Petition — Stump v. Sparkman

IN THE

Supreme Court of the Unite ate

OcToser TERM, 1976

t. 7671750

HAROLD D. STUMP, JOHN HINES, M.D.,

HARRY M. COVELL, M.D., and WARREN D.

G. SUNDAY, D.,

Petitioners, IAL

ers,

vs.

LINDA KAY SPARKMAN and LEO SPARKMAN,

Respondents.

rns.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT,

Georce E. FRUECHTENICHT,

Mezzanine Floor,

Indiana Bank Building,

Fort Wayne, Indiana 46802,

219-422-9454,

WILLIAM F. MCNAGNY,

Third Floor Lincoln Bank Tower,

Fort Wayne, Indiana 46802,

219-423-9551,

Counsel for Petitioners.

me a ee

Gunthorp-Warren Printing Co:npany, Chicago e« Financial 66565

MICHAEL ROBAK, JR, CLERK

PAGE

Opinions Below ..........eseeeee Loeecereccecece 1-2

DUE ‘An hanspeedvceceredececedvetessaaaens 2

Questions Presented for Review ....... 6666s c ue ees 3

Constitution and Statutes .... 0... eee eens 3-5

Statement of the Case ..... ccc screcncveecvsvcenns 5-7

Reasons for Granting the Writ .. 0.0.6.6. 6c cee es 7-15

I, The Decision of the Court Below Conflicts with

the Applicable Decisions of the United States

Supreme Court Concerning Judicial Immunity . .7-13

II. The Decision of the Court Below Will Affect the

Scope of Exposure to Personal Liability of Every

Trial Court Judge in the Nation ............ 13-15

CameteG ii i sin cddeccddercicdecddedsdcctdiseves » IS

APPENDIX,

Unpublished Memorandum of Decision and Order of Dis-

ao. eerrrrerrrrerrrerrrrrreryrreis Ly Ty Al-A7

Opinion of Court of Appeals Reversing District Court A8-A15

se

TABLE OF AUTHORITIES.

Cases.

A. L. v. G. R. H., 46 Ind, Dec, 452, 325 N, BE. 2d 501

CUDVEP wrccetoccccctcsecescbecvesedocceces 8,9, 10

Baltimore & Ohio Railway Co, v. Freeze, 169 Ind, 370,

BZN. GB. 761 (1906) on. ccvcccccvcvvccccvcceese 9

Bradley v. Fisher, 80 U. S, (13 Wall.) 646 (1871)

TUTETTRULTLELELERTEEL TTT ce 6,7, 10, 11, 13, 14, 15

Johnson v, MacCoy, 278 F. 2d 37 (9th Cir, 1960) .... 12

Pierson v. Ray, 386 U. S. 547 (1967) ...6,7, 10, 13, 14, 15

Ryan v. Scoggin, 245 F. 2d 54 (10th Cir, 1957) ...... 11

Waugh v. Board of Commissioners of Montgomery Co.,

64 Ind. App. 123, 115 N. BE. 365 (1917) ......... 9,10

United States Constitution.

SS, ST kab ko 00n beeen eeas hs Ceeccdacees 3,6

Federal and State Statutes.

Federal Statutes

4 ye ne ae 3 6

Gees DIUUEED sdedpeccencetvedcemweds 3,6

State Statutes

ie, Ce os Niele Lining a's cce-0ee eele tie Ot 4, 8,9

ee es eS re a cee i eveeeaeuns 4,8

i a i POE Sk cutovedsicesecsseans 5,7,8

Supreme Court of the United States

Octoper Term, 1976

HAROLD D. STUMP, JOHN HINES, M.D.,

HARRY M. COVELL, M.D., and WARREN ID.

G. SUNDAY, .D.,

Petitioners, (AL

ters

vs. ,

LINDA KAY SPARKMAN and LEO SPARKMAN,

Respondents.

mis.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Harold D. Stump, John H. Hines, Harry M. Covell and Warren

G. Sunday, Petitioners, pray that a Writ of Certiorari issue to

review the Judgment of the United States Court of Appeals for

the Seventh Circuit in the entitled case rendered on March

23, 1977.

To Plaintiffs’ Complaint, Defendants, Warren G. Sunday,

Harold D. Stump, John H. Hines, M.D., John C, Harvey, M.D.,

Harry M. Covell, M.D., and DeKalb Memorial Hospital, Inc.

filed, among other responsive pleadings, Motions to Dismiss.

2

In his Memorandum of Decision and Order filed May 15,

1976, the United States District Court for the Northern District

of Indiana, Fort Wayne, Division, Jesse E, Eschbach, Judge,

granted said motions stating that Defendant, Harold D. Stump,

acting as a Circuit Court Judge in a State Court, was clothed

with absolute judicial immunity and that Plaintiffs had no

constitutional claims which could be asserted against the remain-

ing Defendants, The District Court's Memorandum of Decision

and Order appears as Sparkman v, McFarlin, Civil No. F 75-129

(D. Ind., decided May 13, 1976).

An Appeal from the District Court’s Order was taken by

Plaintiffs to the United States Court of Appeals for the Seventh

Circuit which Court, by Opinion rendered March 23, 1977

reversed the Judgment of the District Court and remanded the

cause for further proceedings consistent with its Opinion. The

Opinion of the United States Court of Appeals for the Seventh

Circuit appears as Sparkman v. McFarlin, Civil No. 76-1706

(7th Cir., decided March 23, 1977),

The Memorandum of Decision and Order of the District

Court Judge and the Opinion of the United States Court of

Appeals for the Seventh Circuit are reprinted in the Appendix

hereto.

JURISDICTION.

This is a controversy founded upon Plaintiffs’ assertion of

causes of action arising under the First, Fourth, Fifth, Eighth,

Nineth and Fourteenth Amendments to the Constitution of the

United States and under 42 U. S. C. §§ 1983 and 1985(3),

with jurisdiction laid under 28 U. S, C, §§ 1331 and 1343.

Plaintiffs sought declaratory relief pursuant to 28 U. S. C.

§§ 2202-2203.

This Court's jurisdiction is invoked under 28 U. S. C.

§ 1254(1).

QUESTION PRESENTED.

Whether the duly elected Judge of the Circuit Court of

DeKalb County, Indiana, a Court of original, exclusive juris-

diction in all cases at law and equity whatsoever, had jurisdiction

to consider and approve a Petition presented by Ora E. Mc-

Farlin, the natural mother and custodian of Linda Kay Spark-

man, to have tubal ligation performed on said Linda Kay

Sparkman, and whether said act of approval is clothed with

judicial immunity from liability under the federal civil rights

statutes.

No other questions were presented on appeal to the United

States Court of Appeals for the Seventh Circuit.

CONSTITUTION, FEDERAL AND STATE STATUTES.

United States Constitution, Amendment XIV, Section 1

provides:

“. .. mor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

42 U. S. C. § 1983 provides:

“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.”

42 U.S. C. § 1985(3) provides:

“If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the prem-

ises of another, for the purpose of depriving, either directly

or indirectly, any person of privileges and immunities under

4

the laws; or for the purpose of preventing or hindering

the constituted authorities of any State or Territory from

giving or securing to all persons within such State or

Territory the equal protection of the law; or if two or more

persons conspire to prevent by force, intimidation, or threat,

any citizen who is lawfully entitled to vote, from giving

his support or advocacy in a legal manner, toward or in

favor of the election of any lawfully qualified person as

an elector for President or Vice President, or as a Member

of Congress of the United States; or to injure any citizen

in person or property on account of such support or ad-

vocacy; in any case of conspiracy set forth in this section,

if one or more persons engaged therein do, or cause to be

done, any act in furtherance of the object of such con-

spiracy, whereby another is injured in his person or prop-

erty, or deprived of having and exercising any right or

privilege of a citizen of the United States, the party so

injured or deprived may have an action for the recovery of

damages, occasioned by such injury or deprivation, against

any one or more of the conspirators.”

I. C. 1971, § 16-8-3-1 provides in part:

“Medical or surgical treatment of incompetent—Consent.

—Consent to medical or surgical treatment of a person

(herein called the ‘patient’) incompetent to give such

consent by reason of minority, insanity, mental illness,

imbecility, idiocy, senilty, habitual drunkenness or drug

addiction may be given by the following persons, and such

consent shall, on and after July 6, 1961, be binding on the

patient, his or her heirs, administrators, executors and

personal representatives:

(a) If the patient is an unmarried unemancipated minor,

by one (1) parent having custody of such minor, Provided,

That if there is no such parent, by the legal guardian of the

minor, and further Provided That if the patient is a

neglected child, by the agency of which the child has been

made a ward of the juvenile court; . . .”

I. C. 1971, § 16-8-4-2 provides:

“Consent of parent to medical treatment of child.—Any

person who is the parent of a child shall be competent to

5

given consent to and contract for medical or hospital care

or treatment of such child including surgery.”

I. C. 1971, § 33-4-4-3 provides:

“Jurisdiction.—Said court shall have original exclusive jur-

isdiction 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 ex-

clusive 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 organ-

ized, 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.”

STATEMENT OF THE CASE.

When Plaintiff, Linda Kay Sparkman, was fifteen (15) years

old, her mother, Ora E. McFarlin, determined that it would be

advisable to have Linda undergo a tubal ligation. The ostensible

grounds for this decision were that, according to her mcther,

“Linda was somewhat retarded”, that without her mother’s

consent or knowledge, Linda had allegedly taken up dating and

Staying overnight with older youths and men, and that her

mother was unable to maintain continuous control and observa-

tion over Linda to “prevent unfortunate circumstances”. Conse-

quently, her mother sought the services of an attorney, Warren

G. Sunday, who prepared a certain “Petition to Have Tubal

Litgation Peformed on Minor and Indemnity Agreement.” By

this document, Mrs. McFarlin consented to the performance of

the operation, and agreed to indemnify and hold harmless the

attending surgeon and the hospital from any liability growing

out of the operation. This Petition was thereafter presented to

6

Defendant, Harold D. Stump, Judge of the Circuit Court of

DeKalb County, Indiana, who “approved” the ex parte applica-

tion. Thereafter on July 16, 1971, the three Defendant doctors

performed the ligation at the Defendant hospital.

In ruling on the Motions to Dismiss filed by all Defendants

except Defendant, Ora E. McFarlin, the United States District

Court for the Northern District of Indiana, Fort Wayne Divi-

sion, held, with respect to the question here presented, that the

only State action involved was that of Judge Harold D. Stump

as Judge of the DeKalb Circuit Court, Indiana, “approving”

Defendant, Ora E. McFarlin’s Petition and held further that

since the Circuit Courts of Indiana are Courts of general juris-

diction having “original, exclusive jurisdiction in all cases at law

and in equity whatsoever”, Judge Harold D. Stump had jurisdic-

tion in his Court to consider Petition for Tubal Ligation; and

although said “approval” may in retrospect have appeared to

have been premised on an erroneous view of the law, the fact

that subject matter jurisdiction resided in Judge Harold D.

Stump clothed the act with absolute judicial immunity from

liability under 42 U. S. C. §§ 1983 and 1985(3) or under the

Fourteenth Amendment. The District Court founded its holding

upon the settled and established precedent laid down in Bradley

Vv. Fisher, 80 U. S. (13 Wall.) 646 (1871) and Pierson v. Ray,

386 U. S. 547 (1967) both of which cases hold that except

where there is a “clear absence of all jurisdiction over the

subject matter”, a Judge is entitled to complete immunity to

suit based upon his official acts.

The United States Court of Appeals for the Seventh Circuit,

by Opinion dated March 23, 1977, reversed. The Opinion of

Judge Swygert, although paying lip services to the unequivocal

holdings of Bradley v. Fisher, supra, and Pierson v. Ray, supra,

ex post facto changed the law and held that the words “clear

absence of all jurisdiction over the subject matter” should not be

given their clear and obvious meaning. Taking the position that

the statute conferring general jurisdiction upon the Circuit Court

7

(I. C. 33-4-4-3) which states: “. . . 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” is meaningless, the Court of Appeals

without citing any authorties therefor, held, as a matter of

law, that “a claim must be characterized as a case in law or

in equity in order to come within the statute”.

In essence, the Court held that neither Judge Harold D.

Stump nor any other Circuit Court Judge has a right to reply

upon the Indiana statutes conferring jurisdiction upon Circuit

Courts in the State nor upon the clear language of Bradley v.

Fisher, supra, and Pierson v. Ray, supra.

REASONS FOR GRANTING WRIT OF CERTIORARI.

I.

This Petition should be granted by this Court because the

decision of the United States Court of Appeals for the Seventh

Circuit conflicts with and represents and unwarranted departure

from the applicable decisions of this Court concerning judicial

immunity.

Petitioner submits that this Court should review this case

because the Court below ignored the body of law developed by

this Court in Bradley v. Fisher, supra, and Pierson v. Ray, supra,

which enunciate doctrines establishing judicid™ immunity. Those

cases, and cases hereinafter set forth, hold that unless the act of

a Judge of a court of general jurisdiction has been proscribed,

that is, his jurisdiction to act limited by statute or by judicial

fiat, the act of a Judge, sitting in his judicial capacity, is clothed

with judicial immunity.

On July 9, 1971, there was no specific judicial or statutory

proscription in the State of Indiana against a parent consenting

to surgery on a minor child involving tubal ligation. Such pro-

scription did not occur until 1975 when the Appellate Court of

Indiana in the case of A. L. v. G. R. H., 46 Ind. Dec. 452, 325

N. E. 2d 501 (1975) first announced:

“We believe that common law does not invest parents with

such power over their children even though they sincerely

believe the child’s adulthood would benefit therefrom.”

A. L.v. G. R. H., supra, at 502.

Likewise, in the year 1971, in addition to Indiana Code

33-4-4-3 which invests Circuit Courts in the State of Indiana

with general jurisdiction there was in full force and effect in the

State of Indiana the following statutes:

“L.C. 16-8-3-1 Medical or Surgical Treatment of Incompe-

tent—Consent. Consent to medical or surgical treatment

of a person (herein called the ‘patient’) incompetent to

give such consent by reason of minority, insanity, mental

illness, imbecilit,, idiocy, senility, habitual drunkenness or

drug addiction may be given by the following persons and

such consent shall on and after July 6, 1961, be binding on

the patient, his or her heirs, administrators, executors and

personal representatives:

(a) If the patient is an unmarried, unemancipated minor,

by one (1) parent having custody of such minor, provided,

that if there is no such parent, by the legal guardian of the

minor, and further provided that if the patient is a neglected

child, by the agency of which the child has been made a

ward of the Juvenile Court; .. .”

and

“LC. 16-8-4-2 Consent of Parent to Medical Treatment of

Child. Any person who is a parent of a child shall be com-

petent to give consent to and contract for medical or

hospital care or treatment of such child including surgery.”

The Federal District Court, in its Memorandum of Deci-

sion and Order makes reference to the fact that Mrs. Ora E.

McFarlin, by filing her Petition to Have Tubal Ligation per-

formed, consented to the performance of the operation. The fact

of said consent serves to make the distinction between the

Court’s “approval” referred to erroneously by the United States

9

Court of Appeals for the Seventh Circuit as the Court’s “order”

significant. Again, prior to the decision of A. L. v. G. R. H.,

supra, no judicial determination had been made in the State of

Indiana construing or delimiting what surgery might be con-

sented to by the parent or approved by a Circuit Court Judge.

The existence of the aforementioned statutes, the contents of

which were presumably known by the Judge in July 1971, con-

ferring general jurisdiction over all causes, matters and proceed-

ings and conferring the right to consent of a parent on behalf of

a minor child to perform surgery, cannot be ignored. Judge

Swygert was in error when he stated in his opinion:

“Moreover, counsel has not, during the course of this

litigation cited any specific statutory or common law basis

upon which a Court can order the sterilization of a child

simply upon the petition of a parent.”

I. C. 16-8-3-1 was specifically set forth in the Answer Brief

of Defendant Appellees, John C. Harvey, M.D. and DeKalb

Memorial Hospital, Inc., as a plausible basis of jurisdiction of

Defendant, Harold D. Stump, to approve the petition.

The fact that the record before the Circuit Court of Appeals

did not contain a finding by the Circuit Court Judge of the

specific basis upon which he acquired jurisdiction cannot be

used as a basis for concluding the Court had no jurisdiction to

act. Long established precedent in the State of Indiana evidenced

by two cases, to-wit: Baltimore & Ohio Railway Company v.

Freeze, 169 Ind. 370, 82 N. E. 761 (1906), and Waugh v.

Board of Commissioners of Montgomery County, 64 Ind. App.

123, 115 N. E. 356 (1917), established the rule that if the

Judge has jurisdiction over the subject matter, he has jurisdiction

to determine whether he has jurisdiction over the parties. In

Baltimore & Ohio Railway Company v. Freeze, supra, the Court

said:

“Every court possesses the power of determining its own

jurisdiction, both as to the parties and the subject matter of

the action. It is well settled that, when an inferior tribunal

10

is required to ascertain and decide upon facts essential to

its jurisdiction, its judgment thereon is conclusive against

collateral attack, unless the want of jurisdiction is apparent

on the face of the proceedings. A decision on a jurisdic-

tional question, either expressly or impliedly given by a

tribunal, has the same binding effect upon the parties as a

decision on any other matter within its cognizance in any

pending case or proceedings, and an error in this respect

must be corrected in the same manner as other errors are

authorized to be corrected. . . .”

Waugh v. Board of Commissioners of Montgomery County,

supra held;

“Every court is clothed with authority to determine its own

jurisdiction, both of parties and of subject matter and when

it appears of record from a court of inferior jurisdiction

such as the Board of Commissioners, that the jurisdiction

of such tribunal was invoked in a given matter and that it

was required to decide on facts essential to such jurisdic-

tion, its judgment thereon is conclusive against collateral

attack unless want of jurisdiction is apparent on the face of

such record. . . .” Waugh, at 360.

This long standing unimpeachable rule was ignored by the

Circuit Court of Appeals.

In 1971, there was statutory basis conferring jurisdiction

upon Defendant, Harold D. Stump, to entertain Defendant

McFarlin's Petition. That fact is supported, a fortiori, by the

fact that in A. L. v. G. R. H., supra, a Circuit Court Judge in

Indiana conducted a trial on a complaint for declaratory judg-

ment alleging no existing Indiana precedent, seeking declaration

of a parent’s right under the common law attributes of the

parent-child relationship to have her son sterilized.

The Court of Appeals further ignored the requirements laid

down by Bradley v. Fisher, supra, and Pierson v. Ray, supra, in

that the fact of absence of all jurisdiction must be known to

the Judge. Nothing in the record presented to the Circuit Court

of Appeals permitted Judge Swygert to reach the conclusion that

11

Judge Harold D,. Stump knew that he had no jurisdiction to

consider McFarlin’s Petition nor to act thereon. The record

including the Memorandum of Decision and Order of the

United States District Court does not suggest such nor permit

that inference.

Bradley v. Fisher, supra, remains the undisturbed authority

with respect to the doctrine of judicial immunity. It provides:

“. ., that Judges of Courts of superior or general jurisdic-

tion are not liable to civil actions for their judicial acts,

even when some acts are in excess of their jurisdiction,

and are alleged to have been done maliciously or corruptly.

A distinction must be here observed between excess of

jurisdiction and the clear absence of all jurisdiction over the

subject matter. Where there is clearly no jurisdiction over

the subject matter, any authority exercised is a usurped

authority and for the exercise of such authority when the

want of jurisdiction is known to the Judge, no excuse is

permissible. But where jurisdiction over the subject matter

is invested by law in the Judge or in the Court with key-

holes, the manner and extent in which the jurisdiction shall

be exercised are generally as much questions for his

determination as any other questions involved in the

case although upon the correctness of his determination

in these particulars the validity of his judgment may

depend. . . ." Bradley vy, Fisher, at 651 (emphasis added).

In Johnson v. MacCoy, 278 F. 2d 37, 38 (9th Cir. 1960),

the Court reiterated the rule:

“The well recognized exception to such general immunity

of a judicial officer is defined in the same case (Bradley

v. Fisher, supra)—taising the distinction between an

act done in excess of jurisdiction, and an act done in clear

absence of all jurisdiction and known to the Judge to be

such.” Ryan Vv. Scoggin, 245 F. 2d 54 (10th Cir. 1957).

(emphasis added )

Of equal import to the reiteration of the rule requiring knowl-

edge enunciated by Johnson v. MacCoy, supra, is the following

statement:

|?

“Nor do we think that because one Judge believes a war-

rant should issue and that he has jurisdiction to issue it

and a second Judge of the same Court believes that the

first Judge has no such jurisdiction is of any material

consequence, Each Court has jurisdiction to determine its

own jurisdiction, . . .’ Johnson vy. MacCoy, at 40 (em-

phasis added).

The approval appended to Ora E. McFarlin’s sworn petition

shows on its face that it was approved by Harold D. Stump

solely in his role as Judge of the DeKalb Circuit Court, It

cannot be seriously contended that the Petition was presented

to him in any other capacity, The act of approval was a

judicial act.

In the year 1971, there was no proscription, by statute or

judicial fiat, against his approval of the Petition,

The statutory scheme to which Judge Swygert refers on page

5 of his Opinion did not, by its terms negate sterilization under

any Other circumstances, It did not, by its terms, proscribe

sterilization of persons other than institutionalized persons.

Similarly, Judge Swygert’s assertion on page 6 of his Opinion

in construing the eifect of A. L. v. G. R. H., supra, is mistaken.

The effect of that case is not to remove jurisdiction from Circuit

Courts concerning sterilization, but to remove that authority

from the Court which would invest parents with the power to

sterilize their children, From and after April 10, 1975, all

Circuit Court Judges in the State of Indiana, including Judge

Harold D, Stump, were aware of the fact that the decision

in A. L. v. G. R. H., supra, deprived them of authority to

permit parents the power to sterilize their children, but most

certainly said Courts were not deprived of jurisdiction to con-

sider and act upon petitions requesting such authority.

The statement by Judge Swygert on page 6 of his Opinion,

to-wit:

“There ure actions of purported judicial character that a

judge, even when exercising general jurisdiction, is not

empowered to take.”

13

is characteristic of the tenor of the Opinion itself. It ignores all

of the clearly enunciated fundamentals of judicial immunity

laid down by Bradley v. Fisher, supra, and reinforced by Pier-

son V. Ray, supra, and cites no authority in support, The

example set forth in the footnote is absurd.

Finally, the Court's remark on page 8 of his Opinion that

“. .. the Petition and Order were never filed in Court”, suggests

that “filing in Court” in an apparently formal way is an absolute

antecedent requirement to a Circuit Court in Indiana having

jurisdiction over the subject matter of the Petition. This state-

ment is likewise unsupported by any authority.

The rule is and should be that unless Judge Harold D. Stump’s

act in approving Ora E. McFarlin’s Petition was, in 1971,

specifically proscribed, said judicial act must be clothed with

immunity from liability. That Defendant Harold D. Stump acted

in excess of his jurisdiction is now realizable. To hold that he

acted in the clear absence of all jurisdiction and with knowledge

of that fact is without basis in law or fact,

II,

This Petition should be granted because this case represents

an issue of national importance which will affect the scope of

exposure to personal liability of every trial court judge in

our country,

The doctrine of judicial immunity exists not solely for the

benefit and protection of a judge whose act within his judicial

role may arouse the most intense feelings of the litigants, but

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 so as not to be intimidated,

See Pierson v. Ray, supra.

This Court by its decisions has recognized the doctrine of

judicial immunity in all cases except those in which there is a

“clear absence of all jurisdiction over the subject matter” and

14

“when that want of jurisdiction is known to the judge”. Bradley

Vv. Fisher, supra.

The decision of the United States Court of Appeals for the

Seventh Circuit, if allowed to stand, would render meaningless

the standards for judicial immunity as established by tais Court

in Bradley v. Fisher, supra, and Pierson v. Ray, supra. The lower

court would in their place substitute a standard which would

require a court of general jurisdiction to act only pursuant to

some specific and affirmative legislative or judicial grant of

authority before jurisdiction could be found, This difference,

although subtle, is significant. The practical result of the lower

court’s decision would be that a judge presiding over a court of

general statutory jurisdiction, with jurisdiction to decide “all

cases at law or equity whatsoever’ and “all other causes, matters

and proceedings where exclusive jurisdiction is not conferred by

law upon some other court” would not be able to rely upon

this broad grant of jurisdiction to act upon matters brought

before it without fear of personal liability.

The fact that a judicial act performed under such grant of

jurisdiction had not been proscribed by statutory or judicial

fiat would be no guarantee that jurisdiction would subsequently

be found to have existed. Rather, the court below would require

that judges vader such circumstances proceed at their own risk

unless in addition to the grant of general jurisdiction some

specific and affirmative legislative or judicial indication of

authority may be found. Presumably, where the authorities were

silent as to the court's jurisdiction, no jurisdiction would exist.

Such reasoning is the sort of judicial sophistry which is employed

when a given Judge wishes to reach a desired conclusion and

does so, ignoring the principles of judicial precedent and care-

lessly creating the unsettling and chilling effect which the de-

cision, if allowed to stand, will have upon the judiciary of the

nation. Such decision would undermine the important public

considerations which are the very basis for the recognition of

judicial immunity. This Court is therefore called upon to reaffirm

15

once again those standards for judicial immunity which have

been enunciated in its prior decisions and cited herein.

CONCLUSION.

It is of the utmost importance to the Judicial System func-

tioning in the State and Federal Courts of the United States

that Circuit Court Judges retain the protection of the doctrine

of judicial immunity as set forth in Bradley v. Fisher, supra, and

Pierson v, Ray, supra, The Opinion of the Circuit Court of

Appeals, in refusing to grant Judge Harold D, Stump the

immunity provided under said doctrine as enunciated, erodes the

clarity of the doctrine to such an extent that resolution by the

United States Supreme Court is required.

Respectfully submitted,

GeorGce E. FRUECHTENICHT,

Mezzanine Floor,

Indiana Bank Building,

Fort Wayne, Indiana 46802,

219-422-9454,

Counsel for Petitioner Harold

D. Stump.

WILLIAM F. MCNAony,

Third Floor Lincoln Bank Tower,

Fort Wayne, Indiana 46802,

219-423-9551,

Counsel for Petitioners, John

H. Hines, M.D., Harry M.

Covell, M.D., and Warren

G. Sunday.

Al

APPENDIX.

IN THE UNITED STATES DISTRICT COURT

For the Northern District of Indiana

Fort Wayne Division

LINDA Kay SPARKMAN, ET AL., »

Plaintiffs,

a . Civil No. F 75-129,

Ora E. MCFARLIN, ET AL.,

Defendants. |

MEMORANDUM OF DECISION AND ORDER.

This cause is now before the court on various Rule 12(b)

motions’ seeking dismissal for want of jurisdiction and for failure

to state a claim upon which relief can be granted. For reasons

given below, the motions will be granted for the reason that

the actions complained of violate no federal constitutional

guarantees.

The allegations of plaintiffs’ complaint may be summarized

as follows: when plaintiff Linda Kay Sparkman was 15, in

1971, her mother decided that it would be advisable to have

Linda undergo a tubal ligation. The ostensible grounds for

1. Motion by defendant Stump to dismiss, filed Dec. 18, 1975,

on the grounds that no state action is involved, on the grounds of

judicial immunity, and on the grounds that plaintiff Leo Sparkman is

without standing; motion by defendants Hines, Covell and Sunday to

dismiss, filed Jan. 13, 1976, on the grounds of no state action; and

motion y Sey ag Harvey and DeKalb Memorial Hospital to

dismiss, filed Feb. 17, 1976, on the grounds of no state action;

insufficiency of the allegations as to unequal treatment, conspiracy,

and intent to discriminate; statute of limitations; and want of

jurisdiction.

A2

this decision were that, according to her mother, Linda was

“somewhat retarded,” that without her mother’s consent or

knowledge Linda had allegedly taken up dating and staying

overnight with older youths and men, and that her mother was

unable to maintain continuous control and observation over

Linda to “prevent unfortunate circumstances.” Consequently,

her mother (defendant Ora McFarlin) sought the services of

an attorney, defendant Warren Sunday, who prepared a cer-

tain “Petition to Have Tubal Ligation Performed on Minor and

Indemnity Agreement.” By this document, Mrs. McFarlin con-

sented to the performance of the operation, and agreed to in-

demnify and hold harmless the attending surgeon and the

hospital from any liability growing out of the operation. This

petition was thereafter presented to the Hon. Harold Stump,

Judge of the Circuit Court of DeKalb County, Indiana, de-

fendant herein, who “approved” the ex parte application.

Linda was then taken to the DeKalb Memorial Hospital.

She had recently been treated there by defendant John Hines,

M.D., for an attack of appendicitis. Linda was told that her trip

to the hospital was the purpose of surgically removing her ap-

pendix. Instead, the real purpose of placing Linda in the hospital

was to have the tubal ligation performed. On July 16, 1971,

Dr. Hines performed the ligation. Defendant John Harvey was

the anaesthesiologist, and Dr. Harry Covell, defendant, assisted

in the operation.

From that time until late in 1973, Linda was not told that

she had been sterilized. During that time she married plaintiff

Leo Sparkman. It appears that some of the defendants con-

tinued to deny that a sterilization had been performed after

some had admitted it, and that Linda’s inability to have children

has caused a rift in her marriage. Plaintiffs assert that they

were finally informed by Dr. Hines in May, 1975 that the tubal

ligation had been performed.

Plaintiffs assert a cause of action arising under the First,

Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to

A3

the Constitution and under 42 U.S.C.A. §§ 1983 and 1985(3),

with jurisdiction laid under 28 U.S.C.A. §§ 1331 and 1343.

Declaratory relief is sought pursuant to 28 U.S.C.A. §§ 2202-03.

Whether laid under section 1331 or 1343(3), and whether

asserted directly or via section 1983 and 1985, plaintiffs’

grounds for recovery are asserted to rest on the violation of

constitutional rights. Plaintiffs urge that defendants violated

the following constitutional guarantees:

1, that the actions were “arbitrary and thus in viola-

tion of the due process clause of the Fourteenth Amend-

ment;

2. that Linda was denied procedural safeguards re-

quired by the Fourteenth Amendment;

3. that the sterilization was permitted without the

promulgation of standards;

4. that the sterilization was an invasion of privacy;

5. that the sterilization violated Linda’s right to

procreate;

6. that the sterilization was cruel and unusual punish-

ment;

7. that the use of sterilization as punishment for her

alleged retardation or lack of self-discipline violated various

constitutional] guarantees;

8. that the defendants failed to follow certain Indiana

statutes, thus depriving Linda of due process of law; and

9. that defendants violated the equal protection clause,

because of the differential treatment accorded Linda on

account of her sex, marital status, and allegedly low mental

capacity.

Linda also seeks to assert pendent state claims of assault and

battery and medical malpractice against the relevant defendants.

Plaintiff Leo Sparkman asserts a pendent state claim for loss

of potential fatherhood.

A4

Whether brought under 42 U.S.C.A.§§ 1983 or 1985, with

jurisdiction laid under 28 U.S.C.A. §1343, or brought under

the Fourteenth Amendment directly with jurisdiction under

28 U.S.C.A. § 1331, the existence of a cause of action in this

case depends on whether the complaint shows that rights pro-

tected by the Fourteenth Amendment have been violated by

any of the defendants. The first concern “should be whether

a constitutional duty derived from the Fourteenth Amendment

has been breached.” Nahmod, Section 1983 and the “Back-

ground” of Tort Liability, 50 Ind. L.J. 5, 23 (1974), quoted

in Bonner v. Coughlin, 517 F.2d 1311, 1318 n.21 (7th Cir.

1975) (per Stevens, J.). Stated another way, the threshold

question under the Fourteenth Amendment is whether the duties

imposed by that amendment run only against the state, or

whether they run against private individuals as well: “[TJhe

distinction between the two kinds of state involvement that may

be relevant in civil rights litigation—first, whether the defend-

ant has acted under color of state law, and, second, whether

plaintiff's federal right is merely assertable against the State—

requires consideration of the state action issue in cases bottomed

on an alleged violation of the Fourteenth Amendment.” Cohen

v. Illinois Inst. of Technology, 524 F.2d 818, 829 (7th Cir.

1975) (per Stevens, J.).

In appraising the claimed constitutional violations, the court

holds that each reflects a right which is assertable only against

state conduct. The Fourteenth Amendment does not protect

against arbitrary decisions by private individuals; it does not

impose procedural safeguards upon purely private decision-

making processes; it does not require that purely private decision-

making proceed from promulgated standards; it does not protect

against invasions of one’s privacy by purely private actions; it

does not safeguard as against private acts a woman's right to

procreate; it does not proscribe “punishment,” whether cruel

or unusual, brought about by purely private conduct; it does

not prevent purely private action that “punishes” a person be-

AS

cause of her mental condition; it does not impose a duty upon

private individuals to obey the laws of the state; and it does

not require that private individuals refrain from discrimination

or unequal treatment of classes of persons. The rule may be

otherwise when state action is involved; thus, at the threshold,

plaintiffs must show that state action was in fact involved in

a manner that contributed to her alleged injuries, else no claim

is made out under the Fourteenth Amendment.”

It is therefore necessary to determine what conduct, if any,

may be considered to be an act of the State of Indiana, upon

which plaintiffs might found their claims of state action. The

actions of the private attorney who advised Mrs. McFarlin and

who prepared the legal papers for presentation to Judge Stump

are not actions of the State of Indiana. Cf. Skolnick v. Spolar,

317 F.2d 857 (7th Cir. 1963), cert. denied, 375 U.S. 904

(1963); Jones v. Jones, 410 F.2d 365, 366 (7th Cir. 1969)

and cases there cited, cert. denied, 396 U.S. 1013 (1970).

Nor may the acts of the private physicians and anaesthesiolo-

gists, or those of the hospital in which the operation was per-

formed, be considered to be acts of the State of Indiana. Cf.

Byrne v. Kysar, 347 F.2d 734, 736 (7th Cir. 1965), cert.

denied, 383 U.S. 913 (1966). ' ;

The only state action involved was that of Judge Stump, as

Judge of the DeKalb Circuit Court, Indiana, in “approving”

Mrs. McFarlin’s petition. Plaintiffs seek to hold the private de-

fendants liable on a theory that they conspired with Judge Stump

to bring about the allegedly unconstitutional acts. 42 U.S.C.A.

§§ 1983, 1985. If, however, Judge Stump is immune from suit,

and no other state action can be shown,* no action will lie.

2. Plaintiffs’ contention to the contrary, relying on certain lan-

in Griffin v. Breckenridge, 403 U.S. 88 (1971), has been

considered and rejected in Cohen, supra.

3. Plaintiffs appear to assert an additional ground for finding

“state action” the application of Ind. Code § 16-8-3-1 (Burns 1973).

This statute authorizes a | guardian to give consent for surgery

or medical treatment on behalf of an incompetent person or minor.

(Footnote continued on next page.)

A6

See, e.g., Grow v. Fisher, 523 F.2d 875, 877 (7th Cir. 1975);

Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975);

Guedry v. Ford, 431 F.2d 660, 664 (Sth Cir. 1970).

Except where there is a “clear absence of all jurisdiction

over the subject-matter,” Bradley vy. Fisher, 80 U.S. 646, 651

(1871), a judge is entitled to complete immunity to suit based

upon his official acts. Pierson v. Ray, 386 U.S. 547 (1967).

“An absolute immunity defeats a suit at the outset, so long as

the official’s actions were within the scope of the immunity.”

Imbler v. Pachtman, 96 S.Ct. 984, 989 n.13 (1976). Cf. Spires

v. Bottorff, 317 F.2d 273, 274-75 (7th Cir. 1963).

The allegedly wrongful acts committed by Judge Stump con-

sisted solely in his approval of the petition filed in his court

by defendant McFarlin. The circuit courts of Indiana are courts

of general jurisdiction, having “original exclusive jurisdiction in

all cases at law and in equity whatsoever.” Ind. Code § 33-4-4-3

(Burns 1975). There is jurisdiction in such a court to hear

petitions for tubal ligation, cf. A.L. v. G.R.H., 325 N.E.2d

501 (Ind. App. 1975) (by implication), although the court there

held that on the merits the sterilization could not be thus con-

sented to. But whether or not Judge Stump’s “approval” of

the petition may in retrospect appear to have been premised

on an erroneous view of the law, Judge Stump surely had

jurisdiction to consider the petition and to act thereon. Accord-

ingly, Judge Stump is clothed with absolute judicial immunity,

and neither he nor his alleged coconspirators may be held liable

under sections 1983, 1985 or under the Fourteenth Amendment.

(Footnote continued from preceding page.)

It is alleged that this statute unconstitutionally authorized the surgery

performed here. However, the court order entered by Judge Stump

did not rely on this provision; the statute does not authorize tubal

ligations, see A. L. v. G.R.H., 325 N.E.2d 501 (Ind. App. 1975);

and in any event such a statute, being declarative of the common

law, will not provide the necessary state action for a Fourteenth

Amendment violation. Cf. Phillips v. Money, 503 F.2d 990 (7th Cir.

1974), cert. denied, 420 U.S. 934 (1975); Gibbs v. Teitelman, 502

F.2d 1107 (3d Cir. 1974), cert. denied, 419 U.S. 1039 (1974).

Al

Wade v. Bethesda Hosp., 337 F. Supp. 671, 356 F. Supp.

380 (S.D. Ohio 1971, 1973) is not to the contrary. There, a

probate judge acting under a specific statute conferring jurisdic-

tion to order sterilizations was held to have no immunity, where

the special statute conferring jurisdiction had been repealed at

the time the judge ordered the sterilization to be performed.

No such limited jurisdiction is in issue in this case.

Since it appears that plaintiffs have no constitutional claims

which can be asserted against the defendants, defendants’ mo-

tions to dismiss the first and fourth causes of action of plain-

tiffs’ complaint will be granted.

Plaintiffs’ remaining claims are for medical malpractice, as-

sault and battery, and loss of potential fatherhood. It appears

that these claims rest wholly on state law grounds, with juris-

diction said to lie under the pendent jurisdiction of the court.

However, since all federal claims must be dismissed, there is

no longer existing the necessary federal grounds for jurisdiction

from which the state law claims may be said to be pendent.

Accordingly, the remainder of plaintiffs’ claims will be dismissed

for lack of subject matter jurisdiction, Rule 12(b)(1), Fed. R.

Civ. P. The dismissal of the state law claims is without preju-

dice to plaintiffs’ rights under Indiana’s Journey’s Account Act,

Ind. Code § 34-1-2-8 (Burns 1973); see Eves v. Ford Motor

Co., 281 N.E.2d 826 (Ind. App. 1972).

ORDER.

Accordingly, defendants’ motions to dismiss are granted, and

plaintiffs’ first and fourth causes of action are hereby dismissed

for failure to state a claim upon which relief can be granted;

and the remaining claims are dismissed for lack of jurisdiction

over the subject matter.

Entered this 13th day of May, 1976.

/8/ JAMES E. EsCHBACH

United States District Judge

A&

IN THE UNITED STATES COURT OF APPEALS

Fer wie Seventh Circuit

No. 76-1706

LInDA Kay SPARKMAN and Leo SPARKMAN,

Plaintiffs-A ppellants,

vs,

Ora E. MCFARLIN, WARREN G. SUNDAY, HaroLp D. Stump,

individually and as Judge of the Circuit Court of DeKalb

County, Indiana, Joun H. Hines, M.D., Joun C, Harvey,

M.D., Harry M. Covett, M.D., and DEKALB MEMORIAL

HosPiTaL, INC., a corporation,

Defendants-Appellees,

Appeal fror the United States District Court for the Northern

Liistrict of Indiana, Fort Wayne Division.

No. F 75-129-C—Jesse E. Eschbach, Judge.

ARGUED JANUARY 14, 1977—Decipep MarcH 23, 1977

Before SwyGert, Woop, Circuit Judges and East, Senior

District Judge.*

SwyGeErT, Circuit Judge. The question on appeal is whether

a state court judge who ordered the sterilization of a fifteen-year-

old girl is judicially immune from liability under the federal

civil rights statutes. We hold that the judge acted extrajudicially

and that the doctrine of judicial immunity is inapplicable to

this case. The district court’s judgment of dismissal of the com-

plaint is reversed.

~ * Senior District Judge William G. East of the District of Oregon

is sitting by designation.

AY

In 1971 defendant Ora E. McFarlin sought a court order to

have her fifteen-year-old daughter Linda Sparkman, plaintiff,

sterilized. Defendant Warren G. Sunday, an attorney, prepared

the “Petition to Have Tubal Ligation Performed on a Minor and

Indemnity Agreement.” The petition contained an affidavit by

McFarlin which stated that Linda was “somewhat retarded”

although she attended public schools and had been “passed

along with other children in her age level.” McFarlin further

alleged that, without her knowledge or consent, Linda had begun

dating and staying overnight with older youths and men, and

that she could not maintain a continuous observation over Linda

to “prevent unfortunate circumstances.” The petition was pre-

sented to defendant Judge Harold D. Stump of the Circuit Court

of DeKalb County, Indiana, who issued the requested order in

an ex parte proceeding. No guardian ad litem was appointed to

represent Linda’s interests and no hearing was held. Linda re-

ceived no notice of the petition, and neither the petition nor the

order was ever filed in the DeKalb County Circuit Court.

After Judge Stump had signed the order, Linda was taken

to the DeKalb Memorial Hospital, and a tubal ligation was

performed by defendant John H. Hines, M.D., Defendant Harry

M., Covell, M.D., assisted in the operation and defendant John

C. Harvey, M.D., was the anaesthesiologist. Linda was not in-

formed of the true consequences of the surgery; in fact, she was

told that the purpose of the hospital visit was to have her ap-

pendix removed.

In 1973 Linda married plaintiff Leo Sparkman. Two years

later she learned for the first time (from Dr. Hines) that she

had been sterilized. The couple brought an action seeking dam-

ages under 42 U. S. C. §§ 1983 and 1985(3), contending that

the actions of the defendants in sterilizing her or causing her to

be sterilized violated her constitutional rights. She attached

pendent state claims for assault and battery and medical mal-

.

AiO

practice. Leo Sparkman asserted a pendent claim for loss of

potential fatherhood.

The district court granted defendants’ motions to dismiss the

federal claims. It found that the only state action present,

necessary to the federal claims, was the approval of the peti-

tion by Judge Stump. It then held that Judge Stump was “clothed

with absolute judicial immunity” so that neither he nor any of

the other defendants, alleged to be coconspirators, were liable

under sections 1983, 1985(3) or the Four zenth Amendment.

The remaining state claims were dismissed for lack of subject

matter jurisdiction as they were pendent to the federal causes

of action.

Il.

The doctrine of judicial immunity was adopted by the Su-

preme Court in Bradley v. Fisher, 80 U.S. 335 (1871), and

was held applicable to actions brought under 42 U, S, C. § 1983

in Pierson V. Ray, 386 U.S. 547 (1967). Its purpose is to permit

judges to exercise their judicial function independently, without

fear of civil liability. It is available even where malicious or

corrupt action on the part of a judge is alleged.

Judicial immunity is available, however, only where the judge

has jurisdiction. Bradley v. Fisher, supra; Pierson v. Ray, supra.

The jurisdiction required by Bradley is that over the subject-

matter; that is, the power of a court to hear and decide a cause

of action before it. Although immunity exists when jurisdiction

is present even though the judge acts in excess of that jurisdic-

tion, it is not available when he acts in “clear absence of all

jurisdiction.” Bradley, 80 U.S. at 351. Thus, the crucial issue

here, upon which immunity turns, is whether Judge Stump acted

within his jurisdiction when he approved the petition to have

Linda Sparkman sterilized.

All

In approving the petition, Judge Stump cited no statutory or

common law authority under which he was purporting to act.’

Moreover, counsel has not during the course of this litigation

cited any specific statutory or common law basis under which a

court can order the sterilization of a child simply upon the peti-

tion of a parent.

Defendant Stump rests his argument that he had jurisdiction

in this case on Indiana Code 33-4-4-3, which is a general grant

of jurisdiction to the circuit courts.* It confers original juris-

diction “in all cases at law and in equity. .. .” Although this

grant of juridical power is broad, we cannot accept the asser-

tion that it cloaks an Indiana circuit judge with blanket immun-

ity. 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.

l. His order, dated the same day as the petition, reads:

I, Harold D. Stump, Judge of the DeKalb Circuit Court, do

hereby ome the above Petition by affidavit form on behalf

of Ora Spitler McFarlin, to have Tubal Ligation performed

upon her minor daughter, Linda Spitler, subject to said Ora

Spitler McFarlin covenanting and agreeing to indemnify and

keep indemnified Dr. John Hines and the DeKalb Memorial

Hospital from any matters or causes of action arising therefrom.

2. Indiana Code 33-4-4-3 provides:

Jurisdiction. Said court shall have original exelusive jurisdiction

in all cases at law and in equity whatsoever, and in criminal

cases an action for divorce, except where exclusive or concur-

rent jurisdiction is, or may be we wer weg hy Be oN ge Justices of

the Peace. It shall also have exclusive n of the settle-

ment of decedent's estates and of anships; provided, how-

ever, 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 jurisdic-

tion thereof is not conferred by law upon some other court,

oo 1881 (Special Session), Chapter 24,

board or officer.

Section 3, page |

Al2

We agree with plaintiffs, based on an independent examina-

tion of Indiana law, that there was no statutory authority for

Judge Stump’s actions. The statutory scheme in existence at

the time in fact negated his right to assert any jurisdiction over

the petition. In 1971 Indiana Code sections 16-13-13-1 through

16-13-13-4 were in effect.’ These statutes authorized steriliza-

tion of institutionalized persons under certain circumstances.

Those circumstances involve specific procedures to be followed,

including the right to notice, opportunity to defend, and the

right to appeal. This statutory scheme clearly negates juris-

diction to consider sterilization in cases not involving institu-

tionalized persons and in which these procedures are not fol-

lowed, See Kemp v. Kemp, 43 Cal. App. 3d 758, 118 Cal.

Rptr. 64 (1974); Smith v. Command, 231 Mich, 409, 204

N.W. 140, 146 (1925).

In addition, jurisdiction for a court to order sterilization

cannot be found in the common law of Indiana. It is argued on

behalf of the defendants that the Indiana Court of Appeals

implied that such jurisdiction exists in A.L. v. G.R.H., 325

N.E, 2d 501 (Ind. Ct. App. 1975). Aside from the fact that

A.L, was decided after Judge Stump acted, it undercuts rather

3. Indiana Code 16-13-13-1 provides:

Authorization. Whenever the superintendent of ay | hospital or

other institution of this state, or of any county in this state,

which has the care or custody of insane, feebleminded or

epileptic persons, shall be of the opinion that it is for the best

interests of the patient and of society. that any inmate of the

institution under his care should be sexually sterilized, such

superintendent, if a lawfully licensed physician and surgeon, is

hereby ~ es = perform, or cause to o performed by

some capable physician or surgeon, an operation or treatment

of sterilization on any such patient confined in such institution

afflicted with hereditary forms of insanity that are recurrent,

epilepsy, or incurable primary or ry types of feeble-

anew a Ad Provided, That such superinte t shall have

first complied with the requirements of this act [16-13-13-1-

16-13-13-6.]

Section 16-13-13-2 sets out the procedures to be taken in such a

case. Section 16-13-13-3 and section 16-13-13-4 provide for appeals.

Al3

than supports his position. The court in A.L. affirmed the trial

court's denial of a declaratory judgment authorizing a parent

to consent to the sterilization of a minor child. If the opinion,

implies anything, it is that no jurisdiction to order sterilizations

exists. This view is supported by the fact that the cases cited by

the A.L, court all held that, in the absence of express statutory

authority, courts lack the power to order sterilizations.*

Moreover, the defendants can derive no comfort from the

common law of other states. In general, courts have refused

to order the extreme remedy of sterilization absent specific

legislative authority, holding that it was not within their com-

mon law powers. See Holmes v. Powers, 439 S.W. 2d 579 (Ky.

Ct. App. 1968); Frazier v. Levi, 440 S.W. 2d 393 (Tex. Ct.

Civ. App. 1969); In Interest of M.K.R., 515 S.W. 2d 467

(Mo. 1974); Kemp v. Kemp, supra.®

Given the fact that the purported judicial action of defendant

Stump had no support in statute or previous common law,

Judge Stump could only claim to be acting lawfully if the

remedy °f sterilization that he imposed was a valid exercise of

4. Frazier v. Levi, 440 §.W. 2d 393 (Tex. Ct. Civ. App. 1969);

Holmes v. Powers, 439 S.W. 2d 579 (Ky. Ct. App. 1968); In

Interest of M.K.R., 515 S.W. 2d 467 (Mo, 1974); Kemp v. Kemp,

43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1974).

5. In some of these cases the facts which might have warranted

sterilization were quite compelling, which cannot be said of those in

the instant case. For example, in Frazier v. Levi, supra, the subject

was an adjudged incompetent woman, 34 years old with the mentality

of a six-year-old. She was the ward of her parents, who were also

su her two illegitimate children, both retarded. The parents

claimed that they could not bear the economic burden of any more

children. The court found it could not authorize sterilization absent

statutory or constitutional authority.

The only recent — a such action by a court without

specific statutory authority was /n re Simpson, 180 N.E. 2d 206

(Ohio Prob. 1962). In that case, statutory authority was found by

construing a section providing that when mental institutions were

Al4

the power of courts to fashion new common law." We hold that

it was not. Although courts ought not to be discouraged from

creating innovative legal remedies to meet changing social con-

ditions, they may not use the power to create new decisional

law to order extreme and irreversible remedies such as steriliza-

tion in situations where the legislative branch of government

has indicated that they are inappropriate. If we were to say that

jurisdiction existed to order sterilization without adherence to

the requirements of institutionalization and procedural due

process mandated by the Indiana legislature, we would be sanc-

tioning tyranny from the bench. There are actions of purported

judicial character that a judge, even when exercising general

jurisdiction, is not empowered to take.’

Even if defendant Stump had not been foreclosed under the

Indiana statutory scheme from fashioning a new common law

remedy in this case, we would still find his action to be an

illegitimate exercise of his common law power because of his

failure to comply with elementary principles of procedural due

process. Here a juvenile was ordered sterilized without the

taking of the slightest steps to ensure that her rights were

protected. Not only was the plaintiff not given representation,

she was not even told what was happening to her. She was

afforded no opportunity to contest the validity of her mother’s

allegations or to have a higher court examine whether the

substance of those allegations, even if true, warranted her sterili-

zation. Finally, the petition and order were never filed in court.

This kind of purported justice does not fall within the categories

of cases at law or in equity.

6. This claim was never asserted in defendants’ briefs or at oral

argument.

7. a Nn Boy 5 mg ag ny gs ar ony mo

remedies not rom t case. Stump

were said to be ander Ge gouee of courts to creais

new common law, a Suiah taliiiinen saad atin anan

an affidavit and sullen tiailies to the one to tn tastent ente, Gat 0

Der deem adidas Go domiandind boom take

American.” Clearly such a remedy would be beyond the judge's

general jurisdiction.

Al5

Thus, Judge Stump’s action had no basis either in law or

in equity and was therefore taken without jurisdiction. In the

absence of jurisdiction, a judge is not entitled to judicial im-

munity in a suit for damages that resulted from his action.

The judgment of the district court is reversed and the cause is

remanded for further proceedings consistent with this opinion.