                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-1998

Larsen v. Senate of The Commonwealth
Precedential or Non-Precedential:

Docket 97-7296,97-7451




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Recommended Citation
"Larsen v. Senate of The Commonwealth" (1998). 1998 Decisions. Paper 193.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/193


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Filed August 11, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-7296, 97-7451

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

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 95-cv-01540)

                               2
Argued May 19, 1998

Before: SLOVITER, GREENBERG, and GIBSON,*
Circuit Judges

(Filed August 11, 1998)

       Arlin M. Adams (Argued)
       Joseph T. Lukens
       Michael J. Barry
       Schnader, Harrison, Segal & Lewis
       Philadelphia, PA 19103

       Morey M. Myers
       Myers, Brier & Kelly
       Scranton, PA 18503

       Harold I. Goodman
       Arthur G. Raynes
       Stephen E. Raynes
       Raynes, McCarty, Binder, Ross &
        Mundy
       Philadelphia, PA 19l03

        Attorneys for Appellants

       W. Thomas McGough, Jr.
       Reed, Smith, Shaw & McClay
       Pittsburgh, PA 15219

       Cletus P. Lyman (Argued)
       Michael S. Fettner
       Lyman & Ash
       Philadelphia, PA 19l03

        Attorneys for Appellee
        Rolf Larsen
_________________________________________________________________

* Hon. John R. Gibson, United States Senior Circuit Judge for the United
States Court of Appeals for the Eighth Circuit, sitting by designation.

                                  3
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Rolf Larsen, former Justice of the Supreme Court of
Pennsylvania, brought suit under 42 U.S.C. S 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

                                4
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. S 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

                                5
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

                               6
trial judge removed Larsen from office as a Justice of the
Supreme Court.1

II.

Procedural History

Larsen instituted the present S 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
_________________________________________________________________

1. On appeal, the Superior Court affirmed Larsen's conviction and
remanded only for a recalculation of his term of probation. See
Commonwealth v. Larsen, 682 A.2d 783 (Pa. Super. 1996), appeal
denied, 692 A.2d 564 (Pa. 1996).

                                7
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. S 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. SS 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. S 1292(b).

                               8
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. S 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.

Justiciability

The Senators press their contention that Larsen's claim is
not justiciable despite the failure of the motions panel to
accept that issue for certification under 28 U.S.C.
S 1292(b). We agree that it is not only an issue that we can
reach, but one that we must reach. The Supreme Court
made clear this past term that a federal court cannot
proceed to consider the merits of an action until it is
satisfied that the dispute falls within the class of cases or
controversies to which Article III, S 2 of the United States
Constitution has extended the judicial power of the United
States. In Steel Co. v. Citizens for a Better Environment, 118
S. Ct. 1003 (1998), the Court disapproved the "doctrine of
hypothetical jurisdiction" by which some courts"assumed"
jurisdiction for the purpose of deciding the merits. The
Court in Steel Co. emphasized that a court that is without
proper jurisdiction cannot proceed at all, and must merely
note the jurisdictional defect and dismiss the suit. Id. at
1012; see also McNasby v. Crown Cork and Seal Co., 832
F.2d 47, 49 (3d Cir. 1987) ("this court has a`special
obligation' to satisfy itself of its own jurisdiction in every
appeal presented to it") (quoting Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534 (1986)).

                               9
It may be that the motions panel did not certify the
district court's denial of the motion to dismiss for lack of
justiciability because it believed that issue alone did not
qualify for interlocutory appeal under S 1292(b). But once it
did grant the petition of the Senators and certified the
issues whether Larsen had a property interest in the office
of Justice and the extent of that interest, we became free to
address any matter necessary to our decision of those
issues. See Dailey v. Nat'l Hockey League, 987 F.2d 172,
175 (3d Cir. 1993). A somewhat similar issue arose in Ivy
Club v. Edwards, 943 F.2d 270, 275 (3d Cir. 1991), where
we held that before reaching the merits of the issue raised
by the S 1292(b) certification, we were obliged to determine
whether that issue was moot, notwithstanding the fact that
the mootness question was not one of the issues certified
for appeal. See id. at 275-76. In like manner, we have an
obligation to determine whether the instant controversy is
justiciable prior to our reaching the merits of the issues
certified for appeal.

Once we turn to the issue of justiciability, wefind that
the basis of the Senators' objection trenches upon, but does
not follow, traditional justiciability analysis. The Senators
concede that "[t]he issue of justiciability presented here is
not so much a `political question' as it is one of federalism
and of a proper respect for state functions." Appellants' Br.
at 24. That is an apt characterization. In its seminal
opinion in Baker v. Carr, 369 U.S. 186 (1962), the Supreme
Court noted that "[t]he nonjusticiability of a political
question is primarily a function of the separation of
powers." Id. at 210. It continued, "it is the relationship
between the judiciary and the coordinate branches of the
Federal Government, and not the federal judiciary's
relationship to the States, which gives rise to the`political
question.' " Id. Thus, because the issues raised by Larsen
call upon us to review the actions of a state legislature as
opposed to the acts of one of the political branches of the
federal government, the case does not present a typical
"political question" as that term has come to be defined.
Nevertheless, the Senators rely on the political question
cases and argue that their reasoning applies with equal
force here.

                               10
The Senators first rely on the Supreme Court's decision
in Nixon v. United States, 506 U.S. 224 (1993), holding
nonjusticiable a federal judge's challenge to his
impeachment. Walter Nixon, a former United States district
judge, filed suit contending that his impeachment trial
before a committee of the United States Senate, as opposed
to the full Senate, violated the command of Article I of the
United States Constitution that "[t]he Senate shall have the
sole Power to try all Impeachments," U.S. Const. art. I, S 3,
cl. 6. See Nixon, 506 U.S. at 226. The Court reasoned that
the word "try" lacked judicially discoverable and
manageable standards and that the word "sole" constituted
a "textually demonstrable constitutional commitment" to
the Senate. Id. at 229-36. It stated that"[a] controversy is
nonjusticiable--i.e., involves a political question--where
there is `a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and
manageable standards for resolving it.' " Id. at 228 (quoting
Baker, 369 U.S. at 217). Accordingly, it held that Nixon's
claim was nonjusticiable. Id. at 237-38.

The Senators argue that, as in Nixon, there is a lack of
judicially manageable standards rendering this case
nonjusticiable. We do not agree that Nixon controls our
analysis, and note that the Supreme Court has cautioned
that "[m]uch confusion results from the capacity of the
`political question' label to obscure the need for case-by-
case inquiry." Baker, 369 U.S. at 210-11. Larsen's claims
do not implicate Article I, S 3, cl. 6 of the United States
Constitution and thus the language of the phrase assigning
to the Senate trial of all impeachments is not the issue in
this suit. Larsen's challenge to his impeachment is based
primarily on the Due Process Clause of the Fourteenth
Amendment and the Freedom of Speech Clause of the First
Amendment. Both areas of the law are firmly within the
domain of the federal judiciary and both are the subject of
judicially developed legal principles that guide our
decisions. Unlike the political question cases, where the
"court[s] acknowledge[ ] the possibility that a constitutional
provision may not be judicially enforceable," United States
Dept. of Commerce v. Montana, 503 U.S. 442, 458 (1992),

                               11
issues involving the First and Fourteenth Amendments are
regularly enforced by judicial decision.

The Senators turn again to Nixon as support for their
argument that concerns for finality and the logistical
difficulties that would be presented in the event of an order
for Larsen's reinstatement counsel against federal court
review of his impeachment proceedings. In Nixon , the Court
stated that "we are persuaded that the lack offinality and
the difficulty of fashioning relief counsel against
justiciability." Id. at 236 (citing Baker, 369 U.S. at 210). In
its discussion, the Court noted the uncertainty of"the
question of what relief a court may give other than simply
setting aside the judgment of conviction. Could it order the
reinstatement of a convicted federal judge, or order
Congress to create an additional judgeship if the seat had
been filled in the interim?" Id.

We do not discount the similar difficulties that would be
presented in fashioning a remedy for an impeached state
judge. However, the Nixon case does not provide a basis for
finding nonjusticiability on that ground. In Nixon, the Court
explicitly relied on the finality argument only"[i]n addition
to the textual commitment argument." Id. at 236. There is
no indication in Nixon or any other case cited by the
Senators that, absent a textual commitment to a coordinate
branch of the federal government, concerns for finality and
the difficulty in formulating appropriate relief alone would
suffice to render a case nonjusticiable.

The only injunctive relief explicitly sought in the portion
of Larsen's amended complaint directed to the Senators is
that the court vacate and declare void the conviction of
impeachment, relief that could be granted without ordering
his reinstatement to the bench. We do note that although
Larsen's amended complaint does not include a prayer for
reinstatement, the district court understood he was seeking
that relief, see 955 F. Supp. at 1557, and Larsen so
indicated in this court. Nonetheless, while the difficulty of
ordering such relief is relevant in our analysis of a different
issue, for the reasons set forth above it is not alone a basis
to find the claim nonjusticiable.

Finally, the Senators make the broad argument that
" `Our Federalism' counsels strongly against federal courts

                               12
interfering in state impeachment proceedings which are not
reviewable in state courts and which would not be
justiciable if they were federal proceedings." Appellants' Br.
at 22. They argue that the Pennsylvania Constitution is
virtually identical in relevant respect to the United States
Constitution and that we must honor its "textually
demonstrable commitment" of the responsibility for
conducting impeachment trials to the Pennsylvania Senate.
However, we are aware of no cases in which the
justiciability of a particular claim has turned on a textually
demonstrable commitment appearing in any text other than
the United States Constitution. A federal court derives its
authority to hear a particular case or controversy from the
United States Constitution and the various acts of
Congress, and no provision removes cases of this kind from
federal court jurisdiction.

The Senators cite as "instructive" the decision in Davids
v. Akers, 549 F.2d 120 (9th Cir. 1977), but the court in
that case did not abjure jurisdiction. There, Democratic
members of the Arizona House of Representatives brought
a S 1983 action alleging that they had been denied equal
protection and certain First Amendment rights when the
Republican Speaker of the House assigned proportionally
more Republicans to the standing committees than their
ratio to the number of House Democrats. Although the
court characterized the idea of a federal court meddling in
the internal affairs of a state legislature as "startlingly
unattractive," id. at 123, it rejected the defendants'
justiciability argument on the ground that there was no
separation of powers concern. Id. at 126. Once it reached
the merits, it approved the entry of summary judgment for
the defendants on the ground that plaintiffs had failed to
state a constitutional claim upon which relief could be
granted, id. at 123-25, but that, of course, is a disposition
different than one based on lack of justiciability.

This court has previously rejected challenges to its ability
to hear claims raised against state legislators comparable to
the challenges raised here. In Parker v. Merlino , 646 F.2d
848 (3d Cir. 1981), a group of New Jersey state senators
brought a S 1983 action against certain other senators
alleging that their First Amendment rights had been

                               13
infringed when they were not permitted to participate in
debate on particular tax bills. Like the Senators do here,
the defendants in Parker argued that maintenance of the
suit in federal court constituted an attack on the
sovereignty of the State of New Jersey and its legislative
branch. We rejected that argument on the ground that our
jurisdiction derived from SS 1983, 1331 and 1343, and we
proceeded to reach the merits of the case, which we decided
against the plaintiff Senators. See id. at 852 (citing Bond v.
Floyd, 385 U.S. 116, 131 (1966) (holding that the Court
had jurisdiction to review whether Georgia House of
Representatives deprived one of its members of his
constitutional rights when it refused to seat him on account
of statements he had made criticizing the conduct of the
war in Vietnam); see also Baker, 369 U.S. at 229 (citing
Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480 (1875)
(where federal courts reviewed merits of claim that state
public official's removal from office failed to comport with
the Fourteenth Amendment's due process guarantee) and
Foster v. State ex rel. Johnson, 112 U.S. 201 (1884) (same));
Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960) ("When a
State exercises power wholly within the domain of state
interest, it is insulated from judicial review. But such
insulation is not carried over when state power is used as
an instrument for circumventing a federally protected
right.").

As in Parker, we reject the Senators' argument that
respect for the sovereigny of the state requires us to decline
to exercise our jurisdiction. While the Senators may deem
it inappropriate to find themselves as defendants in a
federal court, the overriding fact is that the Fourteenth
Amendment and S 1983 were intended to radically alter the
distribution of power between the federal government and
the states. See, e.g., Quern v. Jordan, 440 U.S. 332, 342
(1979) ("There is no question that both the supporters and
opponents of the Civil Rights Act of 1871 believed that the
Act ceded to the Federal Government many important
powers that previously had been considered to be within
the exclusive province of the individual States."). To the
extent that S 1983 may be seen as infringing on state
sovereignty, Congress, in adopting S 1983 over a century
ago, made the determination that such infringement was

                               14
not only tolerable but necessary to ensure the vindication
of federal rights within the states.

Accordingly, although fully cognizant of the respect due
members of a state legislature when they act within the
sphere of legitimate state interests, we reject the Senators'
arguments that Larsen's claims against them are not
justiciable. Many of the concerns they raise can be more
appropriately addressed in the context of the immunity
doctrines rather than by pretermitting the exercise of our
jurisdiction through finding a lack of justiciability.

IV.

Legislative Immunity

We turn directly to the immunity issue. In response to
Larsen's complaint, the individual Senators filed motions to
dismiss on a number of grounds, one of which was
legislative immunity. The district court held that the
individual Senators were entitled to absolute legislative
immunity from claims asserted against them in their
personal capacities--claims seeking only monetary relief.
See Larsen I, 955 F. Supp. at 1563. However, the district
court did not extend the Senators' legislative immunity to
Larsen's claims for prospective injunctive and declaratory
relief asserted against the Senators in their official
capacities. See Larsen II, 965 F. Supp. at 608.

The Senators devote much of their appeal to their
contention that the district court erred in limiting the scope
of their immunity to Larsen's claims for damages. Larsen,
on the other hand, does not argue explicitly in his brief that
the district court was correct in limiting the scope of the
Senators' legislative immunity to his claims for monetary
relief. Rather, he argues that when the Senators were
engaged in the impeachment proceedings, they were
performing a judicial, not a legislative, function and,
therefore, are entitled only to judicial, as distinguished from
legislative, immunity. It is settled that absolute judicial
immunity extends only to claims for damages; therefore, if
Larsen is correct that only judicial immunity were
applicable, the Senators would not be entitled to dismissal

                                15
of the claim for injunctive or declaratory relief. See Pulliam
v. Allen, 466 U.S. 522, 540-42 (1984).

On its face, S 1983 "admits of no immunities." Imbler v.
Pachtman, 424 U.S. 409, 417 (1976). Nevertheless, courts
"have recognized that Congress intended the statute to be
construed in the light of common-law principles that were
well settled at the time of its enactment." Kalina v. Fletcher,
118 S. Ct. 502, 506 (1997). Thus, the Court has stated that
a grant of immunity from suit under S 1983 must be
"predicated upon a considered inquiry into the immunity
historically accorded the relevant official at common law
and the interests behind it." Owen v. City of Independence,
445 U.S. 622, 638 (1980) (quoting Imbler, 424 U.S. at 421).
"If parties seeking immunity were shielded from tort liability
when Congress enacted the Civil Rights Act of 1871--S 1 of
which is codified at 42 U.S.C. S 1983--we infer from
legislative silence that Congress did not intend to abrogate
such immunities when it imposed liability for action taken
under color of state law." Wyatt v. Cole, 504 U.S. 158, 164
(1992).

The legislative immunity accorded United States Senators
and members of the House of Representatives is derived
from the Speech or Debate Clause of Article I, S 6, Clause
1 of the United States Constitution. It has long been settled
that state legislators are also entitled to absolute legislative
immunity from suit under S 1983 for legitimate legislative
activities taken in their legislative capacities. See Tenney v.
Brandhove, 341 U.S. 367, 372-76 (1951); see also Bogan v.
Scott-Harris, 118 S. Ct. 966, 970 (1998). Though this
immunity is a creature of federal common law, it is derived
from the protection accorded the federal legislators. See
Tenney, 341 U.S. at 373-74. Indeed, the Supreme Court
has recognized that in civil cases, the scope of the common
law legislative immunity accorded state legislators is
coterminous with that of the immunity provided by the
Speech or Debate Clause. See Supreme Court of Virginia v.
Consumers Union of the United States, Inc., 446 U.S. 719,
732-33 (1980).

Recognition of state legislators' entitlement to legislative
immunity in S 1983 actions does not end the inquiry
because the immunity extends only to acts taken in their

                               16
legislative capacities. We must still determine whether the
Senators performing their role in impeachment proceedings
were acting in their legislative or, as Larsen argues, in their
judicial capacities. The Supreme Court has adopted a
functional approach to immunity issues so that "[w]hether
an act is legislative turns on the nature of the act," Bogan,
118 S. Ct. at 973, rather than the nature of the actor's
office or his or her intent. See, e.g., Consumers Union, 446
U.S. at 731 (affording legislative immunity to justices of
state supreme court when acting in their rulemaking
capacity). Therefore, to determine whether a particular
immunity is appropriate, we must look to the interests
behind it, see Owen, 445 U.S. at 638, remaining mindful
that "it is the interest in protecting the proper functioning
of the office, rather than the interest in protecting its
occupant, that is of primary importance." Kalina, 118 S. Ct.
at 507.

The Supreme Court had occasion to examine the extent
of legislative immunity when an organization that was the
subject of an investigation by a Senate Subcommittee
sought to enjoin enforcement of the Subcommittee's
subpoena directed to third parties. Eastland v. United
States Servicemen's Fund, 421 U.S. 491 (1975). The
Supreme Court framed the question to be resolved as
"[w]hether the actions of the [Senators] fall within the
`sphere of legitimate legislative activity.' " Id. at 501. The
Court began its analysis with a discussion of the purpose
of legislative immunity, which it explained is "to protect the
integrity of the legislative process by insuring the
independence of individual legislators." Id. at 502
(quotation omitted). It "prevent[s] intimidation of legislators
by the Executive and accountability before a possibly
hostile judiciary." Id. (quotation omitted). As such, it
reinforces the separation of powers that is fundamental to
the structure of both the federal and state governments.
See id.; Tenney, 341 U.S. at 372-75. It stated that
legislative independence is imperiled whenever the power of
the judiciary is brought to bear on the legislature. See
Eastland, 421 U.S. at 503.

An additional purpose of legislative immunity is to shield
the legislature from the delay and disruption that a lawsuit

                               17
can bring. "[A] private civil action, whether for an injunction
or damages, creates a distraction and forces [legislators] to
divert their time, energy, and attention from their legislative
tasks to defend the litigation." Id.

Consistent with these purposes, the Court has held that
"[a]bsolute legislative immunity attaches to all actions
taken `in the sphere of legitimate legislative activity.' "
Bogan, 118 S. Ct. at 972 (quoting Tenney, 341 U.S. at 376).
To determine whether a particular task is in the sphere of
legitimate legislative activity, "we look to see whether the
activities took place in a session of the House by one of its
members in relation to the business before it." Eastland,
421 U.S. at 503. More specifically, the inquiry is whether
the activities are

       `an integral part of the deliberative and communicative
       process by which Members participate in committee
       and House proceedings with respect to the
       consideration and passage or rejection of proposed
       legislation or with respect to other matters which the
       Constitution places within the jurisdiction of either
       House.'

Id. at 504 (quoting Gravel v. United States, 408 US. 606,
625 (1972) (emphasis added)). Most recently, the Supreme
Court reaffirmed that legislative immunity attaches to
actions taken " `in a field where legislators traditionally have
power to act.' " Bogan, 118 S. Ct. at 973 (quoting Tenney,
341 U.S. at 379 (applying principle to state legislators)).

Applying that criteria to legislative action in impeachment
and conviction of a federal judge, the Supreme Court noted
that the Constitution places impeachment within the sole
jurisdiction of Congress. See Nixon v. United States, 506
U.S. 224, 229 (1993). Impeachments take place in session
and are the official business before the legislature. It thus
unhesitatingly concluded that this is an area where
legislatures traditionally have the power to act.

In Nixon, the Court, after reviewing the history of the
impeachment clause, stated: "Judicial involvement in
impeachment proceedings, even if only for purposes of
judicial review, is counterintuitive because it would
eviscerate the `important constitutional check' placed on

                               18
the Judiciary by the Framers." Id. at 235. In The Federalist
No. 65, Alexander Hamilton advocated to the people of the
State of New York the wisdom in placing the power to try
impeachments in the Senate. The Federalist No. 65
(Alexander Hamilton). Though he referred to "the judicial
character of the Senate" when sitting for that purpose, he
emphasized that impeachments "are of a nature which may
with peculiar propriety be denominated POLITICAL." Id. at
439 (Jacob E. Cooke ed., 1961) (emphasis in original). He
conceived of the power of impeachment as "a bridle in the
hands of the legislative body" id. at 441, and offered two
compelling reasons why the courts, particularly the
Supreme Court, were an inappropriate repository for the
awesome power of impeachment. First, he argued:

       The necessity of a numerous court for the trial of
       impeachments is equally dictated by the nature of the
       proceeding. This can never be tied down by such strict
       rules, either in the delineation of the offence by the
       prosecutors, or in the construction of it by the Judges,
       . . . who are to pronounce the sentence of the law and
       the party who is to receive or suffer it. The awful
       discretion, which a court of impeachments must
       necessarily have, to doom to honor or to infamy the
       most confidential and the most distinguished
       characters of the community, forbids the commitment
       of the trust to a small number of persons.

Id. at 441-42.

Hamilton then strengthened his argument with the
following reasoning:

       The punishment, which may be the consequence of
       conviction upon impeachment, is not to terminate the
       chastisement of the offender. After having been
       sentenced to a perpetual ostracism from the esteem
       and confidence, and honors and emoluments of his
       country; he will still be liable to prosecution and
       punishment in the ordinary course of law. Would it be
       proper that the persons, who had disposed of his fame
       and his most valuable rights as a citizen in one trial,
       . . . for the same offence, be also the disposers of his
       life and his fortune? Would there not be the greatest

                               19
       reason to apprehend, that error in the first sentence
       would be the parent of error in the second sentence?
       That the strong bias of one decision would be apt to
       overrule the influence of any new lights, which might
       be brought to vary the complexion of another decision?
       Those, who know any thing of human nature, will not
       hesitate to answer these questions in the affirmative;
       and will be at no loss to perceive, that by making the
       same persons Judges in both cases, those who might
       happen to be the objects of prosecution would in a
       great measure be deprived of the double security,
       intended them by a double trial.

Id. at 442.

These arguments confirm that the placement in the
Senate of the power to try impeachments was not by
accident or chance. See id. at 440 (describing the Senate as
"the most fit depositary of this important trust"). Rather,
the power was consciously assigned to the Senate primarily
as a function of the separation of powers. As such, allowing
the courts to review the Senate's judgment following trial on
impeachment would negate the careful balancing designed
by the framers and approved by the ratifiers. Of course,
when the impeachment has been of a judge, the need is
most imperative for legislative independence from judicial
review and for protection from "accountability before a
possibly hostile judiciary." Eastland, 421 U.S. at 502.

Although a legislature that sits in impeachment
proceedings is not debating, drafting or voting on
legislation, "the sphere of legitimate legislative activity,"
Bogan, 118 S. Ct. at 972, for purposes of legislative
immunity, is not so limited. See, e.g., Tenney, 341 U.S. at
379 (state legislators accorded legislative immunity in suit
alleging that legislators sought to intimidate and or silence
a witness by holding hearing and by encouraging
prosecution of witness); Powell v. McCormack, 395 U.S.
486, 506 (1969) (members of Congress accorded legislative
immunity in suit challenging refusal by House to seat an
elected member); Kilbourn v. Thompson, 103 U.S. 168, 203-
04 (1880) (legislative immunity protected legislators from
suit challenging issuance of contempt order and arrest
warrant for failure to testify).

                               20
Given that impeachments are matters " `which the
Constitution places within the jurisdiction of either
House,' " Eastland, 421 U.S. at 504 (quoting Gravel v.
United States, 408 US. 606, 625 (1972)), and represent " `a
field where legislators traditionally have power to act,' "
Bogan, 118 S. Ct. at 973 (quoting Tenney, 341 U.S. at 379),
we are convinced that when legislators play the role they
have been given in impeachment proceedings, they act
within the sphere of legitimate legislative activity and within
their legislative capacities. Thus, the necessity for
independence requires that legislators be accorded
legislative immunity and "not be questioned in any other
place," U.S. Const. art. I, S 7, cl. 1, concerning their activity
and their decision.

Larsen, to support his argument that impeachment is not
legislative in nature, relies on the standards we developed
for determining whether certain acts performed at the local
level are legislative or administrative. See, e.g., Carver v.
Foerster, 102 F.3d 96, 100 (3d Cir. 1996) (citing cases). In
making that decision, we ask whether the act is
"substantively legislative" as involving policy-making or line
drawing and whether it is "procedurally legislative" as being
"passed by means of established legislative procedures." Id.
The line-drawing between administrative and legislative
acts at issue in these cases has no bearing under the
situation before us because neither party suggests that the
Senators were acting in an administrative capacity.
Moreover, because concerns for the separation of powers
are often at a minimum at the municipal level, we decline
to extend our analysis developed for municipalities to other
levels of government.

For the same reason, we are not persuaded that Brown
v. Griesenauer, 970 F.2d 431 (8th Cir. 1992), compels a
different result. There, the court held that the members of
a local board of aldermen that impeached the mayor were
entitled only to judicial rather than legislative immunity
because it characterized impeachment as essentially a
judicial act "that happens to have been done by legislators."
Id. at 437. As the preceding discussion makes clear,
impeachment is not something that just happened to be
assigned to the legislative branch, at least at the state and
federal levels.

                               21
We conclude, therefore, that the Senators were acting in
their legislative capacities while engaged in Larsen's
impeachment proceedings, and, accordingly, that they were
entitled to legislative immunity from claims for damages in
their individual capacities. This was the conclusion also
reached by the district court in its thoughtful principal
opinion. See Larsen I, 955 F. Supp. at 1563. In the
discussion of the Eleventh Amendment, the court noted
that Larsen had also requested declaratory and injunctive
relief against the Senators in their official capacities,
specifically the voiding of the Senate impeachment verdict
of guilty. The court held that Larsen's claims against the
Senate and other state entities, such as the Supreme
Court, were barred by the Eleventh Amendment, but that
Larsen's request to void the impeachment was one for
prospective reinstatement that was not precluded. See id.
at 1562.

The district court did not explicitly consider the
applicability of legislative immunity to Larsen's request for
prospective relief, see id., and it is unclear whether the
Senators had invoked that doctrine as to the claims
asserted against them in their official capacities. The
Senators sought reconsideration on that issue, asking the
court to reconsider its holding that absolute legislative
immunity does not preclude Larsen's claims against them
in their official capacities for prospective injunctive relief.
Without any discussion, the court declined to reconsider its
prior holding because it believed that its decision was in
accordance with prior Third Circuit discussions of this
issue, citing Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994)
(en banc). See Larsen II, 965 F. Supp. at 608-09.

We are aware that language in that opinion may have led
to some confusion on this issue. In Acierno, where we
considered the availability of legislative immunity to various
activities of members of the county council, there is dicta
with respect to the scope of legislative immunity that is
misleading and, regrettably, incorrect. We stated, inter alia,
that "the Supreme Court has never held that legislative
immunity applies to both claims for damages and injunctive
relief " citing Consumers Union, 446 U.S. at 731-34, and
stated further that this court and others have held"that

                               22
absolute immunity is a bar to damages only, and not to
prospective or injunctive relief," Schrob v. Catterson (Schrob
II), 967 F.2d 929 (3d Cir. 1992). See Acierno, 40 F.3d at 607
n.8.

Reexamination of the cited cases discloses that in fact the
Supreme Court in Consumers Union did resolve the issue of
the application of absolute legislative immunity to claims
for prospective relief and answered that question in the
affirmative. The Consumers Union case presented the
Supreme Court with a challenge to attorneys' fees imposed
on the Virginia Supreme Court and its Chief Justice by a
district court following its holding that the state Bar Code's
prohibition of lawyer advertising was unconstitutional. As
we noted supra, the Supreme Court held that in
promulgating disciplinary rules the Virginia Supreme Court
"acted in a legislative capacity." Id. at 731. In the
discussion of the consequence in terms of legislative
immunity, the Court referenced its earlier decision in
Tenney. Its discussion left no doubt of the scope of
legislative immunity. It said, "Although Tenney involved an
action for damages under S 1983, its holding is equally
applicable to S 1983 actions seeking declaratory or
injunctive relief. In holding that S 1983`does not create civil
liability' for acts . . . `in a field where legislators traditionally
have power to act,' we did not distinguish between actions
for damages and those for prospective relief." Id. at 732-33
(citation omitted). The Court therefore held both declaratory
relief and attorneys' fees were unavailable.

The issue the Court left unresolved in Consumers Union
did not concern legislative immunity but whether judicial
immunity would bar prospective relief. See Consumers
Union, 446 U.S. at 735 ("we have never held that judicial
immunity absolutely insulates judges from declaratory or
injunctive relief with respect to their judicial acts").
Similarly, the issue in Schrob II did not relate to absolute
legislative immunity, but instead was the applicability of
absolute prosecutorial immunity from common law tort
claims under the Federal Tort Claims Act. See Schrob II,
967 F.2d at 939.

The various immunities, legislative, judicial, prosecutorial
and official, have different purposes and characteristics.

                               23
Unfortunately, the dicta in Acierno did not accurately
distinguish between them, as the cases relied upon for the
proposition asserted concerned immunities other than
legislative.2 We are not obliged to perpetuate that error out
of blind adherence to a position articulated in a case where
the issue was not squarely before us. " `Wisdom too often
never comes, and so one ought not to reject it merely
because it comes late.' " Spencer v. Kemna , 118 S. Ct. 978,
990 (1998) (Ginsburg, J., concurring) (quoting Henslee v.
Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600
(1949) (Frankfurter, J., dissenting)).

It is likely that our error led the district court astray on
that issue in this case. In fact, as noted above, the
Supreme Court has unambiguously held that the legislative
immunity enjoyed by state, as well as federal, officials is
"applicable to S 1983 actions seeking declaratory and
injunctive relief." Consumers Union, 446 U.S. at 732; see
also Spallone v. United States, 493 U.S. 265, 278 (1990);
Eastland, 421 U.S. at 501-03 (applying legislative immunity
to United States Senators in action seeking only declaratory
and injunctive relief). These cases show that, at least in
appropriate cases, legislators are entitled to immunity from
claims for injunctive and/or declaratory relief. 3

Legislative immunity must be applied pragmatically, and
not by labels. Thus, without attempting to draw a line for
_________________________________________________________________

2. In two of the three cases that involved legislative immunity, the
courts
agreed that "[l]egislators' immunity is absolute and extends to injunctive
as well as damage suits." Resser v. Thompson , 930 F.2d 549, 551 (7th
Cir. 1991) (citing Tenney, 341 U.S. 367 (1951)). Accord Alia v. Michigan
Supreme Court, 906 F.2d 1100, 1102 (6th Cir. 1990). In the third case,
Executive 100 Inc. v. Martin County, 922 F.2d 1536, 1539-40 (11th Cir.
1991), the discussion was dictum as no prospective relief was sought
against the local legislators.

3. Larsen is mistaken in his citation of Parker v. Merlino, 646 F.2d 848
(3d Cir. 1981), as illustrating that legislative immunity is inapplicable
to
suits for prospective injunctive relief. Parker , discussed supra,
involved
a complaint by some New Jersey state Senators against others that they
had not been given the opportunity to debate the merits of tax bills. We
explicitly noted that the appellants did not raise on appeal the district
court's holding that the state legislators were immune only against
liability for money damages. See id. at 852 n.11.

                               24
all cases, we examine whether Larsen's request for
prospective relief from the Senators could be accorded
consistent with the policies underlying legislative immunity.
The extent to which a court could order relief must be
considered in that context. This is not a case where the
court, should Larsen be successful, need merely direct the
seating of a properly elected legislator, see Bond v. Floyd,
385 U.S. 116 (1966), nor a case where the legislative body
had previously agreed to a consent decree to build racially
desegregated housing, see Spallone, 493 U.S. at 270-73.
Larsen seeks reinstatement - nothing less than that the
individual Senators rescind their guilty vote on his
impeachment. It is difficult to imagine a remedy that would
more directly interfere with the role assigned exclusively to
the Senators by the Pennsylvania Constitution.

Larsen's challenges to the impeachment proceedings
include the Senate's use of a committee to hear evidence,
the absence of some committee members during
presentation of evidence, the inadequacy of thefinal report,
the format of the report, the inadequacy of the evidence, the
factors considered by the Senators in casting their votes,
and the alleged consideration by Senators of material
outside the record. Larsen candidly states that he"is
entitled to discovery on the activities and participation of
each senator in the proceedings and decisions." Appellees'
Br. at 48.

The extensive discovery Larsen seeks into the motives for
the Senators' votes, discussion among them, material each
considered and the myriad other matters that enter into
any legislator's vote would entail the paradigmatic
impermissible questioning of the Senators in another place
about their disposition of a matter we have already held lies
within the sphere of their legislative activities. See Tenney,
341 U.S. at 377 ("The privilege would be of little value if
[legislators] could be subjected to . . . the hazard of a
judgment against them based upon a jury's speculation as
to motives."). This would also cause the other injury that
underlies the need for legislative immunity by diverting
their time and attention away from legislative duties. Merely
to state the effect is to recognize why legislative immunity

                               25
must cover the prospective injunctive relief Larsen seeks
against the Senators.4

V.

Conclusion

Accordingly, we conclude that the Senators were entitled
to the protections of legislative immunity from suit for
Larsen's claims for prospective injunctive relief. Because
the immunity issue disposes of the entirety of Larsen's
allegations against the Senators, we need not address the
issue of whether Larsen possessed a constitutionally
protected property interest in his elected position. We will
remand the matter to the district court with instructions to
dismiss all of Larsen's claims against the Senators.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

4. As the prospective relief sought is of necessity against the Senators
in
their official capacities, we do not discourse on the differences between
immunity in their individual as distinguished from official capacities.

                               26
