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Sparkman v. McFarlin


decided: March 23, 1977.


Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. F 75-129-C - Jesse E. Eschbach, Judge.

Swygert, Wood, Circuit Judges and William G. East, Senior District Judge.*fn*

Author: Swygert

SWYGERT, Circuit Judge.

The question on appeal is whether a state court judge who ordered the sterilization of a fifteen-year-old girl is judicially immune from liability under the federal civil rights statutes. We hold that the judge acted extrajudicially and that the doctrine of judicial immunity is inapplicable to this case. The district court's judgment of dismissal of the complaint is reversed.


In 1971 defendant Ora E. McFarlin sought a court order to have her fifteen-year-old daughter Linda Sparkman, plaintiff, sterilized. Defendant Warren G. Sunday, an attorney, prepared the "Petition to Have Tubal Ligation Performed on a Minor and Indemnity Agreement." The petition contained an affidavit by McFarlin which stated that Linda was "somewhat retarded" although she attended public schools and had been "passed along with other children in her age level." McFarlin further alleged that, without her knowledge or consent, Linda had begun dating and staying overnight with older youths and men, and that she could not maintain a continuous observation over Linda to "prevent unfortunate circumstances." The petition was presented to defendant Judge Harold D. Stump of the Circuit Court of DeKalb County, Indiana, who issued the requested order in an ex parte proceeding. No guardian ad litem was appointed to represent Linda's interests and no hearing was held. Linda received no notice of the petition, and neither the petition nor the order was ever filed in the DeKalb County Circuit Court.

After Judge Stump had signed the order, Linda was taken to the DeKalb Memorial Hospital, and a tubal ligation was performed by defendant John H. Hines, M.D. Defendant Harry M. Covell, M.D., assisted in the operation and defendant John C. Harvey, M.D., was the anaesthesiologist. Linda was not informed of the true consequences of the surgery; in fact, she was told that the purpose of the hospital visit was to have her appendix removed.

In 1973 Linda married plaintiff Leo Sparkman. Two years later she learned for the first time (from Dr. Hines) that she had been sterilized. The couple brought an action seeking damages under 42 U.S.C. $Z 1983 and 1985(3), contending that the actions of the defendants in sterilizing her or causing her to be sterilized violated her constitutional rights. She attached pendent state claims for assault and battery and medical malpractice. Leo Sparkman asserted a pendent claim for loss of potential fatherhood.

The district court granted defendants' motions to dismiss the federal claims. It found that the only state action present, necessary to the federal claims, was the approval of the petition by Judge Stump. It then held that Judge Stump was "clothed with absolute judicial immunity" so that neither he nor any of the other defendants, alleged to be coconspirators were liable under sections 1983, 1985(3) or the Fourteenth Amendment. The remaining state claims were dismissed for lack of subject matter jurisdiction as they were pendent to the federal causes of action.


The doctrine of judicial immunity was adopted by the Supreme Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1871), and was held applicable to actions brought under 42 U.S.C. ยง 1983 in Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). Its purpose is to permit judges to exercise their judicial function independently, without fear of civil liability. It is available even where malicious or corrupt action on the part of a judge is alleged.

Judicial immunity is available, however, only where the judge has jurisdiction. Bradley v. Fisher, supra; Pierson v. Ray, supra. The jurisdiction required by Bradley is that over the subject-matter; that is, the power of a court to hear and decide a cause of action before it. Although immunity exists when jurisdiction is present even though the judge acts in excess of that jurisdiction, it is not available when he acts in "clear absence of all jurisdiction." Bradley, 80 U.S. at 351. Thus, the crucial issue here, upon which immunity turns, is whether Judge Stump acted within his jurisdiction when he approved the petition to have Linda Sparkman sterilized.

In approving the petition, Judge Stump cited no statutory or common law authority under which he was purporting to act.*fn1 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.

Defendant Stump rests his argument that he had jurisdiction in this case on Indiana Code 33-4-4-3, which is a general grant of jurisdiction to the circuit courts.*fn2 It confers original jurisdiction "in all cases at law and in equity . . . ." Although this grant of juridical power is broad, we cannot accept the assertion that it cloaks an Indiana circuit judge with blanket immunity. He may not arbitrarily order or approve anything presented to him in the form of an affidavit or petition. A claim must be characterized as a case in law or equity in order to come within the statute. In short, it must have a statutory or common law basis.

We agree with plaintiffs, based on an independent examination of Indiana law, that there was no statutory authority for Judge Stump's actions. The statutory scheme in existence at the time in fact negated his right to assert any jurisdiction over the petition. In 1971 Indiana Code sections 16-13-13-1 through 16-13-13-4 were in effect.*fn3 These statutes authorized sterilization of institutionalized persons under certain circumstances. Those circumstances involve specific procedures to be followed, including the right to notice, opportunity to defend, and the right to appeal. This statutory scheme clearly negates jurisdiction to consider sterilization in cases not involving institutionalized persons and in which these procedures are not followed. See Kemp v. Kemp, 43 Cal. App. 3d 758, 118 Cal. Rptr. 64 (1974); Smith v. Command, 231 Mich. 409, 204 N.W. 140, 146 (1925).

In addition, jurisdiction for a court to order sterilization cannot be found in the common law of Indiana. It is argued on behalf of the defendants that the Indiana Court of Appeals implied that such jurisdiction exists in A.L. v. G.R.H., 163 Ind. App. 636, 325 N.E. 2d 501 (Ind. Ct. App. 1975). Aside from the fact that A.L. was decided after Judge Stump acted, it undercuts rather than supports his position. The court in A.L. affirmed the trial court's denial of a declaratory judgment authorizing a parent to consent to the sterilization of a minor child. If the opinion implies anything, it is that no jurisdiction to order sterilizations exists. This view is supported by the fact that the cases cited by the A.L. court all held that, in the absence of express statutory authority, courts lack the power to order sterilizations.*fn4

Moreover, the defendants can derive no comfort from the common law of other states. In general, courts have refused to order the extreme remedy of sterilization absent specific legislative authority, holding that it was not within their common law powers. See Holmes v. Powers, 439 S.W. 2d 579 (Ky. Ct. App. 1968); Frazier v. Levi, 440 S.W. 2d 393 (Tex. Ct. Civ. App. 1969); In Interest of M.K.R., 515 S.W. 2d 467 (Mo. 1974); Kemp v. Kemp, supra.*fn5

Given the fact that the purported judicial action of defendant Stump had no support in statute or previous common law, Judge Stump could only claim to be acting lawfully if the remedy of sterilization that he imposed was a valid exercise of the power of courts to fashion new common law.*fn6 We hold that it was not. 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. There are actions of purported judicial character that a judge, even when exercising general jurisdiction, is not empowered to take.*fn7

Even if defendant Stump had not been foreclosed under the Indiana statutory scheme from fashioning a new common law remedy in this case, we would still find his action to be an illegitimate exercise of his common law power because of his failure to comply with elementary principles of procedural due process. Here a juvenile was ordered sterilized without the taking of the slightest steps to ensure that her rights were protected. Not only was the plaintiff not given representation, she was not even told what was happening to her. She was afforded no opportunity to contest the validity of her mother's allegations or to have a higher court examine whether the substance of those allegations, even if true, warranted her sterilization. Finally, the petition and order were never filed in court. This kind of purported justice does not fall within the categories of cases at law or in equity.

Thus, Judge Stump's action had no basis either in law or in equity and was therefore taken without jurisdiction. In the absence of jurisdiction, a judge is not entitled to judicial immunity in a suit for damages that resulted from his action.

The judgment of the district court is reversed and the cause is remanded for further proceedings consistent with this opinion.


The judgment of the district court is reversed and the cause is remanded for further proceedings consistent with this opinion.

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