Pennsylvania Family Institute, Inc. v. Black

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Precedential or Non-Precedential: Precedential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