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LARSEN v. SENATE OF THE COMMONWEALTH OF PENNSYLVAN

May 29, 1997

ROLF LARSEN, Plaintiff
v.
SENATE OF THE COMMONWEALTH OF PENNSYLVANIA, et al., Defendants



The opinion of the court was delivered by: RAMBO

 The court's memorandum and order dated February 28, 1997 spawned the following motions which are presently before the court: (1) the motion of the individual Senate Defendants for reconsideration, or, in the alternative, motion for certification pursuant to 28 U.S.C. § 1292(b), (2) the motion of Defendants Administrative Office of the Pennsylvania Courts (the "AO"), Nancy Sobolevitch, and David Frankforter for partial reconsideration of the court's February 28, 1997 order and to dismiss all claims against the AO based on Eleventh Amendment immunity, (3) the joint motion of Defendants individual justices of the Pennsylvania Supreme Court, the AO, Nancy Sobolevitch, and David Frankforter to stay proceedings in this court, (4) the motion of Defendants individual members of the Court of Judicial Discipline ("CJD") to clarify and/or amend the court's February 28, 1997 memorandum, (5) Larsen's conditional motion to amend the court's February 28, 1997 order to include the statement prescribed by 28 U.S.C. § 1292(b) if the court determines certification pursuant to the Senate Defendants' motion is appropriate, and (6) Larsen's motion for reconsideration. The issues have been briefed and the motions are ripe for disposition.

 I. Discussion

 The history of this case and Larsen's claims against the various Defendants were previously and exhaustively set forth in the court's February 28, 1997 memorandum and will not be repeated herein except where relevant to the court's disposition of the instant motions.

 A. The Individual Senate Defendants' Motion for Reconsideration or, in the Alternative, for Certification Pursuant to 28 U.S.C. § 1292(b)

 The individual Senators ask the court to reconsider its prior holding that absolute legislative immunity precludes only Larsen's claims for money damages against them personally--not his claims against them in their official capacities for prospective injunctive relief. The court declines to reconsider its prior holding as its decision is in accordance with prior Third Circuit discussion of this issue. See Acierno v. Cloutier, 40 F.3d 597, 608 n.8 (3d Cir. 1994) (noting that Third Circuit has held that absolute immunity bars claims for damages only, not claims for prospective or injunctive relief) (citing Schrob v. Catterson, 967 F.2d 929, 939 (3d Cir. 1992)).

 In the alternative, the Senate Defendants ask the court to certify for immediate appeal the court's February 28 order because the order addresses the following controlling questions of law: (1) whether Larsen's challenge to his impeachment trial before the Pennsylvania Senate presents a justiciable question which can be answered by a federal court, and, if the answer to the preceding question is in the affirmative, (a) does the complaint state a cause of action for the deprivation of due process rights, specifically, did Larsen possess a constitutionally protected property interest in his position as a supreme court justice, and (b) has Larsen stated a claim for the deprivation of his First Amendment rights where he was impeached for conduct which is unrelated to the alleged protected speech, and where he does not dispute that he engaged in the conduct for which he was impeached.

 Section 1292(b) permits the court in its discretion to certify an interlocutory order where the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the termination of the litigation." 28 U.S.C. § 1292(b). The Senate Defendants' treatment in their brief of the three factors the court must consider in deciding whether to certify pursuant to § 1292(b) is relatively scant. Specifically, although Defendants contend that "there are substantial grounds for difference of opinion regarding [the] Court's holdings on the issues of justiciability, due process and First Amendment claims," (Senate Defs.' Br. in Supp. of Recons. at 6), Defendants also note that "research discloses that this case presents the first time any federal court has been asked to review an impeachment trial conducted by a state legislature," (id. at 7). Unfortunately, the fact that this case may involve an issue of first impression does not warrant certification pursuant to § 1292(b). Furthermore, none of the cases cited by Defendants suggest that there are substantial grounds for a difference of opinion regarding the applicability of the political question doctrine to federal court challenges to state legislative functions. Accordingly, although the court recognizes that a definitive word from the Third Circuit on the justiciability of Larsen's challenge to the Senate impeachment proceedings would be invaluable in the instance case, Defendants have not demonstrated the existence of the three factors prescribed by § 1292(b). Accordingly, the court will decline to certify based on the question of justiciability.

 Defendants cite no case law which supports their contention that substantial grounds for a difference of opinion exist regarding the court's holding on the issue of whether the complaint states a claim for deprivation of Larsen's First Amendment rights. Thus, certification based on this question is inappropriate. The court finds, however, that the issue of whether Larsen possessed a property interest in his position is an issue which justifies certification pursuant to § 1292(b). Reversal by the Third Circuit of the court's determination that Larsen possessed a "highly circumscribed" interest in his position as a supreme court judge would terminate the majority of Larsen's remaining claims against the individual Senate Defendants, and possibly other Defendants, and, therefore, greatly simplify the litigation. Thus, this issue constitutes a controlling question of law for purposes of certification under § 1292(b).

 There are also substantial grounds for a difference of opinion regarding whether Larsen possessed a property interest in his prior position. At least one other district court has reached a different conclusion regarding whether judges in Pennsylvania possess property interests in their positions. See Guarino v. Larsen, 821 F. Supp. 1040 (E.D. Pa.), rev'd on other grounds, 11 F.3d 1151 (3d Cir. 1993). The Guarino court's failure to address the Pennsylvania Supreme Court's decisions in In re 1991 Pennsylvania Legislative Reapportionment Commission, 530 Pa. 335, 609 A.2d 132 (Pa. 1992), cert. denied, 504 U.S. 921, 118 L. Ed. 2d 571, 112 S. Ct. 1971 (1992), and Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698, 698 (Pa. 1977), led this court in its February 28 memorandum to decline to follow the Guarino court's reasoning. Nevertheless, the Guarino court's opinion demonstrates that there are substantial grounds for a difference of opinion regarding the issue of whether judges in Pennsylvania hold property interests in their jobs. Accordingly, certification of the court's February 28 order is appropriate on this basis.

 Finally, certification of the court's February 28 order is appropriate because an immediate appeal of the issue of whether Larsen possessed a property interest in his job could materially advance the termination of the litigation. Depending on the outcome, appellate review in this case could avoid expensive and protracted discovery on Larsen's due process claims and ultimately eliminate a trial on these issues. Accordingly, the court will certify its February 28, 1997 order pursuant to § 1292(b).

 B. The Motion of the AO, Nancy Sobolevitch, and David Frankforter for Partial Reconsideration of the Court's February 28, 1997 Order

 In its February 28, 1997 memorandum, the court declined to grant the AO's motion to dismiss based on Eleventh Amendment immunity because its arguments in support of its position were "conclusory" and provided little basis upon which to determine that dismissal pursuant to the Eleventh Amendment was proper. The AO has now filed a motion for reconsideration of that portion of the court's order, elaborating on its earlier stated position.

 In essence, the AO argues that the Eleventh Amendment prohibits all of Larsen's claims against it because it is an arm of the state. In its brief in support of its motion for reconsideration, the AO contends that an evaluation of the factors set forth by the Third Circuit in Peters v. Delaware River Port Auth., 16 F.3d 1346, 1350 (3d Cir. 1994), cert. denied, U.S. , 115 S. Ct. ...


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