Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN, et al., Plaintiffs, Civil Action No. 2:09-cv-951 v. (Hon. Nora Barry Fischer TOM CORBETT, Attorney General, Electronically filed Commonwealth of Pennsylvania, Defendant. PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT S MOTION FOR JUDGMENT ON THE PLEADINGS Defendant Corbett s Motion for Judgment on the Pleadings (Doc. 49, which seeks to dismiss plaintiffs claims that 25 Pa. C.S is unconstitutional as applied under the First Amendment, 1 is based on a fundamental misunderstanding of what it means for a challenge to the constitutionality of a statute to be facial or as applied. As the Supreme Court recently explained in Citizens United v. Federal Election Commission, the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. 2 Rather, the distinction goes to the breadth of the remedy employed by the Court, not what must 1 Doc. 49 (emphasis added; see also Defendant Corbett s Brief in Support of Motion for Judgment on the Pleadings (Doc. 50 (hereafter Corbett Brief at 2, 7. 2 U.S.,, 130 S.Ct. 876, 893 (2010.

2 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 2 of 11 be pleaded in a complaint. 3 Although Plaintiffs alleged in their Amended Complaint that 25 Pa. C.S violates the First Amendment both on its face and as applied, these are not two separate and distinct claims. All that Plaintiffs must allege is that the statute violates their First Amendment rights. It is then up to the Court to determine whether 1713 must be struck down in its entirety, or whether it can be construed more narrowly to prohibit its application only to certain facts. Like in every case that has considered a challenge to similar laws restricting election-related petitioning and registration activities, the issue is whether 1713 is unconstitutional. Whether the challenge is considered facial or as applied is largely irrelevant, especially at this pleading stage of the proceedings. 4 I. Plaintiffs As Applied Challenge Is Not a Separate Legal Claim, but a Framework for Analyzing their First Amendment Claim, and Thus Defendant s Motion Does Not Actually Move to Dismiss Any of Plaintiffs Claims. Whether a challenge is facial or as applied frames the evidence that the Court should consider on a particular constitutional test, like strict scrutiny for content-based discrimination, overbreadth, vagueness, etc., and affects the equitable relief the Court grants. A facial attack tests a law s constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. 5 An as-applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular 3 Id. 4 Citizens United, U.S. at, 130 S. Ct. at United States v. Marcavage, 609 U.S. 264, 273 (2010 (citation omitted. 2

3 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 3 of 11 circumstances deprived that person of a constitutional right. 6 There is certainly nothing impermissible about arguing them in the alternative or together as a hybrid. 7 But these analytical frameworks should not be confused with the underlying substantive constitutional claims. The Citizens United majority cites a Harvard Law Review article, by Professor Richard Fallon, 8 that recognizes the confusion and helps to dispel it: Both within the Supreme Court and among scholarly commentators, a debate rages over when litigants should be able to challenge statutes as facially invalid, rather than merely invalid as applied. To a large extent, this debate reflects mistaken assumptions. There is no single distinctive category of facial, as opposed to as-applied, litigation. All challenges to statutes arise when a litigant claims that a statute cannot be enforced against her. In the course of as-applied litigation, rulings of facial invalidity sometimes occur, but they do not reflect trans-substantive rules governing a purported general category of facial challenges. Rather, rulings that a statute is facially (or partly invalid are the consequence of the particular doctrinal tests that courts apply to resolve particular cases. Some doctrinal tests call for statutes to be tested on their faces, whereas others do not. Accordingly, debates about the permissibility of facial challenges should be recast as debates about the substantive tests that should be applied to enforce particular constitutional provisions. 9 In other words, [f]acial challenges are not sharply categorically distinct from as-applied challenges to the validity of statutes Id. (Citation omitted. 7 Id. (Citation omitted. 8 See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev (2000 (hereafter Fallon. The Court had cited this article previously, see Gonzales v. Carhart, 550 U.S. 124, 168 (2007; Sabri v. United States, 541 U.S. 600, 610 (2004, as have many lower courts. 9 Fallon, supra, at Fallon explains this further: [T]here is no single distinctive category of facial, as opposed to as-applied, litigation. Rather, all challenges to statutes arise when a particular litigant claims that a statute 3

4 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 4 of 11 The doctrinal tests of constitutional validity raised by Plaintiffs in this case are that 1713 violates the First Amendment because it is not closely tailored to a compelling government interest, is unconstitutionally vague and overbroad, and violates due-process-notice precepts. The Court will apply the well-developed body of law that has emerged for these respective doctrines. The issue of whether the analysis is facial or as applied will be irrelevant, except to frame how the Court should considers the statute, i.e., by looking just at the text in the facial challenge or considering the history and potential application for the as-applied challenge. Either way, the question for the Court will be the same, namely, whether the statute violates the First and/or Fourteenth Amendments under any of these doctrinal tests. The Supreme Court, in Citizens United, recently suggested that the two analytical models are used largely to shape the breadth of the remedy employed by the Court. 11 For instance, in this case there are essentially two possible applications that can be fairly derived from the plain language of the statute, which reads as follows: A person may not give, solicit or accept cannot be enforced against her. In ruling on such challenges, courts employ doctrinal tests of constitutional validity, such as purpose tests, suspect-content tests inquiring whether a regulation is closely tailored to a compelling governmental interest, and so forth. And in applying such tests to resolve particular claims, courts often engage in reasoning indicating that a statute is invalid in whole or in part, and not merely as applied. In this sense, facial challenges undoubtedly occur, and they are important. Nonetheless, it is more misleading than informative to suggest that facial challenges constitute a distinct category of constitutional litigation. Rather, facial challenges and invalidations are best conceptualized as incidents or outgrowths of as-applied litigation. Id. Id. at 1324 (note omitted. 11 Citizens United, U.S. at, 130 S. Ct. at 893. Fallon explains that all challenges are as applied, and that facial invalidation results in broader remedies holding that more and typically all applications of the law are unconstitutional. See Fallon at

5 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 5 of 11 payment or financial incentive to obtain a voter registration if the payment or incentive is based upon the number of registrations or applications obtained. The crucial issue is the interpretation of based upon. One possibility is that the statute applies just to per-card remuneration, e.g., five dollars for every registration application turned in. The other interpretation is broader, namely, that any financial incentive, even performance standards, is ultimately based upon the number of registrations or applications obtained, and thus violates the statute. Under the latter interpretation, discharging employees because they consistently have failed to meet a performance goal violates the statute. In resolving the constitutional challenge, the Court could rule broadly and declare that both applications are unconstitutional, which would effectively strike the entire statute. According to Fallon, this would be termed facial invalidation. Or the Court could rule more narrowly that the per-card restriction is constitutional but the ban on productivity standards is not. The result would be that the statute is only partly unconstitutional, i.e., as applied to Plaintiffs, who have not and do not expect to rely on a percard-compensation system. This would be termed an as-applied ruling. But, as in Citizens United, that is not an issue that needs to be determined at the pleading stage, but one that the Court can manage when it determines the breadth of any appropriate remedy. The proof that the distinction between facial and as-applied challenges is largely irrelevant to the Court s decision whether 1713 violates the First and/or Fourteenth Amendments can be seen in the many cases ruling on similar challenges to laws that restrict an analogous election-related activity, payments to third-party-registration groups and petition circulators. Courts at every level, from the U.S. Supreme Court to the federal district courts, have resolved these challenges without even mentioning whether the challenges are facial or as 5

6 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 6 of 11 applied. 12 The sole focus is on whether the law violates one of the doctrinal tests of constitutional validity, typically under the First Amendment. The courts have then ruled either broadly, striking the entire statute, or more narrowly, invalidating it in part. In some cases the court calls the ruling as applied or facial, but in most of the cases there is simply no mention of the issue. In sum, whether the Plaintiffs have specified the analytical mode in their pleadings, or the Court ultimately elects to analyze the claims through the facial or as-applied prism, is irrelevant. Indeed, the matter need not even be pleaded in a complaint. 13 In Citizens United, the Supreme Court held that the parties could not stipulate to a dismissal of the facial claim while pressing an 12 See Buckley v. American Constitutional Law Found., Inc., 525 U.S. 182 (1999 (assorted restrictions on petition circulators held to violate First Amendment with no discussion of whether challenge was facial or as applied; Meyer v. Grant, 486 U.S. 414 (1988 (court holds that ban on payment of petition circulators violates First Amendment with no discussion of whether challenge is facial or as applied; Citizens for Tax Reform v. Deters, 518 F.3d 375 (6 th Cir (challenge to restrictions on financial remuneration for petition and registrationsignature gatherers found to violate First Amendment without any discussion of facial versus asapplied challenge; Person v. New York State Bd. Of Elections, 467 F.3d 141 (2d Cir (upholding ban on per-signature-payment statute without any discussion of whether challenge is facial or as applied; Project Vote v. Blackwell, 455 F.Supp.2d 694 (N.D. Ohio 2006 (court holds that statute burdening voter- registration efforts for paid canvassers violates First Amendment without mentioning whether facial or as-applied challenge; Idaho Coalition United for Bears v. Benarrusa, 234 F.Supp.2d 1159, 1165 (D. Idaho 2001 (First Amendment challenge sustained to, inter alia, payment restriction for petition circulars without any mention of facial versus as-applied challenges; On Our Terms 97 PAC v. Sec y of State of State of Maine, 101 F.Supp.2d 19 (D. Me (court holds that statute restricting payment to petition circulators violates First Amendment without distinguishing whether challenge is facial or as applied; Term Limits Leadership Council, Inc. v. Clark, 984 F.Supp. 470 (court holds law prohibiting persignature payment for petitions violates First Amendment without any distinction on facial versus as applied; Limit v. Maleng, 874 F.Supp (W.D. Wash (accord. 13 Citizens United, U.S. at, 130 S.Ct. at 893 (citation omitted ( [T]he distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.. 6

7 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 7 of 11 as-applied claim because such a stipulation would divest the Court of discretion to devise an appropriate remedy. 14 If the First Amendment claim is properly before the court, as it was in Citizens United and as it is in this case, the court retains authority to consider and rule upon one or both arguments. 15 Therefore, the issue raised in Corbett s motion is more properly left to a brief about how to analyze Plaintiffs First and Fourteenth Amendment claims, not the dismissal of any substantive constitutional claims. And since Corbett does not contest Plaintiffs facial challenge, thereby conceding, at least at this stage, that a First Amendment claim is proper, he is not actually moving to dismiss any of Plaintiffs substantive claims. II. An As-applied Challenge Focuses More Narrowly on a Statute s Particular Application, but since 1713 Has Been and Fairly Can Be Applied to Plaintiffs, They Meet the Test of Standing. A separate issue interwoven in Corbett s argument is that Plaintiffs do not have standing to argue the as applied claim because Corbett has not personally taken any action, or threatened to taken any action, to enforce 25 Pa. C.S against [Plaintiffs]. Standing is, of course, a valid concern at all stages of the litigation, but once again Corbett s argument is based on a misunderstanding of the how the term as applied is used in this context. Standing requirements are relaxed in First Amendment cases raising facial and overbreadth challenges to laws restricting expression. 16 Facial challenges to overly broad 14 Id. at Id. at See Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, (1984; Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973; see also Sabri v. United States, 541 U.S. 600, (2004 (reaffirming viability of facial attacks and overbreadth challenges in free-speech cases. 7

8 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 8 of 11 statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society to prevent the statute from chilling the First Amendment rights of other parties not before the court. 17 Even when a First Amendment challenge to the law could be brought by a person more directly affected by the restriction, there is the possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in protected activity. Society as a whole then would be the loser. 18 Consequently, an individual against whom no enforcement action has been taken can still challenge a regulation because [that regulation] also threatens others not before the court those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid. 19 Therefore, Plaintiffs in this case clearly have standing to assert their facial challenge, which is likely the reason Corbett has expressly not moved to dismiss the facial challenge. Moreover, because the statute has been enforced against ACORN s employees, and a fair reading of the statute s plain language shows that it is susceptible to such an expansive interpretation, Plaintiffs have standing to mount an as-applied challenge. The fact that neither Corbett nor his office have directly prosecuted or threatened to prosecute the Plaintiffs under 17 Munson, 467 U.S. at 958; see also Peachlum v. City of York, 333 F.3d 429, 438 (3d Cir ( Standing is relaxed in First Amendment overbreadth and facial challenges not just because [the plaintiffs ] own rights of free expression are violated, but because of a judicial prediction or assumption that the [ordinance s] very existence may cause others not before the court to refrain from constitutionally protected speech or expression (quoting Broadrick, 413 U.S. at Munson, 467 U.S. at Peachlum, 333 F.3d at 438 (citations omitted (ellipses in original. 8

9 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 9 of does not negate Plaintiffs standing to litigate the as-applied challenge against Corbett. Nor does Corbett s disclaimer that he would not enforce the statute as broadly as Zapalla did against ACORN s employees insulate Corbett from suit. 20 One of the cases cited in Corbett s brief is on point. In The Pitt News v. Fisher, 21 the Pitt News brought a First Amendment challenge to a state statute that restricted the newspaper s ability to gather alcohol-related advertisements. The law was enforced by various parties, including the Pennsylvania State Police, but the Attorney General did not share that enforcement power. As a result of the statute s passage and the potential for enforcement, The Pitt News lost advertising revenue because would-be advertisers were chilled by the mere possibility of prosecution. 22 The Pitt News sued the Attorney General, the head of the Liquor Control Board, and the director of State Police Liquor Enforcement Unit, even though none of these individuals had enforced the law against the Pitt News. Nevertheless, the Court of Appeals held that the Pitt News had standing to press its First Amendment challenge to the statute against all three defendants, including the Attorney General. 23 The question was not whether the Attorney General had ever prosecuted or threatened to prosecute The Pitt News. 20 The fact that Corbett does not believe ACORN has violated the law is of no moment. The Supreme Court this past term held, in United States v. Stevens, that a government official cannot invoke prosecutorial discretion to claim he will enforce the law more restrictively than the plain language provides and thereby save the statute from being declared unconstitutional: the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. U.S. at, 130 S.Ct. at 1591 (citation omitted F.3d 354 (3d Cir Id. at Id. at

10 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 10 of 11 The question, which the Court of Appeals answered affirmatively, was whether The Pitt News had alleged an injury caused by the statute and whether the injury was fairly traceable to the statute and redressible by the court so as to satisfy the rules of standing. 24 In subsequently declaring the statute unconstitutional, the Court of Appeals never once mentioned whether the newspaper s challenge was facial or as applied. 25 It simply ruled, despite the absence of any actual prosecution against the newspaper, that the statute was unconstitutional as applied to the Pitt News. 26 Similarly, in this case the Plaintiffs have alleged that the statute can be fairly read, and indeed was so read by one District Attorney, to subject them to criminal prosecution over their use of performance standards to manage paid employees conducting voter-registration campaigns. The injury is not Corbett s overt threats of prosecution, which admittedly he has not made, but as in The Pitt News it is the very existence of the statute itself, and its actual and potential enforcement, that causes the injury. Therefore, Plaintiffs have adequately pled an injury caused by the statute to satisfy standing requirements for the as-applied challenge. As in Citizens United, it is likely to be the breadth of the remedy in striking down the statute that will affect whether the analysis is characterized as facial or as applied. 24 Id. at See The Pitt News v. Pappert, 379 F.3d 96 (3d Cir Id. at

11 Case 2:09-cv NBF Document 52 Filed 08/16/10 Page 11 of 11 CONCLUSION This Court should deny Defendant s motion for judgment on the pleadings because it fails to articulate a valid legal argument for dismissing any of Plaintiffs three constitutional claims. Respectfully submitted, /s/ Brian Mellor /s/brian Mellor Brian Mellor Admitted Pro Hac Vice MA Bar Number ( bmellor@projectvote.org /s/ Teresa James Teresa James Admitted Pro Hac Vice OH Bar Number ( tjames@projectvote.org PROJECT VOTE th Street SE Washington, DC /s/ Witold J. Walczak Witold J. Walczak PA ID No.: vwalczak@aclupgh.org /s/ Sara J. Rose Sara J. Rose PA ID No.: srose@aclupgh.org AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA ( /s/ Claudia Davidson Claudia Davidson OFFICES OF CLAUDIA DAVIDSON PA ID No.: Law and Finance Building Pittsburgh, PA ( (p cdavidson@choiceon .com ATTORNEYS FOR PLAINTIFFS August 16,