Marquette Law Review Volume 62 Article 6 Issue 1 Fall 1978 Judges: Immunities: Judicial Act and Jurisdiction Broadly Defined. (Stump v. Sparkman) Ann Bowe Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Ann Bowe, Judges: Immunities: Judicial Act and Jurisdiction Broadly Defined. (Stump v. Sparkman), 62 Marq. L. Rev. 112 (1978). Available at: http://scholarship.law.marquette.edu/mulr/vol62/iss1/6 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW [Vol. 62:112 language of Owen is ambiguous and will require further clarifi- cation, but as a general proposition the decision presents a three part analysis. First, it must be determined whether the federal and nonfederal claims comprise a single constitutional case. If the nonfederal claim does not arise from the "common nucleus of operative fact," then the inquiry will be at an end, since the claim is outside the constitutional limits of jurisdic- tion. Second, if the constitutional test is met, the relevant stat- ute must be examined to determine whether Congress has ne- gated the exercise of jurisdiction. Last, if a statutory negation is found, then the context in which the nonfederal claim is asserted must be examined to determine whether it should permit a circumvention of the negation. Exactly what type of context will be sufficient to permit circumvention is uncertain. Also, there may be some cases where context will be irrelevant. While leaving a number of unresolved questions as to scope and interpretation, in requiring this three part test, Owen may bur- den the courts with time consuming examinations of congres- sional intent and limit, to some extent, the efficiency, economy and fairness intended to be fostered by the Federal Rules of Civil Procedure. IGOR POTYM JUDGES - Immunities - Judicial Act and Jurisdiction Broadly Defined. Stump v. Sparkman, 98 S. Ct. 1099 (1978). Since 1871, the Supreme Court has made available a very broad privilege of immunity to judges of courts of general juris- diction in civil actions when such actions arise out of judicial acts not done in the complete absence of jurisdiction.' In the recent case of Stump v. Sparkman,2 the United States Su- preme Court again considered the defense of judicial immunity and, for the first time, offered some definition of what consti- tutes a judicial act. In this author's view, in putting forward a broad definition of judicial act, and in reaffirming the use of a broad construction of jurisdiction in immunity cases, the Court "to the arduous and ultimately wasteful task of guessing what state law is on issues upon which only the state court can authoritatively act." Id. at 4-5. The bill has been reintroduced in the 96th Congress. H.R. 2202, 96th Cong., 1st Sess. (1979). 1. Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). 2. 98 S. Ct. 1099 (1978). 19781 JUDGES assured the maintenance of a nearly absolute immunity privi- lege for judges in courts of general jurisdiction when they ap- pear to be acting in a judicial capacity. Sparkman involved alleged violations of plaintiffs' constitu- tional rights,3 which were said to have occurred during the process culminating in Linda Sparkman's involuntary sterili- zation. Prior to the operation, the sterilization had been ap- proved 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 de- fense of judicial immunity was granted in the district court and the entire action was then dismissed.' A three judge panel of the Seventh Circuit Court of Appeals unanimously reversed the district court, holding that the de- fense of judicial immunity was not available to Judge Stump, 3. The Supreme Court majority referred to the district court's summary of the constitutional claims asserted: violations of due process, equal protection, the right of privacy, the right to be free of cruel and unusual punishment and the right to pro- create. Id. at 1103. 4. Sparkman v. McFarlin, 552 F.2d 172, 173 (7th Cir. 1977). 5. (1970). Section 1983, originally enacted as Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13, reads in full: 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. 6. The claims against the remaining defendants were dismissed since it was held that without Judge Stump's presence in the case, there could be no showing of the state action necessary under section 1983. Civil No. F75-129 (N.D. Ind., filed May 13, 1976). MARQUETTE LAW REVIEW [Vol. 62:112 first because he had acted extrajudicially in ordering the steri- lization 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 im- munity defense did protect Judge Stump.' 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 nec- essarily be examined in the light of this history. I. THE HISTORICAL CONTEXT The first United States Supreme Court case regarding judi- cial immunity was Randall v. Brigham,I decided in 1868. In the majority opinion in that case, Justice Field recognized the qualified immunity available to judges under English common law.'0 Under this doctrine, no judge was immune from prosecu- tion for malicious or corrupt judicial acts; further, inferior court judges were subject to prosecution for acts in excess of their jurisdiction. However, in 1871, with the case of Bradley v. Fisher," the Supreme Court, in another opinion written by Justice Field, abandoned the qualified immunity doctrine in favor of a doc- trine 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 7. 552 F.2d 172 (7th Cir. 1977). 8. 98 S. Ct. 1099 (1978). 9. 74 U.S. (7 Wall.) 523 (1868). The Justices' Protection Act of 1848, 11 & 12 Vict., c. 44, § 1, provided that an inferior court justice, acting within his jurisdiction, could be sued for conduct proven to be malicious and without reasonable and probable cause. Motivation was irrelevant as to such justice acting in excess of his jurisdiction. A superior court judge, acting even in excess of his jurisdiction, would be immune. 10. Mr. Justice Field expanded the concept of immunity for malicious judicial acts by applying it to all judges, not solely to inferior court judges as had been the limit imposed by the English courts. [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. 11. 80 U.S. (13 Wall.) 335 (1871). 1978] JUDGES corruptly."' 2 After Bradley, judges were provided a defense in all actions brought by persons alleging malicious judicial con- duct. While Bradley was being argued, Congress enacted the Civil Rights Act of 1871' 3 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 4 immunities existed.' Nevertheless, over the next hundred years, there was never a consistent recognition that the judicial immunity defense had been abrogated in section 1983 actions.