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.
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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: