MARQUETTE LAW REVIEW | VOL 62, ISS 1, ART 6
JUDGES: IMMUNITIES: JUDICIAL ACT AND JURISDICTION BROADLY DEFINED (STUMP V. SPARKMAN)
Marquette
0 | INTRODUCTION
Sparkman involved alleged violations of plaintiffs' constitutional rights,3 which were said to have occurred during the process culminating in Linda Sparkman's involuntary sterilization. Prior to the operation, the sterilization had been approved by Harold Stump, a judge in an Indiana court of general jurisdiction, after a petition by Ms. Sparkman's mother to have her daughter sterilized was filed in his court. The petition was granted the day it was presented, in an ex parte proceeding without a hearing. Neither the petition nor the order were ever filed or recorded; no notice was given the daughter; nor was a guardian ad litem appointed. The operation was performed seven days later after Ms. Sparkman was told she was to have her appendix removed. Two years later, after Ms. Sparkman's marriage, when she consulted a doctor concerning her inability to conceive, she was informed that she had been sterilized.4
In response, Ms. Sparkman and her husband filed a federal action under 42 U.S.C. §§ 1983 and 19855 against Judge Stump, together with pendent state claims for assault and battery and malpractice against her mother, the mother's attorney, the doctors involved in the surgery, and the hospital where it was performed. Judge Stump's motion to dismiss based on the defense of judicial immunity was granted in the district court and the entire action was then dismissed.6
A three-judge panel of the Seventh Circuit Court of Appeals unanimously reversed the district court, holding that the defense of judicial immunity was not available to Judge Stump, first because he had acted extrajudicially in ordering the sterilization and second, because the act in question was performed without jurisdiction.7 The Supreme Court, however, in a five-three decision, again reversed, holding that the judicial immunity defense did protect Judge Stump.8 The majority and minority views in Sparkman represent two historical positions on the breadth of protection which should be afforded under the judicial immunity privilege, and these opinions must necessarily be examined in the light of this history.
Footnotes
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.
I | THE HISTORICAL CONTEXT
However, in 1871, with the case of Bradley v. Fisher,11 the Supreme Court, in another opinion written by Justice Field, abandoned the qualified immunity doctrine in favor of a doctrine of absolute judicial immunity: "[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly."12 After Bradley, judges were provided a defense in all actions brought by persons alleging malicious judicial conduct.
While Bradley was being argued, Congress enacted the Civil Rights Act of 187113 which created a federal remedy for civil rights violations perpetrated under color of state law. The Act imposed liability upon "every person" who, under color of state law, deprived another of his or her civil rights; it appeared to provide statutory authority for relief from judicial abuse. There is no convincing proof that Congress intended that immunity would be available to any state or territorial officials in actions under the Act, and it is more likely that the Forty-Second Congress intended to do away with whatever common-law immunities existed.14
Nevertheless, over the next hundred years, there was never a consistent recognition that the judicial immunity defense had been abrogated in section 1983 actions. The dominant line of cases found judges immune from suit on the basis of Bradley, even in civil rights cases.15 However, the exceptions to judicial immunity enunciated in Bradley were recognized in section 1983 actions also: (1) instances in which judges acted in clear absence of jurisdiction16 and (2) instances where judges engaged in nonjudicial activities.17 But a maverick line of cases held that judicial immunity was simply not a valid defense to suit brought under section 1983.18 Finally, in 1967, in Pierson v. Ray,19 the Supreme Court resolved the uncertainty regarding the applicability of the judicial immunity defense in actions under section 1983. There, Chief Justice Warren ruled that a state judge who had convicted civil rights demonstrators of disorderly conduct was immune from liability, noting that he had played no role in the arrest and conviction other than to adjudge petitioners guilty when their cases came before his court.20 The eight-member majority reaffirmed the applicability of the judicial immunity defense under the Civil Rights Act:
We do not believe that this settled principle of law was abolished by § 1983, which makes liable "every person" who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove,... that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.21Despite vigorous dissent concerning the legislative intent22 and history23 of the Act, the majority gave a broad construction to judicial immunity even in section 1983 cases. This same broad construction is reflected in the majority opinion of Stump v. Sparkman.
Footnotes
[Ilt is a general principle applicable to all judicial officers, that they are not liable to a civil action for any judicial act done within their jurisdiction. In reference to judges of limited and inferior authority, it has been held that they are protected only when they act within their jurisdiction. If this be the case with respect to them, no such limitation exists with respect to judges of superior or general authority. They are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously or corruptly. 74 U.S. (7 Wall.) at 535-36.
2) preventing influence on decisions through fear of subsequent suit;
3) removing discouragement to judicial service;
4) assuring separation of powers;
5) safeguarding the finality of decisions;
6) utilizing alternate avenues of redress for erroneous decisions;
7) refraining from unfairly penalizing honest error;
8) recognizing that judges' duties are directed to the public rather than to individuals; and
9) noting the fact of judicial self-protection.
II | THE OPINIONS
(2) acts done in the clear absence of all jurisdiction.27
The Sparkman majority found that "both factors indicate that Judge Stump's approval of the sterilization petition was a judicial act.33 As to the nature of the act, White wrote:
"State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors, as for example, a petition to settle a minor's claim.”34As to the expectation of the parties, he says:
"We may infer from the record that it was only because Judge Stump served in that position [county circuit judge] that Mrs. McFarlin, on the advice of counsel, submitted the petition to him for his approval.”35Justice Stewart, writing for the dissenting justices, not only faults White's definition of judicial act but also his application of the majority test: "I think that the first of these grounds [function normally performed by a judge] is factually untrue and that the second [dealing with judge in judicial capacity] is legally unsound.”36 Stewart notes that the act in question, the approval of a parent's decision regarding medical treatment for a minor, is not a function normally performed by a judge. "Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since.37
Stewart also questions the second part of the test: "But false illusions as to a judge's power can hardly convert a judge's response to those illusions into a judicial act;38 neither, in the minority view, does a judicial act result from the simple affixation of the title "judge" under a signature: "[T]he conduct of a judge surely does not become a judicial act merely on his own say-so. A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity.39
For the minority, in order for an act to be judicial at least some of the attributes of a judicial proceeding must be present. Justice Stewart suggests that there must be a case or controversy, there must be litigants, there must be some avenue of appeal and there must be at least "the pretext of principled decisionmaking."40 For Justice Powell, writing in a separate dissent, it is the absence of appellate or political remedies which clearly marks this act as nonjudicial, since it is the presence of such alternative relief which provides the basis of judicial immunity in the first place.41
While, unlike the minority, the majority does not specifically describe what they perceive to be the attributes of a judicial act, they do cite previous cases which have held that lack of formal proceedings42 and separation from court facilities43 do not automatically preclude a judicial act. In contrast, acts done by a judge acting in another official capacity44 or characterized by outrageous behavior45 have been held to be beyond the pale of judicial behavior.
In sum, the Supreme Court in Sparkman has offered a two pronged test to determine whether the act of a judge is a "judicial" one, and while it has not offered clear guides to use of the test, it is clear that broad and generous analysis will be used to determine if a judge's act is "judicial" to the point where it merits absolute immunity.
Justice White relies on Bradley to establish the general rule of construction regarding jurisdiction in immunity cases:
"[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly."47 This sets the issue, the definition of a line between acts done in excess of jurisdiction and acts done in the complete absence of jurisdiction.The Seventh Circuit had held that for jurisdiction to be present when a judge operates under a state grant of general jurisdiction48 there must be a statutory or common-law basis for the exercise of judicial power:
Although this grant of judicial power is broad, we cannot accept the assertion that it cloaks an Indiana circuit judge with blanket immunity. He may not arbitrarily order or approve anything presented to him in the form of an affidavit or petition. A claim must be characterized as a case in law or equity in order to come within the statute. In short, it must have a statutory or common law basis.49Indiana statutes allow court authorized sterilization only when the person to be sterilized is institutionalized, and even that power is strictly limited by numerous procedural requirements.50 Thus, the court of appeals had held that the statutory scheme in Indiana negates jurisdiction in cases not involving institutionalized persons.51 The Seventh Circuit seems to have followed the rule that a court of general jurisdiction, while engaged in the exercise of a special statutory power, becomes a court of limited jurisdiction with powers restricted to the authority given by statute.52
The Supreme Court majority, on the other hand, uses an inverse reasoning process. Because "the scope of the judge's jurisdiction must be construed broadly where the issue is... immunity,53 the Supreme Court defines the plaintiffs burden of proof not as the necessity of proving absence of a statutory or common-law basis for the exercise of jurisdiction, but rather as the necessity of citing a statute or case law prohibiting the exercise of jurisdiction: "We agree with the District Court, it appearing that neither by statute or case law has the broad jurisdiction granted to the circuit courts of Indiana been circumscribed to foreclose consideration of a petition for authorization of a minor's sterilization."54 This conclusion follows from the rule that a court has the power and duty to determine whether it has jurisdiction of a matter presented to it.55
The Indiana statute governing sterilization is in keeping with those of the majority of jurisdictions which impose rigid statutory restrictions on the power to authorize any sterilization procedure56 in evidence of the sensitivity of the area. In this author's view, limitations on judicial entry into such sensitive areas must be controlled in some manner, either by legislative enactment or by a more narrow definition of jurisdiction in immunity cases.57 Since the Supreme Court has chosen to sanction a broad grant of power to courts of general jurisdiction entering into sensitive areas even when they do so by assumption of jurisdiction, Sparkman clearly demonstrates the necessity of specific legislative enactment as a prerequisite to limitations on judicial action in these fields.
Footnotes
Jurisdiction
Sec. 3. Said court shall have original exclusive jurisdiction in all cases at law and in equity whatsoever, and in criminal cases and actions for divorce, except where exclusive or concurrent jurisdiction is, or may be conferred by law upon justices of the peace. It shall also have exclusive jurisdiction of the settlement of decedents' estates and of guardianships: Provided, however, That in counties in which criminal or superior courts exist or may be organized, nothing in this section shall be construed to deprive such courts of the jurisdiction conferred upon them by laws, and it shall have such appellate jurisdiction as may be conferred by law, and it shall have jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer.
III | CONCLUSION
In recent decisions, the Supreme Court has qualified the common-law immunities provided other government officials when suit is brought against them under section 1983. Federal officials were immune from suit58 until the Supreme Court recently modified that rule in Butz v. Economou.59 The prior absolute immunity afforded state officials60 was also qualified in Scheuer v. Rhodes."61 Longstanding law holding municipalities immune62 was overturned when the Court recently held that local governments were intended to be included among the "persons" to which section 1983 applies. Yet, in the face of these trends, the doctrine of judicial immunity has held fast. The most solid conclusion to be drawn from Sparkman v. Stump is that regardless of the degree of injury resulting from judicial conduct, the judiciary will continue to immunize its brethren with a generous hand.
Footnotes
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this law review in order to protect yourself from judges/lawyers/organizations who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
