The opinion of the court was delivered by: MUIR
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On October 7, 1986, the Honorable Harold B. Fink and the People for Justice filed a complaint and a motion for a temporary restraining order. Judge Fink and the People for Justice request that we immediately restore Judge Fink to his full duties as President Judge of the Fifty-Fifth Judicial District, Potter County, Pennsylvania, and enjoin all proceedings of the Judicial Inquiry and Review Board of the Supreme Court of Pennsylvania (the Board) until such time as we rule upon whether a preliminary injunction should issue. A hearing after notice to the Defendants was held on Plaintiffs' request for a temporary restraining order on Thursday, October 9, 1986. Judge Fink testified that he has for all practical purposes been suspended without a hearing and that his decision whether to seek retention at the spring primary in 1987 is being thwarted by the inaction of the State authorities. We declined to issue such an order from the bench at the conclusion of that hearing because defense counsel had not had an opportunity to research the complex questions before us and because of the care we deem advisable to exercise in a matter of this delicacy. As Plaintiffs had filed a brief in support of their motion on October 9, 1986, we allowed the Defendants to file a responsive brief and the Plaintiffs to file a reply brief. The briefing was completed on October 22, 1986 and the motion is ripe for our consideration.
Before we issue a temporary restraining order we must determine (1) Whether the Plaintiffs have made a strong showing that they are likely to prevail on the merits, (2) whether the injury is imminent, (3) whether the injury is irreparable, (4) whether granting the injunction will substantially harm other parties interested in the proceedings and (5) whether such an injunction will adversely affect the public interest. See Pennsylvania v. United States Department of Agriculture, 469 F.2d 1387, 1388 (3d Cir. 1972); Northern Pennsylvania Legal Services, Inc. v. County of Lackawanna, 513 F. Supp. 678, 681 (M.D. Pa. 1981) (Nealon, C.J.). If the movants cannot establish each element of the above-mentioned test, a temporary restraining order should not issue. See Skehan v. Board of Trustees, 353 F. Supp. 542, 543 (M.D. Pa. 1973). (Muir, J.). We shall discuss the above-mentioned criteria as they apply to the two requests made by Judge Fink and the People for Justice in their motion. A temporary restraining order is equitable in nature and discretionary with the trial judge. See United States Steel Corp. v. Fraternal Assoc. of Steelhaulers, 431 F.2d 1046 (3d Cir. 1970).
A. The Pennsylvania Supreme Court Order.
The Pennsylvania Supreme Court issued the following order:
AND NOW, this 29th day of July, 1986, it is ORDERED, that HAROLD B. FINK, President Judge, Fifty-Fifth Judicial District, Potter County, be and hereby is assigned to perform administrative and non-decisional judicial duties until further Order of the Court. By the Court: Robert N.C. Nix, Chief Justice.
A restoration by us of Judge Fink to his full duties would in effect be a reversal by us of an order of the Supreme Court of Pennsylvania. The power to do so exists. Gershenfeld v. The Justices of the Supreme Court, 641 F. Supp. 1419 (E.D.Pa. 1986) (Bechtle, J.); see also, Id.; Stay order, (3d Cir. June 27, 1986) (Pennsylvania Supreme Court given 30-day stay, which expired July 27, 1986). We will exercise such an extreme power only with the greatest of care.
It is our duty in reviewing a motion for a temporary restraining order to determine first whether Plaintiffs have made a showing that they are likely to prevail on the merits in federal court. Several obstacles to prevalentness in federal court exist in this case.
The abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), may preclude us from acting. That doctrine requires federal courts to be wary of intervening by way of an equitable action in ongoing state proceedings.
For example, in the case of Erdmann v. Stevens, 458 F.2d 1205 (2d Cir. 1972), an attorney sought to enjoin a state court from conducting disciplinary proceedings against him. The Court of Appeals applied the Younger doctrine to that case. The Court stated that the principles of Younger applied to a court's disciplinary proceedings against a member of its bar. Erdmann, 458 F.2d at 1209. The Court further stated, citing Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 27 L. Ed. 2d 749, 91 S. Ct. 720 (1971), that state courts have traditionally been allowed wide discretion in the establishment and application of standards of professional conduct to be observed by their court officers. Erdmann, 458 F.2d at 1210. The Younger doctrine makes it difficult for the Plaintiffs to show that they are likely to prevail on the merits at least until both the Pennsylvania Supreme Court and its disciplinary arm have failed to act within a reasonable time. Additionally, other abstention doctrines apply.
The Supreme Court in the case of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941) ruled that a company which was seeking to enjoin enforcement of an order of the Texas Railroad Commission could not prevail in federal court because the state court had not been given a fair opportunity to address the issue. The Court noted that a federal court should not be asked in an equity matter to decide an issue which may be mooted by a ruling of the state court. Thus, the doctrine in Pullman which is grounded in comity may well apply to the case before us. We should not reach the constitutional issue if upon a motion for ...