PA Prison Society v. Kane ( 2007 )


Menu:
  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    11-5-2007
    PA Prison Society v. Kane
    Precedential or Non-Precedential: Precedential
    Docket No. 06-3354
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
    Recommended Citation
    "PA Prison Society v. Kane" (2007). 2007 Decisions. Paper 162.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/162
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    Nos. 06-3354 & 06-3370
    __________
    PENNSYLVANIA PRISON SOCIETY; JULIA D. HALL;
    GREGORY H. KNIGHT; FIGHT FOR LIFERS, INC.;
    WILLIAM GOLDSBY; JOAN PORTER; GRATERFRIENDS,
    INC; JOAN F. GAUKER; VINCENT JOHNSON; FRIENDS
    COMMITTEE TO ABOLISH THE DEATH PENALTY, INC.;
    KURT ROSENBERG; PENNSYLVANIA ABOLITIONISTS
    UNITED AGAINST THE DEATH PENALTY; TERRY
    RUMSEY; ROGER BUEHL; DOUGLAS HOLLIS; and
    DIANNA HOLLIS,
    Plaintiffs-Appellants/Cross-Appellees,
    vs.
    PEDRO A. CORTÉS, Secretary of the Commonwealth of
    Pennsylvania; HONORABLE EDWARD RENDELL, Governor,
    Commonwealth of Pennsylvania; CATHERINE BAKER
    KNOLL, Chairperson, Board of Pardons; THOMAS W.
    CORBETT, JR., Member of Board of Pardons; LOUISE
    WILLIAMS, Member of Board of Pardons; RUSSELL
    WALSH, Member of Board of Pardons,
    Defendants-Appellees/Cross-Appellants.
    __________
    On Appeal from the United States District Court
    For the Middle District of Pennsylvania
    (No. 97-CV-1731)
    District Judge: Honorable A. Richard Caputo
    __________
    Argued on September 19, 2007
    ___________
    Before: SLOVITER, SMITH and GARTH, Circuit Judges
    (Opinion Filed: November 5, 2007)
    Stephen A. Whinston (Argued)
    Rebecca M. Hamburg
    Berger & Montague, P.C.
    1622 Locust Street
    Philadelphia, PA 19103
    Attorneys for Appellants/Cross-Appellees
    Amy Zapp (Argued)
    Office of Attorney General
    16th Floor, Strawberry Square
    Harrisburg, PA 17120
    Attorneys for Appellees/Cross-Appellant
    ___________
    OPINION
    __________
    GARTH, Circuit Judge:
    This appeal presents an issue of our jurisdiction – standing
    – that was not raised, and therefore not considered, by the District
    Court. As the Supreme Court has held, “[t]he rules of standing,
    whether as aspects of the Art. III case-or-controversy requirement
    or as reflections of prudential considerations defining and limiting
    the role of the courts, are threshold determinants of the propriety of
    judicial intervention.” Warth v. Seldin, 
    422 U.S. 490
    , 517-18
    (1975).
    “For that reason, every federal appellate court has a special
    obligation to satisfy itself not only of its own jurisdiction, but also
    that of the lower courts in a cause under review, even though the
    parties are prepared to concede it. . . . And if the record discloses
    that the lower court was without jurisdiction this court will notice
    the defect, although the parties make no contention concerning it.”
    -1-
    Bender v. Williamsport Area School Dist., 
    475 U.S. 534
    , 541
    (1986) (internal quotation marks and citations omitted).
    The instant case arises in the context of a challenge to
    amendments to the Constitution of the Commonwealth of
    Pennsylvania ratified in 1997 (the “1997 Amendments”). The
    Amendments changed the composition of the Pennsylvania Board
    of Pardons and the voting requirements for obtaining a pardon or
    commutation of sentence from a majority vote of the Board of
    Pardons to a unanimous vote.
    These two changes resulting from the 1997 Amendments
    gave rise to the present charges that the Amendments violate the Ex
    Post Facto and Due Process clauses of the U.S. Constitution. The
    District Court ruling on cross-motions for summary judgment held,
    among other things, that the 1997 Amendments violated the Ex
    Post Facto clause as to life-sentenced prisoners, but not as to death-
    sentenced prisoners.
    We now hold that the District Court may not have had
    jurisdiction to decide the merits of the complaint. Accordingly, we
    will vacate the March 13, 2006 order of the District Court and
    remand with directions to conduct further proceedings, as
    necessary, to determine whether any of the plaintiffs has standing
    and if not, to dismiss the complaint without prejudice.
    I.
    Among the plaintiffs named in this case are three
    Pennsylvania prisoners, Roger Buehl (serving a death sentence),1
    1
    At oral argument, we were advised by the Attorney
    General that prisoner Buehl had been resentenced in 1999 to
    consecutive life-terms pursuant to an agreement whereby Buehl
    forfeited his right to appeal and his right to further judicial
    remedies. The Attorney General reserved the right to rescind
    the agreement and to move to restore Buehl’s death sentence if
    Buehl violated the agreement. At this writing, we have no
    further knowledge of actions taken by the Attorney General.
    -2-
    Vincent Johnson, and Douglas Hollis (serving life sentences);
    several non-profit advocacy and prisoner rights groups;2 and
    several voters and qualified taxpayers in Pennsylvania.3 The
    defendants are Pennsylvania’s Governor, Secretary, and four
    members of the Board of Pardons, including its permanent
    members, Lieutenant Governor Catherine Baker Knoll and
    Attorney General Thomas W. Corbett, Jr, who are named in their
    official capacities as members of the Board.
    In Pennsylvania, prisoners condemned to death or serving
    life imprisonment may not be released on parole except when the
    Board of Pardons has recommended commutation of sentence and
    the Governor approves the commutation. 61 P.S. § 331.21(a).
    Prior to the 1997 Amendments, the Pennsylvania Constitution
    (Article IV, Section 9)4 set forth the following provisions
    authorizing pardons and commutations:
    (a) In all criminal cases except impeachment the
    Governor shall have power to remit fines and
    forfeitures, to grant reprieves, commutation of
    sentences and pardons; but no pardon shall be
    granted, nor sentence commuted, except on the
    recommendation in writing of a majority of the
    Board of Pardons, after full hearing in open
    session, upon due public notice.               The
    recommendation, with the reasons therefor at
    length, shall be delivered to the Governor and a
    copy thereof shall be kept on file in the office of
    2
    Pennsylvania Prison Society, Inc.; Fight for Lifers, Inc.;
    Graterfriends, Inc.; Friends Committee to Abolish the Death
    Penalty, Inc.; and Pennsylvania Abolitionists United Against the
    Death Penalty.
    3
    Gregory H. Knight, William Goldsby, Joan Porter, Joan
    F. Gauker, Kurt Rosenberg, Terry Rumsey, and Diana Hollis.
    4
    Like Article II of the U.S. Constitution, Article IV of
    the Pennsylvania Constitution delineates powers of the
    executive branch.
    -3-
    the Lieutenant Governor in a docket kept for that
    purpose.
    (b) The Board of Pardons shall consist of the
    Lieutenant Governor who shall be chairman, the
    Attorney General and three members appointed by
    the Governor with the consent of two-thirds or a
    majority of the members elected to the Senate as
    is specified by law for terms of six years. The
    three members appointed by the Governor shall be
    residents of Pennsylvania and shall be recognized
    leaders in their fields; one shall be a member of
    the bar, one a penologist, and the third a doctor
    of medicine, psychiatrist or psychologist. The
    board shall keep records of its actions, which shall
    at all times be open for public inspection.
    Pa. Const., Art. IV, § 9 (emphasis added).
    On November 4, 1997, the provisions of the Pennsylvania
    Constitution recited above were amended to provide:
    (a) In all criminal cases except impeachment the
    Governor shall have power to remit fines and
    forfeitures, to grant reprieves, commutation of
    sentences and pardons; but no pardon shall be
    granted, nor sentence commuted, except on the
    recommendation in writing of a majority of the
    Board of Pardons, and in the case of a sentence of
    death or life imprisonment, on the unanimous
    recommendation in writing of the Board of
    Pardons, after full hearing in open session, upon
    due public notice. The recommendations, with the
    reasons therefor at length, shall be delivered to the
    Governor and a copy thereof shall be kept on file
    in the office of the Lieutenant Governor in a
    docket kept for that purpose.
    -4-
    (b) The Board of Pardons shall consist of the
    Lieutenant Governor who shall be chairman, the
    Attorney General and three members appointed by
    the Governor with the consent of a majority of the
    members elected to the Senate for terms of six
    years. The three members appointed by the
    Governor shall be residents of Pennsylvania. One
    shall be a crime victim; one a corrections expert;
    and the third a doctor of medicine, psychiatrist or
    psychologist. The board shall keep records of its
    actions, which shall at all times be open for public
    inspection.
    Pa. Const., Art. IV, § 9 (emphasis added).
    Thus, under the pre-1997 Constitution, a prisoner applying
    for a commutation of sentence could obtain a recommendation
    from the Board of Pardons if three of its five members voted in his
    favor.5 After the 1997 Amendments, a prisoner seeking a
    commutation had to receive all five votes of the Board for a
    recommendation to be considered by the Governor.
    The plaintiffs urge that these Amendments violate their Due
    Process rights by depriving them of “a reasonable expectation of
    the availability and reasonable possibility of executive clemency”
    and their rights under the Ex Post Facto clause by retroactively
    decreasing the probability of obtaining a commutation or pardon.
    A105-06. The complaint alleges that the 1997 changes – which (1)
    substituted a crime victim for an attorney on the Board and (2)
    replaced the majority rule with a unanimity requirement –
    “virtually shut out” prisoners from obtaining clemency. Id.
    5
    The five-member Board of Pardons under the pre-1997
    Constitution consisted of the Lieutenant Governor, Attorney
    General, a penologist, medical professional, and an attorney.
    The 1997 Amendments substituted a crime victim for the
    attorney and a corrections officer for a penologist. The plaintiffs
    claim bias by reason of the first substitution. The District Court
    rejected this argument.
    -5-
    On March 13, 2006, the District Court ruled in favor of the
    defendants as to all claims, but held that the change in voting
    requirement from majority to unanimity violated the Ex Post Facto
    clause for life-sentenced prisoners.
    Plaintiffs timely appeal from the District Court’s rulings (1)
    limiting its Ex Post Facto holding to life-sentenced prisoners; (2)
    declining to grant injunctive relief; and (3) rejecting their Due
    Process claims. One defendant – Thomas Corbett, Jr., a member
    of the Board of Pardons and the Attorney General of Pennsylvania
    – filed a cross-appeal. In his cross-appeal, Corbett argues, for the
    first time during this litigation, that the plaintiffs have no standing
    under Article III of the U.S. Constitution to bring this action.6
    We have appellate jurisdiction to review the District Court’s
    final order. 
    28 U.S.C. § 1291
    . Our review is plenary.
    II.
    The Supreme Court has held that the “irreducible
    constitutional minimum” of standing under Article III requires a
    plaintiff to establish three elements: an injury in fact, i.e., an
    invasion of a legally protected interest which is actual or imminent,
    and concrete and particularized, as contrasted with a conjectural or
    6
    Corbett alternatively argues on the merits, that the
    District Court erred in failing to dismiss or, alternatively, grant
    summary judgment to defendants on the Ex Post Facto claim.
    Plaintiffs respond that Corbett, as the only one of the five-
    member Board of Pardons who seeks to cross-appeal, lacks
    standing, see Bender v.Williamsport Area Sch. Dist., 
    475 U.S. 534
     (1986); Karcher v. May, 
    484 U.S. 72
     (1987),
    notwithstanding Corbett’s counter-argument that he has standing
    in his capacity as Attorney General, the official charged with
    defending the constitutionality of the laws of Pennsylvania, see
    71 P.S. § 732-204 (“It shall be the duty of the Attorney General
    to uphold and defend the constitutionality of all statutes . . .”).
    By reason of our holding that the plaintiffs lack standing, we do
    not reach these arguments as they are moot.
    -6-
    hypothetical injury; a causal connection between the injury and the
    conduct complained of; and substantial likelihood of remedy –
    rather than mere speculation – that the requested relief will remedy
    the alleged injury in fact. See, e.g., Lujan v. Defenders of Wildlife,
    
    504 U.S. 555
     (1992).
    Justice Stevens in Bender 7 aptly summarized the elements
    of standing and emphasized that our obligation to notice defects in
    subject matter jurisdiction assumes special importance when, as
    here, constitutional questions are presented:
    In such cases we have strictly adhered to the
    standing requirements to ensure that our
    deliberations will have the benefit of adversary
    presentation and a full development of the
    relevant facts. . . .
    At an irreducible minimum, Art. III requires the
    party who invokes the court's authority to show
    that he personally has suffered some actual or
    threatened injury as a result of the putatively
    illegal conduct of the defendant, . . . and that the
    injury fairly can be traced to the challenged action
    and is likely to be redressed by a favorable
    decision. . . .
    The requirement of actual injury redressable by
    the court, . . . serves several of the implicit
    policies embodied in Article III. . . . It tends to
    assure that the legal questions presented to the
    court will be resolved, not in the rarified
    atmosphere of a debating society, but in a
    concrete factual context conducive to a realistic
    appreciation of the consequences of judicial
    7
    In Bender v. Williamsport Area School Dist., the Court
    held that one member of the school board had no standing to
    appeal an Establishment question in a school prayer context
    when the school board itself did not appeal.
    -7-
    action. The ‘standing’ requirement serves other
    purposes. Because it assures an actual factual
    setting in which the litigant asserts a claim of
    injury in fact, a court may decide the case with
    some confidence that its decision will not pave
    the way for lawsuits which have some, but not all,
    of the facts of the case actually decided by the
    court.
    
    475 U.S. at 542-43
     (internal quotation marks and citations
    omitted).
    Since these are not mere pleading requirements but rather an
    indispensable part of the plaintiff's case, each of these elements
    must be supported in the same way as any other matter on which
    the plaintiff bears the burden of proof, i.e., with the manner and
    degree of evidence required at the successive stages of the
    litigation. See Lujan v. National Wildlife Federation, 
    497 U.S. 871
    , 883-889 (1990). A “federal court is powerless to create its
    own jurisdiction by embellishing otherwise deficient allegations of
    standing.” Whitmore v. Arkansas, 
    495 U.S. 149
    , 155 (1990).
    Moreover, each element must be supported in the same way as any
    other matter on which the plaintiff bears the burden of proof, i.e.,
    with the manner and degree of evidence required at the successive
    stages of the litigation. See National Wildlife Federation, 
    497 U.S. at 883-89
    . While generalized allegations of injury may suffice at
    the pleading stage, a plaintiff can no longer rest on such “mere
    allegations” in response to a summary judgment motion, but must
    set forth “specific facts” by affidavit or other evidence. Defenders
    of Wildlife, 
    504 U.S. at 561
    ; see also Fed. R. Civ. P. 56(e). As the
    Supreme Court concluded, “because it is not sufficient that
    jurisdiction may be inferred argumentatively from averments in the
    pleadings . . . it follows that the necessary factual predicate may not
    be gleaned from the briefs and arguments themselves.” Bender, 
    475 U.S. at 547
     (internal quotation marks and citations omitted).
    The case-or-controversy requirement under Article III
    ensures that “the Federal Judiciary respects the proper – and
    properly limited – role of the courts in a democratic society.”
    DaimlerChrysler Corp. v. Cuno, __ U.S. __, 
    126 S.Ct. 1854
    , 1860
    -8-
    (2006) (ROBERTS, C.J.) (internal quotation marks and citation
    omitted). Thus, the Court has stressed that “‘[n]o principle is more
    fundamental to the judiciary’s proper role in our system of
    government than the constitutional limitation of federal-court
    jurisdiction to actual cases or controversies.’” Raines v. Byrd, 
    521 U.S. 811
    , 818 (1997) (quoting Simon v. Eastern Ky. Welfare
    Rights Organization, 
    426 U.S. 26
    , 37 (1976)).
    The standing doctrine serves “to identify those disputes
    which are appropriately resolved through the judicial process.”
    Defenders of Wildlife, 
    504 U.S. at 560
     (quoting Whitmore, 
    495 U.S. at 155
    ). “[F]ederal courts sit solely, to decide on the rights of
    individuals and must refrain from passing upon the
    constitutionality of an act unless obliged to do so in the proper
    performance of our judicial function, when the question is raised
    by a party whose interests entitle him to raise it.” Hein v. Freedom
    From Religion Foundation, Inc., 
    127 S.Ct. 2553
    , 2562 (2007)
    (ALITO, J.) (internal quotations marks and citations omitted and
    emphasis added).
    III.
    Applying the tri-partite test for standing – injury, causation,
    and likelihood of relief, see Bender, 
    475 U.S. at
    542 and Lyons,
    infra – we turn to the “standing” of the various plaintiffs in this
    action.
    A.
    Organizational plaintiffs8
    As recited, the doctrine of standing requires “that the party
    seeking review be himself among the injured.” Sierra Club v.
    Morton, 
    405 U.S. 727
    , 735 (1972). This rule applies with special
    force to organizations, which are unable to establish standing solely
    on the basis of institutional interest in a legal issue. 
    Id., at 739
    (“[A] mere ‘interest in a problem,’ no matter how longstanding the
    interest and no matter how qualified the organization is in
    8
    See supra note 2 for the names.
    -9-
    evaluating the problem, is not sufficient by itself.”).9
    Subsequent cases have clarified that an organization or
    association may have standing to bring suit under two
    circumstances. First, an organization may be granted “standing in
    its own right to seek judicial relief from injury to itself and to
    vindicate whatever rights and immunities the [organization or]
    association itself may enjoy.” Warth v. Seldin, 
    422 U.S. 490
    , 511
    (1975) (emphasis added); see also Havens Realty Corp. v.
    Coleman, 
    455 U.S. 363
    , 372-79 (1982) (holding that a non-profit
    organization had standing to bring an action in its own right where
    it alleged that “petitioners’ [racial] steering practices have
    perceptibly impaired [its] ability to provide counseling and referral
    services for low- and moderate-income home-seekers . . . with the
    consequent drain on the organization's resources ”); Addiction
    Specialists, Inc. v. Twp. of Hampton, 
    411 F.3d 399
    , 406-07 (3d
    Cir. 2005) (upholding organizational standing where “the
    corporation itself suffered injuries based on the Township’s alleged
    violations of its own rights”). Alternatively, an association may
    assert claims on behalf of its members, but only where the record
    shows that the organization’s individual members themselves have
    standing to bring those claims. See Hunt v. Washington State
    9
    For instance, in Sierra Club v. Morton, the well-known
    environmental group sought to prevent the construction of a ski
    resort in Mineral King Valley, California and a highway through
    the adjacent Sequoia National Park. The Court found that the
    Sierra Club had no standing because it had “failed to allege that
    it or its members would be affected in any of their activities or
    pastimes by the . . . development.” 
    405 U.S. at 735
    . Although
    Sierra Club’s “complaint alleged that the development would
    destroy or otherwise adversely affect the scenery, natural and
    historic objects and wildlife of the park and would impair the
    enjoyment of the park for future generations,” the Court found
    that “[n]owhere in the pleadings or affidavits did the Club state
    that its members use Mineral King [Valley or Sequoia National
    Park] for any purpose, much less that they use it in any way that
    would be significantly affected by the proposed actions of the
    respondents.” 
    Id. at 734-35
    .
    -10-
    Apple Advertising Comm'n, 
    432 U.S. 333
    , 343 (1977);10 NAACP
    v. Button, 
    371 U. S. 415
    , 428 (1963); Public Interest Research
    Group v. Powell Duffryn Terminals, 
    913 F.2d 64
    , 70 (3d Cir.
    1990).
    The record of this case reveals that neither of these
    exceptions applies to the organizational plaintiffs here. There is no
    evidence in the record that these organizations as entities suffered
    any harm from the 1997 Amendments. Nor are there any
    allegations to that effect in the unverified complaint.
    Moreover, with regard to standing in a representational
    capacity, the record is silent about the organizational plaintiffs’
    members and whether those members themselves meet the standing
    requirements to bring this case. The complaint contains only a bare
    and inadequate statement that plaintiff Pennsylvania Prison Society
    “brings this action in its own right and on behalf of its members,
    including prisoners and adult individuals interested in its above
    mentioned purposes.” A92. Similarly, although the complaint
    alleges that plaintiff Graterfriends’ “membership totals
    approximately 3,300 individuals, many of whom are life sentenced
    prisoners,” there are no specific facts in the record regarding
    Graterfriends’ individual members and whether any of them meets
    the standing requirements to pursue the present claims. Neither has
    Graterfriends itself carried its burden of establishing its own
    standing by record evidence. See also, Hunt, 
    432 U.S. at 343
    ; Int’l
    Bhd. of Teamsters [IBT] v. Transp. Sec. Admin., 
    429 F.3d 1130
    ,
    1135 (D.C. Cir. 2005) (“IBT fails the first prong of [the Hunt] test
    because it has identified no record evidence whatsoever
    establishing the flight engineer's disqualification or even his
    membership in IBT.”); National Treasury Employees Union
    10
    In Hunt v. Washington State Apple Advertising
    Comm'n, the Court set out three requirements for so called
    “representational standing”: (1) the organization’s members
    must have standing to sue on their own; (2) the interests the
    organization seeks to protect are germane to its purpose, and (3)
    neither the claim asserted nor the relief requested requires
    individual participation by its members. 
    432 U.S. at 343
    .
    -11-
    [NTEU] v. United States Dep't of the Treasury, 
    25 F.3d 237
    , 242
    (5th Cir. 1994) (finding no standing because “the plaintiffs do not
    allege that any represented member of the NTEU has actually
    suffered any such injury as a result of the ‘suitability’
    questionnaire”).
    The standing of the remaining organizational plaintiffs –
    Fight for Lifers, Friends Committee to Abolish the Death Penalty
    and Pennsylvania Abolitionists United Against the Death Penalty
    – suffers from the same defects.
    B.
    Voter/taxpayer plaintiffs 11
    The complaint names seven plaintiffs who are “adult,
    competent individuals residing in Pennsylvania, and are qualified
    voters and taxpayers in Pennsylvania.” A94. There is no evidence
    that these individuals have an interest in anything more than mere
    generalized grievances of concerned citizens. See e.g., Defenders
    of Wildlife, 
    504 U.S. at 573-74
     (“[A] plaintiff raising only a
    generally available grievance about government-claiming only
    harm to his and every citizen's interest in proper application of the
    Constitution and laws, and seeking relief that no more directly and
    tangibly benefits him than it does the public at large-does not state
    an Article III case or controversy”); DaimlerChrysler Corp., __
    U.S. __, 
    126 S.Ct. at 1862
     (“Standing has been rejected” where
    “the alleged injury is not concrete and particularized, . . . but
    instead a grievance the taxpayer suffers in some indefinite way in
    common with people generally.”) (internal quotation marks and
    citation omitted); ASARCO Inc. v. Kadish, 
    490 U.S. 605
    , 616
    (1989) (“[G]eneralized grievances brought by concerned citizens
    . . . are not cognizable in the federal courts”).
    Significantly, the plaintiffs do not even argue that the
    organizational or voter/taxpayer plaintiffs have standing. We
    therefore hold that the voter/taxpayer plaintiffs, just as the
    organizational plaintiffs, do not satisfy the constitutional
    11
    See supra note 3 for the names.
    -12-
    imperative for standing.
    C.
    Prisoner plaintiffs
    Having concluded that the organizational and voter/taxpayer
    plaintiffs may not maintain this action, we next look to the last
    category of plaintiffs – the prisoner plaintiffs – who seek our
    decision on the constitutional claims asserted. With respect to the
    three prisoner plaintiffs, the complaint contains the following
    allegations:
    10. Plaintiff, Roger Buehl, AM-7936, was, at the
    time this case was filed, a death-sentenced
    prisoner convicted and sentenced prior to
    November 4, 1997. He was among approximately
    two hundred twenty (220) death sentenced
    individuals in Pennsylvania who may seek relief
    through the Pardons Board.
    11. Plaintiff Vincent Johnson, AF-3422, SCI-
    Camp Hill, is a life-sentenced prisoner who was
    convicted on August 7, 1993, of aggravated
    robbery and murder in the first degree for a
    murder committed on or about November 5, 1971.
    He has filed application[s] with the Board of
    Pardons on the following dates: April 2, 1991;
    April 27, 1992; October 24, 1994; and May 23,
    1997. His latest application was denied in 1998
    by a 2-3 vote.
    12. Plaintiff Douglas Hollis, AF-6355, is a life-
    sentenced prisoner currently incarcerated at SCI-
    Coal Township. Prior to the 1997 Amendments,
    he filed an application to the Board of Pardons
    and received approval of his commutation by a 4-
    1 vote of the Board, but was rejected by Governor
    Robert Casey. He subsequently filed another
    application to the Pardons Board, which was
    denied.
    -13-
    A94.
    Crucially, the record contains no evidence that any of these
    prisoner plaintiffs have received or may expect to receive a
    majority vote (i.e., 3-2 or 4-1) of the Board of Pardons after the
    1997 Amendments. Such allegations (on a motion to dismiss) or
    a showing by affidavit or other evidence (on a motion for summary
    judgment) of a 3-2 or 4-1 vote of the Board could demonstrate that
    a plaintiff was injured by the 1997 Amendments.12
    The complaint does not allege and the record contains no
    evidence that any of these prisoner plaintiffs has had any actual
    12
    The complaint recites that there are three life-sentenced
    prisoners, not parties to this case, who were convicted before
    1997 and received majority (but not unanimous) votes by the
    Board of Pardons after the 1997 Amendments, resulting in a
    rejection of their applications. Pl. Br. at 18, n. 11. These facts,
    if established in the record, alleviate the prudential concern that
    this “opinion of the court [may be read to] provid[e] that all
    courthouse doors are shut” for potentially-valid claims. Jaffee
    v. U.S., 
    663 F.2d 1226
    , 1266 (3d Cir. 1981) (en banc)
    (GIBBONS, J. and SLOVITER, J., dissenting). A concern such
    as this one has led us to provide that the dismissal of this appeal
    be without prejudice.
    Subsequent to oral argument, counsel for the plaintiffs
    sought to expand the record by including information that a
    prisoner by the name of Jackie Lee Thompson convicted prior to
    1997 had received a 4-1 vote by the Board of Pardons, but had
    not had her sentence commuted. Although this information had
    not been a matter of record before the District Court and we are
    informed by the appellees that the correspondence reflecting this
    vote is not even reflected on the docket, we nevertheless granted
    the motion recognizing that it could not affect the standing
    decision that we have reached because Ms. Thompson was not a
    party to the present action. We therefore deny reconsideration
    of our order of October 3, 2007, which granted appellants’
    motion to supplement the record.
    -14-
    injury or presently has an application pending before the Board of
    Pardons. Nor does the complaint allege or the record evidence
    show that any of the prisoner plaintiffs has immediate plans to file
    such an application. Nor is there any record evidence to suggest
    that these specific prisoner plaintiffs, even should they apply, are
    likely to have received a recommendation for commutation under
    the pre-1997 regime, for ultimate decision by the Governor. The
    only allegation concerning these prisoner plaintiffs’ commutation
    prospects is the very general prediction that “[s]aid plaintiffs will,
    in the future, apply for executive clemency through the Board.”
    A101.
    Prisoner plaintiffs have failed for two reasons to
    demonstrate that they have suffered an “injury in fact” – the first of
    the “irreducible” triad of Article III standing requirements. To
    constitute injury in fact, harm to the plaintiff must be an invasion
    of a legally protected interest that is “distinct and palpable, as
    opposed to merely abstract and . . . actual or imminent, not
    conjectural or hypothetical.” Whitmore v. Arkansas, 
    495 U.S. 149
    ,
    155 (1990) (internal quotation marks and citations omitted and
    emphasis added). Here, prisoner plaintiffs have not demonstrated
    (1) “actual or imminent” harm because they failed to allege or
    adduce evidence of any concrete plans to apply for a commutation
    in the immediate future; nor (2) “distinct and palpable” injury
    because they have not shown that, even if they do apply to the
    Board of Pardons, they are sufficiently likely to be personally
    harmed by the changed voting requirement in the 1997
    Amendments – i.e., that they are likely to receive a majority of
    votes favoring a commutation recommendation from the Board.
    In Defenders of Wildlife, the Court considered a challenge
    to a revision of a federal regulation providing that the Endangered
    Species Act does not apply to United States government activities
    overseas. Two plaintiffs had submitted detailed affidavits
    describing their viewing of endangered animals on past trips
    abroad, and stated their “inten[tion] to return . . . in the future.” Id.
    at 563. The Court held that such indefinite future plans were
    insufficient to establish injury in fact:
    [T]he affiants’ profession of an “intent” to return
    -15-
    to the places they had visited before – where they
    will presumably, this time, be deprived of the
    opportunity to observe animals of the endangered
    species – is simply not enough. Such “some day”
    intentions -- without any description of concrete
    plans, or indeed even any specification of when
    the some day will be -- do not support a finding of
    the "actual or imminent" injury that our cases
    require.
    Id. at 564 (emphasis added).
    The Court took issue with the dissent’s view that it would
    be sufficient for the plaintiffs to show that they would “soon return
    to the project sites,” id., on the grounds that it would eviscerate the
    imminence requirement:
    Although “imminence” is concededly a somewhat
    elastic concept, it cannot be stretched beyond its
    purpose, which is to ensure that the alleged injury
    is not too speculative for Article III purposes --
    that the injury is “certainly impending.” It has
    been stretched beyond the breaking point when .
    . . the plaintiff alleges only an injury at some
    indefinite future time, and the acts necessary to
    make the injury happen are at least partly within
    the plaintiff's own control. In such circumstances
    we have insisted that the injury proceed with a
    high degree of immediacy, so as to reduce the
    possibility of deciding a case in which no injury
    would have occurred at all.
    Id. at 564 n.2 (internal citations omitted and emphasis added).
    Here, as in Defenders of Wildlife, prisoner plaintiffs offer
    only the most vague non-concrete “some day” intentions that they
    “will, in the future, apply for executive clemency.” A101. Such
    allegations of injury at some indefinite future time – where the acts
    necessary to make the injury happen are within the prisoner
    plaintiffs’ own control – lack the high degree of immediacy
    -16-
    required to constitute injury in fact and provide Article III standing.
    Id. at 564 n.2.
    Even if prisoner plaintiffs had alleged and sufficiently
    introduced evidence that they had imminent plans to file an
    application for a commutation, they would still fail to demonstrate
    injury in fact because they have not shown a sufficient likelihood
    that they personally would be harmed by the change in voting
    requirements wrought by the 1997 Amendments. The relevant
    precedent is the seminal Supreme Court case of City of Los
    Angeles v. Lyons, 
    461 U.S. 95
     (1983).
    Lyons involved a suit to enjoin as unconstitutional a policy
    of the Los Angeles Police Department permitting the use of
    chokeholds in instances where the police were not threatened with
    death or serious bodily injury. Though Lyons could seek damages
    for his injuries as a result of the alleged policy, the Court held that
    he had no standing to seek injunctive relief because he could not
    demonstrate a sufficient likelihood that he, personally, would be
    choked again in the future: “Lyons' standing to seek the injunction
    requested depended on whether he was likely to suffer future injury
    from the use of the chokeholds by police officers. 
    Id. at 105
    . The
    Court elaborated that:
    Absent a sufficient likelihood that he will again
    be wronged in a similar way, Lyons is no more
    entitled to an injunction than any other citizen of
    Los Angeles; and a federal court may not
    entertain a claim by any or all citizens who no
    more than assert that certain practices of law
    enforcement officers are unconstitutional.
    
    Id. at 111
    ; see also Defenders of Wildlife, 
    504 U.S. at 564
    (expressly applying Lyons to uphold dismissal of a complaint on
    the basis of “plaintiff's failure to show that he will soon expose
    himself to the injury”).
    In addition to their failure to allege any plan to apply for a
    commutation in the near future, prisoner plaintiffs have offered no
    evidence that they personally are likely to be injured by the 1997
    -17-
    Amendments. The record is bare of any information about prisoner
    plaintiffs’ backgrounds, and thus whether they would be good, i.e.,
    likely, candidates for commutation.13 Prisoner plaintiffs would
    only be injured by the 1997 Amendments if they received a
    majority (but less than unanimous vote) by the Board in favor of
    commutation. Less than a majority would have been insufficient
    even under the pre-1997 regime. Thus, to show a likelihood of
    injury, prisoner plaintiffs must offer facts showing that they likely
    would have received a majority vote in favor of recommendation.
    But they have not offered any evidence in this regard.
    None of the prisoner plaintiffs can establish a “concrete and
    particularized” injury without having obtained at least three votes
    in the Board – which would have been sufficient for its
    recommendation of commutation of sentence before the 1997
    Amendments but are insufficient under the current provisions. See
    Adarand Constructors, Inc. v. Pena, 
    515 U.S. 200
    , 210 (1995)
    (quoting Defenders of Wildlife, 
    504 U.S. at 560
    ).
    The Adarand Court found standing for a subcontractor
    challenging the constitutionality of a federal program because the
    subcontractor had actually been denied a contract under the
    challenged rules and had shown during discovery that it was very
    likely to bid in the relatively near future on another contract under
    the same provisions. 
    515 U.S. at 210, 212
    . Given that it was
    denied a contract, the subcontractor unquestionably had standing
    to seek damages. 
    Id. at 210
    . Moreover, it had standing to seek
    forward-looking declaratory and injunctive relief against any future
    use of the challenged rules because its alleged injury was concrete
    and particularized – “discriminatory classification prevent[ing] the
    plaintiff from competing on an equal footing,” 
    id. at 211
     (emphasis
    added)14 – and imminent – its general management testified in
    13
    Indeed, plaintiffs state in their brief that “[a]lthough
    prisoners were named as plaintiffs, their individual
    circumstances were never at issue in the case.” Pl. Br. at 19.
    14
    The racially discriminatory aspect of the challenged
    bidding rules was sufficient to establish concrete and
    particularized injury, since the Supreme Court has long-held
    -18-
    deposition that the company has bid on every government project,
    which were open for bidding at least once a year. 
    Id. at 211-12
    .
    Thus, the Court concluded, “[b]ecause the evidence in this case
    indicates that the [government] is likely to let contracts . . . that
    contain [the challenged] compensation clause at least once per year
    in Colorado, that [the subcontractor] is very likely to bid on each
    such contract, and that [it] often must compete for such contracts
    against small disadvantaged businesses, we are satisfied that [it]
    has standing to bring this lawsuit.” 
    Id. at 212
    .
    In contrast to Adarand, the prisoner plaintiffs here have not
    established any concrete and particularized injury, since they did
    not and would not have obtained a recommendation of the Board
    of Pardons even under the pre-1997 Amendments majority voting
    requirement. Additionally, the prisoner plaintiffs cannot claim any
    form of stigma associated with applying under the amended
    Pennsylvania Constitution. In short, they have not shown any
    injury.
    Plaintiffs argue that standing requirements should be relaxed
    here because they bring a facial challenge to the constitutionality
    of the 1997 Amendments. The record does contain evidence,
    offered by the parties on the merits of the Ex Post Facto claim,
    showing that the absolute number of Board of Pardon
    recommendations for commutations has decreased since 1997
    when the unanimity requirement took effect. However, this
    decrease had begun already in 1995, long before the amendments
    since Brown v. Board of Education, 
    347 U.S. 483
     (1954), that
    the stigma associated with racial classification is prima facie
    injury. See, e.g., Richmond v. J.A. Croson Co., 
    488 U.S. 469
    ,
    516-517 (1989) ((STEVENS, J., concurring in part and
    concurring in judgment) (“Although [the legislation at issue]
    stigmatizes the disadvantaged class with the unproven charge of
    past racial discrimination, it actually imposes a greater stigma on
    its supposed beneficiaries”)) (quoted in Adarand Constructors,
    Inc. v. Pena , 
    515 U.S. at 229
    ).
    -19-
    went into effect.15 Thus, this evidence fails the causation element
    of standing. Defenders of Wildlife, 
    504 U.S. at 560
    . Moreover,
    even if the statistical evidence actually showed a decreased
    probability of receiving a recommendation caused by the 1997
    Amendments – an inference disputed by defendants – the prisoner
    plaintiffs would lack standing because they must show that
    particularized injury that applies to them personally. As the
    Supreme Court noted in Lyons:
    Of course, it may be that among the countless
    encounters between the police and the citizens of
    a great city such as Los Angeles, there will be
    certain instances in which strangleholds will be
    illegally applied and injury and death
    unconstitutionally inflicted on the victim. . . .
    [But] it is surely no more than speculation to
    assert either that Lyons himself will again be
    involved in one of those unfortunate instances, or
    that he will be arrested in the future and provoke
    the use of a chokehold by resisting arrest,
    attempting to escape, or threatening deadly force
    or serious bodily injury.
    Lyons, 
    461 U.S. at 108
    .
    None of the cases cited by plaintiffs support a general
    proposition that facial challenges to the validity of a statute need
    not satisfy the Article III requirements for standing. The cited
    15
    The following are the number commutation
    recommendations granted in Pennsylvania from 1989 to 2005.
    1989: 19             1996: 1               2002: 1
    1990: 10             1997: 0               2003: 1
    1991: 20             1998: 0               2004: 1
    1992: 22             1999: 0               2005: 0
    1993: 16             2000: 0
    1994: 10             2001: 0
    1995: 3              2002: 1
    -20-
    cases arise in the highly exceptional First Amendment context. See
    Lakewood v. Plain Dealer Pub. Co., 
    486 U.S. 750
    , 756 (U.S. 1988)
    (“In the area of freedom of expression it is well established that one
    has standing to challenge a statute on the ground that it delegates
    overly broad licensing discretion . . .”) (citing Freedman v.
    Maryland, 
    380 U.S. 51
    , 56 (1965)) (emphasis added); Steffel v.
    Thompson, 
    415 U.S. 452
     (1974) (upholding facial First
    Amendment challenge to criminal trespass statute prohibiting
    distribution of political handbills); Peachlum v. City of York, 
    333 F.3d 429
    , 435 (3d Cir. 2003) (“A First Amendment claim,
    particularly a facial challenge, is subject to a relaxed ripeness
    standard. . . . The courts have repeatedly shown solicitude for First
    Amendment claims because of concern that, even in the absence of
    a fully concrete dispute, unconstitutional statutes or ordinances
    tend to chill protected expression among those who forbear
    speaking because of the law’s very existence.”) (internal citations
    omitted and emphasis added); Presbytery of the Orthodox
    Presbyterian Church v. Florio, 
    40 F.3d 1454
    , 1458 (3d Cir. 1994)
    (finding ripe plaintiffs’ First Amendment challenge to state law
    prohibiting discrimination on the basis of sexual orientation). The
    relaxed standing requirement in these cases apply solely in the First
    Amendment context, and therefore has no application to the
    commutation procedures here at issue.
    One of the least compelling arguments the prisoner plaintiffs
    assert is that – despite the absence of a pending or soon to be filed
    commutation application, or the likelihood that any plaintiff’s
    application would be denied as a result of the 1997 Amendments
    – they have sustained a cognizable injury under Article III because
    they are thereby discouraged from even attempting to apply for a
    commutation. See Howard v. New Jersey Dep't of Civil Service,
    
    667 F.2d 1099
    , 1103 (3d Cir. 1981) (“Threatened injury can
    constitute injury-in-fact where the threat is so great that it
    discourages the threatened party from even attempting to exercise
    his or her rights.”) (citing International Brotherhood of Teamsters
    v. United States, 
    431 U.S. 324
    , 365-66 (1977)). Similarly,
    plaintiffs argue that “the passage of the Amendments has
    effectively put out a ‘Do Not Apply’ message to death and life
    sentenced inmates.” Pl. Br. at 11. This argument is without merit,
    -21-
    since plaintiff Johnson and other prisoners not parties to this case 16
    have applied for commutations after the 1997 Amendments went
    into effect and would have standing upon obtaining three votes in
    their favor. Moreover, certain prisoners, such as plaintiff Buehl,
    may prefer to seek relief from their sentences under other options
    provided by the legal system, such as motions for resentencing or
    writs of habeas corpus.
    IV.
    Because the issue of standing was raised for the first time on
    appeal, none of the plaintiffs have had the opportunity to present
    evidence or to litigate this issue. We will therefore dismiss this
    appeal without prejudice for lack of jurisdiction and remand to the
    District Court for further proceedings consistent with this Opinion
    to develop the record in order to determine plaintiffs’ standing to
    bring this action.
    16
    See supra note 12.
    -22-
    

Document Info

Docket Number: 06-3354

Filed Date: 11/5/2007

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (24)

Freedman v. Maryland , 85 S. Ct. 734 ( 1965 )

Brown v. Board of Education , 74 S. Ct. 686 ( 1954 )

Steffel v. Thompson , 94 S. Ct. 1209 ( 1974 )

City of Richmond v. J. A. Croson Co. , 109 S. Ct. 706 ( 1989 )

Whitmore Ex Rel. Simmons v. Arkansas , 110 S. Ct. 1717 ( 1990 )

stanley-jaffee-and-sharon-blynn-jaffee-individually-and-stanley-jaffee , 663 F.2d 1226 ( 1981 )

Warth v. Seldin , 95 S. Ct. 2197 ( 1975 )

National Ass'n for the Advancement of Colored People v. ... , 83 S. Ct. 328 ( 1963 )

DaimlerChrysler Corp. v. Cuno , 126 S. Ct. 1854 ( 2006 )

Hunt v. Washington State Apple Advertising Commission , 97 S. Ct. 2434 ( 1977 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Addiction Specialists, Inc. v. The Township of Hampton, the ... , 411 F.3d 399 ( 2005 )

International Brotherhood of Teamsters v. United States , 97 S. Ct. 1843 ( 1977 )

Intl Brhd Tmstr v. TSA , 429 F.3d 1130 ( 2005 )

national-treasury-employees-union-and-carrie-l-bravo-v-us-department-of , 25 F.3d 237 ( 1994 )

27-fair-emplpraccas-1690-27-empl-prac-dec-p-32288-howard-frank , 667 F.2d 1099 ( 1981 )

Adarand Constructors, Inc. v. Pena , 115 S. Ct. 2097 ( 1995 )

Raines v. Byrd , 117 S. Ct. 2312 ( 1997 )

public-interest-research-group-of-new-jersey-inc-and-friends-of-the-earth , 913 F.2d 64 ( 1990 )

sybil-peachlum-v-city-of-york-pennsylvania-city-of-york-bureau-of-permits , 333 F.3d 429 ( 2003 )

View All Authorities »