Amicus Brief — Stump v. Sparkman

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8 is THE JAN 9 1978!

Supreme Court of the Unit wblales,,. JR., CLERK

October Term, 1977

No. 76-1750

HARO!D D. STUMP, JOHN HINES, M.D..

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

Petitioners,

LINDA KAY SPARKMAN and LEO SPARKMAN,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

and

BR\EF FOR AMICI CURIAE

AMERICAN COALITION OF CITIZENS WITH DISABILITIES;

EPILEPSY FOUNDATION OF AMERICA:

COUNSEL FOR HANDICAPPED PEOPLE:

DEVELOPMENTAL DISABILITIES LAW PROJECT

ROBERT L. BURGDORF, JR.

MARCIA PEARCE BURGDORF DONALD N. BERSOFF

Of Counsel NANCY B. SHUGER

500 W. Baltimore Street

Baltimore, Md. 21201

Attorneys for Amici Curiae

The Paul M. Harrod Company, Baltimore, Maryland 21234

TABLE OF CONTENTS

Page

py rr eer ire eee iii

MOTION FOR LEAVE TO FILE BRIEF

EE 45 BEDWUS ods cde avi ee cessive xi

INTEREST OF AMICI CURIAE. ............0002 000000 1

SUMMARY OF ARGUMENT. ................-2000000 2

MIE ois RETF AHS POA R EI hoc cece 5

I. There was Clear Absence of Jurisdiction for Petitioners

to Consider and Approve the Petition for the Seriliza-

RRS PE Oey PPT EE TERT ET TE 5

A. Because Sterilization Is A Drastic Procedure Which

Is Scientifically, Medically, and Judicially Dis-

favored, and Because Procreation Is a Fundamental

Personal Right, Courts Have Never Been Deemed to

Possess Inherent Jurisdiction to Approve Steril-

B. Jurisdiction to Order Sterilization Can Exist, If At

All, Only Pursuant to Specific Statutory Authoriza-

Ge Wb Sabbdeleébhabwescewevsede ce caoccweds 12

C. Petitioner Had No Statutory or Common Law Basis

for His Approval of the Sterilization of Respondent .17

D. Petitioner Clearly Lacked Jurisdiction Over the

Person of Respondent. ................0ee000 23

Petitioner Had Jurisdiction to Hear the Question

of Jurisdiction, But No Jurisdiction to Consider

and Approve the Petition...................... 25

Jurisdiction of a Court Cannot be Exercised in

Total Absence of Due Process of Law. ........... 27

ll.The Asserted Basis for the Creation of a Doctrine of

Absolute Judicial Immunity Is Unsound and Unsupport-

able and the Doctrine Should Be Abolished. ......... 31

Respondent Satisfies All Requirements for recovery

Cee Bebe < bees ecaeececcehA sks. eb ee 32

The Justification Relied Upon to Create Absolute

Judicial Immunity Are Not Supported within the

Common Law or Legislative History of §1983. .. . .34

1. The Common Law. .............--00e0e0: 34

2. The Legislative History of the 1871 Civil

The Interests Undergirding the Continuance of

Absolute Judicial Immunity from Civil Damage

Liability Under §1983 Are Not Logically Support-

GR 0 dccccccekevetsehsestedeeidectetwsses 48

The Justifications Offered for Absolute Judicial

Immunity Apply Equally to Other State Officials

for Whom This Court Has Abolished the Doctrine. . .50

If Injunctions Against State Judicial Officers are

Permissible, It Is Unreasonable to Bar Money

iii

Ill. If Not Totally Abolished, the Doctrine of Judicial

Immunity Should be Attenuated to Allow the Recovery

of Damages in Situations Where a Judicial Act Creates

an Irreversible Abrogation of Fundamental Rights

Without Any Alternative Remedy. ................. 55

A. The Fundamental Constitutional Rights at Stake... .55

B. Damages Is the Only Available and Appropriate

Remedy to Redress the Violation of Respondent’s

Constitutional Rights Caused by Petitioner’s Au-

thorization of Her Sterilization. ................ 58

GSU bib cccdvennshaevecns Rinne é dee cae .67

TABLE OF CITATIONS

Cases

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

cert. den. 425 U.S. 936 (1976)...............05- xiii,9,22

Armstrong v. Manzo, 380 U.S. 545 (1965)................ 28

Barr v. Matteo, 360 U.S. 564 (1959). ..............-.. 33,49

Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965). ............. 32

Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966)...... 37,38,43

Beall v. Smith, L.R. 9 Ch. 85 (1873). ... 2... 0... ccc ce ee ee 8

Bell v. Hood, 327 U.S. 678 (1946)... 2... 0... ce eee 62,63

Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S.

Cd 2 5 k0G 6 An eee oa's mae ab ccecces 63,64

Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872). ..... 33,36,50

Brewer v. Valk, 204 N.C. 186, 167 S.E. 638 (1933)......... 7

Buck v. Bell, 274 U.S. 200 (1927). ............. '.... Passim

In re Clark, 21 Oh. Op. 2d 86, 185 N.E. 2d

FREES i Ss ee ee ee oe 23

Cooper v. Reynolds, 77 U.S. 308 (1870). ......... 6,24,25,26

Davis v. Berry, 216 F. 413 (S.D. lowa 1914). .............. 7

Doe v. McMillan, 412 U.S. 306 (1973) ........-...45. 33,49

Dunn v. Blumstein, 405 U.S. 330 (1972) ..........-5006- 30

Eisenstadt v. Baird, 405 U.S. 438 (1972) ........ 13,15,32,58

Erdmann vy. Stevens, 458 F.2d 1205

hs Mand nd in ech hehe abe hin cc haes ¢he6 04 53

~ Floyd vy. Barker’s Case, 77 Eng. Rep. 1305

ED 6 6 8 6665 066656.40608666066068 34

Frazier v. Levi, 440 S.W. 2d 393 (Tex. Civ. App.

DR tie hid eked ie iene he bane oot 16,18

Griffin v. Breckenridge, 403 U.S. 88 (1971) .............. 46

Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 32,58

Hamilton v. Rathbone, 175 U.S. 414 (1899). ............. 38

Harris v. Hardeman, 55 U.S. 334 (1852)... ........-5005. 24

Haynes v. Lapeer Circuit Judge, 201 Mich.

138, 166 N.W. 938 (1918) .. 0... . ce eee eee eee 7

In re Hendrickson, 12 Wash. 2d 600, 123 P.2d 322

ink dne debited bein Abs Goaede 0008s 7

Holmes v. Powers, 439 S.W. 2d 579 (Ky. 1968) ...... 16,18,21

Hostrop v. Board of Junior College District No.

SUS, Sa Fae SEP Coe Ele UFO kc cc cccccccecccuce 64

Imbler v. Pachtman, 424 U.S. 409 (1976). .......... 48,49,60

Ingraham v. Wright, 430 U.S. 651 (1977)......... 62,64,65,66

Jacobson v. Massachusetts, 197 U.S. 11 (1905).......... 56,64

Johnson v. Louisiana, 406 U.S. 356 (1972)... ............ 38

Joint Anti-Fascist Comm. v. McGrath, 341 U.S.

bois, ee ee 2 ee 28

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1951) ........ 46

In re Guardianship of Kemp, 43 Cal. App. 3d 758, 118

Gab, GG, Gees abn. nnch ccnte cancnes coves 16,18,22

Kendall v. United States, 37 U.S. 524 (1838)............. 24

In re Lambert, No. 61156 (Probate Ct. Davidson Cty.

Bene... Hs G, Be eiddin + Micke bce whkeesnn ese 16,18,21

Law Students Civil Rights Research Council, Inc. v.

Wadmond, 299 F. Supp. 117 (S.D. N.Y. 1969)

aff'd on other grounds 401 U.S. 154 (1971)......... 32,53

Leman v. Krentlar - Arnold Hinge Last Co., 284 U.S.

QED AISGED <6 00 canessbaddcbededbscc thins ede cs cvwes 53

Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972),

rev'd on other grounds sub nom O. Shea v. Littleton,

G06 UB, GRR ec 0 0 6 60 6 he cees Kedsecccoseans 43,59

Lynch v. Household Finance Corp., 404 U.S.

I a le i SAS EE fie id i 40,43,66

Marbury v. Madison, 1 Cranch 137 (1803) ............ 61,62

Mathews v. Eldridge, 424 U.S. 319 (1976) ............... 28

Ex Parte McCardle,74 U.S. (7 Wall.) 506 (1869)........... 38

Meyer v. Nebraska, 262 U.S. 390 (1923).............. 56,65

Mickle v. Henricks, 262 F. 687 (D. Nev. 1918)............. 7

Mine Workers vy. Illinois Bar Association, 389 U.S.

les Sea ee ee es oe i's cewek ee « 55

Mitchum vy. Foster, 407 U.S. 225 (1972). ........... 40,48,52

In re M.K.R., 515 S.W. 2d 467 (Mo. 1974)....... 16,17,18,22

Monroe v. Pape, 364 U.S. 167 (1961)...... 32,39 ,43,44,51,60

Morrison v. State, 252 S.W. 2d 97 (K.C. App. 1952)........ 23

Mullaney v. Wilbur, 421 U.S. 684 (1975) ................ 38

Neal v. Brim, 506 F.2d 6 (Sth Cir. 1975) ................ 32

New York Times Co. v. Sullivan, 376 U.S. 254

BB Ee Ade ENA aR a se 38

Nixon v. Condon, 286 U.S. 73 (1932)................ 62,64

Nixon v. Herndon, 273 U.S. 536 (1927). ............. 62,64

N.C. Ass'n for Retarded Children v. State of

N.C., 420 F. Supp. 451 (M.D.N.C. 1976) ........... 11,14

O’Connor v. Donaldson, 422 U.S. 563 (1975). ............ 33

Olmstead v. United States, 277 U.S. 438 (1928)........... 56

In re Opinion of the Justices, 230 Ala. 543, 162

I ee re re oe tee ae 7

O'Shea v. Littleton, 414 U.S. 488 (1974)...... 43,48,50,59,60

Palko v. Connecticut, 302 U.S. 319 (1937)............ 56,65

Pennoyer v. Neff, 95 U.S. 714 (1878). ..........00 00a ee 24

Pennsylvania Association for Retarded Children v.

Commonwealth of Pennsylvania, 343 F. Supp.

ee ee i edeeeeeeee 29

Picking v. Pennsylvania R. Co., 151 F. 2d 240

TS FO a ar a I ae . . 36,37,38

Pierson v. Ray, 386 U.S. 547 (1967)... .........005. Passim

Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. §2 (1976)... ........065. 23,24,32,58

Prince v. Massachusetts, 321 U.S. 158 (1944)............. 22

Randall v. Brigham, 74 U.S. (7 Wall.) 523

Rhode Island v. Massachusetts, 37 U.S. 657 (1838) ...... 5,17

Robertson v. Labor Board, 268 U.S. 619 (1925). .......... 24

Roe v. Wade, 410 U.S. 113 (1973) ..............48.. 52,58

San Antonio School District v. Rodriguez,

SBE Be. Fs 6 nad Wades 0s 6 ers ctcce 12,30,32,58

Scheuer v. Rhodes, 416 U.S. 232 (1974). ........ 33 ,48,49,51

Schwegmann Bros. v. Calvert Pistillers Corp.,

RE eh an inntiiddatiencettccenseoeweel 43

Screws v. United States, 325 U.S. 91 (1945). ............. 43

Shapiro v. Thompson, 304 U.S. 618 (1969) .............. 13

Shelton v. Tucker, 364 U.S. 479 (1969) .............. 30,31

Skinner v. Oklahoma, 316 U.S. 535 (1942). .......... Passim

Smith v. Board of Examiners, 85 N.J.L. 46, 88A,

RRL SS ee en re ee 7

Snyder v. Massachusetts, 291 U.S. 97 (1934) ............. 56

Spalding v. Vilas, 161 U.S. 483 (1896)............... 48,51

Stanley v. Georgia, 394 U.S. 557 (1969). ...........2405. 56

State v. Libbert, 96 Ind. App. 84, 177 N.E.

873 (1931) rehearing denied, 96 Ind. App. 84, 180

FE. Far Ce ac nce thea bhiebdcesebescceeéeds 19

State v. Perricone, 37 N.J. 463, 181 A.2d 751

(Seo ee OO ee eee 23

State ex rel. Bingham v. Home Brewing Co. of

Indianapolis, 183 Ind. 75, 105 N.E. 909 (1914)......... 19

Sterling v. Constantin, 287 U.S. 378 (1932) ............4.. 52

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) ... . 63,64

Tenney v. Brandhove, 341 U.S. 367 (1951) ........... 37,38

Torey v. Gian, Fie Geek © Ch 0 8 os db dee vecvcvceceni 62

Texas and New Orleans Railroad Co. v. Brotherhood

of Railway & Steamship Clerks, 281 U.S. 548

CHR 6 ix ce det ends ced ceossks 644 608% 62,64

Texas and Pacific Railway Co. v. Rigsby, 241 U.S.

PASE «kd k vo eee bh Chobe ded bobs bdee css 62,64

In re Thomson, 103 Misc. 23, 169 N.Y.S. 638 (Sup. Ct.),

aff'd sub nom. Osborn v. Thomson, 185 App. Div.

SOR, SFG GET. HR Cee 6 nen 04080066 60 acount 7

Union Pacific Railway Co. v. Botsford, 141

CE, Fo ans oars Se Rdwle baoteiseqnde cakes i 56,65

vii

United States v. Classic, 313 U.S. 299 (1941).......... 32,51

United States v. Guest, 383 U.S. 745 (1966).............. 46

United States v. Price, 383 U.S. 787 (1966) .............. 46

Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) ............ 24

Ex parte Virginia, 100 U.S. 339 (1879). ............ 33,48,60

Wade v. Bethesda Hospital, 337 F. Supp. 671 (S.D. Ohio

1971), motion den. 356 F. Supp. 380 (S.D. Ohio 1973). Passim

Walker v. City of Birmingham, 388 U.S. 307 (1967)........ 53

Wallace v. Labrenz, 411 Ill. 618, 104N.E.

Be PEPSI PRG WH o Vln Ree be ee SER 23

Williams v. Florida, 399 U.S. 578 (1970) .............25.. 38

Williams v. Rhodes, 393 U.S. 23 (1968) ................. 55

Williams v. Smith, 190 Ind. 526, 131 N.E. 2 (1921)....... 7,9

Windsor v. McVeigh, 93 U.S. 274 (1876) ...... 20,25,26,27,31

Wisconsin v. Constantineau, 400 U.S. 433 (1971).......... 29

Wisconsin vy. Yoder, 406 U.S. 205 (1971)............. 22,23

Wood v. Strickland, 420 U.S. 308 (1975) ............. 33,49

Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926),

aff'd per curiam, 275 U.S. 503 (1927)................. 50

Zenith Corp. v. Hazeltine, 395 U.S. 100 (1969) ........... 24

Constitutional Provisions and Statutes

ee ME es oo ns bg Woe dines 6 okb Ob bhsee ba |

Ce Gee, SU Tee as kL ea didci ce cevouuu el Passim

Ge ta TEs 6 on wo cFWER oh ARE oboe Se wuLA TS C32 Passim

Be. BOR Bess OE FERN vias BS COUN oak OSE Bes CON 9

Burns Ind. Stats, Ann. § §

16-13-13-1 through 16-13-13-4 (19F1).............. 9,18

Burns Ind. Stats. Ann. §

Dre CERI cin Shen Gach eee babeks PUI. 19

Burns Ind. Stats. Ann. §

BGeph GHP OP I6 a 59 heehee ee ee 21

Burns Ind. Stats. Ann. §

RG Br A ie bMS «Whe Wins Sela ec keer cee ccccs 21

Justices Protection Act. 11 & 12 Vict. c. 44 (1848) ........ 35

viii

Miscellaneous

Bligh, Sterilization and Mental Retardation,

95 AM, F, PEP GSP ch clebee nes’ wsccecccdecneve 8

Brand, The Discipline of Judges, 46 A.B.A.J.

SRRD Co nals eck date Re @hs Rwsewds bse 0d ba oced 61

Brazier, Judicial Immunity and the Independence

of the Judiciary, Public Law 297, Winter

R. Burgdorf and M.P. Burgdorf, The Wicked Witch

is Almost Dead: Buck v. Bell and the Sterilization

of Handicapped Persons, 50 Temp. L.Q.

FOO (IPG IR didi dren cate td Mie ches bows dee xiii,7,13,15

Committee of the American Neurological

Association, Eugenical Sterilization (1936).............. 9

Committee to Study Contraceptive Practices and

Related Problems, American Medical Association

Proceedings 54 (May, 1937) 20... ccc cccccccccccccs 10

Cong, Globe, 39th Cong., Ist Sess. (1866) .......... 41 42,43

Cong. Globe, 42d Cong.,

Bee Sec keh ee kkcbint onddcns 40,44,45 ,46,47,66

Note, Courts - - Scope of Authority - - Steriliza-

ticn of Mental Defectives, 61 Mich. L. Rev.

FR ae Oe ee ce re 8

Ferster, Eliminating the Unfit - - Is Sterilization the

Answer?, 27 Ohio St. L.J. 591 (1966)............. 9,11,15

Fiss, The Civil Rights Injunction, Addison C. Harris

Memorial Lectures, Indiana University 8

(Rah S, SBT én ncattbch iislns i Wola UbieG ec c cies 53,54

Gamble, What Proportion of Mental Deficiency is

Preventable by Sterilization?, 57 Am. J. Mental

Ot, Bae aa ack oe uicebe biGOrs SANs des 6h 2 10

Gauvey and Shuger, The Permissibility of Involuntary

Sterilization under the Parens Patriae and Police Power

Authority of the State: In re Sterilization of Moore,

6 Md. L. Forum 109 (1976)

Gest, Eugenic Sterilization: Justice Holmes v. Natural

ROW, SE BUM EE, Bee CBOs cc cc cece cccccccccous 15

Note, Human Sterilization, 35 Ia. L. Rev. 251 (1950)....... 10

Note, Immunity of Federal and State Judges from

Civil Suit - - Time For A Qualified Immunity?

27 Case West. Res. L. Rev. 727 (1977)...... 34,35 ,37,50,54

Note, the Individual and the Involuntary Sterilization

Laws; 1966, 31 Albany L. Rev. 97 (1967).............. 14

Jennings, Tort Liability of Administrative Officers, 21

et 5, TR, Be I gob 0-s ocd 6bcdcccccccceses 50

Kates, Immunity of State Judges Under the Federal

Civil Rights Acts: Pierson v. Ray Reconsidered,

65 Nev. V. L. Rev. 615 (1970) ............ 34,43,46,50,54

Kindregan, Sixty Years of Compulsory Eugenic

Sterilization: “Three Generations of Imbeciles’

and the Constitution of the United States, 43

Chicago-Kent L. Rev. 123 (1966)............... 10,14,15

Note, Liability of Judicial Officers Under Section

1983, 79 Yale L.J. 322 (1969) ......... 34,35 ,36,46,50,61

McCormack & Kirkpatrick, Immunities of State

Official Under Section 1983, Rutgers-Camden L.J. 65

SR ca oe ce Seu S alts tue aedbhenesevvuic tam eee 50

Miller, Discipline of Judges, 50 Mich. L. Rev.

yt Re a Te eT ee Gt nksweae ae 61

Murdock, Sterilization of the Retarded: A Problem

or a Solution?, 62 Cal. L. Rev. 917 (1974)...... 8,10,14,15

O’Hara & Sanks, Eugenic Sterilization, 45 Geo. L. J.

PE ko hivid & Wkb TKS AK ks 61s WSs 00'wb 04 G0 8,9,14,15

Pollock & Maitland, The History of English Law,

i ea eke eb ab eed hte eeesscedeves 34

Reed, Mental Retardation and Fertility, 18 Supp.

Social Biology, 542 (1971)... 6... ce cece eee eens 30

Sterilization of Persons who are Mentally Retarded, an

official statement of the American Association on

Mental Deficiency, approved by the AAMD Execu-

tive Committee Mar. 8, 1974, Guideline ITIA............ 12

Vukowich, The Dawning of the Brave New World - -

Legal, Ethical and Social Issues of Eugenics, 1971

§ FR CC. re oer 8

Wolfensberger, The Origin and Nature of our Institu-

EE es ea in Fabd obeeeveracetees 8

IN THE

Supreme Court of the United States

October Term, 1977

No. 76-1750

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

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

Petitioners,

LINDA KAY SPARKMAN and LEO SPARKMAN,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

The American Coalition of Citizens with Disabilities, the

Epilepsy Foundation of America, the Counsel for

Handicapped People, and the Developmental Disabilities Law

Project move this Court for permission to file the attached

Brief Amici Curiae. The proposed amici are “consumer”’ and

legal advocacy organizations who represent the interests of

handicapped persons. These organizations and their

xii

memberships are vitally interested in the outcome of this case

as it regards the legal permissibility of compulsory sterilization

of disabled individuals.

The American Coalition of Citizens with Disabilities, Inc.

(ACCD) is a _ not-for-profit organization whose members

include organizations of disabled individuals. ACCD’s

national members include the American Council of the

Blind, Epilepsy Foundation of America, National Association ©

for Retarded Citizens, National Association of the Deaf,

National Association of the Physically Handicapped, National

Paraplegia Foundation, Paralyzed Veterans of America, and

United Cerebral Palsy Associations. ACCD seeks to speak with

a unified voice advocating on behalf of the nation’s entire

disabled population. ACCD has taken an active role in

attempting to remedy past practices of discrimination against

physically and mentally handicapped citizens.

Epilepsy Foundation of America (EFA) is a non-profit

organization established to promote research, support

educational and vocational programs, and provide educational

information in regard to epilepsy and the problems faced by

persons having epilepsy. EFA’s national office in Washington,

D.C. is responsible for national programs which include

advocacy and patient services. In the past, persons with

epilepsy have been among those who have been singled out

for compulsory sterilization and, as part of its public

education and advocacy efforts, EFA has successfully labored

for the repeal of involuntary sterilization statutes in many

states.

The Counsel for Handicapped People is a not-for-profit

corporation whose purpose is to promote, encourage, and

secure the human and legal rights of handicapped people. The

xiii

organization seeks to secure equality under law for

handicapped persons through the enactment and

implementation of legislation, through. educational efforts,

through administrative processes, and through litigation. One

of the major areas of concern of the Counsel for Handicapped

People is the protection of the marital, sexual, and procreative

rights of individuals who have physical and mental handicaps.

The Developmental Disabilities Law Project is a law

reform/legal education program of the University of Maryland

Law School whose purpose is to advocate on behalf of the

legal rights of developmentally disabled (mentally retarded,

cerebral palsied, epileptic, autistic, and other severely

disabled) persons. One of the priority concerns of the Project

is protection of disabled persons’ rights in regard to

procreation and sterilization, and the Project has been

involved in research, publication, and litigational efforts

regarding issues raised by compulsory sterilization. Among the

specific accomplishments of the Project in this area of the law

have been the preparation of two law review articles* and the

involvement of a Project attorney as co-counsel in A.L. v.

G.R.H., 325 N.E.2d 501 (Ind. App. 1975), cert. den. 425

U.S. 936 (1976), which, as a relevant Indiana legal precedent,

was and is a factor in the present case.

* R. Burgdorf and M.P. Burgdorf, The Wicked Witch is

Almost Dead: Buck vy. Bell and the Sterilization of

Handicapped Persons, 52 Temp. L.Q. 995 (1977); Gauvey &

Shuger, The Permissibility of Involuntary Sterilization Under

the Parens Patriae and Police Power Authority of the State:

In re Sterilization of Moore, 6 Md. L. Forum 109 (1976).

xiv

The present case raises questions of the authority of

judges to order the performance of involuntary sterilization

operations in the absence of statutory authorization. To these

questions, the proposed amici organizations would lend a

perspective of the interests of disabled people generally,

beyond the more confined presentations of the specific parties

to this action. The proposed amici would present several

factual and legal matters concerning the historical sources of

compulsory sterilization, the reasons for its increasing disuse,

and the legal questions it raises, which will not likely be

provided to this Court by the parties in this case. The

proposed amici hope to apprise this Court of the current

status of involuntary sterilization practices in modern

scientific philosophical, medical, and legal contexts, and to

point out the grievous danger to handicapped citizens which

would result if the modern trend of disfavor toward

compulsory sterilization were to be reversed by permitting

judges to authorize sterilizations in circumstances such as

those in this case.

The proposed amici would also give voice to the personal

interests and fundamental constitutional rights of handicapped

people which are threatened by involuntary sterilization, and

these organizations would argue the need for an appropriate

remedy when such constitutional deprivations occur.

Some of the proposed amici organizations have devoted

much time and energy to public education, drafting of

legislation, and lobbying efforts aimed at securing the repeal

of mandatory sterilization laws and educating physicians and

other professionals as to the lack of scientific and medical

justification for involuntary sterilization practices. By and

large, the professional communities and public officials have

become increasingly opposed to compulsory sterilization. And

yet, these efforts by the proposed aniici, medical and

scientific leaders, and state legislatures may come to nought if

judges are granted the unilateral power to authorize

sterilization in the absence of a statute so providing. The

judicial conduct challenged in this action is of an extreme

nature; it is an isolated example of a judicial act in which

other judges have almost never engaged. But if no remedy is

provided to the Respondent in this case and if the Petitioner

is allowed to escape from liability for his acts, then there is a

grave danger to handicapped people that such judicial conduct

will be replicated. And, although it has been stymied by

modern legislative efforts and scientific enlightenment, the

specter of compulsory sterilization could thus rise again.

The technical issues of jurisdiction and judicial immunity

dealt with in this case should be examined within the context

of the serious dangers to fundamental personal rights of

disabled citizens which are entailed by the factual situation

from which the case arises. The proposed amici organizations

hope to provide such a broader, substantive perspective to this

Court.

Wherefore, the American Coalition of Citizens with

Disabilities, the Epilepsy Foundation of America. the Counsel

for Handicapped People, and the Developmental Disabilities

Law Project respectfully pray this Court for permission to file

the attached Brief Amici Curiae.

December 16, 1977 ROBERT L. BURGDORF, JR.

500 W. Baltimore Street

3altimore, Md. 21201

Counsel for the American Coalition

of Citizens with Disabilities, the

Epilepsy Foundation of America,

the Counsel for Handicapped

People, and the Developmental

Disabilities Law Project

IN THE

Supreme Court of the United States

October Term, 1977

No. 76-1750

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

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

Petitioners,

LINDA KAY SPARKMAN and LEO SPARKMAN,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR AMICI CURIAE

AMERICAN COALITION OF CITIZENS WITH DISABILITIES;

EPILEPSY FOUNDATION OF AMERICA;

‘COUNSEL FOR HANDICAPPED PEOPLE;

DEVELOPMENTAL DISABILITIES LAW PROJECT

INTEREST OF AMICI CURIAE

The interest of amici curiae is set out in the attached

Motion for Leave to File Brief Amici Curiae, pp. xi-xv, supra.

SUMMARY OF ARGUMENT

There is no legal precedent, either historical or recent,

for courts to possess an inherent authority to authorize

sterilizations. Indeed, modern scientific, medical, and judicial

disfavor of compulsory sterilization argues strongly against

the existence of such authority. Sterilization is a drastic

invasion of fundamental personal rights, Skinner y.

Oklahoma, 316 U.S. 535 (1942), and the eugenics theories

which were once thought to support involuntary sterilization

have long since been disproven.

The power to order sterilization, if it can be justified

in any circumstances, is certainly not justifiable in the

absence of a specific statutory provision so authorizing. In

this case, Petitioner had no statutory or common law

authority to approve sterilization of Respondent. Moreover,

because Petitioner did not cause notice of the petition for

sterilization to be given to Respondent and did not give her

any opportunity to appear or to be represented in the

proceedings, Petitioner lacked jurisdiction over the person of

Respondent.

It is of no avail for Petitioner to argue that every

court has the jurisdiction to hear the question of its own

jurisdiction, for Petitioner went far beyond the consideration

of the extent of his own jurisdiction and proceeded to

approve the sterilization of Respondent.

In addition, Petitioner acted in this case in the

complete absence of any and all elements of procedural due

process which are essential to the exercise of judicial

jurisdiction. By acting in the absence of statutory authority,

by failing to appoint a guardian ad litem, by failing to have

any notice given to Respondent, by failing to hoid any

hearing, by failing to file anything in court, and by failing

to allow any appeal, Petitioner clearly removed this case

from the scope of his jurisdiction.

While Respondent satisfies all the specific requirements

for recovery of damages in actions under 42 U.S.C. §1983,

she is faced with the doctrine of judicial immunity as a

possible bar to her recovery, Pierson v. Ray, 386 U.S. 547

(1967). The doctrine of judicial immunity is, however,

inapplicable in this case because Petitioner acted in clear

absence of jurisdiction. Moreover, amici suggest that the

justifications offered in Pierson for an absolute judicial

immunity are not sound, and that a review of the common

law doctrine of judicial immunity and an examination of

the legislative history surrounding §1983 reveals that Pierson

was wrongly decided.

The doctrine of absolute judicial immunity does not

serve legitimate public interests. The justifications which are

offered in support of the doctrine apply equally well to

other state officials, and yet this Court has seen fit to

abolish official immunity in those other contexts. It is also

logically inapposite to continue to allow absolute judicial

immunity to monetary damages while at the same time

injunctions are permitted to be issued against state judicial

officers.

For these reasons, the doctrine of absolute judiciul

immunity as a bar to damage actions under §1983 is not

on a sound footing and should be abolished.

But even if this Court does not wish to go so far as to

abolish absolute judicial immunity, the doctrine should

certainly not be applied in a situation like the present case

where its application would prohibit the only possible remedy

for the deprivation of Respondent’s constitutional rights.

Procreation and privacy are fundamental constitutional rights;

Respondent suffered a denial of these rights because of

Petitioner’s acts. In the circumstances of this case, where

Respondent learned of her sterilization only long after the

fact, and no other appropriate remedies are available, an

action for monetary damages under §1983 represents

Respondent’s only hope for vindication of her rights. In these

circumstances, the doctrine of absolute judicial immunity

should be attenuated to permit Respondent a remedy for the

irreversible abrogation of her fundamental rights.

THERE WAS CLEAR ABSENCE OF

JURISDICTION FOR PETITIONER TO

CONSIDER AND APPROVE THE PETITION FOR

THE STERILIZATION OF RESPONDENT.

The requirement that courts must possess jurisdiction

over matters in which they presume to take judicial action is

a longstanding principle of American jurisprudence. In 1838,

this Court, in setting out ground rules concerning the

necessity of jurisdiction, said that whenever the question of

jurisdiction arises:

it must be considered and decided, before any court

can move one further step in the cause; as any

movement is necessarily the exercise of jurisdiction.

Jurisdiction is the power to hear and determine the

subject matter in controversy between parties to a

suit, to adjudicate or exercise any judicial power

over them; the question is, whether on the case

before a court, their action is judicial or

extrajudicial; with or without the authority of law,

to render a judgment or decree upon the rights of

the litigant parties. If the law confers the power to

render a judgment or decree, then the court has

jurisdiction; what shall be adjudged or decreed

between the parties, and with which is the right of

the case, is judicial action, by hearing and

determining it. '

Rhode Island v. Massachusetts, 37 U.S. 657, 718

(1838).

It is a matter of almost equally venerable precedent that

jurisdiction requires: (1) authority over the subject matter of

a proceeding; (2) authority over the parties; and (3) the

power to take the action or render the judgment

contemplated. Cooper v. Reynolds, 77 U.S. 308, 316 (1870).

The Petitioner in this action acted in circumstances where

there was a clear absence of each of these elements of

jurisdiction.

A. Because Sterilization Is a Drastic Procedure Which Is

Scientifically, Medically, and Judicially Disfavored, and

Because Procreation Is a Fundamental Personal Right, Courts

Have Never Been Deemed to Possess Inherent Jurisdiction to

Approve Sterilizations.

We are dealing here with... one of the basic civil

rights of man. Marriage and procreation are

fundamental to the very existence and survival of

the race. The power to sterilize, if exercised, may

have subtle, far-reaching and devastating effects. In

evil or reckless hands, it can cause races or types

which are inimical to the dominant group to wither

and disappear. There is no redemption for the

individual whom the law touches. Any experiment

which the State conducts is to his irreparable injury.

He is forever deprived of a basic liberty.

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

Because of such sentiments, compulsory sterilization has

generally been viewed with disdain in American society. The

courts in this country have cast a wary eye upon legislative

enactments which seek to impose a permanent deprivation of

the ability to procreate and have been quick to strike down

forced sterilization practices which come into conflict with

the constitutional rights of affected individuals. Thus,

sterilization measures have been judicially invalidated as

violative of equal protection of the laws,’ as denials of due

process of law,? as “cruel and unusual punishment”,? and

even as “bills of attainder”.* In light of the importance of

the rights at stake and of the gravity to the individual of

the irreversible intrusion of sterilization, it is not surprising

that there is no legal precedent for judges to order

sterilization simply by claiming that they possess the

inherent power to do so.

There is no English common law precedent for an

inherent authority of courts to order sterilization

1 Skinner v. Oklahoma, 316 U.S. 535 (1942); Haynes y.

Lapeer Circuit Judge, 201 Mich. 138, 166 N.W. 938 (1918);

Smith v. Board of Examiners, 85 N.J.L. 46, 88 A.963 (1913);

In re Thomson, 103 Misc. 23, 169 N.Y.S. 638 (Sup. Ct.),

aff'd sub nom. Osborn v. Thomson, 185 App. Div. 902, 171

N.Y.S. 1094 (1918).

2 In re Hendrickson, 12 Wash. 2d 600, 123 P.2d 322

(1942); Brewer v. Valk, 204 N.C. 186, 167 S.E. 638 (1933);

In re Opinion of the Justices, 230 Ala. 543, 162 So. 123

(1935); Williams v. Smith, 190 Ind. 526, 131 N.E. 2 (1921);

Davis v. Berry, 216 F. 413, 418 (S.D. Iowa 1914).

3 Davis v. Berry, 216 F. 413, 416-417 (S.D. lowa 1914);

Mickle v. Henrichs, 262 F. 687 (D. Nev. 1918).

* Davis v. Berry, 216 F. 413, 419 (S.D. lowa 1914). The

cases discussed in nn. 1-4 should be contrasted with Buck v.

Bell, 274 U.S. 200 (1927), discussed below at pp. 13-16 see

generally, R. Burgdorf and M.P. Burgdorf, “The Wicked Witch

is Almost Dead: Buck v. Bell and the Sterilization of

Handicapped Persons,’’ 50 Temp. L.Q. 995 (1977).

procedures.’ Indeed, it was not until the end of the

nineteenth century that a practical and effective surgical

method for producing sexual sterility was devised. The

development of tubal ligation and vasectomy operations

around the turn of the century occurred at about the same

time as a “eugenics scare” began to gain momentum in

America.” Proponents of eugenics theories preached that our

society was threatened by race degeneration through the

spread of hereditary defects and advocated the scientific

control of human heredity. In the wake of such

propaganda.,a number of states passed compulsory eugenic

5 See, Note, Courts — Scope of Authority —

Sterilization of Mental Defectives, 61 Mich. L. Rev. 1359,

1360-1361 (1963). The British common law principles in

regard to jurisdiction over incompetent persons were

summed up in Beall v. Smith, L.R. 9 Ch. 85 (1873): “It is

to be bore in mind that unsoundness of mind gives the

Court of Chancery no jurisdiction whatsoever. The Court of

Chancery is not the curator either of the person or the estate

of a person non compos mentis whom it does not and cannot

make its ward.”

® See, Murdock, Sterilizution of the Retarded: A

Problem or a Solution?, 62 Cal. L. Rev. 917, 920 (1974);

O’Hara and Sanks, Eugenic Sterilization, 45 Geo. L.J. 20

(1956).

7 See, Vukowich, The Dawning of the Brave New

World — Legal, Ethical, and Social Issues of Eugenics, 1971

U. Ill. L. Forum 189 (1971); Bligh, Sterilization and Mental

Retardation, 51 A.B.A.J. 1059 (1965).

8 Ibid.; see also, Kindregan, Sixty Years of Compulsory

Eugenic Sterilization: ‘Three Generations of Imbeciles’ and

the Constitution of the United States, 43 Chicago-Kent

L. Rev. 123 (1966); Wolfensberger, The Origin and Nature of

our Institutional Models 33-39 (1975).

sterilization statutes.® Ironically, the nation’s first such law

was passed in 1907 in Indiana, the state in which the

present controversy arose.'® This Indiana statute was found

to be unconstitutional by the Indiana Supreme Court in

1921,'' was replaced by a redrafted statute, and was finally

repealed in 1974.'?

The eugenics movement was in vogue for a relatively

short period of time. From the early 1930’s onward,

modern scientific studies began to challenge and undermine

the eugenicists’ theories.'? It became increasingly apparent

that the laws of heredity developed by Mendel in his

® O’Hara and Sanks, Eugenic Sterilization, 45 Geo LJ.

20, 22 (1956).

10Ind. Acts. 1907, c. 215.

1! Williams v. Smith, 190 Ind. 526, 131 N.E. 2 (1921).

12-1971 Indiana Code 16-13-13-1 through 16-13-13-4;

A.L. v. G.R.H., 325 N.E. 2d 501, 502 n.1 (Ind. App. 1975),

cert. den. 425 U.S. 936 (1976).

13 In 1936, the American Neurological Association

issued a report which criticized the overwhelming emphasis

being given to heredity as a cause of mental retardation,

mental illness, epilepsy, pauperism, and other disabilities. The

report concluded that environmental factors were at least as

potent as genetic factors in causing these handicaps and that

there was no evidence oi any increase in such conditions or of

any biological deterioration of the human race, and asserted

that under the present state of knowledge concerning

heredity, no compulsory sterilization programs were justified.

Committee of th: American Neurological Association,

Eugenical Sterilization (1936), discussed in Ferster,

Eliminating the Unfit—Is Sterilization the Answer?, 27 Ohio

St. L.J. 591, 602-603 (1966).

experimentation with peas cannot be applied carte blanche in

the context of human characteristics.'* Contrary to the

beliefs of eugenics zealots, two mentally retarded parents

often bear childen of normal intelligence. Conversely, it has

been estimated that 89 percent of all mentally retarded

children come from “normal” parentage.'* Theories that

epilepsy, insanity, and other traits are hereditary were likewise

refuted by modern scientific evidence.' ©

As the eugenics movement has waned, so has the

prevalence of and the justification for mnon-consensual

Footnote '? (Continued)

In 1937, the American Medical Association declared:

“Our present knowledge regarding human heredity is so

limited that there appears to be very little scientific basis to

justify limitation of conception for eugenic reasons.”

Committee to Study Contraceptive Practices and Related

Problems, American Medical Association Proceedings, 54

(May, 1937), quoted in Ferster, id, at 603.

14 See, Note, Human Sterilization, 35 la. L. Rev. 251,

254 (1950).

'S Jbid.; Kindregan, Sixty Years of Compulsory Eugenic

Sterilization: ‘Three Generations of Imbeciles’ and _ the

Constitution of the United States, 43 Chicago-Kent L. Rev.

123, 139 (1966). One study of two institutions for mentally

retarded children found that 15 percent of the children were

born of parents one or both of whom were retarded, i.e., 85

percent were bom of “normal” parents, Gamble, What

Proportion of Mental Deficiency is Preventable by

Sterilization?, 57 Am J. Mental Defic. 123, 124 (1952),

discussed in Murdock, Sterilization of the Retarded: A

Problem or a Solution?, 62 Cal. L. Rev. 917, 926 N.56

(1974).

16 See. Note Human Sterilization, 35 la. L. Rev. 251,

254 (1950).

sterilizations. The number of states having compulsory

sterilization laws has been decreasing, and even in states where

there is such a law the number of sterilization operations

actually performed has been dropping.'”

Physicians and other professionals have become skeptical

of the benefits to be derived from compulsory sterilization.

The current medical outlook was recently summed up in the

findings of a three-judge federal court which examined a

North Carolina statute dealing with the sterilization of

mentally retarded people:

We think it a fair statement, from the expert

testimony we have heard and read, to say that the

best opinion presently is that rarely would a

competent doctor recommend involuntary

sterilization — but that he might do so in an

extreme case. As a corollary to that proposition, it

is also fair to say, we think, that prevalent medical

opinion views with distaste even voluntary

sterilization for the mentally retarded and is

inclined to sanction it only as a last resort and in

relatively extreme cases. In short, the medical and

genetical experts are no longer sold on sterilization

to benefit either retarded patients or the future of

the Republic.

N.C. Ass'n. for Retarded Children v. State of N.C,

420 F. Supp. 451, 454 (M.D.N.C. 1976).'®

'7 Ferster, Eliminating the Unfit—Is Sterilization the

Answer?, 27 Ohio St. L.J. 591, 613, 619 (1966).

18 The court went on to observe: “Between June 1970

and April, 1974, 23 sterilizations were performed upon

residents of North Carolina’s mental retardation centers

pursuant to the provision of the preceding statute. Viewed

over a longer time span, there has been a diminishing

frequency in use of the sterilization procedure, reflecting, we

think, diminishing confidence of medical doctors in its

efficacy for any purpose except to prevent conception. That

will do.” Jd. at 454.

This professional disfavor of unconsented sterilization was

highlighted in 1974 when the American Association on Mental

Deficiency, an organizatidn of professionals, many of whom

are employed in public facilities for mentally retarded

persons, issued an official policy statement which ceclared:

“The American Association on Mental Deficiency strongly

opposes the enactment and application of statutes that permit

involuntary sterilization.”! ?

Therefore, not only —_ iiere no historical precedent for a

court to have an inherent power to order sterilization, but the

judicial, scientific, and medical antipathy toward compulsory

sterilization make it clear that there is no legitimate rationale

for a judge to invent such a power. At a time in history when

legislatures, physicians, and scientists agree that compulsory

sterilization is not justifiable, a judge has no authority

unilaterally to conjure up the power to deprive a citizen of

the right to procreate, “one of the basic civil rights of man,”

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also,

San Antonio School District v. Rodriquez, 411 U.S. 1, 34

n. 76 (1973).

B. Jurisdiction To Order Sterilization Can Exist, If At

All, Only Pursuant to Specific Statutory Authorization.

This Court has had two previous opportunities to

examine the legal validity of compulsory sterilization. In the

most recent of these cases, Skinner v. Oklahoma, 316 U.S.

535 (1942), the right to procreate was specifically declared to

1% Sterilization of Persons who are Mentally Retarded,

an Official statement of the American Association on Mental

Deficiency, approved by the AAMD Executive Committee

March 8, 1974, Guideline IIIA.

be a fundamental constitutional right. Jd. at 541. Skinner

involved a challenge to a statute authorizing the involuntary

sterilization of “habitual criminals,” a category which included

convicted larcenists but not embezzlers — a nearly

indistinguishable class of criminals. In striking the statute

down as a violation of equal protection, the Court held that

sterilization statutes are to be subjected to strict judicial

scrutiny:

[S] trict scrutiny of the classification which a State

makes in a sterilization law is essential, lest

unwittingly, or otherwise, invidious discriminations

are made against groups or types of individuals in

violation of the constitutional guaranty of just and

equal laws.

Id. at 514.

Under this strict scrutiny standard, a statutory classification

will be unconstitutional unless a compelling governmental

interest can be demonstrated. Shapiro v. Thompson, 394 U.S.

618, 634 (1969); Eisenstadt v. Baird, 405 U.S. 438 (1972).

The other Supreme Court decision dealing with

sterilization occurred in 1927 when, at the height of a

“eugenics scare’ which gripped the United States and some

other countries, a compulsory sterilization statute was upheld

in Buck v. Bell, 274 U.S. 200 (1927). In the ensuing fifty

years, most of the scientific and legal basis of Buck v. Bell

have been discredited.2° The eugenic and racial purification

20 See generally, R. Burgdorf and M.P. Burgdorf, The

Wicked Witch is Almost Dead: Buck v. Bell and the

Sterilization of Handicapped Persons, 50 Temp. L.Q. 995

(1977).

theories which gave rise to the decision have long been

discarded.?' It is generally agreed that the phrase “Three

generations of imbeciles are enough,” id. at 207, upon which

Justice Holmes based his reasoning in writing the opinion of

the Court, was a serious misinterpretation of the facts of the

case. Neither the mother of Carrie Buck nor Carrie’s daughter

were “imbeciles.” In fact, the latter turned out to be very

bright.??

In N.C. Ass'n for Retarded Children v. State of N.C.,

420 F. Supp. 451 (M.D.N.C. 1976) the court found that,

“Most competent geneticists now reject Social Darwinism and

doubt the premise implicit in Mr. Justice Holmes’

incantation ...”’ Id. at 454.

21 See, nn. 13-16, supra, and accompanying text. The

collapse of the scientific foundation of the Buck v. Bell

analysis has been aptly summarized: “In the . . . decades since

Buck vy. Bell was handed down, concepts of heredity that gave

the eugenic sterilization laws much of their substance have

been eroded by the further development of science.

Examination of the present state of science discloses little

ground indeed for the eugenic sterilization laws to rest upon.”

Note, The Individual and the Involuntary Sterilization Laws,

1966, 31 Albany L. Rev. 97, 102 (1967).

22 See, e.g., Murdock, Sterilization of the Retarded: A

Problem or a Solution?, 62 Cal. L. Rev. 917, 921 (1974);

O’Hara and Sanks, Eugenic Sterilization, 45 Geo. LJ. 20,

31-32 (1956); Kindregan, Sixty Years of Compulsory Eugenic

Sterilization: ‘Three Generations of Imbeciles’ and the

Constitution of the United States, 43 Chicago-Kent L. Rev.

123, 133, n.52 (1966).

The analysis employed by the Court in Buck v. Bell is

also subject to question because it involved only a rational

basis standard of review of the challenged sterilization statute.

Subsequent rulings, such as Skinner v. Oklahoma, 316 U.S.

535 (1942) and Eisenstadt v. Baird, 405 U.S. 438 (1972),

have made it clear that procreation is a fundamental right and

that measures which seek to deny that right must be

subjected to compelling state interest scrutiny. The apparent

inconsistencies of the holdings in Buck and in Skinner suggest

that the reasoning in Buck may well be anachronistic today.??

For these and other reasons, Justice Holmes’ opinion in

Buck v. Bell has been widely and severely criticized.2* Some

commentators have speculated that this Couit would reverse

its holding if again asked to rule on a eugenic sterilization

law.?§

23 See, Murdock, Sterilization of the Retarded: A

Problem or a Solution?, 62 Cal. L. Rev. 917, 921-922 (1974).

24 Eg. R. Burgdorf and M.P. Burgdorf, The Wicked

Witch is Almost Dead: Buck vy. Bell and the Sterilization of

Handicapped Persons, 50 Temp. L.Q. 995 (1977); Gest,

Eugenic Sterilization: Justice Holmes v. Natural Law, 23

Temp. L.Q. 306 (1950); O’Hara and Sanks, Eugenic

Sterilization, 45 Geo. LJ. 20, 29-32 (1956); Ferster,

Eliminating the Unfit—Is Sterilization the Answer?, 27 Chio

St. LJ. 591, 617 (1966); Kindregan, Sixty Years of

Compulsory Eugenic Sterilization: ‘Three Generations of

imbeciles’ and the Constitution of the United States, 43

Chicago-Kent L. Rev. 123, 134-135, 143 (1966).

25 Eg. Ferster, Eliminating the Unfit—Is Sterilization

the Answer?, 27 Ohio St. L.J. 591, 596, n.29 (1966) and the

authorities cited therein.

But whatever the shortcomings and current viability of

Buck v. Bell, 274 U.S. 200 (1927), it is clear that neither in

it, in Skinner, ror in any other case, has this Court ever

indicated that c mpulsory sterilization could be imposed in

the absence of a specific statutory provision. While there may

be unsettled questions concerning the authority of states to

prescribe sterilizations by statute, there is not and never has

been any question that states can mandate sterilization in the

absence of a statute. Indeed, if governmental bodies could

deprive individuals of rights as important as procreation

without any legislative enactment so authorizing, basic

concepts of individual rights, democracy, and due process of

law would be meaningless.

Lower courts have made it clear that there can be no

jurisdiction to order sterilization of minors or mentally

incompetent persons in the absence of a specific statutory

provision: Frazier v. Levi, 440 S.W. 2d 393 (Tex. Civ. App.

1969) (no jurisdiction for county probate court having general

jurisdiction to approve sterilization of mentally retarded

woman); /n re Guardianship of Kemp, 43 Cal. App. 3d 758,

118 Cal. Rptr. 64 (1974) (probate court with exclusive

jurisdiction in guardianship matters did not have jurisdiction

to order sterilization of adult mentally defective woman);

Holmes v. Powers, 439 S.W. 2d 579 (Ky. 1968) (courts of

Kentucky had no authority to grant permission for

sterilization of mentally retarded woman); /n re M.K.R., 515

S.W. 2d 467 (Mo. 1974) (juvenile division of circuit court

did not have jurisdiction to authorize sterilization of a 13

year old mentally retarded girl); In re Lambert, No. 61156

(Probate Ct. Davidson Cty. Tenn., filed Mar. 4, 1976)

(probate court lacked jurisdiction to approve sterilization of

18 year old mentally deficient woman); Wade v. Bethesda

Hospital, 337 F. Supp. 671 (S.D. Ohio 1971), motion den.

356 F. Supp. 380 (S.D. Ohio 1973) (probate judge who

ordered sterilization of mentally retarded woman acted in the

total absence of jurisdiction). In the words of the Jn re

M.K.R. court, the awesome power to “irreversibly deny to a

human being a fundamental right, the right to bear or beget a

child * * * may be conferred only by specific statute,” 515

S.W. 2d at 470-471.

As the Court of Appeals for the Seventh Circuit

indicated in the present case:

Although courts ought not to be discouraged from

creating innovative legal remedies to meet changing

social conditions, they may not use the power to

create new decisional law to order extreme and

irreversible remedies such as sterilization 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 sanctioning tyranny from

the bench. Sparkman v. McFarlin, 552 F.2d 172,

176 (7th Cir. 1977)

C. Petitioner Had No Statutory or Common Law Basis

For His Approval of the Sterilization of Respondent.

If the law confers the power to render a judgment

or decree, then the court has jurisdiction . . . Rhode

Island v. Massachusetts, 37 U.S. 657, 718 (1838).

In the instant case, the Seventh Circuit Court of Appeals

observed:

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 petition of a parent. 552 F.2d at 174.

There is, as was noted above,?® no basis in English

common law for the authorization of sterilization operations

by a court. Nor have the American cases which have

examined the issue of sterilization found any common law

authority permitting a court to order a compulsory

sterilization: Frazier v. Levi, 440 S.W. 2d 393 (Tex. Civ. App.

1969); in re Guardianship of Kemp, 43 Cal. App. 3d 758,

118 Cal. Rptr. 64 (1974); Holmes v. Powers, 439 S.W. 2d

579 (Ky. 1968); In re M.K.R., 515 S.W. 2d 467 (Mo. 1974);

In re Lambert, No. 61156 (Probate Ct. Davidson Cty., Tenn.,

filed Mar. 4, 1976); Wade v. Bethesda Hospital, 337 F. Supp.

671 (S.D. Ohio 1971).

The only Indiana statute dealing with sterilization was

contained in Burns Ind. Stats. Ann. § §16-13-13-1 through

16-13-13-4 (1971) (these sections have since been repealed).

Those provisions concerned patients of state mental health

facilities and institutions, and mandated specific due process

procedural safeguards to be followed before sterilizations

could be performed upon such persons. That statute clearly

has no application to the present case as Respondent is not

and never has been institutionalized, nor have any of the

statutorily authorized procedural prerequisites been met.

Actually, the existence of such a statute undercuts any

argument that Petitioner possessed implied or inherent

authority to authorize sterilizations, as it indicates clearly that

in circumstances where the Indiana legislature wished to allow

sterilizations it enacted a specific statute so providing. As the

Indiana courts have observed:

When the law is affirmative that a thing should be

done by certain persons or in a certain manner, this

26 See n.5, supra.

affirmative matter contains a negative that it shall

not be done by other persons or in another manner.

State ex rel. Bingham v. Home Brewing Co. of

Indianapolis, 183 Ind. 75, 105 N.E. 909, 916

(1914).

Petitioner points to Burns Ind. Stats. Ann. §33-4-4-3

(1971), which confers upon the circuit courts original

jurisdiction ‘“‘in all cases in law and in equity

whatsoever... ” and suggests that this is the source of his

power to authorize sterilizations. Petitioner’s interpretation of

this section would lead one to believe that circuit judges have

unlimited power to do anything and everything they wish

without any legal or precedential restraints — the very type

of “tyranny from the bench,” 552 F.2d 172, 176, which

concerned the Seventh Circuit in this action. Actually, of

course, Indiana courts, like all courts, have limits to their

jurisdiction. See, e.g., State v. Libbert, 96 Ind. App. 84, 177

N.E. 873 (1931), rehearing denied, 96 Ind. App. 84, 180 N.E.

757 (1932), where the Indiana Appellate Court, sitting en

banc, held that a judge who committed a criminal defendant

to jail after the expiration of a suspended sentence acted with

a total lack of jurisdiction and could be liable in civil

damages.

As this Court has ruled:

All courts, even the highest, are more or less limited

in their jurisdiction: they are limited to particular

classes of actions, such as civil or criminal; or to

particular modes of administering relief, such as

legal or equitable; or to the transactions of a special

character, such as arise on navigable waters, or

relate to the testamentary disposition of estates; or

to the use of particular process in the enforcement

of their judgments...Though the court may

possess jurisdiction of a cause, of the subject-matter,

and of the parties, it is still limited in its modes of

procedure, and in the extent and character of its

judgments. It must act judicially in all things and

cannot transcend the power conferred by law.

Windsor v. McVeigh, 93 U.S. 274, 282 (1876).

In Wade v. Bethesda Hospital, 337 F.Supp. 671 (S.D.

Ohio 1971), a case which arose from a factual situation very

similar to the case at bar, an Ohio probate judge was sued for

monetary damages arising out of his order that a mentally

retarded woman should be sterilized. In support of his

contention that his actions should be cloaked with judicial

immunity, he relied upon the statute conferring general

jurisdiction upon probate courts, which declared: “The

probate court shall have plenary power at law and in equity

fully to dispose of any matter properly before the court,

unless the power is expressly otherwise limited or denied by

statute.” /d. at 673.

The federal district court rejected the contention that

this general jurisdictional provision provided a basis for a

sterilization order and held that the probate judge had “acted

wholly without jurisdiction in this matter.” /d. at 674. The

court observed further:

There is no statute in Ohio which authorizes a judge

to order sterilization for any purpose. Nor has this

Court been able to discover any judicial precedent

for such an order in the absence of a specific

statute...

Indeed, in the only case where an appellate court

has considered the possibility of sterilization in the

absence of specific statutory authorization, the

court affirmed the lower court judgment which

concluded that sterilization was not within the

general equity power of the court and that it was a

matter to be dealt with by the legislature. Holmes vy.

Powers, Civ. No. 4151 (Cir. Ct. Whitley Cty., Ky.

1968), aff'd 439 S.W. 2d 579 (Ct. App. Ky., 1968).

Id. at 673-674.

As an alternative source of jurisdiction to authorize

sterilizations Petitioner relies upon Burns Ind. Stats. Ann.

§ § 16-8-3-1 and 16-8-4-2 (1971), which permit parents to give

consent to medical treatment for minors and legally

incompetent persons. Petitioner’s logic is difficult to follow

because the cited statutory sections describe a power which is

possessed by parents, and say nothing about the jurisdiction

of any court. It is doubtful that a legislative provision

conferring authority on private citizens can somehow expand

the jurisdiction of a court beyond its otherwise statutorily

assigned boundaries. Moreover, if parents possessed the

authority to have their children sterilized, then there would

be no need or rationale for expanding the circuit court’s

jurisdiction to include sterilizations. Such a parental right

could simply be exercised by the parent, without judicial

involvement.

Even assuming, however, that parents can somehow

bestow some of their parental authority to provide

jurisdiction to the circuit courts of Indiana, such an assertion

is still of no avail to Petitioner because the law is clear, in

Indiana and elsewhere, that the parental authority to consent

to medical treatment does not include the power to have the

child sterilized. The parent cannot give to the court that

which the parent does not have. Various courts have indicated

that, while parental authority is great, it does not extend to

the irreversible deprivation of the fundamental right of

procreation by sterilization: Im re Lambert, No. 61156

(Probate Ct. Davisson Cty. Tenn., filed March 4, 1976)

(mother seeking authority to consent to sterilization); /n re

M.K.R., 515 S.W. 2d 467 (Mo. 1974) (mother seeking court

authorization of sterilization); Jn re Guardianship of Kemp,

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

requested by father); Frazier v. Levi, 440 S.W. 2d 393 (Tex.

Civ. App. 1969) (application for sterilization filed by mother).

In Indiana, this issue was decided definitively in A.L. v.

G.R.H., 325 N.E. 2d 501 (Ind. App. 1975), hearing denied

May 29, 1975, cert. den. 425 U.S. 936 (1976) in which the

Indiana Court of Appeals held that parents did not possess

the legal authority to consent to the sterilization of their

child, “We believe the common law does not invest parents

with such power over their children even though they

sincerely believe the child’s adulthood would benefit

therefrom.” Jd. at 502.

Moreover, this Court has never indicated that parental

authority is unlimited:

Parents may be free to become martyrs themselves.

But it does not follow that they are free, in

identical circumstances, to make martyrs of their

children before they have reached the age of full

and legal discretion when they can make that choice

for themselves.

Prince v. Massachusetts, 321 U.S. 158, 170 (1944).

In Wisconsin v. Yoder, 406 U.S. 205 (1971), this Court,

in considering the rights of parents to direct the religious

upbringing of their children, observed:

To be sure, the power of the parent, even when

linked to a free exercise claim, may be subject to

limitetion under Prince if it appears that parental

decisions will jeopardize the health or safety of the

child, or have a potential for significant social

burdens.

Id. at 233-234,27

Nor has this Court permitted parents to interfere with their

minor daughter’s decision whether or not to have an abortion,

Planned Parenthood of Central Missuuri v. Danforth, 428 U.S.

52 (1976).

Constitutional rights do not mature and come into

being magically only when one attains the

State-defined age of majority. Minors, as well as

adults, are protected by the Constitution and

possess constitutional rights.

Id. at 74.

Consistent with these principles, therefore, the general

authority of parents over children, including the power to

consent to medical treatment needed by the child, does not

give a parent the legal authority to compel a child to undergo

the drastic invasion of personal rights and permanent denial of

the ability to procreate which characterize sterilization.

D. Petitioner Clearly Lacked Jurisdiction Over the

Person of Respondent.

In addition to lacking jurisdiction over the subject matter

of sterilization, Petitioner acted in the clear absence of

jurisdiction over the person of Respondent. It is axiomatic

7 Such limitation upon parental authority underlies our

child neglect and child abuse laws and compulsory school

attendance laws. A number of courts have held that parents

do not have the right to refuse lifesaving medical services for

their children. e.g, Wallace v. Labrenz, 411 Ill. 618, 104 N.E.

2d 769 (1952); Morrison v. State, 252 S.W. 2d 97 (K.C. App.

1952); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962);

In re Clark, 21 Oh. Op. 2d 86, 185 N.E. 2d 128 (1962). “No

argh at p- ys frewriga de Arwcgh ng irdey or

,” In re 21 Oh. Op.

24 128, 131 (1962). : ieee Oe

that courts must possess in personam jurisdiction over the

parties involved in a legal proceeding.

The consistent constitutional rule has been that a

court has no power to adjudicate a personal claim

or obligation unless it has jurisdiction over the

person of the defendant. E.g., Pennoyer v. Neff, 95

U.S. 714 (1878); Vanderbilt v. Vanderbilt, 354 U.S.

416, 418 (1957).

Zenith Corp. v. Hezeltine, 395 U.S. 100, 110 (1969).

In Harris v. Hardeman, 55 U.S. 334 (1852), the Court

declared:

[J] udicial proceedings against a person not served

with process to appear, and not being within the

jurisdiction of the court, and not appearing in

person or by attorney, are null and void.

Id. at 339-340.

The methods for obtaining jurisdiction over the person

are equally well-established: “Jurisdiction of the person is

obtained by the service of process, or by the voluntary

appearance of the party in the progre.. of the cause,” Cooper

v. Reynolds, 77 U.S. 308, 316317 (1870). Seealso,

Robertson v. Labor Board, 268 U.S. 619, 622 (1925); Kendall

v. United States, 37 U.S. 524, 623 (1838).

In the present case, no notice was given to Respondent

of the petition filed to have her sterilized, nor did she appear

during the pendency of the action either in person or through

counsel. Sparkman v. McFarlin, 552 F.2d 172, 173 (7th Cir.

1977). Indeed, she did not even learn that there had been

such a proceeding and that she had been sterilized until four

years had passed. Jd. at 173. It is apparent, therefore, that the

court never obtained jurisdiction over the person of

Respondent, nor took any steps to do so.

In Planned Parenthood of Central Missouri v. Danforth,

428 U.S. 52 (1976), this Court held that a girl, although a

minor, was mature enough to become pregnant and thus was

mature enough to be entitled to make the decision whether or

not to have an abortion. Likewise, in the present action, the

Petitioner, who was mature enough to become pregnant, was

at least entitled to be made aware of and to be involved in

the decision to deprive her permanently of her procreative

function.

E. Petitioner Had Jurisdiction to Hear the Question of

Jurisdiction, But No Jurisdiction to Consider and Approve the

Petition.

Petitioner argues that “each court has jurisdiction to

determine its own jurisdiction” (Petitioner’s Br. p. 15). If this

statement means that a court has the power, and indeed the

duty, to consider whether or not is has jurisdiction over each

of the matters which come before it, then it is indisputable. It

does not follow, however, that because a court has

jurisdiction to consider the question of jurisdiction, it has

jurisdiction to decide the merits of every matter brought

before it. In the present action, the Petitioner did not merely

determine its own jurisdiction, but, on the contrary,

completely ignored the absence of jurisdiction and issued a

judicial document which permanently deprived Respondent of

her fundamental right to procreate.

In addition to jurisdiction over the subject matter and

the parties, it is necessary for a court to have jurisdiction to

render the remedy or judgment which it assumes to render.

Cooper v. Reynolds, 77 U.S. 308, 316 (1870). In Windsor v.

McVeigh, 93 U.S. 274 (1876), the Court declared:

Though the court may possess jurisdiction of a

cause, of the subject-matter, and of the parties, it is

still limited in its modes of procedure, and in the

extent and character of its judgments. It must act

judicially in all things, and cannot then transcend

the power conferred by the law. If, for instance, the

action be upon a money demand, the court,

notwithstanding its complete jurisdiction over the

subject and parties, has no power to pass judgment

of imprisonment in the penitentiary upon the

defendant. If the action be for a libel or personal

tort, the court cannot order in the case a specific

performance of a contract. If the action be for the

possession of real property, the court is powerless

to admit in the case the probate of a will... The

judgments mentioned, given in the cases supposed,

would not be merely erroneous: they would be

absolutely void; because the court in rendering them

would transcend the limits of its authority in those

cases

Id. at 282.

The boundaries of a court’s authority in fashioning

remedies and rendering judgments is determined by the extent

of authority it is given by law in regard to a particular type

of case.

The power to render the decree or judgment which

the court may undertake to make in the particular

cause, depends upon the nature and extent of the

authority vested in it by law in regard to the

subject-matter of the cause.

Cooper v. Reynolds, 77 U.S. 308, 317 (1870).

In the instant case, while Petitioner may have had authority

to examine the question of his own jurisdiction, he had no

legal authority to consider and approve the petition for the

sterilization of Respondent. In approving the sterilization,

Petitioner went beyond his judicial authority and engaged in

an action for which he lacked any jurisdiction.

—a

-_—_

F. Jurisdiction of a Court Cannot be Exercised in Total

Absence of Due Process of Law.

Windsor v. McVeigh, 93 U.S. 274 (1876), involved a

confiscation of land proceeding in the United States District

Court for the Eastern District of Virginia. The District Court

judge refused to allow the owner of the property to appear

by counsel at the trial of the matter because the owner was

loyal to the Confederate cause, and his land was subsequently

confiscated. The Supreme Court held the proceedings to be a

nullity because the District Court lacked jurisdiction:

Jurisdiction is the right to hear and determine;

not to determine without hearing. And where, as in

that case, no appearance was allowed, there could

be no hearing or opportunity of being heard, and

therefore, could be no exercise of jurisdiction. By

the act of the court, the respondent was excluded

from its jurisdiction.

Id. at 283-284.

In the present case, where the rights at stake were much more

important than mere ownership of land, Petitioner denied

Respondent any semblance of notice, opportunity to be

heard, or any other basic due process rights.

Petitioner approved the sterilization petition without any

notice to Respondent or anyone else on her behalf, without

any filing in court, without any hearing, without a guardian

ad litem appointed to represent the young woman’s interests,

and without any opportunity to appeal the decision to have

her sterilized. A more complete denial of the fundamentals of

due process can hardly be imagined.

The “right to be heard before being condemned to

suffer grievous loss of any kind...is a principle

basic to our society.” Joint Anti-Fascist Comm. vy.

McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J.

concurring). The fundamental requirement of due

process is the opportunity to be heard “at a

meaningful time and in a meaningful manner.”

Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

Matthews v. Eldridge, 424 U.S. 319, 333 (1976).

Petitioner’s failure to require that notice of the proceeding be

given to Respondent and his failure to conduct a hearing

where she could respond to the petition constitute such a

significant deviation from accepted standards of due process

that they place the case clearly outside Petitioner’s judicial

jurisdiction.

Moreover, the failure to conduct a hearing deprived

Petitioner of knowledge of a number of crucial facts. Among

the critical matters upon which the Petitioner did not hear any

testimony, evidence, or arguments were:

1. Whether Respondent was mentally retarded or not.

Respondent’s mother alleged that she was “somewhat

retarded,” but this contention was contradicted by the fact

that she had succeeded in passing in public school classes

along with other children her age. 552 F.2d at 173. No

testing, evaluations, or other evidence was submitted to

support the bare assertion that Petitioner was “somewhat

retarded.” There is nothing to indicate that Petitioner’s

mother is a psychologist or other professional qualified to

assess intelligence or even that she is qualified to understand

what the scientific term “mental retardation” means.

Imposition of the label “mentally retarded” is significant

enough that an opportunity to be heard is required before it

is applied. See Pennsylvania Association for Retarded Children

vy. Commonwealth of Pennsylvania, 343 F. Supp. 279, 295

(E.D. Pa. 1972). Moreover, if Respondent were found to be

mentally retarded, evidence of the degree of mental

retardation would be necessary to indicate the extent of her

handicap and her functional ability.

2. Whether Respondent was likely to conceive a child.

The Petition contained an allegation by the mother that

she was unable to “prevent unfortunate circumstances.” 552

F.2d at 173. Yet no evidence was heard to substantiate the

mother’s implication that Respondent was engaging in sexual

intercourse and was likely to become pregnant. An

opportunity to be heard is constitutionally mandated before a

person can be publicly labeled an excessive drinker. Wisconsin

v. Constantineau, 400 U.S. 433, 437 (1971). Surely, an

opportunity to be heard is equally necessary before one can

be labeled a promiscuous person. “Where a person’s good

name, reputation, honor, or integrity is at stake . . . notice and

an opportunity to be heard are essential.” Jd. at 437. Yet

Respondent was given no opportunity to refute the

implications that she was engaging in sexual relations. In

addition, even if Respondent had been found to be sexually

active, there was no evidence that she was unwilling or unable

to use contraceptive devices or other methods for avoiding

pregnancy. In short, there was no hearing upon the essential

fact of whether Respondent was actually likely to give birth

to a child.

3. Whether there was a compelling governmental interest

justifying the sterilization of Respondent.

It is well established that a citizen cannot

constitutionally be deprived of a fundamental right such as

procreation unless such deprivation can be shown to be

necessitated by a compelling governmental interest. Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942). See also, San Antonio

School District v. Rodriguez, 411 U.S. 1, 34 n. 76 (1973);

Dunn v. Blumstein, 405 U.S. 330, 338 (1972). In the present

case there was no hearing upon the question of whether such

a compelling governmental interest for the sterilization of

Respondent existed, and no suggestion of any governmental

interest whatsoever which would be furthered by the

sterilization.

4. The likelihood of children of Respondent having any

hereditary defect.

One supposed justification for efforts to obtain

compulsory sterilization of mentally retarded people is to

prevent the birth of genetically defective children. However,

even eugenics advocates admit that a mentally retarded parent

has an 88 percent chance of having a “normal” child.?® If,

therefore, the Respondent had been found to be mentally

retarded, it would have been important to determine the

causation of her retardation and to determine whether her

disability was hereditarily transmissible. Petitioner, however,

did not hear any evidence in regard to these issues.

5. Whether there were less drastic alternatives to

sterilization.

In Shelton v. Tucker, 364 U.S. 479 (1960), this Court

declared:

In a series of decisions this Court has held that,

even though the governmental purpose be legitimate

and substantial, that purpose cannot be pursued by

means that broadly stifle fundamental personal

28 Reed, Mental Retardation and Fertility, 18 Supp.

Social Biology 542 (1971).

liberties when the end can be more narrowly

achieved. The breadth of the legislative abridgement

must be viewed in the light of less drastic means for

achieving the same basic purpose.

Id. at 488.

Petitioner did not investigate or hear any evidence as to

whether less drastic means, such as contraceptive devices and

medications, would have equally well served the objective of

preventing Respondent from becoming pregnant, without the

grievous consequence of irreversible sterilization.

Petitioner did not bother to hear one scintilla of

evidence concerning these or other issues raised by the

petition for sterilization. In failing to do so, Petitioner

deprived himself from any jurisdictional basis for his approval

of the petition. “For jurisdiction is the right to hear and

determine; not to determine without hearing.” Windsor v.

McVeigh, 93 U.S. 274, 283-284 (1876).

THE ASSERTED BASIS FOR THE CREATION OF

THE DOCTRINE OF ABSOLUTE JUDICIAL

IMMUNITY IS UNSOUND AND

UNSUPPORTABLE AND THE DOCTRINE

SHOULD BE ABOLISHED.

42 U.S.C. §1983, the first section of the Civil Rights

Act of 1871, states in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State ..., subjects, or causes to be subjected, any

citizen of the United States ...to the deprivation

of any rights, privileges, or immunities secured by

the Constitution and law, shall be liable to the

party injured in any action at law, suit in equity, or

other proper proceeding for redress.

A. Respondent Satisfies All Requirements for Recovery

Under § 1983.

Judicial officers are proper defendants in § 1983 actions.

Neal v. Brim, 506 F.2d 6 (Sth Cir. 1975); Erdmann vy.

Stevens, 458 F.2d 1205 (2d Cir. 1972); Wade v. Bethesda

Hosp., 337 F. Supp. 671 (S.D. Ohio 1971); Law Students

Civil Rights Research Council, Inc. v. Wadmond, 299

F. Supp. 117 (S.D. N.Y. 1969) aff'd on other grounds 401

U.S. 154 (1971). The fact that Petitioner actually acted

beyond the scope of his jurisdiction is immaterial in relation

to the applicability of §1983; conduct engaged in by a state

official even in the purported exercise of authority conferred

by the state is action under color of law. The term “under

color of law” includes acts of an official who can show no

authority for what he does, Basista v. Weir, 340 F.2d 74 (3rd

Cir. 1965); “misuse of power, possessed by virtue of state law

and made possible only because the wrongdoer is clothed with

the authority of state law is action taken ‘under color of

state law.” Monroe v. Pape, 365 U.S. 167, 184 (1961)

quoting United States v. Classic, 313 U.S. 299, 326 (1941).

By virtue of the acts of Petitioner, Respondent has suffered

deprivation of rights protected by the Constitution. See

section IIIA, infra. The fundamental right to procreate,

Skinner v. Oklahoma, 316 U.S. 535 (1942); San Antonio

School District v. Rodriguez, 411 U.S. 1, 34 n. 76 (1973)

and the right to bear and beget children, Planned Parenthood

of Central Missouri v. Danforth, 428 U.S. 52 (1976);

Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold y.

Connecticut, 381 U.S. 479 (1965), have long been recognized

in this Court. Finally §1983 clearly contemplates money

damage liability. O’Connor yv. Donaldson, 422 U.S. 563

(1975); Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v.

Rhodes, 416 U.S. 232 (1974); Wade v. Bethesda Hosp., 337

F. Supp. 671 (S.D. Ohio 1971). Thus, Petitioner is a state

official who, while acting under color of law, deprived

Respondent of a right secured by the Constitution for which

an action at law is a proper remedy.

Although Respondent satisfies all prerequisites for

recovery, she must still face Petitioner’s contention that under

the doctrine created in Pierson v. Ray, 386 U.S. 547 (1967)

he is absolutely immune from money damage liability if he

acted within the scope of his jurisdiction. Judicial immunity is

inapplicable “where there is clearly no jurisdiction over the

subject matter,” Bradley v. Fisher, 80 U.S. (13 Wall.) 335,

351-352 (1872); accord Pierson v. Ray, 386 U.S. 547, 554

(1967), or when the judge acts in a purely ministerial, not

discretionary, fashion, Ex parte Virginia, 100 U.S. 339, 348

(1879). We have asserted in Section I, supra, that Petitioner

acted in clear absence of jurisdiction, and thus the constraints

of Pierson have no viability in this case. Amici suggest further

that Pierson v. Ray, 386 U.S. 547 (1967) was wrongly

decided and that the doctrine of absolute judicial immunity

should be abolished. There is no constitutional bar to the

abrogation of judicial immunity. The doctrine “has in large

part been of judicial making.” Barr v. Matteo, 360 U.S. 564,

569 (1959); accord Doe v. McMillan, 412 U.S. 306, 318-319

(1973). The decision to abolish or attenuate the doctrine “‘is

solely a question of statutory interpretation.” Pierson v. Ray,

386 U.S. 547, 565 (Douglas, J., dissenting).

B. The Justifications Relied Upon to Create Absolute

Judicial Immunity are Not Supported Within the Common

Law or Legislative History of §1983.

Chief Justice Warren’s rationale in Pierson v. Ray, 386

U.S. 547 (1967), for Kolding judges immune from liability in

damages for judicial acts challenged under §1983, was

two-pronged: (1) The doctrine of absolute immunity was

incontrovertibly “established at common law;” id, at 554;

(2) [T]he legislative record gives no clear indication that

Congress meant to abolish wholesale all commondaw

immunities.” Jd. However, while the Chief Justice’s opinion

for the Court recognized that the doctrine of judicial

immunity is entirely judge-made, he failed to assess accurately

both its common law background and the legislative history

of §1983, Pierson v. Ray, 386 U.S. 547 (Douglas, J.

dissenting); Kates, Immunity of State Judges Under the

Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65

Nw. U.L. Rev. 615, 617-623 (1970); Note, /mmunity of

Federal and State Judges from Civil Suit — Time for a

Qualified Immunity?, 27 Case West. Res. L. Rev. 727,

727-740 (1977); Note, Liability of Judicial Officers Under

Section 1983, 79 Yale L.J. 322, 323-328 (1969).

1. Common Law

While some form of judicial immunity has a long

history, see Floyd v. Barker’s Case, 77 Eng. Rep. 1305 (Star

Chamber 1608), that history is somewhat uaeven. Originally,

English law permitted civil suits against judges in actions

complaining of false judgments, 2 F. Pollock & F. Maitland,

The History of English Law 664-668 (2d ed. 1898). Later,

when English common law created absolute immunity from

tort liability, it applied only to judges of superior courts. The

Justices Protection Act, 11 & 12 Vict. c. 44 (1848); see,

Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536 (1868). In this

country, “absolute immunity from tort actions did not fully

develop until the 1870's.” Note, Jmmunity of Federal and

State Judges from Civil Suit — Time for Qualified Immunity ?,

27 Case West. Res. L. Rev. 727, 731 (1977). In a survey of

19th century case law in 14 randomly selected eastern and

midwestern states, it was found that “in nine states the

prevailing rule was absolute immunity, in four states

immunity depended upon the judge’s good faith, and in one

state the law was inconclusive.” /d. A more extensive survey

revealed that “by 1871, thirteen states had adopted the

absolute immunity rule; six states ruled that judges were liable

if they acted maliciously, in nine states, courts had faced the

issue but had not ruled clearly one way or the other; and nine

states had apparently not faced the issue.’’ Note, Liability of

Judicial Officers Under Section 1983, 79 Yale L.J. 322,

326-327 (1969).

When, in 1868, the Supreme Court considered the issue

for the first time, it declared that judges “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.”

Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536 (1868). Thus,

the Congress of the United States when it began its

deliberations on H.R. 320, a bill to enforce the provisions of

the fourteenth amendment, section one of which would

eventually become §1983, could not have been laboring

under the impression that the common law of either England

or the United States unalterably, uniformly, or universally

held that judges were absolutely immune from traditional

remedies at law. It was not until a year after Congress enacted

the predecessor to §1983 (17 Stat. 13 (1871) )that Justice

Field who had written Randall, amended the holding in

Bradley v. Fisher, 80 U.S. (13 Wall.)335 (1872) ), so that

judges in courts of general jurisdiction were not liable for

their judicial acts even when they acted in excess of their

jurisdiction and maliciously or corruptly.

In the light of this history, it is disingenous to say that if

Congress had wanted to abrogate absolute immunity for

judges it “would [have] specifically so provided...” Pierson

v. Ray, 386 U.S. 547, 555 (1967). The “diligent congressman,

looking to the federal rule in 1871, would have had no reason

not to surmise that an incorrect ruling of law, maliciously

made, which deprived an individual of his constitutional

rights, would probably subject the offending judge to

liability.” Note, Liability of Judicial Officers Under Section

1983, 79 Yale L.J. 322, 326 (1969).

There seemed to be little doubt seventy-five years later

that absolute judicial immunity had been abolished. In

deciding whether a civil action for compensatory and punitive

damages could lie under then R.S. §1979 (now §1983)

against a justice of the peace who refused a hearing to

plaintiffs after arrest, the Third Circuit Court of Appeals ruled

that “if the plaintiffs... were deprived of a federal right by

state officials or officers acting ‘under color of any

law’...these officials must respond in damages to the

plaintiffs as prescribed by R.S. §1979.” Picking v.

Pennsylvania R. Co., 151 F.2d 240, 249 (3rd Cir. 1945). It

continued, “As we read R.S. 1979...we are compelled to

the conclusion that Congress gave a right of action sounding

in tort to every individual whose federal rights were trespassed

upon by any officer acting under pretense of state law.” Jd.

at 249. Facing the iss) of a common law bar to judicial

liability the court foun’

that the conclusion is irresistible that Congress by

enacting the Civil Rights Act sub judice intended to

abrogate the privilege to the extent indicated by

that Act and in fact did so. Section 1 of the third

Civil Rights Act explicitly applied to ‘any

person’... We can imagine no broader definition.

Id. at 250.

It is conceded that Picking was expressly overruled by

the third circuit in Bauers v. Heisel, 361 F.2d 581 (3rd Cir.

1966). However, Bauers was decided before Pierson and relied

primarily, but inappropriately, on the Supreme Court’s

decision in Tenney v. Brandhove, 341 U.S. 367 (1951).

Bauers v. Heisel, 361 F.2d 581, 584-586 (3d Cir. 1966).

Tenney held state legislators absolutely immune from money

damage liability under one of the predecessors to § 1983. But

to ground judicial immunity on the basis of legislative

immunity is genuinely to misread both the common law and

the legislative history of the Civil Rights Act. “The immunity

of tegislators was more strongly entrenched in Anglo-American

law prior to 1871 than was judicial immunity.” Note,

Immunity of Federal and State Judges from Civil Suit —

Time for a Qualified Immunity? 27 Case West L. Rev. 727,

736 n.49 (1977). In 1951, when Tenney was decided,

‘*forty-one of the forty-eight States...[had] specific

provisions in their Constitutions protecting the privilege.”

Tenney v. Brandhove, 341 U.S. 367, 375 (1951). Moreover,

one could find support for state legislative immunity in the

Speech and Debate Clause of the United States Constitution,

U.S. Const. Art. I, §6 (although three states had already

written analog us provisions in their constitutions even before

1789, Tenne,» ». Brandhove, 341 U.S. 367, 373 (1951)). Thus,

this Court reasonably could have doubted, as it did, “that

Congress — itself a staunch advocate of legislative freedom —

would impinge on a tradition so well grounded in history and

reason by covert inclusion in the general language [of

§1983).” Id. at 376.

But, no such conclusion can be drawn with regard to

judicial immunity and thus Bauers’ reliance on Tenney in

overruling Picking is misplaced. The common law did not

unequivocally protect judges. There is no constitutional

compulsion for judicial immunity as there is for legislators.

The post Civil War Congress clearly expressed its disdain for

judicial autonomy when it repealed the right of the Supreme

Court to review habeas corpus cases, Ex parte McCardle, 74

U.S. (7 Wall.) 506 (1869); and, as will be shown, the

legislative history of the 1871 Civil Rights Act clearly

contemplated that judges would be liable for money damages.

This Court has never been a slave to the common law, ¢.g.,

Mullaney vy. Wilbur, 421 U.S. 684 (1975) (burden of proof in

provocation defense); Williams y. Florida, 399 U.S. 78

(1970) (less than twelve person jury constitutional); /ohnson

v. Louisiana, 406 U.S. 356 (1972) (less than unanirnous jury

constitutional); New York Times Co. vy. Sullivan, 376 U.S.

254 (1964) (actual malice standard in libel actions by public

officials). In any event, however one interprets the Common

law with respect to judicial immunity, when a Statute is

designed as a revision of a body of law, the common law gives

way to the statute which is inconsistent with it. See Hamilton

v. Rathbone, 175 U.S. 414, 418 (1899); see also, Pierson v.

Ray, 386 U.S. 547, 561 (1967) (Douglas, J., dissenting). The

legislative history of §1983 reviewed immediately below

unequivocally supports the contention that it was intended to

hold state judges liable in money damages for their judicial

acts when those acts deprived persons of their constitutional

rights.

2. The Legislative History of the 1871 Civil Rights

Act

The historical underpinnings of §1983 have been

amply described by this Court:

Section 1979 [predecessor to §1983] came onto

the books as §1 of the Ku Klux Act of April 20,

1871. 17 Stat. 13. It was one of the means whereby

Congress exercised the power vested in it by §5 of

the Fourteenth Amendment to enforce the

provisions of that Amendment. Senator Edmunds,

Chairman of the Senate Committee on the

Judiciary, said concerning this section:

“The first section is one that I believe

nobody objects to, as defining the rights

secured by the Constitution of the United

States when they are assailed by any State

law or under color of any State law, and

it is merely carrying out the principles of

the civil rights bill [Act of April 9, 1866,

14 Stat. 27), which has since become a

part of the Constitution,” viz., the

Fourteenth Amendment.

Monroe v. Pape, 365 U.S. 167, 171 (1961);