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NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; and PATRICK MALLEY

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NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; and PATRICK MALLEY APP NO. _________ --------------------------- IN THE SUPREME COURT OF THE UNITED STATES --------------------------- NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; and PATRICK MALLEY, Petitioners, v. CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL; MAYOR OF PITTSBURGH, Respondents. --------------------------- On Application for an Extension of Time to File Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit --------------------------- PETITIONERS’ APPLICATION TO EXTEND TIME TO FILE PETITION FOR WRIT OF CERTIORARI JOHN J. BURSCH COUNSEL OF RECORD ALLIANCE DEFENDING FREEDOM 440 First Street, N.W., Suite 600 Washington, D.C. 20001 (616) 450-4235 [email protected] Counsel for Petitioners To the Honorable Samuel A. Alito, Jr., as Circuit Justice for the United States Court of Appeals for the Third Circuit: Pursuant to Supreme Court Rules 13.5, 22, 30.2, and 30.3, Petitioners request that the time to file a petition for writ of certiorari in this case be extended for 30 days to and including Thursday, March 26, 2020. The Court of Appeals issued its opinion on October 18, 2019. (Appendix A) and denied rehearing en banc on November 27, 2019 (Appendix B). Absent an extension of time, the petition for writ of certiorari would be due on February 25, 2020. Petitioners are filing this application more than 10 days before that date. See S. Ct. R. 13.5. This Court would have jurisdiction over the judgment under 28 U.S.C. § 1257(a). Background This case involves the constitutionality of a Pittsburgh ordinance that creates a 15-foot “buffer zone” outside the entrance of any hospital or healthcare facility. Pittsburgh, Pa., Code § 623.04 (2005). The ordinance’s primary—perhaps exclusive— purpose seems to be preventing pro-life advocates from peacefully gathering or engaging in demonstrations, leafletting, and sidewalk counseling near an abortion clinic. The United States Court of Appeals for the Third Circuit concluded that the ordinance does not cover sidewalk counseling and thus does not impose a significant burden on speech. Slip Op. 20–25. This view of the ordinance was curious in that it was contrary to how Pittsburgh interpreted its own law. Id. at 22–23 n.14. Nevertheless, the court of appeals’ reinterpretation did not solve the problem of the 1 ordinance’s ban on demonstrations and leafletting. And on that issue, the court of appeals felt bound by this Court’s decision in Hill v. Colorado, 530 U.S. 703 (2000), to conclude that the ordinance’s prohibition was content neutral. Slip Op. 26–27. The court of appeals so concluded even while acknowledging that Hill’s content-neutrality holding is “hard to reconcile with” this Court’s decisions in McCullen v. Coakley, 573 U.S. 464, 493–97 (2014), and Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). Slip Op. 27 n.17 (quoting Price v. City of Chicago, 915 F.3d 1107, 1109 (7th Cir. 2010) (Sykes, J.), petition for cert. filed, No. 18-1516 (U.S. June 6, 2019)). The court of appeals then upheld the ordinance’s ban on demonstrations and leafletting under an intermediate-scrutiny standard of review, one that considered whether the ban was “narrowly tailored to serve a significant governmental interest.” Slip Op. at 28. In so holding, the court analogized the ban to buffer zones that this Court upheld in Madsen v. Women’s Health Center Inc., 512 U.S. 753 (1994), and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997). But the court did not require the City to show that it tried or considered less burdensome alternatives, as in Madsen and Schenck, because the burden imposed on pro-life advocates’ speech was “not significant.” Slip Op. at 35. Judge Hardiman concurred but wrote separately to emphasize that the “continued vitality of [the panel’s] content neutrality analysis is questionable after Reed.” Slip Op. at 39 (Hardiman, J., concurring). Petitioners intend to file a petition for writ of certiorari challenging the Third Circuit’s watering down of intermediate scrutiny in violation of this Court’s 2 precedents and to ask this Court to resolve the confusion between its decisions in Hill, on the one hand, and McCullen and Reed, on the other. Petitioners now apply for an extension of time to do so. Reasons for Granting Extension of Time The time to file a petition for writ of certiorari should be extended for the following reasons: 1. Petitioners’ counsel has numerous litigation deadlines in the weeks leading up to and immediately following the current petition deadline: • An opening brief in the United States Court of Appeals for the Tenth Circuit regarding a website designer’s free exercise and free speech rights on January 22, 2020 (303 Creative, LLC v. Elenis, No. 19-1413). • A petition for writ of certiorari in this Court involving the ability of a university to avoid responsibility for violating a student’s free-speech rights on January 31, 2020 (Uzuegbunam v. Preczewski, No. 19A461). • An amici brief on the merits in this Court involving the scope of the ministerial exception around February 10, 2020 (Our Lady of Guadalupe School v. Morrisey-Berru, No. 19-267, and St. James School v. Biel, No. 19-348). • A petition for writ of certiorari in this Court involving the validity of the federal government’s exemptions to the Affordable Care Act’s contraceptive mandate on February 19, 2020 (March for Life Education and Defense Fund v. California, No. 19A759). • A reply brief in the United States Courts of Appeals for the Eighth Circuit involving student speech rights on February 26, 2020 (Turning Point USA v. Trustees of Arkansas State University, No. 19-3016). • An argument in the Michigan Supreme Court regarding the constitutionality of Michigan’s Blaine Amendment on March 5, 2020 (Council of Organizations and Others for Education About Parochiaid v. State of Michigan, No. 158751). 3 • An amicus brief in this Court involving the validity of the federal government’s exemptions to the Affordable Care Act’s contraceptive mandate on March 9, 2020 (Trump v. Pennsylvania, No. 19-454). • An argument in the United States Court of Appeals for the Sixth Circuit involving the constitutionality of Michigan’s new, purportedly “nonpartisan” redistricting commission on March 17, 2020 (Daunt v. Benson, No. 19-2377). Counsel of Record further assists in overseeing briefing by approximately 60 employees in dozens of additional litigation matters pending in federal and state courts across the country. 2. Counsel for Petitioners file this application in good faith and not for the purpose of causing undue delay and the requested extension will not cause any prejudice to Respondents. Conclusion For the foregoing reasons, Petitioners respectfully request that the time to file a petition for writ of certiorari in this case be extended from February 25, 2020 to March 26, 2020. Respectfully submitted, s/ John J. Bursch JOHN J. BURSCH COUNSEL OF RECORD ALLIANCE DEFENDING FREEDOM 440 First Street, N.W., Suite 600 Washington, D.C. 20001 (616) 450-4235 [email protected] January 23, 2020 4 CERTIFICATE OF SERVICE A copy of this application was served by email and U.S. Mail to the counsel listed below in accordance with Supreme Court Rule 22.2 and 29.3: Matthew S. McHale City of Pittsburgh Law Department 313 City-County Building 414 Grant Street Pittsburgh, PA 15219 [email protected] s/John J. Bursch JOHN J. BURSCH Counsel of Record ALLIANCE DEFENDING FREEDOM 440 First Street, NW, Suite 600 Washington, D.C. 20001 (616) 450-4235 [email protected] 5 Appendix Table of Contents U.S. Court of Appeals for the Third Circuit Opinion .................................. Appendix A U.S. Court of Appeals for the Third Circuit Order Denying Petition for Rehearing En Banc .............................................................................. Appendix B APPENDIX A Case: 18-1084 Document: 003113378830 Page: 1 Date Filed: 10/18/2019 PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 18-1084 _______________ NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; PATRICK MALLEY, Appellants v. CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL; MAYOR PITTSBURGH _______________ On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-14-cv-01197) Honorable Cathy Bissoon, U.S. District Judge _______________ Argued: February 6, 2019 Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges (Opinion Filed: October 18, 2019) Case: 18-1084 Document: 003113378830 Page: 2 Date Filed: 10/18/2019 Kenneth J. Connelly Elissa M. Graves Kevin H. Theriot [ARGUED] Kristen K. Waggoner David A. Cortman Alliance Defending Freedom 15100 North 90th Street Scottsdale, AZ 85260 Lawrence G. Paladin, Jr. Suite 6C 15 Duff Road Pittsburgh, PA 15235 Counsel for Plaintiff-Appellants Nikki Bruni, Julie Cosentino, Cynthia Rinaldi, Kathleen Laslow, and Patrick Malley Julie E. Koren Matthew S. McHale∗ [ARGUED] Yvonne S. Hilton City of Pittsburgh Department of Law 414 Grant Street 313 City County Building Pittsburgh, PA 15219 ∗ Matthew S. McHale withdrew as counsel on July 3, 2019, prior to the issuance of this opinion. 2 Case: 18-1084 Document: 003113378830 Page: 3 Date Filed: 10/18/2019 Counsel for Defendant-Appellees City of Pittsburgh, Pittsburgh City Council, Mayor Pittsburgh William A. Bonner, I 12 Veterans Square P.O. Box 259 Media, PA 19063 Counsel for Amicus Curiae Life Legal Defense Foundation Jamie Cohn Stephen M. Juris Janice Mac Avoy Fried Frank Harris Shriver & Jacobson One New York Plaza New York, NY 10004 Susan J. Frietsche Women’s Law Project Western Pennsylvania Office 428 Forbes Avenue Suite 1710 Pittsburgh, PA 15219 Counsel for Amici Curiae Women Law Project, National Abortion Federation Stephen M. Crampton P.O. Box 4506 Tupelo, MS 38803 3 Case: 18-1084 Document: 003113378830 Page: 4 Date Filed: 10/18/2019 Counsel for Amici Curiae Pro Life Action League, Sidewalk Advocates for Life Steven W.
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