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April 16, 1993

HON. ANGELO A. GUARINO, Senior Judge of the Philadelphia Court of Common Pleas, plaintiff,
HON. ROLF LARSEN, Justice of the Supreme Court of Pennsylvania, et al. defendants.

The opinion of the court was delivered by: RAYMOND J. BRODERICK

 BRODERICK, J. April 16, 1993

 Before the Court is plaintiff's motion for declaratory judgment and injunctive relief. Plaintiff is a retired judge of the Court of Common Pleas of the First Judicial District of Pennsylvania (Philadelphia County) who, since his mandatory retirement at age seventy and until November 10, 1992, had served as a senior judge, that is, a retired judge on active service, pursuant to assignments of monthly duration by the Supreme Court of Pennsylvania. Defendants in this action are the Justices of the Supreme Court of Pennsylvania and Nancy M. Sobolevitch, the Court Administrator of the Commonwealth of Pennsylvania. Plaintiff asserts violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and of the laws and Constitution of the Commonwealth of Pennsylvania. These violations are based on an Order dated November 10, 1992, which was handed to Judge Guarino in the midst of a major felony trial and which, in effect, ordered him to leave the bench without prior notice or notification of any charges against him. In this order, Mr. Justice Rolf Larsen of the Pennsylvania Supreme Court revoked Judge Guarino's assignment as senior judge for the period of November 1 through November 30, 1992, and further ordered that Judge Guarino was not authorized to complete unfinished business that was pending before him. Judge Guarino has not been reassigned active service, nor has he been permitted to complete pending unfinished legal matters, including opinions due on cases over which he presided.

 On March 3, 1993, at a conference in chambers, this Court determined, and the parties agreed, that a hearing on the merits of Judge Guarino's claims would be held pursuant to Fed.R.Civ.P. 65(a)(2). The hearing was held on March 11, 1993. On the basis of evidence presented at this hearing together with the record in this matter, this Court makes the following findings of fact and conclusions of law.


 On March 21, 1991, defendant Nancy M. Sobolevitch, Court Administrator of the Administrative Office of the Pennsylvania Courts, wrote to Judge Guarino, stating that he had met all of the qualifications to serve as a senior judge under Rule 701. His appointment was effective as of March 24, 1991. Judge Guarino received an order of assignment from the Pennsylvania Supreme Court for a term of one month duration, which assignment was renewed for each consecutive one month term from the time of his retirement until November 10, 1992, except for a ten-day period in April, 1992. According to Ms. Sobolevitch, Judge Guarino's April assignment was delayed due to the filing of a civil action in federal court, captioned Jeffrey C. Levy, et al. v. Guarino, which action will be discussed below.

 Pursuant to Rule 701 and by the terms of each order, each one-month term continued in effect after its stated expiration date for such time as was required to complete unfinished business pending before him.

 After his retirement, there was no difference in the level of work Judge Guarino performed. Both before his retirement and during his service as a senior judge, Judge Guarino presided over an average of 100 jury trials a year, most of which were major felony trials. In recognition of his outstanding ability to expedite trials, Judge Guarino, contrary to the usual assignments of senior judges, was granted a full staff including a secretary and law clerk, his own courtroom, and the continuation of his own case list. On November 10, 1992, his case list included 23 cases ready for trial; 63 cases with pending hearings on post-trial motions, sentencings or violations of probation; 76 cases in which bench warrants had been issued; and 11 cases on appeal for which written opinions were owed to the Pennsylvania Superior Court.

 As a senior judge, Judge Guarino was paid a per diem rate of $ 250.00 for court time only. Due to a lack of available funding, however, he was usually paid for only about thirteen days per month regardless of the number of days of he actually served. For the year 1991, Judge Guarino earned approximately $ 30,000 as a senior judge.

 As testified by the Honorable Alex Bonavitacola, administrative judge for the Philadelphia Court of Common Pleas, Judge Guarino has been "one of the hardest working judges I've ever known." Judge Guarino has also won several awards including the "Golden Crowbar Award" presented by the Pennsylvania Conference of State Trial Judges in 1980; the Philadelphia Trial Lawyers Association Achievement Award in May, 1983; and Philadelphia Magazine "Best of Philly" Award for 1987.

 On the morning of November 10, 1992, Judge Guarino charged a jury in a criminal case and sent them out to deliberate. He then began trial in a major felony criminal case. The jury for this trial had been empanelled, Judge Guarino had given his opening remarks, and counsel had given their opening statements. At this point, with prosecution ready to call its first witness, Judge Bonavitacola, the administrative judge for the Philadelphia Court of Common Pleas, entered the courtroom and requested that the court officer ask Judge Guarino to take a recess. The jury adjourned to the jury room, and Judge Guarino then met with Judge Bonavitacola in Judge Guarino's robing room. Judge Bonavitacola handed Judge Guarino an order that Judge Bonavitacola had received from the Pennsylvania Supreme Court by facsimile ("fax") at 3:55 that afternoon. The order, in toto, stated:


 Rolf Larsen /s/

 Judge Bonavitacola had personally hand-delivered this order (hereinafter "Order of November 10th") to Judge Guarino out of his consideration for Judge Guarino, who had been his friend and colleague for thirty years, and because he felt he owed it to Judge Guarino's personal dignity. As Judge Guarino testified, he was "stunned" and "mortified."

 Judge Guarino returned to the courtroom and directed his court officer to instruct the jury that they were to return in the morning. He then made an announcement in open court that he was unable to continue with proceedings. These proceeding included the criminal trial that was in progress, as well as post-trial motions, violations of probation and sentencings that had been scheduled for later that afternoon. Among those present in the courtroom were undergraduate students from Villanova University who had been observing the court proceedings. As Judge Guarino testified, he was "put to shame."

 Judge Guarino returned to his chambers and made a telephone call to the Pennsylvania Supreme Court. Justice Larsen returned his call, and told him, in essence, 'You received the order. Proceed accordingly.' When Judge Guarino voiced concern about possible double jeopardy in the on-going criminal trial, he was told that another judge would complete the trial.

 Judge Guarino then went to his home, where his wife had already heard reports on the radio that 'he had been removed from the bench.' Friends and family called him, asking, 'What did you do?'

 The next day, there were articles in the newspapers, one of which reported that Judge Guarino had been removed in a "highly unusual move." Philadelphia Inquirer, B1, November 11, 1992. That article also quoted David Rudovsky, an attorney for the American Civil Liberties Union ("ACLU"), who represented plaintiffs in an action brought as a class action against Judge Guarino in federal district court, captioned Jeffrey C. Levy, et al. v. Guarino, Civil Action No. 92-1609. Mr. Rudovsky was quoted as saying that he believed that Judge Guarino was removed for "mistreating" potential jurors. "It demonstrates corrective action by the state courts," Mr. Rudovsky was quoted as saying. Id. at B6.

 This Court takes judicial notice of Levy, Civil Action No. 92-1609, and of the documents filed therein, which action was before the Honorable Jay C. Waldman of this court. The proceedings in Levy which apparently form the basis for Judge Guarino's removal from the bench will be summarized below. In brief, the named plaintiffs in Levy included two venirepersons who had appeared before Judge Guarino, whose responses at voir dire, in Judge Guarino's opinion, were attempts to avoid jury duty and amounted to refusals to serve as jurors. Judge Guarino had served these venirepersons with subpoenas requiring them to return to his courtroom on the following day as a form of alternate service, and as an assurance to the other venirepersons that such conduct would not be tolerated.

 The Levy action was brought pursuant to 42 U.S.C. § 1983, asserting that Judge Guarino's actions had violated the first, fourth and fourteenth amendment rights of these venirepersons, and requesting a preliminary injunction. On April 8, 1992, based on a stipulation of the parties, hereinafter quoted in toto, the Levy plaintiffs withdrew their motion for a preliminary injunction. The parties proceeded with discovery.

 On August 4, 1992, Judge Guarino filed a document in Levy outlining the procedures he would employ when he determined a venireperson was refusing to serve. On August 14, 1992, he filed a supplemental document regarding the procedures he would employ. Judge Guarino remained on the bench, proceeding with his trial list.

 On October 22, 1992, during voir dire in a criminal matter, Judge Guarino held a venireperson in contempt. On November 5, 1992, the Levy plaintiffs moved to re-open their motion for preliminary injunction based on their assertion that Judge Guarino, in holding the venireperson in contempt, had violated his agreement.

 Five days later, Mr. Justice Larsen issued his Order of November 10th, quoted in toto above, removing Judge Guarino from the bench, stating no reasons for his action. This Court notes that Judge Guarino was represented in Levy by the Deputy Legal Counsel for the Court Administrator of Pennsylvania.

 Since receiving Mr. Justice Larsen's Order of November 10th, Judge Guarino has not been reassigned to any court. He has handled no cases, and his cases which were pending have been reassigned to other judges. In compliance with the Order of November 10th, he has not written any opinions nor has he performed any other judicial duties.

 As stated heretofore, the procedure for assignment of retired judges as senior judges begins when, pursuant to Rule 701(a) of the Pennsylvania Rules of Judicial Administration, an otherwise qualified retired judge files an application for certification with the Administrative Office. After approval by the Court Administrator, the judge is eligible for assignment. A president judge of a court which is in need of temporary judicial service sends a request to the Court Administrator, often naming the judges requested. The names of the retired judges eligible for assignment are then entered on a master form by the Court Administrator's judicial assignment clerk and then reviewed by the Court Administrator. If she approves, the Court Administrator, pursuant to Rule 701(e) of the Pennsylvania Rules of Judicial Administration, recommends assignment of a judge by forwarding his or her name to Mr. Justice Larsen of the Pennsylvania Supreme Court. The present Court Administrator is defendant Nancy M. Sobolevitch. It is her understanding that the form is then circulated to all of the justices. According to Ms. Sobolevitch, no judge who has applied for senior status since the enactment of the mandatory retirement provision has been denied senior status.

 Ms. Sobolevitch received a request for each of the months of December, 1992; January, 1993; February, 1993; and March, 1993; from the Honorable Edward Blake, President Judge of the Philadelphia Court of Common Pleas, requesting by name several judges including Judge Guarino be assigned to active service. Ms. Sobolevitch's assignment clerk has entered Judge Guarino's name on each of the monthly forms for December, 1992, through March, 1993. Nevertheless, each of the monthly forms for December, 1992, through March, 1993, show a line drawn through Judge Guarino's name with the word "void" inserted. In this manner, Judge Guarino's assignment as a senior judge was not recommended to the Pennsylvania Supreme Court for the months of December, 1992, through March, 1993.

 Ms. Sobolevitch's decision to give no recommendation was based on her conversations with one or more of the justices of the Pennsylvania Supreme Court and on conversations between her judicial assignment clerk and Mr. Justice Larsen's law clerk. The 'gist' of these conversations, as testified by Ms. Sobolevitch, was that the court "was not inclined" to approve the assignment of Judge Guarino. From these conversations, Ms. Sobolevitch "gathered that it was the court's wish to keep Guarino off the bench." Therefore, testified Ms. Sobolevitch, she "was not inclined to recommend" his assignment to the court.

 According to Ms. Sobolevitch, this regimen whereby she, as Court Administrator, failed to recommend the assignment of a retired judge to senior status was used for the first time in connection with Judge Guarino.

 There were no memorializations of the conversations between Ms. Sobolevitch and Mr. Justice Larsen. Neither President Judge Blake nor Judge Guarino was notified of any reason for the court's failure to assign Judge Guarino for the months of December, 1992, through March, 1993. According to Judge Bonavitacola, there has continued to be need for the services of Judge Guarino, as there is a "sizeable inventory" of cases in the Philadelphia Court of Common Pleas.

 As stated heretofore, Judge Guarino received Mr. Justice Larsen's Order of November 10th from Judge Bonavitacola, while Judge Guarino was presiding over a major felony trial. Judge Guarino was given no advance notice of the Order. Prior to receiving it, he had received no notice of any charges that the Pennsylvania Supreme Court may have been considering against him, nor had he received an opportunity to respond to any such charges.

 The Order of November 10th is docketed as "No. 92 R1105 Judicial Assignment Docket." Judge Guarino's assignment number for the month of November was "1105." This Court takes judicial notice that "No. 92 R1105 Judicial Assignment Docket" appearing on the Order of November 10th is not a docket number for a judicial action pending before the Pennsylvania Supreme Court, nor is it the number of a disciplinary proceeding before that court.

 According to Ms. Sobolevitch, the procedure employed by Mr. Justice Larsen in issuing his Order of November 10th that revoked Judge Guarino's November assignment has been used only once before. In that case, a senior judge's assignment was revoked at approximately mid-day while the judge was on the bench after he received a target letter from the United States Attorney's Office in connection with a federal grand jury investigation of allegations that he had accepted a bribe from the roofers' union.

 No criminal conduct has been alleged in connection with Judge Guarino. He is under no criminal investigation.

 As stated heretofore, this Court has taken judicial notice of Jeffrey C. Levy, et al. v. Guarino, Civil Action No. 92-1609, and of the documents filed therein. In Levy, the plaintiffs filed their action against Judge Guarino on March 19, 1992. They filed a motion for preliminary injunction on March 25, 1992. Howard M. Holmes, Deputy Legal Counsel to the Court Administrator of Pennsylvania, filed his appearance for defendant Judge Guarino on April 8, 1992, on which date plaintiffs withdrew their motion for preliminary injunction based on a stipulation entered into by all counsel. This stipulation stated in pertinent part:

Counsel for the Honorable Angelo Guarino has been authorized by Judge Guarino to represent to this Court, in the interests of comity between the state and federal courts, that pending final disposition of this action he will not exercise judicial authority to require venire-persons appearing before him, who have not been selected for a jury, to return to his court for further or additional service. He further assures this Court that he will not fine or punish venire-persons without due process of law.

 * * *

 Four months later, on August 4, 1992, Judge Guarino supplemented the stipulation by filing a document with the Levy court entitled "Statement to Federal District Court on Behalf of Judge Angelo A. Guarino regarding Procedures To Be Employed by the State Trial Judge Where Venire-Person Has Refused to Serve." In the document filed on August 4, 1992, Judge Guarino stated:

As a matter of comity between the state and federal courts and to supplement the Record in this matter Judge Angelo A. Guarino has now authorized his counsel to make the following representations and assurances of record to the federal district court on his behalf, with respect to the procedure he will employ in future when faced with a venire-person who, in the opinion of Judge Guarino, has refused in open court to serve as a juror:
1. When in the course of voir dire, the responses of an individual venireperson in the presence of the court are such, in Judge Guarino's opinion, as to constitute an intentional refusal to serve as a juror in the presence of the court, he will advise the individual that these responses, in the opinion of the court, constitute a refusal to serve.
2. He will instruct the individual that a venire-person who in open court refuses to serve may summarily be found to have committed contempt of court. See 42 Pa.C.S. § 4131(3).
3. He will instruct the individual that a finding that one is guilty of summary contempt of court in open court may subject one to fine or imprisonment. See 42 Pa.C.S. § 4131(3).
4. He will permit the individual to respond.
5. If the court finds that the individual has refused and continues to refuse to serve and the court deems it necessary to uphold the authority and dignity of the court and to prevent the obstruction of justice, the court will so state on the record, finding the individual guilty of summary contempt and imposing such penalty as is lawful and appropriate in the circumstances, and entering such Order on the record and in the presence of the individual.

 In response to inquiry arising from his document of August 4, 1992, Judge Guarino filed a supplementary document with the Levy court on August 14, 1992, regarding the procedures he would employ, which stated:

1. When in the course of voir dire, an individual venire person makes responses or other statements in the presence of the court which, in Judge Guarino's opinion, (a) are or may be untrue, (b) are made for purposes of avoidance of jury duty and (c) have the effect of obstructing justice, Judge Guarino will consider, among any other relevant questions, the following issues:
A. May a state trial judge hold a juror in summary criminal contempt for refusing to serve in open court?
B. May a state trial judge base a finding that a juror has refused to serve, in whole or in part, on the juror's responses at voir dire which the state trial judge finds (i) are untrue, and (ii) are made with the intent of avoiding jury service?
C. In considering whether a juror has made untrue statements in attempted avoidance of jury service, what procedures, if any, in addition to those which the court already intends to provide, and what evidentiary considerations are appropriate?
2. Each of these questions and any other relevant legal or factual issues will be considered if and when the matter arises in the context of a judicial proceeding. In doing so, Judge Guarino is mindful of the dictates of the Pennsylvania Supreme Court that criminal contempt for misbehavior in the presence of the court requires proof beyond a reasonable doubt of misconduct in the presence of the court committed with intent to obstruct proceedings, which behavior actually obstructs the administration of justice. The record must establish each and every element of the offense. (Citations omitted).
2. (sic.) Whatever other procedures the court may hold to be appropriate if and when such issues arise, the court will certainly provide and engage in the colloquy set forth in the prior statement to this federal district court, including notice and opportunity for response. Any finding of contempt will be made ...

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