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      Diana Christine DYKES, et al., Plaintiffs-Appellants, v.
       A.J. HOSEMANN, Jr., etc., Thomas A. Weinberg, etc., Roger
         Francis Dykes, Sr., etc., Roger Francis Dykes, Jr., etc.,
             and Kenneth W. McIntosh, etc., Defendants-Appellees
                                  No. 83-3347
            UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
                                  776 F.2d 942
                               November 18, 1985
PRIOR HISTORY: Appeal from the United States District Court for the
Middle District of Florida.

COUNSEL: FOR APPELLANT: J. CALVIN JENKINS, JR., 100 South Charles
Street, Baltimore, MD 21201. FRANCIS B. BURCH -do- J. EDWARD DAVIS,
-do-.

   FOR APPELLEE: DOUGLAS E. WHITNEY, DISTRICT COUNSEL, Dept. of H
& R Serv., 400 West Robinson St., Suit 912, Orlando, FL 32801.
HAAS. BOEHM & BROWN, P.A. P. O. BOX 6511, Daytona Beach, FL 32022.
GERALD B. CURINGTON, AAG, Suite 1501 The Capitol, Tallahassee, FL
32301. BRIAN R. TOUNG, 457 S. Ridgewood Ave. Daytona Beach, FL
32022 DELIA DOYLE ROSE, -do-.

OPINION:   [*943]   Before GODBOLD, Chief Judge, RONNEY, TJOFLAT,
HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON,
and CLARK, Circuit Judges.

PER CURIAM:

   We have taken this case en banc to examine the scope of judicial
immunity in a suit for damages under 42 U.S.C. @ 1982 (1982). n1 A
panel of this court in Dykes v. Hosemann, 743 F.2d 1488 (11th Cir.
1984), held that, where a judge performs a judicial act affecting
the rights of a party over whom he knows the court has no personal
jurisdiction, the judge may be liable to such party for money
damages. We find this result both contrary to precedent and policy
and reassert the common law doctrine that a judge enjoys absolute
immunity where he or she had subject matter jurisdiction over the
matter forming the basis for such liability.

   n1 42 U.S.C. @ 1983 (1982) provides:

    @ 1983. Civil action for deprivation of rights

    Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia.                                                                      PAGE   24                                776 F.2d 942,
*943                         LEXSEE
                                      I.

   This case grew out of a domestic dispute. The judicial act in
question is a juvenile court order declaring a child dependent and
temporarily awarding custody of the child to the father.

   Diana Dykes and Roger Francis "Buzzy" Dykes, Jr. began
experiencing marital difficulties in 1977. In November of that
year, Buzzy took their only child, Aaron, from their home in
Pennsylvania to his parents' house in Florida. It is alleged that
Buzzy and his father, Roger F. Dykes, a Brevard County, Florida
Circuit Court judge, formulated a plan to obtain a colorable court
 [*944] order awarding custody of Aaron to Buzzy. Judge Dykes
telephoned Judge Anthony Hosemann, Jr., a member of his court then
assigned to the court's juvenile division n2 for advice. Judge
Hosemann counseled that Buzzy come before him with a "dependency"
petition and referred Judge Dykes to the Florida Department of
Health and Rehabilitative Services (HRS).

   n2 The Brevard Circuit Court is a multi-judge court of general
jurisdiction. For administrative purposes, the court is divided
into civil, criminal, and juvenile divisions.

   Buzzy and Judge Dykes went to an HRS office and requested
assistance in filing a dependency petition but were informed by an
agency official that Aaron did not qualify as a dependent child. n3
After persistent requests, the official called his supervisor who
agreed to assist in the preparation of the petition as long as it
was not officially sponsered by HRS. n4 The following day the
petition was presented to Judge Hosemann, and he signed an order
declaring Aaron to be a "dependent child" and temporarily awarding
custody to Buzzy. n5 Diana, the mother, was never served with a
summons and a copy of the petition, as required by statute. n6

   n3 Under Florida law then in effect, a "dependent child" was a
defined term:

    (8) "Dependent child" means a child who:

    (a) Has been abandoned by his parents or other custodians.

    For any reason, is destitute or homeless.

    Has not proper parental support, maintenance, care, or
guardianship.

    (d) Because of the neglect of his parents or other custodians,
is deprived of education as required by law, or of medical,
psychiatric, psychological, or other care necessary for his well-being.

    (e) Is living in a condition or environment such as to injurehim or endanger his welfare.

    (f) Is living in a home which, by reason of the neglect,
cruelty, depravity, or other person in whose care the child may be,
is an unfit place for him.

    (g) Is surrendered to the Department of Health and
Rehabilitative Services or a licensed child-placing agency for
purpose of adoption.

    PAGE   25                                776 F.2d 942, *944
                     LEXSEE

    (h) Has persistently run away from his parents or legal
guardian.

    (i) Being subject to compulsory school attendance, is
habitually truant from school.

    Fla.Stat. @ 39.01(8) (1977).

    In 1978, the Florida State Legislature revised Chapter 39, and
it became known as the Florida Juvenile Justice Act, with new
sections effective October 1, 1978.

   n4 Under Florida law a dependency petition could be filed by the
state attorney, an authorized agent of the division of youth
services, or "any other person who has knowledge of the facts
alleged or is informed of them and believes that they are true."
Fla.Stat. @ 39.05(2) (1977). In this case Buzzy filed the petition.

   n5 Implicit in the court's order was the notice that the court
would revisit the question of who should have custody of Aaron if
Diana or any other interested party demonstrated that a different
custodial arrangement would be more appropriate.

   n6 The statute provided:

    (2) Upon the filing of a petition containing allegations of
facts which, if true, would constitute the child therein named a
dependent child..., and upon the request of the petitioner, the
clerk or deputy clerk shall issue a summons.

    (3) The summons shall require the person on whom it is served
to appear for a hearing at a time and place specified. The time
shall not be less than 24 hours after service of the summons. If
the child is not detained by an order of the court, the summons
shall require the custodian to produce the child at the said time
and place. A copy of the petition shall be attached to the summons.

    (4) The summons shall be directed to, and shall be served upon,
the following persons:

    ....    (b) The parents; and

    (c) The legal custodians, actual custodians, and guardians ad
litem [of the chid], if there be any other than the parents.

    Fla.Stat. @ 39.06 (1977).

   Diana and her son n7 subsequently filed suit under 42 U.S.C. @@
1983, 1985 (1982) n8 alleging that Buzzy, Buzzy's father, Judge
Hosemann, and Thomas Weinberg, the HRS supervisor who assisted in
the preparation of the dependency petition, n9 conspired to deprive
them of their constitutional   [*945] rights. n10 We today focus
only on the plaintiffs' claims made against Judge Hosemann and
determine whether under the facts of the case he is immune from
suit.

    PAGE   26                                776 F.2d 942, *945
                     LEXSEE

   n7 Diana sued in behalf of her son, a minor, in a representative
capacity, as his "mother and next friend."

   n8 The district court dismissed the section 1985 claim for lack
of an allegation of class-based animus. Appellants have not
appealed this decision.

   n9 Also included as a defendant was Kenneth McIntosh, Buzzy's
lawyer.

   n10 The complaint alleged that the defendants had denied the
plaintiffs' procedural and substantive due process rights and their
right to equal protection of the law guaranteed them by the
fourteen amendment. On appeal, the plaintiffs abandoned their equal
protection and substantive due process claims. Dykes v. Hosemann,
743 F.2d 1488, 1493 n. 6 (11th Cir. 1985). Consequently, the only
constitutional claims before us concern the denial of procedural
due process.

                                      II.

   Since the seventeenth century, common law has immunized judges
from suit for judicial acts within the jurisdiction of the court.
n11 This doctrine of judicial immunity was embraced by the Supreme
Court as early as 1872 when the Court noted that it was "a general
principle of the highest importance to the proper administration of
justice that a judicial officer, exercising the authority vested in
him, [should] be free to act upon his own convictions, without
apprehension of personal consequence to himself." Bradley v.
Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L. Ed. 646 (1872). n12 More
recently, the Court held that Congress, in enacting section 1983,
did not intend to abolish the doctrine of judicial immunity in
cases alleging state deprivation of federal constitutional rights.
Pierson v. Ray, 386 U.S. 547, 554-55, 87 S. Ct. 1213, 1218, 18 L.
Ed. 2d 288 (1967). In Stump v. Sparkman, 435 U.S. 349, 98 S. Ct.1099, 55 L. Ed. 2d 331 (1978), the Court established a two-part
test for determining whether a judge enjoys absolute immunity from
money damages under section 1983. First, did the judge deal with
the plaintiff in his judicial capacity? Id. at 362, 98 S.Ct. at
1107. If he did not, then judicial immunity does not lie. If he did
act in such a capacity, then the focus is on whether the judge
acted in the "'clear absence of all jurisdiction.'" n13 Id. at 357,
98 S.Ct. at 1105 (quoting Bradley, 80 U.S. (13 Wall.) at 351). In
this case, then, we must determine whether Judge Hosemann acted in
his judicial capacity in finding dependency and awarding temporary
custody of Aaron to Buzzy and, if so, whether he acted in the
absence of all jurisdiction.

   n11 Lord Coke's opinion in Floyd v. Barker, 77 Eng. Rep. 1305
(Star Chamber 1607), ushered in the modern era of judicial immunity
by establishing the immunity of judges of courts of record, thereby
preserving the independence of those courts from review by the Star
Chamber, which was under control of the king. In that case, Lord
Coke enunicated for the first time what are now considered the
modern public policy reasons for the doctrine: (1) the need for
finality; (2) the need for maintaining public confidence in the
system of justice; and (3) the need for maintaining the
independence of the judicial system. Lord Coke refined the doctrine
in The Marshalsea, 77 Eng. Rep. 1027 (Star Chamber 1612), which
held that actions taken by a court lacking subject matter
jurisdiction were coram non judice - before a person who was not a
judge-see Bowser v. Collins, Y.B. Dered a judge liable for the
consequences of his judicial acts. Subsequent cases further refined
the doctrine of judicial immunity. See Peacock v. Bell, 85 Eng.
Rep. 84 (K.B.1667) (burden of pleading
                                          PAGE   27
                776 F.2d 942, *945                         LEXSEE

and proving lack of jurisdiction placed on plaintiff); Hamond v.
Howell, 86 Eng. Rep. 1035, 1037 (C.P.1677) (refusing to apply the
jurisdictional limit rule of The Marshalsea to a judge acting
"quatenus a judge"); Gwinne v. Poole, 125 Eng. Rep. 858 (C.P.1692)
(judge retains immunity unless he was aware of facts suggesting a
lack of jurisdiction). See generally Block, Stump v. Sparkman and
the History of Judicial Immunity, 1980 Duke L.J. 879.

   n12 Even prior to Bradley v. Fisher, the Court in Randall v.
Brigham, 74 U.S. (7 Wall.) 523, 537, 19 L. Ed. 285 (1869), stated
that judges are not liable "to private parties in civil actions for
their judicial acts, however injurious may be those acts, and
however much they may deserve condemnation, unless perhaps where
the acts are palpably in excess of the jurisdiction of the judges,
and are done maliciously or corruptly." In Bradley v. Fisher, the
Court reconsidered this statement and concluded that "the
qualifying words used were not necessary to a correct statement of
the law." 80 U.S. (13 Wall.) at 351.

   n13 Judicial immunity does not bar prospective injunctive relief
against a judicial officer acting in his judicial capacity. SeePulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565
(1984). Such relief, however, was not sought in this case.

                                      A.

   In Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454
U.S. 816, 102 S. Ct. 93,   [*946]   70 L. Ed. 2d 85 (1981), n14 the
court focused on the following factors in determining that a
judge's conduct constituted a judicial act:

        (1)  the precise act complained of ... is a normal judicial
function;         (2)  the events involved occurred in the judge's
chambers;         (3)  the controversy entered around a case then
pending before the         judge; and (4) the confrontation arose
directly and immediately         out of a visit  to the judge in
his official capacity.
Id. at 858 (quoting McAlester v. Brown, 469 F.2d 1280, 1282 (5th
Cir. 1972)). Clearly, Judge Hosemann's signing of the order finding
Aaron to be a dependent child and awarding temporary custody of the
child to Buzzy satisfies the indicia of a judicial act. Appellants,
however, argue that Judge Hosemann's alleged agreement prior to the
dependency proceedings to grant Buzzy custody of Aaron was a
nonjudicial act. They rely on on Rankin v. Howard, 633 F.2d 844,
847 (9th Cir. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 2020,
68 L. Ed. 2d 326 (1981), in which the Ninth circuit held that a
judge's private, prior agreement to decide an issue in favor of one
party was not a judicial act for purposes of judicial immunity.
This circuit, whoever, has declined to follow Rankin. In Harper v.
Merckle, 638 F.2d at 856 n. 9, we stated that "even a judge who is
approached as a judge by a party [and conspires with such party] to
violate [another party's federal constitutional rights] is properly
immune from a damage suit" brought under section 1983. We relied on
Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185
(1980), where, in reference to the dismissal from a case of a judge
alleged to have conspired with private parties, the Supreme Court
noted that "the courts below concluded that he judicial immunity
doctrine required dismissal of the @ 1983 action against the judge
who issued the challenged injunction, and as the case comes to us,
the judge has been properly dismissed from the suit on the immunity
grounds." Id. at 12, 101 S.Ct. at 186. In addition, in Scott v.
Dixon, 720 F.2d 1542, 1546-47 (11th Cir.
    PAGE   28                                776 F.2d 942, *946
                     LEXSEE

1983), cert. denied, 469 U.S. 832, 105 S. Ct. 122, 83 L. Ed. 2d 64
(1984), affirming the dismissal of a claim against a court clerk,
we held th that judicial immunity would be assumed despite the
appellants' assertion that the court clerk and another defendant
conspired with one another or reached an understanding concerning
a judicial act to be performed. It is therefore clear that this
circuit has rejected the Rankin rationale and refuses to divest a
judge of his absolute immunity from suit notwithstanding a prior
agreement he may have made with a party to the controversy. Were we
to follow Rankin, judges, on mere allegations of conspiracy or
prior agreement, could be hauled into court and made to defend
their judicial acts, the precise result judicial immunity was
designed to avoid. We find this circuit's precedent, which avoids
the possibility of such a result, to be a more accurate reflection
of the scope and rationale of the doctrine as it has been fashioned
by the Supreme Court. n15

   n14 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.
1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to October
1, 1981.

   n15 At least one other circuit has specifically rejected Rankin.
See Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985). The
Ninth Circuit itself appears to have retreated from the holding of
the case. See infra note 19.
                                      B.

   Appellants allege that Judge Hosemann acted in "the clear
absence of all jurisdiction" because he lacked subject matter
jurisdiction over the dependency proceeding and jurisdiction over
their persons; therefore, he cannot claim immunity. Section
39.02(1) of the 1977 Florida Statutes provided that "the circuit
court shall have exclusive original jurisdiction of proceedings in
which a child is alleged to be dependent." There is no question
that Judge Hosemann was a circuit court judge and that the petition
presented to him on November 29, 1977 alleged that Aaron was a
"dependent" child. Thus it is clear that Judge Hosemann   [*947]
had subject matter jurisdiction over the case. That he may have
incorrectly concluded that Aaron actually was dependent does not
affect the fact that determination. See Stump v. Sparkman, 435 U.S.
At 356-57, 98 S.Ct. at 1105.

   Judge Hosemann, however, did lack personal jurisdiction over one
of the parties to the dispute. He signed the order finding Aaron a
dependent child and awarded custody to Buzzy even though no summons
accompanied by a copy of the petition, was ever direct to Diana as
required by statute. n16 The issue we must resolve is whether a
judge whose acts within his or her subject matter jurisdiction
before acquiring personal jurisdiction over a party to the suit canbe made to answer in money damages.

   n16 See supra note 6 and accompanying text. Although the
appellants appear to have alleged that personal jurisdiction was
lacking as to both Diana and Aaron, it is clear that Aaron was
before the court. We draw this conclusion because Buzzy, who had
custody of Aaron and filed the petition as father and custodian of
the child, was before the court. The formal "service" of a summons
and petition on Buzzy would have been superflous.

   In Stump v. Sparkman, the Supreme Court counseled that

        the scope of the judge's jurisdiction must be construed
broadly
    PAGE   29                                776 F.2d 942, *947
                     LEXSEE

        where the issue is the immunity of the judge. A judge will
not         be deprived of immunity because the action he took was
in error, was         done maliciously, or was in excess of his
authority; rather, he will         be subject to liability only
when he has acted in the "clear         absence of all
jurisdiction."

435 U.S. at 356-57, 98 S.Ct. at 1105 (citing Bradley v. Fisher, 80
U.S. 13 (Wall.) at 351). Although the Court referred to
jurisdiction in general terms, the context of the statement
indicates that the Court was referring to a complete absence of
subject matter jurisdiction. The passage itself cited to a footnote
in which the Court presented an example of a lack of subject matter
jurisdiction. n17 More importantly, the language   [*948]   in
Bradley from which Stump quotes, more fully reads "clear absence of
all jurisdiction over the subject matter." Bradley v. Fisher, 80
U.S. (13 Wall.) at 351 (emphasis added).

   n17 This footnote reads:

    In Bradley, the Court illustrated the distinction between lack
of jurisdiction and excess of jurisdiction with the following
examples: if a probate judge, with jurisdiction over only wills and
estates, should try a criminal case, he would be acting in the
clear absence of jurisdiction and would not be immune from
liability for his action; on the other hand, if a judge of a
criminal court should convict a defendant of a nonexistent crime,
he would merely be acting in excess of his jurisdiction and would
be immune. Id., [80 U.S. (13 Wall.)], at 352.

    Three possible meanings may be gleaned from the "clear absence
of all jurisdiction" requirement; judicial immunity is lost only if
(1) both subject matter and personal jurisdiction are absent; (2)
if subject matter jurisdiction exists but personal jurisdiction is
lacking; or (3) if subject matter jurisdiction is lacking. The
first two possibilities seen foreclosed by the language in the
footnote. In stating that, if subject mater jurisdiction exists,
the judge is immune, the Court implies that the presence of
personal jurisdiction is irrelevant in determining whether immunity
exists. Therefore, the Court seems to adopt the third possibility
and requires the absence of subject matter jurisdiction to defeat
a claim of immunity.

    The Court in Stump emphasizes this point in its observation
that "[a] judge is absolutely immune form liability for his
judicial acts even if his exercise of authority is flawed by the
commission of grave procedural errors." 435 U.S. at 359, 98 S.Ct.
at 1106. Appellants in this case alleged a lack of personal
jurisdiction as a result of a procedural error, failure properly to
summon a necessary party before the court. This claim isdistinguishable from an allegation that the minimum contacts within
the territorial jurisdiction of the court as required by
International Shoe Co. v. Washington, 326, 326 U.S. 310, 66 S. Ct.
154, 90 L. Ed. 95 (1945), were absent. The error about which
appellants complain is purely procedural; but even grave procedural
errors will no operate to divest a judge of his immunity from suit.
The Ninth Circuit, in a case involving a similar procedural error,
refused to expose the judge to liability:

    [Judge] Martin's action in convicting O'Neil of contempt, an
offense within this court's jurisdiction, although without the
requisite papers to confer jurisdiction over this particular
commission of the offense, is more analogous to a criminal court
convicting for a nonexistent offense than to a probate court
hearing a criminal case. It is the sort of "grave procedural error"
that does
    PAGE   30                                776 F.2d 942, *948
                     LEXSEE

not pierce the cloak of immunity.

    O'Neil v. City of Lake Oswego, 642 F.2d 367, 369 (9th Cir.
1981); see also Williams v. Sepe, 487 F.2d 913 (5th Cir. 1973);
McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972); Robinson v.
McCorkle, 462 F.2d 111 (3d Cir.), cert. denied, 409 U.S. 1042, 93
S. Ct. 529, 34 L. Ed. 2d 492 (1972).

   Courts applying Stump v. Sparkman have interpreted the Court as
requiring a showing of an absence of subject matter jurisdiction to
defeat a judge's assertion of immunity. In Emory v. Peeler, 756
F.2d 1547, 1553 (11th Cir. 1985), the court, upon finding a
judicial act, proceeded to the second prong of Stump's test: "did
the judge's conduct fall clearly outside his subject matter
jurisdiction, the court considered the jurisdiction prong satisfied
and did not inquire into the existence of personal jurisdiction. In
Harper v. Merckle, 638 F.2d at 857-58, the court noted that Stump
cast aside considerable debris that tended only to burden analysis
and elucidated a cogent two-part test to determine the
applicability of judicial immunity: immunity extends to all
judicial acts "unless those acts fall clearly outside the judge's
subject matter jurisdiction." See King v. Love, 766 F.2d 962, 965
(6th Cir. 1985) ("A judge acts in the clear absence of all
jurisdiction if the matter upon which he acts is clearly outside of
the subject matter jurisdiction of the court over which he
presides."); Holloway v. Walker, 765 F.2d 517, 523 (5th Cir. 1985)
("Where a judge does not clearly lack of subject-matter
jurisdiction, he does not clearly lack all jurisdiction....")
(emphasis in the original); Adams v. McIlhany, 764 F.2d 294, 298
(5th Cir. 1985) ("Where a court has some subject-matter
jurisdiction, there is sufficient jurisdiction for immunity
purposes.") see also DiRuggiero v. Rodgers, 743 F.2d 1009, 1021 (3d
Cir. 1984); Smith v. Bacon, 699 F.2d 434, 436 (8th Cir. 1983);
White v. Bloom, 621 F.2d 276, 279 (8th Cir.), cert. denied, 449
U.S. 995, 101 S. Ct. 533, 66 L. Ed. 2d 292 (1980) and 449 U.S.
1089, 101 S.Ct. 882, 66 L.Ed.2d 816(1981). n18

   n18 The state of Florida similarly interprets this common law
doctrine. See, e.g., Herskowitz v. Nesbitt, 419 So. 2d 418, 419
(Fla.Dist.Ct.App. 1982) (per curiam) (noting that the judge had
subject matter jurisdiction in the case and therefore had immunity,
citing Stump); Rivello v. Cooper City, 322 So. 2d 602, 607
(Fla.Dist.Ct.App. 1975) ("In the case at bar, there was not a clear
absence of all jurisdiction over the subject matter which is
necessary before judicial immunity can be abrogated.") (citing
Bradley v. Fisher).

    Appellants cite Farish v. Smoot, 58 So. 2d 534 (Fla.1952), for
the proposition that a lack of personal jurisdiction over a party
divests a judge of his immunity from suit. In Farish, thedefendant, a West Palm beach municipal judge, had allegedly ordered
the arrest and imprisonment of the plaintiff notwithstanding the
plaintiff's release from prison on a habeas corpus writ issued by
the circuit court. In an action for false imprisonment the Supreme
Court of Florida affirmed entry of a judgment for the plaintiff,
holding that he defendant judge had neither subject matter nor
personal jurisdiction and was therefore not entitled to any
immunity for his actions. Id. at 537. Farish, however, does not
hold that absence of personal jurisdiction over a party alone
subjects a judge to liability, because the judge in that case acted
without subject matter jurisdiction as well. Indeed, the case is
cited by Florida courts for the rule that absence of subject matter
jurisdiction is required to divest a judge's immunity from suit.
See Rivello, 322 So.2d at 607.
    PAGE   31                                776 F.2d 942, *948
                     LEXSEE

   Appellants once again urge the court to adopt the approach
adopted by the Ninth Circuit in Rankin v. Howard, 633 F.2d 844 (9th
Cir. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 2020, 68 L. Ed.
2d 326 (1981). In Rankin, the court held that a judge loses his
judicial immunity, regardless of the existence of subject matter
jurisdiction, if he or she acts in absence of personal
jurisdiction. We view this decision as contrary to Supreme Court
and Eleventh Circuit precedent as well as an unwise restriction of
a time-tested doctrine. n19

   n19 The Second Ciruict in Green v. Maraio, 722 F.2d 1013 (1983),
ignored the rationale in Rankin and found a judge immune from suit
even where he acted in the absence of personal jurisdiction:

    Although it may be argued that once Green was sentenced the
trial judge no longer had personal jurisdiction over Green and the
case, Judge Ingrassia did possess subject matter jurisdiction. As
demonstrated in Bradley, and by the Supreme Court's approving
citation of Bradley in Stump, 435 U.S. at 357 n. 7, 98 S.Ct. at
1105 n. 7, it is apparent that a judge who possess subject matter
jurisdiction is not within the "clear absence of all jurisdiction"
posture which would deprive him of the use of the defense of
judicial immunity. Judge Ingrassia-assuming, of course, for
purposes of this appeal that all the allegations of the complaint
are true-was not bereft of all jurisdiction, although such acts
would be in excess of his jurisdiction. As explained in Bradley,
and its progency, a judge who acts in excess of his jurisdiction is
still entitled to rely on the defense of judicial immunity.

    Green v. Maraio, 722 F.2d at 1017 (footnotes omitted).

    Indeed, even subsequent Night Circuit cases have severely
limited the holding in Rankin, See O'Neil v. City of Lake Oswego,
642 F.2d 367 (9th Cir. 1981) (failure to comply with procedural
requirements of a statute conferring jurisdiction does not result
in a loss of immunity); see also supra note 15.

    Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981), involved facts
very similar to the present case. Following an Arizona divorce
decree under which the father was awarded custody of the children,
the mother moved to another county in the state and began working
for a lawyer. While the children were visiting the mother, the
lawyer petitioned a judge (in the county of the mother's residence)
to modify the original divorce decree and to award custody of the
children to the mother. The judge ordered the father to show cause
why such relief should not be granted and issued a temporary
restraining order preventing the father from removing the children
from the county. The father brought a section 1983 action against
the judge, in addition to others, and in particular alleged that
the judge acted in the clear absence of jurisdiction by failing tofollow certain procedural requirements, involving notice and
hearing, before issuing the order to show cause and the temporary
restraining order. Id. at 1267-68. The Ninth Circuit held that:

    The fact that a judge commits "grave procedural errors" is not
sufficient to deprive a judge of absolute immunity. Stump 435 U.S.
at 359, 98 S.Ct. at 1106. Thus, even if Beard's allegations that
Judge Greer failed to adhere to the procedural rules established by
the Arizona statutes are true, judicial immunity precludes Beard
from recovering for this alleged wrongful act.
    PAGE   32                                776 F.2d 942, *948
                     LEXSEE

    Id. at 1269.

    The present case is essentially identical to Beard. Diana did
not receive notice of a hearing prior to the entry of the November
22, 19877 dependency and temporary custody order, as required by
statute. Thus, even in the circuit in which Rakin is binding
precedent, Judge Hosemann would have immunity.

   [*949]   The Court in Bradley v. Fisher, identified five policy
reasons for judicial immunity: First, and foremost, a judge must be
free to act upon his own convictions, without apprehension of
personal consequences; second, the controversiality and importance
the competing interest i a case before a court make it likely that
the losing party may be overly willing to ascribe malevolent
motives to the judge; third, judges faced with the prospect of
defending damages actions and, perhaps, satisfying money judgments
would be driven to wasteful and destructive self-protection devices
and, moreover, may be less inclined to administer justice; fourth,
alternative remedies such as appeal and impeachment reduce the need
for private rights of action against judges; and fifth, the east of
alleging bad faith would make a qualified "good faith" immunity
virtually worthless because judges would constantly be forced to
defend their motivations in court. 80 U.S. (13 Wall.) at 347-54.
These factors are still important today. See Butz v. Economou, 438
U.S. 478, 508-09, 98 S. Ct. 2894, 2912, 57 L. Ed. 2d 895 (1978).

   Withdrawing judicial immunity where a judge has subject matter
but not personal jurisdiction over a party affected by his ruling
conflicts with all of these policies. Unlike questions of subject
matter jurisdiction, which generally require only statutory
interpretation, personal jurisdiction depends upon facts that a
judge is not likely to be able to verify first hand. A judge, for
example, would be particularly vulnerable in issuing ex parte
restraining orders, see, e.g., Fla.R.Civ.P. 1.610, where time
constraints often dictate that he rely on the representations of
the party before him in determining whether personal jurisdiction
has been or can be obtained over the absent party. Frequently, the
question of whether a nonresident can be reached by the court's
process cannot be decided until the litigation is well underway;
n20 sometimes [*950]   the decision is made in a collateral
proceeding, after judgment is entered, when, for example, the
judgment creditor seeks to levy on the nonresident party's assets.
In sum, to require a judge to defend a charge that he knowingly
entered an order adversely affecting a party over whom the court
had not acquired personal jurisdiction would be to ignore the still
valid policy considerations articulated by the Supreme Court in
Bradley v. Fisher. We accordingly uphold the district court's
ruling that Judge Hosemann need not appear and defend appellants'
claims against him.
   n20 For example, a party may be required to make himself
available for deposition, see Fla.R.Civ.P. 1.310, or be required to
answer interrogatories, see Fla.R.Civ.P. 1.340, or even be required
to produce or allow others to inspect certain documents in that
party's possession, see Fla.R.Civ.P. 1.350, all prior to an
evidentiary hearing to determine whether personal jurisdiction over
the party exists. Indeed, where the defendant declines to appear,
the court may enter a default judgment in favor of the plaintiff,
see Fla.R.Civ.P. 1.500, thus forcing the defendant to expend time
and money in collaterally attacking the judgment.

                                      III.
    PAGE   33                                776 F.2d 942, *950
                     LEXSEE

   Having disposed of the issue we concluded to be en banc-wrothy,
we remand this case to the panel that initially considered it for
such further consideration as the panel deems appropriate.

   AFFIRMED in part and REMANDED to the panel.

CONCURBY: TJOFLAT (In Part)

DISSENTBY: TJOFLAT (In Part); HATCHETT

DISSENT: TJOFLAT, Circuit Judge, concurring in part and dissenting
in part in which FAY and ANDERSON, Circuit Judges, join:

   I join in the majority's affirmance of the district judge's
dismissal of Judge Hosemann from the case because I find that, in
addition to being immune from a section 1983 suit, Parratt v.
Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981),
mandates that the suit against him be dismissed. I dissent,
however, form the majority's remand of the case as to the other
appellees because I also read Parratt as requiring that the claims
against the remaining appellees be dismissed, as well.

   I view this case as an ordinary abuse of process claim. Diana
complains that Buzzy, with the aid of the other appellees,
deliberately used a dependency proceeding for a purpose for which
it was not designed, i.e., to deprive her of her parental right to
the shared custody of her child and to deprive the child of the
benefit of such custody. Since Aaron was not a dependent child, n1
Buzzy could not properly invoke Florida's child dependency law to
obtain his custody. Buzzy's appropriate recourse under Florida law,
if he wanted to obtain sole custody of Aaron, was to sue Diana for
divorce and request the court to award him temporary (pending the
litigation) and permanent custody of the child. See Flat.Stat. @
61.13 (1977).

   n1 The child was obviously not dependent. See ante slip op. p.
783, n. 3.

   Florida law provides that the deliberate use of legal procedure,
whether criminal or civil, for a purpose for which it was not
designed constitutes a tort, abuse of process. See Bothmann v.
Harrington, 458 So. 2d 1163, 1169 (Fla.Dist.Ct.App. 1984) (an abuse
of process action exists when there is "use of the process for an
immediate purpose other than that for which it was designed")
(emphasis in original) (citing Restatement (Second) of Torts @ 682
comment 6 (1977) and W. Prosser, Handbook of the Law of Torts @ 121
(4th ed. 1971)); Gause v. First Bank of Marianna, 457 So. 2d 582,
584 (Flat.Dist.Ct.App.1984); Peckins v. Kaye, 443 So.2d 1025, 1026
(Fla.Dist.Ct.App.1983); McMurray v. U-Haul Co., 425 So. 2d 1208,
1209 n.1 (Fla.Dist.Ct.App.1983) ("In order to sustain an action forabuse of process two elements are essential, (1) the existence of
an ulterior motive; and (2) an act in the use of process other than
such as would be proper in the regular prosecution of the charge.")
(quoting Farmers Gin Co. v. Ward, 73 N.M. 405, 406, 389 P.2d 9, 11
(1964)). n2

   n2 See also Cline v. Flagler Sales Corp., 207 So. 2d 709, 711
(Fla.Dist.Ct.App.1968) (per curiam):

    In an action for abuse of process it is not essential to show
a termination of the proceeding in favor of the person against whom
the process was issued and used, or to show want of proable cause
or malice. The cause of action consists
    PAGE   34                                776 F.2d 942, *950
                     LEXSEE

of the willful or intentional misuse of process; a willful and
intentional misuse of it for some wrongful and unlawful object, or
ulterior purpose not intended by the law to effect.

   [*951]   If Diana's factual allegations are true, Buzzy and
those who conspired with him are liable to her, in her individual
and representative capacities, in money damages for the injuries
she and Aaron sustained. Diana has not sued them for abusing
Florida's dependency procedure, however. Rather, invoking section
1983 she seeks compensation for such injuries under the theory that
the State of Florida denied her and Aaron the due process of law
guaranteed them by the fourteenth amendment. n3 Her theory is
foreclosed by Parratt.

   n3 The fourteenth amendment due process clause provides that no
state may "deprive any person of life, liberty, or property,
without due process of law."

   In Parratt, Nebraska prison officials failed to follow normal
procedures for receipt of packages mailed to prisoners and lost a
prisoner's hobby kit. the prisoner sued the officials under section
1983 to recover the value of the lost hobby kit, alleging that the
officials, acting for the state, had deprived him of his property
without due process of law in violation of the fourteen amendment.
n4 The district court entered summary judgment for the prisoner,
and the court of appeals affirmed. The Supreme Court, noting that
the fourteenth amendment protects only against deprivations without
due process of law, focused on the question of what process was due
the prisoner. Parratt, 451 U.S. at 537, 101 S.Ct. at 1914. The
Court fist observed that the prison officials' action was random
and not sanctioned by the state. Because the state could not have
anticipated such random activity, it would have been impossible for
the state to have provided the prisoner any process, such as a
hearing, prior to the deprivation. Nebraska law, however, did
provide the prisoner a make-whole damages remedy. Finding that the
damages remedy was all the process the state could have provided
him under the circumstances, the Court concluded that the prisoner
has not been deprived of his property without due process of law.
Id. at 541-44, 101 S.Ct. at 1916-17.

   n4 The officials' action was alleged to be negligent. 451 U.S.
at 530, 101 S.Ct. at 1910. The Court's analysis in Parratt,
however, has been extended to intentional deprivations. See Hudson
v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 3203-04, 82 L. Ed. 2d 393
(1984).

   Parratt thus stands for the proposition that, where state law
provides a make-whole damages remedy to a person whose property has
been taken or destroyed by the random tortious conduct of a state
agent, the state has accorded that person all the process he is dueunder the fourteenth amendment due process clause simpliciter. In
other words, Parratt treats the claimant as if he had already been
compensated in full by the state for his loss and therefore
accorded due process.

   Parratt has been extended by the better reasoned opinions to
apply to deprivations of liberty as well as property interests See,
e.g., Wilson v. Beebe, 770 F.2d 578 (6th Cir. 1985) (en banc);
Thibodeaux v. Bordelon, 740 F.2d 329, 337-38 (5th Cir. 1984);
Daniels v. Williams, 720 F.2d 792, 794-96 (4th Cir. 1983); Ellis v.
Hamilton, 669 F.2d 510, 515 (7th Cir.), cert. denied, 459 U.S.
1069, 103 S. Ct. 488, 74 L. Ed. 2d 631 (1982); Rutledge v. Arizona
Board of Regents, 660 F.2d 1345, 1352 (9th Cir. 1981), aff'd on
other grounds, 460 U.S. 719, 103 S. Ct. 1483, 75 L. Ed. 2d 413
(1983). But see Brewer v. Blackwell,
    PAGE   35                                776 F.2d 942, *951
                     LEXSEE

692 F.2d 387, 394 (5th Cir.1982). Certainly Parratt's reasoning is
unaffected by which fourteenth amendment interest is deprived. A
state's inability to provide predeprivation process, because the
action of the state employee was unauthorized and random, exists
regardless of which due process interest is involved. Furthermore,
adequate damages remedies may be available not only for property
interests but also for liberty and life interests. See Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388, 395, 91 S. Ct. 1999, 2004, 29 L. Ed. 2d 619 (1971)
("historically damages have been regarded as the ordinary remedy
for an invasion of personal interests in liberty"); Thibodeaux v.
Bordelon, 740 F.2d at 338. Finally, the Court in Parratt implicitly
acknowledged the applicability of its rationale to deprivations of
 [*952]   liberty interests by its discussion of Ingraham v.
Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977).
Ingraham was a section 1983 class action brought on behalf of
school children who alleged a deprivation of liberty without due
process of law when their public school teachers paddled them for
disciplinary reasons without providing them a prior hearing. The
Court acknowledged the children's liberty interest but noted that
an adequate damages remedy, in the form of a suit for the tort of
assault and battery, existed in state law. recognizing that a
hearing prior to each school paddling was impractical, the Court
concluded that the state remedy was the only process required.
Ingraham, 430 U.S. at 674-82, 97 S.Ct. at 1414-18. By drawing on
Ingraham, the Court indicated that Parratt was designed to apply to
liberty interests such as those involved in this case.

   In my view, Parratt requires the dismissal of this section 1983
suit. This case tracks Parratt in all its essential elements: (1)
appellants seek money damages; n5 (2) only violations of fourteenth
amendment due process simpliciter rights are alleged; n6 and (3)
the act of which appellants complain, the appellees' misuse of
Florida's dependency law, n7 was, to the extent of the state's
involvement through Judge Hosemann, random conduct not sanctioned
by he state. quite to the contrary, the state condemned such
conduct by subjecting appellees Buzzy Dykes, Judge Dykes, Thomas
Weinberg, and Kenneth McIntosh to possible tort liability in the
form of a damages action for abuse of process and Judge Hosemann to
possible criminal liability, see Flat.Stat. @ 839.25 (1983), n8
discipline (including removal from office), see Fla.Const.art. V,
@ 12, or impeachment, see Fla.Const. art. 111, @ 17. In addition,
Judge Hosemann's dependency order was subject to modification or
vacation (if, for example, Diana, after learning of the order's
entry appeared to contest it). see Fla.Stat. @ 39.-11(3) (1977), or
reversal on appeal, see Fla.Stat. @ 39.14(1) (1977).

   n5 Where injunctive rather than monetary relief is sought,
Parratt does not apply. In such a situation the suit is normally
brought prior to the deprivation, thereby putting the state onnotice of the acts its employees plan to take. State resistance to
the granting of injunctive relief serves to sanction its employees'
acts making postdeprivation remedies insufficient under Parratt's
rationale to satisfy the requirements of due process.

   n6 Appellants allege no substantive constitutional claims. As
the panel stressed, "appellants only argue that their rights to
procedural due process were violated by the appellees individually
and as a part of a conspiracy, and have apparently abandoned their
equal protection and substantive due process claims."
    PAGE   36                                776 F.2d 942, *952
                     LEXSEE

   n7 The "color of state law" component of section 1983 may be
satisfied by a showing that a judicial act of the defendant judge
resulted from a corrupt conspiracy involving the judge may be
immune from suit, the private parties who conspired with him act
"under color of state law" for purposes of section 1983 suits. See
Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S. Ct. 183, 186-87, 66 L.
Ed. 2d 185 (1980).

   n8 Judge Hosemann's alleged conduct could also result in the
loss of his employment benefits. See Fla.Stat. @ 112.3173
(Supp.1984).

   Appellants might argue that Parratt does not foreclose their
suit against Judge Hosemann because the state, in applying its
doctrine of judicial immunity, n9 failed to provide them a make-whole damages remedy against him. In short, the state has not
[*953]   accorded the process appellants are due. The rationale of
Parratt is based upon an inquiry into what process is due. With
respect to Judge Hosemann, then, the question is whether Florida's
immunization of judges from suit and the corresponding absence of
a tort remedy for judicial wrongs provides an injured party less
process than he is due. I find that it does not.

   n9 See Herskowitz v. Nesbit, 419 So. 2d 418, 419
(Fla.Dist.Ct.App.1982) (per curiam); Rivello v. Cooper City, 322
So. 2d 602, 607 (Fla.Dist.Ct.App. 1975).

    One must distinguish between the judicial immunity a state
judge would raise in defense of an abuse of process suit and the
immunity he would interpose in defense of a section 1983 suit. In
the former instance, the scope of immunity would be determined by
state law. In the later case, federal law must be applied. In Owen
v. City of Independence, 445 U.S. 622, 638, 100 S. Ct. 1398, 1409,
63 L. Ed. 2d 673 (1980), the Supreme Court in addressing the issue
of immunity in a section 1983 context, stated:

    In each of these cases [involving immunity from section 1983
liability], our finding of @ 1983 immunity "was predicted upon a
considered inquiry into the immunity historically accorded the
relevant official at common law and the interests behind it." ...
Where the immunity claimed by the defendant was well established at
common law at the time @ 1983 was enacted, and where its rationale
was compatible with the purpose of the Civil Rights Act, we have
construed the statute to incorporate that immunity.

    (quoting Imbler v. Pachtman, 424 U.S. 409, 421, 96 S. Ct. 984,
990, 47 L. Ed. 2d 128 (1976)). As the Court had previously noted:
"'A construction of [@ 1983] which permitted a state immunity
defense to have controlling effect would transmute a basic
[constitutional] guarantee into an illusory promise; and thesupremacy clause of the Constitution insurers that the proper
construction may be enforced.... The immunity claim raises a
question of federal law.'" Martinez v. California, 444 U.S. 277,
284 n. 8, 100 S. Ct. 553, 558 n. 8, 62 L. Ed. 2d 481 (1980)
(quoting Hampton v. Chicago, 484 F.2d 602, 607 (7th Cir. 1973)
(citation omitted), cert. denied, 415 U.S. 917, 94 S. Ct. 1413, 39
L. Ed. 2d 471 (1974)).

    In the case of judicial immunity of federal judges one could
argue that the doctrine is grounded in article III of the
Constitution and it therefore could not be subject to statutory
modification. In an effort to ensure the independence of the
judiciary, the framers of the Constitution, in article III, section
1, provided that federal judges enjoy life tenure and mandated that
their compensation not be diminished. The doctrine of judicial
immunity
    PAGE   37                                776 F.2d 942, *953
                     LEXSEE

achieves the same end; by insulating judges from monetary liability
for their judicial acts in a case over which they had subject
matter jurisdiction, the doctrine frees judges from certain
presures that may inappropriately effect their administration of
justice and further secures the independence of the judiciary.
Indeed, the Court in Randall v. Brigham, 74 U.S. (7 Wall.) 523,
537, 19 L. Ed. 285 (1869) hinted at the constitutional
underpinnings of the doctrine by describing judicial immunity in
conjunction with a judge's life tenure:

    In the United States, judicial power is vested exclusively in
the courts. The judges administer justice therein for the people,
and are responsible to the people alone for the manner in which
they perform their duties. If faithless, if corrupt, if dishonest,
if partial, if oppressive or arbitrary, they may be called to
account by impeachment, and removed from office.... But responsible
they are not to private parties in civil actions for their judicial
acts, however injurious may be those acts, and however much they
may deserve condemnation....

    The Court's decision in Pierson v. Ray is not to the contrary.
That case held that Congress did not intend to abolish the judicial
immunity of state judges in enacting section 1983. 386 U.S. at
554-55, 87 S.Ct. at 1218. This does not suggest that Congress could
abolish the judicial immunity of federal judges, as section 1983
does not apply to such judges and the protection accorded federal
judges under article III does not extend to state judges.

   Courts have consistently upheld the use of judicial immunity in
section 1983 suits. See Dennis v. Sparks, 449 U.S. 24, 27, 101 S.
Ct. 183, 186, 66 L. Ed. 2d 185 (1980); Supreme Court v. Consumers
Union of the United States, Inc., 446 U.S. 719, 734-35, 100 S. Ct.
1967, 1976, 64 L. Ed. 2d 641 (1980); Stump v. Sparkman, 435 U.S.
349, 355-56, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). In Pierson v.
Ray, 386 U.S. 547, 554-55, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 228
(1967), the Court found no indication that Congress, in enacting
section 1983, intended to eliminate the doctrine of judicial
immunity. These cases clearly imply that judicial immunity is
constitutionally permissible and that the resulting absence of an
action for money damages to remedy a judge's tortious conduct does
not violate the injured party's due process rights. See also
Martinez v. California, 444 U.S. 277, 281-83, 100 S. Ct. 553,
557-58, 62 L. Ed. 2d 481 (1980) (state does not deny due process
simply by granting reasonable tort immunity to state entities and
officials). This being so, a state accords an injured party all of
the process he is due even though it immunizes its judges from
suit. See Rittenhouse v. DeKalb County, 764 F.2d 1451, 1456-58
(11th Cir. 1985) (involving statutorily created municipal
immunity). Because Florida's immunization of Judge Hosemann from
tort damages did not violate appellants's due process rights,Parratt requires that the section 1983 suit against him be
dismissed.

   In summary, Parratt mandates this section 1983 suit be dismissed
as to all of the appellees. this should not be surprising for, when
a state provides all the process possible, it is difficult to
interpret the fourteenth amendment as requiring more.

   HATCHETT, Circuit Judge, Dissenting:

   On the difficult issue presented in this case, the scope of
judicial immunity in a   [*954]   suit for damages under 42 U.S.C.
@ 1983, the law in the Eleventh Circuit is now made clear. The en
banc court holds that judicial immunity is
    PAGE   38                                776 F.2d 942, *954
                     LEXSEE

complete, unqualified, and without exception. According to the
majority, judicial immunity even protects a judge who acts without
personal jurisdiction, and who unlawfully conspires with a party to
violate another party's federal constitutional rights. As the
majority concedes, no precedent Supreme Court or otherwise,
requires such a broad definition and application of the judicial
immunity doctrine. Contrary to the majority's view, no policy
considerations justify such a result.

   More importantly, the majority's opinion implicitly one third of
a congressional enactment specifically designed to protect the
federal constitutional rights of citizens from deprivations by
state officers, including judges. In 42 U.S.C. @ 1983 (1982),
Congress provided:

        Every person who, under color of any statute, ordinance,
      regulation, custom, or usage of any state or territory,
subjects,         or causes to be subjected, any citizen of the
United States         or other person within the jurisdiction
thereof to the         deprivation of any rights, privileges, or
immunities secured by the         Constitution and laws, shall be
liable to the party injured         in an action at law, suit in
equity, or other proper proceeding         for redress.
        [Emphasis added.]

With the filing of the majority opinion, this important enactment
for the protection of citizens of the United States may as well
read: "Every person, [except a judge in Florida, Georgia and
Alabama]...." Judges in these former states of the confederacy will
be able to deal willy nilly with the rights of citizens without
having to account for willful unconstitutional actions. This
important congressional enactment is amended by this opinion to
apply only to state officials in the legislative and executive
branches. It is another whittling away of section 1983's
application. I respectfully dissent. n1

   n1 This case also points up the reason citizens and legislative
are increasingly demanding that lawyers and judges charged with
ethical violations be judged not by other lawyers and judges under
the "good ole boy" system, but by persons outside the legal
profession.

   To demonstrate the scope of the majority's opinion, assume that
women and minorities are picketing a city council meeting to
influence the city council meeting to influence the city council's
vote on the paving of streets and the availability of jobs in
municipal government. Assume further that a judge, dissatisfied
with this method of expression of a grievance, instigates a meeting
with the mayor at which the judge and the mayor conspire to end the
lawful demonstration. Assume also that the judge, knowingly actingwithout jurisdiction and with knowledge that the demonstration is
lawful, causes the demonstrators to be arrested, incarcerated, held
without bail, and submitted to a trial. Under this en banc opinion,
no action for damages may be brought against the judge in the
Eleventh Circuit. n2

   n2 Bear in mind that under Scott v. Dixon, 720 F.2d 1542 (11th
Cir. 1983), a court clerk issuing an arrest warrant is acting in a
judicial capacity and entitled to absolute immunity. With this
opinion, the en banc court places the constitutional rights of
every citizen in this circuit at the mercy of any person acting in
a quasi-judicial capacity. I can only hope that the court will
limit the reach of the absolute immunity it now accords judges to
the level of
    PAGE   39                                776 F.2d 942, *954
                     LEXSEE

a general jurisdiction court and not extend it to clerical workers.

   If the judicial action inflicts the intended damage by killing
the demonstrators' political momentum, making injunctive relief
useless, the victims will lack any remedy for the violation of
their rights. In a state with a political climate which is hostile
to freedom of association, a judge could repeatedly interfere with
constitutional rights without being held accountable. This
hypothetical may seem far fetched, but is not; this is the exact
fact pattern that section 1983 was enacted to address and which it
has addressed since its enactment.

   It is difficult to understand how every person in the United
States may be held accountable in damages for conspiring to
[*955]   violate another person's federal constitutional rights,
except those persons trained in constitutional guarantees, charged
with interpreting the constitution, and oath bound to deal fairly
with parties to litigation.