Pennsylvania Family Institute, Inc. v. Black , 489 F.3d 156 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-25-2007
PA Family Ins Inc v. Black
Precedential or Non-Precedential: Precedential
Docket No. 05-5259
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5259
PENNSYLVANIA FAMILY INSTITUTE, INC.;
RONALD COHEN; CHARLES L. STUMP,
Appellants
v.
THOMAS C. BLACK, III, In His Official Capacity
as a member of the Pennsylvania Judicial Conduct Board;
CHARLES A. CLEMENT, In His Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board;
PATRICK JUDGE, In His Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board;
G. CRAIG LORD, In His Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board;
CHARLENE R. MCABEE, In Her Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board.;
JACK A. PANNELLA, In His Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board;
MARK C. SCHULTZ, In His Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board;
THOMAS A. WALLITSCH, In His Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board;
JAMES R. WEAVER, In His Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board;
PAUL J. KILLION, In His Official Capacity
as Chief Disciplinary Counsel of the
Pennsylvania Office of Disciplinary Counsel;
PAUL J. BURGOYNE, In His Official Capacity
as Deputy Chief Disciplinary Counsel of the
Pennsylvania Office of Disciplinary Counsel;
ANTHONY P. SODROSKI, In His Official Capacity
as Disciplinary Counsel in Charge of District I Office
of the Pennsylvania Office of Disciplinary Counsel;
RAYMOND W. WIERCISZEWSKI, In His Official Capacity
as Disciplinary Counsel in Charge of the District II Office
of the Pennsylvania Office of Disciplinary Counsel;
EDWIN W. FRESE, JR., In His Official Capacity
as Disciplinary Counsel in Charge of the District III Office
of the Pennsylvania Office of Disciplinary Counsel;
ANGELEA A. MITAS, In Her Official Capacity
as Disciplinary Counsel in Charge of the District IV Office
of the Pennsylvania Office of Disciplinary Counsel;
CAROLYN W. RUDNITSKY, In Her Official Capacity
as a Member of the Pennsylvania Judicial Conduct Board
2
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 05-cv-2172
(Honorable Sylvia H. Rambo)
Argued December 4, 2006
Before: SCIRICA, Chief Judge*, and AMBRO, Circuit Judges,
and BAYLSON, District Judge**
(Filed: May 25, 2007 )
JAMES BOPP, JR., ESQUIRE (ARGUED)
ANITA Y. WOUDENBERG, ESQUIRE
THOMAS J. MARZEN, ESQUIRE
Bopp, Coleson & Bostrom
One South 6th Street
Terre Haute, Indiana 47807
*
This appeal was argued before the panel of Judges Rendell,
Ambro and Baylson. The quorum was reconstituted to include
Chief Judge Scirica after Judge Rendell recused herself in this
matter.
**
The Honorable Michael M. Baylson, United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.
3
LEONARD G. BROWN, III, ESQUIRE
RANDALL L. WENGER, ESQUIRE
Clymer & Musser
408 West Chestnut Street
Lancaster, Pennsylvania 17608
Attorneys for Appellants
DAVID M. DONALDSON, ESQUIRE [ARGUED]
Administrative Office of PA Courts
1515 Market Street, Suite 1414
Philadelphia, Pennsylvania 19102
Attorney for Appellees
OPINION OF THE COURT
PER CURIAM.
At issue in this appeal are the free speech rights of
candidates for state judicial office. Appellant Pennsylvania
Family Institute (“PFI”) is not itself a candidate, but rather a
non-profit organization that seeks to elicit the views of
Pennsylvania judicial candidates on legal and political issues so
that it can disseminate those views to its members and to the
public. PFI contends that, under the Supreme Court’s decision
in Republican Party of Minnesota v. White, 536 U.S. 765
(2002), various provisions of Pennsylvania’s Code of Judicial
4
Conduct (“Canons”) and Rules Governing Standards of Conduct
of Magisterial District Justices (“Rules”) impermissibly chill
constitutionally protected speech and thus violate the First
Amendment. PFI challenges the District Court’s dismissal of its
action for declaratory and injunctive relief against members of
the Pennsylvania Judicial Conduct Board and the Pennsylvania
Disciplinary Counsel (collectively “Appellees”). The District
Court determined that the Canons and Rules have not directly
and personally infringed on PFI’s First Amendment rights to
speak or listen and that, therefore, PFI lacks standing to sue
under Article III of the Constitution, and, moreover, that its
claims are not ripe. We will affirm the District Court’s order
dismissing the case for lack of standing and lack of ripeness.
I.
PFI describes itself as a “non-profit educational
organization that, among many other things, seeks to collect and
publish data regarding judicial candidates and their political
philosophies and stances on disputed legal and political issues.”
PFI Br. 4. In September 2005, PFI mailed to all of the
candidates in Pennsylvania’s upcoming state judicial elections
the “2005 Pennsylvania Family Institute Voters’ Guide
Questionnaire for Judicial Candidates.” PFI asked the
candidates to complete and return the questionnaire in advance
of the November 2005 judicial elections so that it could post
responses on its website.
In its cover letter introducing the questionnaire, PFI
acknowledged the legal constraints that have historically
5
prevented judicial candidates from speaking on particular legal
issues, writing that:
As a judicial candidate, we understand that you
are subject to the Pennsylvania Code of Judicial
Conduct. We believe your responses to our
Questionnaire are constitutionally protected under
Republican Party of Minnesota v. White, 536 U.S.
765 (2002), which struck down on First
Amendment grounds a Minnesota Judicial Canon
that prohibited judicial candidates from
“announc[ing] their views on disputed legal or
political issues.” However, if you remain fearful
that you may not answer our Questionnaire under
the Code of Judicial Conduct, then you should
seek an advisory opinion from [the Pennsylvania
Judicial Conduct Board or the Pennsylvania
Lawyers’ Disciplinary Board.]
Joint Appendix 75 (first alteration in the original).
The three-page questionnaire proceeded to ask seven
multiple choice questions, such as “Which of the following
former U.S. Presidents best represents your political
philosophy?” and “Do you believe that the Pennsylvania
Constitution permits display of the Ten Commandments in
courtrooms?”1 JA 77–78. An eighth question asked candidates
1
The three-page questionnaire contained blanks for
candidates to note their name, telephone and fax numbers, the
6
position sought and the voting district. The full text of the
questions and answer choices is reproduced below. The original
questionnaire placed answer choices in bold typeface below
each question, followed by the words “(circle one).” The
asterisk following “Decline to Answer” refers to a footnote on
the bottom of each page, the text of which is reproduced in the
text of this opinion:
1. Which of the following former U.S. Presidents best
represents your political philosophy?
John F. Kennedy / Jimmy Carter / Ronald Reagan /
George Bush (former) / Undecided / Decline to Answer*
2. Which one of the current Justices of the U.S. Supreme
Court most reflects your judicial philsophy?
Rehnquist / Stevens / O’Connor / Scalia / Kennedy /
Thomas / Souter / Ginsburg / Breyer / Undecided / Decline to
Answer*
3. Do you believe that Roe v. Wade, 410 U.S. 113 (1973),
insofar as it recognizes a “right to privacy” that includes
abortion under the United States Constitution, was correctly or
incorrectly decided?
Correctly Decided / Incorrectly Decided / Undecided /
Decline to Answer*
4. Rate your judicial philosophy on a scale of 1–10 with
“living document” approach being a “1” and “strict
constitutionalist” or “originalist” being a “10.”
1 2 3 4 5 6 7 8 9 10 Decline to Answer*
5. Do you believe that the Pennsylvania Constitution
7
to list organizations in which they were involved. Rather than
permitting open-ended responses, PFI’s questionnaire required
the candidates to select from a group of answers such as, for the
first question quoted above:
John F. Kennedy / Jimmy Carter / Ronald Reagan
/ George Bush (former) / Undecided / Decline to
Answer*
JA 77.
The “Decline to Answer*” option was available for each
of the document’s seven multiple choice questions and, as
indicated, included an asterisk that corresponded to the
following footnote:
* This response indicates that I believe that I am
permits display of the Ten Commandments in courtrooms?
Yes / No / Undecided / Decline to Answer*
6. Do you believe that the Pennsylvania Constitution
recognizes a right to same-sex marriage?
Yes / No / Undecided / Decline to Answer*
7. Do you believe that the Pennsylvania Constitution
permits student-led graduation prayers in public schools?
Yes / No / Undecided / Decline to Answer*
8. Please list the five organizations in which you are most
involved as a member, through contributions, and/or through
volunteering.
JA 77–78.
8
prohibited from answering this question by Canon
7(B)(1)(c) of the Pennsylvania Canons 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 will have to
disqualify myself as a judge in any proceeding
concerning this matter on account of Canon
3(C)(1) because my “impartiality might
reasonably be questioned” if I answered this
question.
JA 77–79.
Although eighteen judicial candidates returned
questionnaires, fourteen of them circled “Decline to Answer” for
some or all of the questions. Only four candidates responded to
all eight questions.2 In addition to circling “Decline to
2
Although the record does not indicate the precise number of
questionnaires PFI sent out, the District Court noted that the
2005 judicial elections featured “over 400 judicial candidates for
election or retention to Pennsylvania’s appellate courts, courts
of common pleas, municipal courts, magisterial district
judgeships, and Philadelphia traffic court.” JA 3 n.1. Therefore,
it seems clear that many, if not most, of the judicial candidates
chose not to return the questionnaire.
9
Answer*,” one candidate noted in the margin beside two
questions that “personal political philosophy [is] irrelevant” (in
response to the question regarding past presidents) and that the
issue “could come before the court” (in response to the question
regarding the Ten Commandments). JA at 108–09. Finally, two
candidates responded with a jointly signed letter explaining that
they could not answer any of the questions because they
believed that the questionnaire attempted “to identify how a
judge would approach and rule upon issues that may come
before him/her as a sitting judge.” JA 92. However, none of the
judicial candidates who sent customized responses mentioned
the Canons or Rules, or otherwise indicated specifically that
these regulations were the reason why they did not respond.
PFI did not publish any of the responses either on its
website or via any other medium. Instead, PFI contacted both
the Pennsylvania Judicial Conduct Board and the Ethics
Committee of the Pennsylvania Conference of State Trial Judges
to ask whether either would deem responses to PFI’s
questionnaire to violate Canons 7(B)(1)(c) and 3(C)(1). The
Board responded that it did not provide advisory opinions, while
the Ethics Committee responded that it only provided advisory
opinions to those subject to the Code of Judicial Conduct.
On October 24, 2005, PFI, along with two citizens who
alleged that they wished to receive information from PFI, filed
suit in the District Court against Appellees, seeking declaratory
and injunctive relief to prevent Appellees from enforcing
provisions of the Canons and Rules against judicial candidates.
10
Specifically, PFI challenged Canon 7B(1)(c) and Rule 15D(3),
both of which provide in relevant part that judicial candidates
“should not make pledges or promises of conduct in office other
than the faithful and impartial performance of the duties of the
office” (the “pledges or promises clause”) 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” (the “commitments clause”). Additionally, PFI
challenged Canon 3C(1) and Rule 8A, which require a judge to
recuse himself from proceedings in which his “impartiality
might reasonably be questioned” (the “recusal clause”).3
PFI alleges that the Canons and Rules unconstitutionally
infringe on the organization’s right to receive and publish
information it wishes to collect from judicial candidates,
irrespective of whether the restrictions directly infringe on the
rights of judicial candidates. Counts I and II of PFI’s complaint
allege that Canon 7B(1)(c) and Rule 15D(3) are vague and
overbroad, both facially and as applied to PFI’s questionnaire,
and therefore violate the First Amendment because they chill the
speech of judicial candidates and, consequently, prevent PFI
3
The Board enforces the Canons and Rules against sitting
judges while the Pennsylvania Disciplinary Counsel enforces
Canon 7 against lawyers running for judicial office. Although
the Disciplinary Counsel only has formal responsibility for the
enforcement of its own Rules of Professional Conduct, Rule
8.2(b) explicitly incorporates, and makes binding on candidate-
lawyers, the entirety of the Code of Judicial Conduct.
11
from receiving and republishing constitutionally protected
speech. Count III alleges that Canon 3C(1) and Rule 8A are
vague and overbroad as applied to PFI’s questionnaire and that
they, too, prevent PFI from receiving and republishing
information from judicial candidates.
On the same day that it filed its complaint, PFI also
moved for a temporary restraining order and a preliminary
injunction. The District Court denied PFI’s motion for a
temporary restraining order but granted a motion by PFI to
consolidate the hearing on the preliminary injunction with a trial
on the merits.
The District Court held this hearing and trial on
November 1, 2005, and on November 7, 2005, ruled that it could
not reach the merits of PFI’s claim because PFI lacked standing
to assert a “right to listen” under the First Amendment due to its
failure “to provide any affirmative statements by candidates that
would indicate that any of the candidates are willing speakers.”
Pa. Family Inst. v. Black, No. 05-2172, 2005 WL 2931825, at
*6 (M.D. Pa. Nov. 4, 2005). Additionally, the District Court
ruled that the matter was not ripe because “the factual record
[was] insufficient to support Plaintiffs’ stated fear [that judicial
candidates would be disciplined for responding to PFI’s
questionnaire].” Id. The District Court dismissed PFI’s suit
“without prejudice.” Id. at *7.
PFI now appeals the ruling of the District Court.
However, before we can reach the merits of PFI’s appeal, we
must determine whether we have jurisdiction to review the
12
District Court’s order dismissing the case “without prejudice.”
Appellees argue that this did not constitute a final, appealable
order within the scope of 28 U.S.C. § 1291 and, therefore, that
we lack appellate jurisdiction. They rely primarily on our
decision in Borelli v. City of Reading, 532 F.2d 950 (3d Cir.
1976) (per curiam), where we said that an “order which
dismisses a complaint without prejudice is neither final nor
appealable because the deficiency may be corrected by the
plaintiff without affecting the cause of action. Only if the
plaintiff cannot amend or declares his intention to stand on his
complaint does the order become final and appealable.” Id. at
951–52. Appellees argue that because PFI has neither argued
that it cannot amend its complaint nor declared its willingness
to “stand on” its complaint, there is no finality.
We reject this argument and exercise jurisdiction. We
have noted that Borelli does not apply “where the district court
has dismissed based on justiciability and it appears that the
plaintiffs could do nothing to cure their complaint.” Presbytery
of N.J. of the Orthodox Presbyterian Church v. Florio, 40 F.3d
1454, 1461 n.6 (3d Cir. 1994); Cf. Green v. Humphrey Elevator
and Truck Co., 816 F.2d 877, 878 n. 4 (3d Cir.1987) (dismissal
without prejudice does not destroy finality where party cannot
cure defect). Here, we are in that precise situation: the District
Court dismissed PFI’s complaint on grounds of justiciability and
now, before us, PFI argues that the District Court erred in
finding an Article III defect.
Furthermore, we note that the § 1291 finality requirement
13
should “be given a ‘practical rather than a technical
construction.’” Caver v. City of Trenton, 420 F.3d 243, 261 (3d
Cir. 2005) (quoting Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949)). If we were to dismiss this case, PFI
would merely ask the District Court to dismiss the case with
prejudice and pursue this appeal all over again. “‘Wheels would
spin for no practical purpose.’” Caver, 420 F.3d at 261 (quoting
Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 (1978)). We are
therefore satisfied that we have jurisdiction over this appeal.4
II.
We write against a backdrop of heightened interest and
some degree of controversy—having nothing to do with the
4
We also note that the District Court directed the Clerk of the
Court to “close the file,” a directive which we have previously
held indicates that the “plaintiff had no desire to amend the
dismissed complaint.” Garber v. Lego, 11 F.3d 1197, 1198 n.1
(3d Cir. 1993). Additionally, to better communicate whether a
dismissal without prejudice is intended to be a final order, we
suggested in Borelli that district courts “expressly state . . . that
the plaintiff has leave to amend within a specified period of
time.” Borelli, 532 F.2d at 951 n.1. In this case, the District
Court made no such statement and, therefore, did not clearly
convey its belief that “an amendment [to the complaint] was
possible.” Id. This is but another piece of evidence suggesting
that the parties below did not contemplate further amendment to
the complaint.
14
concept of “case or controversy”—regarding the recent efforts
of interest groups to invalidate state ethical rules restricting
judicial candidate speech in the wake of the Supreme Court’s
ruling in White. In that case, Gregory Wersal, a candidate for
associate justice of Minnesota’s Supreme Court, challenged
Canon 5(A)(3)(d)(i) of the Minnesota Code of Judicial Conduct,
which prohibited candidates for judicial office from
“announc[ing] his or her views on disputed legal or political
issues,” on the grounds that it impermissibly prevented him from
speaking in violation of the First Amendment. The Supreme
Court’s determination that the provision was unconstitutional
has led to litigation in states across the country seeking to
invalidate canons similar to the ones found unconstitutional in
Minnesota.5 Although there is no question that the ruling in
5
White prompted the Pennsylvania Supreme Court, in its
rulemaking capacity, to amend Canon 7B(1)(c) and Rule 15D(3)
by replacing the phrase “announce his views on disputed legal
or political issues” with the phrase “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,”
the language that is now known as the “commitments clause.”
Amendment of Rule 15D(3) of the Rules Governing Standards
of Conduct of District Judges, 32 Pa. Bull. 5951 (Dec. 7, 2002)
(per curiam); Amendment of Canon 7B(1)(c) of the Code of
Judicial Conduct, 32 Pa. Bull 5951 (Dec. 7, 2002) (per curiam).
However, various district courts have since found that judicial
canons in other states, containing language identical to both
15
White does not in any way compel judicial candidates to
announce their views, it is equally clear that the decision leaves
few, if any, legal obstacles in the way of judicial candidates who
wish to speak out on disputed legal or political issues.
Consequently, White has sparked considerable discussion among
judges, lawmakers and commentators over how, and whether,
this new freedom can coexist with the goal of maintaining a fair,
independent, and impartial judiciary. See, e.g., Robert H.
Alsdorf, The Sound of Silence: Thoughts of a Sitting Judge on
the Problem of Free Speech and the Judiciary in a Democracy,
30 Hastings Const. L.Q. 197 (2003); Rachel Paine Caufield, In
the Wake of White: How States are Responding to Republican
Party of Minnesota v. White and How Judicial Elections are
Changing, 38 Akron L. Rev. 625 (2005); Nancy Gertner, To
Speak or Not to Speak: Musings on Judicial Silence, 32 Hofstra
L. Rev. 1147 (2004); David Schultz, Minnesota Republican
Pennsylvania’s current “commitments clause” and “pledges and
promises clause,” also violate the First Amendment, as
interpreted by White. See, e.g., Ind. Right to Life, Inc. v.
Shepard, 463 F. Supp. 2d 879 (N.D. Ind. 2006); Alaska Right to
Life Political Action Comm. v. Feldman, 380 F. Supp. 2d 1080
(D. Alaska 2005); N.D. Family Alliance, Inc. v. Bader, 361 F.
Supp. 2d 1021 (D.N.D. 2005); Family Trust Found. of Ky. v.
Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004). These district
courts have also ruled that recusal clauses identical to the ones
found in Pennsylvania’s Canon 3C(1) and Rule 8A were
constitutionally valid.
16
Party v. White and the Future of State Judicial Selection, 69
Alb. L. Rev. 985 (2006).
Recently, however, the debate has focused on the tools
used by interest groups to try to elicit the views of judicial
candidates, inciting the initiation of lawsuits against authorities
positioned to enforce their states’ respective canons. In several
cases, interest groups like PFI circulated questionnaires, nearly
identical to the one employed here, requesting responses from
judicial candidates on a host of legal and political issues.6 See,
e.g., Ind. Right to Life, Inc. v. Shepard, 463 F. Supp. 2d 879
(N.D. Ind. 2006); N.D. Family Alliance, Inc. v. Bader, 361 F.
Supp. 2d 1021 (D.N.D. 2005); Family Trust Found. of Ky. v.
Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004). When some
candidates declined to respond, the groups filed “right to listen”
suits arguing that the state canons were the reason why judicial
candidates chose to remain silent.7 But there are differing views
as to why judges are reluctant to answer such questionnaires.
See Terry Carter, Loaded Questionnaires?: Judicial Candidates
6
Although it is unclear whether the plaintiff organization in
Feldman also used a questionnaire, this seems likely, as the case
is otherwise indistinguishable from those that we have
mentioned.
7
James Bopp, Jr., the lawyer representing PFI, is a veteran of
these lawsuits, including White, and has been at the forefront of
a state-by-state campaign challenging restrictions on judicial
election speech.
17
Advised to Be Wary of Answers Inviting Suits Challenging
Canons, 5 No. 36 ABA J. E-Report 3 (2006). On one hand, it
may be that, instead of feeling restrained by state judicial
canons, some candidates may decline to speak because “‘judges
and candidates are lawyers who are professionals and have
views of the role of a judge . . . and the rule of law depends on
their protecting that view.’” Id. (quoting Professor Roy
Schotland). On the other hand, as counsel for PFI has publicly
theorized, it may be that “‘what’s really going on here is
candidates are afraid to answer the questionnaires because of the
canons.’” Id. (quoting James Bopp, Jr.). Interestingly, the
National Center for State Courts recently warned judges that
their responses to these questionnaires could give rise to
litigation. Id.
Whether Pennsylvania’s Canons and Rules violate the
First Amendment is not before us. Instead, we are called upon
to examine PFI’s questionnaire—and the judicial candidates’
responses to that questionnaire—as part of the threshold issue of
whether PFI has standing to challenge the Canons and Rules.
III.
Article III, § 2 of the Constitution “limits the ‘judicial
power’ to the resolution of ‘cases’ and ‘controversies.’”
McConnell v. FEC, 540 U.S. 93, 225 (2003). “Concerns of
justiciability go to the power of the federal courts to entertain
disputes, and to the wisdom of their doing so. We presume that
federal courts lack jurisdiction unless the contrary appears
affirmatively from the record.” Presbytery, 40 F.3d at 1462
18
(citations and internal quotations omitted). Appellees argue that
no justiciable case or controversy exists here because PFI has
neither been injured, nor legitimately threatened with injury,
and, therefore, that the organization’s suit suffers from defects
of standing and ripeness.
Few doctrines of constitutional law have engendered as
much discussion, and confusion, as those of standing and
ripeness. See, e.g., NE Hub Partners, L.P., v. CNG
Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001) (noting
multiple ambiguities in the ripeness doctrine); Erwin
Chemerinsky, A Unified Approach to Justiciability, 22 Conn. L.
Rev. 677, 682–83 (1990) (examining the ways in which
standing, ripeness, mootness and the political question doctrine
have evolved and become intertwined). Rather than wade too
deeply into these debates, we will embrace the simplicity of our
previous observation that the “concepts of standing and ripeness
require related but distinct inquiries” essential to the question of
whether a case is justiciable. Pic-A-State Pa., Inc. v. Reno, 76
F.3d 1294, 1298 n.1 (3d Cir. 1996). “Whereas ripeness is
concerned with when an action may be brought, standing
focuses on who may bring a ripe action.” Id. (quoting
Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411 n.13
(3d Cir. 1992)). Therefore, the task before us is to determine,
first, whether PFI stands as the appropriate party to bring this
action and, if so, whether its claims are fit for adjudication at
19
this time.8
A. Standing
To have standing to sue under Article III, “a plaintiff
must satisfy three constitutional preconditions: (1) a cognizable
injury that is (2) causally connected to the alleged conduct and
is (3) capable of being redressed by a favorable judicial
decision.” Pa. Psychiatric Soc’y v. Green Spring Health Servs.,
280 F.3d 278, 288 n.8 (3d Cir. 2002) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992)).9
Here, PFI alleges a violation of its “right to listen” based
on the potential enforcement of the Canons and Rules by
Appellees against judicial candidates who, PFI claims, would
like to speak openly on legal issues relevant to their candidacy.
Of course, the First Amendment refers only to a right to speak
and makes no mention of a right “to listen,” “to hear,” or “to
8
Although “our review of standing and ripeness
determinations is plenary,” Presbytery, 40 F.3d at 1462, we will,
as always, review the District Court’s factual determinations for
clear error, U.S. v. Loney, 219 F.3d 281, 288 (3d Cir. 2000).
9
“Even when this constitutional minimum has been met,
judicially created prudential limitations may defeat a party’s
standing to maintain a suit.” Pitt News v. Fisher, 215 F.3d 354,
359 (3d Cir. 2000). For the reasons set forth below, we need not
determine whether PFI’s suit satisfies standing’s prudential
limitations.
20
know.” Nevertheless, in Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976),
the Supreme Court determined that “the protection afforded [by
the First Amendment] is to the communication, to its source and
to its recipients both.” Id. at 756. Therefore, where one enjoys
a right to speak, others hold a “reciprocal right to receive” that
speech, which “may be asserted” in court. Id. at 757. A
precondition of asserting this “right to receive,” however, is the
existence of a “willing speaker.” Id. at 756. In this respect, the
Court of Appeals for the Second Circuit put it best when it said
that the right to receive speech is “entirely derivative” of the
rights of the speaker. In re Application of Dow Jones & Co.,
Inc., 842 F.2d 603, 608 (2d Cir. 1988).
Therefore, in order to maintain a “right to listen” claim,
a plaintiff must clearly establish the existence of a “willing
speaker.” In the absence of a willing speaker, “an Article III
court must dismiss the action for lack of standing.” Competitive
Enter. Inst. v. U.S. Dep’t of Transp., 856 F.2d 1563, 1566 (D.C.
Cir. 1988). In our recent opinion in United States v. Wecht, we
noted that the purpose of the willing speaker requirement is “not
to tie the third party’s interests to those of the speaker, but to
ensure that there is an injury in fact that would be redressed by
a favorable decision.” United States v. Wecht, No. 06-3098,
2007 WL 1086308, at *5 (3d Cir. Apr. 12, 2007). Thus, if there
is no infringement claimed by a speaker—that is, someone who
is willing to state that his rights were infringed upon, or that his
exercise of rights was chilled by, in this case, the Canons or
Rules—there can be no violation of the right to listen. In
21
determining standing, the right to listen depends entirely on the
infringement on the rights of a willing speaker.
The issue before us is whether PFI has met its burden of
identifying a “willing speaker.” A precondition to resolving this
question, however, is that we determine what makes a speaker
a “willing” one for purposes of standing in this case. PFI urges
us to find “willing” the fourteen judicial candidates who circled
“Decline to Answer*” as a response to one or all of the
questionnaire’s seven multiple choice questions. PFI argues
that, in circling this choice with its accompanying footnote
language, the fourteen questionnaire respondents communicated
their belief that they were prohibited from speaking by the
Canons and Rules, and that they would be subject to disciplinary
action for violating them. In rejecting this argument, the District
Court stated that “although [circling ‘Decline to Answer’] may
be sufficient to establish that the candidates believed that the
judicial canons prevented them from providing those answers,
[the answers] fail to establish that any of the candidates would
have provided the answers but for the judicial canons.” Pa.
Family Inst., 2005 WL 2931825, at *6. In other words, the
District Court determined that a “willing speaker” should be
defined as an individual who would be willing to speak but
chose not to speak specifically because of the existence of
particular regulations.
PFI now argues that the District Court’s “but for” test is
too stringent and, citing our decision in Aiello v. City of
Wilmington, 623 F.2d 845, 857 (3d Cir. 1980), that the judicial
22
canons’ prohibitions need only play a de minimis role in
preventing an otherwise “willing speaker” from speaking.10 But
a plaintiff must prove causation. See Pa. Psychiatric Soc’y, 280
F.3d at 288 n.8. There may be other factors present, but to
prove there is a “willing speaker,” a party must show at least
that but for a challenged regulation of speech, a person would
have spoken.
Our recent opinion in Wecht features a “willing speaker.”
There, media outlets sought third-party standing to challenge the
constitutionality of a local rule in the U.S. District Court for the
Western District of Pennsylvania that limited what attorneys
could say publicly about ongoing criminal cases. We wrote that
10
Aiello sought to challenge restrictions on his own
speech—not that of a third party—to which he was subject
because of his employment as a firefighter in Wilmington,
Delaware. He challenged those regulations for overbreadth,
contending his speech was impermissibly chilled because,
already on probation after breaking into a retail store, he was
afraid he would be fired if he complained to the Fire Bureau or
otherwise spoke freely. But in recognizing that Aiello’s own
testimony showed his speech was not chilled, we noted that
“generalized allegations of chill are not an adequate substitute
for a claim of specific present objective harm or a threat of
specific future harm.” Aiello, 623 F.2d at 857 (citing Laird v.
Tatum, 408 U.S. 1, 13–14 (1972)). Here, PFI does not even
offer a potential willing speaker whose allegations of chill could
be examined for any specific or objective harm.
23
the “only way a third party challenging a gag order can show
that it will receive the information it seeks is by demonstrating
that there is a willing speaker.” Wecht, 2007 WL 1086308, at
*5. We noted it was undisputed that Wecht’s attorneys were
willing to speak about the case in which he was a criminal
defendant: Wecht’s counsel in fact commented about the case
despite the order, and the District Court subsequently issued a
protective order barring Wecht from reproducing or disclosing
the contents of court records in the case. We held that the
willing speaker requirement for standing of a third party was
met “as long as the third party can demonstrate that an
individual subject to the [restriction on speech] would speak
more freely if the [restriction] is lifted or modified.”11 Id. at *6.
In Virginia State Board of Pharmacy, the Supreme Court
noted that a willing speaker’s existence was evidenced by a
stipulation of facts that read: “In the absence of [the relevant
regulation] some pharmacies in Virginia would advertise,
publish and promote price information regarding prescription
drugs.” 425 U.S. at 757 n.14.
As noted, there may be other reasons present, but,
reading the Supreme Court’s cases together with our own, we
hold that in order to show the existence of a willing speaker for
the purposes of establishing third party standing, a party must at
11
Nonetheless, we decided the case under our supervisory
power, not on constitutional grounds. United States v. Wecht,
No. 06-3098, 2007 WL 1086308, at *7 (3d Cir. Apr. 12, 2007).
24
least demonstrate that but for a regulation, a speaker subject to
it would be willing to speak.
Here, PFI failed to prove at trial that the Canons and
Rules played any actual causal role in candidates’ choice to
“decline to answer.” Furthermore, the circumstances upon
which PFI currently seeks standing differ from those in the other
post-White cases we have mentioned, Woltnizek and Bader in
particular.12 In both of those cases, organizations similar to PFI
circulated questionnaires and, when several candidates declined
to respond, sought standing to challenge the relevant state
judicial canons by asserting a “right to listen” claim. In each
case the district court found that the organization had standing,
but only after determining that the judicial candidates sent in
affirmative responses that clearly demonstrated that they would
not respond because of the relevant canons.
For instance, in Wolnitzek, one candidate wrote that
“under Cannon [sic] 5 of the Ky. Sup.Ct. Rules (4.300) I cannot
answer these questions although I would like to.” 345 F. Supp.
2d at 682 (alteration in original) (emphasis added). Still another
candidate, a sitting judge, indicated that she regretted that she
12
Although both Shepard and Feldman deal with factual
patterns and legal challenges similar to ones before us here,
neither case describes the nature of the responses sent in by the
judicial candidates, nor does either case involve any inquiry into
the “willing speaker” concept. Therefore, we find neither case
to be particularly helpful in resolving this issue.
25
could not respond and pointed, as the other respondents did, to
Kentucky’s canons. Id. Additionally, several candidates
indicated that they could not speak because of oral and written
statements made by Kentucky’s Judicial Ethics Committee
specifically advising judicial candidates that the relevant canons
prohibited their speech. Id. at 680–81.
Likewise, in Bader, the district court again relied on self-
generated responses mentioning the restrictions specifically.
For instance, one candidate wrote:
As much as I would like to respond to the
questions, the North Dakota Code of Judicial
Conduct prevents me from doing so. I am
enclosing herewith a copy of Canon 5 that
prohibits a judicial candidate from “making
statements that commit or appear to commit the
candidate with respect to . . . issues that are likely
to come before the court.” The questions posed in
the survey call for such prohibited statements . . .
.
...
Therefore, I am unable under the Judicial Canons
of North Dakota to respond to your survey.
361 F. Supp. 2d at 1028-29.
In neither case did the district court find standing simply
because a judicial candidate chose “decline” accompanied by a
preformulated footnote, as PFI asks us to do here. In fact, every
26
single response relied upon by the courts in Wolnitzek and Bader
was specifically drafted by the responding judicial candidate.
Unlike the organizations in those cases, PFI has not offered one
affirmative, self-generated statement from any sitting judge or
candidate that cites to or even mentions Pennsylvania’s Canons
and Rules. Instead, the organization relies on a prepackaged and
presupplied footnote that none of the respondents authored,
initialed, or even circled. We are not convinced that the
footnote necessarily communicates the views of the judicial
candidates.
Moreover, even if we were to accept the footnote as an
accurate and sufficient reflection of the candidates’ views, we
are unconvinced that it effectively communicates what PFI
would like us to believe it communicates, namely, that there are
willing speakers who would not speak but for the Canons and
Rules. The District Court interpreted the judicial candidates’
selection of “Decline to Answer” and the language of the
appended footnote to mean that the candidates were aware that
some prohibition existed, rather than to mean that, if the
prohibition did not exist, that they would have given their views.
The court noted: “it is just as likely as not that the candidates
believe that it is more prudent for them to refrain from providing
such answers or otherwise hold independent beliefs that are
consistent with the goals of the judicial canons.” Pa. Family
Inst., 2005 WL 2931825, at *6. The District Court did not err,
let alone clearly err, in making this finding.
PFI asserted at oral argument that “everyone would
27
agree” that a judge who believes that a canon prohibits certain
activity would “certainly” be deterred. We are not convinced.
There are other equally plausible reasons why a judge might
choose to forgo speech in the course of a campaign for elected
office.
First, it hardly needs to be said that those running for
public office may wish to avoid committing themselves to
positions on controversial issues. As PFI itself points out,
judicial candidates might be using the Canons and Rules as a
“pretext” to mask other reasons to remain silent. PFI Br. 14.
Additionally, as theorized by Professor Schotland, the role of the
judge is different from the role of officials who run for office in
the historically political branches, and candidates for the
judiciary may feel that announcing their views on legal issues
would hinder their ability to effectively dispense justice once
they are on the bench.13 Our point is not that these are the only,
13
Notions about the role of the judge, as well as concern over
applying the same speech test for judicial candidates that we use
for other candidates permeate the dissenting opinions in White.
Justice Stevens urged that “the judicial reputation for
impartiality and open-mindedness is compromised by
electioneering that emphasizes the candidate’s personal
predilections rather than his qualifications for judicial office.”
White, 536 U.S. at 802 (Stevens, J., dissenting). Justice
Ginsburg wrote separately that “promises of conduct in office,
however commonplace in races for the political branches, are
inconsistent with the judge’s obligation to decide cases in
28
or even the dominant, theories explaining why a judge might not
speak, but rather that they are plausible ones that do not turn on
the Canons and Rules. In light of the fact that PFI has not put
forward any evidence in contravention of these possible
explanations, the organization has not persuaded us that the
District Court clearly erred in rejecting PFI’s assertion that the
Canons and Rules are the real reason why the judges did not
submit substantive responses. Without such a showing, PFI
cannot establish that the questionnaire respondents qualify as
willing speakers.
Despite a trial on the merits in which PFI had every
opportunity to call witnesses or present other forms of relevant
evidence, it has not brought forward one statement by a judicial
candidate indicating that he or she was otherwise willing—and
yet declined to speak—for any reason connected to the Canons
and Rules. PFI now asks this Court to infer the existence of
such a statement through the boilerplate language of the
questionnaire’s footnote. We decline this invitation to
conjecture and, therefore, hold that, because PFI has not
established the presence of a willing speaker, it lacks standing
to sue under Article III.
In addition to arguing for standing on the basis of its
“right to listen,” PFI also seeks standing on the grounds that the
Canons and Rules directly infringe upon its right to speak. PFI
accordance with his or her role.” Id. at 813 (Ginsburg, J.,
dissenting) (internal quotations omitted).
29
argues that it is “chilled in exercising its own right to free
speech [since] it fears publishing affirmative candidate
responses it received because this might expose responding
candidates to discipline under the canons and rules.” PFI Br. 27.
The District Court found this theory to be “too speculative” and
declined to reach its merits. Pa. Family Inst., 2005 WL
2931825, at *6. We agree. That PFI’s lawful and
constitutionally protected actions might expose to liability other
distinct individuals, with whom the organization has no
relationship, is too speculative to constitute a cognizable injury
necessary for the organization to have standing under Article III.
Furthermore, to the extent that PFI argues that exposing
candidates to liability will ultimately chill them from speaking
and consequently reduce the amount of speech PFI is able to
hear, this is merely a reformulation of its “right to listen” claim,
for which PFI does not have standing.14
B. Ripeness
We will discuss the issue of ripeness only briefly, as
PFI’s lack of standing dictates the result in this case. The
District Court reasoned that the factual record was “insufficient
14
We note that PFI argued in its brief that it had standing to
challenge the Canons and Rules under the third-party standing
doctrine of jus tertii. See, e.g., Sec’y of State of Md. v. Jospeh
H. Munson, Co., 467 U.S. 947 (1984); Amato v. Wilentz, 952
F.2d 742 (3d Cir. 1991). PFI’s counsel affirmatively withdrew
this theory at oral argument and, therefore, it is not before us.
30
to support Plaintiffs’ stated fear” that judicial candidates would
be subject to sanctions were they to respond to PFI’s
questionnaire. Pa. Family Inst., 2005 WL 2931825, at *6. In
reaching this conclusion, the District Court pointed out that,
whereas in Woltnizek the Kentucky Judicial Conduct
Commission and Ethics Committee issued memoranda notifying
judicial candidates that it considered Kentucky’s restrictions to
have survived White, PFI was unable to show “any
interpretation of the judicial canons by Pennsylvania’s courts,
the Pennsylvania Judicial Conduct Board, or the Pennsylvania
Office of Disciplinary Counsel.” Id. at *7. Although it did not
expound on the import of this finding, it is clear that the District
Court reasoned that, without a similar interpretation in
Pennsylvania, PFI could not show that enforcement was
sufficiently imminent for the organization’s claims to be ripe for
adjudication.
PFI’s request for injunctive relief against enforcement
suffers from a lack of evidence that enforcement here is
contemplated, let alone imminent. This could be characterized
either as a lack of ripeness, or as a lack of proof of entitlement
to injunctive relief. But PFI’s request for declaratory relief
regarding the constitutionality of the Canons and Rules stands
on a different footing. Clearly, “[f]ederal court review is not
foreclosed merely because there is a pre-enforcement challenge
to a state statute.” Planned Parenthood of Cent. N.J. v. Farmer,
220 F.3d 127, 148 (3d Cir. 2000). The Canons and Rules
continue to exist and appellees have not forsaken their power to
enforce them in the future. Those impacted by an allegedly
31
unconstitutional law are “entitled to know what they [may] not
do.” Id. Therefore, had PFI established the existence of a
willing speaker, the underlying challenge to the Canons and
Rules themselves as having a chilling effect on speech would
have been ripe.
IV.
For these reasons, we will affirm the order of the District
Court.
32