154 F.3d 82 (3rd Cir. 1998), 97-7153, Larsen v. Senate of Com. of Pa.

Docket Nº:97-7153.
Citation:154 F.3d 82
Party Name:Rolf LARSEN v. SENATE OF THE COMMONWEALTH OF PENNSYLVANIA; Roy C. Afflerbach; Anthony B. Andrezeski; Gibson E. Armstrong; Earl Baker; Albert 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. Heckl
Case Date:August 11, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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154 F.3d 82 (3rd Cir. 1998)




Afflerbach; Anthony B. Andrezeski; Gibson E. Armstrong;

Earl Baker; Albert 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; Jackwagner; 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. Sobolevitch; David A.

Frankforter, In Their Official and Individual Capacities;

Individual Senators

Chief Justice Robert N.C. Nix (retired), Chief Justice John

Flaherty, Associate Justices Stephen Zappala, Nicholas

Ronald Castille, and Judge Frank Montemuro, *The

Administrative Office of Pennsylvania Courts, Nancy M.

Sobolevitch and David A. Frankforter, Appellants

No. 97-7153.

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, L.L.P., Philadelphia, PA, for Individual Justices of the Supreme Court of Pennsylvania.

Arthur G. Raynes, Harold I. Goodman Stephen E. Raynes, Raynes, McCarty, Binder Ross & Mundy, Philadelphia, PA for Individual Administrative Office Defendants.

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



GREENBERG, Circuit Judge.


Appellants, present and former justices and court administrators of the Supreme Court of Pennsylvania, appeal from the district court's February 28, 1997 order denying their motion to dismiss appellee Rolf Larsen's claims against them on qualified immunity grounds. The district court had jurisdiction over Larsen's claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343 as Larsen states his claims under 42 U.S.C. § 1983 and 42 U.S.C. § 300bb. Jurisdiction over this appeal from a denial of qualified immunity rests on 28 U.S.C. § 1291 pursuant to the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). For the reasons that follow, we will affirm in part and reverse in part the district court's denial of qualified immunity and will remand the case to the district court for further proceedings.


This case arises from appellants' June 1994 decision to terminate the medical insurance benefits of appellee Rolf Larsen, a former justice of the Supreme Court of Pennsylvania, following his conviction on felony charges

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in the Allegheny County Court of Common Pleas and his suspension from office pursuant to an order of the Pennsylvania Court of Judicial Discipline. In November 1977, Larsen was elected to a ten-year term on the Pennsylvania Supreme Court beginning in January 1978. In November 1987, Larsen won a retention election for a second ten-year term beginning in January 1988. On December 12, 1989, toward the end of Larsen's 12th year as a Supreme Court justice, the Supreme Court adopted a benefits plan which provided lifetime medical insurance benefits for retired judges with ten or more years of judicial service, regardless of their age. See app. at 93.

On July 17, 1991, the Pennsylvania Judicial Inquiry Review Board ("JIRB"), following an investigation into allegations of misconduct, reported to the Pennsylvania Supreme Court that Larsen had created an appearance of impropriety by engaging in ex parte communications with a trial judge in a pending case. The JIRB recommended that Larsen be reprimanded publicly. See app. at 72. On October 14, 1992, the Supreme Court, acting through a panel of three justices, adopted the JIRB's recommendation and issued an order publicly reprimanding Larsen. See In re Larsen, 532 Pa. 326, 616 A.2d 529 (1992). Justices Zappala and Cappy voted in favor of the order while Justice Papadakos dissented.

On November 24, 1992, Larsen filed a petition before the Supreme Court seeking the disqualification and recusal of Justices Zappala and Cappy on the grounds that these justices, together with Chief Justice Nix and other individuals, had engaged in various forms of misconduct involving ex parte communications, kickbacks, partiality toward litigants and interference in pending cases. See app. at 72-73; 769. A grand jury then commenced a nine-month investigation into Larsen's accusations and on November 5, 1993, released a report stating that it had found evidence of further wrongdoing by Larsen. 1 The grand jury reported that Larsen had maintained a list of petitions for allowance of appeal to be afforded special handling by his staff and had obtained prescription tranquilizers for his own use by causing a physician to issue prescriptions in the names of members of his judicial staff. See app. at 76.

The Attorney General of Pennsylvania, acting on a presentment issued by the grand jury on October 22, 1993, brought criminal charges against Larsen relating to his unlawful acquisition of prescription medications. By order dated October 28, 1993, the Supreme Court relieved Larsen of all judicial and administrative duties as a justice, but did not suspend his pay. See app. at 76.

On November 23, 1993, the Pennsylvania House of Representatives adopted House Resolution Number 205 authorizing its judiciary committee to investigate Larsen. See app. at 77. That investigation culminated in a writ of impeachment summons which eventually resulted in Larsen's conviction on October 4, 1994. See app. at 790. Larsen has brought claims challenging various aspects of the impeachment proceedings. Those claims are the subject of separate appeals before this court and thus we do not address them in this opinion.

On April 9, 1994, after a five-day trial before the Court of Common Pleas of Allegheny County, a jury convicted Larsen of two counts of felony conspiracy for unlawful procurement of controlled substances. See app. at 77. 2 On June 3, 1994, the Pennsylvania Court of Judicial Discipline suspended Larsen from office without pay based on Article V, § 18(d)(2) of the Pennsylvania Constitution, which authorizes orders "directing the suspension, with or without pay, of any justice, judge or justice of the peace ... against whom has been filed an indictment or

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information charging a felony." See In re Larsen, 655 A.2d 239 (Pa.Ct.Judic.Disc.1994).

The Court of Common Pleas sentenced Larsen on June 13, 1994, and as part of its sentence removed Larsen from judicial office pursuant to Article VI, § 7 of the Pennsylvania Constitution, which provides that, "[a]ll civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime." See Larsen v. Senate of Pennsylvania, 166 Pa.Cmwlth. 472, 646 A.2d 694, 697 (1994).

In a letter dated June 17, 1994, David A. Frankforter, Human Resources Manager for the Court Administrator of Pennsylvania, acting on behalf of Court Administrator Nancy Sobolevitch and the justices of the Pennsylvania Supreme Court, notified Larsen that he was ineligible to receive retirement medical benefits as of June 3, 1994, the date of the Court of Judicial Discipline order suspending Larsen without pay. See app. at 94.

Until 1993, the Pennsylvania Constitution contained a provision mandating that, "[n]o compensation shall be paid to any justice, judge or justice of the peace who is suspended or removed from office...." Pa. Const. art. V, § 16(b). In a 1992 decision, the Pennsylvania Supreme Court, analyzing the language and history of that provision, held that its denial of "compensation" to suspended or removed judges did not encompass retirement benefits. Thus, the court held that judges who had been removed from office for misconduct could not be denied retirement benefits based on that provision. See Glancey v. State Retirement Bd., 530 Pa. 481, 610 A.2d 15, 22-23 (1992).

In 1993, section 16 was amended to provide that, "[e]xcept as provided by law, no salary, retirement benefit or other compensation, present or deferred, shall be paid to any justice, judge or justice of the peace who ... is suspended, removed or barred from holding...

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