Indiana Law Review


Recent Development
Torts — JUDICIAL IMMUNITY— Judge's erroneous grant of a steriliza-
tion petition held not in clear absence of jurisdiction and therefore

entitled to the defense of judicial immunity. Stump v. Sparkman, 46
U.S.L.W. 4253 (U.S. Mar. 28, 1978).

In Stump v. Sparkman, 1 the United States Supreme Court
rendered its first major decision on the scope of judicial immunity in
more than a century.2

In 1971, a mother presented to an Indiana circuit court judge a
petition seeking to perform a tubal ligation on her fifteen-year-old

daughter. The judge approved the petition in an ex parte proceeding
without notice to the daughter, without the appointment of a guard-
ian ad litem, and without a hearing.3 Five years after the operation,
the daughter brought a damage suit against the judge in federal
district court under 42 U.S.C. § 1983,

4
for alleged deprivation of her

constitutional rights. The district court dismissed the action on the
grounds that the judge was immune from liability under the doc-
trine of judicial immunity.5 The Seventh Circuit Court of Appeals
reversed the judgment of the district court, holding that the judge

'46 U.S.L.W. 4253 (U.S. Mar. 28, 1978).
2Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872).
346 U.S.L.W. at 4254, 4256. The minor had been told that the operation was for

the removal of her appendix. Id. at 4254.
4
Civil Rights Act of 1871, 42 U.S.C. § 1983 (1970), provides:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory, subjects or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.

Section 1983 creates, in effect, a federal tort action against any state officer who,

under color of state law, deprives a person of his constitutional or federal rights. The

test for color of state law in a civil suit against a judge is whether the judge is

representing the state and wearing its badge of authority. Monroe v. Pape, 363 U.S.

167, 172 (1961); Lucarell v. McNair, 453 F.2d 836, 838 (6th Cir. 1972). Under § 1983, the

scope of a judge's immunity is a question of federal, not state, law. Garfield v.

Palmieri, 279 F.2d 526 (2d Cir. 1962); Nelson v. Knox, 256 F.2d 312 (6th Cir. 1958). In

Pierson v. Ray, 386 U.S. 547, 554 (1967), the Supreme Court determined that § 1983 is
subject to the doctrine of judicial immunity. Thus, the standard enunciated in Stump
determines the liability of a state court judge who has been sued under § 1983. In addi-
tion, most states have adopted the doctrine of judicial immunity as it was first

established by the Supreme Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872).

The Stump Court opinion is essentially a modern application of Bradley principles.
6Sparkman v. McFarlin, Civil No. F 75-129 (N.D. Ind. May 13, 1976), rev'd, 552

F.2d 172 (7th Cir. 1977), rev'd sub. nom. Stump v. Sparkman, 46 U.S.L.W. 4253 (U.S.
Mar. 28, 1978).

489



490 INDIANA LAW REVIEW [Vol. 11:489

had acted outside of his jurisdiction and had failed to comply with

principles of due process.9

The Supreme Court held that the circuit court judge had per-
formed a judicial act that was not in clear absence of all jurisdiction,7

and he was therefore entitled to judicial immunity.8 The Court's opin-
ion focused on two critical aspects of the doctrine of judicial immuni-
ty: The concept of jurisdiction and the judicial act requirement. The
Court's interpretation of these terms determined the extent of a

judge's immunity from civil liability.

I. Jurisdiction Analysis

The Supreme Court set forth its last major interpretation of the
doctrine of judicial immunity in 1872 in Bradley v. Fisher. 9

[J]udges of courts of superior or general jurisdiction are not

liable to civil actions for their judicial acts, even when such
acts are in excess of their jurisdiction, and are alleged to
have been done maliciously or corruptly. A distinction must
be here observed between excess of jurisdiction and the
clear absence of all jurisdiction over the subject matter.

10

Bradley has since been universally accepted as establishing the
governing principles of the doctrine. Before concluding that Judge

Stump was immune from civil liability, the Supreme Court scrutinized
his jurisdiction over the petition for sterilization. This inquiry was
to determine whether the judge had acted in clear absence of all

jurisdiction.
11

In analyzing Judge Stump's jurisdiction, the Court first examined
the statutory authority vested in an Indiana circuit court judge.

Under Indiana law, such a judge has "original exclusive jurisdiction

•Sparkman v. McFarlin, 552 F.2d 172, 176 (7th Cir. 1977), rev'd sub nom. Stump
v. Sparkman, 46 U.S.L.W. 4253 (U.S. Mar. 28, 1978).

7
46 U.S.L.W. at 4255.

'Id. at 4257.
9
80 U.S. (13 Wall.) 335 (1872).

10
Id. at 351 (emphasis added). To illustrate the distinction between "excess" and

"clear absence" of all jurisdiction, the Bradley Court contrasted the following

hypotheticals. The first involved a probate court judge whose jurisdiction was limited
to wills and estates. If such a judge were to assume jurisdiction over criminal matters

and proceeded to try a defendant for a public offense, his acts would be in clear

absence of all jurisdiction and would subject him to civil liability. The second example
involved a judge with general jurisdiction over criminal offenses. If that judge were to

convict and sentence a defendant for a nonexistent crime, his acts would be merely in

excess of his jurisdiction. Id. at 352.

"Stump v. Sparkman, 46 U.S.L.W. 4253, 4255 (U.S. Mar. 28, 1978); Imbler v.
Pachtman, 424 U.S. 409, 418 (1976); Pierson v. Ray, 386 U.S. 547, 554 (1967).



1978] JUDICIAL IMMUNITY 491

in all cases at law and in equity whatsoever . . . and in all other pro-

ceedings where exclusive jurisdiction thereof is not conferred by
law upon some other court, board or officer." 12 The Court then noted
that a now-repealed Indiana statute expressly authorized steriliza-

tion, but only upon institutionalized persons. 18 The Court rejected
the contention that these statutes implied that a circuit court was
without jurisdiction to consider a petition for sterilization in other

circumstances. 14 The Court stated that the statutes do not warrant
the inference that a court of general jurisdiction cannot entertain

such a petition when brought by the parents of a minor.15 In con-
cluding its analysis, the Court held that, since there was no case law
or statute expressly proscribing the court's power to consider a peti-
tion for sterilization, the defendant did not act in clear absence of all

jurisdiction.
18

A more precise understanding of jurisdiction, as used in the con-
text of judicial immunity, emerges from the Court's application of
the Bradley principles. First, the Court unequivocally held that

whether a judge is within the ambit of immunity depends on his
jurisdiction over the subject matter.17 The term "subject matter
jurisdiction" refers only to the authority of a court to decide a par-

ticular type of case — ie., criminal, adoption, probate of an estate, or
divorce.

18 Thus, a judge presiding over an action within the general

,2
Ind. Code § 33-4-4-3 (1976). This section also provides:

Said court shall have original exclusive jurisdiction in all cases at law and in

equity whatsoever, and in criminal cases and actions for divorce, except

where exclusive or concurrent jurisdiction is, or may be conferred by law
upon justices of the peace. It shall also have exclusive, jurisdiction of the set-

tlement of decedents' estates and of guardianships: Provided, however, That
in counties in which criminal or superior courts exist of may be organized
nothing in this section shall be construed to deprive such courts of the

jurisdiction conferred upon them by laws, and it shall have such appellate

jurisdiction as may be conferred by law, and it shall have jurisdiction of all
other causes, matters and proceedings where exclusive jurisdiction thereof is

not conferred by law upon some other court, board or officer.
13
Ch. 227, § 1, 1951 Ind. Acts 649; ch. 244, §§ 1-3, 1937 Ind. Acts 1164; ch. 312, §§

1-6, 1935 Ind. Acts 1502; ch. 50, §§ 2-6, 1931 Ind. Acts 116; ch. 241, §§ 1-6, 1927

Ind. Acts 713 (repealed 1974) (formerly codified at Ind. Code Ann. §§ 16-13-13-1 to -16-1

(Burns 1973)).

"46 U.S.L.W. at 4255.

"Id.

lt
Id. at 4256. The dissent did not challenge the majority's conclusion that the

judge did not act in clear absence of all jurisdiction. Id. at 4258 n.5 (Stewart, J., dissen-

ting).

"46 U.S.L.W. at 4255.

"Murrell v. Stock Growers' Nat'l Bank of Cheyenne, 74 F.2d 827 (10th Cir. 1934);
Rensing v. Turner Aviation Corp., 166 F. Supp. 790 (N.D. 111. 1958); Olcott v.

Pendleton, 128 Conn. 292, 22 A.2d 633 (1941); Williams v. Kaylor, 218 Ga. 576, 129

S.E.2d 791 (1963); J.R. Watkins Co. v. Kramer, 250 Iowa 947, 97 N.W.2d 303 (1959);
Brumm v. Pittsburgh Nat'l Bank, 213 Pa. Super. Ct. 443, 249 A.2d 916 (1968).



492 INDIANA LAW REVIEW [Vol. 11:489

class of cases that he is empowered to entertain will never act in
clear absence of all jurisdiction. Any error will be merely in excess
of his jurisdiction. The inquiry is limited to the power to render a
decision and does not consider the particular decision made.19

This interpretation of jurisdiction overrules a line of cases which

held that the jurisdiction requirement necessitated an inquiry into

the decision that had been rendered.20 In these cases, a judge acted

in clear absence of all jurisdiction if there were no set of cir-
cumstances or conditions authorizing his action, even though he had

jurisdiction over the subject matter.21 Wade v. Bethesda Hospital?2

illustrated this analysis. There an action had been brought against a
probate court judge for ordering the performance of a tubal ligation

on a retarded person. The district court held that the judge had
acted in clear absence of all jurisdiction.28 In reaching this result, the

court did not inquire into the judge's power to decide the case but
instead examined Ohio law to determine if there were any condi-
tions that would permit the judge to issue the sterilization order.
Under the jurisdictional test required by Stump, the judge would
have been immune.24

Prior to Stump, some cases held, at least with respect to
sterilization, that there must be specific statutory or common law
authority vesting the court with jurisdiction over the subject mat-

ter.
25 The most recent case so holding was Briley v. California. 26 This

section 1983 action was brought against a judge and a prosecutor for
allegedly coercing the plaintiff to submit to castration as part of a

"The Stump Court was concerned only as to whether case or statutory law had
circumscribed the judge's power to approve a petition for tubal ligation. 46 U.S.L.W.

at 4256.
2
°Briley v. California, 564 F.2d 849 (9th Cir. 1977); Harley v. Oliver, 539 F.2d 1143

(8th Cir. 1976); Martin v. Merola, 532 F.2d 191 (2d Cir. 1976); Duba v. Mclntyre, 501

F.2d 590 (8th Cir. 1974), cert, denied, 424 U.S. 975 (1976); Hevelone v. Thomas, 423 F.

Supp. 7 (D. Neb. 1976); Wade v. Bethesda Hosp., 337 F. Supp. 671 (S.D. Ohio 1971).
"See note 20 supra.

™331 F. Supp. 671 (S.D. Ohio 1971).
23M at 673-74.
"Although the defendant in Wade was not a judge of general jurisdiction, his

jurisdiction under Ohio law was broad: "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." Ohio Rev. Code Ann. §
2101.24 (Page 1976). As in Stump, this grant of jurisdiction was sufficient to empower
the judge to act on the affidavit by the welfare board. The fact that he acted er-

roneously in issuing the order was not relevant to the question of immunity. 337 F.

Supp. at 673.
26
Briley v. California, 564 F.2d 849 (9th Cir. 1977); Sparkman v. McFarlin, 552 F.2d

172 (7th Cir. 1977), rev'd sub nom., Stump v. Sparkman, 46 U.S.L.W. 4253 (U.S. Mar.
28, 1978); Wade v. Bethesda Hosp., 337 F. Supp. 671 (S.D. Ohio 1971).

M564 F.2d 849 (9th Cir. 1977).



1978] JUDICIAL IMMUNITY 493

plea bargain agreement. The court remanded the case with the in-
struction that the availability of judicial immunity would depend

upon the existence of specific statutory authority empowering the
judge to order the castration.

27

That instruction is now an erroneous statement of the law. The
Stump Court held that "the scope of a judge's jurisdiction must be
construed broadly."28 The absence of specific authority in Indiana to
act upon the petition for sterilization was not considered significant,

according to the Court; the critical factor was that neither case law

nor statute expressly prohibited the judge from entertaining the

petition.
29 Therefore, a judge of a court of general jurisdiction will

be deemed to have jurisdiction over the subject matter of any case
before him, for purposes of judicial immunity, if there is not a

specific statutory or case law prohibition.30

The Supreme Court's discussion of A.L. v. G.R.H. 31 demonstrated
that a judge who failed to observe a statutory or case law limitation
on his judicial power would not be deprived of the defense of
judicial immunity unless the limitation directly circumscribed his
subject matter jurisdiction. That Indiana decision held that parents

have no common law right to seek the sterilization of their
children.

32 The Supreme Court emphasized that A.L. v. G.R.H. did
not question a judge's power to consider and act upon a petition for
sterilization and concluded that the decision imposed a restriction

only on the manner in which a judge should exercise his jurisdic-
tion.

33 Thus, Judge Stump's approval of the sterilization in con-
travention of Indiana law was merely in excess of his jurisdiction.

The principle that an act in excess of jurisdiction is covered by a
judicial immunity defense dates back to Bradley and is acknowledged

27/d at 857-58.
2946 U.S.L.W. at 4255.

™I<L at 4255-56. The Court refused to infer a lack of jurisdiction from the express
statutory limitation of jurisdiction to institutionalized persons. See text accompanying

note 16 supra.

'"The extent to which this conclusion applies to courts of inferior jurisdiction is

not clear. One can argue, however, that where the subject matter jurisdiction of the
court is precisely itemized by statute, the Briley analysis should be employed. See

notes 26-28 supra and accompanying text.
31
325 N.E.2d 501 (Ind. Ct. App. 1975), discussed in Stump v. Sparkman, 46

U.S.L.W. at 4256.
32325 N.E.2d at 502.
33The Court explained:
A circuit court judge would err as a matter of law if he were to approve a
parent's petition seeking the sterilization of a child .... Indeed, the clear im-

plication of the opinion is that . . . the circuit judge should deny [the petition]
on its merits rather than dismissing it for lack of jurisdiction.

Id.



494 INDIANA LAW REVIEW [Vol. 11:489

in the recent cases.
34 Unfortunately, the distinction between a limita-

tion on the power to decide a case and a limitation that dictates the
proper exercise of that power is not always easily or consistently
made.35 The difficulty can be seen in the cases that dealt with the
power of a judge to order sterilization. Missouri,36 Texas,37 and Ken-
tucky38 have all held that the courts of their states do not have sub-

ject matter jurisdiction over cases involving sterilization.39 Under
the Stump analysis, these cases impose a restriction that forecloses
judicial consideration of sterilization. If a judge in one of these

states were to authorize a sterilization, he would act in clear

absence of all jurisdiction and would be liable in a civil action. In In-

diana, on the other hand, a judge can issue the same order and,
possessing jurisdiction over the subject matter, be entitled to the

defense of judicial immunity.

Some courts have indicated that where a judge violates a
specific statute or commits an illegal act, judicial immunity will not

be a defense.
40

In Luttrell v. Douglas, 41 the actions of a criminal

court judge were held to be beyond the scope of immunity when he
conditioned the appointment of a public defender upon payment of
attorney fees.42 Although an Illinois statute authorized the judge of

a court of criminal jurisdiction to appoint a public defender for an in-

digent defendant, the same statute expressly prohibited the pay-
ment of fees to a public defender.43 Thus, the judge in Luttrell had
jurisdiction over both criminal offenses and the appointment of

public defenders. His error, therefore, was in the exercise of that
jurisdiction.

The Supreme Court did not directly consider this point in
Stump. From what the Court did say, however, Luttrell is, at least,
a questionable precedent. Several times in the opinion, the Court

noted that the restriction on a court's power must relate to the
authority to decide the controversy and not merely to how it should

34Harley v. Oliver, 539 F.2d 1143 (8th Cir. 1976); Williams v. Williams, 532 F.2d

120 (8th Cir. 1976); Potter v. LaMunyon, 389 F.2d 874 (10th Cir. 1968); Ryan v. Scoggin,
245 F.2d 54 (10th Cir. 1957); McGlasker v. Calton, 397 F. Supp. 525 (M.D. Ala. 1975);

Luttrell v. Douglas, 220 F. Supp. 278 (N.D. 111. 1963).
3520 Am. Jur. 2d Courts § 90 (1965).
3iIn re M.K.R., 515 S.W.2d 467 (Mo. 1974).
37
Frazier v. Levi, 440 S.W.2d 393 (Tex. Ct. App. 1969).

38Holmes v. Powers, 439 S.W.2d 579 (Ky. 1969).
39These cases were direct appeals and did not involve the issue of judicial immunity.

'"See, e.g., Jacobson v. Schaefer, 441 F.2d 127 (7th Cir. 1971); Barksdale v. Ryan,

398 F. Supp. 700 (N.D. 111. 1974); Luttrell v. Douglas, 220 F. Supp. 278 (N.D. 111. 1963).
41220 F. Supp. 278 (N.D. 111. 1963).
,2
Id. at 279. The suit was dismissed, despite the absence of immunity, for failure

to allege deprivation of a constitutionally protected right.
43
Ill. Rev. Stat. ch. 38, § 113-3; id. ch. 34, §§ 5604-5605 (1973).



1978] JUDICIAL IMMUNITY 495

be decided.44 That the statutory restriction is unambiguous seems to

be immaterial. When a judge commits an illegal act or is neglectful
of his official duties, the proper course is to file criminal charges.45

The Seventh Circuit Court of Appeals, in what appeared to be
an alternative holding, stated: "Even if defendant Stump had not
been foreclosed under the Indiana statutory scheme, 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."49 The judge's procedural errors included
the failure to appoint a guardian ad litem, the failure to give notice

of the true nature of the proceeding to the daughter, and the failure

to afford an opportunity to contest the petition.
47 The Supreme

Court, noting that the Seventh Circuit had mis-conceived the doc-

trine of judicial immunity, held that "the commission of grave pro-

cedural errors" in the exercise of a conferred power would destroy a
judge's immunity from liability.48 This statement is consistent with

the principle enunciated in Bradley.*9 Other courts that have con-

sidered the issue have also consistently followed Bradley.50

Perkins v. United States Fidelity & Guaranty Co. 51 is represen-
tative. The plaintiff in Perkins alleged that the judge had ordered
his commitment to a mental hospital without providing him with
notice and the opportunity to be heard. The court, after finding the
judge had jurisdiction over the commitment proceeding, stated that
non-observance of procedural safeguards did not destroy a court's

jurisdiction over the case and, thus, did not affect the availability of

judicial immunity.52 One must conclude that procedural matters, such

"46 U.S.L.W. at 4255-56.
45The immunity doctrine holds, however, that misperformance of a judicial act by

a judge acting honestly and in good faith does not constitute criminal conduct.

Braatelien v. United States, 147 F.2d 888 (8th Cir. 1945); People v. Ferguson, 20 111. 2d

295, 170 N.E.2d 171 (1960); Commonwealth v. Tartar, 239 S.W.2d 265 (Ky. 1951); Rob-
bins v. Commonwealth, 232 Ky. 115, 22 S.W.2d 440 (1929).

"Sparkman v. McFarlin, 552 F.2d 172, 176 (7th Cir. 1977), rev'd sub nom. Stump
v. Sparkman, 46 U.S.L.W. 4253 (U.S. Mar. 28, 1978).

"Id.

4846 U.S.L.W. at 4256.

"The Bradley Court, referring to the procedural errors committed by the defen-
dant judge, stated: "But this erroneous manner in which its jurisdiction was exercised,
however it may have affected the validity of the act, did not . . . render the defendant
liable to answer in damages ... as though the court had proceeded without having any
jurisdiction whatever . . . ." 80 U.S. (13 Wall.) at 357.

50Duba v. Mclntyre, 501 F.2d 590 (8th Cir. 1974), cert, denied, 424 U.S. 975 (1976);
Perkins v. United States Fidelity & Guar. Co., 433 F.2d 1303 (5th Cir. 1970); Sullivan v.
Kelleher, 405 F.2d 487 (1st Cir. 1968); Potter v. LaMunyon, 389 F.2d 874 (10th Cir.
1968); Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957).

. "433 F.2d 1303 (5th Cir. 1970).
5
Vd. at 1304.



496 INDIANA LAW REVIEW [Vol. 11:489

as the right to notice and a hearing, involve only the exercise of a

conferred power. Error in the exercise of this power falls squarely
within the immunity doctrine.

In Stump, the Supreme Court did not dwell on the policy
reasons for providing immunity for a judge who acts in excess of his
jurisdiction. Relying on a quotation from Bradley, the Court stated

that it is important to the administration of justice that a judge be

free to act without fear of personal consequences.53 A more satisfac-
tory explanation can be found in Pierson v. Ray:5*

The judicial function involves an informed exercise of judg-
ment. It is often necessary to choose between differing ver-

sions of fact, to reconcile opposing interests, and to decide

closely contested issues. Decisions must often be made in the
heat of trial. A vigorous and independent mind is needed to
perform such delicate tasks. It would be unfair to require a

judge to exercise his independent judgment and then to
punish him for having exercised it in a manner which, in
retrospect, was erroneous.55

II. The Judicial Act Requirement

The Stump Court also held that the doctrine of judicial immuni-
ty will not apply unless the judge's conduct constitutes a judicial

act.
56 The judicial act requirement also dates back to Bradley.57 The

plaintiff in Stump argued that the judge had not performed a
judicial act because the petition had not been given a docket

number, had not been placed on file, and had been approved in an ex

parte proceeding without first giving notice, appointing counsel for

the minor, or holding a hearing.
58

The argument that the lack of formality and the presence of pro-
cedural irregularities would destroy the judicial character of a
judge's action was rejected.59 The Supreme Court established a test

53
46 U.S.L.W. at 4255 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) at 347).

5438 U.S. 547 (1967).
m
Id. at 566 (Douglas, J., dissenting).

69
46 U.S.L.W. at 4256.

"As pointed out by the dissent in Stump, the proposition that immunity only ap-
plies to the performance of judicial acts was emphasized seven times by the Bradley

Court. Id. at 4257 n.2 (Stewart, J., dissenting) (citing Bradley v. Fisher, 80 U.S. (13

Wall.) at 347, 348, 349, 351, 354, 357).
58
46 U.S.L.W. at 4256.

59
In so concluding, the Court cited McAlester v. Brown, 469 F.2d 1280 (5th Cir.

1972), cited in Stump v. Sparkman, 46 U.S.L.W. at 4256. In McAlester, the judge's
alleged misconduct involved an improper arrest ordered outside of the courtroom and

at a time when the judge was not wearing his robes. Nevertheless, the reviewing



1978] JUDICIAL IMMUNITY 497

for determining when a judge's conduct should be classified as a
judicial act for purposes of judicial immunity. The first factor to be
considered is whether the party dealt with the judge in a judicial

capacity.
60 This inquiry is made subjectively, based upon the parties'

expectations. In applying this part of the test to the facts in Stump,

the Court found that the petition had been presented to Judge

Stump only because of his position as circuit court judge.61 That is,
the minor's parent realized she was dealing with the judge in his
judicial role. Lynch v. Johnson, 62 cited with approval by the Court,
demonstrated the point at which a judge is no longer acting in his

judicial capacity. The judge in Lynch was not permitted the defense
of judicial immunity for actions arising out of his service pursuant

to state statute, as the presiding officer of the county "Fiscal

Court."
63 Since the "Fiscal Court" was merely a board of county com-

missioners who performed only administrative or legislative func-
tions, the court held the judge had not performed any judicial acts.64

Arguably, since the events did not transpire in a judicial forum, the

parties did not feel they were dealing with the judge in his official

capacity.
66

The second factor relevant to the judicial act determination is
whether the act is a "function normally performed by a judge."66 The
Court did not contend that normal judicial functions include ap-

proval of petitions for sterilization but reasoned that consideration

of a petition relating to the affairs of a minor is the type of action a

judge is normally called upon to review in his official capacity.67 One
should note that it is not the particular subject matter of the peti-

tion but the act of entertaining and acting upon petitions of a

general type that is the critical consideration. Gregory v. Thomp-
son68 was cited as an example of a judge who did not perform a
judicial act. In Gregory, a judge had been sued for assaulting a man
while physically removing him from the courtroom. The reviewing
court concluded that the judge had not performed a judicial act, but

court held that the judge was acting in his judicial capacity and was entitled to judicial

immunity. 469 F.2d at 1282.
80
46 U.S.L.W. at 4256.

61
Id. at 4257.

62420 F.2d 818 (6th Cir. 1970), cited in Stump v. Sparkman, 46 U.S.L.W. at 4256.
63420 F.2d at 820.
M
Id,

85The example posed by the Lynch court is useful. "A judge does not cease to be

a judge when he undertakes to chair a PTA meeting, but, of course, he does not bring
judicial immunity to that forum either." Id.

,646 U.S.L.W. at 4256.

"Id, at 4257.
68500 F.2d 59 (9th Cir. 1974), cited in Stump v. Sparkman, 46 U.S.L.W. at 4256.



498 INDIANA LAW REVIEW [Vol. 11:489

rather that the judge had discharged a function normally performed

by a sheriff or bailiff.69

The dissenting opinions in Stump contended that the judge's
conduct should not have been classified as a judicial act. Justice

Powell argued that a judicial act is one that does not preclude a par-

ty's right to resort to appellate or other judicial remedies.
70 Because

the judge's "unjudicial" conduct prevented the minor from protec-

ting her rights through the appeal process, the dissent asserted that

the judge should not have been entitled to immunity.71 Support for

this characterization of a judicial act can be found in Gregory where
the court stated: "A judicial act within the meaning of the doctrine
may normally be corrected on appeal." 72

The characteristics of a judicial act considered by the Supreme
Court are conduct of a type normally performed by a judge and con-

duct performed in an official judicial capacity. The Court did not
mention the exercise of discretion. The Court also did not mention
the exercise of judgment — a characteristic with considerable sup-
port in case law.73 In 1843, it was stated: "Some of the . . . [acts] of a
justice are judicial, and some ministerial; and when he acts
ministerially, . . . for error and misconduct he is responsible in like
manner ... as all other ministerial officers."74 The distinction be-
tween a ministerial act and a judicial act is that the former is
precisely prescribed by law and allows no discretion while the latter

requires the exercise of judgment or decision-making.75

Perkins v. United States Fidelity & Guaranty Co. 78 shows how
the exercise of decision-making applies to the judicial act require-

ment. In Perkins, the complaint alleged that a probate court judge

had wrongfully committed the plaintiff to a mental institution. In an
effort to circumvent the immunity doctrine, the plaintiff argued that
the judge's action in effecting the commitment had merely been a
ministerial act. The Fifth Circuit Court of Appeals, after restating

e9500 F.2d at 64-65. Since the judge was deemed to have acted as a sheriff, he was

permitted to claim a qualified immunity. Such immunity only extends to acts commit-

ted in good faith. Pierson v. Ray, 386 U.S. 547 (1967).
7046 U.S.L.W. at 4259 (Powell, J., dissenting).
n
IcL

72500 F.2d at 64.
nEx parte Virginia, 100 U.S. 339 (1879); Perkins v. United States Fidelity & Guar.

Co., 433 F.2d 1303 (5th Cir. 1970); Doe v. County of Lake, Ind., 399 F. Supp. 553 (N.D.

Ind. 1975); Bramlett v. Peterson, 307 F. Supp. 1311 (M.D. Fla. 1969); Stone v. Graves, 8

Mo. 148 (1843); Yates v. Lansing, 5 Johns. 282 (N.Y. 1810).
74Stone v. Graves, 8 Mo. 148, 151 (1843).
76Dear v. Locke, 128 111. App. 2d 356, 262 N.E.2d 27 (1970); Sweeney v. Young, 82

N.H. 159, 131 A. 155 (1925); State v. Nagel, 185 Or. 486, 202 P.2d 640, cert, denied, 338

U.S. 818 (1949).
76433 F.2d 1303 (5th Cir. 1970).



1978] JUDICIAL IMMUNITY 499

the rule that a judicial act is one that results from the exercise of
discretion, rejected the plaintiffs argument:

We doubt the existence of many situations calling for more
judicial discretion and decision-making talent than in the

determination of the competency of a human being. The task
calls for the court to look into the mind of an individual and

determine his mental state under rules which are vague, dif-

ficult to apply, and necessarily imperfect.77

Acts which have been held to be ministerial and thus beyond the

scope of judicial immunity are acts related to the selection of

jurors,
78

judicial control over the processing and treatment of detain-

ed juveniles,
79 and failure to inform indigent defendants of their

right to court-appointed counsel.
80

The primary reason given for the existence of the judicial im-
munity doctrine is to preserve the integrity and independence of the

judicial decision-making function.81 Since the ministerial/judicial

distinction attempts to separate acts that involve the exercise of

judgment from those that allow the judge no discretion, it serves to
bring the scope of protection into closer harmony with its purpose.
If immunity were extended to include the misperformance of a
ministerial act, then the purpose would be only to protect the judge

and not the decision-making process of the judiciary. It is doubtful,

therefore, that the mere omission of this element from the Stump
opinion indicates disapproval.

Finally, the Supreme Court held that immunity applies with
equal force to suits in which a judge is alleged to have acted with

malice or from corrupt motives.82 This principle was firmly establish-
ed by Bradley v. Fisher63 and has been uniformly followed in the

77d at 1305.
nEx parte Virginia, 100 U.S. 339 (1879) (judicial immunity not a defense in

criminal action where judge given no discretion by statute).
79Doe v. County of Lake, Ind., 399 F. Supp. 553 (N.D. Ind. 1975) (suit seeking only

equitable relief).
80Bramlett v. Peterson, 307 F. Supp. 1311 (M.D. Fla. 1969) (suit seeking only

equitable relief).
8,Pierson v. Ray. 386 U.S. 547, 554 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335,

348 (1872); Gregory v. Thompson, 500 F.2d at 63; Shore v. Howard, 414 F. Supp. 379,
385 (N.D. Tex. 1976); Doe v. County of Lake, Ind., 399 F. Supp. 553, 555 (N.D. Ind.
1975). See Jennings, Tort Liability of Administrative Officers, 32 Minn. L. Rev. 263,
270-72 (1937).

82
46 U.S.L.W. at 4255 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) at 351).

83
80 U.S. (13 Wall.) at 335, 351. In Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868),

the Court stated that a judge might be held liable if his acts were done maliciously. 74
U.S. (7 Wall.) at 536. The Bradley Court characterized this statement as dictum and
concluded that malice did not affect the scope of immunity. 80 U.S. (13 Wall.) at 351.



500 INDIANA LAW REVIEW [Vol. 11:489

case law.
84 The policy justification for immunizing malicious conduct

is to free judges from harassing, expensive, and time consuming law

suits.
85 Since there will be no issue involving the judge's state of

mind, the suit will be highly susceptible to dismissal at an early

stage in the litigation.

David S. Curry

84Imbler v. Pachtman, 424 U.S. 409 (1976); Pierson v. Ray, 386 U.S. 547 (1967);

Wiggins v. Hess, 531 F.2d 920 (8th Cir. 1976); Duba v. Mclntyre, 501 F.2d 590 (8th Cir.
1974), cert, denied, 424 U.S. 975 (1976); Gregory v. Thompson, 500 F.2d 59 (9th Cir.

1974); Cadena v. Perasso, 498 F.2d 383 (9th Cir. 1974); Skolnick v. Campbell, 398 F.2d

23 (7th Cir. 1968); Meredith v. Van Oosterhout, 286 F.2d 216 (8th Cir. 1960), cert,
denied, 365 U.S. 835 (1961); Harris v. Harvey, 419 F. Supp. 30 (E.D. Wis. 1976); Weaver
v. Haworth, 410 F. Supp. 1032 (E.D. Okla. 1975); Bottos v. Beamer, 399 F. Supp. 999

(N.D. Ind. 1973); McGlasker v. Calton, 397 F. Supp. 525 (M.D. Ala.), aff'd, 524 F.2d 1230

(5th Cir. 1975); Garfield v. Palmieri, 193 F. Supp. 137 (S.D.N.Y. 1961), aff'd, 297 F.2d

526 (2d Cir.), cert, denied, 369 U.S. 871 (1962).

"Pierson v. Ray, 386 U.S. 547, 554 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335,

348 (1872); McCray v. Maryland, 456 F.2d 1, 3 (4th Cir. 1972); Gregoire v. Biddle, 177
F.2d 579, 581 (2d Cir. 1949).