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Larsen v. Senate of Com. of Pa.

August 11, 1998

ROLF LARSEN
v.
SENATE OF THE COMMONWEALTH OF PENNSYLVANIA; ROY C. AFFLERBACH; ANTHONY B. ANDREZESKI; GIBSON E. ARMSTRONG; EARL BAKER; ALBERT V. BELAN; CLARENCE D. BELL; LEONARD J. BODACK; MICHAEL E. BORTNER; DAVID J. BRIGHTBILL; J. DOYLE CORMAN; MICHAEL M. DAWIDA; MICHAEL B. FISHER; VINCENT J. FUMO; STEWART J. GREENLEAF; MELISSA A. HART; DAVID W. HECKLER, EDWARD W. HELFRICK; EDWIN G. HOLL; ROXANNE H. JONES; ROBERT C. JUBELIRER; GERALD J. LAVALLE; CHARLES D. LEMMOND, JR.; H. CRAIG LEWIS; J. WILLIAM LINCOLN; F. JOSEPH LOEPER; ROGER A. MADIGAN; BRUCE S. MARKS; ROBERT J. MELLOW; HAROLD F. MOWERY, JR.; RAPHAEL J. MUSTO; MICHAEL A. O'PAKE; FRANK A. PECORA; JOHN E. PETERSON; EUGENE E. PORTERFIELD; TERRY L. PUNT; JEANETTE F. REIBMAN; JAMES J. RHOADES; ROBERT D. ROBBINS; FRANK A. SALVATORE; ALLYSON Y. SCHWARTZ; TIM SHAFFER; JOHN J. SHUMAKER; PATRICK J. STAPLETON; WILLIAM J. STEWART; J. BARRY STOUT; RICHARD TILGHMAN; JACK WAGNER; NOAH W. WENGER; HARDY WILLIAMS; SUPREME COURT OF PENNSYLVANIA; ROBERT NIX; JOHN FLAHERTY; STEPHEN ZAPPALA; NICHOLAS PAPADAKOS; RALPH CAPPY; FRANK MONTEMURO; RONALD CASTILLE; COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE; JOSEPH F. MCCLOSKEY; WILLIAM F. BURNS; DAWSON R. MUTH; PETER DEPAUL; CAROL K. MCGINLEY; CHRISTINE L. DONOHUE; JUSTIN M. JOHNSON; WILLIAM CASSENBAUM; JUDICIAL CONDUCT BOARD; JOSEPH A. DEL SOLE; ARTHUR J. EDMUNDS; DIANE M. EDMUNDSON; GERALD P. EGAN; JOHN W. HERRON; FREDERICK WELLS HILL; MATTHEW ANITA MACDONALD; GERALD J. O'CONNOR; ANDREW PALM; CHARLES W. RUBENDALL, II; JAMES E. RUSSO; BERNARD C. WATSON; WILLIAM J. ARBUCKLE, III; BRUCE A. ANTKOWIAK; THOMAS A. BERGSTROM; ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS; NANCY M. SOBOLEVTICH; DAVID A. FRANKFORTER, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES; INDIVIDUAL SENATORS ROY C. AFFLERBACH, ANTHONY B. ANDREZESKI, GIBSON E. ARMSTRONG, EARL BAKER, ALBERT V. BELAN, CLARENCE D. BELL, LEONARD J. BODACK, MICHAEL E. BORTNER, DAVID J. BRIGHTBILL, J. DOYLE CORMAN, MICHAEL M. DAWIDA, MICHAEL B. FISHER, VINCENT J. FUMO, STEWART J. GREENLEAF, MELISSA A. HART, DAVID W. HECKLER, EDWARD W. HELFRICK, EDWIN G. HOLL, ROXANNE H. JONES, ROBERT C. JUBELIRER, GERALD J. LAVALLE, CHARLES D. LEMMOND, JR., H. CRAIG LEWIS, J. WILLIAM LINCOLN, F. JOSEPH LOEPER, ROGER A. MADIGAN, BRUCE S. MARKS, ROBERT J. MELLOW, HAROLD F. MOWERY, JR., RAPHAEL J. MUSTO, MICHAEL A. O'PAKE, FRANK A. PECORA, JOHN E. PETERSON, EUGENE E. PORTERFIELD, TERRY L. PUNT, JEANETTE F. REIBMAN, JAMES J. RHODES, ROBERT D. ROBBINS, FRANK A. SALVATORE, ALLYSON Y. SCHWARTZ, TIM SHAFFER, JOHN J. SHUMAKER, PATRICK J. STAPLETON, WILLIAM J. STEWART, J. BARRY STOUT, RICHARD A. TIGHMAN, JACK WAGNER, NOAH W. WENGER AND HARDY WILLIAMS ("THE INDIVIDUAL SENATORS") APPELLANTS



(D.C. No. 95-cv-01540)

Before: Sloviter, Greenberg, and GIBSON,*fn1 Circuit Judges

The opinion of the court was delivered by: Sloviter, Circuit Judge.

On Appeal from the United States District Court for the Middle District of Pennsylvania

Argued May 19, 1998

OPINION OF THE COURT

Rolf Larsen, former Justice of the Supreme Court of Pennsylvania, brought suit under 42 U.S.C. § 1983 against a large number of Pennsylvania entities and individuals. In the portions of the amended complaint at issue in the appeals before us, he asserted various constitutional claims against the Senate of the Commonwealth of Pennsylvania and individual Pennsylvania state Senators for their role in his impeachment and removal from office. Defendants filed a variety of motions in the district court challenging Larsen's right to maintain this action. Currently before us are consolidated appeals filed by individual Senators who challenge the district court's rulings rejecting the claims of nonjusticiability, absolute legislative immunity and qualified immunity arising out of Larsen's failure to demonstrate any property interest in his position as Justice. A related appeal in number 97-7153, which was filed by the individual Justices of the Supreme Court of Pennsylvania and employees of the Administrative Office of the Pennsylvania Courts and which concerns the termination of Larsen's medical benefits, was argued before the same panel of this court, and is the subject of a separate opinion.

I.

Background

Larsen was first elected to the Supreme Court of Pennsylvania in 1977 for a ten-year term beginning January 1978, and was reelected for a second ten years as of 1988. In that year, the Pennsylvania Judicial Inquiry Review Board ("JIRB") charged him with several violations of the Pennsylvania Constitution. In 1991, the JIRB issued a report to the Supreme Court of Pennsylvania in which the Board found that Larsen, while acting without improper motive, had created an appearance of impropriety by engaging in ex parte meetings with a trial Judge presiding over cases in the Court of Common Pleas. The report recommended that Larsen be publicly reprimanded. On October 14, 1992, the Supreme Court (by Justices Zappala and Cappy with Justice Papadakos Dissenting and voting for remand to the JIRB) issued a per curiam order, without opinion, adopting the JIRB's recommendation. See In re Larsen, 616 A.2d 529 (Pa. 1992).

On November 24, 1992, Larsen filed a petition for the recusal and disqualification of Justices Zappala and Cappy. The petition alleged that those Justices had not been impartial and had improper motives throughout the investigation of Larsen and in deciding to adopt the JIRB's report and recommendation. Larsen also accused then-Chief Justice Nix of having improperly interfered with a pending trial in Lehigh County and with the petition for allowance to file an appeal in that case.

In response to Larsen's petition, Pennsylvania Attorney General Preate appointed two special counsels to investigate Larsen's accusations. After almost a year of grand jury hearings, the grand jury found no credible evidence to support Larsen's allegations. It did, however, identify two areas of alleged misconduct by Larsen. They were that, over the previous ten years, Larsen had maintained a list of petitions for allowance of appeal to be given special treatment and had regularly obtained prescription drugs for his own use by causing doctors to issue prescriptions in the names of his staff members. On October 22, 1993, the grand jury recommended that criminal charges be filed against Larsen for the latter. Several days later, on October 28, 1993, Larsen was formally charged with violating and conspiring to violate the Controlled Substances Act, 35 Pa. Cons. Stat. § 780-101, et seq. That same day, the Supreme Court relieved Larsen of all responsibilities as a Justice, though he continued to receive his salary.

On April 9, 1994, after a five-day trial in the Court of Common Pleas, Larsen was convicted by a jury of two counts of conspiring to violate the Controlled Substances Act. On May 24, the Pennsylvania House of Representatives, which had been investigating Larsen for months, adopted seven Articles of Impeachment against him. They included (I) according special treatment to certain petitions for allowance of appeal in cases where his friends were counsel of record who had made political contributions to him, (II) having ex parte communications with one such counsel and voting consistent with that counsel's position, (III) lying before the grand jury that was investigating him, (IV) communicating with a trial Judge regarding a case pending before her and providing extra-record information beneficial to a party represented by one of Larsen's friends, (V) making allegations in bad faith against Justices Zappala and Cappy, (VI) obtaining prescription drugs for his own use in the names of his staff members, and (VII) undermining confidence in the judiciary and betraying the trust of the people of Pennsylvania.

Pursuant to the Senate Rules of Practice and Procedure for Impeachment Trials, the President Pro Tempore of the Senate appointed a committee of six senators to conduct evidentiary hearings regarding the allegations contained in the Articles of Impeachment. On September 20, after a month of hearings before the committee, the full Senate heard oral argument on Larsen's pretrial motions in which he requested, inter alia, that his trial be held before the full Senate as opposed to a committee, that certain senators recuse themselves, and that he be allowed to take discovery. All of Larsen's motions were denied without debate. On September 27, the senate committee provided the full Senate and Larsen's counsel with a copy of its final report, containing a summary of the evidence presented at the hearings, and, at the same time, the full Senate heard closing arguments from both sides. On October 4, 1994, the Senate voted 44 to 5 to convict Larsen on Article II and to acquit him on the other six articles. The Senate then voted unanimously to bar Larsen from holding any office of trust or profit in Pennsylvania in the future.

On June 13, 1994, the Court of Common Pleas sentenced Larsen on his criminal conviction to probation and community service, later suspended pending appeal. In addition, pursuant to the Pennsylvania Constitution, the trial Judge removed Larsen from office as a Justice of the Supreme Court.*fn2

II.

Procedural History

Larsen instituted the present § 1983 action on September 13, 1995. His 30-page amended complaint names the Pennsylvania Senate, the Supreme Court, the Administrative Office, the Judicial Conduct Board, the Court of Judicial Discipline and the individual members of each entity in their official and personal capacities. Only Part I of the amended complaint, containing Larsen's claims against the Senate and individual Senators, is relevant to this appeal. There, Larsen alleges in subpart (a) that he was denied rights secured by the Sixth Amendment and the Due Process Clauses of the Fourteenth Amendment of the United States Constitution, listing approximately twenty examples of ways in which the procedures he was accorded allegedly fell below constitutional standards. In subpart (b), Larsen alleges that the statements contained in his petition for the disqualification and recusal of two of his fellow Justices were substantial and motivating factors in his removal from office in violation of the First Amendment of the United States Constitution. Larsen seeks compensatory and punitive damages from the Senators in their personal capacities. In the Senators' official capacities, Larsen seeks "declaratory and injunctive relief, voiding the Senate impeachment verdict of guilty on Article II." App. at 97.

In the district court, the Senators moved to dismiss Part I of the amended complaint on the grounds, among others, that Larsen's claims are not justiciable, that they are barred by the Eleventh Amendment to the United States Constitution, that the Senators are entitled to absolute legislative immunity, and that the complaint failed to state a claim upon which relief could be granted. The district court ruled that Larsen's claims against the Senate and the Senators were not "political questions" and were justiciable. With respect to the immunity issues, the court dismissed Larsen's claims against the Senate as barred by the Eleventh Amendment, but held that the Eleventh Amendment did not bar Larsen's claims for injunctive and declaratory relief against the individual Senators in their official capacities. In addition, the court dismissed Larsen's claims for damages against the Senators in their personal capacities, holding that the Senators were entitled to absolute legislative immunity from those claims. Turning to the merits, the court reasoned that Larsen had a"highly circumscribed" property interest in his position and that "for the most part, whatever procedural safeguards to which he was entitled pursuant to the Fourteenth Amendment were met by the impeachment proceedings." Larsen v. Senate of the Commonwealth of Pa. (Larsen I), 955 F. Supp. 1549, 1570 (M.D. Pa. 1997). As a result, the court then dismissed the vast majority of Larsen's due process allegations for failure to state claims upon which relief could be granted.

On the Senators' motion for reconsideration, the court refused to reconsider its holding that absolute legislative immunity did not preclude the claims seeking prospective injunctive relief in the Senators' official capacities. Larsen v. Senate of the Commonwealth of Pa. (Larsen II ), 965 F. Supp. 607, 612 (M.D. Pa. 1977). The court did, however, agree to certify for immediate appeal under 28 U.S.C. § 1292(b) its rulings on the issue whether Larsen possessed a constitutionally protected property interest in his position.

The district court had jurisdiction over the subject matter of this dispute pursuant to 28 U.S.C. §§ 1331 and 1343. A motions panel of this court granted the Senators' motion to permit the interlocutory appeal with respect to the issue whether Larsen had a constitutionally protected property interest in the elected office of Justice of the Supreme Court of Pennsylvania and, if so, the extent of that interest. We therefore have appellate jurisdiction over that issue pursuant to 28 U.S.C. § 1292(b).

The Senators also appeal from the district court's partial denial of their claim to absolute legislative immunity. We regard the denial of the Senators' claim of absolute legislative immunity as analogous to the denial of a government official's right to claim either absolute or qualified immunity, which the Supreme Court held in Mitchell v. Forsyth, 472 U.S. 511 (1985), is immediately appealable under the collateral order doctrine first articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Therefore, we have appellate jurisdiction over that claim pursuant to 28 U.S.C. § 1291. Our review of the district court's Disposition of a motion to dismiss is plenary. See generally Morse v. Lower Merion Sch. Dist., 132 F.2d 902, 906 (3d Cir. 1997).

III.

Justiciabil ...


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