Rankin v. Howard, 78-3216

Decision Date05 December 1980
Docket NumberNo. 78-3216,78-3216
Citation633 F.2d 844
PartiesMarcus W. RANKIN, Plaintiff-Appellant, v. Wayne HOWARD and Jane Doe Howard, his wife; Joseph Alexander, Sr. and Esther Alexander, his wife et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Peter D. Baird, Lewis & Roca, Phoenix, Ariz., for plaintiff-appellant.

Albert R. Vermeire, Phoenix, Ariz., Gilmore F. Diekmann, Jr., Bronson, Bronson & McKinnon, San Francisco, Cal., on brief; Bruce E. Miller, Deputy Atty. Gen., Topeka, Kan., for defendants-appellees.

On Appeal from the United States District Court for the District of Arizona.

Before WRIGHT and FERGUSON, Circuit Judges, and BROWN, Senior District Judge. *

EUGENE A. WRIGHT, Circuit Judge:

The parents of 22 year old Marcus Rankin, a member of the Unification Church, sought to have him "deprogrammed." 1 They retained Howard, an Arizona lawyer, to institute a guardianship proceeding.

Howard filed a petition for guardianship with Judge Zeller, a nonlawyer probate judge in Pottawatomie County, Kansas. The petition falsely recited that Rankin was a resident of Pottawatomie County. Actually, he lived in Missouri.

On Christmas 1976, while Rankin was at home in Missouri, guardianship papers were issued ex parte by the Kansas judge. Young Rankin was then flown to Kansas in his father's plane for what he thought would be a social visit.

On arrival he was taken into custody and flown to Arizona. There he was confined to a motel room for "deprogramming," in which Trauscht, another lawyer, allegedly participated. He escaped after nine days.

Rankin sued his parents, 2 Judge Zeller, Howard, Trauscht, and others, alleging a conspiracy to deprive him of civil rights in violation of 42 U.S.C. §§ 1983, 1985, and 1986 and common-law torts.

He charged that the judge privately agreed with the others before the petition was filed to order the guardianship, knew that the jurisdictional allegations were fraudulent, and violated a jurisdictional requirement of the Kansas guardianship statute as well as the United States Constitution by failing to give the proposed ward notice or an opportunity to be heard. See K.S.A. §§ 59-3012 to -3013 (prior to 1977 amendments); In re Wellman, 3 Kan.App. 100, 45 P. 726, 727 (1896). 3

The district court granted summary judgment for Judge Zeller on all claims, finding him absolutely immune. Rankin v. Howard, 457 F.Supp. 70, 73 (D.Ariz.1978). The court granted partial summary judgment for Howard and Trauscht on the § 1983 claim. Id. at 74. 4

Rankin contends that, because Judge Zeller acted nonjudicially and in the clear absence of personal jurisdiction, he lost his judicial immunity. 5 Rankin also asserts error in the holding that the other defendants were insulated from § 1983 liability by derivative immunity.

We invited the parties to submit supplemental briefs on the threshold question whether this appeal was interlocutory in view of the fact that the plaintiff's claims under §§ 1985 and 1986 and under state tort law remain to be adjudicated. We now are satisfied that the district court made the required determination in entering final judgments pursuant to Federal Rule of Civil Procedure 54(b) and that it did not abuse its discretion in doing so. 6

I.

We consider first the contention that Judge Zeller lost his immunity by acting nonjudicially and in the clear absence of personal jurisdiction.

In Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 231 (1978), the Supreme Court declared that state judges are immune from § 1983 liability for "judicial" acts not taken "in the 'clear absence of all jurisdiction.' " Id. at 357, 98 S.Ct. at 1105 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872)). A state judge who ordered the sterilization of a minor at her mother's request was held immune because the order was a judicial act and no state law clearly excluded petitions for sterilization from the court's subject matter jurisdiction. 435 U.S. at 357, 360, 98 S.Ct. at 1105, 1106. 7

A. The Nonjudicial Agreement

The Stump Court identified two specific factors to be considered in determining whether an act is "judicial": "the nature of the act itself, i. e., whether it is a function normally performed by a judge, and ... the expectations of the parties, i. e., whether they dealt with the judge in his judicial capacity." 435 U.S. at 362, 98 S.Ct. at 1107. We also consider the underlying purpose of judicial immunity. Gregory v. Thompson, 500 F.2d 59, 63 (9th Cir. 1974). 8

Although a party conniving with a judge to predetermine the outcome of a judicial proceeding may deal with him in his "judicial capacity," the other party's expectation, i. e., judicial impartiality, is actively frustrated by the scheme. In any event, the agreement is not "a function normally performed by a judge." It is the antithesis of the "principled and fearless decision-making" that judicial immunity exists to protect. See Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967); Gregory v. Thompson, 500 F.2d at 63.

Rankin alleged that Judge Zeller agreed in advance with the others to rule favorably on the petition. We conclude that a judge's private, prior agreement to decide in favor of one party is not a judicial act. See also Lopez v. Vanderwater, 620 F.2d 1229, 1235-37 (7th Cir. 1980) (judge not immune for "prosecutorial" acts prior to biased decision). 9 If the alleged agreement manifests Judge Zeller's participation in a conspiracy, then proof of the agreement could form the basis of liability whether or not he is immune from liability for subsequent judicial acts.

B. The Clear Absence of Personal Jurisdiction

Although the Supreme Court acknowledged in Stump v. Sparkman that Judge Stump may have committed "grave procedural errors," 435 U.S. at 359, 98 S.Ct. at 1106, it did not explicitly consider whether he acted in the clear absence of personal jurisdiction or whether such action would be protected by judicial immunity. 10 The question appears to be one of first impression.

The district court here assumed that a court arguably having subject matter jurisdiction does not act in the "clear absence of all jurisdiction." When the Supreme Court first formulated the "clear absence" standard, however, it stated that the principle of immunity applied when there was "jurisdiction of both subject and person." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352 (1872), 20 L.Ed. 646. 11

An absence of personal jurisdiction may be said to destroy "all jurisdiction" because the requirements of subject matter and personal jurisdiction are conjunctional. 12 Both must be met before a court has authority to adjudicate the rights of parties to a dispute.

If a court lacks jurisdiction over a party, then it lacks "all jurisdiction" to adjudicate that party's rights, whether or not the subject matter is properly before it. See, e. g., Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978) ("(i)t has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant") (citations omitted); In re Wellman, 3 Kan.App. 100, 45 P. 726, 727 (1896) (ex parte guardianship proceeding would be a "flagrant violation" of due process, rendering any order null and void). 13

Because the limits of personal jurisdiction constrain judicial authority, acts taken in the absence of personal jurisdiction do not fall within the scope of legitimate decisionmaking that judicial immunity is designed to protect. See Gregory v. Thompson, 500 F.2d at 63. We conclude that a judge who acts in the clear and complete absence of personal jurisdiction loses his judicial immunity.

It is not sufficient that the court in fact lacked jurisdiction. Because jurisdictional issues are often difficult to resolve, judges are entitled to decide such issues without fear of reprisal should they exceed the precise limits of their authority. Stump v. Sparkman, 435 U.S. at 356, 98 S.Ct. at 1104. Judges of courts of general jurisdiction are not liable for judicial acts merely "in excess of their jurisdiction," even when the acts "are alleged to have been done maliciously or corruptly." Id. (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) at 347).

But when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost. See Bradley v. Fisher, 80 U.S. (13 Wall.) at 351 ("when the want of jurisdiction is known to the judge, no excuse is permissible"); Turner v. Raynes, 611 F.2d 92, 95 (5th Cir. 1980) (Stump is consistent with the view that "a clearly inordinate exercise of unconferred jurisdiction by a judge-one so crass as to establish that he embarked on it either knowingly or recklessly-subjects him to personal liability"). 14

If, as alleged, Judge Zeller knew the jurisdictional allegations to be fraudulent, or if valid Kansas statutes expressly foreclosed personal jurisdiction over a proposed ward in ex parte proceedings for temporary guardianship, then the judge acted in the clear and complete absence of personal jurisdiction. If his acts were part of a conspiracy, he is properly held responsible for the consequences.

C. The Need for Further Inquiry

Rankin's allegations, which draw some support from affidavits and answers to interrogatories assembled during discovery proceedings, raise material issues of fact that were not fully considered by the district court. Summary judgment was inappropriate. 15

Further discovery may resolve the issues, and trial is not necessarily required. But the district court must consider the possibility that Judge Zeller lost his immunity by participating in a conspiracy to violate Rankin's civil rights through a nonjudicial agreement or a judicial act in the...

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