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NACCARATI v. WILKINS TWP.

February 11, 1993

RAYMOND NACCARATI, Plaintiff,
v.
WILKINS TOWNSHIP, PENNSYLVANIA, Defendant.



The opinion of the court was delivered by: GUSTAVE DIAMOND

 DIAMOND, C.J.

 On January 25, 1993, the plaintiff filed a § 1983 action for injunctive and declaratory relief and simultaneously filed a motion for a preliminary injunction and/or a temporary restraining order. *fn1" Plaintiff, chief of police for the defendant township, seeks to have the defendant enjoined from disciplining him for declaring and pursuing a candidacy for district justice. *fn2" Plaintiff contends that the power vested in the defendant by the legislature which enables the township to reprimand or discharge him for undertaking active candidacy for public office violates his First and Fourteenth Amendment rights. The defendant strenuously opposes the motion.

 Plaintiff filed an emergency motion for injunctive relief because he must file letters of intent by February 12, 1993, in order to be qualified to receive the endorsement from the local democratic party, and must circulate and file his nominating petitions with the Allegheny County Bureau of Elections on or before Tuesday, March 9, 1993. Plaintiff wishes to "cross-file" and be placed on both the republican and democratic tickets. Plaintiff seeks to restrain the defendant from acting pursuant to the Pennsylvania first-class township code which provides:

 
No person employed in any police or fire force of any township shall be suspended, removed or reduced in rank except for the following reasons: . . . (6) engaging or participating in conducting of any political or election campaign otherwise than to exercise his own right of suffrage.

 53 P.S. § 55644(6). Plaintiff claims that he will be disciplined, and most likely fired, if he pursues his candidacy for district justice. *fn3" Plaintiff contends that the threat of enforcing the statute will result in the inability of plaintiff to meet the appropriate deadlines to become a candidate in the May, 1993, primary election, or injure his chances of a successful campaign if discipline charges are initiated during the campaign.

 Plaintiff asserts that unless the defendant is restrained, it will enforce the statute in question and unconstitutionally penalize him in violation of his First Amendment rights of freedom of association and freedom of speech. Plaintiff asserts that the statute is overbroad and vague. Plaintiff also challenges the statute under the Equal Protection Clause on the basis that other officers similarly situated are not similarly restricted from engaging in or participating in election campaigns. Plaintiff's complaint requests this court to declare the statute unconstitutional and restrain the defendant from enforcing it.

 Requests for injunctive relief invoke the court's equitable discretion. Resolving such motions require a delicate balance of equitable factors. There are four general requirements: (1) the moving party must produce evidence sufficient to convince the court that in absence of the relief he will suffer imminent irreparable injury; (2) the moving party must show a likelihood of success on the merits; (3) that granting the relief will not result in greater harm to the other party; and (4) that granting the relief will be in the public interest. Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1985); ERCI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987) (citing SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985)). All of the above factors are balanced with regard to any final decision and the strength of any one factor may affect the necessary showing with regard to another. Marxe v. Jackson, 833 F.2d 1121, 1128 (3d Cir. 1987).

 A. Irreparable Injury

 Plaintiff has failed to establish a clear showing of irreparable harm. First, the statute in question does not prohibit him from running for office. Second, plaintiff's claimed injury is speculative. Third, plaintiff has an adequate remedy at law if he should be disciplined and the statute is ultimately determined to be unconstitutional. Finally, plaintiff has failed to show any immediate injury.

 A clear showing of an imminent irreparable injury is an absolute necessity. Marxe, 833 F.2d at 1128 (citing Moteles v. University of Pennsylvania, 730 F.2d 913 (3d Cir.), cert. denied, 469 U.S. 855, 83 L. Ed. 2d 114, 105 S. Ct. 179 (1984) and A.O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3d Cir. 1986)); ECRI, 809 F.2d at 226. "Establishing a risk of irreparable harm is not enough." A "clear showing of immediate irreparable injury" is required. ECRI, 809 F.2d at 226 (citing Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir. 1980)). "The 'requisite feared injury must be irreparable not merely serious or substantial,' and it "must be of a peculiar nature, so that money cannot atone for it." Id. (citing Glasco Hills, 558 F.2d 179, 181 (3d Cir. 1977).

 To establish the requisite imminent irreparable injury, plaintiff cites Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), for the well-established proposition that "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Plaintiff contends that his state of limbo between being prohibited from declaring candidacy and facing the threat of losing his job and/or suffering possible humiliation during his campaign for exercising his First Amendment rights constitutes irreparable injury. The plaintiff alleges that if he should be disciplined during the course of his campaign, that discipline would have a negative effect on his likelihood of success in obtaining elective office. *fn4" Plaintiff asserts that he has no adequate remedy at law if he is disciplined for engaging in such political activities.

 The defendant vigorously contests the plaintiff's assertion of irreparable harm. First, the defendant points to the fact that it has made no formal decision as to whether it will discipline and/or fire the plaintiff, should he fulfill his intentions in campaigning for office. Second, defendant contends that even if it chooses to enforce the statute, plaintiff has an adequate remedy at law in money damages under § 1983 if the statute should later be determined to be unconstitutional. Third, the defendant notes that plaintiff is not precluded from running for office but merely is faced with a decision: "to resign to run" or to forego running and remain in his present employment. Fourth, the defendant contests the immediacy of the harm in that as to the February and March deadlines, plaintiff's inability at this time to seek the endorsement of a political party and to be on the primary ballot in May do not preclude his becoming an independent candidate and being placed on the ballot in August, 1993.

 A violation of a constitutional right is not necessarily synonymous with the showing of irreparable harm necessary for sustaining a preliminary injunction. Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848, 107 L. Ed. 2d 102, 110 S. Ct. 144 (1989). The assertion of First Amendment rights does not automatically require a finding of irreparable injury. The plaintiff must show that there is "a chilling effect on free expression." Id. ...


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