matter should not have precluded Judge Fink from registering for the open election on February 17, 1987. Judge Fink has failed to show that he will be irreparably harmed by our refusal to grant a preliminary injunction.
C. Harm to the Defendants and the Public.
The third and fourth prongs of the preliminary injunction test relate to the harm the granting of a preliminary injunction would cause to the Defendants and to the public in general. The Defendants argue that if we were to restore Judge Fink to the bench they would be greatly hampered in their administration of the Pennsylvania Judicial system. They argue that public faith in the integrity of the judiciary will be destroyed and that the crisis they are presently facing with respect to the allegations of misconduct regarding a number of Philadelphia Court of Common Pleas judges would be exacerbated by our issuing a mandatory injunction. They assert that the issuance of preliminary injunctive relief would undermine the authority of the Supreme Court of Pennsylvania to take what it deems to be appropriate steps to stem the erosion of public confidence in the Pennsylvania State Judiciary. Furthermore, Defendants argue that an order issued by this Court based on the alleged illegality of the July 29, 1986, order could mean that the Pennsylvania Supreme Court would have to wait until the Board completes its hearings in any case before it could remove a patently corrupt judge.
If there are due process problems with the manner in which Judges are to be disciplined under current Pennsylvania law the Supreme Court of Pennsylvania is obliged to provide a remedy within the framework of the federal Constitution. Gershenfeld vs. Justices of the Supreme Court, 641 F. Supp. 1419 (E.D. Pa. 1986). It appears that the Court has attempted to do so. See Judicial Inquiry and Review Board, Rule 24 (Dec. 5, 1986). Although the current Pennsylvania disciplinary scheme may possibly lack speedy due process the question before this Court is solely whether a preliminary injunction restoring Judge Fink to office should issue.
We know practically nothing about the merits of the disciplinary case against Judge Fink and have rejected the offer of counsel for the Board to file in this case a transcript of the disciplinary proceedings. The merits of the case are not our business. Our business is to assure that Judge Fink receives due process throughout the disciplinary proceedings, including action by the Supreme Court of Pennsylvania. He may or may not be entitled to reacquisition of his functions. If we were to restore Judge Fink to the bench and if later he were to be removed by the Supreme Court of Pennsylvania, the time and expenses of jurors, litigants, witnesses and lawyers appearing before him in the interim would all be wasted. These are grave concerns and the potential harm to the public outweighs the harm to which Judge Fink would be subjected in the brief period remaining before a final decision is reached by the Supreme Court of Pennsylvania.
This Court has determined that we should not issue a preliminary injunction; however, we shall deny the motion without prejudice. If the Board and the Supreme Court of Pennsylvania act within the time limits promised by their counsel in open court, Judge Fink will have been afforded a timely post-deprivation remedy.
V. Conclusions of Law.
1. The order of July 29, 1986, was issued outside the procedures outlined in the Pennsylvania Constitution of 1968 Article V, §§ 10 & 18.
2. There was no timely pre-deprivation hearing afforded Judge Fink.
3. Judge Fink has not been suspended from his judgeship but has been suspended from adjudicative duties by virtue of the order of July 29, 1986.
4. The suspension of Judge Fink is of an indeterminate nature.
5. The Judicial Inquiry and Review Board has attempted to act in an expeditious manner.
6. Judge Fink does not have a reasonable probability of success on the merits of his case.
7. Judge Fink has not suffered irreparable injury by reason of the judicial review proceedings and the order of the Supreme Court of Pennsylvania of July 29, 1986.
8. The potential harm to the Defendants and to the public which would result from our issuance of a preliminary injunction restoring Judge Fink's full powers is greater than the harm which the Plaintiffs will suffer by our denial of such an injunction.
The exigencies of this case required that an order in conformity with this opinion be filed before this opinion could be typed. Such an order was filed yesterday.
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Currently pending before this Court is Plaintiffs' motion for a preliminary injunction reinstating Judge Fink to the bench. The Plaintiffs have asked that we rule on the motion by February 17, 1987 so that Judge Fink may make a final determination as to whether he should file documents today to run in the open election. We have completed a second draft of our findings of fact, discussion, conclusions of law and order but it will be impossible to have the final draft typed today. Therefore, we shall file our order by noon today and the opinion no later than February 19, 1987.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Plaintiffs' motion for a preliminary injunction reinstating Judge Fink to the Bench is denied without prejudice.
2. If the Judicial Inquiry and Review Board shall fail to make a final recommendation with respect to Judge Fink to the Supreme Court of Pennsylvania within 10 days of the date of this order, Plaintiffs may file a motion for an order compelling the filing thereof. The Board shall answer said motion within 5 working days after the filing of such a motion. No briefing shall be required.
3. If the Supreme Court of Pennsylvania shall fail to act on said recommendation of the Judicial Inquiry and Review Board within 45 days after the making of such recommendation, Plaintiffs may file a motion for an order compelling such action by that Court. The Supreme Court of Pennsylvania shall answer said motion within 10 working days of the filing of such a motion. No briefing shall be required.
4. This case shall remain on the Court's May, 1987 trial list for a final injunction hearing should that be necessary.
5. The Clerk of Court shall notify counsel of the terms of this order by telephone forthwith.
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