Beard v. Udall
| Decision Date | 26 June 1981 |
| Docket Number | No. 79-3023,79-3023 |
| Citation | 648 F.2d 1264 |
| Parties | Robert G. BEARD, Plaintiff-Appellant, v. Stephen G. UDALL, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William F. Behrens, Phoenix, Ariz, for plaintiff-appellant.
T. Gale Dake, Johnson, Tucker, Jessen & Dake, Phoenix, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before FARRIS, PREGERSON, and NELSON, Circuit Judges.
Beard appeals from the district court's summary judgment against him in a civil rights suit brought under 42 U.S.C. § 1983. We affirm in part, reverse in part, and remand.
On February 26, 1974 a divorce decree was entered in Maricopa County terminating the marriage of Roger and Stephanie Beard. As part of the decree, Roger Beard (Beard) was awarded custody of his two minor sons. Stephanie Beard subsequently moved to Apache County, where she married Bill Crabtree and began working as a secretary for the County Attorney, Stephen Udall (Udall).
On July 8, 1977 Beard brought his two sons from his home in Maricopa County to visit their mother (Crabtree) in Apache County. While the boys were with their mother, Udall, representing Crabtree in his private capacity, petitioned Judge Greer of the Apache County Court to modify the original divorce decree and award custody of the children to Crabtree. Judge Greer set a hearing on an order to show cause (OSC) and entered a temporary restraining order (TRO) prohibiting Beard from removing the children from Apache County. The hearing was set for July 29, the day the TRO was due to expire.
Beard filed a motion to dismiss on the ground that the Apache County Court did not have jurisdiction, a motion for an immediate termination of the TRO, and a motion for a change of venue. Judge Greer was apparently hearing another case on July 29 and, therefore, could not hold a hearing on the Beard matter until August 1. On August 1, Judge Greer heard arguments relating to Beard's motions and delayed the hearing on the OSC. Judge Greer's minute entry of August 1 made no mention of an extension of the TRO.
Beard returned to Apache County with his present wife and her sister on August 10 to pick up his sons. Apparently without informing anyone, Beard took the children from the house where they were staying, placed them in his car, and drove back to his home in Maricopa County.
When it was discovered that the children were no longer in the county, a complaint was sworn out and signed by Deputy Sheriff Gilchrist charging Beard and his companions with various felonies and misdemeanors, including kidnapping. 1 Warrants were issued for the arrest of Beard and his companions by a justice of the peace, and bond was set at $60,000.
Sheriff Lee of Apache County sent a telex to the Maricopa County sheriff's office regarding the arrest warrants. A Maricopa County police officer was sent to Beard's home and arrested Beard as he returned with his children from Apache County. Beard presented the custody decree to the officer in an attempt to convince the officer the charges were unjustified. The officer was informed by his headquarters that he should nevertheless arrest Beard because the Maricopa County police had contacted Udall who had advised them that the arrest warrants were valid.
Beard's attorney then contacted Judge McDonald of the Maricopa County Court. In his affidavit, Judge McDonald states that his suspicions were sufficiently aroused by the circumstances surrounding the arrests, specifically the apparent conflict of interest facing Udall, that he proceeded to investigate the matter. Judge McDonald telephoned Udall, who stated that he was both Crabtree's private attorney and the County Attorney. Udall further stated that he had caused the charges to be brought against Beard. He justified the kidnapping charge on the ground that there was a valid TRO in effect which prohibited Beard from removing the children from the county. Udall allegedly also sought to mislead Judge McDonald as to the whereabouts of Judge Greer.
Judge McDonald finally contacted Judge Greer at his home. According to Judge McDonald, Judge Greer seemed to know what had transpired that day. Judge Greer informed Judge McDonald that the TRO was in effect, that he wanted the children returned, and that Beard would have to answer to criminal charges that had been filed against him. On the basis of his conversations with Udall and Judge Greer, Judge McDonald ordered that the bond set for Beard and his companions be reduced and that they be released.
Five days after the criminal charges were brought, Judge Greer made a minute entry amending his minute entry of August 1. In the amended minute entry, he indicated that all Beard's motions, including the motion to terminate the TRO, were denied. Judge Greer further set a hearing date, for later in the month before a different judge, on the original custody modification petition.
Beard brought a special action proceeding before the Arizona Court of Appeals, appealing the denial of his motion to have the custody modification proceeding in Apache County dismissed for lack of jurisdiction. The court of appeals held that Judge Greer did not have jurisdiction to entertain the custody modification petition because jurisdiction to modify a custody decree lies exclusively in the courts of the county that granted the decree. Beard v. Greer, 116 Ariz. 536, 570 P.2d 223 (Ct.App. 1977).
Udall turned the criminal charges over to the State Attorney General. On September 21, 1977 the Attorney General informed Udall that he would not prosecute the charges brought against Beard. Nevertheless, on October 17, Udall wrote to Beard's attorney that the Beard matter was in the hands of the Attorney General and thus Udall could not dismiss the charges.
Beard, his wife, and his wife's sister brought suit under 42 U.S.C. § 1983, alleging that Udall, Judge Greer, and Sheriff Lee were responsible for the instigation, prosecution, and continuation of proceedings against Beard and his companions and that these wrongful acts caused them to be deprived of their federally protected rights. Plaintiffs sought compensatory damages, punitive damages, and attorney's fees from all three defendants. The district court awarded summary judgment to the defendants on the ground that they enjoyed immunity for their alleged official misconduct. Beard appeals from the district court decision. 2
This court recently discussed the scope of the judicial immunity doctrine in cases brought under section 1983. See Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980), cert. denied, -- U.S. --, 101 S.Ct. 2020, 68 L.Ed.2d --, 49 U.S.L.W. 3806 (1981). Rankin brought a section 1983 action against his parents, a Kansas judge, and others who had participated in an attempt to "deprogram" him from the Unification Church. Rankin alleged that the judge, prior to the initiation of the actual proceeding, had agreed with the parents to grant a guardianship petition, despite the fact that the judge knew Rankin was not a Kansas resident. The district court granted summary judgment against Rankin on the ground that the judge enjoyed judicial immunity for his acts.
This court, relying on the Supreme Court's decision in Stump v. Sparkman, 435 U.S. 439, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), 3 held that a judge does not enjoy judicial immunity if the judge's actions were either non-judicial or taken in clear absence of all jurisdiction. Rankin, 633 F.2d at 850. See also Lopez v. Vanderwater, 620 F.2d 1229, 1233 (7th Cir.), cert. dismissed, -- U.S. --, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980). We then held that if Rankin's allegations were true, the judge would not enjoy judicial immunity because: (1) by imposing a temporary guardianship over a non-resident, the judge acted in the clear absence of jurisdiction; and (2) by agreeing in advance to grant the petition, he acted non-judicially. Rankin, supra. We therefore reversed the district court's summary judgment and remanded for further consideration. Id.
In the instant case Beard's complaint can be construed to allege four wrongful acts by Judge Greer: (1) that Judge Greer acted in the clear absence of jurisdiction when he considered the custody modification proceeding and entered the TRO; (2) that Judge Greer acted in the absence of jurisdiction by failing to follow the procedures established by the applicable Arizona statutes and regulations 4; (3) that Judge Greer conspired with Udall to enter the TRO; and (4) that Judge Greer conspired with Udall and Sheriff Lee to jail Beard. The first two alleged wrongs raise the question whether Judge Greer acted in the clear absence of jurisdiction, and the last two require a determination whether Judge Greer acted non-judicially.
Beard contends that the decision of the Arizona Court of Appeals indicates that Judge Greer acted in the absence of jurisdiction and thus does not enjoy immunity for his actions in the instant case. Although the Arizona Court of Appeals ultimately concluded that Judge Greer's construction of the statute was incorrect, the appeals court recognized that Judge Greer's construction of the statute, recently enacted, seemed plausible at first glance. Beard v. Greer, 116 Ariz. 536, 538, 570 P.2d 223, 225 (Ct.App. 1977). The Arizona Court of Appeals's decision was the first to interpret the new statute. The appeals court held that despite recent changes in the language, the Arizona legislature did not intend to change existing law to permit a court that had not entered the divorce decree to entertain a custody modification petition. Id. at 539, 570 P.2d at 226. Based on this record, we are unable to say that Judge Greer acted in clear absence of all jurisdiction.
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