Stilp v. Contino, 09-3016.

Decision Date22 July 2010
Docket NumberNo. 09-3016.,09-3016.
Citation613 F.3d 405
PartiesGene STILP, v. John J. CONTINO, Executive Director of the State Ethics Commission, in his official capacity only; Thomas W. Corbett, Jr., Attorney General of Pennsylvania, in his official capacity only, Appellants.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Thomas W. Corbett, Jr., Attorney General, Howard G. Hopkirk, Esquire (Argued), Calvin R. Koons, Esquire, Senior Deputy Attorney General, John G. Knorr, III, Esquire, Chief Deputy Attorney General, Office of the Attorney General, Appellate Litigation Section, Harrisburg, PA, for Appellants.

Aaron D. Martin, Esquire (Argued), Hoppe & Martin, LLP, Kennett Square, PA, for Appellee.

Before BARRY and ROTH, Circuit Judges and HAYDEN * , District Judge.

OPINION

ROTH, Circuit Judge:

The Pennsylvania Attorney General and the Executive Director of the State Ethics Commission appeal the District Court's grant of a preliminary injunction enjoining enforcement of 65 Pa. Cons.Stat. § 1108(k), a state statute mandating confidentiality in proceedings before the State Ethics Commission. We agree with the District Court that this statute, to the extent it prohibits a complainant from disclosing his own complaint and the fact that it was filed, unconstitutionally constrains political speech. We will affirm the narrow preliminary injunction granted by the District Court.

I. Background

Gene Stilp, plaintiff in this action, is a government watchdog who takes great pride in “publicly protesting actions of public officials within Pennsylvania state government.” Stilp describes himself as “one of the best-known and most public protestors of fraud, waste and corruption within Commonwealth government.” One of Stilp's tools for combating public corruption is the Pennsylvania Public Official and Employee Ethics Act (Ethics Act), 65 Pa. Cons.Stat. §§ 1101, et seq. However, the confidentiality provision of the Ethics Act precludes Stilp from publicizing the fact that he is filing a complaint with the State Ethics Commission. The limited question presented on appeal is whether, under the First Amendment, the state may subject Stilp to civil sanction or criminal punishment for publicly disclosing his own complaint 1 and the fact that he has filed it-or intends to file it-with the State Ethics Commission.

A. The State Ethics Act

The Pennsylvania Legislature enacted the Ethics Act to promote ethical conduct and integrity among individuals holding public office. The Ethics Act's statement of purpose provides: that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of this Commonwealth in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust.

Id. § 1101.1(a). The Ethics Act provides, inter alia, that [n]o public official or public employee shall engage in conduct that constitutes a conflict of interest.” Id. § 1103(a).

To implement and enforce the Ethics Act, the legislature authorized the creation of a State Ethics Commission empowered to [m]ake recommendations to law enforcement officials either for criminal prosecution or dismissal of charges arising out of violations of [the Ethics Act].” Id. § 1107(15). Defendant John J. Contino is Executive Director of the Ethics Commission.

The Ethics Act sets forth procedures for the filing and investigation of a complaint. Upon receiving “a complaint signed under penalty of perjury by any person or upon its own motion, the commission, through its executive director, shall conduct a preliminary inquiry into any alleged violation,” to be completed within 60 days. Id. at § 1108(a). “If a preliminary inquiry establishes reason to believe that this chapter has been violated, the commission may, through its executive director, initiate an investigation to determine if there has been a violation.” Id. § 1108(c).

The Ethics Act prohibits the filing of frivolous complaints, an infraction which the Ethics Commission is empowered to investigate. Id. § 1108( l ). “Any person who willfully affirms or swears falsely in regard to any material matter” may be punished by a fine and five years' imprisonment. Id. § 1109(e). A person harmed by “wrongful use” of the Ethics Act, including the filing of frivolous complaints, is entitled to damages for:

(1) The harm to his reputation by a defamatory matter alleged as the basis of the proceeding.
(2) The expenses, including any reasonable attorney fees, that he has reasonably incurred in proceedings before the commission.
(3) Any specific pecuniary loss that has resulted from the proceedings.
(4) Any emotional distress that has been caused by the proceedings.
(5) Any punitive damages according to law in appropriate cases.

Id. § 1110.

Section 1108(k) of the Ethics Act, the provision challenged in this action, mandates confidentiality in all proceedings before the Ethics Commission. Absent exceptions inapplicable here, Section 1108(k) provides that “no person shall disclose or acknowledge to any other person any information relating to a complaint ... which is before the commission.” According to the Ethics Commission, Section 1108(k) does not prohibit a complainant from disclosing substantive allegations of unethical conduct, but it does prohibit a complainant from (1) disclosing the fact that a complaint has been filed with the Ethics Commission and (2) disclosing a plan or intent to file a complaint with the Ethics Commission. (A 158a, 226a-228a.) Violation of Section 1108(k)'s confidentiality mandate is punishable by a fine and one year's imprisonment. 65 Pa. Cons.Stat. § 1109(e).

B. Stilp's Prior Ethics Act Petition

In November 2007, Stilp prepared an Ethics Act complaint alleging the improper use of public funds for political purposes by a prominent member of the state legislature. Before filing the complaint, Stilp issued a press release stating that “the Pennsylvania State Ethics Commission will be asked to investigate the use of taxpayer funds for political purposes. The contracts totaled $290,000 during 2007.[T]he complaint is attached.” Stilp's press release successfully attracted media attention; at least three separate news articles reported the allegations asserted in his complaint. The Ethics Commission, however, declined to open an investigation and summarily dismissed Stilp's complaint one day after filing.

Unfortunately for Stilp, the publicity caused by his press release led the Investigative Division of the Ethics Commission to open an inquiry into whether Stilp had violated Section 1108(k). By letter of January 31, 2008, defendant Contino summarized the alleged violation:

That Eugene Stilp, a (private citizen) violated [Section 1108(k) ] when he publicly disclosed or caused to be disclosed that a complaint against a public official had been filed with the Commission by disclosing or acknowledging to other persons information relating to a complaint he was filing or filed with the State Ethics Commission regarding the conduct of The Majority Leader of The House Democratic Caucus by providing copies of the complaint to the media....

On December 4, 2008, Stilp settled the matter by consent decree, admitting a violation of Section 1108(k) and paying a civil fine of $500. In its written adjudication, the Ethics Commission emphasized that Stilp violated Section 1108(k) by announcing his intention to file an Ethics Act complaint: [T]he prohibition of Section 1108(k) of the Ethics Act encompasses a complaint that will be pending before the Commission.”

This action, brought under 42 U.S.C. § 1983, asserts a facial challenge to the constitutionality of Section 1108(k). Stilp seeks declaratory and injunctive relief rendering the confidentiality provisions of Section 1108(k) unconstitutional and unenforceable on grounds that they abridge the freedom of speech guaranteed by the First and Fourteenth Amendments to the United States Constitution. Stilp wishes to file additional complaints under the Ethics Act, and to do so publicly, but fears civil sanction or criminal prosecution for violating Section 1108(k). Stilp, however, does not challenge the Ethics Commission's December 4, 2008, adjudication.

The District Court, following an evidentiary hearing at which Stilp and Contino testified, held that Stilp had satisfied the requirements for preliminary injunctive relief and issued an order enjoining defendants “from enforcing § 1108(k) against a complainant that discloses the fact that he or she filed a complaint with the Commission.” Defendants appealed.

II. DiscussionA. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343; we have jurisdiction under 28 U.S.C. § 1292(a)(1). 2 We review the grant of injunctive relief involving First Amendment rights by “conduct[ing] an independent examination of the factual record as a whole.” Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir.2010) (quoting McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.2009)). 3

B. Analysis of the District Court's Preliminary Injunction

A district court may grant a preliminary injunction where the requesting party demonstrates (1) a likelihood of success on the merits; (2) he or she will suffer irreparable harm if the injunction is denied; (3) granting relief will not result in even greater harm to the nonmoving party; and (4) the public interest favors such relief.” Miller, 598 F.3d at 147.

Because this action involves the alleged suppression of speech in violation of the First Amendment, we focus our attention on the first factor, i.e., whether Stilp is likely to succeed on the merits of his constitutional claim. See, e.g., Elrod v. Burns, 427 U.S. 347,...

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