152 F.3d 240 (3rd Cir. 1998), 97-7296, Larsen v. Senate of Com. of Pa.

Docket Nº:97-7296, 97-7451.
Citation:152 F.3d 240
Party Name: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. H
Case Date:August 11, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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152 F.3d 240 (3rd Cir. 1998)




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.

Nos. 97-7296, 97-7451.

United States Court of Appeals, Third Circuit

August 11, 1998

Argued May 19, 1998.

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[Copyrighted Material Omitted]

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Arlin M. Adams (Argued), Joseph T. Lukens, Michael J. Barry, Schnader, Harrison, Segal & Lewis, Philadelphia, PA; Morey M. Myers, Myers, Brier & Kelly, Scranton, PA; Harold I. Goodman, Arthur G. Raynes, Stephen E. Raynes, Raynes, McCarty, Binder, Ross & Mundy, Philadelphia, PA, for Appellants.

Cletus P. Lyman (Argued), Michael S. Fettner, Lyman & Ash, Philadelphia, PA, for Appellee Rolf Larsen.

Before: SLOVITER, GREENBERG, and GIBSON, [*] Circuit Judges.

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SLOVITER, Circuit Judge.

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.



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, 532 Pa. 326, 616 A.2d 529 (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

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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...

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