Sidney A. Sparks, R. L. Lynd, D/B/A Sidney A. Sparks, Trustee v. Duval County Ranch Company, Inc.

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 0. 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 di's-missed. 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 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 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. 1213, 18 L.Ed.2d 288 (1967), while holding “that judges are immune from liability for damages in suits under 42 U.S.C. § 1983 . . . does not . mean that they may not be enjoined from pursuing a course of unlawful conduct”). Npr, of course, does immunity exist for judges under the criminal law or from normal civil process where a judge happens to be a witness to an incident giving rise to a lawsuit. And habeas proceedings sometimes require the judge’s testimony. We therefore doubt that the cause of keeping state judges off our witness stands and in their courtrooms with respect to conspiracy trials is critical to the effective functioning of the judicial system. Moreover, any good conferred by the incremental degree to which the derivative immunity rule might protect state court judges from interruption of their courtroom duties by an obligation to testify seems greatly outweighed by the advantages gained by punishing those who subvert the judiciary, as discussed by us above.

So much, then, for policy, a matter entirely proper for our thorough exploration 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 overruled 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 it 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 prove that there was in fact no criminal agreement among two or more persons. On the trial of a conspirator 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.

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.

Nor do logic or authority 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 42 U.S.C. § 1983 for an alleged violation of her constitutional rights under the equal protection clause of the fourteenth amendment. One count of Ms. Adickes’ complaint alleged that while serving as a volunteer teacher at a Freedom School for black children in Hattiesburg, Mississippi, she went with six of her students to the Kress store to eat lunch. According to the complaint, after the group sat down at a booth a policeman entered the store and “ ‘observed [Ms. Adickes] in the company of the Negro students.’ ” 398 U.S. at 149, 90 S.Ct. at 1604. A waitress then took the orders of the Negro students but refused to serve Adickes because she was a white person “in the company of Negroes.” Id. Following this refusal of service, Adickes and her students allegedly left the Kress store, and when they reached the sidewalk, the policeman who had previously observed her inside the lunchroom arrested Adickes on what she asserted was a groundless charge of vagrancy. 398 U.S. at 149, 90 S.Ct. 1598. Adickes brought suit only against Kress, a private party, and not against the state or its officials, charging in this count that a Kress employee and a Hattiesburg policeman “reached an understanding to deny [her] service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.” 398 U.S. at 152,90 S.Ct. at 1605. The Court was plainly untroubled by the fact that “[t]he involvement of a state official in such a conspiracy plainly provid[ed] the state action essential . . .’’ Id. But in addition, the Court, discussing the elements of a section 1983 conspiracy between public officials and private persons, made clear that a party who was not an official of the state could be liable for damages under section 1983 by virtue of the fact that the private person himself acts under color of state law and fulfills the state action requirement of section 1983 actions so long as he is involved in a conspiracy with a state official. The Court declared that

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 . . .

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.

The doctrine of a derivative immunity for private persons who conspire with judges can thus be seen to lack foundation in either reason or authority. Accordingly, we abolish it and, to the extent that our cases cited at note 2 above espoused it, we overrule them. We recognize that in doing so we cast away a tool for discouraging possible mischievous lawsuits that, by intention or effect, harass judges for performing their offices. But this tool, like a hot flatiron, is too awkward for service as a cautery and works too much damage to surrounding structures for the small benefit it confers.

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.

1 . The allegations set out in the panel opinion and partially restated here are merely the unproven assertions of the complaint that must be taken as true in the posture of this case, the complaint having been dismissed for failure to state a claim upon which relief could be granted even if the allegations proved true.

2 . Slavin v. Curry, 574 F.2d 1256 (5th Cir.), modified on other grounds, 583 F.2d 779 (1978); Perez v. Borchers, 567 F.2d 285 (5th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 109, 58 L.Ed.2d 126 (1978); Humble v. Foreman, 563 F.2d 780

(5th Cir. 1977); Hill v. McClellan, 490 F.2d 859

(5th Cir. 1974); Guedry v. Ford, 431 F.2d 660

(5th Cir. 1970).

3 . Appellee Dennis, for example, complains that the pleadings as to him were insufficient. They were:

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 sureties thereto, which actions in concert with MANGES, CARRILLO, and DCRC, did aid such conspiracy and damage Plaintiffs as hereinafter alleged.

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.

4 . Appellants’ brief reads:

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 the subsequent abuse of judicial office in furtherance of the conspiracy.

5 . The letter of our clerk, Mr. Wadsworth, sent by our direction to counsel for all parties, reads in pertinent part:

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 a 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.

6 . These range from Bradley v. Fisher, 13 Wall. 335, 351-52, 20 L.Ed. 646, 651 (1872), to Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). An even earlier formulation of the doctrine in Randall v. Brigham, 7 Wall. 523, 536, 19 L.Ed. 285, 291 (1869), that judges “are not liable to civil action for their judicial acts, even when such acts are in excess of their jurisdiction, unless . . the acts, in excess of jurisdiction, are done maliciously or corruptly,” was pruned of qualifying language by Bradley.