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The Foundation of Judicial Immunity - by Attorney Gary L. Zerman

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  • Ron Branson
    The Foundation of Judicial Immunity by Attorney Gary Zerman First, is the case of Buck v. Bell , 274 U.S. 200 (1927), a decision written by Justice Holmes.
    Message 1 of 1 , Mar 17, 2012

      The Foundation of Judicial Immunity
      by Attorney Gary Zerman

      First, is the case of Buck v. Bell, 274 U.S. 200 (1927), a decision written by Justice Holmes.  There Holmes stated at 205:  “Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form.  She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child.”  In affirming the forced sterilization of Carrie Buck, Justice Holmes stated:  Three generations of imbeciles are enough.”  (at 207.)

      Peter Irons, in “A People’s History of the SUPREME COURT (1999) Penguin Books, discussed the Buck v. Bell case at 252 stating:

       “… His [Holmes] opinion reeked of the arrogance of aristocracy, and could easily have been written by Herbert Spencer.  ‘It is better for all the world,’ Holmes pontificated, ‘if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.  [P] Five decades later, a journalist who tracked down Carrie Buck and dug into old records discovered that she had been committed to Virginia’s ‘State Colony for Epileptics and Feeble Minded’ only because she had been raped by the eminent doctor who employed her as a housekeeper.  Her daughter, Emma, was a perfectly normal child, and the ‘eugenic expert’ who recommended her sterilization was later honored by the German Nazi regime for helping draft its ‘Race Hygiene’ law, which laid the tracks that ended in the gas chambers of Auschwitz and other death camps.  Holmes knew nothing about the scientific fallacies of the ‘eugenic’ movement; more important, he did not feel any duty to look behind the fabricated record in the Buck case.

      Immunity allowed Justice Holmes to act with impunity while he disregarded basic rights due Carrie Buck.

      Second, is the case of Stumpv. Sparkman, 435 U.S. 349 (1978). There, Judge Harold Stump was sued by Linda Kay (Spitler) Sparkman,  because, when she was fifteen-year-old, without her knowledge or consent she was sterilized, after Judge Stump granted a “PETITION TO HAVE TUBAL LIGATION PERFORMED ON MINOR AND INDEMNITY AGREEMENT” brought by the mother-Ora Spitler McFarlin’s attorney and signed an order for the sterilization.  The “petition” claimed she Linda was “somewhat retarded.” Linda Spitler never appeared in court, never had counsel. never had a chance to appeal, never even knew what happened (as she was falsely told she was going to the hospital - to have her appendix removed) and never was retarded.  Her mother brought the petition because Linda Kay had started dating older boys and young men, and the mother was fearful her daughter would get pregnant.  Later Linda Kat  got married, becoming Mrs. Sparkmanm and after repeated unsuccessful attempts by her and her husband to have children, she sought medical help.  She was then told by a doctor that she could not, as she had underwent a tubal ligation - told by the same doctor who had sterilized her without her knowledge and consent.  Mrs. Sparkman also sued the doctor, her attorney and her mother

      Justice Byron White (joined by Chief Justice Burger and Associate Justices Blackmun, Renquist and Stevens) wrote Stump v. Sparkman, which reversed the appellate court’s denial, and upheld the federal trial court’s grant of absolute judicial immunity for Judge Stump. Justice White’s decision is absent of any Constitutional authority for the immunity.

      To their credit, Justice Stewart (joined by Justices Marshall and Powell) dissented.  At p.365 Justice Stewart wrote:

       “… and I think that what Judge Stump did on July 9, 1971, was beyond the pale of anything that could sensibly be called a judicial act.” [continued at 369:]  “The petitioners’ brief speaks of ‘an aura of deism which surrounds the bench …’  Though the rhetoric may be overblown, I do not quarrel with it.  But if aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here.  And if intimidation would serve to deter its recurrence, that would surely be in the public interest. (ftnt.9 omitted.)

      Aura of deism?  Such lawless conduct?     

      The underlying appellate decision Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), a 3/0 opinion by Judges Swygert (joined by Judges Wood and East), held Judge Stump did not have immunity and did not have jurisdiction to sterilize young Linda Spitler.  At p.174 Judge Swygert wrote:

      “…Although this grant of judicial power is broad, we cannot accept the assertion that it cloaks an Indiana Circuit Court judge with blanket immunity.  He may not arbitrarily order or approve anything presented to him in the form of an affidavit or petition.”

      At p.176 Judge Swygert held that to order sterilization under the circumstances here:

       "...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.(ftnt, 7 - omitted). … [P] 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.

      Never filed in Court? We would be sanctioning tyranny from the bench?  Tyranny - that is exactly what the Supreme Court justices committed in Stump v. Sparkman when they reversed Judges Swygert, Wood and East, giving immunity to Judge Stump.  ... GLZ

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