Harper v. Merckle

Decision Date05 March 1981
Docket NumberNo. 79-2335,79-2335
Citation638 F.2d 848
PartiesJack R. HARPER, Plaintiff-Appellant, v. Arden Mays MERCKLE, Defendant-Appellee. . Unit B
CourtU.S. Court of Appeals — Fifth Circuit

Ted R. Manry, III, Charlie Luckie, Jr., Tampa, Fla., for plaintiff-appellant.

Barry A. Cohen, Richard G. Pippinger, John R. Parkhill, Tampa, Fla., for defendant-appellee.

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

Before HILL, KRAVITCH and HATCHETT, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Plaintiff Jack R. Harper instituted this civil rights action against Judge Arden Mays Merckle, who was at the time of the alleged violations, a county judge in Hillsborough County, Florida. The case raises vexing problems concerning the scope of judicial immunity from suit under 42 U.S.C. § 1983 (1976). Holding that defendant is not entitled to assert absolute judicial immunity under the unusual facts of this case, and finding errors of law in the special interrogatories that the district court submitted to the jury, we reverse the judgment and remand the case for new trial.

I. Facts and Procedural History
A. Background

In 1970, plaintiff Jack R. Harper and Patricia F. Harper were divorced by order of the Circuit Court of the Tenth Judicial Circuit, Polk County, Florida. Effective July 2, 1974, that court officially closed its file in the divorce case and ordered plaintiff to tender future support payments directly to his former wife. Plaintiff, who had remarried and who resided in Boca Grande, Florida, travelled to Tampa on August 16, 1974 with his second wife to attend to various family matters. On that day, plaintiff went to the Hillsborough County Courthouse to leave a support payment check with his former wife, Patricia, a secretary employed by Judge Harry Coe of the Florida Circuit Court. Finding both doors to Judge Coe's chambers closed, plaintiff Harper entered an adjacent office where Barbara Bryant, secretary to defendant Judge Merckle, was seated behind a desk. Harper asked Miss Bryant whether she knew Mrs. Harper and where Mrs. Harper could be found. Miss Bryant responded that although Mrs. Harper had left work it might be possible to locate her. After Miss Bryant made several unsuccessful attempts to reach Mrs. Harper by phone, plaintiff explained the purpose of his visit, namely, to make a child support payment to his former wife. Knowing that she would see Mrs. Harper in the course of the weekend, Miss Bryant offered to deliver a check to Mrs. Harper on plaintiff's behalf. Although plaintiff was not certain exactly how much he owed his former wife, he approximated, wrote a check for $210.00, and gave it to Miss Bryant.

During most of this conversation Judge Merckle sat in his office. But during Harper's explanation of his debt, defendant wearing street clothes, not judicial attire entered the room, told Miss Bryant to retrieve the "Harper v. Harper" file from the Clerk's office, and as she left sat down in the seat his secretary had occupied. In sending for the file, Judge Merckle was attempting to verify what he later recognized was a mistaken impression ostensibly gleaned through courthouse gossip or his casual acquaintance with plaintiff's former wife that the file contained an outstanding contempt violation against plaintiff. 1

Judge Merckle then engaged plaintiff in small talk, which lasted until Miss Bryant called to say she could not locate the file. Judge Merckle told Miss Bryant to return to the office, ended the phone conversation, and turned his attention to the check Harper had written for child support. As he examined it, Judge Merckle asked Harper where he lived. Plaintiff directed the judge's attention to the address on the check and said he lived in Boca Grande, Florida. When defendant observed that the "address" on the check indicated only a post office box number, plaintiff explained that there are no street addresses or numbers in Boca Grande and that mail there is delivered only to a post office. Judge Merckle then asked Harper exactly where he lived; plaintiff was responsive, giving the name of his apartment complex, the number of his apartment, and a business card that contained address information identical to that on the check. Then, in what can be characterized fairly as a most unusual request, Judge Merckle, still seated behind his secretary's desk, told plaintiff to raise his right hand to be sworn in.

The subsequent occurrences are the subject of some factual dispute. Harper testified that he promptly walked out of the office into the hall passing Miss Bryant, who was returning from the Clerk's office. Judge Merckle, again according to plaintiff's testimony, pursued him into the hall, told Miss Bryant to locate a deputy, and attempted to grab hold of plaintiff. Harper told the judge, "Don't you dare touch me," and Judge Merckle did not. As defendant and his secretary looked for a deputy, Harper exited the building and attempted to find the nearby law office of a friend.

The defendant's testimony paints Harper as far more belligerent. Judge Merckle claimed that after he told Harper to raise his hand, Harper responded, " 'No mother fucker is going to swear me in,' " 2 and bolted from the office.

A chase scene ensued. Harper, whether he walked or ran from the courthouse, soon found he was being pursued by court bailiffs. He ducked into an office building in search of his attorney friend and proceeded to the second floor, only to be informed that his friend had relocated his office two weeks earlier. Harper then headed for the back stairs of the building, where he was trapped by the bailiffs. Plaintiff was then escorted to the front of the building by the bailiffs where he called out to bystanders, "Please, please, remember what's gong on." There, Harper testified, he was thrown against a fence and frisked in full view of the public. 3 The bailiffs then took Harper to Judge Merckle's office, where 10 or 15 people besides Judge Merckle and a court reporter awaited his arrival.

B. The Hearing

At this point, in chambers, Judge Merckle began a "contempt proceeding" of sorts. The record of that "hearing," in which defendant acted as complaining witness, prosecutor, factfinder, and judge, follows in its entirety.

In re: No. 10747

Jack Harper Contempt of Court: Div. "A"

THE COURT: Let's go on the record. I would like to cite the facts.

MR. HARPER: I haven't been informed of my rights and I want an attorney. That's all I want.

THE COURT: Mr. Harper, just remain quiet just for a few minutes, please, sir.

All right, this is Friday, August 16, 1974. Mr. Harper came in my Chambers approximately, I'd say, three o'clock in the afternoon looking for Mrs. Pattie Harper or Judge Coe.

The purpose of coming in trying to find these two individuals was for Mr. Harper to pay some back child support I gather that he owed Mrs. Harper.

I tried to find Mr. Peaveyhouse, Mrs. Harper's attorney, to no avail. I also tried to check out the court file to assist Mr. Harper to find out what the delinquent child support was. Could not find the court file.

Because of not being able to find this, I told Mr. Harper the best thing to do would be just go ahead and leave the check, if he wanted to.

I did not know if this was the correct amount or not, but this is his own choosing and he wrote out the check and left a check for $210 made payable to Mrs. Pattie Harper, dated August 16.

I also asked Mr. Harper what his address was in Boca Grande, as I understood that there are various summons outstanding, trying to get him served for his contempt proceedings in the Circuit Court for failure to pay child support.

MR. HARPER: Which Circuit Court?

THE COURT: Just a minute, Mr. Harper, please, sir.

MR. HARPER: I haven't received anything from any court other than I was supposed to make my payments.

THE COURT: Mr. Harper, just remain quiet.

MR. HARPER: From Polk County directly to Pattie Harper.

THE BAILIFF: Do you understand what the Judge is saying?

THE COURT: Mr. Harper, please remain quiet.

MR. HARPER: I can't say anything?

THE COURT: In a few minutes.

I asked Mr. Harper his address and I thought it might be better to put him under oath to find out where he did reside, so justice could be done.

He stated to me he wasn't about to be sworn, he wasn't there to tell me anything.

MR. HARPER: I didn't say that anything

THE COURT: And if anyone proceeded to hurt him or try to take him into custody, which I told him I might have to do, he said that they are going to have to do it in force. And he got up MR. HARPER: I did not say any force, either.

THE BAILIFF: Mr. Harper, please be quiet.

THE COURT: He got up and proceeded out. I told him to remain seated. He said he wasn't about to.

I sent my secretary for the Sheriff's Deputies and, as I understand it, from then on, that they had to give chase and in approximately fifteen or twenty minutes he has been brought back into my office.

MR. HARPER: Would you tell him exactly how you chased me?

THE COURT: Just a minute, Mr. Harper.

The whole basis of this hearing is whether or not you are in contempt of this Court for not remaining where you were.

The Court at this time does hold you in contempt so anything you care to say Mr. Harper, before the Court imposes any sentence on you?

All right sir.

MR. HARPER: Well, I said I was sitting there. You said you wanted me to raise my hand. I said, "Why?" You said because you wanted to put me under oath. Exactly what you said. I said, "Why?" You said because you wanted to check my address.

You want to check my address, read my address. And then call Boca Grande. Boca Grande is only a city of two hundred, three hundred. You walk on the island, say, "Where is Jack Harper?" they are going to direct you to Jack Harper.

I am not trying to hide anything. I am in the real estate business...

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