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argued: June 1, 1989.


On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-4730.

Higginbotham, Greenberg and Hutchinson, Circuit Judges.

Author: Greenberg


GREENBERG, Circuit Judge.

This case is before the court on appeal by Charles E. Murray, Jr., a former bail commissioner of the Philadelphia Municipal Court, from a judgment of December 14, 1988, upholding his removal from office. The court, on its own motion, granted the judgment under Fed.R.Civ.P. 12(c) to the defendant and appellee, Alan K. Silberstein, president judge of the Philadelphia Municipal Court, individually, and on behalf of the Board of Judges of the Philadelphia Municipal Court. We will dismiss the appeal as moot.

In 1984 Pennsylvania adopted legislation, now codified as 42 Pa.Cons.Stat.Ann. § 1123(a) (Purdon Supp. 1989), creating the office of bail commissioner for the Philadelphia Municipal Court. Under the legislation, the president judge and a majority of the judges of the court are authorized to appoint six bail commissioners for four year terms. On November 16, 1984, the Philadelphia Municipal Court adopted rules governing the selection and appointment of the commissioners, establishing standards for their conduct and setting forth their rights, responsibilities and authority. Rule 7.03 prohibits bail commissioners from engaging in partisan political activity and rule 7.04 requires a bail commissioner to urge family members to adhere to the same standards of conduct that apply to him or her. Rule 7.03, however, as originally adopted, did not directly attempt to control partisan political activities of family members, though it was amended in 1988 to do so.

In February 1985, Joseph R. Glancey, then president judge of the Municipal Court, met with Murray and his wife, Bridget Murray, and indicated that he intended to nominate Murray as a bail commissioner. Murray was a Democratic ward leader but was aware of the restriction on political activity for bail commissioners and thus intended to resign his political post if appointed. While there is a dispute as to the length of the restriction to be imposed on her, there is no doubt that Glancey made the appointment contingent on Bridget Murray not replacing Murray as ward leader. According to Murray, the agreement only precluded his wife from directly succeeding him as ward leader but Silberstein, who has taken Glancey's place as president judge, asserts that the agreement was that Bridget Murray would not serve as ward leader during Murray's term as bail commissioner.

In any event, Murray was appointed a bail commissioner on February 19, 1985, for a four year term commencing February 22, 1985, and he did resign as ward leader. Murray's father was then selected to fill the vacancy as ward leader, a substitution not objectionable to the judges of the Municipal Court. About one year later, however, when his term as ward leader was expiring, Murray's father decided not to run again for the office. At that time Bridget Murray determined that she would run in his place even though, according to Murray, he asked her not to do so. She in fact ran and was elected on June 9, 1986.

Bridget Murray's election as ward leader did not go unnoticed. About one week later Glancey, the Municipal Court administrator and Silberstein, who by then was acting president judge, met with Murray. They advised Murray that they considered that Bridget Murray, by holding the office of ward leader, had violated the agreement negotiated with Glancey before Murray's appointment. Accordingly, they told Murray that unless she resigned, they would take steps to remove him as a bail commissioner. Bridget Murray, however, refused to resign even though Murray asserts that he asked her to do so.

On July 3, 1986, Silberstein sent Murray a letter reviewing his understanding of the history of Murray's appointment and the restrictions on Bridget Murray and stating "it is my intention to recommend to the Board of Judges your removal as a Bail Commissioner of this Court." Silberstein indicated, however, that Murray was entitled to be heard on the matter and consequently a hearing was set for July 17, 1986. The July 3, 1986, letter indicated that the hearing would be before the judges and that Murray could appear then with counsel and witnesses.

The hearing was held as scheduled and Glancey and Murray testified. Bridget Murray also was present and sought to testify but, after an offer of proof, the judges ruled that her testimony would be irrelevant and thus she was not permitted to testify. Following the hearing, the judges voted to remove Murray from office effective August 15, 1986. The removal was to be pursuant to rule 1.01 of the bail commissioner rules which provides for removal of a commissioner for misconduct.

On August 8, 1986, Murray brought this action. In his verified complaint he described the "nature of the proceeding" as an action "for injunctive and declaratory relief to restrain" Silberstein from removing him from office without affording him procedural due process or, in the alternative, on grounds violating his constitutionally protected rights. Jurisdiction was invoked under 28 U.S.C. §§ 1331 and 1343 to redress rights secured by 42 U.S.C. § 1983 and the Fourteenth Amendment. After setting forth the facts above described, Murray asserted that his procedural due process rights were violated when he was not given an opportunity to present testimony to refute the charges against him. He also claimed that his due process rights under the Fourteenth Amendment were violated because his wife's conduct was imputed to him. Furthermore, he charged that the removal violated "his constitutionally protected rights of freedom of association and family privacy" and was predicated on "a proscription which is unconstitutionally vague and overbroad." Significantly, Murray pleaded as follows:

Unless preliminary injunctive relief is ordered, as requested herein, Plaintiff will suffer irreparable injury including deprivation of wages for which monetary damages is not available, and deprivation of his constitutionally protected rights as set forth above.

Murray asked for preliminary and final injunctive relief restraining Silberstein from removing him from office. He also asked that a declaratory judgment be entered holding rule 7.04, dealing with the conduct of a bail commissioner's family members, unconstitutional as vague and overbroad. Finally he asked for counsel fees and "such other relief as the Court may deem appropriate." Understandably, in view of his contention that he would suffer irreparable ...

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