PG Publ'g Co. v. Aichele, Civil Action No. 12-960
| Decision Date | 09 October 2012 |
| Docket Number | Civil Action No. 12-960 |
| Parties | PG PUBLISHING COMPANY d/b/a THE PITTSBURGH POST-GAZETTE, Plaintiff, v. CAROL AICHELE, in her capacity as SECRETARY OF THE COMMONWEALTH; the ALLEGHENY COUNTY BOARD OF ELECTIONS; and MARK WOLOSIK, in his capacity as DIVISION MANAGER OF THE ALLEGHENY COUNTY ELECTIONS DIVISION, Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
PG PUBLISHING COMPANY d/b/a
THE PITTSBURGH POST-GAZETTE, Plaintiff,
v.
CAROL AICHELE, in her capacity as SECRETARY OF THE COMMONWEALTH;
the ALLEGHENY COUNTY BOARD OF ELECTIONS;
and MARK WOLOSIK, in his capacity as DIVISION MANAGER
OF THE ALLEGHENY COUNTY ELECTIONS DIVISION, Defendants.
Civil Action No. 12-960
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Date: October 9, 2012
I. Introduction
The Defendants in this action have filed motions to dismiss the Plaintiff's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Docket Nos. 30 & 32. The Plaintiff has moved to strike portions of a brief filed in support of one of the pending motions to dismiss. Docket No. 42. The Plaintiff also asks the Court to take judicial notice of comments reportedly made by Allegheny County Executive Richard Fitzgerald ("County Executive") during a recent press conference. Docket No. 43. In the event that such judicial notice is taken, the Plaintiff seeks leave to file a supplemental brief discussing the relevance of the County Executive's comments to this case. Docket No. 44. In addition, the Plaintiff and the county defendants have filed motions requesting the entry of a consent order that would terminate this action. Docket Nos. 52 & 58. Because the amended complaint "fail[s] to state a
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claim upon which relief can be granted," the motions to dismiss will be granted pursuant to Rule 12(b)(6). FED. R. CIV. P. 12(b)(6); Docket Nos. 30 & 32. The remaining five motions will be denied. Docket Nos. 42, 43, 44, 52 & 58.
II. Background
Plaintiff PG Publishing Co. ("PG") is the publisher of the Pittsburgh Post-Gazette, which is a daily newspaper circulated throughout western Pennsylvania. Docket No. 28 at ¶ 4. Defendant Carol Aichele presently serves as the Secretary of the Commonwealth of Pennsylvania ("Secretary"). Id. at ¶ 5. The Allegheny County Elections Division ("Elections Division") is charged with the duty of administering the Commonwealth's election laws and regulations throughout Allegheny County, Pennsylvania. Id. at ¶ 6. Defendant Mark Wolosik currently serves as the Division Manager of the Elections Division ("Division Manager"). Id. at ¶ 7.
The Pennsylvania Constitution gives the Commonwealth's General Assembly the authority to enact legislation governing the conduct of elections.1 PA. CONST., ART. VII, § 6; Mixon v. Commonwealth of Pennsylvania, 759 A.2d 442, 450 (Pa.Commw.Ct. 2000). Article VII, § 4, of the Pennsylvania Constitution mandates that "secrecy in voting be preserved." PA. CONST., ART. VII, § 4. Pursuant to its regulatory authority, the General Assembly has enacted 25 PA. STAT. § 3060, which provides:
§ 3060. Regulations in force at polling places
(a) Until the polls are closed, no person shall be allowed in the polling place outside of the enclosed space at any primary or election, except the watchers, voters not exceeding ten at any one time who are awaiting their turn to vote, and peace officers, when necessary for the preservation of the peace. No elector shall be allowed to occupy a voting compartment or voting machine booth already occupied by another, except when giving assistance as permitted by this act.
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(b) No elector, except an election officer, clerk, machine operator or overseer, shall be allowed to re-enter the enclosed space after he has once left it, except to give assistance as provided by this act.
(c) No person, when within the polling place, shall electioneer or solicit votes for any political party, political body or candidate, nor shall any written or printed matter be posted up within the said room, except as required by this act.
(d) All 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.
(e) When the hour for closing the polls shall arrive, all qualified electors who have already qualified, and are inside the enclosed space, shall be permitted to vote; and, in addition thereto, all those qualified electors who are in the polling place outside the enclosed space waiting to vote and all those voters who are in line either inside or outside of the polling place waiting to vote, shall be permitted to do so, if found qualified.
(f) It shall be the duty of the judge of election to secure the observance of the provision of this section, to keep order in the voting room, and to see that no more persons are admitted within the enclosed space than are permitted by this act. The judge of election may call upon any constable, deputy constable, police officer or other peace officer to aid him in the performance of his duties under this section.
25 PA. STAT. § 3060. These statutory provisions are designed to promote "the free exercise of the right of suffrage" enjoyed by qualified voters throughout Pennsylvania. PA. CONST., ART. I, § 5.
General elections to fill federal, state and local offices are held on the Tuesday following the first Monday in November. 2 U.S.C. §§ 1, 7; 3 U.S.C. § 1; 25 PA. STAT. §§ 2751-2752. Four years ago, the general election was conducted on November 4, 2008. An attorney for PG contacted the Division Manager in October 2008 and inquired about the restrictions that the Elections Division would impose on Post-Gazette reporters covering the election at polling places throughout Allegheny County. Docket No. 31-1 at 11. In a letter to PG's counsel dated October 28, 2008, an attorney employed by Allegheny County's Department of Law stated as follows:
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This letter is to confirm our telephone conversation of last week where I indicated that Allegheny County's policy is to prohibit photographs, video taping and any other type of recording inside the polling place. That prohibition extends to attempts to record activity in the polling place from outside of the polling place, for example, through an open door or window.
The Pennsylvania Constitution at Article VII, Section 4 mandates secrecy in voting. That provision, combined with the applicable provisions of the Pennsylvania Election Code limiting persons properly inside the polling place, prohibits any recording or attempt to record activity inside the polling place.
That prohibition does not, though, extend to outside the polling place. There seems to be no restriction on recording outside the polling place.
Id. at 12. By prohibiting attempts to photograph or record activities within polling places through open doors and windows, the Elections Division's policy was more restrictive than § 3060(d). 25 PA. STAT. § 3060(d).
PG commenced an action against Allegheny County and the Allegheny County Board of Elections ("Board")2 in the Court of Common Pleas of Allegheny County on October 31, 2008, alleging that the policy promulgated by the Elections Division was violative of the First and Fourteenth Amendments to the United States Constitution and Article I, § 7, of the Pennsylvania Constitution. Docket No. 31-1 at 2-10. The complaint filed by PG alleged that, during previous elections, Allegheny County officials had "attempted to prevent news photographers who were located in places lawfully accessible to them from photographing in the direction of voting machines." Id. at 5, ¶ 7. It was further alleged that counties surrounding Allegheny County had not imposed similar restrictions on members of the media. Id.
PG sought a preliminary injunction prohibiting Allegheny County officials from enforcing the policy. Docket No. 31-2 at 4. Attached to its motion was a proposed order reading as follows:
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AND NOW, to wit, this ___ day of November, 2008, upon consideration of Plaintiff's Motion for Preliminary Injunction and Complaint;
AND upon having determined that Plaintiff will suffer immediate and irreparable injury as a result of Defendants' conduct, it is hereby ORDERED, ADJUDGED and DECREED that Plaintiff's Motion be and hereby is GRANTED.
Defendants and their agents are hereby prohibited from restricting or interfering with attempts of Plaintiff's agents and employees to photograph activities in and around polling places so long as Plaintiff's agents and employees are located in areas accessible to the public or into which they have otherwise been lawfully admitted.
Id. at 5. Judge Joseph James signed and dated the proposed order on November 3, 2008. Docket No. 31-4 at 2-3. At the end of the order, however, Judge James added the following sentence:
No photography shall be taken from inside the polling place or within ten (10) feet of the entrance of the polling place.
Id. at 2. This sentence was apparently added to clarify that Allegheny County officials were not prohibited from enforcing § 3060(d). 25 PA. STAT. § 3060(d).
Elections for federal offices are governed by the Help America Vote Act of 2002 ("HAVA") [42 U.S.C. § 15301 et seq.]. Under § 302(a) of the HAVA, an individual who declares himself or herself to be an eligible voter in a given jurisdiction is entitled to "cast a provisional ballot" in the event that his or her name "does not appear on the official list of eligible voters for the [relevant] polling place," or if "an election official asserts that [he or she] is not eligible to vote." Pub. L. No. 107-252, § 302(a); 116 Stat. 1666, 1706-1707 (2002); 42 U.S.C. § 15482(a). A vote appearing on a provisional ballot is counted only if an election official later verifies the individual's eligibility to vote under state law. 42 U.S.C. § 15482(a)(4).
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Pennsylvania's General Assembly recently enacted "Act 18," which revised the statutory provisions governing the conduct of elections.3 2012 Pa. Laws 18. The revisions became effective on March 14, 2012, when Act 18 was signed into law by Governor Tom Corbett. Id., § 12. Section 3 of Act 18 requires an...
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