Common Cause PA v. Comm PA ( 2009 )

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Precedential or Non-Precedential: Precedential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 Ohio 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.
49