PG Publ'g Co. v. Aichele

Citation705 F.3d 91
Decision Date15 January 2013
Docket NumberNo. 12–3863.,12–3863.
PartiesPG PUBLISHING COMPANY, d/b/a The Pittsburgh Post–Gazette, Appellant v. Carol AICHELE, in her capacity as Secretary of the Commonwealth; Allegheny County Board of Elections; Mark Wolosik, in his capacity as Division Manager of the Allegheny County Elections Division.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)


Frederick N. Frank, Esq., [Argued], Ellis W. Kunka, Esq., Frank, Gale, Bails, Murcko & Pocrass, Pittsburgh, PA, for Appellant PG Publishing Company.

Kemal A. Mericli, Esq., [Argued], Office of Attorney General of Pennsylvania, Pittsburgh, PA, for Appellee Carol Aichele.

George M. Janocsko, Esq., Andrew F. Szefi, Esq., Office of Allegheny County, Law Department, Allan J. Opsitnick, Esq., Pittsburgh, PA, for Appellees Allegheny

County Board of Elections and Mark Wolosik.

Teri L. Henning, Esq., Pennsylvania Newspaper Association, Harrisburg, PA, for Pennsylvania Newspaper Association, Amicus Appellant.

Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.


GREENAWAY, JR., Circuit Judge.

The instant case calls upon us to decide whether a state statute restricting access to a polling place infringes on the media's First Amendment right to gather news. Appellant PG Publishing Company (Appellant or “PG”) seeks review of the District Court's decision to dismiss its suit against election officials for the Commonwealth of Pennsylvania. Specifically, Appellant alleges violations of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Appellant also seeks review of the District Court's refusal to enter a consent decree agreed to by PG and one of the parties relating to the suit. For the reasons set forth below, we will affirm the District Court's decisions.

I. Background

Appellant brought suit pursuant to 42 U.S.C. § 1983 against (1) Appellee Carol Aichele (Appellee) in her capacity as the Secretary of State of the Commonwealth of Pennsylvania, (2) the Allegheny County Board of Elections, and (3) Mark Wolosik in his capacity as the Division Manager for the County Elections Division (collectively, Defendants).1 Appellant's suit addressed the constitutionality of 25 Pa. Stat. Ann. § 3060(d), a portion of the Pennsylvania Election Code mandating that

[a]ll persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers, when permitted by the provisions of this act, must remain at least ten (10) feet distant from the polling place during the progress of the voting.

25 Pa. Stat. Ann. § 3060(d). A “polling place” is “the room provided in each election district for voting at a primary or election.” 25 Pa. Stat. Ann. § 2602(q).

In its Amended Complaint, Appellant asserted two claims: 2 (1) that § 3060(d) infringed on its First Amendment “right to access and gather news at polling places” (“Count I”), and (2) that Defendants' selective enforcement of § 3060(d) presented a violation of the Equal Protection Clause of the Fourteenth Amendment (“Count II”). (App. at 81a–84a.)

In support of Count I, Appellant alleged that “its reporters and photographers had previously been denied access to polling places to gather news” in Allegheny and Beaver Counties. ( Id. at 76a.) Appellant also alleged that, in October 2008, Mr. Wolosik and the Allegheny County Board of Elections notified Appellant that not only was “any type of recording inside the polling place ... prohibited under [the County's] policy,” but that “the Pennsylvania Election Code limited [Appellant's] reporters and photographers from being inside polling places” altogether.3( Id. at 76a.) Appellant further contended that reporting from within polling places during the November 6, 2012 election was particularly important because “for the first time, the Voter ID Law, House Bill No. 934, Session of 2011 4 [was to be] enforced, which [would have required] all electors to present a government-approved photo ID in order to be allowed to vote in any election in the Commonwealth.” 5 ( Id. at 79a–80a.) Appellant sought (1) a declaratory judgment holding § 3060(d) to be unconstitutional as applied and (2) compensatory damages for past infringement of its First Amendment rights.6

To establish its equal protection claim in Count II, Appellant alleged that its reporters had been “denied access to photograph in polling places in Allegheny and Beaver Counties.” ( Id. at 77a.) At the same time, Appellant set out a number of examples where reporters from other Pennsylvania newspapers had the opportunity to take photographs inside polling places in counties other than Allegheny or Beaver Counties. Finally, Appellant alleged that its own reporters previously had been allowed inside polling places in Allegheny County “for the purpose of reporting upon and photographing the electoral process only as it relates [to certain] public figures.” ( Id. at 79a.) Appellant then requested (1) a declaratory judgment that the counties' application of § 3060(d) violates the Equal Protection Clause and (2) injunctive relief (either preliminary or permanent) against further discrimination.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants moved to dismiss the suit and the District Court granted the motion. As to Count I, the District Court noted that § 3060(d) applies to an individual's physical location and not his speech, therefore obviating the need to determine whether a polling place was a public forum. PG Publ'g Co. v. Aichele, –––F.Supp.2d ––––, ––––, No. 12–960, 2012 WL 4796017, at *22 (W.D.Pa. Oct. 9, 2012). The District Court then analyzed the statute under the rubric of content-neutral laws applied in nonpublic fora and held that PG's First Amendment rights were not abridged given that § 3060(d) is a [content]-neutral law of general application seeking to protect an individual's ‘right to cast a ballot in an election free from the taint of intimidation and fraud.’ Id. ––– F.Supp.2d at ––––, 2012 WL 4796017 at *27 (quoting Burson v. Freeman, 504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)).

As to the equal protection claim in Count II, the District Court held that the examples of inconsistent enforcement of § 3060(d) alleged in Appellant's Amended Complaint did not rise to the level of a constitutional violation. Specifically, the District Court held that Appellant failed to establish that “a single election official ha[d] discriminated against reporters working for” Appellant in applying § 3060(d). Id. ––– F.Supp.2d at ––––, 2012 WL 4796017 at *29 (emphasis in original).

Additionally, in September 2012—roughly a month after Defendants filed their motion to dismissAppellant and the Allegheny County Board of Elections moved jointly for entry of a consent decree which they argued, in essence, resolved the dispute (“Consent Order”). The Consent Order permitted Appellant and its reporters to enter polling places in Allegheny County for purposes of recording the sign-in process. This permission was subject to various restrictions including, for example, an obligation for Appellant's personnel to stop recording if voters objected. The Consent Order was also explicitly “conditioned upon [Appellant] discontinuing its action against the Commonwealth.” (App. at 142a.) Appellee, not a party to the Consent Order, objected that the Order was illegal in that it essentially permitted Appellant to act in contravention of a valid state law (§ 3060(d)). The District Court agreed and refused to enter the Order, noting that the parties could not “use a consent decree to enforce ‘terms which would exceed their authority and supplant state law.’ Id. ––– F.Supp.2d at ––––, 2012 WL 4796017 at *32 (quoting Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir.1997)).

PG filed a timely appeal from the District Court's aforementioned rulings. Given that Election Day was fast approaching, we granted the parties' motion to expedite the proceedings. On November 1, 2012, we entered an order affirming the District Court's rulings. This opinion sets forth the bases of the Order.

II. Standard of Review

We exercise plenary review over the District Court's grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.2010). [I]n deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the [Appellant], and all inferences must be drawn in [its favor].” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.2009) (citation omitted). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

We review the District Court's ruling regarding the Consent Order for an abuse of discretion, see NutraSweet Co. v. Vit–Mar Enters., 176 F.3d 151, 153 (3d Cir.1999), and look to see whether the decision was “arbitrary, fanciful or clearly unreasonable.” Democratic Nat'l Comm. v. Republican Nat'l Comm., 673 F.3d 192, 201 (3d Cir.2012) (quoting Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir.2007)); see also Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.1993) (“An abuse of discretion arises when the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” (internal quotation marks omitted)).

III. The Right of Access

Appellant argues that it has a constitutionally protected right of access to gather news at the polling place and that any restriction on this right must be reviewed under strict scrutiny. While PG never explicitly claims that the media should have...

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