Amicus Brief — Stump v. Sparkman

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Supreme Coert, ¥. 3.

jut 12 1977

Supreme Court of the United States

OCTOBER TERM, 1976

Number 76-1750

Ora E. McFarlin, 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.,

Petitioners.

-Vs-

Linda Kay Sparkman and Leo Sparkman,

Respondents.

BRIEF OF THE STATE OF INDIANA AS

AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

THEODORE L. SENDAK

Attorney General of Indiana

DARREL K. DIAMOND

Assistant Attorney General

Attorneys for State of Indiana

Offices of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 633-4725

Central Publishing Company, Inc., Indianapolis, Ind 46206

TABLE OF CONTENTS

Page

er SE 64.606 céKcTeN esd ocndendedéasede ii

SE Se Te UD en hvct ce sdeweessectcsseesacs 1

Ee SE MED nc wn kdnseccccedtsecescesctoes 2

Argument

A. The Doctrine of Judicial Immunity .......... 3

B. The Indiana Court System .................. 4

C. Subject Matter Jurisdiction ................. 6

D. Standard For Consideration of the Complaint 11

a a dE cs eel aie dd eee 13

TABLE OF AUTHORITIES

Cases: Page

A.L. v. G.R.H., — Ind. App. —, 325 N.E.2d 501 (1975) 10

Bell v. Hood, 327 U.S. 678 (1946) .........ccececeees 10

Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872) ..3, 4, 7, 11

Farley v. Farley, 157 Ind. App. 385 (1973) .......... 8,9

Harris v. Souder, 233 Ind. 287 (1954) ..............-. 6

Hicks v. State, 249 Ind. 24 (1967)

J. 1. Case Company v. Sandefur, 245 Ind. 213 (1964) .. 8

Mt. Healthy City School District v. Doyle, —U.S. —,

OF BGR Ge CGE) dsccanccccnccccccunencaneutss 9

National League of Cities v. Usery, — U.S. —, 96 8.Ct.

GERD GHOSE we cune d Kicogespoucssrcsssacesscente 5

Noblesville City Planning Commission v. Gatewood,

134 Ind. App. 600 (1968) .........sccccscccceees 9

Pierson v. Ray, 386 U.S. 547 (1967) 2.0... 6... eee eee a,4

Smith v. Indiana State Board of Health, — Ind. App.

==, S08 W.SE GD (ITS) cc cdivscccccccecccvece 8

State ex rel Egun v. Wolever, 127 Ind. 306 (1891) ....3,7,9

Constitutional and Statutory Provisions:

United States Constitution, Amendment Ten ......... 5

GB FE. Ce Ke kcvccccsccccccvctccccutsdeanaena 3

Indiana Code (1.C.) 33-4-1-1 et seq ........ ccc ceeeee 5

BD FRGOe ca kciiccovciccccetdcdaveckenabsasarreces 6

Bey SBOE ccicvcccccccccsesasguseesaeastaeesdncs 5)

TABLE OF AUTHORITIES—continued

Constitutional and Statutory Provisions:—cont’d. Page

IC 33-9-1-4

IC 33-12-2-1

IC 33-12-2-2

IC 33-12-2-3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

Number 76-1750

Ora E. McFarlin, 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.,

Petitioners.

-V8s-

Linda Kay Sparkman and Leo Sparkman,

Respondents.

BRIEF OF THE STATE OF INDIANA AS

AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

The State of Indiana, by Theodore L. Sendak, Attorney

General of Indiana, by Darrel K. Diamond Assistant

Attorney General, pursuant to Rule 42 of this Court, sub-

mits its amtcus curiae brief in support of the Petitioners

in this cause.

Consent of the Parties

This brief is filed by the State of Indiana pursuant to

Rule 42 of this Court. Consent of the parties is not required

pursuant to Rule 42(4).

Interest of the Amicus

The interest of the State of Indiana in the determination

of the question presented in this case is twofold. First,

the State of Indiana has an interest in the ability of judges

of courts of the State of Indiana to determine matters

presented to them free from the harassment of vexatious

litigation. Second, and more important is the interest of

the State of Indiana in maintaining its right to define

and establish the jurisdiction of its own courts. The action

of the United States Court of Appeals in this action would

appear to make the determination of the jurisdiction of

state courts a matter of federal law, at least insofar as

the determination of that jurisdiction is involved with the

invocation of judicial immunity by state court judges in

actions against them in federal courts.

ARGUMENT

The Doctrine of Judicial Immunity.

The doctrine of judicial immunity may be considered

one of the most firmly settled doctrines of Anglo-American

common law. This Court definitively stated and adopted

the doctrine in Bradley v. Fisher, 80 U.S. (13 Wall) 335

(1872). The applicability of the doctrine to cases under the

federal civil rights statutes, specifically 42 U.S.C. § 1983,

was noted and the doctrine was reaffirmed in Pierson v.

Ray, 386 U.S. 547 (1967). It was noted in Bradley v. Fisher

that the absence of such immunity

sé

. . would destroy that independence without which

no judiciary can be either respectable or useful.’’ 80

U.S. at 347.

It was also noted that the doctrine has been recognized

throughout the history of the common law. The leading

Indiana case on the subject, State ex rel. Egan v. Wolever,

127 Ind. 306 (1891), traces the rule to the Year Books

of the early kings of England. 43 Edw. III, 9; 9 Edw.

IV, 3; cited at 127 Ind. at 311.

The opinion of the United States Court of Appeals for

the Seventh Circuit in this case purports to uphold the

doctrine while finding this case to be outside its scope.

That determination of scope, however, is clearly erroneous

and would act to totally destroy the immunity.

The scope of the immunity was held by this Court in

Bradley v. Fisher and Pierson v. Ray to extend to the

point of the full subject matter jurisdiction of the defend-

ant judge. Only a clear absence of all jurisdiction over

the subject matter of the action would result in the denial

of the immunity. 80 U.S. at 351-353; 386 U.S. at 554. While

the Court of Appeals purported to find a total lack of

subject matter jurisdiction, the opinion of that Court shows

merely that the action of the defendant Judge Stump was

considered erroneous and that the result was one that the

judges of the Court of Appeals strongly disagreed with

on policy grounds. It is suggested that the basis of the

Court of Appeals opinion is its statement that:

‘“‘There are actions of purported judicial character

that a judge, even when exercising general jurisdiction,

is not empowered to take.’’ Pet. for Writ, p. A14.

The equation of the Court of Appeals that error is the

same as a clear lack of subject matter jurisdiction is ample

reason for reversal of that decision and reinstatement of

the order of dismissal of the District Court. The existence

of such an opinion, however, would appear to be reason

for this Court to examine more closely the standard of

clear absence of general subject matter jurisdiction.

The Indiana Court System.

In this case, the judge of a state court was sued in

federal court for actions which were asserted by the

defendant judge to have been within the scope of his

judicial power. Since the standard for determination of

the privilege is that of subject matter jurisdiction, the fed-

eral court must determine the question of the scope of

jurisdiction of the State Court. The State of Indiana would

assert most strongly that such determination must be made

as a question of state and not federal law. Basic principles

of federalism and comity would require such a result. Such

result is also demanded by recognition that the states retain

some measure of sovereignty within our federal system.

This Court has recognized that certain powers are reserved

to the states under the Tenth Amendment which may not

be interfered with by the federal government. National

League of Cities v. Usery, — U.S. —, 96 S.Ct. 2465 (1976.)

The determination of the jurisdiction of the courts within

the state judicial system must surely be one of those

reserved rights. A brief sketch of the Indiana judicial sys-

tem is therefore set out for the convenience of this Court.

The basic trial court unit of the Indiana judicial system

is the Circuit Court. This case involves a Cireuit Court.

The State of Indiana is divided into eighty-eight (88)

judicial circuits. Eighty-four (84) of these consist of one

county; the remaining four (4) consist of two counties

each. Indiana Code, 33-4-1-1, et seq. As the population and

caseload of a county increases to the point that the single

Circuit Court is insufficient, additional courts are created

by individual statute. These may include Superior Courts,

Probate Courts, Criminal Courts, and Juvenile Courts as

separate entities. The scope of jurisdiction of these courts

is set out in those creating statutes. Ordinarily these addi-

tional courts share judicial power concurrently with the

Cireuit Court. In some cases, however, these courts are

given exclusive jurisdiction so as to decrease the juris-

diction of the Cireuit Court. In the most populous county,

Marion County (Indianapolis), for example, the jurisdic-

tion of the Circuit Court is limited by grants of exclusive

jurisdiction to a Probate Court, Criminal Court and

Juvenile Court. Indiana Code, 33-8-1-9, 33-9-1-4, 33-12-2-3.

There are no such additional courts, however, in DeKalb

County, from which this action arose.

It should be noted that each county has a Juvenile Court,

but in counties with less than 250,000 population, the

Cireuit Court and judge fulfill the function of the Juvenile

Court and judge. Indiana Code, 33-12-2-1, 33-12-2-2. It was

held in the case of Harris v. Souder, 233 Ind. 287 at 291

(1954), that the Cireuit Court judge when exercising juve-

nile jurisdiction was not acting as judge of a separate

court. That case was later overruled to the extent that

it would allow the court to deny an offender found to

be a juvenile the right to have his case transferred to

the Juvenile Court for a full and formal determination

of whether the case should be waived back for trial of

the defendant as an adult. Hicks v. State, 249 Ind. 24 at

29 (1967). That holding in Hicks, however, would not

appear to be a total overruling of the proposition that

the Circuit Court and Juvenile Court, in counties of less

than 250,000 population, are not separate entities, but that

the latter is a jurisdiction within the former.

For purposes of this brief, it is not necessary to consider

the appellate system or the system of courts of limited

misdemeanor and small claims jurisdiction Insofar as

relevant to this case, the Circuit Court of DeKalb County

was the sole general jurisdiction court. As such its jurisdic-

tion is that set forth in Indiana Code 33-443 (set out

in full in the Petition for Writ of Certiorari at p. 5),

which is ‘‘original exclusive jurisdiction in all cases at

law and in equity whatsoever.”’

Subject Matter Jurisdiction,

It must then be considered what the term ‘‘subject matter

jurisdiction’? means. For purposes of judicial immunity,

determinations of a defendant judge as to the presence

or lack of jurisdiction should be viewed liberally in favor

of a finding that jurisdiction exists. Any lack of jurisdic-

tion, to defeat the immunity, must be clear and obvious

‘*Indeed some of the most difficult and embarrassing

questions which a judicial officer is called upon to

consider and determine relate to his jurisdiction, or

that of the court held by him, or the manner in which

the jurisdiction shall be exercised.’’ Bradley v. Fisher,

supra 80 U.S. at 352.

The example used in Bradley was that if a probate court

judge, whose jurisdiction is limited to wills and decedents’

estates, should attempt to judicially punish persons for

violation of criminal laws, then there would be no im-

munity. But the judge of a court having criminal juris-

diction would be immune if he were to try a defendant

for an act which was not a crime or impose a penalty

greater than allowed by law. Ibid.

That question of the meaning of subject matter juris-

diction was considered in the context of judicial immunity

and as a matter of Indiana law in the leading case of

State ex rel. Egan v. Wolever, supra. It was there stated :

‘*Where a court of limited jurisdiction has, in a given

ease, jurisdiction of the subject-matter, and of the

persons interested, the same immunity is accorded to

the judge, or magistrate, that is in any case accorded

to the judge of a court of general jurisdiction. And

here we would remark, that by jurisdiction of the

subject-matter is not meant simple jurisdiction of the

particular case then occupying the attention of the

court, but jurisdiction of the class of cases to which

the particular case belongs . . . In the latter case it

is said that by subject-matter is meant the abstract

thing and not the particular case.

It is said that in courts of general jurisdiction, an

action never lies against the judge because he has juris-

diction of all causes.’’ 127 Ind. at 315.

Thus, the nature of the case is not a grounds for holding

that a court of general jurisdiction lacks subject matter

jurisdiction so as to subject a judge to liability. It was

noted, however, that it was possible for a court of general

jurisdiction to lack jurisdiction in certain circumstances.

The examples given are that of a judge purporting to act

after the case was concluded or after a change of venue

was taken.

These examples given are of questionable authority to-

day in light of later decisions of Indiana courts, however.

In Smith v. Indiana State Board of Health, — Ind. App.

—, 303 N.E. 2d 50 at 53, the Indiana court noted that even

though a proper motion for change of venue deprives the

court in which it is filed of further jurisdiction, yet some

vestige of jurisdiction is retained to decide any necessary

interlocutory matters. In J.J. Case Co. v. Sandefur, 245

Ind, 213 at 217, it was alleged that the trial court had

lost jurisdiction upon the death of the original plaintiff

since the action was not covered by the statute on survival

of actions. It was there held:

‘*‘So long as a court has general jurisdiction of the

subject matter to which a case belongs, a defendant

may waive his right to object to the jurisdiction by

failing to make timely and specific objections thereto.’

In the case of Farley v. Farley, 157 Ind. App. 385 at

395-399, it was argued that the allowance of attorney fees

and litigation expenses 149 days after the entry of the

divorce decree was void because the time for such modifica-

tion of the decree had passed. The Indiana court ruled

that such matters were not questions of subject matter

jurisdiction, The trial court had power to act in divorce

actions as a class, therefore the bar to the specific action

of the trial court was not one involving general subject

matter jurisdiction and was valid because no timely

objection had been made. 157 Ind. App. at 398.

It may ve noted that this Court recently refused to

consider an issue of subject matter jurisdiction which was

not timely raised. It was noted that the issue ‘‘is not of

the jurisdictional sort which the Court raises on its own

motion.’’ Mt. Healthy City School District v. Doyle, —

U.S. —, 97 S.Ct. 568 at 572 (1977). Yet federal courts

are not courts of general jurisdiction but of limited juris-

diction. It would thus appear that such jurisdictional bars

are not of the force that they were at the time of the

decision of the Wolever case.

Returning to the basic question of subject matter juris-

diction, it is noted that under Indiana law, jurisdiction

is of two types, although these are sometimes confused

in opinions. The general power over a class of cases is

subject matter jurisdiction. Jurisdiction of the particular

case deals with the right to entertain a particular case

within that class of cases. Farley v. Farley, supra. Only

the general subject matter jurisdiction is involved for con-

siderations of judicial :mmunity.

It is also essentiai to distinguish between subject matter

jurisdiction in the broad sense relevant to judicial

immunity and the issue of failure to state a claim.

‘‘The question of jurisdiction of the subject matter

is not dependent upon the validity of the demands

set forth in the somplaint nor upon the sufficiency

of the allegetin.* thereof.’’ Noblesville City Plan

Commission v. Gatewood, 134 Ind. App. 609 at 612

(1963.)

That distinction is also the law of the federal courts. As

stated in Bell v. Hood, 327 U.S. 678 at 682 (1946) :

‘For it is well settled that the failure to state a proper

cause of action calls for a judgement on the merits

and not for a dismissal for want of jurisdiction.’’

The case of A.L. v. G.R.H., — Ind. App. —, 325 N.E.

2d 501 (1975), has been treated as of major significance

throughout this case. In that decision, the Indiana courts

ruled in a declaratory judgment action that a parent had

no common law right to have his or her child permanently

and involuntarily sterilized. That ruling, it is asserted by

the State of Indiana, did not specifically decide any ques-

tion of subject matter jurisdiction, except that it gives rise

to an inference that subject matter jurisdiction exists, as

noted by the District Judge. Pet. for Writ at A6. The

question there was whether there was a legal right to do

so, not whether a court had jurisdiction to decide the issue.

Indeed, in that case the Indiana courts did decide the issue,

thus necessarily assuming that there was jurisdiction to

do so. Despite the opinion of the Court of Appeals in this

case, it cannot be considered to be the law that a court

has jurisdiction if it reaches the right decision but lacks

jurisdiction if it reaches the wrong decision. That question

is one of failure to state a claim rather than of jurisdiction.

The references in A.L. v. G.R.H. to circumstances under

which such sterilization could be done is an indication that

an Indiana court of general jurisdiction does has subject

matter jurisdiction to consider whether there is a legal

right to consider whether a parent may bring about the

involuntary sterilization of the child. The erroneousness

of the decision reached has never been a factor which would

deny judicial immunity.

Standard for Consideration of the Complaint.

This case was decided in the District Court upon a

Motion to Dismiss. The general rule is that such a motion

alleging failure to state a claim upon which relief may

be granted admits arguendo all the allegations of fact con-

tained in the Complaint. That standard appears inconsist-

ent with the rule in judicial immunity cases that immunity

cannot be defeated by mere allegations of wrongdoing and

that determinations of jurisdiction by the defendant judge

in the prior action giving rise to the further litigation

will be viewed in a favorable light. It should be noted

that in Bradley v. Fisher, supra, one of the major issues

was whether the immunity would be defeated if it were

determined that the defendant judge had acted maliciously

or corruptly. It was held that such allegations in a

Complaint were of no avail.

‘‘Few persons sufficiently irritated to institute an

action against a judge for his official acts would hesi-

tate to ascribe any character to the acts which would

be essential to the maintenance of the action.’’ 80 U.S.

at 348.

In this case, for example, the opinion of the Court of

Appeals notes and appears to place some weight upon what

is stated as the fact that the petition for involuntary

sterilization and judicial approval were never filed in court.

If the truth of that allegation were to be grounds for deter-

mining the availability of judicial immunity*, then the con-

flict would be clear. The purpose of judicial immunity is

to insure independent and principled decision making by

judges free from the pressure and harassment of vexatious

litigation. That purpose would be thwarted to the extent

that allegations of procedural error would be allowed to

defeat the protection given to judges in carrying out their

vital functions.

*Such a matter should not be considered vital, but merely

as one piece of circumstantial evidence as to whether the

judge had been acting in a judicial capacity in acting as he

did. In this case, it would be difficult to imagine any reason

for the parties to act as they did if Judge Stump’s actions

were not a judicial determination. Making the act of filing

to be central would create the possibility that a judge would

be found liable because of the failure of a clerk to perform

a ministerial duty.

CONCLUSION

For the foregoing reasons, the State of Indiana as

amicus curiae urges this Court to grant the Petition for

Writ of Certiorari in this case.

Respectfully submitted,