Larsen v. Senate of Pennsylvania

• Citation: 166 Pa.Cmwlth. 472,646 A.2d 694
• Parties: Honorable Rolf LARSEN, Justice, Supreme Court of Pennsylvania, Petitioner, v. SENATE OF PENNSYLVANIA, Senate Impeachment Trial Committee Senator Stewart J. Greenleaf, Chairman, and Members of the Committee: Senators Robert C. Jubelirer, Charles D. Lemmond, Jr., H. Craig Lewis, Jeanette F. Reibman, Tim Shaffer, and Hardy Williams, Respondents.
• Decision Date: 05 August 1994
• Court: Commonwealth Court of Pennsylvania

Page 694

646 A.2d 694

166 Pa.Cmwlth. 472

Honorable Rolf LARSEN, Justice, Supreme Court of Pennsylvania, Petitioner, v. SENATE OF PENNSYLVANIA, Senate Impeachment Trial Committee Senator Stewart J. Greenleaf, Chairman, and Members of the Committee: Senators Robert C. Jubelirer, Charles D Lemmond, Jr., H. Craig Lewis, Jeanette F. Reibman, Tim Shaffer, and Hardy Williams, Respondents.

Commonwealth Court of Pennsylvania.

Argued Aug. 2, 1994.

Decided Aug. 5, 1994.

[166 Pa.Cmwlth. 473] William C. Costopoulos, for petitioner.

Arlin M. Adams and Morey M. Myers, for respondents.

Before CRAIG, President Judge, and COLINS and NEWMAN, JJ.

CRAIG, President Judge.

Petitioner, Mr. Justice Rolf Larsen, asks this court for a preliminary injunction, to enjoin the Senate of Pennsylvania, and its Senate Impeachment Trial Committee, from conducting an impeachment trial against petitioner, set to begin on August 8, 1994.

That preliminary injunction application is part of petitioner's action in equity and declaratory judgment, addressed to the original jurisdiction of this court (coupled with an appeal in the alternative) and filed against the respondents on July 26, 1994.

The present proceedings significantly involve a first-impression question as to whether there can be judicial intervention in advance, to bar the state Senate from proceeding with the impeachment trial, on the basis that violations of constitutional rights are threatened.

Pursuant to a prompt hearing, the factual record has been established. All counsel have cooperated very professionally in establishing a record by the introduction of documentary evidence and by stipulations (Pet.Exh. 11) as to averments of the preliminary injunction application and respondent's affidavits, resulting in the following:

FINDINGS OF FACT

Impeachment Proceedings

1. Petitioner Mr. Justice Rolf Larsen served as a justice of the Supreme Court of Pennsylvania from January 1978 at least until June 13, 1994.

2. Respondent Senate of Pennsylvania is the upper house of the Pennsylvania General Assembly.

3. Respondent Senate Impeachment Trial Committee is a select committee of the Senate of Pennsylvania appointed under Rule X of the "Senate Rules of Practice and Procedure When Sitting on Impeachment Trials" (Pet.Exh. 8), consisting of the following Senators: Stewart J. Greenleaf, Chairman; Robert C. Jubelirer, ex officio; Charles D. Lemmond, Jr.; H. Craig Lewis; Jeanette F. Reibman; Tim Shaffer and Hardy Williams.

4. On May 24, 1994, the Pennsylvania House of Representatives adopted seven articles of impeachment against Mr. Justice Larsen, accusing him of "misbehavior in office" pursuant to Article 6, section 4 of the Pennsylvania Constitution. The articles of impeachment were exhibited to the Senate on June 6, 1994, and were incorporated in the Senate's Writ of Impeachment Summons (Pet.Exh. 3). The reception of evidence, before the Senate Impeachment Trial Committee, is set to begin on August 8, 1994.

5. The Senate of Pennsylvania appointed the Senate Impeachment Trial Committee to receive evidence and take testimony. The petition for review, as filed in this case, raises the constitutional questions discussed below.

6. At a pre-trial conference on June 30, 1994, before the Senate Impeachment Trial Committee, Mr. Justice Larsen filed and argued an omnibus pre-trial motion (Pet.Exh. 4) which sought to dismiss the articles of impeachment on grounds that the Senate lacks subject matter jurisdiction, given Mr. Justice Larsen's removal from office; that double jeopardy principles preclude trying Mr. Justice Larsen in view of his removal from office; that the House of Representatives wrongly impeached Mr. Justice Larsen under an unconstitutional definition of "misbehavior in office"; and that the articles failed to state an impeachable offense. Mr. Justice Larsen also asked that the full Senate consider the pretrial motions, that the full Senate hear the trial, that he be granted "open-file" discovery, and that he be reimbursed for attorney's fees and costs.

7. By letter dated July 1, 1994 (Pet.Exh. 5), the Senate Impeachment Trial Committee advised petitioner and Representative Frank Dermody, Chairman of the Committee of House Managers, that the Senate Impeachment Trial Committee (1) retains jurisdiction, (2) reserves petitioner's motions of June 30 for the determination of the full Senate, and (3) will begin hearings at 11:00 a.m. on Monday, August 8, 1994, with the expectation of concluding on or about Friday, September 9, 1994. With respect to issues raised by the Committee of House Managers, the letter stated as follows

1. The only testimony transcripts to be admitted will be petitioner's testimony before the Judicial Inquiry and Review Board and in Commonwealth v. Larsen, CC9313844, Allegheny County Court of Common Pleas;

2. An unstated request raised by the "Committee Managers" is denied;

3. Subject to Item 8 below, the parties are directed to exchange all relevant materials;

4. Witness are to testify in person, but videotaped depositions may be allowed in extraordinary circumstances;

5. Stipulations are urged;

6. Pre-trial motions are due by July 19, with replies in three days;

7. Evidence will be considered under general principles of fundamental fairness, including irrelevancy, materiality and competency;

8. Petitioner is to be provided with all relevant grand jury materials and an inventory of such materials in the possession of the House or Representatives, with petitioner's counsel to have opportunity to request and receive additional items;

9. A second pre-trial conference may be scheduled during the week of July 25, 1994;

10. No more than one examiner per witness will be allowed; and

11. Subpoenas and subpoenas duces tecum will be issued, with requests to be filed no later than July 19, 1994, beyond which date such requests will be granted only for extraordinary circumstances.

Other Proceedings

8. By letter dated July 20, 1994 (Pet.Exh. 10), addressed the same as the above letter of July 1, the Senate Impeachment Trial Committee scheduled a second pre-trial conference for July 27, 1994, to deal with stipulations, subpoenas, exchange of materials, exhibits, time schedules and issues from the July 1 letter. The Committee reaffirmed its decision to start trial at 11:00 a.m. Monday, August 8, 1994, and to proceed thereafter from 9:00 a.m. to 5:00 p.m. on weekdays, holding hearings on Saturdays if necessary.

9. The Supreme Court of Pennsylvania, by order dated October 18, 1993, No. 127 Judicial Administration Docket, noting criminal proceedings instituted against Mr. Justice Larsen, relieved him from all responsibilities as a justice (Pet.Exh. 6).

10. The Pennsylvania Court of Judicial Discipline, by order of June 3, 1994, ordered the suspension of Mr. Justice Rolf Larsen without pay from the date of the order and until further order of that court. (Pet.Exh. 7).

11. In the Court of Common Pleas of Allegheny County, at No. CC9313844, an order of Court dated June 13, 1994, by Judge W.T. O'Brien (Pet.Exh. 1) further sentenced Mr. Justice Larsen, defendant, as follows:

NOW, this 13th day of June 1994, pursuant to Article VI, Section 7 of the Pennsylvania Constitution, the defendant, having been convicted of an infamous crime, is hereby removed as a justice of the Supreme Court of Pennsylvania, effective immediately.

12. In the case resulting in the order described in Finding No. 10 above, at further proceedings on July 5, 1994, the record shows that the trial judge, with respect to the appeal of that conviction to the Superior Court, granted a stay of the probation and community service aspects of the sentence imposed upon petitioner but, with respect to the removal from office contained in the order at Finding No. 8 above, no stay was requested or granted. (Pet.Exh. 2).

13. As indicated by published report of July 8, 1994, (Pet.Exh. 9) Pennsylvania Governor Robert Casey has appointed a seven-member Appellate Court Nominating Commission to recommend to him the names of candidates for appointment by him to fill two appellate court positions, including the position of Mr. Justice Larsen on the Pennsylvania Supreme Court, and a vacancy on the Commonwealth Court to occur on August 31, 1994.

Affidavits of Respondents

14. With respect to affidavit of Mark R. Corrigan, Secretary of the Senate of Pennsylvania (Resp.Exh. A), it is stipulated that the affiant, if called to testify, would testify as follows:

a. Two of the senators intending to retire at the end of the current legislative session, November 30, 1994, are members of the Senate Impeachment Trial Committee;

b. Twenty-five seats in the Senate of Pennsylvania are scheduled for election in the November 1994 General Election;

c. The Senate Chamber, extensively reconfigured for the impeachment trial, is scheduled to be used by the Senate Impeachment Trial Committee from August 8, 1994 to September 9, 1994; and

d. The Senate of Pennsylvania is currently in recess and expected to be adjourned until September 19, 1994.

15. The affidavit of A.L. Stockslager, Executive Director of the Pennsylvania Legislative Data Processing Center (Resp.Exh. B), is stipulated to constitute testimony which the affiant would give if called to testify, as follows:

(a) In November of 1992 the Senate passed 86 bills, and the General Assembly passed and transmitted to the Governor 117 bills;

(b) In November of 1990, the Senate of Pennsylvania passed 71 bills, and the General Assembly passed and transmitted to the Governor 110 bills;

(c) In November of 1988, the Senate of Pennsylvania passed 69 bills, and the General Assembly passed and transmitted to the Governor 80 bills.

QUESTIONS PRESENTED

1. Does this case against the Senate involve justiciable questions such that this court can issue a preliminary injunction to enjoin the proposed impeachment trial proceedings pending final judicial determination of the...