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.
Rehearing Denied Dec. 14, 1979.
We decline to construe the jury‘s verdict as indicating that when Mann‘s assassination was plotted, the case in which he had testified was pending in the district court, contrary to the uncontradicted evidence that the case was on appeal. We will not “indulge assumptions of irrational jury behavior,” Schneble v. Florida, 405 U.S. 426, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), when a rational explanation for the jury‘s verdict, consistent with both the judge‘s instructions and the evidence, is availаble. United States v. Dunham Concrete Products, Inc., 501 F.2d 80 (5th Cir. 1974). Although the language of the charge is perhaps unfortunate, the jury of laymen could well have understood from the phrase “pending in this court” that the obstruction of justice offense required a finding that the Talapoosa Pipeline case remained active and carried with it the possibility that further district court proceedings would be necessary for its ultimate resolution and not that it was “pending” in the district court in some technical sense with which they were unfamiliar. So perсeived, the charge and the jury‘s verdict in response to it are supported by the evidence.
AFFIRMED.
Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, and KRAVITCH, Circuit Judges.**
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.
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 сlaim valid under
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 thе 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 plеaded; 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 а 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
Finally, it is asserted that thе 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
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 unfet-
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 robе, 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 authorities6 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 invitе 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 thesе, 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 еffectively 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 а 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 comparаtively 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. 1213, 18 L.Ed.2d 288 (1967), while holding “that judges are immune from liability for damages in suits under
So much, then, for policy, a matter entirely proper for our thorough explоration in view of the judge-made character of the doctrines under examination. We turn next to logical considerations, it being pressed upon us that a derivative immunity for judges’ coconspirators follows ineluctably from established concepts, concepts both of state action and of general conspiracy law. As an analytical tool, let us posit the hardest hypothetical case, that of only two conspirators, one a private party and the other a state judge whose judicial order injuring federally protected rights constitutes the sole state action and the only overt act taken or needed to consummate the scheme. Both the conspiracy, since it takes two to conspire, and the section 1983 case, since it requires state action, therefore turn on the judge‘s involvement. How, as a matter of reason, can either be found to exist, it is asked, when the judge is immune from suit for the damages wrought?
The objection founded in conspiracy law, we conclude, is sustained by neither reason nor authority. Long ago, in a case involving one alleged to have conspired with foreign diplomats immune even to criminal indictment, we reasoned and held:
The bill of Particulars furnished by the District Attorney admits that the Japanese persons named in the indictment were “the representatives, officers and agents of the Imperial Japanese Government.” The motion to quash, which was overrulеd on demurrer, states that one was a Commander in the Japanese navy, and the other registered in our Department of State as Assistant Naval Attache of the Japanese Government. We may assume it proven that they were such. It is thereupon argued that they have diplomatic immunity from prosecution, and could not be co-conspirators with Farnsworth so as to constitute a criminal conspiracy . . . If such persons in the United States join with a citizen of the United States in a conspiracy to commit a crime, though it be conceded that the foreign diplomat would not be indicted in the District Court, or even that he could not be, his immunity will not excuse the local citizen. At least two persons must join in an unlawful enterprise to constitute a conspiracy. The statute expressly so says. But both need not be prosecuted, or prosecutable. One may die, may escape, or obtain a pardon; but the other remains guilty. It may be that the offense of giving national defense information to a foreign government denounced by Section 32 could not well be committed by representatives of that government who receive it; but even so a person who cannot commit a substantive offense may guiltily conspire with another who can commit it that he do so. United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; United States v. Holte, 236 U.S. 140, 35 S.Ct. 271, 59 L.Ed. 504, L.R.A. 1915D, 281; O‘Leary v. United States, 7 Cir., 56 F.2d 515; Curtis v. United States, 10 Cir., 67 F.2d 943. The rule that the acquittal of all save one alleged conspirators results in the acquittal of all applies to acquittals on the merits. The reason of it is that such judgments рrove that there was in fact no criminal agreement among two or more persons. On the trial of a conspira-
Farnsworth v. Zerbst, 98 F.2d 541, 544 (5th Cir. 1938). Unable to improve upon this reasoning or upon the language expressing it, we reaffirm it. Logically, Judge Carrillo‘s immunity from the damages remedy did not in any manner effect his capacity to conspire, as might have, say, an established condition of insanity. On what is presently before us, he was as able to enter into an agreement, legal or illegal, as any other adult citizen. The same is true of our hypothetical judge whom, since he is our creature, we endow with normal capacities. The objection sought to be grounded in conspiracy law does not bear analysis.tor there is no technical rule that others must be concurrently or precedently convicted. Nor will personal defenses of the other conspirators not amounting to a total incapacity to commit crime be a defense to him.
Nor do logic or аuthority support the objection that, since the sole “state actor” is immune from a damage suit, state action is somehow absent. Indeed, the proposition is so wide of the mark that merely to state it is to reveal its want of logic. In assaying for state action, the question is not at all whether the agent of the state who acts is subject to any particular sanction. Rather, it is whether he has exercised the power of the state in the premises. Both Judge Carrillo and our hypothetical magistrate entered orders deriving their force from state sovereignty. These were state actions, and their character as such is not impeached in any way by the circumstance that their authors could not be mulcted in damages because of them.
The independence of the issue of state action from the pursuit of specific remedies against state officials is illustrated by Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In that case, the plaintiff, Sandra Adickes, brought suit against S. H. Kress & Co. to recover damages under
398 U.S. at 152, 90 S.Ct. at 1605-1606, quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966) (citation omitted). By the same reasoning, coconspirators act under color of law and can be sued for damages in a section 1983 action when they involve a judge in their plot, regardless of whether the judge can be brought to justice for his part in the scheme. It follows that the unavailability of damages as a remedy against either Judge Carrillo or our hypothetical judge has no effect on whether the judges’ actions were those of the state such that their coconspirators, too, acted under color of state law when they involved the judge in their conspiracy. The state action requirement for a section 1983 suit is met, judicial immunity notwithstanding.a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents . . . .”
Insofar as the judgment below dismissed the claims against Duval County Ranch Co., Inc. and Messrs. Manges, Dennis and Martens, it is reversed, and these claims are remanded for further proceedings. Insofar as it dismisses the claims for damages against Judge O. P. Carrillo, it must be affirmed.
AFFIRMED in part and in part REVERSED.
GEE
CIRCUIT JUDGE
Notes
Thus it was alleged that Martens and Dennis participated in the conspiracy, knowing its unlawful purpose as well as the roles of Manges and Carrillo, by performing a specific act to forward the conspiracy. Certainly, in the absence of any motion for more definite statement, this was adequate.MANGES, knowing that such a bond would be required, had previously arranged for Defendants MARTENS and DENNIS to participate in this conspiracy by signing as sureties on the injunction bond required by law. MARTENS and DENNIS, being aware of the unlawful purpose of the conspiracy and of the roles played by MANGES and CARRILLO therein, did in fact sign such injunction bonds as suretiеs thereto, which actions in concert with MANGES, CARRILLO, and DCRC, did aid such conspiracy and damage Plaintiffs as hereinafter alleged.
Does the doctrine of judicial immunity render a Complaint subject to dismissal for failure to state a claim upon which relief can be granted when the Complaint alleges a violation of civil rights under
42 U.S.C. § 1983 by a state judge and others acting in concert with him and contains specific, factual allegations of an extra-judicial agreement between the judge and his co-conspirators that the judge would abuse his judicial office for the pecuniary benefit of his co-conspirators and further contains specific allegations of thе subsequent abuse of judicial office in furtherance of the conspiracy.
The issue with which the Court en banc is concerned is that reflected in the holding that: Since Carrillo is immune, the remaining defendants, who are all private citizens, did not conspire with any person against whom a valid § 1983 claim can be stated. Thus, the district court also properly dismissed the § 1983 claims against the other defendants. 588 F.2d at 126 [headnote 2]. In other words, the Court wishes to reconsider the holding that Judge Carrillo‘s alleged co-conspirators—the private citizens—effectively share his immunity, since “they did not conspire with any person against whom a valid § 1983 claim can be stated.” See Stump v. Sparkman, 1978, 435 U.S. 349, 364 n.13, 98 S.Ct. 1099, 55 L.Ed.2d 331.