Amicus Curiae Brief — Nikki Bruni, et al., Petitioners v. City of Pittsburgh, Pennsylvania, et al.

No. 19-1184

In the Supreme Court of the United States

NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI;

KATHLEEN LASLOW; AND PATRICK MALLEY,

Petitioners,

v.

CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL;

MAYOR OF PITTSBURGH,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF WEST VIRGINIA AND 16 OTHER

STATES AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

1900 Kanawha Blvd. East

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

THOMAS T. LAMPMAN

Assistant Solicitor General

JESSICA A. LEE*

Special Assistant

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed at end]

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE AND

SUMMARY OF ARGUMENT ..............................1

REASONS FOR GRANTING THE PETITION .........3

I.

PRINCIPLES OF STATE SOVEREIGNTY

BAR FEDERAL COURTS FROM

REWRITING STATE LAWS ................................3

A. The Constitution Balances The Power Of

Federal Courts With Respect For The

States’ Lawmaking Authority ........................3

B. Federalism Requires Respect For The

States’ Decisions When Construing Their

Own Laws .......................................................6

II. SUPREME COURT REVIEW IS NEEDED

TO RESTORE CERTAINTY ON THIS

IMPORTANT QUESTION OF

FEDERALISM .................................................... 13

A. The Decision Below Flouts The

Prohibition On Rewriting Or Amending

State Laws .................................................... 13

B. The Consequences Of The Decision Below

Call For Review ............................................ 15

CONCLUSION .......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizonans for Official

English v. Arizona,

520 U.S. 43 (1997) .................................................. 7

Atl. Coast Line R. Co. v. Bhd. of

Locomotive Eng’rs,

398 U.S. 281 (1970) ................................................ 4

Bd. of Airport Comm’rs of

L.A. v. Jews for Jesus, Inc.,

482 U.S. 569 (1987) ........................................ 21, 22

Bd. of Educ. of Rogers,

Ark. v. McCluskey,

458 U.S. 966 (1982) ............................................. 18

Beckerman v. City of Tupelo, Miss.,

664 F.2d 502 (5th Cir. 1981) .......................... 12, 16

Boos v. Barry,

485 U.S. 312 (1988) .............................................. 14

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ................................................ 9

Brown v. City of Pittsburgh,

586 F.3d 263 (3d Cir. 2009) ................................. 20

City of Houston, Tex. v. Hill,

482 U.S. 451 (1987) ................................................ 9

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Colo. River Water Conservation

Dist. v. United States,

424 U.S. 800 (1976) ................................................ 7

Cutting v. City of Portland,

802 F.3d 79 (1st Cir. 2015) .................................. 16

Danforth v. Minnesota,

552 U.S. 264 (2008) ................................................ 4

Dimmitt v. City of Clearwater,

985 F.2d 1565 (11th Cir. 1993) ............................ 12

Eubanks v. Wilkinson,

937 F.2d 1118 (6th Cir. 1991) ........................ 11, 15

Forsyth Cty. v. Nationalist Movement,

505 U.S. 123 (1992) ................................................ 9

Gooding v. Wilson,

405 U.S. 518 (1972) ............................................ 6, 9

Grayned v. City of Rockford,

408 U.S. 104 (1972) ............................................ 8, 9

Hill v. City of Houston, Tex.,

789 F.2d 1103 (5th Cir. 1986) .................. 11, 12, 16

Hoye v. City of Oakland,

653 F.3d 835 (9th Cir. 2011) ................................ 16

Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) .............................................. 19

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Legend Night Club v. Miller,

637 F.3d 291 (4th Cir. 2011) .................... 11, 12, 14

Lehman Bros. v. Schein,

416 U.S. 386 (1974) ................................................ 7

McCullen v. Coakley,

573 U.S. 464 (2014) ........................................ 21, 22

Michelin Tire Corp. v. Wages,

423 U.S. 276 (1971) ................................................ 3

Murdock v. City of Memphis,

87 U.S. 590 (1874) .................................................. 8

Murphy v. Nat’l Collegiate Ass’n,

138 S. Ct. 1461 (2018) ........................................ 4, 5

R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 498 (1941) ................................................ 7

Reed v. Town of Gilbert, Ariz.,

135 S. Ct. 2218 (2015) .............................. 19, 20, 21

Rhode Island v. Massachusetts,

37 U.S. 657 (1838) .................................................. 4

Shelby Cty., Ala. v. Holder,

570 U.S. 529 (2013) ................................................ 6

Shipp v. Miller’s Heirs,

15 U.S. 316 (1817) .................................................. 8

v

TABLE OF AUTHORITIES

(continued)

Page(s)

United Food & Comm. Workers Int’l

Union, AFL-CIO, CLC v. IPB, Inc.,

857 F.2d 422 (8th Cir. 1988) .................... 10, 11, 12

United States v. Stevens,

559 U.S. 460 (2010) .......................................... 9, 17

United States v. Thirty-Seven (37)

Photographs,

402 U.S. 363 (1971) ................................................ 8

Vill. of Hoffman Estates v. The Flipside,

Hoffman Estates, Inc.,

455 U.S. 489 (1982) ................................................ 9

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ................................................ 9

Wis. Right To Life, Inc. v. Barland,

751 F.3d 804 (7th Cir. 2014) .......................... 12, 19

Younger v. Harris,

401 U.S. 37 (1971) ........................................ 6, 7, 22

Z.J. Gifts D-4, L.L.C. v. City

of Littleton,

311 F.3d 1220 (10th Cir. 2002) ............................ 10

Constitutional Provisions

U.S. Const. art. III § 2, cl. 1 ........................................ 5

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes

28 U.S.C. § 1652 .......................................................... 7

Pittsburgh, Pa., Municipal Code

§§ 623.01-.07................................................... 14, 20

Other Authorities

2 Max Farrand, The Records of the

Federal Convention 430 (1911) ......................... 5, 6

The American Heritage Dictionary of

the English Language (4th ed. 2006) .................. 15

Bradford R. Clark, Ascertaining the

Laws of the Several States:

Positivism and Judicial Federalism

After Erie,

145 U. Pa. L. Rev. 1459 (1997) ............................ 18

David M. O’Brien, Constitutional Law

and Politics (8th ed., vol. 2 2011) .......................... 1

The Federalist No. 32 (A. Hamilton) .......................... 4

The Federalist No. 78 (A. Hamilton) .......................... 4

The Federalist No. 81 (A. Hamilton) .......................... 3

The Federalist No. 82 (A. Hamilton) .......................... 5

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Marcia L. McCormick, When Worlds

Collide: Federal Construction of

State Institutional Competence,

9 U. Pa. J. Const. L. 1167 (2007) ........................... 8

Robert J. Pushaw, Jr., Article III’s

Case/Controversy Distinction and

the Dual Functions of Federal

Courts,

69 Notre Dame L. Rev. 447 (1994) ................ 3, 5, 7

Saikrishna B. Prakash & John C. Yoo,

The Origins of Judicial Review,

70 Univ. of Chi. L. Rev 887 (2003) ........................ 3

INTERESTS OF AMICI CURIAE 1

AND SUMMARY OF ARGUMENT

Article III’s promise of judicial review protects

the States’ sovereignty over drafting and construing

their own laws. The federal judiciary certainly

possesses “some checking power of the States”

through its authority to declare state and local

laws unconstitutional. See David M. O’Brien,

Constitutional Law and Politics 27 (8th ed., vol. 2

2011). Yet although necessary for the judicial branch

to serve as an arbiter of federal constitutional

law, that sobering power is balanced by careful

respect for state legislative sovereignty. Federal

courts are thus bound to follow state high-court

interpretations of state law—and where that

guidance is lacking, they must consider how the State

would interpret a statute rather than substituting

“any narrowing construction” federal courts deem

appropriate. Pets.’ App. 21a. The majority of the

federal courts of appeals would agree that the Third

Circuit’s decision below crossed that line. The Court

should grant review to provide national certainty and

confirm that it did.

The States of West Virginia, Alabama, Alaska,

Arkansas, Idaho, Indiana, Kentucky, Louisiana,

Mississippi, Montana, Nebraska, Oklahoma, South

Carolina, South Dakota, Tennessee, Texas, and Utah

respectfully submit this brief as amici curiae in

support of Petitioners.

Amici States write to

emphasize that this case raises important questions

Pursuant to Supreme Court Rule 37.4, counsel for amicus

curiae the State of West Virginia timely notified the parties of

amici’s intent to file this brief.

1

2

of federalism involving the balance of authority

between States and the federal courts. The Third

Circuit disregarded the City of Pittsburgh’s

interpretation of its own buffer-zone ordinance, and

sua sponte adopted a narrower construction with

weak grounding in the text that neither party

advanced.

The court below thus strayed from

constitutional avoidance into effectively rewriting

local law.

Amici emphasize first the importance of taking up

this case because the Constitution’s framework

requires federal courts to avoid stepping into state

policymaking through sua sponte inventive statutory

interpretation. Respect for the States’ construction of

their own laws is evident in numerous doctrines

guiding federal courts’ review. Seven circuits apply

those principles differently than the Third Circuit in

the specific context here of construing local law in the

face of a federal constitutional challenge.

Second, the consequences of these divergent views

warrant review.

The decision below deepens

confusion among federal courts nationwide on the

Questions Presented. Yet key issues of statutory

construction and judicial restraint should not turn on

a game of geographic luck. Effectively rewriting state

and local laws to avoid compelling constitutional

challenges hurts litigants because federal courts’ sua

sponte narrowing constructions are not binding on

state courts. As a result, a decision motivated by a

laudable desire to salvage a constitutionally suspect

law may end up depriving parties of an effective

3

remedy by declaring some reading of the law valid, yet

refusing to answer whether the same is true for the

interpretation local officials actually enforce.

REASONS FOR GRANTING THE PETITION

I.

PRINCIPLES OF STATE SOVEREIGNTY BAR

FEDERAL COURTS FROM REWRITING

STATE LAWS.

A. The Constitution Balances The Power Of

Federal Courts With Respect For The States’

Lawmaking Authority.

With its weak theory of central government, the

ill-fated Articles of Confederation bred dysfunction

from the beginning. Apart from granting Congress too

little authority to protect national interests, the

Articles also kept the federal judiciary’s jurisdiction

too closely in check. See Michelin Tire Corp. v. Wages,

423 U.S. 276, 284 n.3 (1971); Robert J. Pushaw, Jr.,

Article III’s Case/Controversy Distinction and the

Dual Functions of Federal Courts, 69 Notre Dame L.

Rev. 447, 468-69 (1994). The power of federal courts

we now take for granted to apply federal law and bind

parties to their holdings was virtually non-existent in

the pre-Constitution era. Pushaw, 69 Notre Dame L.

Rev. at 448, 468-69. The federal government instead

had to rely on state courts—which at that time often

rebuffed national law in favor of their own interests.

See The Federalist No. 81 (Signet ed. 2003) (A.

Hamilton); Saikrishna B. Prakash & John C. Yoo, The

Origins of Judicial Review, 70 Univ. of Chi. L. Rev.

887, 910 (2003). The States, too, lacked an effective

4

avenue to resolve disputes outside their borders. See

Rhode Island v. Massachusetts, 37 U.S. 657, 688-90

(1838) (“The tribunal was, of course, changed; for now

an independent judicial department was established,

which had no existence under the confederation.”).

Of course, the colonies’ experience under Great

Britain counseled against overcorrection by yielding

too much sovereignty to the federal government.

The solution thus involved “a partial union or

consolidation” in which the States “surrendered

only a part of [their] sovereign power to the

national government.” The Federalist No. 32, at 194

(A. Hamilton); Atl. Coast Line R. Co. v. Bhd. of

Locomotive Eng’rs, 398 U.S. 281, 285 (1970). Each

sovereign—the States and the federal government—

would “wield” their powers with independence.

Murphy v. Nat’l Collegiate Ass’n, 138 S. Ct. 1461,

1475 (2018). And one of the inherent powers States

retained is “the plenary authority to make . . . their

own laws.” Danforth v. Minnesota, 552 U.S. 264, 280

(2008).

The importance of state lawmaking authority is as

resonant in the intersection between the States and

the judicial branch as it is between the States and

Congress. The Framers corrected the Articles’ failings

by empowering the federal judicial branch to “declare

the sense of the law” and the Constitution and to bind

States to those declarations. The Federalist No. 78, at

467 (A. Hamilton). Yet they also cabined this power

in important ways.

5

One example is limiting federal courts’

jurisdiction to cases and controversies. See U.S.

Const. art. III., § 2, cl. 1. The term “cases” was

historically limited to formal legal questions that the

courts answer “through exposition—the process of

determining, construing, and applying legal rules.”

Pushaw, 69 Notre Dame L. Rev. at 474; see also 2 Max

Farrand, The Records of the Federal Convention 430

(1911). Critically, resolving “cases” “did not make

law,” but provided “the best evidence of what the law

was.” Pushaw, 69 Notre Dame L. Rev. at 478. This

prerequisite also ensured that federal courts would

intervene in matters of state law only where a genuine

controversy exists, rather than using the powerful tool

of judicial review in a merely advisory context.

Indeed, the very idea of judicial review shields

against the judicial branch “alienat[ing] . . . State

power by implication.” The Federalist No. 82, at 492

(A. Hamilton). On the one hand, limiting federal

courts to “say[ing] what the law is” and “apply[ing] the

rule to particular cases,” Murphy, 138 S. Ct. at 1486

(Thomas, J. concurring) (citation omitted), ensures

that courts do not step into policymaking. The

Founders explicitly rejected proposals that would

have allowed the judicial branch to draft legislation,

for example: The Convention scrapped the “Council of

Revision” proposal, which involved federal courts (in

conjunction with the executive branch) reviewing and

framing legislation, on the basis that lawmaking is

not part of the judicial power. Pushaw, 69 Notre

Dame L. Rev. at 490-91. Yet on the other hand,

judicial review under the Constitution is strong—

6

federal courts can “declare an unconstitutional law

void.” 2 Farrand, at 78. Giving true power to the

federal courts in this way safeguarded the supremacy

of federal law while protecting state legislative

sovereignty better than alternate approaches, such as

letting Congress veto potentially unconstitutional

state laws before they go into effect. See Shelby Cty.,

Ala. v. Holder, 570 U.S. 529, 542 (2013).

The effect of these compromises is that the States

transferred to the federal judiciary the significant

power to strike down unconstitutional state and local

laws—or in other words, States could no longer

legislate with abandon. But the States deliberately

kept their legislative power. They thus ratified a

Constitution that allows federal courts to police the

boundaries of that authority, but not to second-guess

or redraft policies that the States and their localities

put into place.

B. Federalism Requires Respect For The States’

Decisions When Construing Their Own Laws.

The constitutional balance between federal

judicial power and state legislative sovereignty plays

out in the care federal courts afford to States when

construing state laws.

1. Only States can “authoritatively . . . construe”

their own laws. Gooding v. Wilson, 405 U.S. 518, 520

(1972) (citation omitted). As a result, federal courts

reviewing state and local laws must be vigilant not to

“unduly interfere with the legitimate activities of

states.” Younger v. Harris, 401 U.S. 37, 44 (1971).

7

This caution is evident in the Rules of Decision Act, in

which Congress recognized that controversies subject

to federal courts’ jurisdiction would often be governed

by state law, Pushaw, 69 Notre Dame L. Rev. at 504—

and mandated accordingly that state law apply unless

the Constitution or federal law “otherwise require or

provide.” Judiciary Act of 1789, 28 U.S.C. § 1652. It

also shows up in the tradition of certifying issues to a

State’s high court where federal courts have questions

about the scope of state law.

Certification is

preferable to “speculat[ing]” about “the possible

constructions of state law,” and better builds “a

cooperative judicial federalism.”

Arizonans for

Official English v. Arizona, 520 U.S. 43, 78-79 (1997)

(citation omitted); Lehman Bros. v. Schein, 416 U.S.

386, 391 (1974).

And of course, the tenet that States alone can

authoritatively construe their laws is on full display

in the Court’s abstention jurisprudence. Under

Pullman abstention, federal courts abstain from

hearing challenges to the constitutionality of state

enactments before state courts have the opportunity

to do so. See also R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 498 (1941). The Younger abstention doctrine

further precludes federal courts from hearing

constitutional challenges to state enactments that can

be raised during ongoing state criminal, and some

civil, proceedings. Younger, 401 U.S. 37. And the

Colorado River doctrine counsels federal courts to stay

or dismiss federal actions in the face of parallel state

court proceedings. Colo. River Water Conservation

Dist. v. United States, 424 U.S. 800 (1976).

8

These principles all show the wisdom of the

specific doctrine in question here: federal courts’

hesitance to force a limiting construction on state law

that neither the State’s courts nor its advocates

support. The Court takes federalism seriously and

has historically refrained from construing state

statutes when resolving constitutional challenges

that turn on the proper scope of non-federal laws. One

seminal example is Shipp v. Miller’s Heirs, where the

Court held itself bound by the State’s construction of

local real property laws. 15 U.S. 316, 325 (1817).

Similarly, Murdock v. City of Memphis, 87 U.S. 590,

632, 635 (1874), held that federal courts may not

review state-court holdings on state law.

Today, this practice has evolved into a

“special rule[]” of cautiously construing state laws.

Marcia L. McCormick, When Worlds Collide: Federal

Construction of State Institutional Competence, 9

U. Pa. J. Const. L. 1167, 1177 (2007). Starting from

the premise that state sovereignty strips federal

courts of “jurisdiction authoritatively to construe

state legislation,” United States v. Thirty-Seven (37)

Photographs, 402 U.S. 363, 369 (1971), the

rule constrains the federal judiciary to the

interpretation of a State’s high court or (in

appropriate circumstances) of “those charged with

enforcing” the challenged law. Grayned v. City

of Rockford, 408 U.S. 104, 110 (1972). Applying

appropriate restraint may be a “delicate task” where

a State’s high court is silent on the law in question;

yet because “it is not within [federal courts’] power to

construe and narrow state laws,” attention to

9

authoritative pronouncements by state and local

officials is often a second-best option. Id. at 109-10;

see also Broadrick v. Oklahoma, 413 U.S. 601, 617

(1973) (giving weight to state official’s construction).

And as especially relevant here, the same principle

applies to local ordinances, too. See City of Houston,

Tex. v. Hill, 482 U.S. 451, 474 (1987) (Powell, J.,

concurring) (quoting Gooding, 405 U.S. at 520).

Accordingly, the Court cautions against sua

sponte employing the constitutional avoidance canon

to non-federal laws (as the Third Circuit did here),

because the court might “rewrite a law to conform it

to constitutional requirements.” United States v.

Stevens, 559 U.S. 460, 481 (2010) (cleaned up). The

Court may in proper circumstances view state and

local officials’ “authoritative constructions” of their

laws as “highly relevant.” Forsyth Cty. v. Nationalist

Movement, 505 U.S. 123, 131 & n.9 (1992); Ward v.

Rock Against Racism, 491 U.S. 781, 796 (1989). Even

so, the Court has limited itself in these contexts to a

“construction that a state court or enforcement agency

has proffered,” Vill. of Hoffman Estates v. The

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5

(1982)—which helps avoid the danger of letting the

laudable desire to save a state law from constitutional

infirmity result in rewriting it altogether.

2. Against this backdrop, it is hardly surprising

that the majority of the federal courts of appeals stand

opposite the Third Circuit on this issue. Seven

circuits in fact—the Fourth, Fifth, Sixth, Seventh,

Eighth, Tenth, and Eleventh—approach the task of

10

resolving constitutional challenges that turn on the

proper construction of state law from a

straightforward federalist frame. Pets.’ Br. 23.

Two examples highlight the point. First, in Z.J.

Gifts D-4, L.L.C. v. City of Littleton, the Tenth Circuit

addressed the constitutionality of a permitting

process that required pre-approval for adult-oriented

businesses before they could apply for business

licenses. 311 F.3d 1220, 1223-24 (10th Cir. 2002),

rev’d on other grounds, 541 U.S. 774 (2004). The

Tenth Circuit declined to adopt a construction that

would have allowed the businesses to submit

applications while the pre-approval process was

ongoing—even though the City of Littleton urged that

reading—because the ordinance required “completed”

applications and the federal court recognized it lacked

power to ignore or amend this textual requirement.

Id. at 1233-34 (quotation omitted).

Similarly, the Eighth Circuit addressed a statute

requiring all picketing to occur at least fifty feet

from the target facility’s door. United Food & Comm.

Workers Int’l Union, AFL-CIO, CLC v. IPB, Inc.,

857 F.2d 422, 424 (8th Cir. 1988). Although the

State argued that the statute would be constitutional

in emergency circumstances or instances of violence,

the court declined to adopt this construction because

it was powerless to graft a new limitation onto

the statutory text. Id. at 431-32. It recognized that,

absent guidance from the State’s judiciary, a federal

court could not narrow a state statute without “a clear

line that a [state] court could draw” from the statute’s

11

text. Legend Night Club v. Miller, 637 F.3d 291, 301

(4th Cir. 2011) (citation omitted).

In both cases, the courts refused to apply an

atextual gloss to save state or local law that was not

drawn from a state high court decision. These courts

contemplated other sources of support that may have

buttressed a State’s narrowing construction—for

example if the construction was supported by the

statute’s legislative history. United Food, 857 F.2d at

424. But none suggest that federal courts may sua

sponte adopt a narrowing construction of state law

that neither state judicial decision nor official

interpretation supports. Their strict adherence to the

rule against modifying state law through judicial

interpretation stands in contrast to the Third Circuit’s

decision to do so here—at none of the parties’ behest.

More generally, the seven courts on this side of the

divide take novel state or local statutory language as

they find it and do not “add to, delete from [or] define”

it. Eubanks v. Wilkinson, 937 F.2d 1118, 1126 (6th

Cir. 1991) (quotation and alterations omitted). They

likewise decline to “impose their own narrowing

construction onto [an] ordinance if the state courts

have not already done so.” Hill v. City of Houston,

Tex., 789 F.2d 1103, 1112 (5th Cir. 1986) (quotations

and alterations omitted); see also Eubanks, 937 F.2d

at 1126 (quoting Hill, 789 F.2d at 1112). Instead—

and in line with the Court’s jurisprudence—these

courts recognize that where there is no state authority

on point, federal courts are left with “twin obligations”

to construe state statutes narrowly “without rewriting

12

[their] terms.” Dimmitt v. City of Clearwater, 985

F.2d 1565, 1572 (11th Cir. 1993) (quotation omitted).

They thus adopt narrowing constructions of a law only

where there is “every reason to believe the [state]

courts” would agree with them, which in proper

circumstances can include where state officials

propose the construction at issue. United Food, 857

F.2d at 434; see also Wis. Right To Life, Inc. v.

Barland, 751 F.3d 804, 834 (7th Cir. 2014) (accepting

a narrowing construction approved by “the state’s . . .

Attorney General” and “highest court”).

Conversely, these circuits do not unilaterally

modify state law by adding a narrowing construction

that neither the State’s courts nor its officials endorse.

See Beckerman v. City of Tupelo, Miss., 664 F.2d 502,

509 (5th Cir. 1981) (refusing to “impose our own

narrowing construction” where “[n]o narrowing

construction has been offered by the Tupelo city

council or the Mississippi courts”). This cautious

approach is rooted in the need to avoid “encroach[ing]

upon the domain of a state legislature by rewriting a

law to conform it to constitutional requirements.”

Legend Night Club, 637 F.3d at 301 (citation omitted).

In short, courts on this side of the issue—the correct

side—refuse to act as a “super state legislature.” Hill,

789 F.2d at 1112; see also United Food, 857 F.2d at

431 (quoting id.).

13

II. SUPREME COURT REVIEW IS NEEDED TO

RESTORE CERTAINTY ON THIS IMPORTANT

QUESTION OF FEDERALISM.

The Court should take up this case because the

Third Circuit’s decision to narrowly construe

Pittsburgh’s ordinance upsets the balance between

States’ legislative authority and federal court review.

It also deepened confusion in the federal appellate

courts on this issue, and makes it more difficult for

litigants who live in States covered by circuits on the

wrong side of the divide to obtain certainty on critical

matters of constitutional freedom.

A. The Decision Below Flouts The Prohibition

On Rewriting Or Amending State Laws.

The Third Circuit disregarded the limited

approach discussed above—grounded in the Court’s

precedents and adopted by many of its fellow

circuits—to avoid what should have been a fatal

constitutional challenge. In defending the ordinance,

the City was adamant that it construed the ordinance

to apply to sidewalk counseling. Pets.’ App. 23a-24a

nn.15-16. And the Supreme Court of Pennsylvania

had never interpreted the ordinance otherwise.

Nevertheless, the court below dismissed this

uncontested interpretation, finding it just short of

“irrelevant,” and at best “not dispositive.” Pets.’ App.

21a n.14.

Unmoored from the parties’ arguments and

without guidance from any state court, the Third

Circuit proceeded to “presume” that “any narrowing

14

construction” that was not wholly unreasonable must

be part of the ordinance. Pets.’ App. 21a-22a (citation

omitted). It then determined it was not entirely

unreasonable to exclude sidewalk counseling from all

four of the activities the ordinance prohibits within

the 15-foot buffer zone: congregating, patrolling,

picketing, and demonstrating. Pets.’ App. 22a-23a

(citing Pittsburgh, Pa., Municipal Code §§ 623.01-.07).

And although this reading may not be facially

frivolous, the court’s narrowing construction is

certainly not drawn from any “clear line” in the

ordinance itself. Legend Night Club, 637 F.3d at 301

(citation omitted). This is thus not a case where the

court found the parties’ positions untenable when

measured against the ordinance’s text and purpose.

Indeed, the Third Circuit looked outside the

ordinance’s text—and Pennsylvania law itself, for

that matter—when crafting its interpretation of

“congregating.” The court reasoned that the term did

not necessarily apply to one-on-one sidewalk

counseling because only “groups of three or more” can

be said to congregate. Pets.’ App. 24a. Support for

this view, however, came from District of Columbia

common law that defines “congregating” as forming a

group of three or more. Boos v. Barry, 485 U.S. 312,

316-17 (1988) (cited at Pets.’ App. 24a).

This

ordinance contains no similar definition.

The Third Circuit did not base its consideration of

the other three types of prohibited conduct in

Pennsylvania law, either. The court asserted, for

instance, that “demonstrating” “surely does not”

15

include “speaking to someone at a normal

conversational volume and distance.” Pets.’ App. 24a.

The broad definition of the term, however—

“participat[ing] in a public display of opinion,”

Demonstrate, The American Heritage Dictionary of

the English Language 484 (4th ed. 2006)—does not

lend much support to this assumption. And evidence

from the meeting where the ordinance was

deliberated confirms that its purpose was to stifle

conduct much like Petitioners’. See Pets.’ App. 8a,

48a, 72a, 81a, 142a-43a, 165a-66a. Unlike other

courts that deliberately refrain from “defin[ing]”

statutory terms when developing a narrowing

construction, Eubanks, 937 F.2d at 1126, here the

Court went out of its way to land on something the

ordinance could mean. The fact that its narrowing

construction found no basis in Pennsylvania law and

was flatly contradicted by state officials’ practice

appeared to give the court little pause.

B. The Consequences Of The Decision Below Call

For Review.

The Third Circuit’s approach is not only wrong,

but has damaging ripple effects that justify the

Court’s attention.

First, the decision below deepens division in the

lower courts. Disagreement on this issue is lopsided,

with a two-to-one majority of circuit courts adhering

to the proper limits on federal courts’ review of state

and local law. But by unilaterally narrowing the

ordinance in the name of constitutional avoidance, the

Third Circuit became the third federal appellate court

16

to endorse the opposite view. It thus elevated what

might have been dismissed as an outlier position into

a mature divide that warrants resolution.

Here, Pittsburgh’s enforcement officers had taken

the position that all four of the acts the ordinance

prohibits could apply to sidewalk counseling, and

during litigation the parties were in agreement that,

at minimum, “demonstrating” likely applied. See

Pets.’ App. 23a-24a nn.15-16. Eight other circuits

would not have worked so hard to find a potential

reading of the ordinance that could allow the court to

bypass Petitioners’ constitutional claims. Some, in

fact, would have relied on the City’s refusal to offer a

narrowing construction as an effective concession.

See Beckerman, 664 F.2d at 509.

Yet the Third Circuit did not refuse “either to

amend the ordinance or proffer a limiting instruction”

where the City “insisted” the ordinance was “valid[] as

literally read.” Hill, 789 F.2d at 1111-12. It followed

the First and Ninth Circuits down a different path

instead: setting aside the City’s reading because it

made the “law more vulnerable to constitutional

challenge,” Cutting v. City of Portland, 802 F.3d 79,

84-85 & n.8 (1st Cir. 2015), and “saving” the City’s

reading of its own ordinance from an otherwise

powerful First Amendment challenge, Hoye v. City of

Oakland, 653 F.3d 835, 848 (9th Cir. 2011). Indeed,

the Third Circuit viewed the absence of guidance from

Pennsylvania courts on this issue as creating a

vacuum that required it to seek out “any narrowing

17

construction” that was not wholly unreasonable.

Pets.’ App. 21a.

The upshot is that now sixteen States, as well as

their cities and municipalities, have no guarantee

that federal courts will take their laws at face value

when evaluating constitutional challenges. Because

foundational principles of federalism should not

depend on geography, the Court should intercede.

Second, this growing confusion involves an

important national issue. The line between giving

state law the benefit of the doubt and effectively

rewriting it is not academic; if federal courts get the

balance wrong, judicial review can become “a serious

invasion of the legislative domain.” Stevens, 559 U.S.

at 481.

The Third Circuit may have thought that it was

“saving” the City from itself, but this approach smacks

of paternalism, not the respect due to co-sovereign

States and their political subdivisions. To be sure,

there are federalism concerns with being too quick to

invalidate state or local law on constitutional grounds,

and federal courts should not ignore fair limiting

constructions. But if courts change the meaning of

state or local law to avoid a constitutional question,

the court has not saved the law so much as declared

that a different law passes constitutional muster.

And that is the case here: All parties to this action

recognized that the Pittsburgh ordinance covers

Petitioners’ conduct, including sidewalk counseling,

yet they are left with a declaration that the First

18

Amendment allows an ordinance prohibiting different

conduct—an ordinance Pittsburgh did not enact.

This is why the Third Circuit erred in

“substituting its own notions” for the City’s—and

why the Court should step in. Bd. of Educ. of Rogers,

Ark. v. McCluskey, 458 U.S. 966, 971 (1982)

(per curiam). There are a host of limiting

constructions in cases like this that may not seem

wholly unreasonable. Enforce the ordinance in these

circumstances, against those entities, in that manner,

and so on. But all of these narrowing constructions

reflect policy judgments. Where a statute does not

plainly lead to one outcome and a federal court has no

indication that the State’s high court would endorse

its choice—including appropriate consideration of

what enforcing officials do (or in this case, do not)

think it means—the court should not be quick to

choose from the array. See Bradford R. Clark,

Ascertaining the Laws of the Several States:

Positivism and Judicial Federalism After Erie, 145 U.

Pa. L. Rev. 1459, 1472 (1997) (explaining this Court

has clearly established that it will not “exercise

substantial policymaking discretion on behalf of the

states”).

Third, and finally, allowing the decision below to

stand leaves Petitioners and parties like them with no

meaningful remedy for federal constitutional claims.

The sticking point in the Third Circuit’s approach

is that federal courts’ constructions of state and local

laws are not binding on state courts. This means that

federal courts leave litigants with the worst of both

19

worlds when they adopt a limiting construction of a

state statute with no evidence the State’s high court

would agree. The parties may hope state officials will

limit enforcement to the context the federal court

considered, but there is no guarantee. Rather, they

are escorted from the courthouse without an answer

to the question that brought them there in the first

place: whether enforcement of the law against

Petitioners and those like them is also consistent with

the Constitution.

The risk of an advisory opinion that could render

the entirety of federal litigation for naught is even

greater in cases where the federal court “attempts a

narrowing interpretation that deviates widely from

the statute’s apparent meaning.” Wis. Right To Life,

Inc., 751 F.3d at 833-34 (quotation omitted).

Petitioners fought over five years to protect their First

Amendment rights. Yet they received an answer that

gives them no protection if Pennsylvania and its

courts deem sidewalk counseling within the

ordinance’s reach. The ephemeral nature of this relief

confirms why federal courts are ill-advised to “write

nonbinding limits into a silent state statute.”

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

770 (1988).

Further, lack of an effective remedy is particularly

egregious because the constitutional defect in the City

of Pittsburgh’s ordinance is plain:

As incorporated against the States, the First

Amendment prohibits restricting expression based on

its message, ideas, subject matter, or content. Reed v.

20

Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015).

Content-based restrictions “are presumptively

unconstitutional” and can stand only “if the

government proves that they are narrowly tailored to

serve compelling state interests.” Id. As written,

Pittsburgh’s buffer-zone ordinance criminalizes

knowingly congregating, patrolling, picketing, or

demonstrating within a 15-foot buffer zone extending

from any entrance to a hospital or health care facility.2

Pittsburgh, Pa., Municipal Code §§ 623.01-07. Yet it

turns out that whether a speaker violates the bufferzone ordinance is dependent on what that speaker

says.

The ordinance permits peaceful, one-on-one

conversations on a host of topics, treating those

discussions as purely social. Because Petitioners’

peaceful, one-on-one conversations about pregnancy

resources and abortion alternatives are wrapped in

more politically charged garb, however, they are

tagged as advocacy. Indeed, the City Council’s

hearings on the ordinance revolved around abortion,

and the ordinance creates buffer zones outside

abortion clinics, but no other health care facilities.

See Pets.’ App. 8a, 48a, 72a, 81a, 142a, 165a-66a.

It thus beggars belief that the ordinance was not

aimed at specific speakers because of the content of

their message instead of the manner in which they

2 The ordinance also contains an 8-foot bubble-zone restriction,

but the City abandoned that portion of the ordinance after an

earlier Third Circuit decision. Brown v. City of Pittsburgh, 586

F.3d 263, 283 (3d Cir. 2009); Pets.’ App. 196a–97a.

21

present it. After all, even the court below recognized

the constitutional weakness; otherwise there would

have been no need to contort the ordinance to avoid

applying it to sidewalk counseling. See Pets.’ App. 20a

(explaining that applying the ordinance to sidewalk

counseling would “prohibit one-on-one conversations

about abortion but not about other subjects within the

zone”); see also Reed, 135 S. Ct. at 2222 (constitutional

concern where legality of expression “depend[s]

entirely on the . . . communicative content”).

The ordinance’s constitutionality accordingly must

satisfy strict scrutiny, which it cannot do. Assuming

a compelling state interest, there is no narrow

tailoring.

The City’s stated concerns include

preventing “disputes between those seeking

[abortions] and those who would counsel against their

actions,” obstructing access to clinics, and inefficient

“deployment of [police] services.” Pets.’ App. 44a. But

the ordinance does not target the type of speech “that

might create problems.” Bd. of Airport Comm’rs of

L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987).

Petitioners’ method of demonstrating is quiet and

does not create disputes, impede access to clinics’

doors, nor require police interventions. Pets.’ App.

10a. Petitioners thus “are not [the type of] protestors”

who cause the strife the City fears. McCullen v.

Coakley, 573 U.S. 464, 489 (2014).

The ordinance does, however, place serious

burdens on Petitioners’ speech. The Court has

already recognized—in a sidewalk counseling case, no

less—that “one-on-one communication” is “the most

22

effective, fundamental, and perhaps economical

avenue of [] discourse.” McCullen, 573 U.S. at 488

(citation omitted). By criminalizing this type of

advocacy within the buffer zone, the City has

effectively “stifled petitioners’ message,” id. at 490,

without adequate constitutional justification.3

Petitioners thus should have prevailed on their

constitutional claim, making more troubling the lower

court’s decision to sidestep the issue.

*

*

*

The Third Circuit’s novel rendering of the

Pittsburgh ordinance transformed what should have

been a clear victory for the First Amendment into a

hollow win that holds only so long as the City of

Pittsburgh agrees to enforce the ordinance no broader

than the court’s inventive construction.

“Our

federalism” works best when “the States and their

institutions are left free to perform their separate

functions in their separate ways.” Younger, 401 U.S.

3 Although the majority of this brief focuses on the federalism

concerns inherent in Question 1, the amici States urge the Court

to take up Question 2 as well, which focuses on the First

Amendment’s requirements in the context of this and many

similar buffer-zone ordinances nationwide. Indeed, there would

be serious constitutional concern even if the Third Circuit’s

narrowing construction were appropriate because the decision

below allows the ordinance to bar peaceful forms of advocacy

beyond sidewalk counseling—like displaying signs, wearing

buttons, or prayer—based on the pro-life content of that

expression. Cf. Jews for Jesus, 482 U.S. at 575 (finding Los

Angeles Airport’s ban on all expressive activity, including nonverbal expression, swept too broad).

23

at 44. The lower court’s sua sponte decision to rewrite

the ordinance leaves Petitioners out cold and

magnifies confusion over foundational questions of

state-federal relations. The Court should intervene.

CONCLUSION

This Court should grant the Petition for a Writ of

Certiorari.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

1900 Kanawha Blvd. East

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

THOMAS T. LAMPMAN

Assistant Solicitor

General

JESSICA A. LEE*

Special Assistant

* admitted only in

New York; practicing

under supervision of

West Virginia attorneys

Counsel for Amici Curiae State of West Virginia

[additional signatures on following page]

Dated: April 29, 2020

Additional Counsel

STEVE MARSHALL

Attorney General

State of Alabama

KEVIN G. CLARKSON

Attorney General

State of Alaska

LESLIE RUTLEDGE

Attorney General

State of Arkansas

24

TIM FOX

Attorney General

State of Montana

DOUG J. PETERSON

Attorney General

State of Nebraska

MIKE HUNTER

Attorney General

State of Oklahoma

LAWRENCE G. WASDEN

Attorney General

State of Idaho

ALAN WILSON

Attorney General

State of South

Carolina

CURTIS T. HILL

Attorney General

State of Indiana

JASON RAVNSBORG

Attorney General

State of South Dakota

DANIEL CAMERON

Attorney General

Commonwealth of

Kentucky

HERBERT H.

SLATERY III

Attorney General and

Reporter

State of Tennessee

JEFFREY MARTIN

LANDRY

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

LYNN FITCH

Attorney General

State of Mississippi

SEAN REYES

Attorney General

State of Utah