Pennsylvania Family Institute, Inc. v. Celluci, Civil Action No. 07-1707.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Katz
• Citation: 489 F.Supp.2d 447
• Parties: PENNSYLVANIA FAMILY INSTITUTE, INC., et al., Plaintiffs, v. John R. CELLUCI, et al., Defendants.
• Docket Number: Civil Action No. 07-1707.
• Decision Date: 14 May 2007

489 F.Supp.2d 447 PENNSYLVANIA FAMILY INSTITUTE, INC., et al., Plaintiffs,
v.
John R. CELLUCI, et al., Defendants. Civil Action No. 07-1707. United States District Court, E.D. Pennsylvania. May 14, 2007.

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Randall Luke Wenger, Clymer & Musser PC, Lancaster, PA, for Plaintiffs.

David M. Donaldson, Administrative Office of Pennsylvania Courts, Philadelphia, PA, for Defendants.

MEMORANDUM AND ORDER

KATZ, Senior District Judge.

Before the court are Plaintiffs' Motion for Preliminary Injunction and Temporary Restraining Order (Document No. 2), Defendants' response thereto, Plaintiffs' Proposed Findings of Fact and Conclusions of Law (Document No. 13), Defendants' Proposed Findings of Fact and Conclusions of Law (Document No. 14), Defendants' Witness Narrative Statement (Document No. 15), and the arguments and evidence presented by the parties at the preliminary injunction hearing. For the following reasons, Plaintiffs' motion will be granted, and the court will issue the preliminary injunction set forth in the attached Order upon Plaintiffs' posting of the required bond of $5,000.

I. Findings of Fact

1. The Canon at Issue. Rule 8.2(b) of the Pennsylvania Rules of Professional

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Conduct declares that "[a] lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct." Canon 7B(1)(c) of the Pennsylvania Code of Judicial Conduct reads as follows:

(1) Candidates, including an incumbent judge, for a judicial office that is filled either by public election between competing candidates or on the basis of a merit system election:

. . . . .

(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or misrepresent their identity, qualifications, present position, or other fact.

PA.CODE OF JUD. CONDUCT, Canon 7B(1)(c) (2007). The first two clauses of Canon 7B(1)(c) are at issue in this case. Plaintiffs designate as the "pledges and promises clause" the first clause: "Candidates ... for a judicial office ... should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office"; they designate as the "commits clause" the second clause: "Candidates ... for a judicial office ... should not ... make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."

2. The Plaintiffs. Plaintiffs in this action are the Pennsylvania Family Institute, Inc. ("PFI"), "a nonprofit, nonpartisan, research and education organization" incorporated in the Commonwealth of Pennsylvania, see Compl. ¶ 7, Exhibit 5, and six residents of Lancaster County, Pennsylvania, who also are candidates for the Court of Common Pleas in Lancaster County in the 2007 judicial elections (the "Candidate Plaintiffs").¹ Id. ¶¶ 8-13, 17.

3. See. The Defendants. Defendants in this action are all 12 members of the Pennsylvania Judicial Conduct Board ("JCB"),²,³ id. 14, as well as the Chief Disciplinary Counsel of the Pennsylvania Office of Disciplinary Counsel ("ODC"), his Deputy, and the disciplinary counsel in charge of the ODC's Offices in Districts I, II, III, and IV.⁴,⁵ Id. ¶ 15. All Defendants are

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being sued in their official capacities. Id. ¶¶ 14, 15.

4. Plaintiffs' Two Claims. Plaintiffs' "Verified Complaint for Injunctive and Declaratory Relief' consists of two Counts,⁶ both of which seek relief under the "free speech" clause of the First Amendment of the United States Constitution,⁷ which applies against the States through the Fourteenth Amendment.⁸ Count I's heading declares that "Canon 7B(1)(c)'s `pledges and promises' clause and `commits' clause are, on their face, unconstitutionally vague and overbroad, prohibiting and chilling judicial candidates' protected political speech and impinging on Plaintiffs' freedom of speech and association." See also id. ¶¶ 43-48. Count II's heading states that "Canon 7B(1)(c)'s `pledges and promises' clause and `commits' clause, as applied to the ACTION questionnaire and the PFI questionnaire, unconstitutionally prohibit

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and chill judicial candidates' protected political speech and Plaintiffs' freedom of speech and association."⁹ See also id. ¶¶ 49-56. Plaintiffs request a declaratory judgment holding the "pledges and promises" and "commits" clauses unconstitutional under Counts I and II, as well as injunctive relief,¹⁰ attorney's fees, and costs.

5. The ACTION Questionnaire. Lancaster County ACTION ("LCA") is an organization that, according to its website, "promote[s] the election of men and women to local, state, and national offices who support the Judeo-Christian principles on which this nation was founded." See Who Is Lancaster County ACTION?, http:// www.lancastercountyaction.org/whoweare. cfm (last visited May 10, 2007).

As part of LCA's effort to prepare a voter's guide for the 2007 judicial primary election, LCA sent each Candidate Plaintiff a five-question questionnaire (the "ACTION Questionnaire"), entitled "Primary/ 2007 Issues Survey," and requested a response by April 9, 2006.¹¹ See Compl. ¶ 18, Exhibit 3. According to the Complaint, this questionnaire asked the Candidate Plaintiffs "to announce their views on several disputed legal and political issues.¹² 12 Compl. ¶ 18. In a letter dated April 6, 2007, the Candidate Plaintiffs signed a joint response to the ACTION Questionnaire that read as follows:

[In response to questions] 1, 3-5: All of us, the Endorsed Republican Judicial candidates, pledge that, if elected, we will faithfully and impartially perform the duties of that office. Beyond that, Canon 7B(1)(c) of the Code of Judicial Conduct prohibits us from commenting on or making statements which appear to commit us with respect to the issues addressed in these questions.

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[In response to question] 2. All of the Endorsed Republican Judicial candidates share a judicial philosophy of strict constructionism in which the role of the Court is to enforce the laws as written and not to legislate from the bench.

Compl., Exhibit 4; see also id. ¶ 19. On April 12, 2007, Candidate Plaintiff Donald R. Totaro sent a letter to the Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges, asking whether he was prohibited by Canon 7B(1)(c) from answering the ACTION Questionnaire. Id. ¶ 20. In correspondence dated April 13, 2007, the Judicial Ethics Committee responded that it was not authorized to advise whether judicial candidates could respond to the ACTION Questionnaire. Id.

6. The PFI Questionnaire. Plaintiff PFI, among other things, gathers information and publishes questionnaires to educate citizens about candidates for public office. Id. ¶ 21, Exhibit 5 ("Our goal is to inform the electorate of the candidates' positions on issues that are important to the voters."). As part of its effort to prepare an online voter's guide for the 2007 Pennsylvania judicial elections, on April 3, 2007, Plaintiff PFI mailed an explanatory cover letter and a "2007 Pennsylvania Family Institute Voters' Guide Questionnaire for Judicial Candidates" to every candidate for judicial office in Pennsylvania. Id. ¶ 22, Exhibits 5 (explanatory cover letter) and 6 ("PFI Questionnaire"). The letter requested a reply to the eight-question PFI Questionnaire by April 13, 2007 and explained that "[w]e will simply report [through a Voter's Guide posted on our internet website] without comment your responses made to the Questionnaire, as well as a brief biography (experience, education) and your campaign telephone number." Id. ¶ 22, Exhibit 5. The letter also included the following two paragraphs:

As a judicial candidate, we understand that you are subject to the Pennsylvania Code of Judicial Conduct. We believe your responses to our Questionnaire are constitutionally protected under Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), which struck down on First Amendment grounds a Minnesota Judicial Canon that prohibited judicial candidates from "announc[ing] their views on disputed legal or political issues." However, if you remain fearful that you may not answer our Questionnaire under the Code of Judicial Conduct, then you should seek an advisory opinion from [the Pennsylvania Judicial Conduct Board].

Lawyers seeking judicial office are subject to the Judicial Code of Conduct, and you may seek an advisory opinion on whether, as a lawyer, you may respond to our Questionnaire from [the Pennsylvania Lawyers' Disciplinary Board].

Id. Exhibit 5.

The Candidate Plaintiffs received copies of the PFI Questionnaire but did not respond, because they believed that answering some of the questions on the PFI Questionnaire would violate Canon 7B(1)(c).¹³ Id. ¶ 23.

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Twenty-one judicial candidates responded to the PFI Questionnaire.¹⁴ Id ¶ 24. Nineteen returned completed questionnaires; two — M. Lucile Longo, Esq. and the Honorable Anne E. Lazarus — sent letters instead.¹⁵ Id. In a letter dated April

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11, 2007, Ms. Longo declined to answer the PFI Questionnaire, because she believed "that doing so would violate the Pennsylvania Code of Judicial Conduct, or its spirit."

¹⁶ Id. Exhibit 7, at 1. In a letter dated April 19, 2007, Judge Lazarus also declined to answer the PFI Questionnaire and explained her decision as follows:

Unfortunately, as a sitting judge and a candidate for the Superior Court, I feel it would be inappropriate for me to opine on many of the specifics about which you ask. As a judge, I must review each case independently and I believe that by answering a questionnaire I am forced to take sides, blurring my view of justice.

Id. at 2.¹⁷

Of the nineteen...