Uniontown Newspapers, Inc. v. Roberts

DISSENTING OPINION

Justice LAMB.

I dissent from the holding of the majority that the reporter in this case has stated a cause of action under Section 19831 sufficient to withstand preliminary objections. The Commonwealth Court correctly analyzed the claim and its order should be affirmed.

In this case, there is no constitutional wrong and no cognizable harm. The legislator, Lawrence Roberts, offered his telephone records — records to which the press has no underlying right of access — to several media outlets. One of those outlets was the Herald-Standard, the newspaper for which *255Paul Sunyak, Appellant, worked as a reporter. The legislator, however, conditioned his release to the Herald Standard with a requirement that Appellant not be given the records. The Herald-Standard rejected this offer. Thus, the only question is whether refusing to offer the records to a particular reporter constitutes a deprivation of a federally-protected right under Section 1983.

Section 1983 confers no substantive rights, it “merely provides a method of vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Therefore we have to look elsewhere for a federally-protected right. There is no federally-protected right to the telephone records, as the majority so ably analyzed. Appellant avers, however, that he has a federally-protected right to be treated equally with other reporters and that the legislator’s failure to do so deprived him of equal protection under the Fourteenth Amendment to the U.S. Constitution.2

Equal protection analysis requires that we find state action that denies a person “equal protection of the laws” because it constrains only the actions of the State not of private persons. U.S. Const, amend. XIV, § 1, cl. 4. There is no state action or color of state law3 in the individual decision of a legislator to share private information with the news media. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 360, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (holding that regulation of a utility was not *256a sufficient nexus to make a termination a state action); Adler v. Montefiore Hospital Ass’n of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634, 639 (1973) (holding that regulation of a hospital did not create a sufficient nexus to find an equal protection violation for a patient denied treatment by the physician of his choice).

There is an “essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, however discriminatory or wrongful, against which that clause erects no shield.” Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (allowing discrimination in service by a private club) (citation omitted). Where “the impetus for the discrimination is private, the State must have significantly involved itself with invidious discriminations, ... in order for the discriminatory action to fall within the ambit of the constitutional prohibition.” Moose Lodge, 407 U.S. at 173, 92 S.Ct. 1965.

The Fourteenth Amendment offers no shield against private conduct. Klavan v. Crozer-Chester Medical Center, 60 F.Supp.2d 436, 442 (E.D.Pa.1999) (rejecting a state action claim against doctors who failed to honor a living will). The purpose of the state action requirement is to assure that “constitutional'standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (emphasis in original).

In this case, Appellant can point to no participation by the state in the decision by the legislator to offer his telephone records to selected media outlets. Since the public has no right of access to the records, the decision to release or not to release them is a purely private matter. If, for instance, the legislator gave one reporter his home telephone number but refused to give it to another, there could be no successful equal protection claim. This distinguishes the case from Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1176 (3d Cir.1986), in which the Third Circuit remanded the case, *257without deciding the answer, to determine whether the media outlet had asserted an equal protection claim against an agency. In Capital Cities, there was no underlying question of whether or not the selective release was state action, as there is here, because the release of information was conducted by an agency of the federal government.

Appellant’s argument also fails on the second prong of the equal protection argument, that of protected classes. When bringing a claim that a violation of the Equal Protection Clause occurred, a plaintiff must establish that he is treated differently because he belongs to a certain classification of people causing those acting under color of state law to treat him differently, and not merely that he was treated unfairly as an individual. Urbanic v. Rosenfeld, 150 Pa.Cmwlth. 468, 616 A.2d 46, 56 (1992) (every allegation of disparate treatment by police does not become a “federal case”), aff'd per curiam, 534 Pa. 266, 631 A.2d 596 (1993).

The state may always treat different groups of people differently without violating the principles of equal protection. Equal protection does not require that all persons under all circumstances enjoy identical protection under the law. James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 477 A.2d 1302, 1305 (1984) (upholding a former notice provision against an equal protection claim). Government action cannot violate the Equal Protection Clause if it does not create classifications among, or discriminate between, those affected. Palmer v. Thompson, 403 U.S. 217, 219-26, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971); Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147, 155 (1981)(upholding Pa.R.C.P. 238 against an equal protection challenge).

The Fourteenth Amendment protects “discrete and insular” groups in need of “extraordinary protection from the majoritarian political process.” United States v. Carotene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). A suspect class is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness *258as to command extraordinary protection from the majoritarian political process.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). For instance, there is no fundamental right to a security clearance, Department of Navy v. Egan, 484 U.S. 518, 528, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), nor are “non-world class mathematicians” a protected class for equal protection purposes. Stehney v. Perry, 101 F.3d 925, 937 (3d Cir.1996).

' Clearly, Appellant is not a member of a discrete and insular group in need of protection. Nor is he, as he argues, a member of a class of one because no governmental entity participated in treating the reporter differently. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (finding an equal protection violation in disparate condemnations for sewer rights of way).

In this case, there is no state action involved in a legislator’s release of his protected telephone records; and, reporters with hurt feelings are not a protected class. The reporter, who works for a newspaper, which buys ink by the barrel, surely has a more effective avenue of recourse than Section 1983.

Accordingly, I would affirm the order of the Commonwealth Court.

Justice CASTILLE joins this dissent.

. The Equal Protection Clause of the United States Constitution is found at Section 1 of the Fourteenth Amendment and provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the Stale wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const, amend. XIV, § 1, cl. 4.

. Article I, Section 26 of the Pennsylvania Constitution is known as the state’s equal protection provision and is analyzed under the same standards as those for state action under the Fourteenth Amendment to the United States Constitution. Small v. Horn, 554 Pa. 600, 722 A.2d 664, 672 n. 13 (1998).