Dykes v. Hosemann

• Decision Date: 18 November 1985
• Docket Number: No. 83-3347,83-3347
• Citation: 776 F.2d 942
• Parties: Diana Christine DYKES, et al., Plaintiffs-Appellants, v. A.J. HOSEMANN, Jr., etc., Thomas A. Weinberg, etc., Roger Francis Dykes, Sr., etc., Roger Francis Dykes, Jr., etc., and Kenneth W. McIntosh, etc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 942

776 F.2d 942

54 USLW 2297

Diana Christine DYKES, et al., Plaintiffs-Appellants, v. A.J. HOSEMANN, Jr., etc., Thomas A. Weinberg, etc., Roger Francis Dykes, Sr., etc., Roger Francis Dykes Jr., etc., and Kenneth W. McIntosh etc., Defendants-Appellees.

No. 83-3347.

United States Court of Appeals Eleventh Circuit.

Nov. 18, 1985.

J. Calvin Jenkins, Jr., William K. Meyer, Francis B. Burch, Baltimore, Md., for plaintiff-appellant.

Douglas E. Whitney, Dist. Counsel, Dept. of H & R Serv., James A. Edwards, Orlando, Fla., Gerald B. Curington, Asst. Atty. Gen., Tallahassee, Fla., Brian R. Toung, Delia Doyle Rose, Daytona Beach, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON, and CLARK, Circuit Judges.

PER CURIAM:

We have taken this case en banc to examine the scope of judicial immunity in a suit for damages under 42 U.S.C. Sec. 1983 (1982). ¹ A panel of this court in Dykes v. Hosemann, 743 F.2d 1488 (11th Cir.1984), held that, where a judge performs a judicial act affecting the rights of a party over whom he knows the court has no personal jurisdiction, the judge may be liable to such party for money damages. We find this result both contrary to precedent and policy and reassert the common law doctrine that a judge enjoys absolute immunity where he or she had subject matter jurisdiction over the matter forming the basis for such liability.

I.

This case grew out of a domestic dispute. The judicial act in question is a juvenile court order declaring a child dependent and temporarily awarding custody of the child to the father.

Diana Dykes and Roger Francis "Buzzy" Dykes, Jr. began experiencing marital difficulties in 1977. In November of that year, Buzzy took their only child, Aaron, from their home in Pennsylvania to his parents' house in Florida. It is alleged that Buzzy and his father, Roger F. Dykes, a Brevard County, Florida Circuit Court judge, formulated a plan to obtain a colorable court order awarding custody of Aaron to Buzzy. Judge Dykes telephoned Judge Anthony Hosemann, Jr., a member of his court then assigned to the court's juvenile division ² for advice. Judge Hosemann counseled that Buzzy come before him with a "dependency" petition and referred Judge Dykes to the Florida Department of Health and Rehabilitative Services (HRS).

Buzzy and Judge Dykes went to an HRS office and requested assistance in filing a dependency petition but were informed by an agency official that Aaron did not qualify as a dependent child. ³ After persistent requests, the official called his supervisor who agreed to assist in the preparation of the petition as long as it was not officially sponsored by HRS. ⁴ The following day the petition was presented to Judge Hosemann, and he signed an order declaring Aaron to be a "dependent child" and temporarily awarding custody to Buzzy. ⁵ Diana, the mother, was never served with a summons and a copy of the petition, as required by statute. ⁶

Diana and her son ⁷ subsequently filed suit under 42 U.S.C. Secs. 1983, 1985 (1982) ⁸ alleging that Buzzy, Buzzy's father, Judge Hosemann, and Thomas Weinberg, the HRS supervisor who assisted in the preparation of the dependency petition, ⁹ conspired to deprive them of their constitutional rights. ¹⁰ We today focus only on the plaintiffs' claims made against Judge Hosemann and determine whether under the facts of the case he is immune from suit.

II.

Since the seventeenth century, common law has immunized judges from suit for judicial acts within the jurisdiction of the court. ¹¹ This doctrine of judicial immunity was embraced by the Supreme Court as early as 1872 when the Court noted that it was "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequence to himself." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872). ¹² More recently, the Court held that Congress, in enacting section 1983, did not intend to abolish the doctrine of judicial immunity in cases alleging state deprivation of federal constitutional rights. Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). In Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), the Court established a two-part test for determining whether a judge enjoys absolute immunity from money damages under section 1983. First, did the judge deal with the plaintiff in his judicial capacity? Id. at 362, 98 S.Ct. at 1107. If he did not, then judicial immunity does not lie. If he did act in such a capacity, then the focus is on whether the judge acted in the " 'clear absence of all jurisdiction.' " ¹³ Id. at 357, 98 S.Ct. at 1105 (quoting Bradley, 80 U.S. (13 Wall.) at 351). In this case, then, we must determine whether Judge Hosemann acted in his judicial capacity in finding dependency and awarding temporary custody of Aaron to Buzzy and, if so, whether he acted in the absence of all jurisdiction.

A.

In Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981), ¹⁴ the court focused on the following factors in determining that a judge's conduct constituted a judicial act:

(1) the precise act complained of ... is a normal judicial function; (2) the events involved occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity.

Id. at 858 (quoting McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972)). Clearly, Judge Hosemann's signing of the order finding Aaron to be a dependent child and awarding temporary custody of the child to Buzzy satisfies the indicia of a judicial act. Appellants, however, argue that Judge Hosemann's alleged agreement prior to the dependency proceedings to grant Buzzy custody of Aaron was a nonjudicial act. They rely on Rankin v. Howard, 633 F.2d 844, 847 (9th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981), in which the Ninth Circuit held that a judge's private, prior agreement to decide an issue in favor of one party was not a judicial act for purposes of judicial immunity. This circuit, however, has declined to follow Rankin. In Harper v. Merckle, 638 F.2d at 856 n. 9, we stated that "even a judge who is approached as a judge by a party [and conspires with such party] to violate [another party's federal constitutional rights] is properly immune from a damage suit" brought under section 1983. We relied on Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), where, in reference to the dismissal from a case of a judge alleged to have conspired with private parties, the Supreme Court noted that "[t]he courts below concluded that the judicial immunity doctrine required dismissal of the Sec. 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on the immunity grounds." Id. at 27, 101 S.Ct. at 186. In addition, in Scott v. Dixon, 720 F.2d 1542, 1546-47 (11th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984), affirming the dismissal of a claim against a court clerk, we held that judicial immunity would be assumed despite the appellants' assertion that the court clerk and another defendant conspired with one another or reached an understanding concerning a judicial act to be performed. It is therefore clear that this circuit has rejected the Rankin rationale and refuses to divest a judge of his absolute immunity from suit notwithstanding a prior agreement he may have made with a party to the controversy. Were we to follow Rankin, judges, on mere allegations of conspiracy or prior agreement, could be hauled into court and made to defend their judicial acts, the precise result judicial immunity was designed to avoid. We find this circuit's precedent, which avoids the possibility of such a result, to be a more accurate reflection of the scope and rationale of the doctrine as it has been fashioned by the Supreme Court. ¹⁵

B.

Appellants allege that Judge Hosemann acted in "the clear absence of all jurisdiction" because he lacked subject matter jurisdiction over the dependency proceeding and jurisdiction over their persons; therefore, he cannot claim immunity. Section 39.02(1) of the 1977 Florida Statutes provided that "[t]he circuit court shall have exclusive original jurisdiction of proceedings in which a child is alleged to be dependent." There is no question that Judge Hosemann was a circuit court judge and that the petition presented to him on November 22, 1977 alleged that Aaron was a "dependent" child. Thus it is clear that Judge Hosemann had subject matter jurisdiction over the case. That he may have incorrectly concluded that Aaron actually was dependent does not affect the fact that it was within his power to make that determination. See Stump v. Sparkman, 435 U.S. at 356-57, 98 S.Ct. at 1105.

Judge Hosemann, however, did lack personal jurisdiction over one of the parties to the dispute. He signed the order finding Aaron a dependent child and awarded custody to Buzzy even though no summons, accompanied by a copy of the petition, was ever directed to Diana as required by statute. ¹⁶ The issue we must resolve is whether a judge who acts within his or her subject matter jurisdiction before acquiring personal jurisdiction over a party to the suit can be made to answer in money damages.

In Stump v. Sparkman, the Supreme Court counseled that

the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived...