kane

United States District Court, M.D. Pennsylvania

March 6, 2015

MUMIA ABU JAMAL, et al., Plaintiffs
v.
KATHLEEN KANE, Attorney General of Pennsylvania, et al., Defendants; PRISON LEGAL NEWS, et al., Plaintiffs
v.
KATHLEEN KANE, Attorney General of Pennsylvania, et al., Defendants

Page 448

For Mumia Abu Jamal, Robert L. Holbrook, Human Rights Coalition, Plaintiffs (1:14-cv-02148-CCC): Ashley K Henderson, Deneekie Grant, LEAD ATTORNEYS, Amistad Law Project, Philadelphia, PA; Bret D. Grote, Dustin McDaniel, LEAD ATTORNEYS, Abolitionist Law Center, Pittsburgh, PA; David Shapiro, LEAD ATTORNEY, PRO HAC VICE, Northwestern Univ School of Law, Chicago, IL; Jules Lobel, LEAD ATTORNEY, PRO HAC VICE, Abolitionsit Law Center, Pittsburgh, PA; David M Shapiro, Roderick and Solange MacArthur Justice Center, Chicago, IL.

For Educators for Mumia Abu-Jamal, Plaintiff (1:14-cv-02148-CCC): Ashley K Henderson, Deneekie Grant, LEAD ATTORNEYS, Amistad Law Project, Philadelphia, PA; Bret D. Grote, Dustin McDaniel, LEAD ATTORNEYS, Abolitionist Law Center, Pittsburgh, PA; David Shapiro, LEAD ATTORNEY, Northwestern Univ School of Law, Chicago, IL; Jules Lobel, LEAD ATTORNEY, PRO HAC VICE, Abolitionsit Law Center, Pittsburgh, PA; David M Shapiro, Roderick and Solange MacArthur Justice Center, Chicago, IL.

For Donnell Palmer, Anthony Chance, Kerry Shakaboona Marshall, Prison Radio, Plaintiffs (1:14-cv-02148-CCC): Bret D. Grote, Abolitionist Law Center, Pittsburgh, PA; David M Shapiro, Roderick and Solange MacArthur Justice Center, Chicago, IL.

For Kathleen Kane, Attorney General of Pennsylvania, Defendant (1:14-cv-02148-CCC): Kenneth L. Joel, Office of the Attorney General, Harrisburg, PA; M. Abbegael Giunta, Office of Attorney General, Harrisburg, PA.

For Prison Legal News, Plaintiff (1:15-cv-00045-CCC): Amy B. Ginensky, PRO HAC VICE, Eli Segal, LEAD ATTORNEYS, Pepper Hamilton LLP, Philadelphia, PA; Lance T Weber, Sabarish P Neelakanta, LEAD ATTORNEYS, PRO HAC VICE, Human Rights Defense Center, Lake Worth, FL; Sara J. Rose, LEAD ATTORNEY, American Civil Liberties Foundation of Pennsylvania, Pittsburgh, PA; Seth F. Kreimer, LEAD ATTORNEY, Philadelphia, PA; Thomas B. Schmidt, III, LEAD ATTORNEY, Pepper Hamilton, LLP, Harrisburg, PA; Tucker R. Hull, LEAD ATTORNEY, Pepper Hamilton LLP, Harrisburg, PA; Witold J. Walczak, LEAD ATTORNEY, American Civil Liberties Union of PA, Pittsburgh, PA.

For Daniel Denvir, Philadelphia City Paper, Christopher Moraff, Pennsylvania Prison Society, Solitary Watch, Professor Regina Austin, Steven Blackburn, Wayne Jacobs, Edwin Desamour, William Cobb, Plaintiffs (1:15-cv-00045-CCC): Amy B. Ginensky, PRO HAC VICE, Eli Segal, LEAD ATTORNEYS, Pepper Hamilton LLP, Philadelphia, PA; Sara J. Rose, LEAD ATTORNEY, American Civil Liberties Foundation of Pennsylvania, Pittsburgh, PA; Seth F. Kreimer, LEAD ATTORNEY, Philadelphia, PA; Thomas B. Schmidt, III, LEAD ATTORNEY, Pepper Hamilton, LLP, Harrisburg, PA; Tucker R. Hull, LEAD ATTORNEY, Pepper Hamilton LLP, Harrisburg, PA; Witold J. Walczak, LEAD ATTORNEY, American Civil Liberties Union of PA, Pittsburgh, PA.

For Kathleen Kane, In her capacity as Attorney General of Pennsylvania, Defendant (1:15-cv-00045-CCC): Kenneth L. Joel, Office of the Attorney General, Harrisburg, PA; M. Abbegael Giunta, Office of Attorney General, Harrisburg, PA.

For Reporters Committee for Freedom of the Press, American Booksellers for Free Expression, Freedom to Read Foundation, Pennsylvania NewsMedia Association, Amici (1:15-cv-00045-CCC): Craig J. Staudenmaier, Nauman, Smith, Shissler & Hall, LLP, Harrisburg, PA.

Page 449

MEMORANDUM

Christopher C. Conner, Chief United States District Judge.

Presently before the court are two challenges to the Revictimization Act, 18 Pa. Cons. Stat. § 11.1304, a 2014 amendment to Pennsylvania's Crime Victims Act, 18 Pa. Cons. Stat. § § 11.101 et seq. Plaintiffs attack the constitutionality of Section 11.1304, which authorizes the Commonwealth's Attorney General, district attorneys, and " victims" of personal injury crimes to bring a civil action seeking injunctive and other relief whenever an " offender" engages in any " conduct which perpetuates the continuing effect of the crime on the victim." 18 Pa. Cons. Stat. § 11.1304(a)-(b). At the parties' joint request, the court consolidated the above-captioned matters for purposes of resolving various pending motions.

Both plaintiffs groups seek preliminary and permanent injunctive relief in addition to a declaratory judgment that the Act is unconstitutional, both facially and as applied to plaintiffs, in violation of the First Amendment to the United States Constitution. Defendants oppose plaintiffs' requests and further move to dismiss both actions for want of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendant R. Seth Williams, District Attorney for Philadelphia County, separately asserts that plaintiffs fail to state a viable claim under Rule 12(b)(6). In this opinion, the court will

Page 450

address defendants' threshold jurisdictional challenges. See Tolan v. United States, 176 F.R.D. 507, 509 (E.D. Pa. 1998) (" [T]he court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot." ) (citing In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D. Pa. 1993), aff'd 39 F.3d 61 (3d Cir. 1994)).

I. Background[1]

On October 21, 2014, on a street corner in Philadelphia, Pennsylvania, then-Governor Tom Corbett signed the Revictimization Act, 18 Pa. Cons. Stat. § 11.1304, into law. The Act provides, in full:

(a) ACTION.-- In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonably attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.
(b) REDRESS ON BEHALF OF VICTIM.-- The district attorney of the county in which a personal injury crime took place or the Attorney General, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.
(c) INJUNCTIVE RELIEF.-- Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.
(d) DEFINITION.-- As used in this section, the term " conduct which perpetuates the continuing effect of the crime on the victim" includes conduct which causes a temporary or permanent state of mental anguish.

18 Pa. Cons. Stat. § 11.1304. Neither the Revictimization Act itself nor any other provision of the Crime Victims Act defines the term " offender." See id. The Crime Victims Act defines " victim" to include: a direct victim (defined as " [a]n individual against whom a crime has been committed or attempted . . . ." ); a parent or legal guardian of a child victim; a minor child who is a material witness to homicide, aggravated assault, or rape committed or attempted against a member of the child's family; and a family member of a homicide victim. Id. § 11.103. The term " family member" is further defined to include anyone related to the victim within the third degree of consanguinity, anyone maintaining a common-law relationship with the victim, and any resident of a victim's household, as well as " stepbrothers or stepsisters, stepchildren, stepparents or a fiancé ." Id.

The Act's sponsor, State Representative Mike Vereb, introduced the legislation on October 2, 2014, three days after Goddard College--a small liberal arts college in Vermont and plaintiff Mumia Abu-Jamal's alma mater --announced its selection of Abu-Jamal as its commencement speaker. (See PLN Doc. 1 ¶ ¶ 22, 25; Abu-Jamal Doc. ...


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