(2) acts done in the clear absence of all jurisdiction.27
The Sparkman majority found that "both factors indicate that Judge Stump's approval of the sterilization petition was a judicial act.33 As to the nature of the act, White wrote:
"State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors, as for example, a petition to settle a minor's claim.”34As to the expectation of the parties, he says:
"We may infer from the record that it was only because Judge Stump served in that position [county circuit judge] that Mrs. McFarlin, on the advice of counsel, submitted the petition to him for his approval.”35Justice Stewart, writing for the dissenting justices, not only faults White's definition of judicial act but also his application of the majority test: "I think that the first of these grounds [function normally performed by a judge] is factually untrue and that the second [dealing with judge in judicial capacity] is legally unsound.”36 Stewart notes that the act in question, the approval of a parent's decision regarding medical treatment for a minor, is not a function normally performed by a judge. "Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since.37
Stewart also questions the second part of the test: "But false illusions as to a judge's power can hardly convert a judge's response to those illusions into a judicial act;38 neither, in the minority view, does a judicial act result from the simple affixation of the title "judge" under a signature: "[T]he conduct of a judge surely does not become a judicial act merely on his own say-so. A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity.39
For the minority, in order for an act to be judicial at least some of the attributes of a judicial proceeding must be present. Justice Stewart suggests that there must be a case or controversy, there must be litigants, there must be some avenue of appeal and there must be at least "the pretext of principled decisionmaking."40 For Justice Powell, writing in a separate dissent, it is the absence of appellate or political remedies which clearly marks this act as nonjudicial, since it is the presence of such alternative relief which provides the basis of judicial immunity in the first place.41
While, unlike the minority, the majority does not specifically describe what they perceive to be the attributes of a judicial act, they do cite previous cases which have held that lack of formal proceedings42 and separation from court facilities43 do not automatically preclude a judicial act. In contrast, acts done by a judge acting in another official capacity44 or characterized by outrageous behavior45 have been held to be beyond the pale of judicial behavior.
In sum, the Supreme Court in Sparkman has offered a two pronged test to determine whether the act of a judge is a "judicial" one, and while it has not offered clear guides to use of the test, it is clear that broad and generous analysis will be used to determine if a judge's act is "judicial" to the point where it merits absolute immunity.
Justice White relies on Bradley to establish the general rule of construction regarding jurisdiction in immunity cases:
"[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."47 This sets the issue, the definition of a line between acts done in excess of jurisdiction and acts done in the complete absence of jurisdiction.The Seventh Circuit had held that for jurisdiction to be present when a judge operates under a state grant of general jurisdiction48 there must be a statutory or common-law basis for the exercise of judicial power:
Although this grant of judicial 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.49Indiana statutes allow court authorized sterilization only when the person to be sterilized is institutionalized, and even that power is strictly limited by numerous procedural requirements.50 Thus, the court of appeals had held that the statutory scheme in Indiana negates jurisdiction in cases not involving institutionalized persons.51 The Seventh Circuit seems to have followed the rule that a court of general jurisdiction, while engaged in the exercise of a special statutory power, becomes a court of limited jurisdiction with powers restricted to the authority given by statute.52
The Supreme Court majority, on the other hand, uses an inverse reasoning process. Because "the scope of the judge's jurisdiction must be construed broadly where the issue is... immunity,53 the Supreme Court defines the plaintiffs burden of proof not as the necessity of proving absence of a statutory or common-law basis for the exercise of jurisdiction, but rather as the necessity of citing a statute or case law prohibiting the exercise of jurisdiction: "We agree with the District Court, it appearing that neither by statute or case law has the broad jurisdiction granted to the circuit courts of Indiana been circumscribed to foreclose consideration of a petition for authorization of a minor's sterilization."54 This conclusion follows from the rule that a court has the power and duty to determine whether it has jurisdiction of a matter presented to it.55
The Indiana statute governing sterilization is in keeping with those of the majority of jurisdictions which impose rigid statutory restrictions on the power to authorize any sterilization procedure56 in evidence of the sensitivity of the area. In this author's view, limitations on judicial entry into such sensitive areas must be controlled in some manner, either by legislative enactment or by a more narrow definition of jurisdiction in immunity cases.57 Since the Supreme Court has chosen to sanction a broad grant of power to courts of general jurisdiction entering into sensitive areas even when they do so by assumption of jurisdiction, Sparkman clearly demonstrates the necessity of specific legislative enactment as a prerequisite to limitations on judicial action in these fields.
