Common Cause PA v. Comm PA

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

2-26-2009

Common Cause PA v. Comm PA

Precedential or Non-Precedential: Precedential

Docket No. 06-3391

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PR E C E D E N T IA L

IN TH E UN ITED STATES COUR T OF APPEALS

THIRD CIRCUIT

___________

No. 06-3391

___________

C OM M O N CA USE OF PENNSYLVANIA; THE

LEA G U E OF W OM EN VOTERS OF

PENNSYLVANIA; REPRESENTATIVE GREGORY

V ITA LI; TIM POTTS; CARL H. SILVERMAN;

W ILLIAM R. KOCH;

H. W ILLIA M M cIN TYRE,

Appellants

v.

COM M ONW EALTH OF PENNSYLVANIA; EDWA RD

G. RENDELL, Governor; ROBERT P. CASEY III;

D A V ID G . A RG ALL; DAVID J. BRIGHTBILL; H.

W ILLIAM DeW EESE; ROBERT C. JUBELIRER;

RO BERT J. M ELLOW ; JOH N M . PERZEL; SAM UEL

H. SM ITH ; M ICH AEL V EO N; RA LPH J. CA PPY

_______________

On Appeal from the U nited States D istrict Court

for the M iddle D istrict of Pennsylvania

(D.C. No. 1:05-cv-02036)

District Judge: Honorable Yvette Kane

Before: FLAUM , EBEL and LEVAL, Circuit Judges. *

(Opinion filed: February 26, 2009)

Eric B. Schnurer, Esq. (Argued)

1690 East Strasburg Road

W est Chester, PA 19380-0000

and

Paul A. Rossi, Esq.

316 Hill Street

M ountville, PA 17554-0000

Attorneys for A ppellants

M ark A. Aronchick, Esq.

W endy Beetlestone, Esq.

*

Honorable Joel M . Flaum, United States Circuit

Judge for the Seventh Circuit Court of Appeals, Honorable

David M . Ebel, United States C ircuit Judge for the Tenth

Circuit Court of Appeals, and Honorable Pierre N. Leval,

United States Circuit Judge for the Second Circuit Court

of Appeals, sitting by designation.

2

Hangley Aronchick Segal & Pudlin

One Logan Square

18th & Cherry Streets, 27th Floor

Philadelphia, PA 19103-0000

Attorneys for A ppellee Edward G. Rendell

C. Clark Hodgson, Jr., Esq.

Jonathon F. Bloom, Esq.

Thomas W . Dymek, Esq.

Stradley, Ronon, Stevens & Young

2600 One Commerce Square

2005 M arket Street

Philadelphia, PA 19103-0000

A ttorneys for Appellees David G. Argall, H.

William DeW eese, John M . Perzel, Samuel H.

Smith, and M ichael R. Veon

John P. Krill, Jr., Esq. (Argued)

Linda J. Shorey, Esq.

Amy L. Groff, Esq.

Kirkpatrick & Lockhart Preston Gates Ellis

17 North Second Street

18th Floor, M arket Square Plaza

Harrisburg, PA 17101-0000

Attorneys for Appellees David Brightbill and

Robert C. Jubelirer

James F. Tierney IV , Esq.

Patrick Heffron, Esq.

Eugene F. Hickey II, Esq.

Cipriani & W erner

3

409 Lackawanna Avenue

Suite 210

Scranton, PA 18503-0000

A ttorney for Appellee Robert J. M ellow

Arlin M . Adams, Esq. (Argued)

Paul H. Titus, Esq.

Bruce P. M erenstein, Esq.

Schnader Harrison Segal & Lewis

1600 M arket Street

Suite 3600

Philadelphia, PA 19103-0000

and

Howard M . Holmes

Chief Legal Counsel

Administrative Office of Pennsylvania Courts,

1515 M arket Street, Suite 1414

Philadelphia, PA 19102-0000

Attorneys for Appellee Ralph J. Cappy

OPINION O F THE COURT

_______________________________

EBEL, Circuit Judge.

This appeal stems from litigation challenging a

short-lived Pennsylvania statute (“Act 44”) that increased

salaries for state legislators, executive officials and state

4

judges. Plaintiffs are Pennsylvania citizens, a state

representative and two organizations— Common Cause and

the League of W omen Voters. They sued the

Commonwealth of Pennsylvania, its governor and

treasurer, the General Assembly’s leadership, and the

Chief Justice of the Pennsylvania Supreme Court, in their

individual and official capacities. Plaintiffs allege that,

for the past ten years, members of the Pennsylvania

Supreme Court have traded judicial decisions favorable to

the Pennsylvania General Assembly in return for the

legislature’s funding the state judiciary. According to

Plaintiffs, this arrangem ent culminated in the General

Assembly’s enactment of Act 44 in a sleight-of-hand

manner during the dead of night. In this litigation,

Plaintiffs primarily challenge the manner in which Act 44

was enacted, seeking both declaratory and injunctive

relief. Because Plaintiffs allege only general grievances

shared by all citizens of Pennsylvania, however, we

conclude that they lack standing to pursue the claim s they

assert. Therefore, having jurisdiction to consider this

appeal under 28 U.S.C. § 1291, we AFFIRM the decision

of the district court to dismiss Plaintiffs’ action in its

entirety.

I. B A C K G R O U N D

Because the district court dismissed Plaintiffs’

claim s pursuant to Fed. R. Civ. P. 12(b)(1) and (6), see

Common Cause of Pa. v. Pennsylvania, 447 F. Supp. 2d

415, 419 n.1, 422 (M .D. Pa. 2006), we must accept as true

all well-pled allegations and construe the complaint in the

light most favorable to the plaintiffs, see Lewis v. Atlas

5

Van Lines, Inc., 542 F.3d 403, 405 (3d Cir. 2008) (Rule

12(b)(6)); Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d

181, 188 (3d Cir. 2006) (Rule 12(b)(1) and (6)).

A. Factual allegations

In their second amended complaint, Plaintiffs

alleged the following:

1. E vents leading up to the G eneral

A ssem bly’s enactm ent of A ct 44

The Pennsylvania C onstitution provides that

[t]he judicial power of the Commonwealth

shall be vested in a unified judicial system

consisting of the Supreme Court, the Superior

Court, the Comm onw ealth Court, courts of

common pleas, community courts, municipal

and traffic courts in the City of Philadelphia,

such other courts as may be provided by law

and justices of the peace. All courts and

justices of the peace and their jurisdiction

shall be in this unified judicial system.

Pa. Const., art. V, § 1. Based upon this constitutional

provision, Allegheny C ounty, in 1985, sued the

Commonw ealth, arguing that, contrary to the relevant

Pennsylvania statutes enacted by the General Assembly,

the Pennsylvania Constitution required the

Commonwealth, rather than the County, to fund the

County’s Court of Common Pleas. See County of

Allegheny v. Commonwealth, 534 A.2d 760, 761, 763 (Pa.

1987). The Pennsylvania Supreme Court agreed, holding

6

“that the statutory scheme for county funding of the

judicial system is in conflict w ith the intent clearly

expressed in the constitution that the judicial system be

unified.” Id. at 765. N evertheless, the Pennsylvania

Supreme Court provided that,

because this order entails that present

statutory funding for the judicial system is

now void as offending the constitutional

mandate for a unified system, we stay our

judgment to afford the General A ssembly an

opportunity to enact appropriate funding

legislation consistent with this holding. Until

this is done, the prior system of county

funding shall remain in place.

Id. (footnotes omitted).

Notwithstanding this mandate from the Pennsylvania

Supreme Court, however, the General Assembly declined

to act to fund the courts. See Pa. State Ass’n of County

C om m ’rs v. Commonwealth, 681 A.2d 699, 700-01 (Pa.

1996). After nine years of inaction, the Pennsylvania

Association of County Commissioners sought mandamus

relief from the Pennsylvania Supreme C ourt, asking the

Court to direct the G eneral Assembly to fund the state’s

unified court system. See id. The Pennsylvania Supreme

Court granted a writ of mandamus: “Pursuant to this w rit,

jurisdiction is retained and by further order a master w ill

be appointed to recommend to this court a schema which

will form the basis for the specific implementation to be

ordered.” Id. at 703.

7

At about this same time, the General Assembly,

contrary to the Pennsylvania Constitution, was generally

enacting legislation “in ways that precluded involvement

in the legislative process by both the public and the vast

majority of legislators.” App. at 43. Common C ause, as

well as other parties, sued Pennsylvania in state court,

challenging the validity of these various legislative

enactments.

In 1998 and 1999, the General Assembly negotiated

with the Pennsylvania courts over the Commonwealth’s

funding the court system. Those negotiations resulted in

the General Assembly enacting legislation to fund the

Commonwealth’s unified judicial system in return for the

P en nsylvan ia S up rem e C ourt’s judicial de cisions

upholding the legislation being challenged in state court.

2. E nactm ent of A ct 44

In 2005, the Chief Justice of the Pennsylvania

Supreme Court, “in secret,” negotiated with state

legislators for the enactment of a bill increasing the

salaries of the Commonwealth’s judges and justices.

Eventually, this pay hike was included in legislation that

also increased the salaries for legislators and high-level

executive branch employees.

House Bill 1521, the bill that would become Act 44,

was initially “a 24-line bill” entitled “Relating to

Compensation for Executive Branch Officials,” which

prohibited “any member of the executive branch or any

board from receiving compensation greater than that paid

to the Governor.” App. at 49. The House passed House

8

Bill 1521. The Senate then amended House Bill 1521,

changing it “into a 27-line bill restricting its application to

officials elected or appointed to an executive branch

position after November 1, 2006.” Id. at 50. The Senate

passed the bill as amended. The House, however, rejected

the revised bill and so House Bill 1521 was referred to a

conference committee consisting of three House and three

Senate members. The members of this conference

committee, named as defendants in this litigation, included

most of the General A ssembly’s leadership.

“At approximately 2:00 a.m . on July 7, 2005,” the

conference committee amended House Bill 1521, changing

it from a twenty-seven-line bill about compensation for

executive officials into “a 22 page bill, providing for

massive increases of up to 54% in the salary of every

justice and judge of the Pennsylvania Unified Judicial

System, every member of the General Assembly, and

senior members of the executive branch including the

Governor and m em bers of his Cabinet.” Id. at 51. The

revised bill also mandated “that provisions of the A ct are

nonseverable and if any provision of the Act or its

application to any person or circumstance is held invalid,

the remaining provisions or applications of the A ct are

void.” Id. at 65. According to Plaintiffs, by including this

non-severability provisio n, “th e C om m onw ealth

government intentionally created a financial conflict for

state court judges to ensure they would not deviate from

the negotiated goal of upholding salary increases for all

three branches of state government.” Id. at 66.

This revised bill was presented to the Senate and

9

House within “minutes” after being reported out of the

conference committee “under a rule prohibiting any

amendment.” Id. at 52. Both chambers passed the bill.

“A few hours later, the Governor signed” the bill “into

law,” and it immediately took effect. 1 Id. at 53, 66, 317.

3. R eaction to A ct 44

“T here was a negative public response to [Act 44],

focusing particularly upon its timing and method of

passage . . . .” Stilp, 905 A.2d at 925. Several state-court

actions challenged Act 44’s validity. See id. at 926-28.

Four months after its enactment, the G eneral Assembly, on

November 16, 2005, repealed Act 44 “in its entirety” and

reinstated the previous pay scheme (“Act 72”). 2 App. at

1

The Pennsylvania Supreme Court later held this

legislative process did not violate the Pennsylvania

C onstitution. See Stilp v. Commonwealth, 905 A.2d 918,

951-59 (Pa. 2006).

2

A ct 72 w as intended to decrease all state officials’

salaries to pre-Act 44 levels. Because Act 72 repealed Act

44, the district court in this litigation held that Plaintiffs’

claim s seeking a declaration that A c t 44 w a s

unconstitutional were now moot. See Common Cause, 447

F. Supp. 2d at 424.

After the district court dismissed Plaintiffs’ case in

its entirety, however, the Pennsylvania Supreme Court held

(continued...)

10

2

(...continued)

that Act 72 was itself unconstitutional insofar as it

decreased judges’ salaries. See Stilp, 905 A.2d at 939,

949. Specifically, the court held that Act 72 violated the

Pennsylvania Constitution’s provision stating that

“Justices, judges and justices of the peace . . . shall be

compensated by the Commonwealth as provided by law.

Their compensation shall not be diminished during their

terms of office, unless by law applying generally to all

salaried officers of the Commonwealth.” Id. at 929-30

(citing Pa. Const. art. V, § 16(a)). The Pennsylvania

Supreme Court went on to conclude, however, “our finding

of this unconstitutional effect does not taint the remainder

of A ct 72. Thus, we find that the remainder of A ct 72’s

repeal of Act 44 is valid.” Id. at 949.

Because part of Act 44, the portion increasing

judges’ salaries, thus remained in effect, the Pennsylvania

Supreme Court went ahead and addressed the validity of

that statute. The court held that the manner in which the

General Assem bly enacted Act 44 did not violate

Pennsylvania’s constitution. See id. at 949-59. But Act

44’s provision of unvouchered expenses to state

legislators— a thinly veiled attempt to permit current

legislators to enjoy the Act’s pay increase, contrary to state

law— was invalid. See id. at 960-70.

The state supreme court then held that,

(continued...)

11

2

(...continued)

notwithstanding Act 44’s express non-severability clause,

the Act actually left it to “the Judiciary to make the

ultimate determination of severability.” Id. at 973. The

court then severed the invalid provision of Act 44— the

provision of “unvouchered expense[s]” for

legislators— from the “otherwise-constitutionally valid

remainder of Act 44.” Id. at 980-81.

The ultimate result of the Pennsylvania Supreme

Court’s analysis was “that Act 44’s provisions . . . which

relate solely to the formula to determine compensation

paid to the Judiciary, remain[ed] in force.” Id. at 981.

The court further noted,

this Court did not draft or play any role in the

enactment of the legislation that became Act

44. That legislation, passed by the General

A ssembly and duly signed by the Governor,

set the compensation judges were to receive,

and in July of 2005 the Judiciary began

receiving that compensation, only to have the

compensation unconstitutionally reduced by

Act 72.

The Constitution of Pennsylvania

m andates that the Judiciary shall be

compensated as provided by law. To

(continued...)

12

2

(...continued)

effectuate that constitutional command, w e

order that the Treasurer of the

Commonwealth: (1) shall forthwith calculate

judicial compensation in accordance with Act

44, as explained in this Opinion; and

(2) shall, upon receipt of vouchers prepared

by the Administrative Office of Pennsylvania

Courts, reimburse members of the Judiciary

for the unconstitutional diminution in

compensation effected by Act 72.

Id.

The Pennsylvania Supreme Court’s decision in Stilp

was entered September 14, 2006. See id. at 918. Ten

months later, on July 13, 2007, the Pennsylvania

legislature enacted a third statute, Act 30, which replaced

the reinstated portions of Act 44 regarding judges’

salaries. Apparently in order to avoid the Pennsylvania

constitution’s prohibition against the legislature reducing

the salaries of sitting judges, Act 30 gave the judges a one

dollar raise from their salaries as they existed on that date,

July 14, 2007, and enacted a new formula for calculating

future cost-of-living raises for state court judges. The

parties appear to agree that Act 30 repealed the remaining

portion of Act 44 reinstated by the Pennsylvania Supreme

Court.

(continued...)

13

53; see Stilp, 905 A.2d at 924-25 & 924 n. 3.

B. Procedural posture of this litigation

Plaintiffs initiated this federal litigation on October

6, 2005, a month before the Pennsylvania legislature

repealed A ct 44. Plaintiffs amended their complaint once

before that repeal, and a second time after the General

2

(...continued)

The net result appears to be that, despite the now

complete repeal of A ct 44, some Pennsylvania judges’

salaries remain higher than they were prior to the General

Assembly’s enactment of A ct 44. It is on this basis that

Plaintiffs argue that, even though Act 44 has been repealed

in its entirety, it made lasting effects on state judges’

salaries such that Plaintiffs’ claims are not moot. Because

we decide this appeal on the basis of standing, we need not

address whether Plaintiffs’ claims are moot. See Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U .S. 167, 180, 189 (2000) (addressing standing before

mootness); County of Riverside v. M cLaughlin, 500 U.S.

44, 51-52 (1991) (same); United Artists Theatre Co. v.

W alton, 315 F.3d 217, 225-26 (3d Cir. 2003) (same). See

generally Arizonans for Official English v. Arizona, 520

U.S. 43, 68 n.22 (1997) (noting that “[m]ootness has been

described as the doctrine of standing set in a time frame:

The requisite personal interest that must exist at the

comm encement of the litigation (standing) must continue

throughout its existence (mootness)”) (quotations omitted).

14

Assem bly repealed Act 44. In their second amended

complaint, Plaintiffs alleged five federal and eight

state-law claims, and sought both injunctive and

declaratory relief.

Defendants moved to dismiss all of Plaintiffs’

claims, under Fed. R. C iv. P. 12(b)(1) and (6), for lack of

subject-matter jurisdiction and for failure to state a claim

upon which relief can be granted. 3 In a very thorough

decision, the district court granted Defendants’ motions to

dismiss Plaintiffs’ federal claims. See Common Cause,

447 F. Supp. 2d at 419, 431 n.14. In light of that

determ ination, the court held that it did not need to

consider Plaintiffs’ pendent state-law claims and,

therefore, dismissed Plaintiffs’ complaint “in its entirety.”

Id. at 431 n.14, 438. Plaintiffs appeal the district court’s

decision dismissing their federal claims.

II. ST A N D A R D O F R E V IE W

The district court held, among other things, that

Plaintiffs lacked standing to assert the federal claims they

are pursuing in this litigation. See id. at 424-30. “Absent

Article III standing, a federal court does not have subject

matter jurisdiction to address a plaintiff’s claims, and they

3

Before the district court, Plaintiffs conceded that

the Commonwealth should be dismissed as a party. The

district court also dismissed Defendant Treasurer Casey.

Plaintiffs do not challenge either of these dismissals on

appeal.

15

must be dismissed.” Taliaferro, 458 F.3d at 188. This

court reviews “dismissals for lack of standing de novo.”

Graden v. C onexant Sys. Inc., 496 F.3d 291, 294 n.2 (3d

Cir. 2007), cert. denied, 128 S. Ct. 1473 (2008); see also

Goode v. City of Philadelphia, 539 F.3d 311, 316 (3d C ir.

2008).

In an appeal from a grant of a motion

to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil

Procedure 12(b)(1), we review only whether

the allegations on the face of the complaint,

taken as true, allege facts sufficient to invoke

the jurisdiction of the district court.

Challenges to subject m atter jurisdiction

under Rule 12(b)(1) may be facial or factual.

Facial attacks, like this one, contest the

sufficiency of the pleadings, and the trial

court must accept the complaint’s allegations

as true.

Taliaferro, 458 F.3d at 188 (citations, quotations omitted).

Further, “[a]t the pleading stage, general factual

allegations of injury resulting from the defendant[s’]

conduct may suffice, for on a motion to dismiss we

presume that general allegations embrace those specific

facts that are necessary to support the claim.” Lujan v.

Defenders of W ildlife, 504 U.S. 555, 561 (1992)

(quotation, alterations omitted); see also Pa. Prison Soc’y

v. Cortes, 508 F.3d 156, 161 (3d Cir. 2007).

Plaintiffs, as the parties invoking the federal courts’

16

jurisdiction, bear the burden of establishing their standing.

See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342

(2006).

III. ST A N D IN G

A. G eneral standing principles

Standing implicates both constitutional requirements

and prudential concerns. See Kowalski v. Tesmer, 543

U.S. 125, 128 (2004).

In essence the question of standing is whether

the litigant is entitled to have the court decide

the merits of the dispute or of particular

issues. The standing requirement is born

partly of an idea, which is more than an

intuition but less than a rigorous and explicit

theory, about the constitutional and prudential

limits to the powers of an unelected,

unrepresentative judiciary in our kind of

government.

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11

(2004) (quotations, citations omitted). A federal court

“[a]lways . . . must balance the heavy obligation to

exercise jurisdiction against the deeply rooted commitment

not to pass on questions of constitutionality unless

adjudication of the constitutional issue is necessary.”

Id. (quotations, citations omitted). Thus, Article III’s

standing requirement “is every bit as important in its

circum scription of the judicial power of the United States

as in its granting of that power.” Valley Forge Christian

17

Coll. v. Ams. United for S eparation of Church & State,

Inc., 454 U.S. 464, 476 (1982). Invoking the power of the

federal judiciary requires m ore than important issues and

able litigants. See id. at 489-90.

1. C onstitutional standing req uirem ents

“Article III, § 2, of the Constitution restricts the

federal ‘judicial Pow er’ to the resolution of ‘Cases’ and

‘Controversies.’ That case-or controversy requirement is

satisfied only where a plaintiff has standing.” Sprint

Commc’ns C o. v. APCC Servs., Inc., 128 S. Ct. 2531,

2535 (2008); see also Valley Forge Christian Coll., 454

U.S. at 471.

[I]n order to have Article III standing, a

plaintiff must adequately establish: (1) an

injury in fact (i.e., a “concrete and

particulariz ed” in vasion of a “legally

protected interest”); (2) causation (i.e., a

“fairly traceable” connection between the

alleged injury in fact and the alleged conduct

of the defendant); and (3) redressability (i.e.,

it is “likely” and not “merely speculative”

that the plaintiff’s injury will be remedied by

the relief plaintiff seeks in bringing suit).

Sprint Commc’ns Co., 128 S. Ct. at 2535 (quoting Lujan,

504 U.S. at 560-61) (further quotation, alterations

omitted); see also Cortes, 508 F.3d at 161. “In this manner

does Art. III limit the federal judicial power ‘to those

disputes w hich confine federal courts to a role consistent

w ith a system of separated powers and which are

18

traditionally thought to be capable of resolution through

the judicial process.’” Valley Forge Christian Coll., 454

U.S. at 472 (quoting Flast v. Cohen, 392 U.S. 83, 97

(1968)). “Determining that a m atter before the federal

courts is a proper case or controversy under A rticle III

therefore assumes particular importance in ensuring that

the Federal Judiciary respects the proper— and properly

limited— role of the courts in a democratic society.”

DaimlerChrysler Corp., 547 U.S. at 341 (quotation

omitted). “[N]o principle is more fundamental to the

judiciary’s proper role in our system of government than

the constitutional limitation of federal-court jurisdiction to

actual cases or controversies.” Id. (quotations omitted).

“If a dispute is not a proper case or controversy, the courts

have no business deciding it . . . .” Id.

Of particular relevance to this case, a plaintiff must

allege an actual, concrete injury. See Sprint Comm c’ns

Co., 128 S. Ct. at 2535; Lujan, 504 U.S. at 560. It is not

enough to assert a generalized, abstract grievance shared

by a large number of similarly situated people. See Valley

Forge Christian Coll., 454 U.S. at 482-83 (citing cases).

W e go on to discuss prudential standing.

2. Prudential standing requirem ents

In contrast to constitutional standing, prudential

standing “embodies judicially self-imposed limits on the

exercise of federal jurisdiction.” Elk G rove Unified Sch.

Dist., 542 U.S. at 11 (quotation omitted). Although the

Supreme Court has

not exhaustively defined the prudential

19

dimensions of the standing doctrine, [the

Court has] explained that prudential standing

encompasses the general prohibition on a

litigant’s raising another person’s legal

rights, the rule barring adjudication of

generalized grievances more appropriately

addressed in the representative branches, and

the requirement that a plaintiff’s complaint

fall within the zone of interests protected by

the law invoked.

Id. at 12 (quotation omitted); see also Valley Forge

Christian Coll., 454 U.S. at 474-75; Twp. of Piscataway v.

Duke Energy, 488 F.3d 203, 209 (3d Cir. 2007).

W ithout such limitations–closely related to

Art. III concerns but essentially matters of

judicial self-governance–the courts would be

called upon to decide abstract questions of

wide public significance even though other

governmental institutions may be more

competent to address the questions and even

t h o u g h j u d ic ia l in te rv e n tio n m a y b e

unnecessary to protect individual rights.

Elk Grove U nified Sch. Dist., 542 U.S. at 12 (quotation

omitted).

Of import in this case, then, “even when the plaintiff

has alleged redressable injury sufficient to meet the

requirements of Art. III, the [Supreme] Court has refrained

from adjudicating ‘abstract questions of wide public

significance’ w hich amount to ‘generalized grievances,’

20

pervasively shared and most appropriately addressed in the

representative branches.” V alley Forge Christian Coll.,

454 U .S. at 474-75 (quoting W arth v. Seldin, 422 U.S.

490, 499-500 (1975)).

3. G eneralized grievances

“W hether styled as a constitutional or prudential

limit on standing, the [Supreme] Court has sometimes

determined that where large numbers of Americans suffer

alike, the political process, rather than the judicial process,

may provide the more appropriate remedy for a widely

shared grievance.” Fed. Election Comm’n v. Akins, 524

U.S. 11, 23 (1998) (citing cases). Based upon this

reasoning, the Supreme “Court repeatedly has rejected

claims of standing predicated on the right, possessed by

every citizen, to require that the Government be

administered according to law.” Valley Forge Christian

Coll., 454 U.S. at 482-83 (quotation, alteration omitted;

citing cases); see also M assachusetts v. E.P.A., 549 U.S.

497, 516-17 (2007) (“W e will not . . . entertain citizen

suits to vindicate the public’s nonconcrete interest in the

proper administration of the laws.”); Lance v. Coffman,

549 U.S. 437, 442 (2007) (per curiam) (noting that the

“[t]he only injury plaintiffs allege is that the law . . . has

not been followed. This injury is precisely the kind of

undifferentiated, generalized grievance about the conduct

of government that we have refused to countenance in the

past.”); Lujan, 504 U.S. at 573-74 (“W e have consistently

held that a plaintiff raising only a generally available

grievance about government–claiming only harm to his and

every citizen’s interest in proper application of the

21

Constitution and law s, and seeking relief that no more

directly and tangibly benefits him than it does the public

at large–does not state an Article III case or

controversy.”); id. at 573-77 (citing cases); Goode, 539

F.3d at 322 (holding taxpayers lacked standing to assert

claims based upon generalized injury that all persons in

Philadelphia suffered); C ortes, 508 F.3d at 164 (holding

voters and taxpayers lacked standing to assert a

“g en eralize d griev an ce[] of concerned citizens”);

Taliaferro, 458 F.3d at 185, 190 (holding homeowners

lacked standing to assert generalized challenge to local

zoning ordinance); Pub. Interest Research Group of N.J.,

Inc. v. M agnesium Elektron, Inc., 123 F.3d 111, 120-21

(3d Cir. 1997) (holding plaintiffs lacked standing to assert

generalized claim that they were injured by knowing that

creek was being polluted).

Such claims amount to little more than attempts “to

employ a federal court as a forum in which to

air . . . generalized grievances about the conduct of

government.” Valley Forge Christian Coll., 454 U .S. at

479 (quotation, alteration omitted). Therefore, “assertion

of a right to a particular kind of Government conduct,

which the Government has violated by acting differently,

cannot alone satisfy the requirements of Art. III without

draining those requirements of meaning.” Id. at 483.

This reasoning “invariably appears in cases w here

the harm at issue is not only widely shared, but is also of

an abstract and indefinite nature— for example, harm to the

common concern for obedience to law.” Akins, 524 U.S.

at 23 (quotation om itted). “The abstract nature of the

22

harm— for example, injury to the interest in seeing that the

law is obeyed–deprives the case of the concrete

specificity . . . which . . . prevents a plaintiff from

obtaining what would, in effect, amount to an advisory

opinion.” Id. at 24. “Often the fact that an interest is

abstract and the fact that it is w idely shared go hand in

hand. But their association is not invariable, and where a

harm is concrete, though widely shared, the [Supreme]

C ourt has found ‘injury in fact.’” Id.; see also

M assachusetts v. E.P.A., 549 U.S. at 517; Goode, 539 F.3d

at 322 (noting in that case that “[a]ppellants lack

standing, . . . not because the alleged injuries they suffer

are widely felt, but because their injuries are no different

in nature from the general interest in enforcing compliance

with the law which the public shares”).

In this appeal, Plaintiffs argue they are not asserting

generalized grievances, but are instead alleging the

deprivation of “personal rights” under the First, Fifth and

Fourteenth Amendments. Even so, Plaintiffs must allege

that they directly suffered an actual injury to those rights.

See Valley Forge Christian Coll., 454 U.S. at 482-87; see

also Goode, 539 F.3d at 315, 320-22 & 322 n.7 (applying

same standing analysis to a citizen taxpayer’s claims

alleging the deprivation of rights under the First, Fifth and

Fourteenth Amendments to access the courts and to

petition the legislature, and thus requiring plaintiff to

establish an actual and direct injury to her rights in order

to have standing).

4. Plaintiffs’ status

23

The named plaintiffs include four individuals— Tim

Potts, Carl H. Silverman, W illiam R. Koch and H. W illiam

M cIntyre— who are Pennsylvania residents, citizens and

taxpayers. Plaintiff Greg Vitali is a citizen and taxpayer

in Pennsylvania. H e is also a member of the Pennsylvania

House of Representatives who voted against Act 44. 4

Two of the plaintiffs— Common Cause of

Pennsylvania and the League of W omen Voters— are

associations. C ommon Cause “is a national non-partisan

citizen advocacy organization concerned with advancing

integrity in government. Common Cause’s primary goal is

governmental accountability and responsiveness, which it

promotes through lobbying, oversight, education, outreach

4

In their second amended complaint, Plaintiffs

alleged that each of the named plaintiffs, both individuals

and associations alike, are taxpayers as well as citizens

and residents of Pennsylvania. Nevertheless, Plaintiffs

expressly do not rely on their status as taxpayers to

establish their standing to assert the claims they pursue in

this litigation. Accordingly, we do not reach the issue,

although we note that under the present thinking of a

majority of the Supreme Court, Plaintiffs would appear not

to have standing as taxpayers under the circumstances

alleged here. See Hein v. Freedom from Religion Found.,

Inc., 127 S. Ct. 2553 (2007) (plurality); see also 13B

C harles A lan Wright, Arthur R. M iller & Edward H.

Cooper, Federal Practice & Procedure § 3531.10.1 (3d ed.

2008).

24

and litigation programs.” App. at 33. “Common Cause of

Pennsylvania has over 10,000 members in Pennsylvania.”

Id.

Plaintiff League of W om en Voters of Pennsylvania

“is a m em bership based, non-partisan, non-profit

corporation organized under the laws of Pennsylvania.

The League’s purpose is to promote the informed and

active participation of citizens in their government.” Id.

at 34. Its “membership consists of [Pennsylvania] citizens,

taxpayers, and voters.” Id.

An association’s or organization’s standing presents

special considerations.

[A]n organization or association may have

standing to bring suit under tw o

circumstances. First, an organization may be

granted standing in its own right to seek

judicial relief from injury to itself and to

vindicate whatever rights and immunities the

organization or association itself may enjoy.

Alternatively, an association may assert

claims on behalf of its m embers, but only

w here the record show s that the

organization’s individual members

themselves have standing to bring those

claims.

Cortes, 508 F.3d at 162-63 (citations, alterations omitted);

see also Pa. Psychiatric Soc’y v. Green Spring Health

Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002). Thus, “an

organization may sue to redress its members’ injuries, even

25

without a showing of injury to the association itself.”

United Food & Comm’l W orkers Union Local 751 v.

Brown Group, Inc., 517 U.S. 544, 552 (1996).

“‘[A]n association has standing to bring suit on

behalf of its members w hen: (a) its members w ould

otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted

nor the relief requested requires the participation of

individual members in the lawsuit.’” Id. at 553 (quoting

Hunt v. W ash. State Apple Adver. Comm’n, 432 U.S. 333,

343 (1977)); see also Pa. Psychiatric Soc’y, 280 F.3d at

283. The first requirement, “that at least one of the

organization’s members w ould have standing to sue on his

own, is grounded on Article III as an element of the

constitutional requirement of a case or controversy.”

United Food & Comm’l W orkers Union Local 751, 517

U.S. at 554-55 (quotation omitted). The second prong

is, at the least, complementary to the first, for

its demand that an association plaintiff be

organized for a purpose germane to the

subject of its member’s claim raises an

assurance that the association’s litigators w ill

themselves have a stake in the resolution of

the dispute, and thus be in a position to serve

as the defendant’s natural adversary.

Id. at 555-56. The third prong, on the other hand, is

prudential in nature, rather than a constitutional

requirement. See id. at 556-57.

26

In this case, the two Plaintiff associations base their

standing solely on injuries suffered by their members.

Therefore, because Plaintiffs Common Cause and the

League of W omen Voters have “alleged no injury to

[themselves] as an organization, distinct from injury to

[their] taxpayer members,” their

claim to standing can be no different from

those of the members [they] seek[] to

represent. The question [presented, then,] is

whether [their] members, or any one of them,

are suffering immediate or threatened injury

as a result of the challenged action of the sort

that would make out a justiciable case had the

members themselves brought suit.

Valley Forge Christian Coll., 454 U.S. at 476 n.14

(quotation omitted). Because the standing of the two

Plaintiff associations thus rests on the standing of their

members, and because Plaintiffs allege that the

associations’ members suffered the same injury as the

individual plaintiffs, save perhaps Representative Vitali,

we will address the associations’ standing together with

that of the individual plaintiffs.

B. Plaintiffs’ claim s

The standing inquiry “often turns on the nature and

source of the claim asserted.” Raines v. Byrd, 521 U.S.

811, 818 (1997) (quotation omitted). Therefore, “[i]n

determining w hether appellants have standing, we must

consider their specific allegations and the relief which they

seek.” Goode, 539 F.3d at 316 (citing City of Los Angeles

27

v. Lyons, 461 U.S. 95, 105-06 (1983)). Although in their

second amended complaint, Plaintiffs originally alleged

five federal claims, on appeal they continue to pursue only

three of those five claims. 5

5

Plaintiffs’ first federal claim, entitled “Conspiracy

to V iolate Civil Rights,” alleged that Defendants John

Perzel, the Pennsylvania house speaker, and Robert

Jubelirer, the state senate president, conspired with

“unknown members of the Pennsylvania Supreme Court to

be later named as Defendants” to enact Act 44, in violation

of the Pennsylvania C onstitution, by exchanging “illegally

negotiated legislative outcomes . . . for decisions by the

Pennsylvania Supreme Court desired by legislative

Defendants.” App. at 67. The second amended complaint

further alleged generally that these Defendants also

conspired to authorize legislation enacted in violation of

the Pennsylvania Constitution. Plaintiffs asserted this

claim under 42 U.S.C. §§ 1983, 1985. In their appellate

briefs, however, Plaintiffs do not ever mention this

conspiracy claim. Therefore, we deem Plaintiffs to have

abandoned it. See Kost v. Kozakiewicz, 1 F.3d 176, 182

(3d Cir. 1993).

Plaintiffs’ second federal claim alleged that the fact

that Defendants included a non-severability clause in Act

44 deprived Plaintiffs of due process because that clause

denied Plaintiffs “a fair hearing before an impartial

tribunal.” A pp. at 68. Plaintiffs, however, do not reassert

(continued...)

28

1. The state judiciary’s invo lvem ent in the

legislative process deprived Plaintiffs of

due process

In their second amended complaint, Plaintiffs

alleged only that Defendants deprived Plaintiffs of due

process w hen D efendants “engaged in private

conversations on legislative matters w ith one or more

justices of the Pennsylvania Supreme Court that might

com e before the court.” A pp. at 69. The district court

held that Plaintiffs lacked standing to assert this claim.

See Common Cause, 447 F. Supp. 2d at 426-30. W e agree.

Clearly these allegations, w hich challenge the legislative

process, are insufficient to allege more than a generalized,

abstract grievance, shared by all Pennsylvania citizens.

The complaint does not attempt to identify an actual,

concrete injury that this conduct caused any of the named

Plaintiffs. Cf. Goode, 539 F.3d at 315, 320-22 (dismissing

taxpayers’ access-to-court claim because their alleged

“injuries are no different in nature from the general

interest in enforcing compliance with the law which the

public shares”).

For the first time on appeal, Plaintiffs attempt to

focus on the potential state judicial process, arguing that

Defendants’ actions deprived Plaintiffs of due process, and

5

(...continued)

any challenge to the non-severability clause itself on

appeal. Therefore, we also deem that specific claim

abandoned. See Kost, 1 F.3d at 182.

29

specifically an impartial decisionmaker, because (1) Act

44 gave the judiciary a pecuniary interest in any litigation

challenging that Act; (2) the judiciary participated in

creating the challenged legislation; and (3) the

Pennsylvania Chief Justice 6 negotiated with the legislature

for the predetermined result of any later court challenges

to Act 44 brought before the Pennsylvania Supreme Court.

A litigant generally cannot create standing through new

allegations asserted for the first time on appeal. See

Storino v. Borough of Point Pleasant Beach, 322 F.3d 293,

297 (3d Cir. 2003); see also In re M ystic Tank Lines

Corp., 544 F.3d 524, 528 (3d Cir. 2008) (noting “[t]his

court has consistently held that it will not consider issues

that are raised for the first tim e on appeal,” absent

“exceptional circumstances”). Even considering these new

allegations, however, Plaintiffs have still failed to

establish that they suffered an actual injury from this

challenged conduct sufficient to give them standing.

For example, Plaintiffs do not allege that they ever

challenged Act 44 in state court and that, in doing so, they

w ere deprived of an impartial decisionmaker. Instead,

they allege, in the abstract, that if Plaintiffs had brought

suit in Pennsylvania courts challenging Act 44, they would

not have had an impartial decisionmaker: “The Appellants

6

Plaintiffs, on appeal, make this allegation against

a named defendant, Chief Justice Cappy, as well as against

unnamed “other Justices” of the Pennsylvania Supreme

Court. See Aplt. Br. at 35 n.7, 36-37.

30

here, w ho have challenged such enactments before and

could be expected to do so again, were thereby denied any

chance of the constitutionally required access to an

impartial tribunal, and thus due process of law , in state

court.” Aplt. Br. at 16. That is not sufficient to state the

actual or imm inent injury necessary for constitutional

standing. See M assachusetts v. E.P.A., 549 U.S. at 517;

Lujan, 504 U.S. at 560-61.

Further, Plaintiffs go on to articulate this claim as

follow s:

The Appellants—in fact, all

P ennsylvanians— started w ith sta te

constitutional righ ts to an open and

deliberative legislative process guaranteed

them by Article III of the state constitution;

these rights . . . have consistently been found

to be justiciable and defensible in the

Pennsylvania courts, and thus the plaintiffs

here also possessed a legal right to bring suit

in state court to challenge the deprivation of

their Article III rights by the passage of Act

44 and other legislation challenged in the past

or potentially challengeable at the time of

these events.

Aplt. Br. at 40 (emphasis added); see also id. at 24

(arguing Defendants, w ho are “leading figures of the

Pennsylvania state government[,] attempted systematically

to deny [a neutral and disinterested decision maker] to the

people of their Commonwealth”); id. at 37-38 (asserting

31

“the Chief Justice and potentially other Justices agreed

before the pay-raise legislation was even enacted that the

state courts would uphold it . . . against legal challenge by

any citizens”) (emphasis added). These argum ents

highlight the fact that Plaintiffs are asserting only a

generalized, abstract grievance held by “all

Pennsylvanians.” Plaintiffs have, thus, failed to allege that

they have directly suffered a personalized, actual or

imminent injury, as Article III requires.

For all of these reasons, we conclude the district

court did not err in dismissing Plaintiffs’ due process

claim because they lacked standing to assert it.

2. The truncated legislative process

u n d er ly ing t h e G e n e r a l A s s e m b ly ’ s

enactm ent of A ct 44 deprived Plaintiffs of

equal protection and due process

Plaintiffs, in their second amended complaint, next

challenged the manner in which the General Assembly

e n a cte d A c t 4 4 , a lle g in g t h a t D e f e n d a n ts , b y

“implement[ing] a truncated legislative process, as part of

a continuing pattern of illegal statutory enactment,”

deprived Plaintiffs of both due process and equal

protection. App. at 69-70. The district court held that

Plaintiffs lacked standing to assert this claim, as well. See

Common Cause, 447 F. Supp. 2d at 426-30. Again, w e

agree. Plaintiffs failed to allege how this legislative

process actually injured them directly. Instead, they

alleged a generalized, abstract grievance shared by all

Pennsylvanians.

32

On appeal, Plaintiffs assert only an equal protection

claim. Thus, we deem them to have abandoned any due

process challenge to the manner in which the General

Assembly enacted Act 44, although our conclusion that

Plaintiffs lack standing would equally bar Plaintiffs’ due

process claim had it been preserved. See Kost, 1 F.3d at

182.

For the first time on appeal, Plaintiffs make

additional allegations to support their standing to

challenge the w ay Act 44 was enacted. They also

differentiate the grounds on w hich the citizen plaintiffs

have standing from the basis for Representative Vitali’s

standing.

Again, Plaintiffs generally cannot create standing

through new allegations asserted for the first time on

appeal. See Storino, 322 F.3d at 297; see also In re M ystic

Tank Lines Corp., 544 F.3d at 528. Nonetheless, even

considering these additional allegations, Plaintiffs have

failed to establish that they have constitutional standing to

pursue this equal-protection challenge to the procedures by

which the General Assembly enacted Act 44.

On appeal, Plaintiffs contend that

the extra-legal process designed by

[Defendants] to enact Act 44, in which a

select few legislators were the only ones

allowed–secretly–to draft, propose or alter

even a single word of the legislation,

deprived the vast majority of legislators,

in c lu d in g A p p e lla n ts [ ’] R e p re se n ta tiv e

33

[Plaintiff] Greg Vitali, and their constituents

such as Appellants of equal protection of the

law s as guaranteed by the Fourteenth

Amendment to the United States Constitution.

Aplt. Br. at 43. M ore specifically, Plaintiffs argue on

appeal that Defendants deprived them of equal protection

by assigning the original house bill to a conference

committee, composed of only named Defendants, w hich

completely redrafted the original house bill in secret, and

then submitted it to the General Assembly under a rule

prohibiting any of the other legislators from amending the

submitted bill.

As a result [Defendants] ensured that they

and only they were able to exercise the full

panoply of legislative functions in drafting,

debating and amending the text of the Act,

while consigning [Plaintiff] Representative

Greg Vitali and the elected representatives of

the rem aining A ppellan ts to a m ere

up-or-down vote on final passage. A small

class of legislators thus was given the

abilities constitutionally appertaining to

membership in the General Assembly to draft,

discuss, debate, and amend the legislation at

issue— all others were completely and

expressly denied such ability.

Id. at 44.

Because Plaintiffs differentiate betw een

Representative Vitali’s standing and that of the other

34

citizen Plaintiffs, we will address Vitali’s standing

separately. 7

7

In their complaint, Plaintiffs never suggested that

Vitali suffered any injury, as a state legislator, that was

different from any injury suffered by the citizen plaintiffs.

But in their brief to the district court opposing Defendants’

motions to dismiss, Plaintiffs did suggest that Vitali had

standing based upon his being a legislator:

Plaintiff Greg Vitali is a member of the

General Assembly and was personally

excluded from his right to participate, as an

elected representative of the 166th state

legislative district, in the legislative process

required by the state constitution. A process

bypassed by individual defendants to this

action resulting in the violation of Plaintiff

Vitali’s right to free speech, due process and

equal protection of the laws guaranteed by

the federal constitution.

App. at 191-92. How ever, in that brief, when Plaintiffs

addressed the specifics of their equal protection claim,

Plaintiffs never alleged that the manner in which Act 44

was enacted specifically deprived Vitali of equal

protection of the law on any basis different from that

alleged to have involved the other citizen plaintiffs. Id. at

216-22. Thus, this claim suffers the additional fatal defect

(continued...)

35

a. Plaintiff V itali’s standing

“‘[L]egislators, like other litigants in federal court,

m ust satisfy the jurisdictional prerequisites of A rticle III

standing.’” Goode, 539 F.3d at 317 (quoting Russell v.

DeJongh, 491 F.3d 130, 133 (3d Cir. 2007) (alteration

omitted)).

Concerns for separation of powers and the

limited role of the judiciary are at the core of

A rticle III standing doctrine and the

requirement that a plaintiff allege an injury in

fact. Those concerns are particularly acute in

legislator standing cases, and they inform the

analysis of whether a legislator plaintiff has

asserted an injury in fact sufficient to confer

standing to sue.

Russell, 491 F.3d at 133.

On appeal, Plaintiffs suggest that D efendants

deprived Vitali of equal protection of the law by denying

him, and other legislators, the ability to discuss, debate

and perhaps amend A ct 44 before having to vote on that

legislation. As Plaintiffs point out in their brief, state

legislators have, under different circumstances, sued based

upon a direct injury suffered by that particular legislator.

For instance, in Bond v. Floyd, state representative Julian

Bond sued the Georgia legislature, seeking declaratory and

7

(...continued)

that it w as not adequately raised below.

36

injunctive relief that would permit him to take his seat in

the Georgia legislature, after that body excluded him for

comments Bond m ade against the Vietnam W ar, among

other things. See 385 U.S. 116, 118, 125-26 (1966).

Similarly, in A m m ond v. M cGahn, a N ew Jersey state

senator, Alene Ammond, a D emocrat, sued the Democratic

senate caucus after the caucus excluded her for making

negative remarks about the caucus. See 390 F. Supp. 655,

657 (D. N.J. 1975), rev’d on other grounds, 532 F.2d 325,

329 (3d. C ir. 1976); see also Parker v. M erlino, 646 F.2d

848, 849, 851-52 (3d Cir. 1981) (concluding, without

addressing standing, that there was no merit to the claim

asserted by several state legislators that other legislators

violated their First and Fourteenth Amendment rights by

terminating the opportunity for further debate before the

legislature voted on two pending bills); G ewertz v.

Jackman, 467 F. Supp. 1047, 1050, 1055-56 (D. N.J. 1979)

(holding federal court had authority to consider state

legislator’s claim challenging the D emocratic caucus’s

decision to rem ove him from the Appropriations

Com m ittee; noting that, although the legislator’s claim

implicated operations of the state’s legislative body, the

federal court was “require[d]” to consider this individual

legislator’s claim “that his constitutional rights have been

violated by the legislature or its leaders”); see Davids v.

Akers, 549 F.2d 120, 122-23 (9th Cir. 1977) (considering

merits of claims brought by state legislators challenging

the committee appointments made by the state house

speaker).

In each of these cases, the courts addressed the

37

merits of these claims brought by individual state

legislators without specifically discussing whether those

legislators had standing to assert those claims. However,

the Supreme Court has “repeatedly held that the existence

of unaddressed jurisdictional defects has no precedential

effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996); see

also Fed. Election Comm’n v. NRA Political Victory Fund,

513 U.S. 88, 97 (1994); U nited States v. L.A. Tucker

Truck Lines, Inc., 344 U.S. 33, 37-38 (1952). See

generally Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 91 (1998) (noting that Supreme Court has “often said

that drive-by jurisdictional rulings . . . have no

precedential effect”).

In this case, in any event, Vitali does not allege that

he has suffered a direct and concrete injury specific to

him, as a result of D efendants’ challenged conduct.

Rather, he challenges a procedure that excluded most of

the Pennsylvania legislators.

Other cases, also relied upon by Plaintiffs, have

concluded that a legislator has standing to challenge the

nullification of his particular vote.

[L]egislators have a legally protected interest

in their right to vote on legislation and other

matters committed to the legislature, which is

som etimes phrased as an in terest in

“maintaining the effectiveness of their votes.”

Not every affront to a legislator’s interest in

the effectiveness of his vote, however, is an

injury in fact sufficient to confer standing to

38

sue.

Russell, 491 F.3d at 134 (citing cases). For example,

courts have drawn a distinction . . . between

a public official’s mere disobedience of a law

for which a legislator voted–which is not an

injury in fact–and an official’s “distortion of

the process by which a bill becomes law” by

nullifying a legislator’s vote or depriving a

legislator of an opportunity to vote–which is

an injury in fact.

Id. at 135.

Cases w here a public official has directly injured a

particular legislator by nullifying his vote, however,

involve circumstances m uch different than those alleged

here. See id. at 135-36 & 135 n.4 (citing cases); cf.

Bender v. W illiamsport Area Sch. Dist., 475 U.S. 534, 544

& n.7 (1986) (noting, in dicta, that a lone dissenting

school board member might have standing to assert a claim

seeking to maintain the effectiveness of his vote, if state

law required a unanim ous board vote and the rest of the

board, nevertheless, acted without the dissenting member’s

consent).

The Third Circuit addressed several such cases in

Russell, 491 F.3d at 135-36. There, this court noted, for

example, that Coleman v. M iller, 307 U.S. 433 (1939),

“‘stands, at most, for the proposition that legislators whose

votes would have been sufficient to defeat (or enact) a

specific legislative Act have standing to sue if that

39

legislative action goes into effect (or does not go into

effect) on the ground that their votes have been completely

nullified.’” Russell, 491 F.3d at 135 n.4 (quoting Raines,

521 U.S. at 823) (emphasis added); see also Baird v.

Norton, 266 F.3d 408, 411-13 (6th Cir. 2001).

And in D ennis v. Luis, 741 F.2d 628 (3d Cir. 1984),

the Third Circuit

held that a group of legislators had standing

to challenge the appointment by the Governor

of the Virgin Islands of an “acting”

C ommissioner of Comm erce w ithout

consulting them, where § 16(c) of the

Organic Act, 48 U .S.C. § 1597(c), provided

that the appointment of a Commissioner of

Commerce was subject to the advice and

consent of the Legislature. The plaintiffs in

Dennis thus alleged that they possessed a

specific right under § 16(c) of the Organic

Act that the Governor had violated, and they

had no clear recourse through the political

process.

Russell, 491 F.3d at 135 n.4.

Further, in Silver v. Pataki, 755 N.E.2d 842 (N.Y.

App. 2001),

the New York Court of Appeals recognized

an injury in fact when a state assembly

member alleged that the governor made

illegal use of his line item veto power by

40

using it on bills that were not lawfully subject

to the line item veto. The state assembly

member had voted in favor of the bills in

question, and the New York Court of Appeals

held that the plaintiff had standing. . . . In

Silver, the Governor’s veto nullified the

pending bills and forced the assembly

m em ber to try [to] persuade a supermajority

of his colleagues to override the governor’s

veto if he wished to restore the status of the

bills as law .

Russell, 491 F.3d at 135 n.4.

The circumstances alleged in this case are much

different. Here, Representative Vitali was not precluded

from voting on Act 44. C f. id. at 135-36 (concluding

legislator, asserting claim that Governor violated

applicable deadlines in nominating justices of the Virgin

Islands Supreme Court, did not allege that his ability to

vote had been nullified where the legislator was still able

to “confirm, reject, or defer voting on the Governor’s

nominees”). Nor has V itali alleged that his vote w as in

any other way nullified. At most, Vitali merely alleges he

was denied full input on the drafting and consideration of

Act 44. But the denial w as not specific to him; rather, its

impact was felt by all legislators other than the select

leadership. However, the legislative process inevitably

involves a division of responsibilities, and leadership

necessarily will have greater input in legislation being

considered.

41

For these reasons, we conclude that Vitali has failed

to allege that the manner in which the General A ssembly

enacted Act 44 actually and concretely injured him in

particular. Even if Vitali had alleged such an injury

(which we conclude he has not), Vitali has also failed to

satisfy prudential standing concerns. Vitali’s challenge to

the manner in which the General Assembly enacted Act 44

is a clear example of one of those “‘abstract questions of

wide public significance’ which amount to ‘generalized

grievances,’ pervasively shared and m ost appropriately

addressed in the representative branches” which the

Supreme Court counsels federal courts to avoid

adjudicating. Valley Forge Christian Coll., 454 U.S. at

474-75 (quoting W arth, 422 U.S. at 499-500); see also 13B

Charles Alan W right, Arthur M iller & Edward H. Cooper,

Federal Practice & Procedure § 3531.11.3 (3d ed. 2008)

(noting that “m ost disagreements among state legislators

will involve matters of state law, or issues of federal law

that cannot be disentangled from the political functions of

the legislature. Standing should be denied as to the federal

questions, for reasons of federalistic deference to state

legislatures that mirror the separation-of-powers deference

to Congress”).

For these reasons, the district court did not err in

concluding Plaintiff V itali lacked standing to challenge the

manner in which the General Assembly enacted Act 44.

b. C itizens Plaintiffs’ standing

On appeal, the citizen Plaintiffs (and the

associations whose members are Pennsylvania citizens)

42

allege that their elected state representatives were, like

R epresentative Vitali, precluded from drafting, debating

and amending Act 44. The New Jersey district court has

suggested that a state legislator’s constituents might be

able to assert such a claim:

The action by the Caucus in denying Senator

A mmond the opportunity to attend its

deliberations deprived her constituents of the

Equal Protection of the law. In effect, the

action by the Caucus created two classes of

voters. One class consists of those citizens

whose Senators could effectively participate

fully in the legislative process and another

class whose Senator could participate only to

a limited degree.

Ammond, 390 F. Supp. at 660.

Even if we were to adopt the District of New

Jersey’s reasoning, however, the citizen Plaintiffs in this

case are able to assert only a generalized, abstract

grievance shared by most Pennsylvanians— that Defendant

legislators denied Plaintiffs’ representatives the equal

opportunity to draft, debate and amend Act 44 before

voting on that bill. See App. at 277 (Plaintiffs arguing to

the district court that Defendants, through “their

mechanism by avoiding the legislative process mandated

by the Pennsylvania C onstitution, . . . cut out the vast

majority of the representatives and the people of

Pennsylvania from the deliberative processes of the

General A ssem bly. These are representational rights that

43

are personal to every citizen in this state.”) Such injury is

insufficient to confer constitutional standing.

And even if they had established constitutional

standing (which we conclude they did not), the citizen

Plaintiffs cannot satisfy prudential standing concerns. See

Valley Forge Christian Coll., 454 U.S. at 474-75.

c. C onclusion

It is clear that, before the district court, all of the

Plaintiffs failed to establish their standing under A rticle III

to pursue their due process/equal protection claim

challenging the manner in which the General Assembly

enacted Act 44. For the first time on appeal, Plaintiffs

make additional standing arguments. Nevertheless, even

if w e were to consider those newly raised arguments,

Plaintiffs have ultimately still failed to meet their burden

of alleging that they suffered an actual and concrete injury

sufficient to support constitutional standing. Nor can

Plaintiffs satisfy prudential standing concerns. For all of

these reasons, this court affirm s the district court’s

decision to dismiss Plaintiffs’ due process/equal protection

challenge to the process by which Act 44 was enacted.

3. First A m endm ent right to petition

governm ent

A s their final federal claim, Plaintiffs alleged in

their second amended complaint that Defendants, in

enacting Act 44 in the manner they did, deprived Plaintiffs

of their First and Fourteenth Amendment “freedom of

speech to lobby their elected state representatives

44

concerning passage of House Bill 1521 before it was

enacted into law as A ct 44.” A pp. at 70. Specifically

Plaintiffs alleged that

Defendants, acting at all times under color of

state law, implemented the legislative process

used to enact Act 44, as part of a continuing

pattern of illegal statutory enactment, thereby

depriving Plaintiffs [of] their right to freedom

of speech to lobby their elected state

representatives concerning passage of House

Bill 1521 before it w as enacted into law as

Act 44, as guaranteed by the First and

Fourteenth Amendments to the United States

C onstitution, as more fully described in the

preceding paragraphs, all in violation of 42

U.S.C. § 1983, for which the individual

Defendants are individually liable.

Id. In the “preceding paragraphs” of the complaint,

Plaintiffs further asserted that

[t]he truncated legislative process used by the

Leaders [of the General Assembly] to enact

Act 44, and the early morning hour at which

it was triggered, intentionally inhibited

P lain tiff s[ ’] ability to receive tim ely

information regarding proposed government

actions necessary to exercise their First

Amendment right of free speech to support or

o p p o s e th e S e n a te - H o u s e c o n f e r e n c e

committee’s new version of H ouse Bill 1521

45

before it was enacted by the General

A ssembly into law.

Id. at 56. 8 The district court held that Plaintiffs lacked

standing to assert this claim because they alleged only a

generalized, abstract grievance shared by all

Pennsylvanians. See Common Cause, 447 F. Supp. 2d at

426-30. Plaintiffs reiterate these same arguments on

appeal. 9

On appeal, Plaintiffs expand their First Amendment

claim to encompass the alleged secret discussion of Act 44

that occurred between officials of the three branches of

Pennsylvania’s government, prior to the enactment of that

8

On appeal, Plaintiffs make clear that they are not

challenging the late hour at which the General Assembly

considered Act 44: “Appellants do not allege that the

Petition Clause prevents a state legislature from round the

clock legislative sessions or constrains a legislature from

enacting law s to times convenient to a citizen’s right to

petition government.” Aplt. Br. at 61.

9

Defendant Chief Justice Cappy complains that

Plaintiffs, before the district court, alleged only a violation

of their First Amendment freedom of speech and to lobby.

According to Cappy, it is only in their appellate briefs that

Plaintiffs expressly assert the deprivation of their freedom

to petition the Government. It appears, however, that the

gist of Plaintiffs’ claim before the district court remains

the same now on appeal.

46

legislation. Again, Plaintiffs generally cannot create

standing through new allegations asserted for the first time

on appeal. 1 0 See Storino, 322 F.3d at 297; see also In re

M ystic Tank Lines Corp., 544 F.3d at 528.

Even considering all of these allegations, however,

Plaintiffs have failed to allege that they in particular were

actually and concretely injured by Defendants’ challenged

conduct. Instead, Plaintiffs continue to allege only a

general, abstract grievance shared by all Pennsylvanians.

10

For the first time in their appellate reply brief,

Plaintiffs allege that, at approximately 10:00 p.m. on July

6, 2005, citizen Plaintiff Potts contacted the executive

director of Plaintiff Common C ause to find out if the

General Assembly was to consider “anything of note” that

night. Aplt. Reply Br. at 32 n.18. If so, Potts intended to

“exercise his right to petition.” Id. The executive director

of Common Cause “made inquiries within the General

Assembly and he was assured nothing of import or

surprising would occur that night.” Id. The Common

Cause executive director informed Potts, who then “left on

vacation.” Id. The General Assembly enacted Act 44 at

2:00 a.m. the follow ing morning. Because Plaintiffs

waited until their appellate reply brief to make these

allegations, we do not consider them. See United States v.

Pellulo, 399 F.3d 197, 222 (3d Cir. 2005) (holding

appellant ordinarily may not raise issue for the first time

in a reply brief, absent exceptional circumstances); see

also Storino, 322 F.3d at 297.

47

To illustrate this point, Plaintiffs specifically alleged in

their complaint that “[t]he Leaders [of the General

Assembly] intentionally deprived Plaintiffs, and the entire

Pennsylvania electorate, of any notice of the text of H ouse

B ill 1521 . . . before it was enacted into law by a

legislative process lasting a few hours in the very early

morning.” A pp. at 56 (emphasis added). And on appeal,

Plaintiffs argue that

the Petition Clause . . . must forbid individual

sta te actors from intentionally a n d

affirmatively orchestrating sophisticated

modes of total interference w ith A ppellants’

right to informally petition and communicate

with their elected state representatives on any

issue of concern, including the Act in this

case. The Petition Clause must preserve

some small quantum of effective

communication between the electorate and

the elected from intentional interference by

other state actors. To hold otherwise is to

condemn a First A m endment right to a mere

privilege subject to the whims of political

elites; elites who far too often are beyond the

electoral reach of those whose rights they

have intentionally invaded.

Aplt. Br. at 61-62.

Because these allegations and arguments are only

generalized, ab stract grievances held b y all

Pennsylvanians, the district court did not err in concluding

48

Plaintiffs lacked standing to challenge their First

Amendment claim. Cf. Goode, 539 F.3d at 315, 320-22

(dismissing taxpayers’ right-to-petition claim because their

alleged “injuries are no different in nature from the

general interest in enforcing compliance with the law

which the public shares”). 1 1

IV . C O N C LU SIO N

For the foregoing reasons, we conclude Plaintiffs

lack standing to pursue the federal claims they assert in

this action. Therefore, we AFFIRM the district court’s

decision dismissing those claims.

11

Appellants’ Request, dated February 5, 2009, for

Leave to File Post-Argument Letter Brief is denied.

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