Pennsylvania Family Institute, Inc. v. Celluci

• Decision Date: 16 October 2007
• Docket Number: Civil Action No. 07-1707.
• Citation: 521 F.Supp.2d 351
• Parties: PENNSYLVANIA FAMILY INSTITUTE, INC., et al., Plaintiffs, v. John R. CELLUCI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

521 F.Supp.2d 351

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.

October 16, 2007.

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James Bopp, Jr., Josiah Simpson Neeley, Bopp, Coleson and Bostrom, Terre Haute, IN, Randall Luke Wenger, Boyle & Wegner, Camp Hill, 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 the parties' renewed cross-motions for summary judgment (Documents No. 40, 41, and 42) and their responses thereto (Documents No. 43 and 44). For the following reasons, the court will grant Defendants' motion, deny Plaintiffs' motion, and vacate the preliminary injunction entered on May 14, 2007.

I. Background

The extensive factual background to this suit is summarized in the court's opinions of May 14, 2007, which denied Defendants' motion to dismiss for lack of standing and ripeness, and granted Plaintiffs' motion for a preliminary injunction. See Pennsylvania Family Institute, Inc. v. Celluci, 489 F.Supp.2d 460 (E.D.Pa.2007) (denying motion to dismiss); Pennsylvania Family Institute, Inc. v. Celluci, 489 F.Supp.2d 447 (E.D.Pa.2007) (granting motion for preliminary injunction). For purposes of their cross-motions for summary judgment, the parties do not dispute the following facts:

1. This is a civil action for declaratory and injunctive relief arising under the First and Fourteenth Amendments to the Constitution of the United States. It concerns the constitutionality of portions of the Pennsylvania Judicial Canon 7B(1)(c).

2. Pennsylvania state court judges are selected through a process of partisan judicial elections. Regulation of judicial conduct, as well as the conduct of candidates for judicial office, is governed by the Pennsylvania Code of Judicial Conduct ("the Canons").

3. Canon 7B(1)(c) prohibits judicial candidates from "mak[ing] pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office," (the "pledges and promises" clause), or from "mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court ...." (the "commits" clause).

4. The Pennsylvania Judicial Conduct Board ("the Board"), established by Article V, § 18 of the Pennsylvania Constitution, is empowered to receive and investigate complaints regarding judicial conduct filed by individuals or initiated by the Board, to determine whether probable cause exists to file formal charges against a judicial officer, and to present its case in support of the filed charges before the Pennsylvania Court of Judicial Discipline.

5. The current members of the Board are: John R. Celluci, III, Charles A. Clement, Charles J. Cunningham, Patrick Judge, G. Craig Lord, Charlene R. McAbee, Jack A. Panella, Carolyn W. "Raven" Rudnitsky, Cecilia Griffen Golden, Edward R. Klett, James R. Weaver, and Cynthia N. McCormick 6. Pennsylvania Rule of Professional Conduct 8.2(c) provides that a "lawyer who is a candidate for judicial office shall comply with the applicable provisions of Canon 7 of the Code of Judicial Conduct." Pennsylvania Rule of Disciplinary Enforcement 207(b) provides that Disciplinary Counsel "shall have the power and duty" to ket, in effect, as prosecutors in any matter involving alleged violation of the Code of Professional Conduct. Rule 102(a) defines "Disciplinary Counsel" as the "Chief Disciplinary Counsel and assistant disciplinary counsel."

7. Current members of the Disciplinary Counsel in Pennsylvania are: Chief Disciplinary Counsel Paul J. Killion, Deputy Chief Disciplinary Counsel Paul J. Burgoyne, District I Office Disciplinary Counsel in Charge Anthony P. Sodroski, District II Office Disciplinary Counsel in Charge Raymond W. Wierciszewski, District III Office Disciplinary Counsel in Charge, Edwin W. Frese, Jr., and District IV Office Disciplinary Counsel in Charge Angelea Allen Mitas.

8. Plaintiffs Jeffrey J. Reich, Howard F. Knisely, Donald R. Totaro, Margaret C. Miller, Jeffrey D. Wright, and Christopher A. Hackman (collectively "Candidate Plaintiffs") are each residents of Lancaster County, Pennsylvania, and candidates for judicial office in Lancaster County in the 2007 judicial elections.

9. The Candidate Plaintiffs received from Lancaster County ACTION a 2007 Issues Survey ("ACTION Questionnaire") asking them to announce their views on several disputed legal and political issues. Responses to the ACTION Questionnaire were due by April 9, 2007.

10. By letter dated April 6, 2007 in response to the Lancaster County ACTION 2007 Issues Survey, the Candidate Plaintiffs stated that "[a]ll 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." Defendants stipulate that the April 6, 2007 letter made this statement, but do not stipulate that Canon 7B(1)(c) does in fact prohibit candidates from commenting on or making statements which appear to [commit] them with respect to the issues addressed in the ACTION Questionnaire.

11. On April 12, 2007, 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. In correspondence dated April 13, 2007, the Judicial Ethics Committee responded that it was not authorized to advise whether judicial candidates could respond.

12. Plaintiff Pennsylvania Family Institute ("PFI") is a non-profit corporation incorporated in the Commonwealth of Pennsylvania. PFI is not associated with any political candidate, political party, or campaign committee. PFI headquarters are located in the City of Harrisburg in Dauphin County.

13. PFI, among other things, gathers information and publishes questionnaires to educate citizens about candidates for public office. During the 2005 judicial elections, PFI brought suit challenging the constitutionality of several provisions of the Canons on First Amendment grounds. On November 4, 2005, PFI's challenge was dismissed on standing grounds. Pennsylvania Family Institute v. Black, 2005 WL 2931825 (M.D.Pa. Nov.4, 2005). The Third Circuit affirmed that decision on May 25, 2007.

14. On April 3, 2007, PFI mailed an explanatory cover letter and a "2007 Pennsylvania Family Institute Judicial Candidate Questionnaire" to all candidates for judicial office in the Pennsylvania 2007 judicial elections. In this letter, PFI stated that all responses received would be published without alteration.

15. The Candidate Plaintiffs received copies of the PFI Questionnaire. They did not respond to the PFI Questionnaire, however, because they believed answering some of the questions on the PFI Questionnaire would violate Canon 7B(1)(c). This is based on their own opinion and reading of the canon and not due to any advice from Defendants, or anyone else.

16. PFI received twenty-one responses from judicial candidates. Two candidates responded by letter. One indicated that [i]t is because I believe that doing so would violate the Pennsylvania Code of Judicial Conduct, or its spirit, that I feel compelled to decline to answer this questionnaire." The other stated that "as a sitting judge and a candidate ... I feel it would be inappropriate for me to opine on many of the specifics about which you ask." The letters did not specifically refer to Canon 7B(1) (c).

17. Of the nineteen candidates who filled out questionnaire forms, eighteen answered question 1, which asked candidates to indicate "[w]hich of the former U.S. Presidents best represents your political philosophy?" These candidates circled the answer option "Decline to

Respond Because of Judicial Canons," which contained the explanation that:

By circling this phrase, I hereby attest that I would have replied to this question but for the prospect that I may be disciplined for "announcing" my views under Canon 7(B)(1)(c) of the Pennsylvania Code of Judicial Conduct, which states that judicial candidates may not "make pledges or promises of conduct in office" or "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," and that I may be disciplined for failure to disqualify myself as a judge in any proceeding concerning the issue raise[d] in the question under Canon 3(C)(1), which states that judges must disqualify when their "impartiality might reasonably be questioned." I further attest that responding to this question would neither cause me to be biased for or against parties nor affect my ability to be open-minded with regard to any issue.

Plaintiffs do not believe, based on these responses and the plain language of the Canons, that judicial candidates are prohibited by Canon 7B(1)(c) from answering question 1.

18. Two candidates declined to answer question 2, which asked candidates to indicate "[w]hich one of the current Justices of the U.S. Supreme Court most reflects your judicial Philosophy?" These candidates circled the answer option "Decline to Respond Because of Judicial Canons," which contained the explanation given in paragraph 17. Plaintiffs do not believe, based on these responses and the "plain language" of the Canons, that judicial candidates are prohibited by Canon 7B(1)(c) from answering question 2 19. Three candidates declined to answer question 3, which asked candidates to "Hate your judicial philosophy on a scale of...