Sprague v. Cortés (223 F. Supp. 3d 248, 2016)

MEMORANDUM OPINION

Robert D. Mariani, United States District Court Judge

I. Introduction and Procedural History

Presently before the Court is a Motion to Dismiss (Doc. 19) filed by Defendant Pedro A. Cortés, Secretary of the Commonwealth of Pennsylvania. The Motion to Dismiss seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, or Rule 12(b)(7) for failure to name indispensable parties. (Doc. 20, at 3).

On October 27, 2016, Plaintiffs Richard Sprague, Hon. Ronald Castille, and Hon. Stephen Zappala, Sr. filed a complaint in the above-captioned matter naming as Defendant Pedro Cortés, the Secretary of the Commonwealth of Pennsylvania. (Doc. 1). Plaintiffs subsequently filed an Amended Complaint (Doc. 9) and Second Amended Complaint (Doc. 17) which, added as an exhibit the Affidavit of Berwood A. Yost and modified a corresponding paragraph in the complaint (Doc. 9), added Hillel S. Levinson and the Hon. John W. Herron as Plaintiffs, and included an allegation that the Court also has jurisdiction pursuant to 28 U.S.C. § 1343 (Doc. 17). The Second Amended Complaint requests Declaratory Judgment and Injunctive Relief pursuant to 42 U.S.C. § 1983 (Counts I, II) and Declaratory and Injunctive Relief pursuant to Pennsylvania Law (Count III).

Defendant moved to dismiss the Second Amended Complaint on November 10, 2016, (Doc. 19), to which Plaintiffs filed a brief in opposition (Doc. 31), Defendant filed a reply brief (Doc. 32), and Plaintiffs led a sur-reply brief (Doc. 37). Jeffrey A. Manning, Donna J. McDaniel, Michael J. Delia Vecchia, David R. Cashman, John P. Garhart and John M. Cascio filed an ami-cus curiae brief in support of Defendant’s Motion to Dismiss. (Doc. 25).

The issues have been fully briefed and Defendant’s Motion is ripe for disposition. For the reasons set forth below, the Court will grant Defendant Cortés Motion to Dismiss.

II. Factual Allegations

Plaintiffs’ Second Amended Complaint alleges the following facts:

Plaintiffs in this action are Richard A. Sprague, a member of the Pennsylvania Bar, the Honorable Ronald D. Castille and Honorable Stephen Zappala, Sr., both former Chief Justices of the Pennsylvania Supreme Court, the Honorable John W. Herron, a current senior judge of the Pennsylvania Court of Common Pleas, Philadelphia County, and Hillel S. Levin-son, an inactive member of the Pennsylvania Bar. Each Plaintiff is a resident and citizen of the Commonwealth of Pennsylvania, a registered voter, a taxpayer of the Commonwealth of Pennsylvania, and is eligible and intended to vote in the November 2016 general election in the Commonwealth of Pennsylvania. (Doc. 17, ¶¶ 1-5).

Defendant Pedro A. Cortés, Esq. is the Secretary of the Commonwealth of Pennsylvania. In that capacity, Defendant is responsible for determining and publishing the language that appears on statewide ballots concerning any proposed amendment to the Pennsylvania Constitution, including the proposed constitutional amendment at issue in the present action. (Id at ¶ 6).

Currently, the operative Pennsylvania Constitution is the fifth Constitution that has governed the Commonwealth since the United States declared its independence in 1776. (Id at ¶ 9). Following a Constitutional Convention held in 1967 and 1968, Pennsylvania voters adopted the presently-controlling Pennsylvania Constitution, which revised the judiciary article of the previous Constitution and set a mandatory retirement age for justices of the Pennsylvania Supreme Court, lower court judges, and magisterial district judges. (Id at ¶ 11).

Article V, Section 16(b) of the original 1968 Pennsylvania Constitution required all judicial officers of the Commonwealth to retire immediately upon attaining the age of 70. (Id at ¶ 12). In 2001, primary ballots across the Commonwealth of Pennsylvania contained the following question asking Pennsylvania voters if they wished to amend Article V, Section 16(b) of the original 1968 Pennsylvania Constitution: “Shall the Constitution of Pennsylvania be amended to provide that justices of the Supreme Court, judges and justices of the peace shall be retired on the last day of the calendar year in which they attain the age of 70 years, rather than on the day they attain the age of 70?” (Doc. 17, ¶ 13). Over 67% of the voters who answered this ballot question voted “yes.” As a result, Article V, Section 16(b) of the Pennsylvania Constitution was amended to require that the Commonwealth’s judicial officers must retire on the last day of the calendar year in which they reach the age of 70. (Id at ¶ 14).

Following the 2001 amendment to Article V, Section 16(b), various members of the legislature introduced several unsuccessful bills proposing to amend the Pennsylvania Constitution to either raise the mandatory judicial retirement age beyond 70 or to abolish the constitutional requirement that the Commonwealth’s judicial officers retire upon reaching a certain age. (Id at ¶ 15).

In 2013, several groups of Pennsylvania jurists “sought to renew the attack on Article V, Section 16(b) via multiple legal actions commenced in both federal and state courts.” (Id at ¶ 16) (quoting Driscoll v. Corbett, 620 Pa. 494, 69 A.3d 197, 200 (2013)). The Pennsylvania Supreme Court joined the federal courts in rejecting these legal challenges, noting that the only way to increase or eliminate Pennsylvania’s constitutionally-mandated judicial retirement age “is to pursue further amendment to the Pennsylvania Constitution.” (Doc. 17, ¶ 17) (quoting Driscoll, 69 A.3d at 215).

After the Pennsylvania Supreme Court confirmed the legality of Article V, Section 16(b)’s requirement, the State House of Representatives considered a resolution proposing to present the state electorate with a ballot question regarding whether the constitutionally-mandated judicial retirement age should be raised from 70 to 75. (Doc. 17, ¶ 18).

Pursuant to Article XI, Section 1 of the Pennsylvania Constitution, in order for a resolution to result in a Constitutional, amendment, it must be approved by a majority vote of both houses of the Pennsylvania General Assembly in two consecutive sessions, as well as “submitted to the qualified electors of the State” and “approved by a majority of those voting thereon.” (Id at ¶ 19).

The first affirmative vote by the Pennsylvania General Assembly came on October 22, 2013, when the General Assembly passed H.B. 79, a joint resolution proposing to amend Article V, Section 16(b) to require that the Commonwealth’s jurists retire on the last day of the year in which they attain 75, rather than 70. (Id. at 20). Following the affirmative vote, the Secretary of the Commonwealth published notice of the proposed amendment through advertisements in newspapers throughout the Commonwealth. (Id. at ¶ 21).

During the next legislative session, on November 16, 2015, the General Assembly passed H.B. 90, a joint resolution identical to the preceding session’s H.B. 79. (Doc. 17, ¶ 22). Consistent with the requirements of the Election Code, 25 P.S. § 2621(c), H.B. 90 also directed the Secretary of the Commonwealth to develop a ballot question concerning the Pennsylvania General Assembly’s proposal to amend Article V, Section 16(b) and to submit that ballot question “to the qualified electors of this Commonwealth, at the first primary, general or municipal election ... which occurs at least three months after the proposed constitutional amendment is passed by the General Assembly.” (Id. at ¶ 23).

As required by Article XI, Section 1 of the Pennsylvania Constitution and H.B. 90, the Secretary of the Commonwealth published notice of the proposed amendment in newspapers across the commonwealth along with a “plain English” statement prepared by the Attorney General explaining “the purpose, limitations and effects of the ballot question on the people of the Commonwealth.” (Id. at IT 24) (citing 25 Pa.C.S. § 2621.1). The Secretary’s public notice explained that Pennsylvania voters would be asked to approve or deny the proposed amendment to Article V, Section 16(b) of the Pennsylvania Constitution by answering “yes” or “no” to the following ballot question developed by the Secretary:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

(Doc. 17, ¶25).

Thereafter, Pennsylvania election officials created ballots for the April 26, 2016 primary election containing the above-quoted question regarding the proposed amendment to the Pennsylvania Constitution. (Id. at ¶ 26).

The Secretary developed the language of this April 2016 primary election ballot question in accordance with Section 201 of the Pennsylvania Election Code, 25 P.S. § 2621(c), which vests the Secretary of the Commonwealth with authority over “the form and wording of constitutional amendments or other questions to be submitted to the State at large.” (Id. at ¶ 27). Consistent with the Pennsylvania Election Code’s delegation of authority over ballot questions to the Secretary of the Commonwealth, neither H.B. 79 nor H.B. 90 suggested or set forth language for a ballot question concerning the proposed amendment. (Doc. 17, ¶ 28).

Around the time of the Pennsylvania General Assembly’s approval of the second joint resolution, controversy began surrounding the Pennsylvania judiciary due to alleged misconduct by several Pennsylvania Supreme Court Justices as well as certain lower state court judges and magisterial district judges. (See Doc. 17, ¶¶ 29-35). Plaintiffs allege that these controversies “garnered mass media attention and cast doubt on the Pennsylvania electorate’s willingness to amend the Constitution to extend the limited tenure of Pennsylvania Supreme Court justices, judges and magisterial district judges.” (Id. at ¶ 35). As a result, a group of legislators sought to strike certain portions of the ballot question that the Secretary had developed for the April 2016 primary election, regarding the proposed amendment to Article V, Section 16(b) of the Pennsylvania Constitution. (Id.). Specifically, the legislators sought to striké from the ballot question any reference to the Pennsylvania Supreme Court as well as any indication that the proposed amendment would raise the constitutionally-mandated retirement age for Pennsylvania Supreme Court justices, judges and magisterial district judges by five years. (Id. at ¶ 36).

On March 6, 2016, the Pennsylvania Senate Majority Caucus, Senate President Pro Tempore Joe Scarnati, and Senate Majority Leader Jake Gorman filed an “Emergency Application for Extraordinary Relief’ asking the Pennsylvania Supreme Court to “strike the following terms and phrases” from the Secretary’s ballot question regarding the Pennsylvania General Assembly’s proposed amendment to Article V, Section 16(b):

Shall the Pennsylvania Constitution be amended to require that Justices of-the Supreme Court, judges and justices of the peace (kn&wn as-maagisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement-that they be retired on the last day of the calendar year-in-which they attain the age of 70?

(Doc. 17, ¶ 37).

The Senators’ Emergency Application for Relief set forth three arguments in support of'their request that the Pennsylvania Supreme Court strike the above-language from the ballot question: (1) the phrase “of the Supreme Court” after the word “Justices” would confuse voters into thinking the proposed amendment would apply to justices of the United States Supreme Court, and the phrase “known as magisterial district judges” after the term “justices of the peace” would mislead voters into thinking “that the proposed amendment does not apply to judges of the court of common pleas, the Superior Court, and the Commonwealth Court;” (2) the “terms and phrases sought to be stricken are inconsistent with the proposed constitutional amendment,...”; and (3) the phrase “instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age pf 70” was “nothing more than superfluous and gratuitous commentary,” and a ballot question regarding a proposed constitutional amendment need not state “what the current state of the law may be at the time of the proposed amendment.” (Id. at ¶ 38).

On March 11, 2016, the Secretary of the Commonwealth filed an Answer in Opposition to the Emergency Application for Extraordinary Relief, arguing that the Senators’ Application should be denied because the Senators’ proposed ballot question “would deny Pennsylvania voters relevant information regarding the proposed constitutional amendment.” (Id. at ¶ 39). Specifically, the Secretary argued that “the phrase ‘instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70’ should remain on the ballot question” because a ballot question that does not advise voters that “the existing language in the Constitution would be changed to 75 instead of 70 ... would likely leave the voter wondering what the current requirement is—or worse yet, leave the voter with the impression that there is no requirement at all.” (Id: at ¶ 40) (emphasis in Secretary’s Answer). The Secretary’s Answer in Opposition to the Senators’ Application for Extraordinary-relief explained that the Senators’ proposed ballot question would “deprive voters of relevant information on the ballot itself regarding the mandatory retirement age requirement as it currently exists in the Pennsylvania Constitution.” (Id at ¶ 41).

However, soon after opposing the Senators’ Application for Extraordinary Relief, the Secretary agreed to present the voters of the Commonwealth with a ballot question that was nearly identical to the question that the Secretary had previously argued would mislead voters. (Id at ¶ 42).

On March 22, 2016, the Senators who filed the Emergency Application for Relief, the Secretary, the" Pennsylvania Department of State, and the Office of the Pennsylvania Attorney General filed a Joint Application for Extraordinary Relief requesting that the Pennsylvania Supreme Court approve a stipulation providing that the Secretary of the Commonwealth would: (1) remove from the April 26, 2016 primary election ballots the question that the Secretary had initially developed concerning the General Assembly’s proposal to amend the Constitution by raising the constitutionally-mandated judicial retirement age from 70 to 75, (2) direct the county boards of elections to do the same, and (3) place on the November 8, 2016 general election ballot in the Commonwealth of Pennsylvania the following question:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?

(Doc. 17, ¶ 43).

On March 23, 2016, the Pennsylvania Supreme Court entered an Order denying the Senators’ Emergency Application for Extraordinary Relief and the Joint Application seeking approval of the Stipulated Resolution and modified ballot question. (Id at ¶ 44).

Following the Pennsylvania Supreme Court’s denial of the Joint Application seeking to change the ballot question that the Secretary of the Commonwealth had devised for the April 2016 primary election pursuant to the Secretary’s authority, groups of Pennsylvania legislators introduced concurrent resolutions to remove the proposed Amendment from the April 2016 primary ballot, to place the proposed amendment on the November 2016 general election ballot, and to require the Secretary to adopt a ballot question drafted by the General Assembly'. (Id at ¶ 45). On April 6, 2016, the Pennsylvania House of Representatives approved one such concurrent resolution, H.R. 783, and the Pennsylvania Senate approved the resolution on April 11, 2016. (Id at ¶ 46).

Because the Pennsylvania General Assembly approved H.R. 783 approximately two weeks prior to the 2016 primary election, the General Assembly recognized that it would be impossible for the Secretary to remove his previously-devised question from the statewide primary election ballots; accordingly, H.R. 783 directed the Secretary to “disregard any vote” on the proposed amendment, and the Resolution instructed county boards of election that, “to the extent possible,” they were to remove from the April 2016 primary election ballots the original question devised by the Secretary of the Commonwealth. (Id at ¶¶ 47, 48). The Resolution further directed the Secretary to place on the November 8, 2016 general election ballot the question drafted by the Pennsylvania General Assembly which omits that the proposed amendment would increase the mandatory retirement age. (Id at ¶ 49). According to Plaintiffs, H.R. 783 thus attempted to divest the Secretary of his authority over “the form and wording of constitutional amendments or other questions to be submitted to the State at large.” (Id.).

Specifically, H.R. 783 directed the Secretary to place the following proposed constitutional amendment on the ballot for the general election on November 8,2016:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75?

(Doc. 17, ¶ 50). Thus, the differences between the ballot question developed by the Secretary of the Commonwealth for the April 2016 primary election and the ballot question set forth by the Pennsylvania General Assembly in H.R. 783 are as follows:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they fee-retired- on the last- day of the .calendar--year in which they attain the age of 70?

(Id. at ¶ 51).

On April 14, 2016, a group of state legislators asked the Pennsylvania Commonwealth Court to preliminarily enjoin the Secretary from implementing H.R. 783 because of the alleged improper process through which the Pennsylvania General Assembly passed the concurrent resolution purportedly contravening the Secretary of the Commonwealth’s authority under Pennsylvania law. (Id. at ¶ 53). Specifically, State Senators Joy Costa, Daylin Leach, and Christine M. Tartaglione filed an Application for a Preliminary Injunction seeking to enjoin the Secretary of the Commonwealth from implementing H.R. 783 on the grounds that the concurrent resolution: (1) unconstitutionally directed the Secretary to infringe on the rights of voters who had already cast absentee ballots; (2) should have been presented to the Governor for his approval; and (3) compelled the Secretary of the Commonwealth to act contrary to his duties with respect to the legal process for voting on a constitutional amendment. (Id. at ¶ 54). On April 20, 2016, the Pennsylvania Commonwealth Court found that the three senators did not meet the high burden required to obtain preliminary injunctive relief and declined to preliminarily enjoin H.R. 783 in advance of the April 2016 primary election. (Id. at ¶ 55).

Thus, although the Secretary of the Commonwealth was prohibited from conducting an official tally of the vote, the April 2016 primary election ballots across the Commonwealth contained the original question developed by the Secretary. According to the Pennsylvania Department of State, 2,395,250 Pennsylvania citizens answered the ballot question, with 50.99% voting “no” and 49.01 % voting “yes.” (Id. at ¶¶ 57, 58). Pursuant to H.R. 783, the electorate’s vote at the April 2016 primary election against amending the Pennsylvania Constitution was invalidated and had no legal effect. (Id. at ¶ 59).

The Secretary of the Commonwealth thereafter placed on the November 2016 general election ballot in the Commonwealth of Pennsylvania the following question set forth by the General Assembly in H.R. 783:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75?

(Doc. 17, ¶ 60).

On July 6, 2016, a panel of the Pennsylvania Commonwealth Court held that the Pennsylvania General Assembly acted within its authority by passing the portions of H.R. 783 withdrawing the proposed constitutional amendment to Article V, Section 16(b) from the April 2016 primary election ballot and placing the proposed amendment on the November 2016 general election ballot. (Id. at ¶ 61). Plaintiffs contend that the Commonwealth Court’s Opinion does not address the propriety of the language of the ballot question regarding the General Assembly’s proposed amendment to Article V, Section 16(b) but that the Commonwealth Court implicitly acknowledged that one cannot understand the effect and purpose of the proposed amendment without knowing the present law regarding judicial retirement. (Id. at ¶¶ 62, 63).

On July 21, 2016, Plaintiffs Sprague, Castille, and Zappala filed suit in the Pennsylvania Supreme Court seeking a declaration that the Secretary’s ballot question was unlawfully misleading, and requesting an order directing the Secretary to present Pennsylvania voters with a ballot question advising that the proposed amendment would result in raising the current constitutionally-mandated compulsory judicial retirement age of 70 to 75. (Id. at ¶ 65). Plaintiffs also filed an Emergency Application for Extraordinary Relief requesting that the Pennsylvania Supreme Court exercise extraordinary jurisdiction over the case. (Id. at ¶ 66).

On July 27, 2016, the Pennsylvania Supreme Court entered an Order granting Plaintiffs’ Emergency Application for Extraordinary Relief, thus assuming plenary jurisdiction over the matter that Plaintiffs had filed in the Commonwealth Court. (Id. at ¶68). The Secretary timely filed an Answer and New Matter on August 3, 2016. (Doc. 17, ¶69). The following day, Plaintiffs filed an Application for Summary Relief requesting that the Pennsylvania Supreme Court enter judgment in their favor based on the pleadings that Plaintiffs and the Secretary had filed. (Id. at ¶ 72). The Secretary filed an Answer to Plaintiffs’ Application for Summary Relief on August 12, 2016. (Id. at ¶ 76).

Because the Pennsylvania Supreme Court had not yet issued a ruling on Plaintiffs’ Application for Summary Relief and in accordance with the briefing schedule issued by that Court, on August 9, 2016, Plaintiffs filed a brief addressing the merits of their Complaint. (Id. at ¶ 73). Plaintiffs’ brief set forth two arguments: (1) because the ballot question fails to mention that the Pennsylvania Constitution currently requires state court jurists to retire at the age of 70, the ballot question at issue would result in voter deception because voters both for and against restricting the tenure of state court jurists would be misled by the ballot question into voting contrary to their intentions, and the election results would not reflect their true will; and (2) as the Secretary previously argued to the Pennsylvania Supreme Court, the ballot question cannot be cured by supplemental information provided in the newspaper advertisements or postings of the “plain English statement” that the Election Code requires. (Id. at ¶ 74). Plaintiffs stated that the Secretary was correct when he argued to the Supreme Court in March 2016 that the fatal defect in the ballot question at issue—i.e., its failure to advise that the proposed constitutional amendment would raise the existing constitutionally-mandated judicial retirement age by 5 years—may not be cured through the advertising or publication outside the voting booth of the text of the proposed constitutional amendment or the plain .English statement. (Id. at ¶ 75).

On August 16, 2016, the Secretary filed in the Pennsylvania Supreme Court a Cross Application for Summary Relief as well as a merits brief, to which Plaintiffs replied on August 18, 2016. (Doc. 17, ¶ 77).

On September 2, 2016, Pennsylvania Supreme Court Justice Todd filed an Opinion in Support of Granting Plaintiffs’ Application for Summary Relief and Denying Defendant’s Application for Summary Relief in which Justice Dougherty joined and Justice Wecht joined in part. (Doc. 17, ¶ 79; Doc. 17, Ex. Y). Justice Wecht filed a separate Opinion in Support of Granting Plaintiffs’ Application for Summary Relief and Denying Defendant’s Application for Summary Relief. (Id. at Ex. BB). Justice Baer filed an Opinion in Support of Denying Plaintiffs’ Application for Summary Relief and Granting Defendant’s Application for Summary Relief in which Justices Donohue and Mundy joined. (Id. at ¶ 80; id. at Ex. Z).

Accordingly, because Chief Justice Say-lor did not participate in the consideration or decision of the matter, the Pennsylvania Supreme Court deadlocked on the question •of whether the Secretary’s ballot question was unlawfully misleading. The Court thus entered the following per curiam Order:

AND NOW, this 2nd day of September, 2016, the Court being equally divided in its determination as to which parties are entitled to the grant of summary relief, this Court is without authority to grant relief and the status quo of the matter prior to the filing of the lawsuit is maintained. See Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A.2d 57 (Pa. 1971) (holding that where this Court was evenly divided in a King’s Bench original jurisdiction matter challenging gubernatorial appointments to judicial vacancies, the appropriate disposition was to -enter a per curiam order noting that the requested relief could not be granted, thereby maintaining the status quo of the matter).

(Doc. 17, ¶ 81; Doc. 17, Ex. AA).

A few hours after the Pennsylvania Supreme Court issued its September 2, 2016 Order, the Plaintiffs filed an Application for Reconsideration requesting that the Pennsylvania Supreme Court amend its Order to clarify that the case shall remain pending in the Commonwealth Court in order to maintain the status quo of the lawsuit before the Supreme Court exercised extraordinary jurisdiction over it. (Doc. 17, ¶ 91). The Secretary opposed Plaintiffs’ Application for Reconsideration and Correction on September. 8, 2016. (Id. at ¶ 92).

On September 16, 2016, the Pennsylvania Supreme Court entered an Order denying Plaintiffs’ Application for Reconsideration and Correction. (Id. at ¶ 93). Justice Todd, joined by Justice Wecht, filed a dissenting statement in support of granting Plaintiffs’ Application for Reconsideration and remanding the case to the Commonwealth Court “for an expedited resolution.” (Doc. 17, ¶ 94).

On September 19, 2016, Plaintiffs filed in the Commonwealth Court of Pennsylvania a Petition for Review in the Nature of a Complaint seeking a declaration that the Secretary’s ballot question was unlawfully misleading and requesting an order precluding the Secretary from placing the ballot question on the November 2016 general election ballot. (Doc. 17, ¶ 96). Plaintiffs and the Secretary thereafter filed competing applications for summary relief and supporting briefs. (Id. at ¶ 97).

On October 8, 2016, the Honorable Mary Hannah Leavitt, President Judge of the Commonwealth Court of Pennsylvania, issued a single-Judge Opinion granting the Secretary’s Application for Summary Relief, denying Plaintiffs’ Cross-Application for Summary Relief, and holding that under the doctrine of res judicata, the Pennsylvania Supreme Court’s September 2, 2016 Order precluded the Commonwealth Court from ruling on Plaintiffs’ Petition for Review. (Id. at ¶ 98).

On October 11, 2016, Plaintiffs appealed Judge Leavitt’s Opinion and Order to the Pennsylvania Supreme Court by way of a Notice of Appeal, arguing that Judge Leavitt erred in holding that the doctrine of res judicata relieved the Commonwealth Court of its duty to rule on the merits of Plaintiffs’ Petition for Review where no court had rendered a final adjudication with respect to the merits of Plaintiffs’ challenge to the Secretary’s ballot question. (Doc. 17, ¶ 99). In conjunction with their Notice of Appeal, Plaintiffs filed an Application to Expedite. (Id. at ¶ 100). The Secretary filed an Answer to Plaintiffs’ Application to Expedite, arguing that Judge Leavitt’s Opinion and Order should be affirmed. (Id. at ¶ 101).

On October 25, 2016, the Pennsylvania Supreme Court deadlocked and entered the following Order;

AND NOW, this 25th day of October, 2016, Appellants’ emergency application to expedite disposition of this matter is GRANTED. Appellants’ application for leave to file a reply to answer is GRANTED. The Court being equally divided, the Order of the Commonwealth Court is AFFIRMED.

(Doc. 17, ¶ 102; Doc. 17, Ex. II). The State Supreme Court, in deadlocking, ruled as follows: Chief Justice Saylor did not participate in the consideration or decision of the matter; Justice Baer filed an opinion in support of affirmance in which Justices Donohue and Mundy joined; Justice Todd filed an opinion in support of reversal in which Justices Dougherty and Wecht joined; Justice Dougherty filed an opinion in support of reversal in which Justices Todd and Wecht joined; Justice Wecht files an opinion in support of reversal in which Justices Todd and Dougherty joined. (Doc. 17, Ex. II).

On October 27, 2016, Plaintiffs filed the present action in federal court. Plaintiffs characterize this civil action as one “for declaratory and injunctive relief arising under 42 U.S.C. § 1983, the Constitution and laws of the United States, and the laws of the Commonwealth of Pennsylvania” and assert that this Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 as well as jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. (Doc. 17, ¶ 7).

In light of the aforementioned procedural history and factual allegations set forth in the Second Amended Complaint, Plaintiffs allege that the Secretary’s ballot question is “misleadingly designed to garner ‘yes’ votes from voters who are unaware that there is currently a judicial retirement age set forth in the Pennsylvania Constitution but who are in favor of a mandatory judicial retirement age” and that “[t]he effectiveness of the Secretary’s deceitful tactic is plain ... which will violate Plaintiffs’ due process rights and dilute and debase Plaintiffs’ votes while also causing there to be judges on Pennsylvania state court benches whose tenures were not approved through a valid constitutional vote.” (Doc. 117, ¶¶ 118, 120). In other words, according to Plaintiffs, “voters will be intentionally misled by the ballot question into voting contrary to their intentions, and the election results will not reflect the Pennsylvania voters’ true will.” (Id. at II121).

III. Standard op Review

A. Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1)

“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted).

[T]he federal courts are without power to adjudicate the substantive elaims in a lawsuit, absent a firm bedrock of jurisdiction. When the foundation of federal authority is, in a particular instance, open to question, it is incumbent upon the courts to resolve such doubts, one way or the other, before proceeding to a disposition of the merits.

Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass’n, 554 F.2d 1254, 1256 (3d Cir. 1977).

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). This rule “‘springs from the nature and limits of the judicial power of the United States’ and ‘is inflexible and without exception.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Mansfield, C. & L M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)). Moreover, “the burden of establishing the [existence of subject-matter jurisdiction] rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (internal citations omitted). This is because, since the federal courts’ jurisdiction is strictly limited by Constitution and statute, “[i]t is to be presumed that a cause lies outside this limited jurisdiction.” Id.

A motion to dismiss for lack of subject-matter jurisdiction is properly made under Federal Rule of Civil Procedure 12(b)(1). When a motion under Federal Rule of Civil Procedure 12 is based on several grounds, a court should first consider a 12(b)(1) challenge because if it must dismiss the complaint for lack of subject matter jurisdiction, “all other defenses and objections become moot.” In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D. Pa. 1993), aff'd 39 F.3d 61 (3d Cir. 1994).

“A district court has to first determine, however, whether a Rule 12(b)(1) motion presents a ‘facial’ attack or a ‘factual’ attack on the claim at issue, because that distinction determines how the pleading must be reviewed.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014).

A facial attack, as the adjective indicates, is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court because, for example, it does not present a question of federal law, or because there is no indication of a diversity of citizenship among the parties, or because some other jurisdictional defect is present. Such an attack can occur before the moving party has filed an answer or otherwise contested the factual allegations of the complaint. A factual attack, on the other hand, is an argument that there is no subject matter jurisdiction because the facts of the case—and here the District Court may look beyond the pleadings to ascertain the facts—do not support the asserted jurisdiction.

Id. at 358.

Thus, a Rule 12(b)(1) factual evaluation “may occur at any stage of the proceedings, from the time the answer has been served until after the trial has been completed.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891-892 (3d Cir. 1977). However, “[a] factual jurisdictional proceeding cannot occur until plaintiffs allegations have been controverted.” Id. at 892 n.17. When a party files a motion attacking jurisdiction prior to filing an answer to the complaint or otherwise presenting competing facts, the motion is “by definition, a facial attack.” Aichele, 757 F.3d at 358.

B. Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

A complaint must be dismissed under Federal Rule Civil Procedure 12(b)(6), if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must aver “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

“Though a complaint ‘does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.’” DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Covington v. Int’l Ass’n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (internal citations and quotation marks omitted). This “plausibility” determination will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

IV. Analysis

A, Failure to Join Indispensable Parties

A party may move to dismiss a complaint pursuant to Fed. R. Civ. P. 12(b)(7) for failure to join a party under Rule 19. Although Defendant raises Rule 12(b)(7) as one of the bases for his motion to dismiss, he only addresses this argument in a footnote to his brief in support of the motion. (See Doc. 20, at 3 n. 4). The Secretary’s brief argument is as follows:

The ballot question, as approved by voters, is now part of the Pennsylvania Constitution.... Therefore, all commissioned judges now have a significant vested interest in the Commonwealth’s constitutionally mandated' retirement age. This interest will be affected by a final decree in this litigation and those judges are therefore indispensable.

(Id.) (internal citation omitted). The Court interprets this statement as an assertion that every Pennsylvania state court judge is an indispensable party and thus must be joined in this action.

Pursuant to Rule 19:

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may; (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subjéct to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1). However, “[i]f a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Id. at 19(b).

The clauses set forth in Rule 19(a)(1)(A) and (B) should be considered in the disjunctive. Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 313 (3d Cir. 2007).

In determining whether Rule 19(a)(1)(A) has been satisfied and therefore that in the person’s absence, “complete relief among the existing parties” can be granted, “[t]he effect that a decision may have on an absent party is immaterial.” Huber v. Taylor, 532 F.3d 237, 248 (3d Cir. 2008). Here, the form of relief sought by Plaintiffs is a declaration that the Secretary’s ballot question regarding the proposal to amend the Pennsylvania Constitution to raise the constitutionally mandated judicial retirement age from 70 to 75 violates Pennsylvania law and the United States Constitution and that any vote cast upon the Secretary’s ballot question is invalid under- state and federal law. Plaintiffs thus seek an injunction either invalidating the results of the election on the Secretary’s ballot question or precluding the Secretary from tallying and certifying votes cast in the November 8,2016 general election on the ballot question at issue in this ease. (Doc. 17, at 49—50). The Court could grant the entirety;of this relief to Plaintiffs and the Secretary does not argue otherwise. Despite any concerns the Secretary may have regarding the impact of this complete relief, the effect on the purportedly indispensable state court judges is irrelevant to this first determination. Thus, the requirement set forth in Rule 19(a)(1)(A) is met.

The Secretary is equally unable to prevail under Rule 19(a)(1)(B). Although Defendant argues that “all commissioned judges have a significant vested interest in the Commonwealth’s constitutionally mandated retirement age” (Doe, 20, at 3 n.4), Defendant mischaracterizes the nature of the interest at issue here. The interest raised by Plaintiffs is the right to participate in a fundamentally fair state and local election. The aftermath or results of the election do not form the basis for the interest in this case. Simply because state court judges may have an interest in the result of the election because of its impact on their employment does not confer on them a special interest in the outcome of Plaintiffs’ particular action. Rather, the interest of a state court judge here is the exact same as that of any Pennsylvania voter—the right to a fundamentally fair election, including ballot language that is not unconstitutionally misleading.

“[A] holding that joinder is compulsory under Rule 19(a) is a necessary predicate to a district court’s discretionary determination under Rule 19(b) that it must dismiss a case because joinder is not feasible (i.e., will defeat diversity) and the pai'ty is indispensable to the just resolution of the controversy.” Gen. Refractories Co., 500 F.3d at 313.

Because it is necessary to establish the elements of both Rule 19(a) and 19(b) when determining indispensability, a party can only be found to be indispensable when: “(1) the party is a required party under Rule 19(a); (2) the party cannot be joined; and (3) the court determines that the action cannot proceed in that party’s absence.” 1 Moore’s Federal Rules Pamphlet § 19.3[2] (Matthew Bender).

Although the Secretary only broadly cites to Rule 19 for purposes of his joinder argument, and his brief assertions fail to fully inform the Court of the nature of his argument, his analysis appears to entirely overlook Rule 19(a) and impermis-sibly rely solely on Rule 19(b). Given the issue of the constitutionality of the ballot language, every member of the state judiciary cannot be said to be indispensable parties to the present action. As discussed, the state court judges are not required parties under Rule 19(a). Furthermore, Defendant offers no reason why joinder would not be feasible if the judges were required parties. Accordingly, a Rule 19(b) analysis is unnecessary and Defendant’s motion to dismiss based on Rule 12(b)(7) will be denied.

B. The Rooker-Feldman Doctrine

The Court will next address Defendant’s argument that he “is entitled to have this case dismissed because the Court lacks jurisdiction to hear Plaintiffs’ suit under the Rooker-Feldman doctrine” (Doe. 20, at 18).

Rooker-Feldman prevents federal district courts from exercising jurisdiction “[i]n certain circumstances, where a federal suit follows a state suit.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163-64 (3d Cir. 2010). The doctrine originated from two Supreme Court opinions issued over the course of six decades, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). “The doctrine is derived from 28 U.S.C. § 1257 which states that ‘[fjinal judgments or decrees rendered by the highest court of a state in which a decision could be had, may be reviewed by the Supreme Court.’” Gary v. Braddock Cemetery, 517 F.3d 195, 200 (3d Cir. 2008). “‘Since Congress has never conferred a similar power of review on the United States District Courts, the Supreme Court has inferred that Congress did not intend to empower District Courts to review state court decisions.’ ” Id. (quoting Desi’s Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 419 (3d Cir. 2003)). Thus, Rooker and Feldman “exhibit the limited circumstances in which this Court’s appellate jurisdiction over state-court judgments, 28 U.S.C. § 1257, precludes a United States district court from exercising subject-matter jurisdiction in an action it would otherwise be empowered to adjudicate under a congressional grant of authority,” such as 28 U.S.C. § 1331. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).

The narrow scope of Rooker-Feldman is “confined to cases of the kind from which the doctrine acquired its name: 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.” Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517. The doctrine is not implicated “simply because a party attempts to litigate in federal court a matter previously litigated in state court” and therefore “[i]f a federal plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party ..., then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.’ ” Id. at 293, 125 S.Ct. 1517 (quoting GASH Assoc. v. Vill. of Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)). The jurisdictional bar imposed by Rooker-Feldman is not so expansive as to include federal actions “that simply raise claims previously litigated in state court.” Exxon Mobil, 544 U.S. at 287 n.2, 125 S.Ct. 1517. See also, Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547 (3d Cir. 2006) (“Turner’s action in the district court did not complain of injuries caused by the state court judgment. Rather, Turner’s complaint raised federal claims, grounded on the FHA [Fair Housing Act], not caused by the state-court judgment but instead attributable to defendants’ alleged FHA violations that preceded the state-court judgment.... Though Turner’s district court complaint undoubtedly overlaps her adjudicated state-court claims, and is based on the same operative facts, this overlap does not mean that the Rooker-Feldman doctrine is applicable here. As the Court explained in Exxon Mobil, a district court is not divested of subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court.”) (internal citations omitted).

In the Third Circuit,

there are four requirements that must be met for the Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff “complaints] of injuries caused by [the] state-court judgments”; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments.

Great W. Mining & Mineral Co., 615 F.3d at 166 (alteration in original) (quoting Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517). According to the Court of Appeals, “[t]he second and fourth requirements are the key to determining whether a federal suit presents an independent, non-barred claim,” Id.

“The second requirement— that a plaintiff must be complaining of injuries caused by a state-court judgment-may also be thought of as an inquiry into the source of the plaintiffs injury.” Id. In other words, “when the source of the injury is the defendant’s actions (and not the state court judgments), the federal suit is independent, even if it asks the federal court to deny a legal conclusion reached by the state court.” Id. at 167. As a result, the federal court’s task is “to identify those federal suits that profess to complain of injury by a third party, but actually complain of injury ‘produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.’ ” Id. (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 88 (2d Cir. 2005)). In deciding whether a federal plaintiff is asserting an injury caused by the defendant’s actions, as opposed to a state court judgment, a federal court should also look at the timing of the injury, “that is, whether the injury complained of in federal court existed prior to the state-court proceedings and thus could not have been ‘caused by’ those proceedings.” Great W. Mining & Mineral Co., 615 F.3d at 167.

The fourth requirement necessary for establishing the application of Rooker-Feldman—that the plaintiff must invite review and rejection of the state-court judgment—is closely related to the second requirement and “targets [] whether the plaintiffs claims will require appellate review of state-court decisions by the district court.” Id. at 168-169.

Turning to the case at hand, only the third requirement set forth in Great Western Mining appears to undisputedly have been met in that all related state court judgments were rendered before the federal suit was filed.

With respect to the other factors, as previously noted, the doctrine of Roolcer-Feldman is not implicated “simply because a party attempts to litigate in federal court a matter previously litigated in state court” and thus “[i]f a federal plaintiff presents] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party”, then there is jurisdiction. Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517. Here, Plaintiffs argue in their brief opposing Defendant’s Motion to Dismiss that they have presented an independent claim, to wit, the deprivation of “a due process right under the United States Constitution to participate in state and local elections that afford ‘fundamental fairness’ ”, (Doc. 31, at 4-5) (citing Griffin v. Burns, 570 F.2d 1065, 1078 (1st Cir. 1978)) (citing Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 163, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).

Plaintiffs also cite to the statement of the Third Circuit in Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994), where, in holding that the District Court did not err in refusing to abstain as to a suit claiming election fraud in the casting of absentee ballots while an appeal as to the same matter was pending in the Supreme Court of Pennsylvania, stated:

Where there is substantial wrongdoing in an election, the effects of which are not capable of quantification but which render the apparent result an unreliable indicium of the will of the electorate, courts have frequently declined to allow the apparent winner to exercise the delegated power.

19 F.3d at 887.

Suit was brought in Marks pursuant to the Voting Rights Act of 1965, 42 U.S.C. § 1973, et seq., the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq., statutes which do not appear to form the basis for Plaintiffs’ Complaint here. However, in Burton v. Georgia, the plaintiffs brought suit pursuant to 42 U.S.C. § 1983, asserting that the ballot language for a proposed amendment to the State’s constitution “so misled voters that it violated their right to vote, guaranteed by the federal constitution’s Due Process Clause.” 953 F.2d 1266, 1267 (11th Cir. 1992). While recognizing that “not every state election dispute implicates federal constitutional rights,” that “[o]nly in extraordinary circumstances will a challenge to a state election rise to the level of a constitutional deprivation,” and that “isolated events that adversely affect individuals are not presumed to be a constitutional violation,” the Court set forth the following standard for determining whether the ballot language adopted by the state may give rise to a violation of the Fourteenth Amendment’s Due Process Clause: “For such extraordinary relief to be justified, it must be demonstrated that the state’s choice of ballot language so upset the evenhandedness of the referendum that it worked a patent and fundamental unfairness on the voters.” Id. at 1268-1269 (internal citations and quotation marks omitted).

The Court further determined that:

As long as citizens are afforded reasonable opportunity to examine the full text of the pi'oposed amendment, broad-gauged unfairness is avoided if the ballot language identifies for the voter the amendment to be voted upon. Therefore, substantive due process requires no more than that the voter not be deceived about what amendment is at issue.

Id, at 1269. The Court added that “[w]hen the ballot language purports to identify the proposed amendment by briefly summarizing its text, then substantive due process is satisfied—and the election is not ‘patently and fundamentally unfair’—so long as the summary does not so plainly mislead voters about the text of the amendment that ‘they do not know what they are voting for or against’; that is, they do not know which or what amendment is before them.” Id. at 1270.

The Due Process Clause of the Fourteenth Amendment also provided federal jurisdiction for a challenge brought by voters in North Carolina seeking a validation of a state constitutional amendment which authorized local government to issue bonds for development projects without first receiving voter approval by referendum. In Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009), the plaintiffs alleged that the process by which the amendment was placed before the voters was misleading and violated their due process rights. Although the Court of Appeals affirmed the District Court’s ruling that the voters lacked the requisite injury-in-fact and causation required for standing, the Circuit nonetheless acknowledged that “[i]t is without dispute that the right to vote is ‘the most basic of political rights,’ such that the government’s interference with that right may satisfy the injury-in-fact requirement.” Id. at 424 (quoting FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998)).

Here, Plaintiffs have alleged, inter alia, that the Secretary’s ballot question was “misleadingly designed to garner ‘yes’ votes” from voters who favored a mandatory judicial age retirement but who were unaware that there was a judicial retirement age already incorporated in the Pennsylvania Constitution such that these voters were deceived into voting yes for the amendment to the Constitution on the mistaken belief that they were setting, rather than increasing, the judicial retirement age. Plaintiffs argue that the language of the ballot as established by the Secretary violates the Plaintiffs’ “due process rights and dilutees] and debase[s] Plaintiffs’ vote while also causing there to be judges on Pennsylvania state court benches whose tenures were not approved through a valid constitutional vote.” (Doc. 17, ¶¶ 118,120).

Thus, Plaintiffs present an independent claim based solely on the Fourteenth Amendment’s Due Process Clause and the Rooker-Feldman doctrine as explicated in Exxon Mobil, supra, and Great Western Mining, supra, is not a complete bar to Plaintiffs’ claims in federal court.

The Secretary argues that “[i]n order for this Court to find a due process violation, it must in effect overturn the decision of the Pennsylvania Supreme Court, making the federal claim inextricably intertwined with the state court adjudication.” (Doc. 20, at 20). The phrase “ ‘inextricably intertwined’ has no independent content [and i]t is simply a descriptive label attached to claims that meet the requirements outline in Exxon Mobil.” Hoblock, 422 F.3d at 87. As explained in Exxon Mobil and Great Western Mining, Rook-er-Feldman requires that a plaintiff must be complaining of injuries caused by a state-court judgment. This “may also be thought of as an inquiry into the source of the plaintiffs injury” i.e. “when the source of the injury is the defendant’s actions (and not the state court judgments), the federal suit is independent, even if it asks the federal court to deny a legal conclusion reached by the state court.” Great W. Mining & Mineral Co., 615 F.3d at 166, 167. Here, Plaintiffs are not complaining of a state court injury, but rather the actions of the Secretary in placing an allegedly unconstitutional question on the ballot. This renders Rooker-Feldman inapplicable in the present action. Addressing Plaintiffs’ federal constitutional claim could not “overturn” the Pennsylvania Supreme Court’s decision where it is not the state courts’ decisions that Plaintiffs take issue with. Despite Defendant’s arguments, “[t]he fact that the state court chose not to remedy the injury does not transform the subsequent federal suit on the same matter into an appeal, forbidden by Rooker-Feldman, of the state-court judgment.” Hoblock, 422 F.3d at 88; see also, id. (“[A] federal suit complains of injury from a state-court judgment, even if it appears to complain only of a third party’s actions, when the third party’s actions are produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.”).

Further, regardless of whether Rooker-Feldman bars the claims brought by Cas-tille, Zappala, and Sprague, it does not operate as a bar to those of Herron and Levinson. The Secretary, citing to his discussion of privity in the collateral estoppel section of his brief in support of the motion to dismiss, broadly asserts that “[b]ecause both sets of Plaintiffs are in privity with one another, Plaintiffs are all state court losers.” (Doc. 20, at 19 n. 9). Defendant conflates the requirements of Rooker-Feldman and collateral estoppel. The Supreme Court has made clear that

[w]hatever the impact of privity principles on preclusion rules, Rooker-Feld-man is not simply preclusion by another name. The doctrine applies only in “limited circumstances,” Exxon Mobil, supra, at 291, 125 S.Ct. 1517, where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court. The Rooker-Feld- man doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment.

Lance v. Dennis, 546 U.S. 459, 466, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006). As a result, Rooker-Feldman has no impact on the claims of Levinson and Herron.

This determination that an independent federal claim exists allows this Court to proceed to the next step in its analysis—a determination of whether Plaintiffs’ claims in this action deny a legal conclusion reached in the state court proceedings and, if so, whether the Defendant prevails under principles of res judicata (claim preclusion) or collateral estoppel (issue preclusion).

C. The Preclusion Doctrines

The Secretary argues that “Res Judicata bars this action as to Sprague, Castille and Zappala” and that “Collateral Estoppel bars the remaining claims.” (Doc. 20