The opinion of the court was delivered by: HIGGINBOTHAM
In November, 1965, the plaintiff, E. David Keiser, was re-elected as Magistrate of the City of Philadelphia, having first been elected to that office in 1941 and continuously re-elected between 1941 and 1965. Plaintiff was a part of what in Philadelphia has now become an extinct specie of the Judiciary; for though neither a lawyer nor formally trained in the law, plaintiff was one of several laymen who were permitted to serve as a Magistrate in the City of Philadelphia -- exercising important judicial responsibilities on both criminal and civil matters. Following adoption of the amendment to the Judicial Article of the Pennsylvania Constitution, P.S., on April 23, 1968, effective January 1, 1969, particularly Article 5, Section 6 and Schedule to Article 5, Section 16(e), the plaintiff was designated as a non-law judge of the newly created Municipal Court, which supplanted and replaced the office of Magistrate and Board of Magistrates, and was sworn into office pursuant to that designation.
In August of 1966, the plaintiff was indicted by the Philadelphia Grand Jury in a twenty-one count indictment (Nos. 1862-1882, August 29, 1966) charging, inter alia, conspiracy to obstruct public justice, obstruction and perversion of public justice, bribery and extortion. The alleged factual basis of the indictments was that the plaintiff in January, 1964, had accepted $2600.00 for attempting to influence a judicial decision regarding the sentencing of a defendant in the Courts of Chester County, and further, that the plaintiff had received $3,000.00 "on behalf of Edmund J. Mancini" in return for assurances by Keiser that a prosecution pending against Mancini would be disposed of without the imposition of a sentence of imprisonment. Shortly after the return of these indictments, the plaintiff was not assigned any judicial duties, although he continued to receive his salary and to earn accrued pension rights until January, 1971.
There is an intriguing irony in plaintiff's multifaceted positions as to the extent of his purported medical disability. As to the serious felony indictments untried and pending against him for almost five years, he claims that his heart condition is of such disabling proportions that "great risk" to his health would be involved in any proceedings wherein he was the defendant. However, when it pertains to collecting a bi-weekly pay check as a judge, plaintiff asserts that he is well enough to preside over those proceedings where he will be adjudicating the important rights and liberties of other defendants who are charged with commission of crimes.
As to the proceedings resulting from the complaint filed against him by the Pennsylvania Judicial Inquiry and Review Board (hereinafter referred to as the "Judicial Board"), plaintiff's resourceful counsel requested "* * * that the Board shall not complete the matter until Mr. Keiser has had an opportunity to be heard." (Hearing, June 1, 1970, N.T., p. 22), since plaintiff "* * * can appear at times." (Hearing, June 1, 1970, N.T., p. 25). Though plaintiff attended portions of the proceedings before the Judicial Board, he neither testified nor did he present any evidence in refutation of the major charges that he received $5,600.00 for the purpose of influencing or attempting to influence judicial decisions in state courts so that two persons could be placed on probation. However, the particularly patient presiding Judge of the Judicial Board gave him ample opportunity to present any evidence or witnesses in his behalf.
As part of the 1968 Amendment to the Pennsylvania Constitution, Article 5, Section 18 was added, providing for the creation of a Judicial Inquiry and Review Board to hear complaints, evaluate evidence, and make recommendations to the Pennsylvania Supreme Court concerning the "suspension, removal, discipline, or compulsory retirement of justices or judges." Article 5, Section 18(e). Pursuant to procedures mandated by the Pennsylvania Supreme Court for the Judicial Inquiry and Review Board (Order No. 512, Miscellaneous Docket No. 16) (June 27, 1969), the plaintiff was formally charged with "misconduct in office," "conduct which prejudices the proper administration of justice," and conduct bringing "into disrepute" the "judicial office of Magistrate and Judge in the City of Philadelphia."
The basis of these charges was the plaintiff's alleged receipt of payment to influence the outcome of cases pending in the state courts.
On May 20, 1970, plaintiff filed in the Dauphin County Court, Commonwealth Docket No. 204-1970, a complaint in mandamus against the Judicial Board and against the Honorable Vincent A. Carroll, then President Judge of the Court of Common Pleas of Philadelphia County, seeking, inter alia, to restrain the proceedings until a judicial decision could be obtained pertaining to preliminary objections he had filed with the Judicial Board. On May 29, 1970, after hearing oral argument, the Dauphin County Court dismissed his petition on the ground that it lacked jurisdiction in mandamus over the Judicial Board. An appeal was filed in the Supreme Court of Pennsylvania on June 1, 1970 (May Term, 1971, No. 11); a petition for supersedeas seeking a stay of proceedings before the Judicial Board was denied by that Court, permitting hearings before the Judicial Board to take place on June 1 and 2, 1970, and July 20, 1970, and August 5, 1970. On June 28, 1971, plaintiff's petition to the Pennsylvania Supreme Court from the order of the County Court of Dauphin County refusing to assert jurisdiction in mandamus over the Judicial Board was dismissed by the Pennsylvania Supreme Court. On the basis of the formal proceedings instituted against Judge Keiser, the Judicial Board on November 25, 1970, recommended to the Pennsylvania Supreme Court that he be permanently removed from judicial office. On January 21, 1971, the Supreme Court of Pennsylvania entered an order, effective as of that date, accepting the recommendation of the Board that plaintiff be removed as non-law judge of the Municipal Court of Philadelphia.
On January 26, 1971, plaintiff filed the complaint in issue in this Court. The matter has been briefed thoroughly, and a final pretrial conference was held on August 18, 1971. By reason of the Pennsylvania Supreme Court's decisions of January 21, 1971 and June 28, 1971, there are apparently no other procedures under Pennsylvania law whereby plaintiff could further challenge the order of the Pennsylvania Supreme Court directing his removal from judicial office.
After carefully considering plaintiff's extensive claims for relief, I have concluded that the plaintiff's contentions are without merit and that the Order of the Pennsylvania Supreme Court removing him from judicial office should not be disturbed. Further, I find that plaintiff has not met his burden in establishing "[a] substantial claim of unconstitutionality"
to require the convening of a three-judge district court, and thus his request for a three-judge court is denied.
Asserting that jurisdiction is properly founded on 28 U.S.C. §§ 1331 and 1343, and 42 U.S.C. § 1983, the plaintiff seeks the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, and an interlocutory and permanent injunction restraining the enforcement, operation and execution of Article 5, Section 18 and Schedule to Article 5, Section 24 of the Pennsylvania Constitution as applied to plaintiff. The plaintiff also seeks a declaratory judgment under 28 U.S.C. §§ 2201 and 2202.
The plaintiff claims that Article 5, Section 18 is constitutionally invalid on its face and as applied to him for the following reasons:
(1) Article 5, Section 18(d) of the Pennsylvania Constitution, authorizing suspension or removal of judges for "misconduct in office" is unconstitutionally vague.
(3) The proceedings before the Judicial Board and the final order of the Supreme Court of Pennsylvania removing the plaintiff from his judicial office violated his right to trial by jury under the Sixth and Fourteenth Amendments in that (a) plaintiff's removal, on the ground of his alleged commission of the acts of bribery and extortion with which he was charged but never tried, "assumed" his criminal guilt without trial; and (b) the plaintiff's Sixth Amendment right to confront the witnesses against him was denied when the transcript of testimony given by a witness who did not appear at his hearing (but who was "not legally unavailable" for the hearing) was admitted into evidence against him.
(4) The discipline of plaintiff pursuant to Article 5, Section 18, which became effective after the commission of the acts of misconduct with which he was charged, constitute the application to plaintiff of an impermissible ex post facto law.
III. CONVENING OF A THREE-JUDGE COURT
The first question before me is whether it is necessary and appropriate to convene a three-judge court, pursuant to 28 U.S.C., §§ 2281 and 2284,
to determine and grant appropriate relief concerning the constitutional claims advanced by plaintiff. For reasons stated herein, I have determined that the convening of a three-judge court is not appropriate.
The plaintiff seeks the convening of a three-judge District Court for the determination of allegedly substantial constitutional challenges to the standards and procedures under which he was removed from judicial office in Pennsylvania. At the outset, it is clear that a three-judge court is properly convened only if the plaintiff seeks to enjoin the enforcement of an allegedly unconstitutional statute of statewide application. In contrast, a challenge to the unconstitutional application of a valid state law does not justify the convening of a three-judge court. The statutory purpose of requiring the convening of a three-judge court is to provide "procedural protection" against "state-wide doom by a federal court of a state's legislative policy." Phillips v. United States, 312 U.S. 246, 251, 61 S. Ct. 480, 483, 85 L. Ed. 800 (1941). Writing for a unanimous Court in Phillips, Justice Frankfurter noted that although "[some] constitutional or statutory provision is the ultimate source of all actions by state officials * * * an attack on lawless exercise of authority * * * is not an attack upon the constitutionality of a statute conferring the authority * *." 312 U.S. at 252, 61 S. Ct. at 484.
The only allegation which presents a potential basis for the convening of a three-judge court is the claim that Article 5, § 18(d) of the Pennsylvania Constitution, authorizing suspension or removal of judges for "misconduct in office" is unconstitutionally vague. Because the facial attack on this Constitutional provision as void for vagueness is insubstantial, however, the convening of a three-judge court is not warranted.
"(d) Under the procedure prescribed herein, any justice or judge may be suspended, removed from office or otherwise disciplined for violation of section seventeen of this article, misconduct in office, neglect of duty, failure to perform his duties, or conduct which prejudices the proper administration of justice or brings the judicial office into disrepute and may be retried for disability seriously interfering with the performance of his duties."
In Ex parte Poresky, 290 U.S. 30, 31, 54 S. Ct. 3, 4, 78 L. Ed. 152, the Supreme Court said that "[a] substantial claim of unconstitutionality" is necessary for the convening of a three-judge court, and that the statute "does not require three judges to pass upon this initial question of jurisdiction." The Court further said:
"The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. [City of] Phoenix, 287 U.S. 29, 30, 53 S. Ct. 67, 77 L. Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S. Ct. 549, 550, 77 L. Ed. 1062. The question may be plainly unsubstantial either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.' Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S. Ct. 326, 54 L. Ed. 482; McGilvra v. Ross, 215 U.S. 70, 80, 30 S. Ct. 27, 54 L. Ed. 95.
"While it is appropriate that a single District Judge to whom application is made for an interlocutory injunction restraining the enforcement of a state statute should carefully scrutinize the bill of complaint to ascertain whether a substantial question is presented, to the end that the complainant should not be denied opportunity to be heard in the prescribed manner upon a question that is fairly open to debate, the District Judge clearly has authority to dismiss for the want of jurisdiction when the question lacks the necessary substance and no other ground of jurisdiction appears." 290 U.S. at 32, 54 S. Ct. at 4-5.
While certainly no plaintiff entitled to a three-judge court should be denied one, it is clear that these courts constitute "a serious drain upon the federal judicial system" and thus the district judge should carefully scrutinize the complaint to ascertain whether the plaintiff has met the prerequisite standard required for the convening of a three-judge court. (See: Jones v. Branigin, 433 F.2d 576, 577 (6th Cir. 1970); Note, The Three-Judge District Court and Appellate Review, 49 Va. L. Rev. 538 (1963). The specific standards of misconduct set forth in Article 5, Section 17, which under Article 5, Section 18 provide a basis for the removal of a judge from office, clearly are not violative of due process because of impermissible vagueness.
These constitutional provisions cannot be said to provide a standard "which either forbids or requires the doing of an act in terms so vague that men of common ...