A lawyer for a girl who was sterilized with judicial approval -- but without her knowledge and consent --asked the Supreme Court yesterday to warn judges that they are not free to "absolutely anything."
The Indiana judge who secretly granted a mother's petition for a tubal ligation on the allegedly promiscuous girl acted outside the bounds of his judicial authority and consequently is personally liable for damages, Richard H. Finley argued.
But the attorney for the judge contended that he was absolutely immune from lawsuits because a state law gives county circuit courts "original and exclusive jurisdiction in all cases at law and in equity whatsoever."
Justice Potter Stewart asked the attorney to imagine that the "piece of paper" submitted by the mother to DeKalp County Judge D. Stump alleged that her daughter was a compulsive shoplifter and asked to have her "right hand chopped off."
If Stump were to approve such an application, would he be immune from suit? Stewart asked.
An amputation would be "inappropriate" because it wouldn't "improve her physically," replied George E. Fruechtnicht.
The justice rejoined, "Well, did that (sterilization) 'improve her physiscally?'"
The attorney insisted that Stump, an elected judge of "the highest integrity" who is in his 20th year on the bench, would not authorize such surgery -- but nonetheless was empowered to do so.
The case involves Linda Sparkman of Kendallville, Ind. In 1971, when she was 15, her mother, Ora E. McFarlin of Auburn, decided to have her sterilized.
In a sworn paper prepared at her request by lawyer Warren G. Sunday, McFarlin claimed that Linda was staying overnight with youths and men, was beyond reliable parental control, and should undergo a tubal ligation to "prevent unfortunate circumstances."
McFarlin alleged that Linda was "somewhat retarded," although she said that in school, her daughter had been "passed around with other children in her age level."
The paper said that McFarlin would indemnify the surgeon who would perform the operation, John H. Hines, and DeKalb Memorial Hospital, if damages ever were to be assessed against them.
The paper was never filed in court. Judge Stump approved the sterilization without disclosing his action to anyone. Thus Linda had no opportunity to seek legal counsel, challenge her mother's allegations in a hearing, or have an appeals court decide whether the allegations, even if true, justified rendering her permanently sterile.
To induce Linda to submit to surgery, McFarlin told her she would enter the hospital for an appendectomy to correct the appendicitis that Dr. Hines recently had been treating. Actually, the physician performed both an appendectomy and the tubal ligation.
Two years later, Linda married Leo Sparkman. As time went on, she and her husband became concerned by her prolonged inability to become pregnant. A temporary rift developed in the marriage. Then she began to get contradictory reports about whether she had been sterilized. Finally, in May, 1975, Hines -- her physician -- acknowledged to Linda's lawyer that, on the basis of Judge Stump's paper, he had sterilized her.
Charging deprivation of her constitutional rights, assault and battery, medical malpractice, and other abuses, Mrs. Sparkman filed a suit for $2,750,000 in damages. Her husband asked an additional $500,000 for loss of fatherhood. Named as defendants were McFarlin, Judge Stump, lawyer Sunday, Dr. Hines, a physician who assisted him in the operation, an anesthesiologist, and the hospital.
In May, 1976, federal Judge James E. Eschbach dismissed the suit. Stump, he wrote, was "clothed with absolute judicial immunity" under a doctrine first laid down by the Supreme Court in 1871 to permit judges to exercise judicial functions independently and without fear of civil liability.
Stump's action "may in retrospect appear to have been premised on an erroneous view of the law," but he "surely had jurisdiction" to consider and act upon the petition, the opinion said.
Last March the Seventh U.S. Circuit Court of Appeals reversed Eschbach, saying that to validate Stump's action would be to sanction "tyranny from the bench."
Judicial immunity protects the judge only where he has jurisdiction, the court said. Although Indiana had given Stump broad judicial power, the court said, nothing in state statutes or common law empowered him to "approve anything presented to him in the form of an affidavit or petition."
Moreover, the opinion continued, the state had signaled its desired to prohibit unknowing and involuntary sterilization of free citizens by enacting a 1971 law that set out specific procedures to protect the rights of institutionalized persons recommended for sterilization. ADOPTION RIGHTS
The Supreme Court ruled unanimously yesterday that a state can deny an unwed father authority to prevent adoption of his illegitimate child.
The court upheld a Georgia law providing that only the mother's consent is required for the adoption of an illegitimate child. Although Georgia recently repealed the law, about 20 states have similar statutes that do not require paternal consent for adoption of children born out of wedlock.
The Georgia case involved Darrell W. Quilloin, who was born in Savannah in December, 1964, to Ardell Williams. The father, Leon W. Quilloin, never married her or established a home with her, but provided some support for his son.
Initially, the child lived with his maternal grandmother. But in 1969, two years after Williams married Randall Walcott, Darrell moved in with the couple and has lived with them ever since.
In 1976, Walcott, supported by his wife, petitioned for adoption of Darrell. At that point, the natural father --legally his paternity -- asked the courts to block the proposed adoption, without seeking custody of the child or offering to assume significant parental responsibility.
The Georgia Supreme Court ruled against Quilloin. In yesterday's opinion affirming the lower court, Justice Thurgood Marshall wrote that the adoption recognized a "family unit already in existence, a result desired by all concerned except" Quilloin. This result was in the "best interest of the child," as intended by the state law, Marshall said.