De LA Fuente v. Cortes et al

BRIEF IN SUPPORT re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Pa.December 1, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROQUE “ROCKY” DE LA FUENTE Plaintiff, v. PEDRO A. CORTÉS, in his official capacity as the Secretary of the Commonwealth of Pennsylvania; and JONATHAN MARKS, in his official capacity as Commissioner of the Bureau of Commissions, Elections and Legislation, Defendants. : : : : : : : : : : : : : : : CIVIL ACTION No. 1:16-CV-01696 Judge Jones Complaint filed 8/15/16 Filed Electronically BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Respectfully submitted, BRUCE R. BEEMER Attorney General Office of Attorney General BY: NICOLE J. RADZIEWICZ Deputy Attorney General 15th Floor, Strawberry Square Attorney ID 314061 Harrisburg, PA 17120 Phone: (717) 783-3146 KENNETH L. JOEL Fax: (717) 772-4526 Chief Deputy Attorney General nradziewicz@attorneygeneral.gov Chief, Civil Litigation Section DATE: December 1, 2016 Counsel for Defendants Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 1 of 28 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... ii I. INTRODUCTION .................................................................................... 1 II. FACTUAL & PROCEDURAL HISTORY ............................................. 2 III. QUESTIONS PRESENTED ................................................................. 6-7 A. Whether Plaintiff’s challenges are barred by res judicata and/or the Rooker-Feldman Doctrine? ................................................................. 6 B. Whether Plaintiff’s claims are properly dismissed pursuant to Rule 12(b)(1) because they are not justiciable? ........................................... 6 C. Whether Plaintiff failed to state a claim that the statutory sections in dispute are unconstitutional? ............................................................... 7 IV. ARGUMENT............................................................................................ 7 A. Plaintiff’s Challenges are Barred by Res Judicata and/or the Rooker- Feldman Doctrine ................................................................................ 8 1. Plaintiff’s claims are barred by res judicata ................................... 9 2. Plaintiff’s claims are barred by the Rooker-Feldman Doctrine ........................................................................................ 12 B. Plaintiff’s Claims Are Not Justiciable ............................................... 13 1. Plaintiff’s claims related to the 2016 election are moot .............. 14 2. Plaintiff lacks standing to generally challenge the constitutionality of the challenged provisions of the Election Code ...................... 15 C. Plaintiff Fails to State a Claim Because the Disputed Statutory Provisions are Constitutional ............................................................ 19 V. CONCLUSION ............................................................................................ 22 Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 2 of 28 ii TABLE OF AUTHORITIES Cases Allen v. Wright, 48 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ............ 13, 14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................... 7 Balent v. City of Wilkes-Barre, 669 A.2d 309 (Pa. 1995) ...................................9, 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................... 7 Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002) ...........................................21 Colonial Park Care Ctr., LLC v. Dallas, 2016 WL 4765966, at *5 (M.D. Pa. Sept. 13, 2016) .....................................................................................11 Constitution Party of Pennsylvania v. Cortés, 712 F. Supp. 387 (E.D. Pa. 2010) .....................................................................................................18 Edmonson v. Lincoln Nat. Life Ins. Co., 725 F.3d 406 (3d Cir. 2013) ....................13 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 282125 S. Ct. 1517, 1520, 161 L. Ed. 2d 454 (2005)........................................................................9, 12 Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010) .................................... 8 Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers v. Kelly, 815 F.2d 912 (3d Cir. 1987) .......................................................................14 Jones & Laughlin Steel Corp., 477 A.2d 527 (Pa. Super. Ct. 1984) .......................10 League of Women Voters of Pennsylvania v. Cappy, 2009 WL 1845217, at *3 (M.D. Pa. June 26, 2009) ......................................................................................14 Libertarian Party of Ill. v. Rednour, 108 F.3d 768 (7th Cir. 1997) .........................21 Libertarian Party of Michigan v. Johnson, 905 F. Supp. 2d 751 (E.D. Mich. 2012) .................................................................................................20 Lujan v. Defenders of Wildlife, 504 U.S. 555 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)................................................................................. 13, 17 Martin v. Keitel, 205 F. App’x 925 (3d Cir. 2006) ..................................................16 McArdle v. Tronetti, 627 A.2d 1219 (Pa. Super. Ct. 1993) .....................................10 Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884 (3d Cir. 1977) ......................... 8 Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 3 of 28 iii Nat’l Comm. of U.S. Taxpayers Party v. Garza, 924 F. Supp. 71, 73-74 (W.D. Tex. 1996) ..................................................................................................21 Pa. Prison Soc. v. Cortés, 508 F.3d 156 (3d Cir. 2007) ................................... 17, 18 Presbytery of New Jersey of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454 (3d Cir. 1994) .................................................................................. 18 Raines v. Byrd, 521 U.S. 811 117 S. Ct. 2312 (1997) .............................................15 Rockefeller Ctr. Properties, Inc. Securities Litig., 184 F.3d 280 (3d Cir. 1999) ......................................................................................................... 3 Springer v. Balough, 96 F. Supp. 2d 1250 (N.D. Okla.), aff'd, 232 F.3d 902 (10th Cir. 2000) .....................................................................................................21 Storer v. Brown, 415 U.S. 724, 728, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974)................................................................................. 19, 20 Toll Bros. v. Twp. of Readington, 555 F.3d 131 (3d Cir. 2009) ....................... 13, 15 Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542 (3d Cir. 2006) ................................................................................................ 11, 12 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .......................................20 Van Susteren v. Jones, 331 F.3d 1024 (9th Cir. 2003) ............................................20 Whitehead v. Shugars, 71 F. App’x 99 (3d Cir. 2003) ............................................12 Statutes Article III of the United States Constitution ............................................................13 Federal Rule of Civil Procedure 12(b)(6) .................................................................. 7 Federal Rule of Civil Procedure 8(a)(2) .................................................................... 7 First Amendment to the United States Constitution ................................................19 Fourteenth Amendment to the United States Constitution ......................................19 Federal Rule of Civil Procedure 12(b)(1) ........................................................ passim Federal Rule of Civil Procedure 12(b)(6) ..............................................................7, 8 28 U.S.C. § 1738 (Full Faith and Credit Act) ............................................................ 9 Section 2911.1 of the Election Code, 25 Pa. Stat. Ann. § 2911.1 .......... 4, 10, 15, 19 25 P.S. § 2911(b) ........................................................................................................ 2 25 P.S. § 2911(e)(5) ......................................................................................... passim 25 P.S. §2911(e)(6) .......................................................................................... passim Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 4 of 28 Pedro A. Cortés, in his official capacity as the Secretary of the Commonwealth (“Secretary Cortés”), and Jonathan Marks, in his official capacity as Commissioner of the Bureau of Commissions, Elections and Legislation (“Commissioner Marks”) (collectively “Commonwealth Defendants”), by and through their undersigned counsel, hereby submit this Brief in Support of their Motion to Dismiss the Amended Complaint, filed by Plaintiff, Roque “Rocky” De La Fuente (“Plaintiff” or “Mr. De La Fuente”). I. INTRODUCTION Plaintiff initiated this lawsuit to obtain emergency injunctive relief in the form of an order directing Defendant Marks to accept his nomination papers to run as an independent candidate for President of the United States in the 2016 general election, by challenging long-standing provisions of the Pennsylvania Election Code. This Honorable Court initially abstained from ruling on Plaintiff’s claims pursuant to the Pullman abstention doctrine. Plaintiff subsequently initiated suit in the Commonwealth Court, where he lost. Particularly, the Commonwealth Court disagreed with the Plaintiff’s interpretation of the applicable statutory sections, and it denied the requested emergency relief. The Commonwealth Court did not reach any constitutional claims because Plaintiff failed to raise any such claims, although there was no legal obstacle to doing so. Plaintiff is now back before this Court, despite the election being over, requesting that this Court afford Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 5 of 28 2 the relief requested in his Amended Complaint.1 This Court should reject his claims, however, for the reasons set forth below. II. FACTUAL & PROCEDURAL HISTORY Plaintiff was a candidate for the nomination of the Democratic Party for President of the United States. (Doc. 4, ¶ 21). Plaintiff appeared on the Commonwealth’s 2016 primary election ballot seeking the nomination of the Democratic Party for President of the United States. (Doc. 4, ¶ 22). He finished third out of the three candidates who appeared on the Pennsylvania Democratic primary ballot. See Pa. Dep’t of State Official Returns, http://www.electionreturns.pa.gov/ENR_New/Home/SummaryResults?ElectionID =54&ElectionType=P&IsActive=0 (Plaintiff received 14,439 votes, finishing a distant third-with 0.86% of the vote). On August 1, 2016, Plaintiff attempted to file nomination papers with the Defendants, in an effort to run as an independent candidate for President of the United States. (Doc. 4, ¶ 23).2 In connection with 1 Plaintiff has suggested that he may file a motion for leave to file yet another pleading. To-date, Plaintiff has filed no such motion, so we proceed on the Amended Complaint and reserve all arguments relating to any motion seeking leave to file another pleading, and to any further pleading. 2 Under Pennsylvania law, an independent candidate for President in 2016 had to gather and file 21,775 valid signatures. 25 P.S. § 2911(b) (two percent of the highest vote total of a winning candidate from 2015: 1,088,716 votes received by Justice Kevin Dougherty). The number tendered by Plaintiff was far short of that mark. Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 6 of 28 3 this filing, Plaintiff signed an affidavit affirming-erroneously-that he had not previously been nominated for this office. Exhibit A (Plaintiff’s Affidavit).3 On August 1, 2016, Commissioner Marks sent a letter to Plaintiff explaining that since Plaintiff had previously been on the Pennsylvania Democratic primary ballot for President of the United States, his affidavit was being reviewed to determine whether he was able to be an independent candidate for that office. Exhibit B. On August 3, 2016, Plaintiff, after consulting with legal counsel, responded to Secretary Cortés. Exhibit C. Specifically, while Plaintiff cited to the wrong provision of the Election Code, he argued that the “sore loser” law was unconstitutional. Id. Commissioner Marks, on August 4, 2016, rejected Plaintiff’s nomination papers. Exhibit D. In this formal rejection decision, Commissioner Marks notified Plaintiff that his nomination papers could not be accepted because, “[s]ubsequent to the Bureau’s initial review, Bureau staff [] noted during a review of its candidate list that the candidate’s name was already presented by nomination petitions in the General Primary, which precludes the candidate from seeking the nomination of a 3 This Court may properly consider the exhibits provided in connection with this Motion to Dismiss, as “…a court can consider a ‘document integral to or explicitly relied upon in the complaint.’” In re Rockefeller Ctr. Properties, Inc. Securities Litig., 184 F.3d 280, 287 (3d Cir. 1999). Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 7 of 28 4 political body pursuant to 25 P.S. Section 2911(e)(5).”4 Exhibit D. “In addition, the Candidate’s Affidavit was incomplete as the field for the title of the office the candidate was filing to run for was left blank.” Id. Commissioner notified the Plaintiff of his right to a mandamus action in Commonwealth Court. On August 15, 2016, approximately eleven days after the issuance of the Rejection Notice, Plaintiff initiated this action by filing a “Complaint for Emergency Mandamus, Injunctive & Declaratory Relief.” (Doc. 1). The Complaint solely challenged Section 2911.15 of the Election Code, 25 Pa. Stat. Ann. § 2911.1, even though this was not the provision cited to reject Plaintiff’s nomination papers. Plaintiff then filed an Amended Complaint that additionally challenged the constitutionality of Section 2911(e)(5). (Doc. 4). Plaintiff also raised two state-law claims-that Sections 2911(e)(5), 2911(e)(6) and 2911.1 did not bar his nomination papers under Pennsylvania law. In response to the Amended Complaint, the Defendants filed a Motion to Dismiss on grounds of Pullman Abstention. (Doc. 10). This Honorable Court 4 Section 2911(e)(5)-colloquially known as the “Sore Loser Rule”-requires that nomination papers be appended with an affidavit of each candidate stating, inter alia, that, “…his name has not been presented as a candidate by nomination petitioners for any public office to be voted for at the ensuring primary election, nor has he been nominated by any other nomination papers filed for any such office[.]” 25 Pa. Stat. Ann. § 2911(e)(5). 5 Section 2911.-known as the “Disaffiliation Rule”-prohibits candidates which are or were registered with a political party as of 30 days before the primary election from being the candidate of a political party. Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 8 of 28 5 granted the Motion, and abstained from ruling on the merits of Plaintiff’s federal claims pending a decision from the state court on the matters of Pennsylvania law set forth in the Amended Complaint. (Doc. 15).6 Plaintiff subsequently filed a Complaint for Emergency Mandamus and Injunctive Relief in the Commonwealth Court. As pertinent here, Plaintiff argued that the “sore loser” provision was inapplicable to him because the President of the United States is not a “public office” as set forth in Section 2911(e)(5). He also asserted that he was not a “candidate” for “public office” as contemplated in the provision; rather, that he was a candidate for convention delegate or “party” office. See Exhibit E (Complaint). The Court rejected the Plaintiff’s claims in their entirety, holding that President of the United States is a public office, and that Plaintiff was a candidate for the Democratic nomination for President (such that he was a candidate for public office as set forth in Section 2911(e)(5)). See Exhibit F (Memorandum Opinion). Section 2911(e)(5) was held to be directly applicable to the Plaintiff, and the Court denied all requested relief. See Exhibit F. Because the Plaintiff did not raise any constitutional claims-even though he certainly had the opportunity to do so-the Commonwealth Court did not reach the same. 6 The Order directed that the matter be stayed, and that the Parties submit a joint status report within sixty (60) days. (Doc. 15). Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 9 of 28 6 Plaintiff is now back before this Honorable Court. Plaintiff requests a declaratory judgment that the aforementioned rules are unconstitutional as applied to independent and political body candidates for President and Vice President of the United States, and an emergency injunction suspending the operation of these Election Code rules as to him and others. (Doc. 4). Plaintiff maintains these claims despite the fact that the 2016 election is over, and despite the fact that, as noted in the Joint Status Report, he will “seek the nomination of the Democratic Party in 2020, but will bypass any state primary election where the state enforces a so- called ‘sore loser’ law of the kind challenged in this action, to clear the way for a potential 50 state independent bid for President in the 2020 general election.” (Doc. 16, p. 4). In response to the Amended Complaint, Defendants have filed a Motion to Dismiss. Defendants now submit this Brief in Support of their Motion to Dismiss. III. QUESTION PRESENTED A. Whether Plaintiff’s challenges are barred by res judicata and/or the Rooker-Feldman Doctrine? [Suggested Answer: YES] B. Whether Plaintiff’s claims are properly dismissed pursuant to Rule 12(b)(1) because they are not justiciable? [Suggested Answer: YES] Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 10 of 28 7 C. Whether Plaintiff failed to state a claim that the statutory sections in dispute are unconstitutional? [Suggested Answer: YES] IV. ARGUMENT Defendants move to dismiss Plaintiff’s Amended Complaint pursuant to Rules 12(b)(6) and 12(b)(1). Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Although Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). A court must accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 11 of 28 8 from them, viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). Under Rule 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim. See Fed. R. Civ. P. 12(b)(1). Although, resolution of a Rule 12(b)(6) motion requires a court must accept the plaintiff's factual allegations as true and construe them in the light most favorable to the plaintiff, In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010), a Rule 12(b)(1) motion does not require a court to consider all allegations of the complaint as true because the court must weigh the evidence to ensure that it has the power to hear the case. Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir. 1977). A. Plaintiff’s Challenges are Barred by Res Judicata and/or the Rooker- Feldman Doctrine. Despite Plaintiff’s initial attempt to bypass state court review of his challenges to the Pennsylvania Election Code, his claims, targeted at accessing the 2016 general ballot election, eventually landed before the proper tribunal-the Commonwealth Court of Pennsylvania. The Commonwealth Court rejected Plaintiff’s claims in their entirety, and denied his requested relief. Plaintiff did not raise constitutional claims, although there was nothing preventing him from doing so. He now takes the opportunity to raise these issues, which is improper for the reasons that follow. Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 12 of 28 9 1. Plaintiff’s claims are barred by res judicata. The Supreme Court has opined that “disposition of the federal action, once the state-court adjudication is complete, [is] governed by preclusion law. The Full Faith and Credit Act, 28 U.S.C. § 1738 . . . requires the federal court to give the same preclusive effect to a state-court judgment as another court of that State would give.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 282125 S. Ct. 1517, 1520, 161 L. Ed. 2d 454 (2005) (citations and internal quotation marks omitted). The Pennsylvania Supreme Court has explained that res judicata: [B]ars a later action on all or part of the claim which was the subject of the first action. Any final, valid judgment on the merits by a court of competent jurisdiction precludes any future suit between the parties or their privies on the same cause of action. Res judicata applies not only to claims actually litigated, but also to claims which could have been litigated during the first proceeding if they were part of the same cause of action. Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995) (emphasis added)). Additionally, “Pennsylvania courts require that the two actions share the following four conditions: (1) the thing being sued upon or for; (2) the cause of action; (3) the persons and parties to the action; and (4) the capacity of the parties to sue or be sued.” Id. Importantly, in discerning whether two actions constitute the same cause of action, Pennsylvania courts have explained that they apply res judicata where courts have already rendered judgments on different cases based on the same Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 13 of 28 10 factual circumstances. McArdle v. Tronetti, 627 A.2d 1219, 1222 (Pa. Super. Ct. 1993) (quoting In re Jones & Laughlin Steel Corp., 477 A.2d 527, 531 (Pa. Super. Ct. 1984)). Pennsylvania courts evaluate “the identity of the acts complained of, the demand for recovery, the identity of witnesses, documents, and facts alleged” when determining whether res judicata bars relitigating certain actions. Id. In this case, there is no dispute that the two actions at issue here share identical parties in the same capacities. Moreover, the “the thing being sued upon or for” is the same in both cases. Namely, the lawfulness of Sections 2911(e)(5), 2911(e)(6), and 2911.1, and whether or not the Defendants improperly failed to accept his nomination papers, preventing his name from appearing on the general election ballot for the 2016 Presidential Election. See Exhibit F. Furthermore, the state proceedings and the instant amended complaint bear the same causes of action. At first blush, the actions appear distinct, but they arise from the same factual circumstances. Plaintiff’s Commonwealth Court complaint contains the same facts, relating to his efforts to get in the 2016 general election ballot, and references the same documents and laws, as those raised in the federal pleading. (Compare Exhibit F with Doc. 4). There is no discernable difference between the acts, and the laws, complained of in the Commonwealth Court action and those disputed herein. Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 14 of 28 11 The causes of action are the same for purposes of res judicata regardless of the fact that the Plaintiff is raising constitutional claims. It is axiomatic that res judicata applies “not only to claims actually litigated, but also to claims which could have been litigated during the first proceeding if they were part of the same cause of action.” Balent, supra. Here, there was no jurisdictional obstacle that would have prevented Plaintiff from raising his asserted federal claims in state court. See Colonial Park Care Ctr., LLC v. Dallas, 2016 WL 4765966, at *5 (M.D. Pa. Sept. 13, 2016) (“[Plaintiff] cannot now raise claims in federal court when it had the opportunity to do so in the Commonwealth Court. The court accordingly concludes that [Plaintiff’s] claims are barred by the doctrine of res judicata . . . .”); Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 549 (3d Cir. 2006) (opining that “Pennsylvania courts have held that the mere advancement of a different legal theory does not necessarily give rise to a different cause of action,” in dismissing plaintiff’s Housing Act claim that could have been raised in a state court challenge). Because nothing prevented Plaintiff from raising his federal claims in Commonwealth Court, he should not be permitted to raise them now. Therefore, the Plaintiff’s Amended Complaint should be barred on grounds of res judicata. Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 15 of 28 12 2. Plaintiff’s claims are barred by the Rooker-Feldman Doctrine. For similar reasons, any claims in Plaintiff’s Amended Complaint related to the Defendants’ rejection of Plaintiff’s 2016 nomination papers are barred under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine compels federal courts to decline invitations to conduct what amounts to appellate review of state trial court decisions. As described by the Third Circuit, this doctrine applies “…to cases brought by state- court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547 (3d Cir. 2006) (citing Exxon Mobil Corp., supra). “The Rooker-Feldman doctrine provides that federal district courts lack subject matter jurisdiction to review final adjudications of a state’s highest court or to evaluate constitutional claims that are ‘inextricably intertwined with the state court’s [decision] in a judicial proceeding.’” Whitehead v. Shugars, 71 F. App’x 99, 100 (3d Cir. 2003). “This holding has been extended to encompass final decisions of lower state courts.” Id. In this case, the Commonwealth Court denied specific relief requested by the Plaintiff in the operative Amended Complaint-an emergency injunction ordering Defendant Marks to accept his nomination papers, such that his name could appear Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 16 of 28 13 on the 2016 Pennsylvania general election ballot. The Commonwealth Court rejected the Plaintiff’s interpretation of Section 2911(e)(5), ruling that it squarely applied to prevent him from being placed on the ballot. See Exhibit E. The Court then dismissed all of Plaintiff’s claims. That ruling, therefore, is now the root of, at least some, of the complaints raised by the Plaintiff, rendering some, if not all, of his claims within the umbra of Rooker-Feldman. Therefore, any claims construed to collaterally attack the Commonwealth decision should be dismissed pursuant to the Rooker-Feldman doctrine. B. Plaintiff’s Claims Are Not Justiciable “Article III of the United States Constitution limits the jurisdiction of federal courts to ‘Cases' and ‘Controversies.’” Edmonson v. Lincoln Nat. Life Ins. Co., 725 F.3d 406, 414-15 (3d Cir. 2013) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also Toll Bros. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir. 2009) (“Without a case-or-controversy requirement, the judicial power would ‘extend[ ] to every question under the constitution,’ and ‘the other departments would be swallowed up by the judiciary’”). “Courts enforce the case-or-controversy requirement through the several justiciability doctrines that ‘cluster about Article III.’” Toll Bros., 555 at 137 (quoting Allen v. Wright, 48 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). These doctrines “include standing, ripeness, mootness, the political- Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 17 of 28 14 question doctrine, and the prohibition on advisory opinions.” Id. Standing is “perhaps the most important of these doctrines.” Allen, 468 U.S. at 750, 104 S.Ct. 3315. Here, the Plaintiff’s claims are not justiciable; therefore, they are properly dismissed pursuant to Rule 12(b)(1). 1. Plaintiff’s claims related to the 2016 election are moot. The crux of the Amended Complaint relates to the Defendants’ actions in rejecting Plaintiff’s nomination papers to be an independent candidate for President of the United States pursuant to Section 2911(e)(5), preventing Plaintiff’s name from appearing on the 2016 Pennsylvania general election ballot. The Amended Complaint, structured as a pleading for emergency relief, sets forth a request for an immediate injunction, ordering that the Defendants accept his nomination papers within three business days. (See Doc. 4, Req. for Relief). These claims, and attendant requests for relief, are moot, and properly dismissed pursuant to Rule 12(b)(1). Pursuant to well-established Third Circuit jurisprudence, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers v. Kelly, 815 F.2d 912, 915 (3d Cir. 1987); see also League of Women Voters of Pennsylvania v. Cappy, 2009 WL 1845217, at *3 (M.D. Pa. June 26, 2009) (“A case is deemed moot when ‘[t]he controversy Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 18 of 28 15 between the parties has ... clearly ceased to be ‘definite and concrete.’”). There is no live controversy with respect to Plaintiff’s claims regarding his attempts to be placed on the 2016 general election ballot because the general election is over. Even assuming the Court could entertain these claims, it could afford no cognizable relief in terms of undoing the election. Therefore, these claims, and their accompanying requests for injunctive relief, are moot. 2. Plaintiff lacks standing to generally challenge the constitutionality of the challenged provisions of the Election Code. Plaintiff has no standing to seek a declaratory judgment that Sections 2911(e)(5), 2911(e)(6), and 2911.1 are unconstitutional, nor injunctive relief attendant thereto. In order to establish standing, the plaintiff must, first, “have suffered a ‘concrete,’ ‘particularized’ injury-in-fact, which must be ‘actual or imminent, not conjectural or hypothetical.’” Toll Bros., Inc., 555 F.3d at 137; Raines v. Byrd, 521 U.S. 811, 819, 117 S. Ct. 2312, 2317 (1997) (The Supreme Court has, “consistently stressed that a plaintiff's complaint must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury suffered is particularized as to him.”). Second, that injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. “Third, the plaintiff must establish that a favorable decision likely would redress the injury.” Id. Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 19 of 28 16 Beyond allegations regarding the 2016 general election,7 Plaintiff has failed to allege any threat of injury that is actual and imminent. Indeed, the disputed statutory sections are now inapplicable to Plaintiff because he is no longer a candidate for President of the United States. Moving forward, many different events would have to fall into place for Plaintiff to have a concrete interest sufficient to have standing. Plaintiff would have to formulate an intention to run for President of the United States (in 2020), and he would have to take steps in furtherance of his intention. Moreover, certain other discrete facts must align. For instance, to challenge Section 2911(e)(5), he would have to plead that he failed to succeed in being nominated as a major party candidate, such that the “sore loser” law stood as a hurdle to a run as an independent. In other words, to get to this point, he would have to allege that he circulated nomination petitions to get on the primary ballot for either the Republican or Democratic primary. He would have to have actually gathered enough signatures, and survived any challenges to those signatures, to get on the primary ballot. He then would have to lose in the primary. He then would have to circulate nomination papers and gather sufficient signatures 7 Importantly, declaratory judgment relief is not available to have the Court declare that rights were violated in the past. See Martin v. Keitel, 205 F. App’x 925, 928 (3d Cir. 2006) (noting that it was improper for Plaintiff to request declaratory relief “merely [for] a declaration that defendants violated his constitutional rights in the past.”). Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 20 of 28 17 to get on the general election ballot. He would then have to present those papers to the Commonwealth and have them rejected on grounds of Section 2911(e)(5). Facts such as the foregoing cannot presently be adduced, and it is not enough for the Plaintiff to amend his pleading to express future plans regarding 2020 to establish an injury-in-fact. See Pa. Prison Soc. v. Cortés, 508 F.3d 156, 166 (3d Cir. 2007) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)) (“Such ‘some day’ intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the ‘actual or imminent’ injury that our cases require…In such circumstances we have insisted that the injury proceed with a high degree of immediacy so as to reduce the possibility of deciding a case in which no injury would have occurred at all”). Compounding the issue, in the Joint Status Report, counsel specifically notes that his client intends to “seek the nomination of the Democratic Party in 2020, but will bypass any state primary election where the state enforces a so-called ‘sore loser’ law of the kind challenged in this action, to clear the way for a potential 50 state independent bid for President in the 2020 general election.” (Doc. 16, p. 4). This representation belies any argument that Plaintiff has standing to challenge the sore loser law, because Plaintiff has represented to this Court that Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 21 of 28 18 he will by-pass the primary process in the Commonwealth in order to get on the general election ballot as an independent candidate for POTUS.8 In sum, Plaintiff has failed to allege any injury-in-fact (nor has he, therefore, satisfied the other two elements necessary for standing) such that he is not entitled to the equitable relief requested.9 Thus, a declaration regarding his claims would amount to nothing more than an improper advisory opinion. See, e.g., Constitution Party of Pennsylvania v. Cortés, 712 F. Supp. 387, 397-98 (E.D. Pa. 2010) (courts are without power to give advisory opinions), aff’d, 433 F. App’x 89 (3d Cir. 2011). Therefore, Plaintiff’s Amended Complaint should be dismissed pursuant to Rule 12(b)(1). 8 Further, Plaintiff does not have standing simply because he has lodged facial constitutional challenges to the validity of statutory sections. Per the Third Circuit, there is no jurisprudence “support[ing] a general proposition that facial challenges to the validity of a statute need not satisfy the Article III requirements for standing.” Pennsylvania Prison Soc., 508 F.3d at 169. The fact that the Plaintiff raises constitutional claims does not obviate his responsibility to present a justiciable case. 9 For the same reasons, Plaintiff’s claim is not ripe. Presbytery of New Jersey of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994) (“The concepts of standing and ripeness are related. Each is a component of the Constitution's limitation of the judicial power to real cases and controversies. Correct analysis in terms of ripeness tells us when a proper party may bring an action and analysis in terms of standing tells us who may bring the action.”). Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 22 of 28 19 C. Plaintiff Fails to State a Claim Because the Disputed Statutory Provisions are Constitutional. Plaintiff’s constitutional challenges to the statutory provisions at issue fail. Section 2911(e)(5), the “sore loser” law, and Sections 2911(e)(6) and 2911.1, together known as the “disaffiliation” law, are long-standing principles of election law generally, and are well-established tenets of the Pennsylvania Election Code. Corollaries of these provisions exist throughout the country, having withstood both the test of time, and challenges to their constitutional muster. The sore loser law and the disaffiliation law at issue in this case are similarly constitutional. Turning first to the disaffiliation law at issue (Sections 2911(e)(6) and 2911.1), the United States Supreme Court has definitively held that such laws are constitutional exercises of a state’s authority to structure elections. In the well- established precedent of Storer v. Brown, 415 U.S. 724, 728, 94 S. Ct. 1274, 1278, 39 L. Ed. 2d 714 (1974), the Supreme Court upheld a one year disaffiliation provision, in the face of almost identical First Amendment, Fourteenth Amendment, and Qualifications Clause challenges. The high Court ruled that the provision, forbidding a ballot position to an independent candidate for elective public office who had registered affiliation with qualified political party within one year prior to immediately preceding primary election was constitutional, since the statute involved no discrimination against independents and protected the compelling state interest of furthering stability of political system by guarding Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 23 of 28 20 against splintered parties and unrestrained factionalism. Id. The Storer precedent, and its progeny, squarely applies to the provision in this case, which only requires disaffiliation thirty (30) days before the primary, as compared to the one year prohibition considered in the seminal case. See Storer, supra; accord Van Susteren v. Jones, 331 F.3d 1024, 1027 (9th Cir. 2003) (upholding one year disaffiliation law as constitutional). Therefore, Pennsylvania’s disaffiliation law is constitutional under Storer. Furthermore, analogous “[s]ore loser” laws have been upheld in the face of similar challenges. See Libertarian Party of Michigan v. Johnson, 905 F. Supp. 2d 751, 766 (E.D. Mich. 2012), aff’d, 714 F.3d 929 (6th Cir. 2013) (concluding “that the Michigan sore loser statute, which is directed expressly at preventing last minute political party maneuvering, is a reasonable, nondiscriminatory restriction justified by Michigan's important regulatory interests of preventing extended intra party feuding, factionalism and voter confusion”). And, while the states may not establish additional qualifications for federal office, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 828-34 (1995), courts examining sore loser laws and other similar provisions have found them to be the permissible types of procedural rules permitted under Term Limits. In fact, no court has ever determined that “sore loser” provisions are unenforceable against presidential or other federal office-seekers and the overwhelming weight of authority is against Plaintiff on that score. See Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 24 of 28 21 Cartwright v. Barnes, 304 F.3d 1138, 1142-43 (11th Cir. 2002) (upholding ballot access rules against a Term Limits-based challenge); Libertarian Party of Ill. v. Rednour, 108 F.3d 768, 777 (7th Cir. 1997) (same); Springer v. Balough, 96 F. Supp. 2d 1250, 1257 (N.D. Okla.), aff'd, 232 F.3d 902 (10th Cir. 2000) (“[r]equirements that are procedural in nature, such as reasonable ballot access requirements, do not violate a constitutional provision describing the qualification for holding office”); Nat’l Comm. of U.S. Taxpayers Party v. Garza, 924 F. Supp. 71, 73-74 (W.D. Tex. 1996) (upholding Texas “sore loser” rule for presidential candidate Pat Buchanan).10 This Honorable Court should adopt the position taken by all other courts addressing this issue, and dismiss Plaintiff’s Amended Complaint. 10 In fact, under Plaintiff’s logic, any ballot-access requirement-even one requiring 2,000 signatures to get on the Democratic primary ballot-would constitute an additional “qualification” for the office. This clearly is not the law. Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 25 of 28 22 V. CONCLUSION For the foregoing reasons, Defendants request that this Honorable Court grant their Motion to Dismiss, and dismiss the Amended Complaint, with prejudice. Respectfully submitted, BRUCE R. BEEMER Attorney General By: s/ Nicole J. Radziewicz NICOLE J. RADZIEWICZ Office of Attorney General Deputy Attorney General 15th Floor, Strawberry Square Attorney ID 314061 Harrisburg, PA 17120 Phone: (717) 783-3146 KELI M. NEARY Fax: (717) 772-4526 Deputy Attorney General nradziewicz@attorneygeneral.gov Attorney ID 205178 KENNETH L. JOEL Chief Deputy Attorney General Litigation Section, Civil Law Division DATE: December 1, 2016 Counsel for Defendants Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 26 of 28 CERTIFICATE OF SERVICE I, Nicole J. Radziewicz, Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on December 1, 2016, I caused to be served a true and correct copy of the foregoing Brief in Support of Defendants’ Motion to Dismiss via the United States District Court for the Middle District of Pennsylvania’s Electronic Filing System to: Paul A. Rossi, Esquire IMPG Advocates, Inc. 873 East Baltimore Pike, Suite #705 Kennett Square, PA 19348 Email: Paul-Rossi@comcast.net Counsel for Plaintiff /s/ Nicole J. Radziewicz NICOLE J. RADZIEWICZ Deputy Attorney General Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 27 of 28 WORD COUNT CERTIFICATION The undersigned, Nicole Radziewicz, Esq., hereby certifies that the body of the within Brief in Support of Motion to Dismiss, excluding the caption, Table of Contents, and Table of Authorities, totals 4,933 words. Therefore, the within Brief in Support of Motion to Dismiss complies with Middle District Local Rule 7.8(b)(2). s/ Nicole J. Radziewicz NICOLE J. RADZIEWICZ Deputy Attorney General Case 1:16-cv-01696-JEJ Document 22 Filed 12/01/16 Page 28 of 28 Case 1:16-cv-01696-JEJ Document 22-1 Filed 12/01/16 Page 1 of 3 Case 1:16-cv-01696-JEJ Document 22-1 Filed 12/01/16 Page 2 of 3 Case 1:16-cv-01696-JEJ Document 22-1 Filed 12/01/16 Page 3 of 3 Case 1:16-cv-01696-JEJ Document 22-2 Filed 12/01/16 Page 1 of 2 Case 1:16-cv-01696-JEJ Document 22-2 Filed 12/01/16 Page 2 of 2 Case 1:16-cv-01696-JEJ Document 22-3 Filed 12/01/16 Page 1 of 4 Case 1:16-cv-01696-JEJ Document 22-3 Filed 12/01/16 Page 2 of 4 Case 1:16-cv-01696-JEJ Document 22-3 Filed 12/01/16 Page 3 of 4 Case 1:16-cv-01696-JEJ Document 22-3 Filed 12/01/16 Page 4 of 4 Case 1:16-cv-01696-JEJ Document 22-4 Filed 12/01/16 Page 1 of 2 Case 1:16-cv-01696-JEJ Document 22-4 Filed 12/01/16 Page 2 of 2 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 1 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 2 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 3 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 4 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 5 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 6 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 7 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 8 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 9 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 10 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 11 of 12 Case 1:16-cv-01696-JEJ Document 22-5 Filed 12/01/16 Page 12 of 12 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 1 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 2 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 3 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 4 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 5 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 6 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 7 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 8 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 9 of 10 Case 1:16-cv-01696-JEJ Document 22-6 Filed 12/01/16 Page 10 of 10 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 1 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 2 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 3 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 4 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 5 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 6 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 7 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 8 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 9 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 10 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 11 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 12 of 13 Case 1:16-cv-01696-JEJ Document 22-7 Filed 12/01/16 Page 13 of 13