Stump v. Sparkman

Mr. Justice Stewart,

with whom Mr. Justice, Marshall and Mr. Justice Powell join, dissenting.

It is established federal law that judges of general jurisdiction are absolutely immune from monetary liability “for their *365 judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Bradley v. Fisher, 13 Wall. 335, 351 . It is also established that this immunity is in no way diminished in a proceeding under 42 U. S. C. § 1983 . Pierson v. Ray, 386 U. S. 547 . But the scope of judicial immunity is limited to liability for “judicial acts,” and I think that what Judge Stump did on July 9, 1971, was beyond the pale of anything that could sensibly be called a judicial act.

Neither in Bradley v. Fisher nor in Pierson v. Ray was there any claim that the conduct, in question was not a judicial act, and the Court thus had no occasion in either case to discuss the meaning of that term. 1 Yet the proposition that judicial immunity extends only to liability for “judicial acts” was emphasized no less than seven times in Mr. Justice Field’s opinion for the Court in the Bradley case. 2 Cf. Imbler v. Pachtman, 424 U. S. 409, 430 . And if the limitations inherent in that concept have any realistic meaning at all, then I cannot believe that the action of Judge Stump in approving Mrs. McFarlin’s petition is protected by judicial immunity.

The Court finds two reasons for holding that Judge Stump’s approval of the sterilization petition was a judicial act. First, the Court says, it was “a function normally performed by a judge.” Second, the Court says, the act was performed in Judge Stump’s “judicial capacity.” With all respect, I think that the first of these grounds is factually untrue and that the second is legally unsound.

When the Court says that what Judge Stump did was an act “normally performed by a judge,” it is not clear to me whether the Court means that a judge “normally” is asked to approve a mother’s decision to have her child given surgical *366 treatment generally, or that a judge “normally” is asked to approve a mother’s wish to have her daughter sterilized. But whichever way the Court’s statement is to be taken, it is factually inaccurate. In Indiana, as elsewhere in our country, a parent is authorized to arrange for and consent to medical and surgical treatment of his minor child. Ind. Code § 16-8-4-2 (1973). And when a parent decides to call a physician to care for his sick child or arranges to have a surgeon remove his child’s tonsils, he does not, “normally” or otherwise, need to seek the approval of a judge. 3 On the other hand, Indiana did in 1971 have statutory procedures for the sterilization of certain people who were institutionalized. But these statutes provided for administrative proceedings before a board established by the superintendent of each public hospital. Only if, after notice and an evidentiary hearing, an order of sterilization was entered in these proceedings could there be review in a circuit court. See Ind. Code §§ 16-13-13-1 through 16-13-13-4 (1974). 4

*367 In sum, what Judge Stump did on July 9, 1971, was in no way an act “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.

When the Court says that Judge Stump was acting in “his judicial capacity” in approving Mrs. McFarlin’s petition, it is not clear to me whether the Court means that Mrs. McFarlin submitted the petition to him only because he was a judge, or that, in approving it, he said that he was acting as a judge. But however the Court’s test is to be understood, it is, I think, demonstrably unsound.

It can safely be assumed that the Court is correct in concluding that Mrs. McFarlin came to Judge Stump with her petition because he was a County Circuit Court Judge. But false illusions as to a judge’s power can hardly convert a judge’s response to those illusions into a judicial act. In short, a judge’s approval of a mother’s petition to lock her daughter in the attic would hardly be a judicial act simply because the mother had submitted her petition to the judge in his official capacity.

If, on the other hand, the Court’s test depends upon the fact that Judge Stump said he was acting in his judicial capacity, it is equally invalid. It is true that Judge Stump affixed his signature to the approval of the petition as “Judge, De Kalb Circuit Court.” But the 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. 5

*368 If the standard adopted by the Court is invalid, then what is the proper measure of a judicial act? Contrary to implications in the Court’s opinion, my conclusion that what Judge Stump did was not a judicial act is not based upon the fact that he acted with informality, or that he may not have been “in his judge’s robes,” or “in the courtroom itself.” Ante, at 361. And I do not reach this conclusion simply “because the petition was not given a docket number, was not placed on file with the clerk’s office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem.” Ante, at 360.

It seems to me, rather, that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. Those factors were accurately summarized by the Court in Pierson v. Ray, 386 U. S., at 554 :

“[I]t 'is . . . for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ ... It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”

Not one of the considerations thus summarized in the Pierson opinion was present here. There was no “case,” con *369 troversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decisionmaking. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.

The petitioners’ brief speaks of “an aura of deism which surrounds the bench . . . essential to the maintenance of respect for the judicial institution.” Though the rhetoric maybe overblown, I do not quarrel with it. But if aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here. And if intimidation would serve to deter its recurrence, that would surely be in the public interest. 6

In the Bradley case the plaintiff was a lawyer who had been disbarred; in the Pierson case the plaintiffs had been found guilty after a criminal trial.

See 13 Wall., at 347, 348, 349, 351, 354, 357 .

This general authority of a parent was held by an Indiana Court of Appeals in 1975 not to include the power to authorize the sterilization of his minor child. A. L. v. G. R. H., 163 Ind. App. 636 , 325 N. E. 2d 501 .

Contrary to the Court’s conclusion, ante, at 359, that case does not in the least demonstrate that an Indiana judge is or ever was empowered to act on the merits of a petition like Mrs. McFarlin’s. The parent in that case did not petition for judicial approval of her decision, but rather “filed a complaint for declaratory judgment seeking declaration of her right under the common-law attributes of the parent-child relationship to have her son . . . sterilized.” 163 Ind. App., at 636-637, 325 N. E. 2d, at 501 . The Indiana Court of Appeals’ decision simply established a limitation on the parent’s common-law rights. It neither sanctioned nor contemplated any procedure for judicial “approval” of the parent’s decision.

Indeed, the procedure followed in that case offers an instructive contrast to the judicial conduct at issue here:

“At the outset, we thank counsel for their excellent efforts in representing a seriously concerned parent and in providing the guardian ad litem defense of the child’s interest. Id., at 638 , 325 N. E. 2d, at 502 .

These statutes were repealed in 1974.

Believing that the conduct of Judge Stump on July 9, 1971, was not a judicial act, I do not need to inquire whether he was acting in “the clear absence of all jurisdiction over the subject matter.” Bradley v. Fisher, 13 Wall., at 351 . “Jurisdiction” is a coat of many colors. I note only that the Court’s finding that Judge Stump had jurisdiction to entertain Mrs. MbFarlin’s petition seems to me to be based upon dangerously broad *368 criteria. Those criteria are simply that an Indiana statute conferred "jurisdiction of all . . . causes, matters and proceedings,” and that there was not in 1971 any Indiana law specifically prohibiting what Judge Stump did.

The only question before us in this case is the scope of judicial immunity. How the absence of a “judicial act” might affect the issue of whether Judge Stump was acting “under color of” state law within the meaning of 42 U. S. C. § 1983 , or the issue of whether his act was that of the State within the meaning of the Fourteenth Amendment that need not, therefore, be pursued here.