THE CONSTITUTION PARTY OF PENNSYLVANIA et al v. CORTES et al
MEMORANDUM AND/OR OPINION RE: DEFENDANTS FILED MOTIONS TO DISMISS THE AMENDED COMPLAINT. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/31/2010. 4/1/2010 ENTERED AND COPIES E-MAILED.(kk, )
IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA T H E CONSTITUTION PARTY OF, P E N N S Y L V A N IA , et al. P la in tif f s v. P E D R O A. CORTES, et al. D e f e n d a n ts : : : : : : : :
N o . 5:09-cv-01691
M EM ORANDUM S te n g e l, J. M a r c h 31, 2010
T h is involves six plaintiffs in search of a case. The Constitution Party of P e n n sylv a n ia , The Green Party of Pennsylvania, and the Libertarian Party of P e n n sylv a n ia , and the chairs of the three parties, challenge the constitutionality of certain s e c tio n s of the Pennsylvania Election Code. They believe the sections place unreasonable b u rd e n s on non-major party candidates.1 The defendants2 filed motions to dismiss the a m e n d e d complaint.3 Plaintiffs' Amended Complaint for Declaratory and Injunctive Relief, Constitution Party of Pennsylvania v. Cortes, No. 09-1691 (E.D. Pa. filed June 19, 2009) [hereinafter Amended Complaint]. The Justices of the Supreme Court of Pennsylvania, the Judges of the Commonwealth Court of Pennsylvania, Charlese W. Johns, Prothonotary of the Supreme Court of Pennsylvania, and Michael F. Krimmel, Chief Clerk of the Commonwealth Court of Pennsylvania will be referred to collectively as "Judicial Defendants." Pedro Cortes, Chet Harhut, and Thomas Corbett will be referred to collectively as "Executive Defendants." See Motion to Dismiss Plaintiffs' Amended Complaint Filed on Behalf of the Justices of the Supreme Court of Pennsylvania, the Judges of the Commonwealth Court of Pennsylvania, Charles W. Johns, Prothonotary of the Supreme Court of Pennsylvania, and Michael F. Krimmel, Chief Clerk of the Commonwealth Court of Pennsylvania, Constitution Party of Pennsylvania v. Cortes, No. 09-1691 (E.D. Pa. filed July 2, 2009); Defendants Pedro A. Cortes, Chet Harhut, and
3 2 1
Because the plaintiffs present no case or controversy as required by Article III of th e Constitution, I will dismiss their amended complaint.
B ackground P la in tif f s allege the Pennsylvania Election Code imposes unavoidable and severe
b u rd e n s on candidates for public office unless they are members of the Republican or D e m o c ra tic party. According to the plaintiffs, this "freezes" the political status quo. The Election Code allows major party candidates to access the general election b a llo t through publicly funded primary elections. 25 Pa. C.S.A. § 2862.4 Non-major p a rty candidates,5 however, must submit nomination papers. 25 Pa. C.S.A. § 2872.2.6
Thomas Corbett's Motion to Dismiss the Amended Complaint, Constitution Party of Pennsylvania v. Cortes, No. 09-1691 (E.D. Pa. filed Aug. 24, 2009). 28 Pa. C.S.A. § 2862 provides: "All candidates of political parties, as defined in section 801 of this act . . . shall be nominated, and party delegates and alternate delegates, committeemen and officers who, under the provisions of Article VIII of this act or under the party rules, are required to be elected by the party electors, shall be elected at primaries held in accordance with the provisions of this act, except as otherwise provided in this act." Pursuant to 25 Pa. C.S.A. § 2831(a), a political party is "[a]ny party or political body, one of whose candidates at the general election next preceding the primary polled in each of at least ten counties of the State not less than two per centum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate, is hereby declared to be a political party within the State . . . ." "Any political body which is not a political party, as hereinabove defined, but which has nominated candidates for such general or municipal election by nomination papers in the manner provided by this act, shall be deemed to be a political body within the meaning of this act." 25 Pa. C.S.A. § 2831(c). 2
Private parties are allowed to challenge the validity of these nomination papers. 25 Pa. C .S .A . § 2937.7 A court is authorized to tax litigation costs and attorney fees "it shall d e e m just" against the candidate defending the challenged nomination paper.8 See 25 Pa. C .S .A . § 2937; In re: Nomination Paper of Ralph Nader, 905 A.2d 450, 458 (Pa. 2006) (th e Supreme Court of Pennsylvania found a court could impose costs and attorney fees
In addition, a minor party is defined as a political party "whose State-wide registration is less than fifteen per centum of the combined State-wide registration for all State-wide political parties as of the close of registration period immediately preceding the most recent November election." 25 Pa. Cons. Stat. § 2872.2. This opinion will refer to minor party candidates, political body candidates, and independent candidates collectively as "non-major party candidates." 25 Pa. C.S.A. § 2872.2(a) provides: "(a) Notwithstanding any other provision in this act to the contrary, minor political parties shall nominate all of their candidates for the offices to be filled at the ensuing November election pursuant to section 903 in accordance with the requirements of section 951, other than subsection (e)(6) and (7) thereof, and section 954, and shall obtain the required signatures during the same time frame available to political bodies. Minor political parties shall be subject to the provisions of this act applicable to political parties with respect to special elections, voter registration forms, substituted nominations and all other purposes except as otherwise expressly provided in this section . . . ." 25 Pa. C.S.A. § 2937 provides: "All nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside. . . . If the court shall find that said nomination petition or paper is defective under the provisions of section 976, or does not contain a sufficient number of genuine signatures of electors entitled to sign the same under the provisions of this act, or was not filed by persons entitled to file the same, it shall be set aside. . . . In case any such petition is dismissed, the court shall make such order as to the payment of the costs of the proceedings, including witness fees, as it shall deem just. . . ." If the private parties lose, the candidate can receive costs from the challenger. In re Farnese, 948 A.2d 215 (Pa. Commw. Ct. 2008) (assessing costs against private individuals who unsuccessfully challenge a candidate's petition). 3
8 7 6
against a candidate). At the crux of the plaintiffs' concern is a 2004 Pennsylvania Commonwealth Court c a s e in which litigation costs of more than $80,000 were taxed against two independent c a n d id a te s, Ralph Nader for President and Peter Miguel for Vice President of the United S ta te s. See Nader, 905 A.2d at 455, 459. Apparently, this was the first time the court a u th o riz e d the taxation of costs against the defending candidates, rather than against in d iv id u a ls challenging the nomination papers. Then, in 2006, the Commonwealth Court ta x e d more than $80,000 in litigation costs and attorneys fees against a non-major party c a n d id a te for United States Senate, Carl Romanelli. In re Nomination Paper of Rogers, 9 4 2 A.2d 915, 933 (Pa. Commw. Ct. 2008). The Supreme Court of Pennsylvania a f f irm e d both taxations. See Nader, 905 A.2d at 459; In re Rogers, 934 A.2d 696, 696 (P a . 2007).9 P la in tif f s allege other non-major party candidates, specifically Hagan Smith, M a ra k a y Rogers, and Ken V. Krawchuk, either refused to submit or withdrew their n o m in a tio n papers because of the threat they would be taxed with costs and fees. They ra n as write-in candidates. Plaintiffs contend the candidates' chances for success were
On July 10, 2008, Pa. Attorney General Thomas Corbett charged employees of the Pennsylvania House Democratic Caucus with criminal conspiracy, theft, and conflict of interest, including allegations the challenges to the 2004 and 2006 non-major party candidate nominations were prepared by these employees using funds and resources misappropriated from the taxpayers. Amended Complaint at ¶ 39. Following these allegations, the Commonwealth Court refused to set aside the prior taxation of costs. Id. On August 17, 2009, the Pennsylvania Supreme Court affirmed the decision relating to Nader. Romelli's appeal is still pending. 4
impaired when, in 2006, officials in nine Pennsylvania counties did not compute and c e rtif y the write-in votes and, in 2008, officials in seven counties did not compute and c e rtif y write-in votes. In affirming the assessment of costs in Nader, the Pennsylvania Supreme Court f o u n d the provision allowing the assessment of costs did "not impinge upon any c o n s titu tio n a l rights in a way that would warrant constitutional scrutiny." 1 0 Nader, 905 A .2 d at 459. The Nader court stated, "[e]ven if the statute did burden ballot access, w h ic h it did not, the burden would be reasonable and rationally related to the interest of th e Commonwealth in ensuring honest and fair elections." Id. Both the Nader and R o g e rs courts noted "limiting the choice of candidates to those who have complied with s ta te election law requirements is the prototypical example of a regulation that, while it a f f e c ts the right to vote, is eminently reasonable." Rogers, 942 A.2d at 929 (quoting N a d e r, 905 A.2d at 460); Nader, 905 A.2d at 459 (quoting Burdick v. Takushi, 504 U.S. 4 2 8 , 440 n.10 (1992)).1 1 The court noted the candidate "provided no evidence to show how the assessment of costs, following a finding by the Commonwealth Court that nearly two-thirds of the signatures on the nomination papers were invalid, penalized their exercise of free speech." Nader, 905 A.2d at 459. The Commonwealth Court of Pennsylvania noted some outrageous examples of signatures, including "`Mickey Mouse', `Fred Flintstone,' `John Kerry,' and the ubiquitous `Ralph Nader.'" Id. at 458 (citing Commonwealth Court, Oct. 13, 2004, Consolidated Findings, Opinion, and Order at 14). In addition, the petitions contained "thousands of names that were created at random and then randomly assigned to either existent or non-existent addresses by the circulators." Id. Plaintiffs claim they are not challenging the state court decisions in Nader, 905 A.2d 450, 455 (Pa. 2006) and Rogers, 942 A.2d 915, 933 (Pa. Super. Ct. 2008), nor could they in a federal district court. See Guarino v. Larsen, 11 F.3d 1151, 1156-57 (3d Cir. 1993) (federal 5
Plaintiffs' claim the Nader and Rogers decisions "chilled" the rights of future c a n d id a te s who might attempt to gain access to the ballot. To them, the assessed costs are u n c o n stitu tio n a l because they impose a monetary barrier to ballot access and because the s ta tu te does not provide notice of when costs will be assessed. This, they contend, is in v io la tio n of the Due Process clause.1 2 T h e three counts of the complaint attempt to state bases for constitutional c h a lle n g e s and to prescribe methods of relief. Count I of Plaintiffs' amended complaint a lle g e s § 2872.2 "independently and in conjunction with other provisions of the P e n n sylv a n ia Election Code, [is] unconstitutional as applied to Plaintiffs, because it im p e rm is s ib ly burdens and chills Plaintiffs exercise of freedoms guaranteed to them by th e First Amendment, Fourteenth Amendment, Qualifications Clauses and elsewhere in th e United States Constitution, and because it subjects them to such burdens without n o tic e or limitation, in violation of their right to due process of law guaranteed by the F o u rte e n th Amendment." Count II alleges § 2937 "independently and in conjunction w ith other provisions of the Pennsylvania Election Code, [is] unconstitutional as applied to Plaintiffs, because it impermissibly burdens and chills Plaintiffs exercise of freedoms
courts should presume completed state court proceedings correctly resolved federal issues presented); see also Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (federal district court is without authority to review final determinations of state courts). See Plaintiffs' Response in Opposition to the Motion to Dismiss the Amended Complaint Filed by Defendant Justices, Defendant Judges and Defendant Johns and Krimmel at 3-5, Constitution Party of Pa. v. Cortes, No. 09-1691 (E.D. Pa. filed July 20, 2009). 6
guaranteed to them by the First Amendment, Fourteenth Amendment, Qualifications C la u s e s and elsewhere in the United States Constitution, and because it subjects them to s u c h burdens without notice or limitation, in violation of their right to due process of law g u a ra n te e d by the Fourteenth Amendment." Amended Complaint at ¶ 50. Count III of P la in tif f s ' amended complaint requests an injunction providing the Executive Defendants " ta k e any and all measures necessary to ensure that votes validly cast pursuant to Section 2 9 3 6 (a ) are accurately and completely computed and certified for each candidate, as re q u ire d by Section 3155." Amended Complaint at ¶ 64.
M o tio n to Dismiss Standard A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
e x a m in e s the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1 9 5 7 ). The factual allegations must be sufficient to make the claim for relief more than ju s t speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To d e te rm in e whether to grant a motion to dismiss, a federal court must construe the c o m p la in t liberally, accept all factual allegations in the complaint as true, and draw all re a s o n a b le inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County C m ty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
A r tic le III Limits the Power of the Federal Courts to Adjudicate Only in C a s e s or Controversies " A rtic le III of the Constitution limits the federal judicial power to `Cases' or
`C o n tro v e rs ie s .'" Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 193 (3d Cir. 2004) (q u o tin g United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 5 1 7 U.S. 544, 551 (1996)). "Courts enforce the case-or-controversy requirement through th e several justiciability doctrines," including "standing, ripeness, mootness, the politicalq u e s tio n doctrine, and the prohibition on advisory opinions." Toll Bros., Inc. v. Twp. of R e d in g to n , 555 F.3d 131, 137 (3d Cir. 2009) (citations omitted). The standing and rip e n e ss doctrines are related, as "[e]ach is a component of the Constitution's limitation of th e judicial power to real cases and controversies." Presbytery of N.J. of Orthodox P re s b yte ria n Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994). Ripeness determines w h e n a proper party may bring an action and standing determines who may bring the a c tio n . Id. (quoting Smith v. Wis. Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1 1 3 4 , 1141 (7th Cir. 1994)); see also, Smith, 23 F.3d at 1141 (noting "[i]f no injury has o c c u rre d , the plaintiff can be told either that she cannot sue, or that she cannot sue yet"). S ta n d in g ensures "plaintiffs have a `personal stake' or `interest' in the outcome of th e proceedings, `sufficient to warrant . . . [their] invocation of federal-court jurisdiction a n d to justify exercise of the court's remedial powers on . . . [their] behalf.'" Khodara E n v tl., Inc., 376 F.3d at 193 (quoting Joint Stock Soc'y v. UDV N. Am., Inc, 266 F.3d 1 6 4 , 175 (3d Cir. 2001)) (alterations in original). In contrast, "[t]he ripeness doctrine 8
serves to `determine whether a party has brought an action prematurely and counsels a b s te n tio n until such time as a dispute is sufficiently concrete to satisfy the constitutional a n d prudential requirements of the doctrine.'" Khodara Envtl., Inc., 376 F.3d at 196 (q u o tin g Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003)). A court is required to raise issues of standing and ripeness if not raised by the p a rtie s . Addiction Specialists Inc. v. Twp. of Hampton, 411 F.3d 399, 405 (3d Cir. 2005) (q u o tin g Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001) (court required to raise th e issue of standing); County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 163-64 (3 d Cir. 2006) (quoting Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d C ir. 1988) (court required to raise the issue of ripeness).1 3 In addition, the plaintiff must a lle g e facts invoking the court's jurisdiction. Presbytery of New Jersey, 40 F.3d at 1462 (c itin g Renne v Geary, 501 U.S. 312, 316 (1991)). Plaintiffs lack standing to raise the constitutional issues. In addition, the c o n tro v e rsy is not ripe for federal review. Accordingly, defendants' motions will be g ra n te d , and plaintiffs' complaint will be dismissed.
The judicial defendants alleged the claims against them should be dismissed because "[a] suit against a judge who acted in his or her adjudicatory capacity lacks the necessary requirement of justiciable controversy." See Judicial Defendants Memorandum at 3 (citing Bauer v. Texas, 341 F.3d 352, 359 (5th Cir. 2003)). The executive defendants alleged the claims against them should be dismissed because the plaintiffs' claims were foreclosed by R o g e rs v. Corbett, 468 F.3d 188 (3d Cir. 2006), Executive Defendants' Memorandum at 910, the assessment of fees does not violate the First and Fourteenth Amendments, id. at 1116, and the executive defendants are not proper parties because the do not initiate, or p a rtic ip a te in, the hearings, id. at 17-20. 9
S ta n d in g to Seek Injunctive Relief
S ta n d in g ensures "there is a real need to exercise the power of judicial review in o rd e r to protect the interests of the complaining party." Summers v. Earth Island Inst., 1 2 9 S.Ct. 1142, 1149 (U.S. 2009) (quoting Schlesinger v. Reservists Comm. to Stop the W a r, 418 U.S. 208, 221 (1974)). To establish standing under Article III of the C o n s titu tio n , a plaintiff seeking injunctive relief must demonstrate the following three e le m e n ts : (1) he "suffered a `concrete,' `particularized' injury-in-fact, which must be `a c tu a l or imminent, not conjectural or hypothetical;'" (2) the injury is "fairly traceable to th e challenged action of the defendant, and not the result of the independent action of s o m e third party not before the court;" and (3) "a favorable decision likely would redress th e injury." Toll Bros. Inc., 555 F.3d at 137-38 (quoting Lujan v. Defenders of Wildlife, 5 0 4 U.S. 555, 560 (1992))
I n j u r y- i n - F a c t
T o establish an injury-in-fact the plaintiff "must suffer a palpable and distinct h a rm ," Toll Bros. Inc., 555 F.3d at 138, and the harm "must affect the plaintiff in a p e rs o n a l and individual way," id. (citing Lujan, 504 U.S. at 560 n. 1). Plaintiffs fail to allege a threat of injury that is actual and imminent. Plaintiffs a lle g e potential candidates' right to ballot access is chilled because of the possibility of a s s e s se d costs. This threat, however, is "conjectural or hypothetical," not "actual and
imminent." Plaintiffs allege non-major party candidates have been assessed costs in the p a s t. This prior assessment, however, does not establish the plaintiff parties' future c a n d id a te s will be assessed costs. Moreover, the Pennsylvania courts, in the two cases a s s e s sin g sanctions against non-major party candidates, found the candidates had p a rtic ip a te d in fraud, bad faith, or similar inappropriate conduct prior to assessing costs. Nader, 905 A.2d at 455; Rogers, 942 A.2d 915, 930-31 (Pa. Super. Ct. 2008). Plaintiffs m a k e no allegation a court will access costs against a candidate who acts in good faith.14 S e e Pa. Prison Soc'y v. Cortes, 508 F.3d 156, 167 (3d Cir. 2007) (plaintiff failed to e s ta b lis h injury-in-fact where he did not establish a sufficient likelihood he would be p e rs o n a lly injured by the amendments).
T o establish traceability "[t]he plaintiff must establish that the defendant's c h a lle n g e d actions, and not the actions of some third party, caused the plaintiff's injury." Toll Bros., Inc., 555 F.3d at 142 (citing Lujan, 504 U.S. at 560). Unlike the injury-in-fact p ro n g , which "focuses on whether the plaintiff suffered harm, . . . the traceability prong f o c u s e s on who inflicted that harm." Id. (emphasis deleted). An indirect causal
Plaintiffs claim the Commonwealth Court cited Romanelli's failure to ensure nine people were present on his behalf for every day of the proceedings and his "disingenuousness" as justification for the sanction. Amended Complaint at ¶ 36. The court opinion, however, found the candidate failed to comply with court orders, and his "cumulative disingenuousness in these proceedings ha[d] crossed the line into bad faith." In re Nomination Papers of Rogers, 914 A.2d 457, 468-69 (Pa. Commw. Ct. 2006). 11
relationship will suffice if "there is `a fairly traceable connection between the alleged in ju ry in fact and the alleged conduct of the defendant.'" Id. (quoting Vt. Agency of N a tu ra l Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000)). E v e n if plaintiffs had alleged a sufficient injury-in-fact, they have failed to show th e injury can be traced to an action of the defendants. Neither the judicial nor executive d e f e n d a n ts can initiate a suit challenging a candidate's nomination paper. See 25 Pa. C o n s . Stat. Ann. §2937. Only private individuals may challenge a non-major party c a n d id a te 's nomination paper. If the paper is dismissed, a state court could require the c a n d id a te to pay costs "as [the court] shall deem just." 25 Pa. Cons. Stat. Ann. § 2937; N a d e r, 905 A.2d at 458. Plaintiffs have not alleged the defendants have the power to c h a lle n g e a nomination paper and have not alleged sufficient facts to establish defendants h a v e threatened, or could threaten, plaintiffs with an assessment of costs absent a c h a lle n g e to a nomination paper. See Amended Complaint. Moreover, neither the judicial nor executive defendants have the power to change th e law. The Justices and Judges adjudicate claims brought by private parties who c h a lle n g e the nomination paper under the statute, and Mr. Johns and Mr. Krimmel merely p ro c e s s the court's orders. The Executive Defendants simply administer the process c re a te d by statute.
R e d re s s a b ility "is `closely related' to traceability, and the two prongs often o v e rla p ." Toll Bros., Inc., 555 F.3d at 142 (quoting Pub. Interest Research Group of N.J., In c . v. Powell Duffryn Terminal, Inc., 913 F.2d 64, 73 (3d Cir. 1990)). "[T]raceability lo o k s backward (did the defendants cause the harm?), redressability looks forward (will a f a v o ra b le decision alleviate the harm?)." Id. The redressability prong "requires a s h o w in g that `the injury will be redressed by a favorable decision.'" Id. (quoting Friends o f the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). Redressability does not "demand . . . mathematical certainty. It is sufficient for the p la in tif f to establish a `substantial likelihood that the requested relief will remedy the a lle g e d injury in fact.'" Id. (quoting Vt. Agency of Natural Res., 529 U.S. at, 771). A decision would not redress any harm and would not result in "specific relief" to a n yo n e . Plaintiffs maintain an order from this court would prevent the courts from c o n tin u in g to unconstitutionally assess costs. As the case is presented, however, any o p in io n issued would be an advisory opinion, which would not redress any harm. See N .J . Peace Action v. Obama, 2009 WL 1416041, at *5 (opinion would be "an advisory o p in io n not sufficient to redress any of Plaintiffs' claimed injuries). Courts are "without power to give advisory opinions." Rhone-Poulenc-Surfactants a n d Specialties, L.P. v. C.I.R., 249 F.3d 175, 182 (3d Cir. 2001) (quoting Alabama State F e d 'n of Labor v. McAdory, 325 U.S. 450, 461 (1945)). It is the court's "considered
practice not to decide abstract, hypothetical or contingent questions." Id. (quoting A la b a m a State Fed'n of Labor, 325 U.S. at 461. Any opinion addressing plaintiffs claims w o u ld be advisory. It would be based on a hypothetical set of facts, without sufficient in f o rm a tio n to support findings. See PSA, LLC v. Gonzales, 271 Fed. Appx. 218, 220 (3 d Cir. 2008) (actions cannot result in an "opinion advising what the law would be on a h yp o th e tic a l set of facts" (quoting Step-Saver Data Sys., Inc., 912 F.2d at 649). The court w o u ld have to assume a nomination paper would be challenged, the nomination paper w o u ld be held invalid, the challenger would seek costs, and the costs would be assessed. Therefore, plaintiffs lack standing to request injunctive relief.
S ta n d in g to Seek Declaratory Relief
" A plaintiff seeking a declaratory judgment must possess constitutional standing b u t need not have suffered `the full harm expected.'" Khodara Envtl., Inc., 376 F.3d at 1 9 3 (quoting The St. Thomas-St. John Hotel & Tourism Ass'n v. Virgin Islands, 218 F.3d 2 3 2 , 240 (3d Cir. 2000)). A plaintiff seeking a declaratory judgment "has Article III s ta n d in g if `there is substantial controversy, between parties having adverse legal in te re s ts , of sufficient immediacy and reality to warrant the issuance of a declaratory ju d g m e n t.'" Id. (quoting The St. Thomas-St. John Hotel & Tourism Ass'n, 218 F.3d at 2 4 0 ). P la in tif f s fail to establish the parties have adverse interests or a substantial
controversy of sufficient immediacy and reality to warrant declaratory relief. Neither the ju d ic ia l nor executive defendants can initiate a suit challenging a non-major party p e titio n , see 25 Pa. Cons. Stat. Ann. §2937, and neither can change the law. In addition, p la in tif f s fail to establish a sufficient danger costs will be unconstitutionally assessed a g a in s t a non-major party candidate. See supra Part III.A. A c c o rd in g ly, plaintiffs lack standing to seek declaratory relief.
R ip e n e s s of the Injunctive Relief Request
" V a rio u s considerations `underpin the ripeness doctrine,' including whether the p a rtie s are in a `sufficiently adversarial posture to be able to present their positions v ig o ro u s ly,' whether the facts of the case are `sufficiently developed to provide the court w ith enough information on which to decide the matter conclusively,' and whether a party is `genuinely aggrieved so as to avoid expenditure of judicial resources on matters which h a v e caused harm to no one.'" Khodara Envtl., Inc., 376 F.3d at 196 (quoting Peachlum, 3 3 3 F.3d at 433-34). To determine whether a case is ripe, courts examine: "(1) `the f itn e s s of the issues for judicial decision,' and (2) `the hardship to the parties of w ith h o ld in g court consideration.'" Id. (quoting Peachlum, 333 F.3d at 433-34). "The p rin c ip le consideration is whether the record is factually adequate to enable the court to m a k e the necessary legal determinations. The more that the question presented is purely o n e of law, and the less that additional facts will aid the court in its inquiry, the more
likely the issue is to be ripe." Artway v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1 2 4 9 (3d Cir. 1996).
F itn e s s
" T h e fitness question . . . requires an assessment of whether the issues presented a re `purely legal,' whether the agency action is final . . . , and whether `further factual d e v e lo p m e n t would `significantly advance our ability to deal with the legal issues p re s e n te d .'" Univ. of Med. and Dentistry of N.J. v. Corrigan, 347 F.3d 57, 68 (3d Cir. 2 0 0 3 ) (quoting Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 812 (2 0 0 3 )). S im p ly stated, there is no case here. No factual development has occurred and no c o n c re te factual dispute exists. There is no pending dispute and no challenge to a n o m in a tio n paper. Any opinion would be advisory, based on hypothetical facts and s p e c u la tio n . See Rhone-Poulenc-Surfactants and Specialties, L.P., 249 F.3d at 182. Without factual development, I am unable to address the legal issues presented. See Nat'l P a rk Hospitality Ass'n, 538 U.S. at 812 (noting, although the question presented was p u re ly legal, and constituted "final agency action," "further factual development would `s ig n if ic a n tly advance [the court's] ability to deal with the legal issues presented'").
H a rd s h ip
" T h e second prong of the ripeness inquiry is whether deferral of judicial review w ill create an immediate and significant hardship for the parties and, if so, whether this h a rd s h ip outweighs the unfitness for review." Turnage v. U.S. Parol Comm'n, 157 Fed. A p p x . 507, 508 (3d Cir. 2005) (citing Felmeister, 856 F.2d at 537-38). W ith h o ld in g judgment will not present a hardship. If a private party challenges the n o m in a tio n paper of a non-major party candidate and requests costs, the candidate can c h a lle n g e the constitutionality of such costs in state court. Plaintiffs' argument that future c a n d id a te s' rights are chilled ignores that the prior assessments included a finding of bad f a ith . Plaintiffs fail to establish a candidate who acts in good faith will be assessed costs. See supra Part III.A.1. Their allegation candidates have not submitted nomination papers b e c a u s e they fear an assessment of costs is not sufficient to establish hardship. T h e "controversy," therefore, is not ripe for federal review.
R ip e n e s s for the Declaratory Relief Request
B e c a u s e declaratory judgments are usually sought before "a completed injury has o c c u rre d ," courts apply a "somewhat `refined' test" to determine ripeness. Khodara E n v tl., Inc., 376 F.3d at 196 (quoting Pic-A-State Pa. Inc. v. Reno, 76 F.3d 1294, 1298 (3 d Cir. 1996)). "Thus, when `determining whether to engage in pre-enforcement review o f a statute in a declaratory judgment action,' [courts] look to `(1) the adversity of the
parties' interests, (2) the conclusiveness of the judgment, and (3) the utility of the ju d g m e n t.'" Id. (quoting Pic-A-State Pa., Inc., 76 F.3d at 1298).
A d v e rs ity
F o r adversity to exist "the defendant must be so situated that the parties have a d v e rs e legal interests." Presbytery of New Jersey, 40 F.3d at 1463 (quoting Step-Saver D a ta Sys., Inc., 912 F.2d at 648). "[T]here must be a substantial threat of real harm and . . . the threat `must remain real and immediate throughout the course of the litigation.'" Id. (q u o tin g Salvation Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 192 (3d Cir.1990)). P la in tif f s have not established adversity. As discussed above, plaintiffs fail to e s ta b lis h the parties have adverse interests. See supra Part III.A.2. Neither the judicial n o r executive defendants can initiate a suit challenging a candidate's nomination paper, s e e 25 Pa. Cons. Stat. Ann. §2937, and the judicial and executive defendants do not have th e power to change the law. In addition, plaintiffs fail to establish there is a "substantial threat of real harm." See supra Part III.A.1. Although prior candidates who acted in bad faith were assessed c o s ts , plaintiffs have not established the plaintiff parties' future candidates will be a s s e s se d costs, especially if the candidates act in good faith.
" C o n c lu s iv e n e s s is a short-hand term for whether a declaratory judgment d e f in itiv e ly would decide the parties' rights." PSA, LLC, 271 Fed. Appx. at 220 (quoting N E Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 344 (3d Cir. 2001)). "All actions must be `based on a real and substantial controversy admitting of specific re lie f through a decree of a conclusive character, as distinguished from an opinion a d v is in g what the law would be on a hypothetical state of facts.'" Id. (quoting S te p -S a v e r, 912 F.2d at 649). Several events must occur before any of the plaintiffs' rights are affected. A nonm a jo r party candidate would have to attain the necessary signatures on a nomination p a p e r. Then, someone (notably, none of the defendants) would have to file a challenge to th e nomination paper. Finally, a successful challenge would need to cause the P e n n sylv a n ia courts to charge the candidate fees and costs. Along the way, the P e n n sylv a n ia court would have to rule that the candidate corrupted the process by s u b m ittin g bogus signatures. None of this has happened. None of this will happen im m in e n tly. The parties really have no context for their assertion of rights. A n y opinion issued would be an advisory opinion, at best. See Part III.A.3; R h o n e -P o u le n c -S u rf a c ta n ts and Specialties, L.P., 249 F.3d at 182 (courts are "without p o w e r to give" advisory opinions) (quoting Alabama State Federation of Labor, 325 U.S. a t 461)). There is no present controversy, no pending challenge to a nomination paper,
and the opinion would not provide specific relief to anyone. Therefore, plaintiffs fail to e s ta b lis h conclusiveness.
P ra c tic a l Utility
" P ra c tic a l utility goes to `whether the parties' plans of actions are likely to be a f f e c te d by a declaratory judgment,'" NE Hub Partners, L.P., 239 F.3d at 344 (quoting S te p -S a v e r, 912 F.2d at 649 n. 9), and considers the hardship to the parties of withholding ju d g m e n t, id. at 344-45. A declaratory judgment "must be of some practical help to the p a rtie s . The Declaratory Judgments Act was enacted to clarify legal relationships so that p la in tif f s (and possibly defendants) could make responsible decisions about the future." Id. (quoting Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1155 (3d Cir. 1995)). P la in tif f s fail to establish the practical utility factor. Withholding judgment will n o t present a hardship. See supra Part III.C.2. Any opinion issued would be no more th a n a general discussion of whether the provisions are constitutional and it would be of little help to Pennsylvania courts or executives attempting to comply with an order I m ig h t issue. That any such opinion would not be grounded in facts arising from a dispute b e tw e e n parties renders the "practical utility" even more remote. A c c o rd in g ly, the controversy is not ripe for declaratory relief.
T h e State Court Opinions A lth o u g h the plaintiffs argue they are not challenging the state court decisions in
N a d e r and Rogers, it is difficult to distinguish between the current case and a challenge to th e Nader and Rogers opinions, which allowed an assessment of costs against non-major p a rty candidates. Nader and Rogers addressed the constitutionality of § 2937 based on c o s ts assessed against prior candidates. See Nader, 905 A.2d at 465; Rogers, 942 A.2d at 9 2 9 . Plaintiffs request I find § 2937 unconstitutional, arguing the statute, and the court's p rio r assessment of costs, chills non-major party candidates' First Amendment rights. Although the courts in Nader and Rogers did not specifically address whether the statute w o u ld chill participation, they did find the provision allowing the assessment of costs c o n s titu tio n a l. See Nader, 905 A.2d at 459; Rogers, 942 A.2d at 929. The current case is, in essence, an improper challenge to these state court determinations. See Guarino v. L a rs e n , 11 F.3d 1151, 1156-57 (3d Cir. 1993) (federal courts should presume complete s ta te court proceedings correctly resolved federal issues presented); see also District of C o lu m b ia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (federal district court is without authority to review final determinations of state courts). If a private party challenges the nomination paper of a non-major party candidate a n d requests costs, the candidate can challenge the constitutionality of such costs in state c o u rts. This would provide the state court with a specific set of facts to address the c o n s titu tio n a l issues. In addition, it would provide the state court an opportunity to
interpret the state statute, and such interpretation may alter the question presented. See R e n n e v. Geary, 501 U.S 312, 323 (1991) (quoting Babbitt v. Farm Workers, 442 U.S. 2 8 9 , 306 (1979)) (noting granting the state court an opportunity to interpret a state statute c a n "materially alter the question to be decided.").1 5 F o r the reasons discussed above, I will dismiss plaintiff's complaint for failure to p re s e n t a case or controversy, as required by Article III of the Constitution. A n appropriate order follows.
Plaintiffs allege the statute is unconstitutional, in part, because there are no standards to determine when costs will be assessed. Allowing a state court to address whether the provision violates due process, or is otherwise unconstitutional, will provide the state court an opportunity to create standards. 22
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