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December 9, 1980

Richard P. ADAMS, Plaintiff,

The opinion of the court was delivered by: NEALON



 On November 6, 1979, Richard P. Adams of Luzerne County, Pennsylvania, was elected a district justice. *fn1" His term was scheduled to last six years. In January of 1980, however, he announced his intention to run for Congress. Pennsylvania law requires a district justice to "resign his office when he becomes a candidate either in a party primary or in a general election for a non-judicial office." *fn2" The Commonwealth's Judicial Inquiry and Review Board ("Board"), which is charged with responsibility to enforce the rules regulating judicial conduct, decided that Adams's action required him to forfeit his position. See 42 Pa.C.S.A. §§ 2101, et seq. and 3332. In February 1980, the Board petitioned the Pennsylvania Supreme Court for a Rule to Show Cause why the plaintiff's office should not be declared vacant. The Rule was issued. Adams responded by admitting the facts of the allegation and noting that he considered the law in question, Rule 15(E) of the Governing Standards for District Justices, unconstitutional. He also asked that the Rule be dismissed "pending resolution of the Constitutional issue in Federal Court." On the subsequent March 12th, the Supreme Court issued an order holding that Adams's position was "vacant." See Exhibits F, G, H and I appended to Document 20 of the Record.

 In this action, which alleges jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, the former District Justice seeks reinstatement, lost wages, attorney's fees, and invalidation of Rule 15(E). Adams offers four theories for relief. Initially, he contends that the Pennsylvania Supreme Court denied him due process, because it acted on the Rule to Show Cause without a hearing. Second, the complaint portrays the requirement that district justices resign before seeking political office as pre-empted by the constitutional qualifications for members of Congress. Third, Adams labels Rule 15(E) a violation of equal protection, in that it grants lawyers greater access than non-lawyers to electoral office. Finally, the former District Justice claims that his First Amendment right to participation in the political process has been infringed. A review of these various propositions indicates that the defendants must be granted summary judgment. The Pennsylvania Supreme Court's order removing the plaintiff from office bars the instant § 1983 action under the doctrine of res judicata. Moreover, the complainant's constitutional theories are unpersuasive.


 Counsel for the defendants have advanced a number of threshold arguments for dismissal of the suit. These contentions must be examined before the court considers the merits of the case. The claim of mootness fails, because Adams's complaint provides a live controversy and the parties retain an interest in the outcome. United States Parole Commission v. Geraghty, 445 U.S. 388, 395-97, 100 S. Ct. 1202, 1208-1209, 63 L. Ed. 2d 479 (1980). Furthermore, no basis exists for finding laches. *fn3" Yet two of the preliminary defenses merit careful review, viz., the judicial immunity of the Pennsylvania Supreme Court and res judicata. *fn4"

 A. Judicial Immunity

 Analysis of this question must begin with a recent precedent of major importance. In Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980), two citizens groups sued the highest court of Virginia for promulgating and enforcing a bar discipline rule which prohibited attorneys from advertising. The regulation was clearly unconstitutional. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). A three-judge federal district court ruled for the plaintiffs and enjoined enforcement of the provision. The complainants also received an award of attorney's fees. On appeal to the United States Supreme Court, the defendant raised the question of judicial immunity.

 Review of the Consumers Union holding requires an understanding of the rather unique methods the Virginia Supreme Court had for enforcing its bar rules. The tribunal not only had the power to write regulations and to decide cases involving their breach, but it also retained the right to initiate proceedings against attorneys suspected of misconduct. Justice White, author of the Consumers Union opinion, analyzed each of these functions in assessing the immunity claim. The defendant was found absolutely insulated from suit with regard to the "legislative" action of drafting bar discipline rules. Consumers Union, 100 S. Ct. at 1974-75. The second potential immunity concerned the "judicial" power to try cases involving the regulations. Justice White stated that the Court did not have to decide that issue. Id. at 100 S. Ct. at 1975. Rather, Consumers Union turned on the defendant's "enforcement" powers. The opinion noted that while district attorneys and similar state officers enjoy an absolute immunity from suits for damages, they are liable in civil rights actions seeking injunctive and declaratory relief. Justice White reasoned that the same principle should apply to the Virginia Supreme Court in its capacity as a prosecutor of unethical lawyers. Id. at 1975-77.

 Consumers Union does not control the instant case, because the procedures employed by the Pennsylvania Supreme Court in disciplining judicial officers are significantly different from those involved in Virginia bar affairs. Specifically, the highest tribunal of this Commonwealth has no "enforcement" function with regard to District Justices who violate the governing code of conduct. All such actions are filed by the Judicial Inquiry and Review Board. 42 Pa. C.S.A. § 3332. The Supreme Court's role is purely adjudicatory; it: (1) reviews the recommendations of the Board, (2) has the option of ordering additional evidence, and (3) renders a final judgment. 42 Pa. C.S.A. § 3333. Therefore, an analogy to the holding of Consumers Union is inappropriate. Resolution of the matter hinges on an issue that the latter case intentionally left open, viz., the scope of judicial exemption.

 As previously noted, Adams seeks several different forms of relief. His claim for damages clearly must be dismissed against the Pennsylvania Supreme Court and its justices, because judicial immunity is an absolute barrier to such an award. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). *fn5" A contrary situation, however, exists on the matter of the injunctive remedy. For three reasons, the court is inclined to accept the proposition that prospective relief is not blocked by judicial immunity. First, there is strong authority for this conclusion. Harris v. Harvey, 605 F.2d 330, 335 n.7 (7th Cir. 1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1331, 63 L. Ed. 2d 772 (1980); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir. 1979); Fowler v. Alexander, 478 F.2d 694, 696 (4th Cir. 1973); Santiago v. City of Philadelphia, 435 F. Supp. 136, 146 (E.D.Pa.1977). Second, even though Consumers Union did not resolve the issue, Justice White noted that the Supreme Court has granted injunctive relief against state judges in several suits in which the judicial immunity issue was not raised. 100 S. Ct. at 1975 n.14. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972). Lastly, this decision conforms with the reasons underlying the principle that judges should be protected from liability. The immunity is based on the conclusion that judicial officers must be free to perform their responsibilities without the fear of adverse "personal consequences." Stump v. Sparkman, 435 U.S. at 355-56, 98 S. Ct. at 1104-05. See also Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 188, 66 L. Ed. 2d 185 (Supreme Court, 1980). Yet prospective relief in the form of declaratory judgment or an injunction does not visit "personal consequences" upon the defendant. On the contrary, it only affects an individual in the conduct of his or her official duties. Thus, an extension of the judicial immunity to the field of prospective relief would not serve the purpose for which the defense was created. *fn6"

 B. Res Judicata

 The defendants maintain that the doctrine of res judicata prohibits this tribunal from reaching the merits of the complaint, because Adams's district justice position was declared vacant by a formal order of the Pennsylvania Supreme Court. The argument places heavy reliance on Roy v. Jones, 484 F.2d at 96, a case which superficially resembles the instant situation. The Roy plaintiffs were Pennsylvania Justices of the Peace who allegedly compromised their offices by engaging in partisan politics. On the recommendation of the Judicial Inquiry and Review Board, the state Supreme Court suspended them from their responsibilities. The complainants petitioned for reconsideration. When the Supreme Court again ruled adversely, the plaintiffs sought relief from the federal judiciary under § 1983. The Court of Appeals for the Third Circuit, however, affirmed dismissal of the complaint. The majority explained that since the complainants had pursued their constitutional arguments before the Commonwealth's highest tribunal, they "necessarily" received a judgment on the merits. Id. at 99. For that reason, the Court of Appeals held that under the principle of res judicata the state adjudication precluded any federal action. Id. at 98-99.

  A subsequent holding, nevertheless, has significantly modified Roy. In New Jersey Education Association v. Burke, 579 F.2d 764 (3d Cir. 1978), cert. denied, 439 U.S. 894, 99 S. Ct. 252, 58 L. Ed. 2d 239 (1978), several groups representing school teachers attacked a number of regulations issued by the State Board of Education. The plaintiffs had originally sought relief in federal court but resorted to the state judiciary when the former tribunal abstained. *fn7" The New Jersey courts ruled against the complainants on both state and federal grounds. Subsequently, the teachers returned to the federal forum and asserted constitutional arguments, some of which they had not raised ...

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