OpenPittsburgh.Org v. Voye

Decision Date27 September 2021
Docket Number2:16-cv-01075
Citation563 F.Supp.3d 399
Parties OPENPITTSBURGH.ORG and Trenton Pool, Plaintiffs, v. David VOYE, in his official capacity as the Manager of the Allegheny County Division of Elections, et al., Defendants.
CourtU.S. District Court — Western District of Pennsylvania

Lawrence M. Otter, Silverdale, PA, Paul A. Rossi, Pro Hac Vice, Mountville, PA, for Plaintiff OpenPittsburgh.Org.

Paul A. Rossi, Pro Hac Vice, Mountville, PA, for Plaintiff Trenton Pool.

Scott A. Bradley, Office of the Attorney General Litigation Section, Pittsburgh, PA, for Defendant Kathryn Boockvar.

Andrew F. Szefi, George M. Janocsko, Allegheny County Law Department, Pittsburgh, PA, for Defendant David Voye.

George M. Janocsko, Allegheny County Law Department, Pittsburgh, PA, for Defendants Kathryn M. Hens-Greco, Thomas Baker, Robert Palmosina.

OPINION

Mark R. Hornak, Chief United States District Judge

Presently before the Court are Defendants’ reaffirmed motions to dismiss Plaintiffs’ Third Amended Complaint ("TAC") (ECF No. 86) seeking declaratory and injunctive relief prohibiting Defendants from "enforcing 53 Pa. C.S.A. § 2943(a) of the Pennsylvania Home Rule & Optional Plan Law ... to the extent it incorporates 25 P.S. § 2869 of the Pennsylvania Election Code on the circulation, signing, filing and adjudication of petitions to place a referendum question on" Pittsburgh's 2021 or 2022 general election ballot. (ECF No. 86, at 2.) Plaintiffs challenge the constitutionality of these laws, facially and as applied to Plaintiffs, to the extent these provisions prohibit "unregistered Pennsylvania voters from freely circulating referendum petitions under 53 Pa. C.S.A. § 2943(a)"; to the extent the provisions prohibit "non-Pennsylvanians from freely circulating referendum petitions under 53 Pa. C.S.A. § 2943(a)"; and finally, to the extent these provisions require "Plaintiffs to notarize each and every page of referendum petitions circulated and filed under 53 Pa. C.S.A. § 2943(a)."1 (Id. )

Pursuant to 42 U.S.C. § 1983, Plaintiffs bring six federal constitutional challenges: (1) Count I of Plaintiffs’ TAC raises facial constitutional challenges to the Pennsylvania Home Rule and Optional Plan Law ("Home Rule Law"), 53 Pa. C.S.A. § 2943(a), and Pennsylvania's Election Code ("Pennsylvania Election Code" or "Election Code"), 25 P.S. § 2869, arguing that the voter registration requirement for circulators of referendum petitions under these sections is a facial impairment to Plaintiffs’ rights guaranteed under the First and Fourteenth Amendments of the Constitution;2 (2) Count II raises an as-applied constitutional challenge to the same voter registration requirement, alleging violations of Plaintiffs’ First and Fourteenth Amendment rights; (3) Count III raises a facial constitutional challenge to the Home Rule Law and Election Code's restriction on out-of-state circulators of referendum petitions, arguing that the restriction is a facial impartment of rights guaranteed to Plaintiffs under the First and Fourteenth Amendments;3 (4) Count IV is an as-applied challenge to the same out-of-state circulator restriction, alleging violations of Plaintiffs’ First and Fourteenth Amendment rights; (5) Count V raises a facial constitutional challenge to the Home Rule Law and Election Code's requirement that Plaintiffs notarize every page of a referendum petition, arguing that the notarization requirement facially impairs the rights guaranteed to Plaintiffs under the First and Fourteenth Amendments; and (6) Count VI raises an as-applied constitutional challenge to the same notarization requirement, alleging violations of Plaintiffs’ First and Fourteenth Amendment rights.

The Secretary of the Commonwealth4 and the group of County Defendants5 each move to dismiss Plaintiffs’ claims in their entirety. The County Defendants move to dismiss Plaintiffs’ TAC pursuant to Federal Rule of Civil Procedure 12(b)(1) for want of justiciability and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Without citing to a specific provision of Rule 12, the Commonwealth generally moves to dismiss for lack of standing and for failure to state a claim specifically against the Secretary.

For the reasons that follow, the Court denies the Secretary and the County Defendants’ respective motions to dismiss. To the extent Plaintiffs raise facial and as-applied constitutional challenges to the Home Rule Law and Election Code's requirement that Plaintiffs notarize every page of a referendum petition (Counts V and VI of Plaintiffs’ TAC), the Court dismisses these claims without prejudice as moot, as conceded by the parties in light of the passage of Act 77 of 2019. Moreover, the Court denies both motions to dismiss to the extent they seek to dismiss Plaintiffs’ claims on justiciability grounds, as the Court concludes that Plaintiffs have standing and that their claims are ripe. Although not directly raised by Defendants, the Court sua sponte concludes that the "capable of repetition yet evading review" exception applies to eliminate any mootness concerns as to such claims. Finally, the Court denies Defendants’ respective motions to dismiss to the extent the County Defendants argue that Plaintiffs have failed to plausibly allege liability under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and to the extent that the Court rejects the Commonwealth's proposed statutory interpretation of 53 Pa. C.S.A. § 2943(a).

I. PROCEDURAL BACKGROUND

The parties are well versed in the lengthy procedural history of this case, so the Court recites only the relevant procedural background here. On October 29, 2019, Plaintiffs filed their TAC seeking injunctive and declaratory relief against all Defendants. (ECF No. 86.) In November 2019, the Secretary of the Commonwealth moved to dismiss all of Plaintiffs’ claims against it (ECF Nos. 94 and 95), which Plaintiffs opposed at ECF No. 99. The Commonwealth thereafter replied at ECF No. 100. In December 2019, the County Defendants filed their respective Motion to Dismiss, also seeking dismissal of all claims raised against them. (ECF No. 93.)

In a Joint Status Report filed on March 5, 2021, the parties represented to the Court that they believed the matter could "be resolved without further litigation through an agreed upon order." (ECF No. 105, at 1.) The Court accordingly stayed and administratively closed this case pending an entry of final case resolution orders, which the parties represented they would file on or before March 18, 2020. (ECF No. 106.) In the months that followed, the parties did not resolve the case through an agreed-upon order. Instead, it became clear that settlement negotiations had broken down following what appears to the Court to be a disagreement as to who would bear the cost of attorneys’ fees. (See ECF Nos. 107, at 4–6; 109, at 3; and 110, at 4–6.) The Court thereafter held a telephone status conference with counsel, after which the Court directed the parties to further confer and file reports as to the current status of the action. (ECF No. 117; see ECF Nos. 120, 122, and 124.)

Following those additional status reports, the Secretary of the Commonwealth ultimately notified the Court of her intent to proceed with the pending motions to dismiss. (ECF No. 127, at 2.) The County Defendants filed a separate status report in which it affirmed its "legal ambivalence" regarding the merits of the action and asserted its interest in having the law settled, "so that it can apply the law fairly and accurately in upcoming actions and [ ] avoid being found liable to pay fees and costs regarding matters over which it has no control or discretion." (ECF No. 126, at 2–3.) In light of that change of course, the Court held a status conference with all parties to understand the "precise procedural and substantive status of the action, the matters that remain to be resolved on the merits, the procedure they propose for doing such, and their proposed timeline for doing so." (ECF No. 129.)

Following the status conference, the Court ordered the Commonwealth and the County Defendants to either file new Rule 12 motions, notices reaffirming the motions to dismiss then on the docket, or answers to the TAC. (ECF No. 131.) The County Defendants reaffirmed their Motion to Dismiss (ECF Nos. 75 and 93) and added supplemental arguments for the Court's consideration in their supplemental motion (ECF Nos. 133 and 134). The Secretary of the Commonwealth notified the Court that it opted to "reaffirm the motion to dismiss presently on the docket" (ECF Nos. 94 and 95), "as supplemented by her Reply Brief" (ECF No. 100) and "her Status Report" (ECF No. 110). (ECF No. 135, at 3.) Finally, Plaintiffs filed an additional consolidated response to Defendantsmotions to dismiss. (ECF No. 136.) With that, the record is now closed, and Defendants’ respective motions to dismiss are ripe for disposition.

II. FACTUAL BACKGROUND 6

Plaintiffs filed this civil rights action pursuant to 42 U.S.C. § 1983, "seeking prospective equitable relief enjoining enforcement and declaring that certain of the combined requirements of 53 Pa. C.S.A. § 2943(a) and 25 P.S. § 2869 impair[ ] clearly established rights guaranteed to Plaintiffs under the First and Fourteenth Amendments to the United States Constitution." (ECF No. 86, ¶ 4.)

Plaintiff OpenPittsburgh.Org is "an unincorporated grass-roots political organization that intends to circulate referendum petitions ... to place a referendum on the [ ] Pittsburgh general election ballot,"7 though which OpenPittsburgh.Org seeks to "amend the Allegheny County Home Rule Charter changing the composition and qualification of members who may serve on the Allegheny County Board of Elections." (Id. ¶ 12.) Plaintiff Trenton Pool, a resident of the state of Texas, is a "professional circulator of election and referendum petitions" who, via his consulting firm, has contracted with OpenPittsburgh.Org...

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