Pennsylvania Prison Soc. v. CortÉs

• Decision Date: 05 November 2007
• Docket Number: No. 06-3370.,No. 06-3354.,06-3354.,06-3370.
• Citation: 508 F.3d 156
• Parties: PENNSYLVANIA PRISON SOCIETY; Julia D. Hall; Gregory H. Knight; Fight for Lifers, Inc.; William Goldsby; Joan Porter; Graterfriends, Inc; Joan F. Gauker; Vincent Johnson; Friends Committee to Abolish the Death Penalty, Inc.; Kurt Rosenberg; Pennsylvania Abolitionists United Against the Death Penalty; Terry Rumsey; Roger Buehl; Douglas Hollis; and Dianna Hollis, Plaintiffs-Appellants/Cross-Appellees, v. Pedro A. CORTÉS, Secretary of the Commonwealth of Pennsylvania; Honorable Edward Rendell, Governor, Commonwealth of Pennsylvania; Catherine Baker Knoll, Chairperson, Board of Pardons; Thomas W. Corbett, Jr., Member of Board of Pardons; Louise Williams, Member of Board of Pardons; Russell Walsh, Member of Board of Pardons, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Third Circuit

508 F.3d 156

PENNSYLVANIA PRISON SOCIETY; Julia D. Hall; Gregory H. Knight; Fight for Lifers, Inc.; William Goldsby; Joan Porter; Graterfriends, Inc; Joan F. Gauker; Vincent Johnson; Friends Committee to Abolish the Death Penalty, Inc.; Kurt Rosenberg; Pennsylvania Abolitionists United Against the Death Penalty; Terry Rumsey; Roger Buehl; Douglas Hollis; and Dianna Hollis, Plaintiffs-Appellants/Cross-Appellees, v. Pedro A. CORTÉS, Secretary of the Commonwealth of Pennsylvania; Honorable Edward Rendell, Governor, Commonwealth of Pennsylvania; Catherine Baker Knoll, Chairperson, Board of Pardons; Thomas W. Corbett, Jr., Member of Board of Pardons; Louise Williams, Member of Board of Pardons; Russell Walsh, Member of Board of Pardons, Defendants-Appellees/Cross-Appellants.

No. 06-3354.

No. 06-3370.

United States Court of Appeals, Third Circuit.

Argued on September 19, 2007.

Opinion Filed: November 5, 2007.

Stephen A. Whinston (Argued), Rebecca M. Hamburg, Berger & Montague, P.C., Philadelphia, PA, for Appellants/Cross-Appellees.

Amy Zapp (Argued), Office of Attorney General, Harrisburg, PA, for Appellees/Cross-Appellant.

Before: SLOVITER, SMITH and GARTH, Circuit Judges.

OPINION

GARTH, Circuit Judge:

This appeal presents an issue of our jurisdiction — standing — that was not raised, and therefore not considered, by the District Court. As the Supreme Court has held, "[t]he rules of standing, whether as aspects of the Art. III case-or-controversy requirement or as reflections of prudential considerations defining and limiting the role of the courts, are threshold determinants of the propriety of judicial intervention." Warth v. Seldin, 422 U.S. 490, 517-18, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

"For that reason, every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.... And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (internal quotation marks and citations omitted).

The instant case arises in the context of a challenge to amendments to the Constitution of the Commonwealth of Pennsylvania ratified in 1997 (the "1997 Amendments"). The Amendments changed the composition of the Pennsylvania Board of Pardons and the voting requirements for obtaining a pardon or commutation of sentence from a majority vote of the Board of Pardons to a unanimous vote.

These two changes resulting from the 1997 Amendments gave rise to the present charges that the Amendments violate the Ex Post Facto and Due Process clauses of the U.S. Constitution. The District Court ruling on cross-motions for summary judgment held, among other things, that the 1997 Amendments violated the Ex Post Facto clause as to life-sentenced prisoners, but not as to death-sentenced prisoners.

We now hold that the District Court may not have had jurisdiction to decide the merits of the complaint. Accordingly, we will vacate the March 13, 2006 order of the District Court and remand with directions to conduct further proceedings, as necessary, to determine whether any of the plaintiffs has standing and if not, to dismiss the complaint without prejudice.

I.

Among the plaintiffs named in this case are three Pennsylvania prisoners, Roger Buehl (serving a death sentence),¹ Vincent Johnson, and Douglas Hollis (serving life sentences); several non-profit advocacy and prisoner rights groups;² and several voters and qualified taxpayers in Pennsylvania.³ The defendants are Pennsylvania's Governor, Secretary, and four members of the Board of Pardons, including its permanent members, Lieutenant Governor Catherine Baker Knoll and Attorney General Thomas W. Corbett, Jr, who are named in their official capacities as members of the Board.

In Pennsylvania, prisoners condemned to death or serving life imprisonment may not be released on parole except when the Board of Pardons has recommended commutation of sentence and the Governor approves the commutation. 61 P.S. § 331.21(a). Prior to the 1997 Amendments, the Pennsylvania Constitution (Article IV, Section 9)⁴ set forth the following provisions authorizing pardons and commutations:

(a) In all criminal cases except impeachment the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon due public notice. The recommendation, with the reasons therefor at length, shall be delivered to the Governor and a copy thereof shall be kept on file in the office of the Lieutenant Governor in a docket kept for that purpose.

(b) The Board of Pardons shall consist of the Lieutenant Governor who shall be chairman, the Attorney General and three members appointed by the Governor with the consent of two-thirds or a majority of the members elected to the Senate as is specified by law for terms of six years. The three members appointed by the Governor shall be residents of Pennsylvania and shall be recognized leaders in their fields; one shall be a member of the bar, one a penologist, and the third a doctor of medicine, psychiatrist or psychologist. The board shall keep records of its actions, which shall at all times be open for public inspection.

Pa. Const., Art. IV, § 9 (emphasis added).

On November 4, 1997, the provisions of the Pennsylvania Constitution recited above were amended to provide:

(a) In all criminal cases except impeachment the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice. The recommendations, with the reasons therefor at length, shall be delivered to the Governor and a copy thereof shall be kept on file in the office of the Lieutenant Governor in a docket kept for that purpose.

(b) The Board of Pardons shall consist of the Lieutenant Governor who shall be chairman, the Attorney General and three members appointed by the Governor with the consent of a majority of the members elected to the Senate for terms of six years. The three members appointed by the Governor shall be residents of Pennsylvania. One shall be a crime victim; one a corrections expert; and the third a doctor of medicine, psychiatrist or psychologist. The board shall keep records of its actions, which shall at all times be open for public inspection.

Pa. Const., Art. IV, § 9 (emphasis added).

Thus, under the pre-1997 Constitution, a prisoner applying for a commutation of sentence could obtain a recommendation from the Board of Pardons if three of its five members voted in his favor.⁵ After the 1997 Amendments, a prisoner seeking a commutation had to receive all five votes of the Board for a recommendation to be considered by the Governor.

The plaintiffs urge that these Amendments violate their Due Process rights by depriving them of "a reasonable expectation of the availability and reasonable possibility of executive clemency" and their rights under the Ex Post Facto clause by retroactively decreasing the probability of obtaining a commutation or pardon. A105-06. The complaint alleges that the 1997 changes — which (1) substituted a crime victim for an attorney on the Board and (2) replaced the majority rule with a unanimity requirement — "virtually shut out" prisoners from obtaining clemency. Id.

On March 13, 2006, the District Court ruled in favor of the defendants as to all claims, but held that the change in voting requirement from majority to unanimity violated the Ex Post Facto clause for life-sentenced prisoners.

Plaintiffs timely appeal from the District Court's rulings (1) limiting its Ex Post Facto holding to life-sentenced prisoners; (2) declining to grant injunctive relief; and (3) rejecting their Due Process claims. One defendant — Thomas Corbett, Jr., a member of the Board of Pardons and the Attorney General of Pennsylvania — filed a cross-appeal. In his cross-appeal, Corbett argues, for the first time during this litigation, that the plaintiffs have no standing under Article III of the U.S. Constitution to bring this action.⁶

We have appellate jurisdiction to review the District Court's final order. 28 U.S.C. § 1291. Our review is plenary.

II.

The Supreme Court has held that the "irreducible constitutional minimum" of standing under Article III requires a plaintiff to establish three elements: an injury in fact, i.e., an invasion of a legally protected interest which is actual or imminent, and concrete and particularized, as contrasted with a conjectural or hypothetical injury; a causal connection between the injury and the conduct complained of; and substantial likelihood of remedy — rather than mere speculation — that the requested relief will remedy the alleged injury in fact. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Justice Stevens in Bender⁷ aptly summarized the elements of standing and emphasized that our obligation to notice defects in subject matter jurisdiction assumes special importance when, as here, constitutional questions are presented:

In such cases we have strictly adhered to the standing requirements to ensure that our deliberations will have the benefit of adversary presentation and a full development of the relevant facts. . . .

At an irreducible minimum, Art. III re...