Abstention under Younger is inappropriate.
III. Subject Matter Jurisdiction.
Defendants argue that this Court lacks subject matter jurisdiction over this case for two reasons. First, Defendants contend that the Plaintiffs' complaint is in essence an appeal from the State Supreme Court's decision to reassign or to suspend a trial judge and the power to review such is solely vested in the Supreme Court of the United States pursuant to 28 U.S.C. § 1257. Second, Defendants argue that the Eleventh Amendment to the United States Constitution precludes the granting of the injunctive relief sought by the Plaintiffs. We shall address both contentions.
28 U.S.C. § 1257 applies in relevant part only to the final judgment of a state's highest court where a decision has been rendered as to the constitutionality of a state statute or where a state statute is attacked on the ground that it is repugnant to the Constitution or the laws of the United States. Judge Fink and the People for Justice are not attacking Pennsylvania's Constitution or the rules promulgated thereunder which govern the Supreme Court of Pennsylvania and the Board in the performance of their disciplinary functions. Plaintiffs' complaint is precisely the opposite. They contend that Judge Fink was not afforded his due process rights specifically because the Board and Supreme Court did not comply with the provisions of the Pennsylvania Constitution of 1968 and the Rules promulgated thereunder. Defendants cite the case of District of Columbia Court of Appeals vs. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983) to support their position that 28 U.S.C. § 1257 bars Plaintiffs' suit. Feldman is not applicable. Feldman was a challenge to the validity of a rule which prohibited certain persons from sitting for the District of Columbia bar examination. No rule is being attacked here. The validity of no state law has been drawn into question.
Defendants argue that the Plaintiffs' complaint is in essence a demand for injunctive relief to assure that the Board and the Pennsylvania Supreme Court comply with Pennsylvania's own statutes and regulations. Defendants contend that such an order is specifically prohibited by the Eleventh Amendment. Pennhurst State School & Hosp. vs. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). The Pennhurst Court held that federal courts should not exercise pendent jurisdiction to order state institutions to comply with state law. Any order from this Court would be an order to comply with the mandate of the due process clause of the Constitution of the United States. Furthermore, the Court in Pennhurst specifically stated that a suit challenging the constitutionality of a state official's action is not one against the state and as such is not barred by the Eleventh Amendment. Pennhurst, 465 U.S. at , 104 S. Ct. at 909; see also Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). Plaintiffs' case fits squarely into this exception. They are not attacking the Commonwealth or the laws of the Commonwealth but they are alleging that the Supreme Court of Pennsylvania, the Board and the Chairman, Executive Director and Prosecutor of the Board have acted outside both state and federal law. A United States district court may always act and indeed may be obliged to act when suit alleging violations of federal law is brought against state officials. Edelman vs. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Quite simply, the issue before us, without reference to the niceties of exact compliance with Article V, §§ 10 & 18 of the Pennsylvania Constitution of 1968, is whether before the suspension or in a timely fashion thereafter the Honorable Harold B. Fink was given notice of the charges against him and an opportunity to be heard. Cleveland Bd. of Educ. vs. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Barry vs. Barchi, 443 U.S. 55, 99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979); Gniotek vs. City of Philadelphia, 808 F.2d 241, slip op. at 7-11 (3d Cir. 1986); see generally Gershenfeld vs. Justices of the Supreme Court, 641 F. Supp. 1419 (E.D. Pa. 1986). Although we are satisfied that we have subject matter jurisdiction in this case, we comment on a lengthy quotation from the case of Erdmann vs. Stevens, 458 F.2d 1205, 1210 (2d Cir. 1972) which Defendants cite as authority for the proposition that we have no such jurisdiction. The Erdman Court stated: "It requires little vision to appreciate that if a state court were subject to the supervisory intervention of a federal overseer at the threshold of the court's initiation of a disciplinary proceeding against its own officer, the state judiciary might suffer an unfair and unnecessary blow to its integrity and effectiveness." Id. at 1210. It is our view that the Fink matter is far beyond the threshold. We fully agree with Judge Bechtle when he stated that: "The Fourteenth Amendment to the United States Constitution will not allow a disciplinary system charged with adjudicating and punishing professional wrongdoing to fiddle while constitutionally protected property interests burn on the pyre of accusation." Gershenfeld vs. Justices of the Supreme Court of Pennsylvania, 641 F. Supp. 1419, 1427 (E.D. Pa. 1986). We have jurisdiction.
IV. Failure to State a Cause of Action.
The Defendants argue that the Plaintiffs have failed to state a cause of action because the order of July 29, 1986, is not a suspension but merely an assignment made pursuant to the Pennsylvania Constitution of 1968, Article V, §§ 10 & 18. Additionally, even if it were a suspension, Defendants assert that there is no deprivation of a property right or liberty interest without due process of law. We disagree. As we have already stated, the ". . . assignment is tantamount to a suspension." Fink vs. Supreme Court of Pennsylvania, 646 F. Supp. 569, 572 (M.D. Pa. 1986). Moreover, if we view the order of July 29, 1986 as a reassignment rather than a suspension, it is not clearly an assignment made pursuant to the authority vested in the Supreme Court of Pennsylvania by the Pennsylvania Constitution of 1968, Article V, §§ 10 & 18. See First Amendment Coalition vs. Judicial Inquiry and Review Board, 501 Pa. 129, 460 A.2d 722, 724 (1983); Woodside, Pennsylvania Constitutional Law (1985) at 435.
Section 10 of the Pennsylvania Constitution specifically gives the Supreme Court of Pennsylvania the authority to ". . . temporarily assign judges from one court or district to another as it deems appropriate." The assignment here was not from one court to another but from acting as a full judicial officer to acting in only a minimal non-adjudicatory fashion.
Section 18 allows for suspension but only under the procedures therein described. Plaintiffs allege that the procedures set forth in the Pennsylvania Constitution of 1968 and the Rules promulgated thereunder have not been followed. For the purpose of a motion to dismiss, this allegation must be accepted as true and therefore, Defendants' argument that Judge Fink's assignment was made pursuant to the Pennsylvania Constitution of 1968 is not a ground upon which we may dismiss this case.
Defendants also argue that Judge Fink and the People for Justice have been deprived of no property or liberty interest. Although Judge Fink's income has not been reduced and he is at least nominally still President Judge of Potter County, his reputation and liberty interest therein may be diminished. This liberty interest grows greater as time elapses because Judge Fink must within the next several months indicate of record his intention to run for reelection if he decides to do so. We have already stated that the People for Justice have at best a minimal interest in the outcome of this matter. Nevertheless, the interest, though small is cognizable.
Assuming that there has been a deprivation of a liberty interest, the Defendants contend that such deprivation has not occurred without due process of law because there are adequate pre- and post-deprivation remedies. The Defendants contend that the hearing to be conducted by the Board will provide the Plaintiffs with these remedies. The key flaw in this argument is that the Defendants argue that the Board and Supreme Court "will provide" a remedy. They do not state when. It is not sufficient merely to have a pre- or post-deprivation remedy. The remedy must be accorded in a timely fashion. See Mathews vs. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Gniotek vs. City of Philadelphia, 808 F.2d 241, slip op. at 7-11 (3d Cir. 1986); Gershenfeld, 641 F. Supp. at 1427. The Plaintiffs have stated a cause of action upon which relief may be granted.
V. Remedy at Law.
The Defendants argue that this Court should not grant the equitable relief requested because the Plaintiffs have an adequate remedy at law. Defendants state that the Plaintiffs can obtain review by the State Supreme Court of the order of July 29, 1986. Defendants assert that the Plaintiffs ". . . could have filed a petition for reconsideration [pursuant to] Pennsylvania Rule of Appellate Procedure 311(4)" or ". . . could have treated the order as an injunction" and moved to have it dissolved pursuant to Pennsylvania Rule of Civil Procedure 1531(c) or ". . . could have viewed the order as a final order" and filed a petition for writ of certiorari, 28 U.S.C. § 1257. These arguments are without merit. None of these remedies squarely fit the situation in which the Plaintiffs find themselves. Rule 311(a)(4) of the Pennsylvania Rules of Appellate Procedure applies to injunctions and allows for an appeal as of right from an order effecting an injunction. The order of July 29, 1986 is not an injunction but a purported reassignment of Judge Fink. Pennsylvania Rule of Civil Procedure 1531(c) also allows for a party to move at any time to dissolve an injunction and is as inapplicable as Rule 311(a)(4). As a practical matter the Supreme Court of Pennsylvania through its counsel has insisted that Judge Fink and the People for Justice have not been deprived of any constitutional rights. It would appear to be fruitless to dismiss this complaint simply to require the Plaintiffs to seek review from the Supreme Court of Pennsylvania under Rule 311(a)(4) or 1531(c). Finally, as we have stated above, 28 U.S.C. § 1257 does not apply. See District of Columbia Court of Appeals vs. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).
Defendants argue that the Plaintiffs are guilty of laches because they did not file this suit in federal court until two months after the order of July 29, 1986. The waiting of two months before the filing of suit in federal court is not dilatory behavior but diligent behavior. This is a rather curious argument for the Defendants to make when the Board has apparently done little in Judge Fink's case in over a year and the Supreme Court of Pennsylvania has done nothing in over five and a half months. There are no laches in this case at least on the part of the Plaintiffs.
VII. Clean Hands.
The Defendants also contend that the doctrine that a Plaintiff may not come into a court of equity unless he has clean hands applies to this case. Defendants argue that Judge Fink has unclean hands because he has attempted to make the Board's apparent non-compliance with its procedures and the Pennsylvania Constitution of 1968 as well as the federal Constitution a public matter. Additionally, the Defendants allege that Judge Fink has spoken with the press regarding this case. Although Judge Fink's activities may be deemed by some to be inappropriate, they are not evidence of unclean hands.
Defendants argue that Plaintiffs have waived their right to challenge the Board's proceedings because on July 1, 1986, Judge Fink asked for an extension of time to file an answer to certain charges and additionally on October 17, 1986 Judge Fink and his counsel stipulated to the future scheduling of Board hearings. The Defendants contend that this behavior constitutes a waiver of Judge Fink's assertion that the Board's proceedings are not timely enough to be consistent with due process standards. We disagree. Judge Fink contends that his motion for a continuance was based on inadequate notice and a failure of the Defendants to provide Judge Fink, after a request, with any indication of how discovery and a myriad of procedural matters would be handled at the hearing. One does not waive one's substantive constitutional rights by asking those in authority to define one's procedural rights at the hearing stage. Furthermore, a stipulation as to the scheduling of future hearings evidences to this Court a desire to attempt to cooperate rather than an act which should be construed as a waiver of one's federally protected rights. No waiver exists.
Defendants argue that the People for Justice have no standing under Article III of the United States Constitution to join in this case because they have no concrete stake in the outcome. For this proposition Defendants cite solely the case of Flast vs. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). In Flast, taxpayers challenged the disbursement of funds under the federal Elementary & Secondary Education Act of 1965 which financed the instruction and purchase of educational materials in parochial and sectarian schools. The taxpayers argued that they had standing as taxpayers to sue regarding the disbursement of funds. The Court held that in order to maintain an action challenging the Constitutionality of a federal spending program, taxpayers had to demonstrate that there was a logical link between their status as taxpayers and the type of legislative enactment attacked and additionally had to demonstrate that the challenged statute exceeded a specific constitutional limitation imposed upon the exercise of congressional spending power. Flast, 392 U.S. at 102-103. The Court in Flast held that the taxpayers had satisfied both nexuses to support their claim of standing because they had challenged the authority of Congress pursuant to Article I, § 8 of the Constitution to spend for the general welfare and because the challenged program involved substantial expenditures of federal funds. Id. at 103. Under the Flast test, the People for Justice need only show that their status as voters has been infringed upon by the order of July 29, 1986 and that the order of July 29, 1986 exceeds constitutional limitations. The People for Justice argue that their votes have been wrongly diluted by the de facto removal of the candidate of their choice from his elected position as President Judge of Potter County without due process of law. Since voting is a fundamental right, Powell vs. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), persons challenging the dilution of their voting rights by an act alleged to be in violation of the United States Constitution may bring suit in a United States District Court.
X. Order of July 29, 1986.
The Defendants state that the absence of an opinion or memorandum accompanying the order of July 29, 1986 of the State Supreme Court is not an extraordinary circumstance militating against the application of the Younger abstention doctrine. Possibly. Nevertheless, the absence of an opinion or explanation of its order of July 29, 1986 is not a ground upon which to base a motion to dismiss. Whether or not an opinion was written to accompany the order of July 29, 1986 is not the issue before us. The issue remains solely whether the Honorable Harold B. Fink was given timely notice of the charges against him and an opportunity to respond and whether he has in fact a speedy and adequate post-deprivation remedy. Gniotek vs. City of Philadelphia, 808 F.2d 241, slip op. (3d Cir. 1986).
We have previously voiced our concern about the timeliness of the proceedings regarding Judge Fink. Fink vs. Supreme Court of Pennsylvania, 646 F. Supp. 569, 572-73 (M.D. Pa. October 30, 1986). We remain extremely concerned about what appears to be a lack of diligence accorded Judge Fink by the Pennsylvania Supreme Court and its arm, the Board. We see no sign that the Supreme Court of Pennsylvania or the Board has paid any attention to our expressed concerns. It is conceivable that the Defendants decided to defy this Court. That would be a mistake of considerable magnitude. We have no wish for a confrontation with Pennsylvania judicial authorities, particularly the Supreme Court of Pennsylvania. Nonetheless, if Judge Fink is entitled to relief we will grant it and, absent a prohibition by the Court of Appeals or the United States Supreme Court, marshal whatever federal power is necessary to ensure that he receives it.
An appropriate order will issue.
1. Defendants' motion to dismiss Plaintiffs' complaint is denied.
2. The Clerk shall send copies of this order not only to counsel but to each Justice of the Supreme Court of Pennsylvania to assure that the full court is advised of the seriousness with which we view this case and our determination to proceed with dispatch.
DATED: January 16, 1987
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