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ROY v. JONES

June 16, 1972

Samuel T. ROY, Justice of the Peace, et al., Plaintiffs,
v.
Benjamin R. JONES, Chief Justice of the Supreme Court of Pennsylvania, et al., Defendants


Scalera, District Judge.


The opinion of the court was delivered by: SCALERA

1.

 Plaintiffs are justices of the peace in Allegheny County who have been temporarily suspended from office by order of the Supreme Court of Pennsylvania upon recommendation of the Judicial Inquiry and Review Board. They have instituted this action pursuant to 42 U.S.C.A. § 1983, 28 U.S.C.A.§ 1343 and 28 U.S.C.A.§ 1331, requesting that this court (1) enjoin enforcement of the suspension order because they were suspended without notice and a hearing in violation of their constitutional rights to procedural due process, and in violation of the Rules of Procedure Governing the Judicial Inquiry and Review Board, *fn1" and (2) enjoin the Judicial Inquiry and Review Board from conducting hearings and making further recommendations to the Supreme Court in their case because the Board can no longer be considered an impartial tribunal, having already recommended suspension of plaintiffs, and because the combining of the functions of prosecution, judge and jury in one panel violates their due process rights.

 Plaintiffs further aver that the application of the Rules of Conduct, Office Standards and Civil Procedure for Justices of the Peace, *fn2" promulgated by the Supreme Court and for the violation of which they have been suspended as "holdover" justices of the peace violates their constitutional rights in that the rules are arbitrary and capricious, deny them equal protection, constitute retroactive legislation and impair the obligations of contract.

 Defendants have moved to dismiss this action for the reasons that the complaint fails to state a claim on which relief can be granted, the federal court lacks jurisdiction, and that defendants are immune from suit. Defendants' motion is now before this court.

 2.

 The plaintiffs were elected to the office of justice of the peace in the General Election of November 4, 1967 for a term of six years. Their terms expire on the first Monday of January 1974. They were commissioned by the Governor of Pennsylvania pursuant to his authority under Article V, § 11, as amended November 2, 1909, of the old Constitution of 1874.

 The plaintiffs are compensated solely by the receipt of fees, which fees are determined by statute, and they receive no salary or other compensation for services rendered as justices of the peace.

 The plaintiffs did not choose to stand for re-election in the General Election conducted November 4, 1969 and, as authorized by the Constitution of 1968, are therefore "holdover" justices of the peace who were elected and commissioned under the Constitution of 1874 and who are scheduled to remain in office only until the expiration of their term.

 At the time of their election to office, the plaintiffs were not prohibited from holding the office of justice of the peace while concurrently being employed by the Commonwealth or any of its political subdivision, or holding office in a political party or political organization, or participating in partisan activity.

 The Rules of Conduct, under authority contained in Article V, §§ 10(a) and 17(b) of the 1968 Constitution prohibit such activity. Rule 2 provides:

 
"A. A justice of the peace shall not hold office in a political party or political organization, or hold an office or position of profit in the government of the United States, the Commonwealth or any political subdivision thereof, except in the armed services of the United States or the Commonwealth.
 
"B. A justice of the peace shall not engage in partisan political activity. He shall not deliver political speeches, make or solicit political contributions, publicly endorse candidates for political office or participate in party conventions; but nothing herein shall prevent the justice of the peace from making a political contribution to his own campaign or to a campaign of a member of his immediate family, or from attending or speaking at political gatherings in behalf of his own candidacy."

 Rule 7 of the Rules of Conduct defines justice of the peace to mean any justice of the peace, including those elected or appointed to a term of office commencing before, on or after January 1, 1970, thus by definition bringing "holdover" justices of the peace within the code of conduct.

 On May 29, 1970, the Supreme Court of Pennsylvania denied the Petition for Assertion of Original Jurisdiction for Review and Clarification of the Pennsylvania Rules of Conduct, Office Standards and Procedure for Justice of the Peace. On July 2, 1970, upon reconsideration, the Supreme Court of Pennsylvania granted the petition of the Squires and Constables Association of Pennsylvania, Inc., Allegheny County Chapter, for rehearing of the original petition. Petition of Squires and Constables of Pennsylvania, Inc., 442 Pa. 502, 275 A.2d 657 (1971).

 The association of justices of the peace and constables contended that the Supreme Court of Pennsylvania had no right under the Constitution of 1968 or otherwise to promulgate any rule changing or diminishing any of the rights or powers which the justices of the peace of Pennsylvania possessed prior to the Constitution of 1968. The court specifically rejected the contention of the petitioners, dismissed the request to hold the rules invalid or unconstitutional, noted that petitioners' contention ignored all of the changes embodied in the new Constitution and the rules adopted under it, and Article V, § 1 thereof which creates a unified judicial system for the Commonwealth, including all courts and justices of the peace, and § 10(a) thereof which provides that the "Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace." The court upheld the constitutionality of the rules and specifically found that the rules were binding on all justices of the peace, even those elected before January 1, 1970. No appeal was taken.

 Pursuant to the authority of Article V, § 18(k) of the Constitution of 1968, which provides that the Supreme Court shall prescribe rules of procedure for the suspension, removal, discipline and compulsory retirement of justices of the peace, the Supreme Court of Pennsylvania adopted Rules of Procedure Governing Judicial Inquiry and Review Board. The Rules of Procedure were made specifically applicable to justices of the peace in Rule 23(b).

 These rules provide that the Judicial Inquiry and Review Board, which is composed of three judges of the Court of Common Pleas, two judges of the Superior Court, two non-judge members of the bar of the Supreme Court and two non-lawyer electors shall investigate, conduct hearings and make a recommendation to the Supreme Court with respect to allegations of misconduct on the part of justices of the peace.

 The rules provide a judge shall be notified of an investigation by the Board, if the matter proceeds beyond the preliminary inquiry stage, and afforded a reasonable opportunity to present such matters as he may choose. In the event charges against the judge are pursued, a hearing is to be scheduled at which the judge has the right to be represented by counsel, to examine and cross-examine witnesses, and to present evidence in his own behalf. A judge may object to the findings and report of the Board, in which case he has the right to another hearing before the Board prior to presentation of the record of proceedings and findings of the Board to the Supreme Court for determination.

 On April 20, 1971, Henry Ellenbogen, the President Judge of the Common Pleas Court of Allegheny County, sent a letter to each of the plaintiffs, stating that it was his belief that the plaintiffs were in violation of Rule 2(a) of the Rules of Conduct, and that in his opinion the plaintiffs could not legally continue to hold the office of justice of the peace and be employed by a political subdivision of the Commonwealth and/or hold office in a political party or political organization.

 Pursuant to a recommendation by the Judicial Inquiry and Review Board, the Supreme Court of Pennsylvania issued an order on May 19, 1971, suspending thirty-four justices of the peace from office pending final determination of the matter by the Judicial Inquiry and Review Board and further order of the court. Plaintiffs had not been notified of any investigation or proceedings pending before the Board with respect to themselves, nor were they given an opportunity to appear and present facts in their defense. Subsequent to their suspensions, plaintiffs were formally notified of the institution of formal charges against them. They have formally answered the charges and a hearing before the Board has been scheduled.

 On June 1, 1971, plaintiffs, together with the Squires and Constables Association of Pennsylvania and other suspended justices of the peace, petitioned the Supreme Court of Pennsylvania to revoke its order of May 19, 1971. This petition was denied by order of court dated July 14, 1971.

 Subsequently, on August 23, 1971, plaintiffs, together with the Squires and Constables Association of Pennsylvania, Inc., and other suspended justices of the peace, applied to Honorable William Brennan, Associate Justice of the United States Supreme Court and Circuit Justice for the Third Circuit, for a stay of the order of the Supreme Court of Pennsylvania suspending the justices of the peace pending the filing of a petition for certiorari and a final determination of the matter by the Supreme Court of the United States. Justice Brennan denied the application on September 13, 1971. No petition for certiorari with respect to the suspension order of the Supreme Court of Pennsylvania was filed with the Supreme Court of the United States.

 Suit in this court was filed on December 30, 1971, on which date the petition of the plaintiffs for a temporary restraining order was denied. A hearing on the plaintiffs' request for a preliminary injunction was held on January 10, 1971. On the same date a motion to dismiss was filed by defendants.

 At the hearing the court was advised that a stipulation of facts would be presented by the parties in order that the issues could be crystallized for the court. The court specified the time in which the stipulation was to be filed and directed the filing of briefs on the issue of the motion to dismiss.

 The stipulation of facts was filed by the parties on January 13, 1972. Defendants' brief in support of its motion to dismiss was filed on January 28, 1972. Plaintiffs' briefs ...


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