Larsen v. Senate of the Com. of Pennsylvania

• Decision Date: 28 February 1997
• Docket Number: Civil Action No. 1:CV-95-1540.
• Citation: 955 F.Supp. 1549
• Parties: Rolf LARSEN, Plaintiff, v. SENATE OF THE COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

Page 1549

955 F.Supp. 1549

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

Civil Action No. 1:CV-95-1540.

United States District Court, M.D. Pennsylvania.

February 28, 1997.

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Cletus P. Lyman, Lyman & Ash, Philadelphia, PA, Michael Steven Fettner, Philadelphia, PA, for Rolf Larsen.

Arlin M. Adams, Schnader, Harrison, Segal and Lewis, Philadelphia, PA, Morey M. Myers, Myers, Brier & Kelly, Scranton, PA, Michael J. Barry, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for 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, Individual Senators.

Morey M. Myers, Myers, Brier & Kelly, Scranton, PA, for Michael E. Bortner.

Arlin M. Adams, Schnader, Harrison, Segal and Lewis, Philadelphia, PA, Morey M. Myers, Myers, Brier & Kelly, Scranton, PA, Michael J. Barry, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for 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 A. Tilghman, Jack Wagner, Noah W. Wenger, Hardy Williams.

Arlin M. Adams, Michael J. Barry, Schnader, Harrison, Segal and Lewis, Philadelphia, PA, for Supreme Court of Pennsylvania, Robert Nix, John Flaherty, Stephen Zappala, Nicholas Papadakos, Ralph Cappy, Frank Montemuro, Ronald Castille.

James J. Kutz, Eckert, Seamans, Cherin & Mellott, Harrisburg, PA, LeRoy S. Zimmerman, Eckert Seamans Cherin & Mellott, Harrisburg, PA, for Joseph F. McCloskey, William F. Burns, Dawson R. Muth, Peter DePaul, Carol K. McGinley, Christine L. Donohue, Justin M. Johnson, William Cassenbaum, for Judicial Conduct Board.

W. Thomas McGough, Jr., Reed Smith Shaw & McClay, Pittsburgh, PA, Pamina G. Ewing, Reed Smith Shaw & McClay, Pittsburgh, PA, for Joseph A. Del Sole.

Pamina G. Ewing, Reed Smith Shaw & McClay, Pittsburgh, PA, for Arthur J. Edmunds.

W. Thomas McGough, Jr., Pamina G. Ewing, Reed Smith Shaw & McClay, Pittsburgh, PA, for Diane M. Edmundson, Gerard 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. Antkowials, Thomas A. Bergstrom.

Arthur G. Raynes, Raynes, McCarty, Binder, Ross & Mundy, Philadelphia, PA, for Administrative Office of Pennsylvania Courts, Nancy M. Sobolevtich, David A. Frankforter.

MEMORANDUM

RAMBO, Chief Judge.

I. Introduction

Before the court is a plethora of motions. There are four separate motions to dismiss filed on behalf of: (1) Defendants Senate of Pennsylvania and the individual Senators, (2) Defendants Judicial Conduct Board ("JCB") and individual Judicial Conduct Board members, (3) Defendants Court of Judicial Discipline ("CJD") and its individual members, (4) Defendants Supreme Court of Pennsylvania and the individual justices thereof, and (5) Defendants Administrative Office of the Pennsylvania Courts, Nancy Sobolevitch, and David Frankforter. In addition, also pending before the court are the Senate Defendants' motion for costs pursuant to Federal Rule of Civil Procedure 41(d) and to strike portions of the amended complaint and the JCB Defendants' motion for sanctions under Rule 11. Furthermore, on July 15, 1996, Plaintiff Larsen filed a motion for partial summary judgment. In light of Defendants' pending motions, on July 29, 1996, the court stayed briefing on Plaintiff's motion. This memorandum and accompanying order will dispose of all motions presently pending before the court except for Larsen's motion for partial summary judgment.

II. Procedural and Factual History

Plaintiff Larsen is a former Justice of the Pennsylvania Supreme Court. Larsen was initially elected to the Supreme Court for a ten-year term commencing in January 1978. He was reelected for a second term beginning in 1988. This case arises out of Larsen's removal from office in October 1993 based on allegations that he engaged in criminal activity. Larsen was removed from office by order of the Pennsylvania Supreme Court on October 28, 1993, convicted on April 9, 1994 on two counts of criminal conspiracy under the Controlled Substances Act, impeached by the Senate on October 4, 1994, and removed from his position by the CJD on June 3, 1994. In this action, Larsen sues virtually every entity and individual which played a role in his removal from office. He claims, generally, various due process, First Amendment, and equal protection violations in the removal procedures afforded him. Larsen alleges the following facts in support of his claims.

In or around 1988, the Judicial Inquiry and Review Board ("JIRB") charged Larsen with several violations of Article 5, Section 17(b) of the Pennsylvania Constitution.¹ Section 17(b) provides that "[j]ustices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court." Pa. Const. art. 5, § 17(b). The JIRB investigated Larsen and on July 17, 1991 issued a report to the Supreme Court of Pennsylvania in which it found that Larsen, acting without improper motive, had created an appearance of impropriety by meeting ex parte with a trial judge presiding over a case pending in the Allegheny County Court of Common Pleas. The JIRB recommended that Larsen be publicly reprimanded. In re Larsen, 532 Pa. 326, 616 A.2d 529 (1992). On October 14, 1992, the Supreme Court by Justices Zappala and Cappy, with Justice Papadakos dissenting, issued an order per curiam without opinion adopting the JIRB's report and recommendation. Id.

On November 24, 1992, Larsen served a petition for the disqualification and recusal of Justices Zappala and Cappy. Larsen served a "supplemental" petition on December 14, 1992, and a second "supplemental" petition on January 7, 1993. In his petitions, Larsen raised issues of partiality and improper motivation on the part of Justices Zappala and Cappy during the JIRB's investigation of him and in deciding to adopt the JIRB's report and recommendation. Larsen requested that Justices Zappala and Cappy recuse themselves or, in the alternative, that they be disqualified from considering the JIRB's report and recommendation. Larsen also accused Chief Justice Nix of acting improperly by interfering in a pending trial in Lehigh County, and interfering in the defendant's petition for allowance of appeal in that case.

In response to Larsen's allegations, former attorney general Earnest Preate, Jr. appointed two special counsels to investigate Larsen's claims. Over the course of 1993, a grand jury heard testimony regarding Larsen's allegations as well as the JIRB's accusations against Larsen. The grand jury ultimately found two areas of alleged misconduct by Larsen: (1) that he systematically maintained a list of petitions for allowance of appeal to be given special handling by his staff, and (2) that he regularly obtained prescription medications for his own use by causing a physician to issue prescriptions in the names of members of his staff.

On October 22, 1993, the grand jury recommended that criminal charges be brought against Larsen for his procurement of prescription drugs in the name of his staff members. On October 28, 1993, Larsen was charged with criminal conspiracy and multiple violations of the Controlled Substances Act. That same day, the Pennsylvania Supreme Court relieved Larsen "of any and all judicial and administrative responsibilities as a justice." (Defs.' Ex. B.) Larsen continued to receive his salary.

In January 1993, while the grand jury was deliberating, Representative Christopher K. McNally filed a petition in the Pennsylvania House of Representatives calling for Larsen's impeachment based on alleged violations of the Code of Judicial Conduct. On November 5, 1993, the grand jury's report was made public. The grand jury report formed the basis for the Pennsylvania House of Representative's and the JCB's investigation of Larsen. The House Judiciary Committee requested and obtained copies of the transcripts of witnesses' testimony and exhibits presented to the grand jury. On November 23, 1993, the House adopted House Resolution No. 205 authorizing the House Judiciary Committee to investigate Larsen's conduct. The House Judiciary Subcommittee on Courts held public hearings in conjunction with its investigation into the allegations against Larsen.

On April 9, 1994, after a five day trial in the Allegheny Court of Common Pleas, a jury convicted Larsen of two counts of criminal conspiracy under the Controlled Substances Act. Thereafter, on April 22, 1994, the House Subcommittee voted to recommend to the entire House a resolution to impeach Larsen. On May 18, 1994, House Resolution 324 was introduced listing seven articles of impeachment against Larsen and on May 24, 1994 the House adopted Resolution 324.²

On June 6, 1994, the Senate received the articles of impeachment from the House Managers and pursuant to Article 10 of the Senate Rules of Practice and Procedure for impeachment trials, appointed a committee of six senators ("the Senate committee") to conduct evidentiary hearings regarding the allegations against Larsen.³ Senator Robert Jubelirer, President...