Sparks v. Duval County Ranch Co., Inc.

• Decision Date: 22 October 1979
• Docket Number: No. 77-1249,77-1249
• Citation: 604 F.2d 976
• Parties: Sidney A. SPARKS, R. L. Lynd, d/b/a Sidney A. Sparks, Trustee, Plaintiffs-Appellants, v. DUVAL COUNTY RANCH COMPANY, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 976

604 F.2d 976

Sidney A. SPARKS, R. L. Lynd, d/b/a Sidney A. Sparks, Trustee, Plaintiffs-Appellants, v. DUVAL COUNTY RANCH COMPANY, INC., et al., Defendants-Appellees.

No. 77-1249.

United States Court of Appeals, Fifth Circuit.

Oct. 22, 1979.

Garland F. Smith, Weslaco, Tex., Patrick G. Rehmet, Alice, Tex., for plaintiffs-appellants.

Finley L. Edmonds, Corpus Christi, Tex., for Dennis.

Mark White, Atty. Gen. of Tex., Laura J. Martin, Austin, Tex., for Carrillo.

Clarence Martens, pro se.

Raul Garcia, Alice, Tex., for Manges and Duval County Ranch.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, and KRAVITCH, Circuit Judges. ^*

GEE, Circuit Judge:

We consider this case en banc to review the holding of our panel that private citizens, in conspiring with a state judge, did not conspire with any person against whom a claim valid under 42 U.S.C. § 1983 could be stated and thus themselves were entitled to dismissal of claims made against them under that statute. The panel, like the district court, acted under constraint of our prior opinions, opinions that it could not properly overrule. We can and do.

The material allegations in this case are set out in the panel opinion, 588 F.2d 124, 5 Cir., and we restate only those necessary to an understanding of our present holding. ¹ It is asserted that state judge O. P. Carrillo conspired with the four private defendants to deprive the plaintiffs of their oil production. This the judge did by entering an injunction, within his judicial powers to grant, prohibiting plaintiffs from producing certain oil. It is claimed that one of the defendants, Manges, bribed him to do this, while the other two, in knowing furtherance of the conspiracy, acted as sureties for the injunction bond. Carrillo was, of course, unqualifiedly immune from suit for the damages occasioned by his judicial act, and as to him the suit was correctly dismissed. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Under the authority of a line of cases, ² commencing in 1970 with Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970), the private defendants obtained dismissal of the complaint's claims against them as well. It is these cases, insofar as they extend a derivative immunity to private persons who conspire with judges, that we overrule today.

We are met at the outset by several technical arguments questioning the propriety of our addressing, and perhaps our power to address, the issue of derivative immunity that we decide today. It is said that the matter was not raised below and, if so, was not properly pleaded; was not raised in briefs to our panel; and was not taken en banc by us within the applicable time limits.

As for the district court pleadings, we have examined them and find the matter sufficiently raised and properly pleaded. Whatever immunity the private defendants derived from Judge Carrillo was a matter of defense for them to plead. It was not necessary that plaintiffs negative this or any other defense in their pleadings. The first amended complaint asserts the existence of a conspiracy in considerable detail; and while we agree that mere conclusory allegations of conspiracy cannot, absent reference to material facts, survive a motion to dismiss, Slotnick v. Staviskey, 560 F.2d 31 (1st Cir. 1977), we think the plaintiffs' pleadings sufficiently stated the facts on which they relied. ³ We have also examined the briefs to the panel. Appellants show the private party defendants as appellees and certify them as persons interested in the appeal's outcome. The briefs of the two appellees who filed, which were adopted by the other appellees, similarly certify the private party defendants as appellees. There is no question that all knew they were before the court. The issue as stated by appellants was certainly broad enough to cover immunity or want of it in the private parties. ⁴ And while we agree with appellees that the overwhelming emphasis in the arguments to the panel was on the immunity Vel non of Judge Carrillo, the brief of Mr. Dennis, the private appellee whose brief was adopted by all others, does assert, albeit perfunctorily, their own immunity deriving from that of Carrillo. Finally, when we took the case en banc on rehearing of the panel's opinion and judgment, there can be no doubt that the appeal remained pending before the court, and we directed all parties' attention to this aspect of the broad issue before us. ⁵

Finally, it is asserted that the court somehow lost jurisdiction to hear the cause en banc when no motions for rehearing were filed to the panel and the 21-day period specified for issuance of the mandate by Rule 41, Federal Rules of Appellate Procedure, passed. Even cast in its worst light, that the court lay under a duty imposed by the "shall" language of Rule 41 to issue mandate within that time span, we do not think a failure to perform that duty punctually would deprive the court of jurisdiction. The rule grants us power to shorten or enlarge the specified period by order. This we did by instructions to the clerk to withhold issuance of the mandate. There is no requirement in the rule that such an order be formal, written, or that the parties be given notice of it, though this might be desirable. And even had there been no order, our jurisdiction would not have been affected, though it may be that in a proper case we might have been subject to a peremptory writ. Finally, our power to recall and reform a mandate even after issuance is, though not specifically provided for in the rules, well established, and no motion is required for us to hear or rehear a cause en banc. Rule 35(a), Fed.R.App.P.

Since we find that the issue of the derivative immunity of private persons who conspire with a judge is properly before us, we turn now to the substance of that matter. We begin our inquiry with a recognition that the absolute immunity that judges enjoy exists for the benefit of the judicial system and of the public, not for that of the judge. Only a hero could exercise an unfettered judgment while facing, day after day and case after case, the prospect of personal ruin implicit in permitting every losing party to sue him for damages. There have never been enough heroes to go around, and a sound policy must deal with the prospect that some who occupy the bench may not be of that ilk.

In this imperfect world, however, where even the moon has a dark side, this manifestly necessary policy has the unfortunate effect of insulating not only the robe, but the person within it, from being called to account for actions that may be illegal, even corrupt, as is alleged here. This undesirable side effect of an otherwise valuable prescription can, as to the magistrate himself, be safely mitigated only slightly. All authorities ⁶ recognize that when a judge acts in a "clear absence of all jurisdiction" he is not protected. But any broader or less explicit inroad upon the robe's immunity in an attempt to reach its wearer would invite recurring attempts at enlargement, ruinous in terms of judicial time and funds expended to defend even successfully against them. Thus the rule of judicial immunity from damages, with its single, bright-line exception, is as broad as, but no broader than, is necessary.

Even so, the rule is a harsh one, laden with potential for unredressed wrong. As such, its scope should not be extended beyond that necessary to preserve the judge's independence of mind and judgment, for it is upon the manifest necessity to protect these, and on that alone, that the rule rests. When this is clearly seen, it becomes equally clear that no sound policy supports conferring any such immunity on private persons who persuade a judge to exercise his jurisdiction corruptly. Indeed, the thrust of wisdom is to the contrary. Sound policy suggests that attempts by such persons to subvert the judiciary should be penalized in every just way, civil as well as criminal. It suggests that the fullest redress that the judicial system can accommodate while functioning effectively should be granted for such odious wrongs. And it suggests that the actual incentive to corruption held out by the present doctrine, with its promise of civil immunity to those who succeed in involving a judge's powers in their nefarious schemes, should be removed.

To be sure, the extension of derivative immunity to private persons alleged to have conspired with a judge eliminates one problem. Every trial (or appeal) in state courts, civil or criminal, carries the potential for a conspiracy claim, one that the judge (or judges) and whatever other participants the pleader's fancy may light upon acted in knowing concert to deny federal rights protected by section 1983. Mischievous damage suits of this sort license the ill-disposed to require judges to appear and testify. But the benefit that derivative immunity would accord in protecting judges from an obligation to testify in the trial of their alleged coconspirators, while not wholly illusory, is comparatively insignificant. There already exist many situations in which a judge is amenable to legal process, and these have not proved ruinous to the functioning of the judicial system. For example, we have never held that judges are immune from claims for equitable relief, and both we and the Supreme Court have intimated the contrary. See Wood v. Strickland,420 U.S. 308, 315 n.6, 95 S.Ct. 992, 997 n.6, 43 L.Ed.2d 214 (1975) ("immunity from damages does not ordinarily bar equitable relief as well"); United Steelworkers of America, AFL-CIO v. Bishop, 598 F.2d 408, 413 (5th Cir. 1979) (leaving open possibility judge "may be the object of equitable relief in proper cases"); United States v. McLeod, 385 F.2d 734, 738 n.3 (5th Cir. 1967) (observing that Pierson v. Ray 386 U.S. 547, 87 S.Ct....