author: Me. Justice White Mr. Justice Stewart, Mr. Justice Powell,

text:
    STUMP et al. v. SPARKMAN et vir
    No. 76-1750.
    Argued January 10, 1978
    Decided March 28,1978

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Rehnquist, and Stevens, JJ., joined. Stewart, J., filed a dissenting opinion, in which Marshall and Powell, JJ., joined, post, p. 364. Powell, J., filed a dissenting opinion, post, p. 369. Brennan, J., took no part in the consideration or decision of the case.

      George E. Fruechtenicht argued the cause and filed briefs for petitioners.

      Richard H. Finley argued the cause for respondents. With him on the brief was Eugene Gressman.

      Briefs of amici curiae urging affirmance were filed by Robert L. Burgdorf, Jr., for the American Coalition of Citizens with Disabilities et al.; by Bruce J..Ennis, Joel M. Gora, Paid Friedman, and Lawrence M.

        Reuben for the American Civil Liberties Union et al.; and by Ronald M. Soskin for the National Center for Law and the Handicapped, Inc.

       The full text of the petition presented to Judge Stump read as follows:
      “State of Indiana 1 County of DeKalb J
      “PETITION TO HAVE TUBAL LIGATION PERFORMED ON MINOR AND INDEMNITY AGREEMENT
      “Ora Spitler McFarlin, being duly sworn upon her oath states that she is the natural mother of and has custody of her daughter, Linda Spitier, age fifteen (15) being bom January 24, 1956 and said daughter resides with her at 108 Iwo Street, Auburn, DeKalb County, Indiana.
      “Affiant states that her daughter’s mentality is such that she is considered to be somewhat retarded although she is attending or has attended the public schools in DeKalb Central School System and has been passed along with other children in her age level even though she does not have what is considered normal mental capabilities and intelligence. Further, that said affiant has had problems in the home of said child as a result of said daughter leaving the home on several occasions to associate with older youth or young men and as a matter of fact having stayed overnight with said youth or men and about which incidents said affiant did not become aware of until after such incidents occurred. As a result of this behavior and the mental capabilities of said daughter, affiant believes that it is to the best interest of said child that a Tubal Ligation be performed on said minor daughter to prevent unfortunate circumstances to occur and since it is impossible for the affiant as mother of said minor child to maintain and control a continuous observation of the activities of said daughter each and every day.
      “Said affiant does hereby in consideration of the Court of the DeKalb Circuit Court approving the Tubal Ligation being performed upon her minor daughter does hereby [sic] covenant and agree to indemnify and keep indemnified and hold Dr. John Hines, Auburn, Indiana, who-said affiant is requesting perform said operation and the DeKalb Memorial Hospital, Auburn, Indiana, whereas [sic] said operation will be performed, harmless from and against all or any matters or causes of action that could or might arise as a result of the performing of said Tubal Ligation.
      “In witness whereof, said affiant, Ora Spitier McFarlin, has hereunto subscribed her name this 9th day of July, 1971.
      “/s/ Ora Spitler McFarlin
      Ora Spitier McFarlin

        Petitioner

      “Subscribed and sworn to before me this 9th day of July, 1971.
      “/s/ Warren G. Sunday
      Warren G. Sunday

        Notary Public

        "My commission expires January 4,1975.
      “I, Harold D. Stump, Judge of the DeKalb Circuit Court, do hereby approve the above Petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to indemnify and keep indemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom.
      ‘7s/ Harold D. Stump

        Judge, DeKalb Circuit Court

      “Dated July 9,1971”

   Me. Justice White

delivered the opinion of the Court.

This case requires us to consider the scope of a judge’s immunity from damages liability when sued under 42 U. S. C. 1 1983.

I

The relevant facts underlying respondents’ suit are not in dispute. On July 9, 1971, Ora Spitler McFarlin, the mother of respondent Linda Kay Spitler Sparkman, presented to Judge Harold D. Stump of the Circuit Court of DeKalb County, Ind., a document captioned “Petition To Have Tubal Ligation Performed On Minor and Indemnity Agreement.” The document had been drafted by her attorney, a petitioner here. In this petition Mrs. McFarlin stated under oath that her daughter was 15 years of age and was “somewhat retarded,” although she attended public school and had been promoted each year with her class. The petition further stated that Linda had been associating with “older youth or young men” and had stayed out overnight with them on several occasions. As a result of this behavior and Linda’s mental capabilities, it was stated that it would be in the daughter’s best interest if she underwent a tubal ligation in order “to prevent unfortunate circumstances . . . .” In the same document Mrs. McFarlin also undertook to indemnify and hold harmless Dr. John Hines, who was to perform the operation, and the DeKalb Memorial Hospital, where the operation was to take place, against all causes of action that might arise as a result of the performance of the tubal ligation.

The petition was approved by Judge Stump on the same day. He affixed his signature as “Judge, DeKalb Circuit Court,” to the statement that he did “hereby approve the above Petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to indemnify and keep indemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom.”

On July 15, 1971, Linda Spitler entered the DeKalb Memorial Hospital, having been told that she was to have her appendix removed. The following day a tubal ligation was performed upon her. She was released several days later, unaware of the true nature of her surgery.

Approximately two years after the operation, Linda Spitler was married to respondent Leo Sparkman. Her inability to become pregnant led her to discover that she had been sterilized during the 1971 operation. As a result of this revelation, the Sparkmans filed suit in the United States District Court for the Northern District of Indiana against Mrs. McFarlin, her attorney, Judge Stump, the doctors who had performed and assisted in the tubal ligation, and the DeKalb Memorial Hospital. Respondents sought damages for the alleged violation of Linda Sparkman’s constitutional rights; also asserted were pendent state claims for assault and battery, medical malpractice, and loss of potential fatherhood.

Ruling upon the defendants’ various motions to dismiss the complaint, the District Court concluded that each of the constitutional claims asserted by respondents required a showing of state action and that the only state action alleged in the complaint was the approval by Judge Stump, acting as Circuit Court Judge, of the petition presented to him by Mrs. McFarlin. The Sparkmans sought to hold the private defendants liable on a theory that they had conspired with Judge Stump to bring about the allegedly unconstitutional acts. The District Court, however, held that no federal action would lie against any of the defendants because Judge Stump, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity. The court stated that “whether or not Judge Stump’s ‘approval’ of the petition may in retrospect appear to have been premised on an erroneous view of the law, Judge Stump surely had jurisdiction to consider the petition and to act thereon.” Sparkman v. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976). Accordingly, under Bradley v. Fisher, 13 Wall. 335, 351 (1872), Judge Stump was entitled to judicial immunity.

On appeal, the Court of Appeals for the Seventh Circuit reversed the judgment of the District Court, holding that the “crucial issue” was “whether Judge Stump acted within his jurisdiction” and concluding that he had not. 552 F. 2d, at 174. He was accordingly not immune from damages liability under the controlling authorities. The Court of Appeals also held that the judge had forfeited his immunity “because of his failure to comply with elementary principles of procedural due process.” Id., at 176.

We granted certiorari, 434 U. S. 815 (1977), to consider the correctness of this ruling. We reverse.

II

The governing principle of law is well established and is not questioned by the parties. As early as 1872, the Court recognized that it was “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, supra, at 347. For that reason the Court held that “judges 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.” 13 Wall., at 351. Later we held that this doctrine of judicial immunity was applicable in suits under § 1 of the Civil Rights Act of 1871, 42 U. S. C. § 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. Pierson v. Ray, 386 U. S. 547 (1967).

The Court of Appeals correctly recognized that the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him. Because “some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction . . . ,” Bradley, supra, at 352, the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the “clear absence of all jurisdiction.” 13 Wall., at 351.

We cannot agree that there was a “clear absence of all jurisdiction” in the DeKalb County Circuit Court to consider the petition presented by Mrs. McFarlin. As an Indiana Circuit Court Judge, Judge Stump had “original exclusive jurisdiction in all cases at law and in equity whatsoever . . . ,” jurisdiction over the settlement of estates and over guardian-ships, appellate jurisdiction as conferred by law, and jurisdiction over “all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer.” Ind. Code § 33-4-4-3 (1975). This is indeed a broad jurisdictional grant; yet the Court of Appeals concluded that Judge Stump did not have jurisdiction over the petition authorizing Linda Sparkman’s sterilization.

In so doing, the Court of Appeals noted that the Indiana statutes provided for the sterilization of institutionalized persons under certain circumstances, see Ind. Code §§ 16-13-13-1 through 16-13-13-4 (1973), but otherwise contained no express authority for judicial approval of tubal ligations. It is true that the statutory grant of general jurisdiction to the Indiana circuit courts does not itemize types of cases those courts may hear and hence does not expressly mention sterilization petitions presented by the parents of a minor. But in our view, it is more significant that there was no Indiana statute and no case law in 1971 prohibiting a circuit court, a court of general jurisdiction, from considering a petition of the type presented to Judge Stump. The statutory authority for the sterilization of institutionalized persons in the custody of the State does not warrant the inference that a court of general jurisdiction has no power to act on a petition for sterilization of a minor in the custody of her parents, particularly where the parents have authority under the Indiana statutes to “consent to and contract for medical or hospital care or treatment of [the minor] including surgery.” Ind. Code § 16-8-4-2 (1973). The District Court concluded that Judge Stump had jurisdiction under § 33-4-4 — 3 to entertain and act upon Mrs. McFarlin’s petition. We agree with the District Court, it appearing that neither by statute nor by 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.

The Court of Appeals also concluded that support for Judge Stump’s actions could not be found in the common law of Indiana, relying in particular on the Indiana Court of Appeals’ intervening decision in A. L. v. G. R. H., 163 Ind. App. 636, 326 N. E. 2d 501 (1975). In that case the Indiana court held that a parent does not have a common-law right to have a minor child sterilized, even though the parent might “sincerely believe the child’s adulthood would benefit therefrom.” Id., at 638, 325 N. E. 2d, at 502. The opinion, however, speaks only of the rights of the parents to consent to the sterilization of their child and does not question the jurisdiction of a circuit judge who is presented with such a petition from a parent. Although under that case a circuit judge would err as a matter of law if he were to approve a parent’s petition seeking the sterilization of a child, the opinion in A. L. v. O. R. H. does not indicate that a circuit judge is without jurisdiction to entertain the petition. Indeed, the clear implication of the opinion is that, when presented with such a petition, the circuit judge should deny it on its merits rather than dismiss it for lack of jurisdiction.

Perhaps realizing the broad scope of Judge Stump’s jurisdiction, the Court of Appeals stated that, even if the action taken by him was not foreclosed under the Indiana statutory scheme, it would still be “an illegitimate exercise of his common law power because of his failure to comply with elementary principles of procedural due process.” 552 F. 2d, at 176. This misconceives the doctrine of judicial immunity. A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors. The Court made this point clear in Bradley, 13 Wall., at 357, where it stated: “[T]his erroneous manner in which [the court’s] jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever . . . .”

We conclude that the Court of Appeals, employing an unduly restrictive view of the scope of Judge Stump’s jurisdiction, erred in holding that he was not entitled to judicial immunity. Because the court over which Judge Stump presides is one of general jurisdiction, neither the procedural errors he may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages for the consequences of his actions.

The respondents argue that even if Judge Stump had jurisdiction to consider the petition presented to him by Mrs. McFarlin, he is still not entitled to judicial immunity because his approval of the petition did not constitute a “judicial” act. It is only for acts performed in his “judicial” capacity that a judge is absolutely immune, they say. We do not disagree with this statement of the law, but we cannot characterize the approval of the petition as a nonjudicial act.

Respondents themselves stated in their pleadings before the District Court that Judge Stump was “clothed with the authority of the state” at the time that he approved the petition and that “he was acting as a county circuit court judge.” Plaintiffs’ Reply Brief to Memorandum Filed on Behalf of Harold D. Stump in Support of his Motion to Dismiss in Civ. No. F 75-129, p. 6. They nevertheless now argue that Judge Stump’s approval of the petition was not a judicial act because the petition was not given a docket number, was not placed on file with the clerk’s office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem.

This Court has not had occasion to consider, for purposes of the judicial immunity doctrine, the necessary attributes of a judicial act; but it has previously rejected the argument, somewhat similar to the one raised here, that the lack of formality involved in the Illinois Supreme Court’s consideration of a petitioner’s application for admission to the state bar prevented it from being a “judicial proceeding” and from presenting a case or controversy that could be reviewed by this Court. In re Summers, 325 U. S. 561 (1945). Of particular significance to the present case, the Court in Summers noted the following: “The record does not show that any process issued or that any appearance was made. . . . While no entry was placed by the Clerk in the file, on a docket, or in a judgment roll, the Court took cognizance of the petition and passed an order which is validated by the signature of the presiding officer.” Id., at 567. Because the Illinois court "took cognizance of the petition for admission and acted upon it, the Court held that a case or controversy was presented.

Similarly, the Court of Appeals for the Fifth Circuit has held that a state district judge was entitled to judicial immunity, even though “at the time of the altercation [giving rise to the suit] Judge Brown was not in his judge’s robes, he was not in the courtroom itself, and he may well have violated state and/or federal procedural requirements regarding contempt citations.” McAlester v. Brown, 469 F. 2d 1280, 1282 (1972). Among the factors relied upon by the Court of Appeals in deciding that the judge was acting within his judicial capacity was the fact that “the confrontation arose directly and immediately out of a visit to the judge in his official capacity.” Ibid.

The relevant cases demonstrate that the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, i. e., whether it is a function normally performed by a judge, and to the expectations of the parties, i. e., whether they dealt with the judge in his judicial capacity. Here, both factors indicate that Judge Stump's approval of the sterilization petition was a judicial act. 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. Furthermore, as even respondents have admitted, at the time he approved the petition presented to him by Mrs. McFarlin, Judge Stump was “acting as a county circuit court judge.” See su/pra,, at 360. We may infer from the record that it was only because Judge Stump served in that position that Mrs. McFarlin, on the advice of counsel, submitted the petition to hitti for his approval. Because Judge Stump performed the type of act normally performed only by judges and because he did so in his capacity as a Circuit Court Judge, we find no merit to respondents’ argument that the informality with which he proceeded rendered his action nonjudicial and deprived him of his absolute immunity.

Both the Court of Appeals and the respondents seem to suggest that, because of the tragic consequences of Judge Stump’s actions, he should not be immune. For example, the Court of Appeals noted that “[t]here are actions of purported judicial character that a judge, even when exercising general jurisdiction, is not empowered to take,” 552 F. 2d, at 176, and respondents argue that Judge Stump’s action was “so unfair” and “so totally devoid of judicial concern for the interests and well-being of the young girl involved” as to disqualify it as a judicial act. Brief for Respondents 18. Disagreement with the action taken by the judge, however, does not justify depriving that judge of his immunity. Despite the unfairness to litigants that sometimes results, the doctrine of judicial immunity is thought to be in the best interests of “the proper administration of justice . . . [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 13 Wall., at 347. The fact that the issue before the judge is a controversial one is all the more reason that he should be able to act without fear of suit. As the Court pointed out in Bradley:

“Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in those courts, in which there is great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the judge the severest labor, and often create in his mind a painful sense of responsibility.” Id., at 348.

The Indiana law vested in Judge Stump the power to entertain and act upon the petition for sterilization. He is, therefore, under the controlling cases, immune from damages liability even if his approval of the petition was in error. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Brennan took no part in the consideration or decision of this case.

Mr. Justice Stewart,

with whom Mr. Justice, Marshall and Mr. Justice Powell join, dissenting.

It is established federal law that judges of general jurisdiction are absolutely immune from monetary liability “for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Bradley v. Fisher, 13 Wall. 335, 351. It is also established that this immunity is in no way diminished in a proceeding under 42 U. S. C. § 1983. Pierson v. Ray, 386 U. S. 547. But the scope of judicial immunity is limited to liability for “judicial acts,” 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.

Neither in Bradley v. Fisher nor in Pierson v. Ray was there any claim that the conduct, in question was not a judicial act, and the Court thus had no occasion in either case to discuss the meaning of that term. Yet the proposition that judicial immunity extends only to liability for “judicial acts” was emphasized no less than seven times in Mr. Justice Field’s opinion for the Court in the Bradley case. Cf. Imbler v. Pachtman, 424 U. S. 409, 430. And if the limitations inherent in that concept have any realistic meaning at all, then I cannot believe that the action of Judge Stump in approving Mrs. McFarlin’s petition is protected by judicial immunity.

The Court finds two reasons for holding that Judge Stump’s approval of the sterilization petition was a judicial act. First, the Court says, it was “a function normally performed by a judge.” Second, the Court says, the act was performed in Judge Stump’s “judicial capacity.” With all respect, I think that the first of these grounds is factually untrue and that the second is legally unsound.

When the Court says that what Judge Stump did was an act “normally performed by a judge,” it is not clear to me whether the Court means that a judge “normally” is asked to approve a mother’s decision to have her child given surgical treatment generally, or that a judge “normally” is asked to approve a mother’s wish to have her daughter sterilized. But whichever way the Court’s statement is to be taken, it is factually inaccurate. In Indiana, as elsewhere in our country, a parent is authorized to arrange for and consent to medical and surgical treatment of his minor child. Ind. Code § 16-8-4-2 (1973). And when a parent decides to call a physician to care for his sick child or arranges to have a surgeon remove his child’s tonsils, he does not, “normally” or otherwise, need to seek the approval of a judge. On the other hand, Indiana did in 1971 have statutory procedures for the sterilization of certain people who were institutionalized. But these statutes provided for administrative proceedings before a board established by the superintendent of each public hospital. Only if, after notice and an evidentiary hearing, an order of sterilization was entered in these proceedings could there be review in a circuit court. See Ind. Code §§ 16-13-13-1 through 16-13-13-4 (1974).

In sum, what Judge Stump did on July 9, 1971, was in no way an act “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.

When the Court says that Judge Stump was acting in “his judicial capacity” in approving Mrs. McFarlin’s petition, it is not clear to me whether the Court means that Mrs. McFarlin submitted the petition to him only because he was a judge, or that, in approving it, he said that he was acting as a judge. But however the Court’s test is to be understood, it is, I think, demonstrably unsound.

It can safely be assumed that the Court is correct in concluding that Mrs. McFarlin came to Judge Stump with her petition because he was a County Circuit Court Judge. But false illusions as to a judge’s power can hardly convert a judge’s response to those illusions into a judicial act. In short, a judge’s approval of a mother’s petition to lock her daughter in the attic would hardly be a judicial act simply because the mother had submitted her petition to the judge in his official capacity.

If, on the other hand, the Court’s test depends upon the fact that Judge Stump said he was acting in his judicial capacity, it is equally invalid. It is true that Judge Stump affixed his signature to the approval of the petition as “Judge, De Kalb Circuit Court.” But the 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.

If the standard adopted by the Court is invalid, then what is the proper measure of a judicial act? Contrary to implications in the Court’s opinion, my conclusion that what Judge Stump did was not a judicial act is not based upon the fact that he acted with informality, or that he may not have been “in his judge’s robes,” or “in the courtroom itself.” Ante, at 361. And I do not reach this conclusion simply “because the petition was not given a docket number, was not placed on file with the clerk’s office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem.” Ante, at 360.

It seems to me, rather, that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. Those factors were accurately summarized by the Court in Pierson v. Ray, 386 U. S., at 554:

“[I]t 'is . . . for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ ... It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”

Not one of the considerations thus summarized in the Pierson opinion was present here. There was no “case,” controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decisionmaking. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.

The petitioners’ brief speaks of “an aura of deism which surrounds the bench . . . essential to the maintenance of respect for the judicial institution.” Though the rhetoric maybe 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.

Mr. Justice Powell,

dissenting.

While I join the opinion of Mr. Justice Stewart, I wish to emphasize what I take to be the central feature of this case— Judge Stump’s preclusion of any possibility for the vindication of respondents’ rights elsewhere in the judicial system.

Bradley v. Fisher, 13 Wall. 335 (1872), which established the absolute judicial immunity at issue in this case, recognized that the immunity was designed to further the public interest in an independent judiciary, sometimes at the expense of legitimate individual grievances. Id., at 349; accord, Pierson v. Ray, 386 U. S. 547, 554 (1967). The Bradley Court accepted those costs to aggrieved individuals because the judicial system itself provided other means for protecting individual rights:

“Against the consequences of [judges’] erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort.” 13 Wall., at 354.

Underlying the Bradley immunity, then, is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a completely independent judiciary, because there exist alternative forums and methods for vindicating those rights.

But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative. See Pierson v. Ray, supra, at 554. In this case, as Me. Justice Stewart points out, ante, at 369, Judge Stump’s unjudicial conduct insured that “[t]here was and could be no appeal.” The complete absence of normal judicial process foreclosed resort to any of the “numerous remedies” that “the law has provided for private parties.” Bradley, supra, at 354.

In sum, I agree with Mr. Justice Stewart that petitioner judge’s actions were not “judicial,” and that he is entitled to no judicial immunity from suit under 42 U. S. C. § 1983.

       The District Court gave the following summary of the constitutional claims asserted by the Sparkmans:
      “Whether laid under section 1331 or 1343 (3) and whether asserted directly or via section 1983 and 1985, plaintiffs’ grounds for recovery are asserted to rest on the violation of constitutional rights. Plaintiffs urge that defendants violated the following constitutional guarantees:
      “1. that the actions were arbitrary and thus in violation of the due process clause of the Fourteenth Amendment;
      “2. that Linda was denied procedural safeguards required by the Fourteenth Amendment;
      “3. that the sterilization was permitted without the promulgation of standards;
      “4. that the sterilization was an invasion of privacy;

        “5. that the sterilization violated Linda’s right to procreate;
      “6. that the sterilization was cruel and unusual punishment;
      “7. that the use of sterilization as punishment for her alleged retardation or lack of self-discipline violated various constitutional guarantees;
      “8. that the defendants failed to follow certain Indiana statutes, thus depriving Linda of due process of law; and
      "9. that defendants violated the equal protection clause, because of the differential treatment accorded Linda on account of her sex, marital status, and allegedly low mental capacity.” Sparkman v. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976).

       The District Court granted the defendants’ motion to dismiss the federal claims for that reason and dismissed the remaining pendent state claims for lack of subject-matter jurisdiction.

        Sparkman v. McFarlin, 552 F. 2d 172 (CA7 1977).

       Even earlier, in Randall v. Brigham, 7 Wall. 523 (1869), the Court stated that judges are not responsible “to private parties in civil actions for their judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly.” Id., at 537. In Bradley the Court reconsidered that earlier statement and concluded that “the qualifying words used were not necessary to a correct statement of the law . . . .” 13 Wall., at 351.

       In holding that a judge was immune for his judicial acts, even when such acts were performed in excess of his jurisdiction, the Court in Bradley stated:
      “A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.” Id., at 351-352.

       In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. Id., at 352.

       Indiana Code § 33-4-4-3 (1975) states as follows:
      “Jurisdiction. — 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 settlement of decedents’ estates and of guardianships: Provided, however, That in counties in which criminal or superior courts exist or 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.”

       In McAlester the plaintiffs alleged that they had gone to the courthouse where their son was to be tried by the defendant in order to give the son a fresh set of clothes. When they went into the defendant judge’s office, he allegedly ordered them out and had a deputy arrest one of them and place him in jail for the rest of the day. Several months later, the judge issued an order holding the plaintiff in contempt of court, nunc pro tunc.

       Other Courts of Appeals, presented with different fact situations, have concluded that the challenged actions of defendant judges were not performed as part of the judicial function and that the judges were thus not entitled to rely upon the doctrine of judicial immunity. The Court of Appeals for the Ninth Circuit, for example, has held that a justice of the peace who was accused of forcibly removing a man from his courtroom and physically assaulting him was not absolutely immune. Gregory v. Thompson, 500 F. 2d 59 (1974). While the court recognized that a judge has the duty to maintain order in his courtroom, it concluded that the actual eviction of someone from the courtroom by use of physical force, a task normally performed by a sheriff or bailiff, was “simply not an act of a judicial nature.” Id., at 64. And the Court of Appeals for the Sixth Circuit held in Lynch v. Johnson, 420 F. 2d 818 (1970), that the county judge sued in that case was not entitled to judicial immunity because his service on a board with only legislative and administrative powers did not constitute a judicial act.

       Mr. Justice Stewart, in dissent, complains that this statement is inaccurate because it nowhere appears that judges are normally asked to approve parents’ decisions either with respect to surgical treatment in general or with respect to sterilizations in particular. Of course, the opinion makes neither assertion. Rather, it is said that Judge Stump was performing a “function” normally performed by judges and that he was taking “the type of action” judges normally perform. The dissent malíes no effort to demonstrate that Judge Stump was without jurisdiction to entertain and act upon the specific petition presented to him. Nor does it dispute that judges normally entertain petitions with respect to the affairs of minors. Even if it is assumed that in a lifetime of judging, a judge has acted on only one petition of a particular kind, this would not indicate that his function in entertaining and acting on it is not the kind of function that a judge normally performs. If this is the case, it is also, untenable to claim that in entertaining the petition and exercising the jurisdiction with which the statutes invested him, Judge Stump was nevertheless not performing a judicial act or was engaging in the kind of conduct not expected of a judge under the Indiana statutes governing the jurisdiction of its courts.

       Mr. Justice Stewart’s dissent, post, at 369, suggests that Judge Stump’s approval of Mrs. McFarlin’s petition was not a judicial act because of the absence of what it considers the “normal attributes of a judicial proceeding.” These attributes are said to include a “ease,” with litigants and the opportunity to appeal, in which there is “principled decisionmaking.” But under Indiana law, Judge Stump had jurisdiction to act as he did; the proceeding instituted by the petition placed before him was sufficiently a “case” under Indiana law to warrant the exercise of his jurisdiction, whether or not he then proceeded to act erroneously. That there were not two contending litigants did not malee Judge Stump’s act any less judicial. Courts and judges often act ex parte. They issue search warrants in this manner, for example, often without any “case” having been instituted, without any “case” ever being instituted, and without the issuance of the warrant being subject to appeal. Yet it would not destroy a judge’s immunity if it is alleged and offer of proof is made that in issuing a warrant he acted erroneously and without principle.

       The issue is not presented and we do not decide whether the District Court correctly concluded that the federal claims against the other defendants were required to be dismissed if Judge Stump, the only state agent, was found to be absolutely immune. Compare Kermit Constr. Corp. v. Banco Credito v. Ahorro Ponceno, 547 F. 2d 1 (CA1 1976), with Guedry v. Ford, 431 F. 2d 660 (CA5 1970).

       In the Bradley case the plaintiff was a lawyer who had been disbarred; in the Pierson case the plaintiffs had been found guilty after a criminal trial.

       See 13 Wall., at 347, 348, 349, 351, 354, 357.

       This general authority of a parent was held by an Indiana Court of Appeals in 1975 not to include the power to authorize the sterilization of his minor child. A. L. v. G. R. H., 163 Ind. App. 636, 325 N. E. 2d 501.
      Contrary to the Court’s conclusion, ante, at 359, that case does not in the least demonstrate that an Indiana judge is or ever was empowered to act on the merits of a petition like Mrs. McFarlin’s. The parent in that case did not petition for judicial approval of her decision, but rather “filed a complaint for declaratory judgment seeking declaration of her right under the common-law attributes of the parent-child relationship to have her son . . . sterilized.” 163 Ind. App., at 636-637, 325 N. E. 2d, at 501. The Indiana Court of Appeals’ decision simply established a limitation on the parent’s common-law rights. It neither sanctioned nor contemplated any procedure for judicial “approval” of the parent’s decision.
      Indeed, the procedure followed in that case offers an instructive contrast to the judicial conduct at issue here:
      “At the outset, we thank counsel for their excellent efforts in representing a seriously concerned parent and in providing the guardian ad litem defense of the child’s interest. Id., at 638, 325 N. E. 2d, at 502.

       These statutes were repealed in 1974.

       Believing that the conduct of Judge Stump on July 9, 1971, was not a judicial act, I do not need to inquire whether he was acting in “the clear absence of all jurisdiction over the subject matter.” Bradley v. Fisher, 13 Wall., at 351. “Jurisdiction” is a coat of many colors. I note only that the Court’s finding that Judge Stump had jurisdiction to entertain Mrs. MbFarlin’s petition seems to me to be based upon dangerously broad criteria. Those criteria are simply that an Indiana statute conferred "jurisdiction of all . . . causes, matters and proceedings,” and that there was not in 1971 any Indiana law specifically prohibiting what Judge Stump did.

       The only question before us in this case is the scope of judicial immunity. How the absence of a “judicial act” might affect the issue of whether Judge Stump was acting “under color of” state law within the meaning of 42 U. S. C. § 1983, or the issue of whether his act was that of the State within the meaning of the Fourteenth Amendment that need not, therefore, be pursued here.

       See Handler & Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv. L. Rev. 44, 53-55 (1960); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv. L. Rev. 209, 233-235 (1963); Note, Federal Executive Immunity From Civil Liability in Damages: A Reevaluation of Barr v. Mateo, 77 Colum. L. Rev. 625, 647 (1977).

       In both Bradley and Pierson any errors committed by the judges involved were open to correction on appeal.


source: Caselaw Access Project

author: Mr. Justice Marshall

license: Public Domain

text:
    UNITED STATES v. CULBERT
    No. 77-142.
    Argued January 11, 1978
    Decided March 28, 1978
    Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Brennan, J., who took no part in the consideration or decision of the case.

      Sara Sim Beale argued the cause for the United States. With her on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Deputy Solicitor General Frey.

      James F. Hewitt argued the cause for respondent. With him on the brief was Frank O. Bell, Jr.

   Mr. Justice Marshall

delivered the opinion of the Court.

Respondent was convicted of violating the Hobbs Act, 18 U. S. C. § 1951 (1976 ed.), which provides in relevant part:

“Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.” § 1951 (a).

The question in this case is whether the Government not only had to establish that respondent violated the express terms of the Act, but also had to prove that his conduct constituted “racketeering.”

The evidence at respondent’s jury trial showed that he and an accomplice attempted to obtain $100,000 from a federally insured bank by means of threats of physical violence made to the bank’s president. The United States Court of Appeals for the Ninth Circuit, with one judge dissenting, reversed the Hobbs Act conviction, holding that, “ 'although an activity may be within the literal language of the Hobbs Act, it must constitute “racketeering” to be within the perimeters of the Act.’ ” 548 F. 2d 1355, 1357, quoting United States v. Yokley, 542 F. 2d 300, 304 (CA6 1976). We granted certiorari, 434 U. S. 816 (1977), and we now reverse.

I

Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons who have engaged in “racketeering.” To the contrary, the statutory language sweeps within it all persons who have “in any way or degree . . . affect [ed] commerce ... by robbery or extortion.” 18 U. S. C. § 1951 (a) (1976 ed.). These words do not lend themselves to restrictive interpretation; as we have recognized, they “manifest... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence,” Stirone v. United States, 361 U. S. 212, 215 (1960). The statute, moreover, carefully defines its key terms, such as “robbery,” “extortion,” and “commerce.” Hence the absence of any reference to “racketeering” — much less any definition of the word — is strong evidence that Congress did not intend to make “racketeering” an element of a Hobbs Act violation.

Respondent nevertheless argues that we should read a racketeering requirement into the statute. To do so, however, might create serious constitutional problems, in view of the absence of any definition of racketeering in the statute. Neither respondent nor either of the two Courts of Appeals that have read this requirement into the statute has even attempted to provide a definition. Without such a definition, the statute might well violate “the first essential of due process of law”: It would forbid “the doing of an act in terms so vague that [persons] of common intelligence [would] necessarily [have to] guess at its meaning and differ as to its application.” Connolly v. General Constr. Co., 269 U. S. 385, 391 (1926); see, e. g., Hynes v. Mayor of Orodell, 425 U. S. 610, 620 (1976). But we need not concern ourselves with these potential constitutional difficulties because a construction that avoids them is virtually compelled by the language and structure of the statute.

II

A

Nothing in the legislative history supports the interpretation of the statute adopted by the Court of Appeals. The predecessor to the Hobbs Act, the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, was enacted, as its name implies, at a time when Congress was very concerned about racketeering activities. Despite these concerns, however, the Act, which was written in broad language similar to the language of the Hobbs Act, nowhere mentioned racketeering. This absence of the term is not surprising, since the principal congressional committee working on the Act, known as the Copeland Committee, found that the term and the associated word “racket” had “for some time been used loosely to designate every conceivable sort of practice or activity which was either questionable, unmoral, fraudulent, or even disliked, whether criminal or not.” S. Rep. No. 1189, 75th Cong., 1st Sess., 2 (1937).

The Copeland Committee proceeded to develop its own “working definition” of racketeering, but it did not incorporate this definition into the Act. Ibid. Critical to the definition was the existence of “an organized conspiracy to commit the crimes of extortion or coercion.” Id., at 3. Yet the Act itself did not require a conspiracy to engage in unlawful conduct, and the Senate Judiciary Committee Report expressly stated that a violation of the Act would be established “ 'whether the restraints [of commerce] are in form of conspiracies or not/ ” S. Rep. No. 532, 73d Cong., 2d Sess., 2 (1934), quoting Justice Department memorandum; see H. R, Rep. No, 1833, 73d Cong., 2d Sess., 2 (1934). Moreover, the Act included a separate prohibition on conspiracies, § 2 (d), 48 Stat. 980; see n. 5, supra, that would have been superfluous if proof of racketeering — as defined by the Copeland Committee to require conspiracy — were an integral element of the substantive offenses. There is nothing in the legislative history to dispel the conclusion compelled by these observations. Congress simply did not intend to make racketeering a separate, unstated element of an Anti-Racketeering Act violation.

B

Given the absence of this intent in the Hobbs Act’s predecessor, any requirement that racketeering be proved must be derived from the Hobbs Act itself or its legislative history. While the Hobbs Act was enacted to correct a perceived deficiency in the Anti-Racketeering Act, that deficiency had nothing to do with the element of racketeering. See United States v. Enmons, 410 U. S. 396, 401-404 (1973). Rather, it involved the latter Act’s requirement that the proscribed “force, violence or coercion” lead to exaction of “valuable consideration” and its exclusion of wage payments from the definition of consideration. See n. 5, supra. In construing the wage-payments exclusion, this Court had held that the Act did not cover the actions of union truckdrivers who exacted money by threats or violence from out-of-town drivers in return for undesired and often unutilized services. United States v. Teamsters, 315 U. S. 521 (1942). Shortly thereafter, several bills were introduced in Congress to alter this result. United States v. Enmons, supra, at 402, and n. 8.

The bill that eventually became the Hobbs Act deleted the exception on which the Court had relied in Teamsters and substituted specific prohibitions against robbery and extortion for the Anti-Racketeering Act’s language relating to the use of force or threats of force. The primary focus in the Hobbs Act debates was on whether the bill was designed as an attack on organized labor. Opponents of the bill argued that it would be used to prosecute strikers and interfere with labor unions. See, e. g., 91 Cong. Rec. 11848 (1945) (remarks of Rep. Lane) ; ibid, (remarks of Rep. Powell); id., at 11902 (remarks of Rep. Celler). The proponents of the bill steadfastly maintained that the purpose of the bill was to prohibit robbery and extortion perpetrated by anyone. See, e. g., id., at 11900 (remarks of Rep. Hancock); id., at 11904 (remarks of Rep. Gwynne); id., at 11912 (remarks of Rep. Hobbs); id., at 11914 (remarks of Rep. Russell). Although there were many references in the debates to “racketeers” and “racketeering,” see, e. g., id., at 11906 (remarks of Rep. Robsion); id., at 11908 (remarks of Rep. Vursell); id., at 11910 (remarks of Rep. Andersen), none of the comments supports the conclusion that Congress did not intend to make punishable all conduct falling within the reach of the statutory language. To the contrary, the debates are fully consistent with the statement in the Report of the House Committee on the Judiciary that the purpose of the bill was “to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion as defined in the bill.” H. R. Rep. No. 238, 79th Cong., 1st Sess., 9 (1945) (emphasis added); see also S. Rep. No. 1516, 79th Cong., 2d Sess., 1 (1946).

Indeed, many Congressmen praised the bill because it set out with more precision the conduct that was being made criminal. As Representative Hobbs noted, the words robbery and extortion “have been construed a thousand times by the courts. Everybody knows what they mean.” 91 Cong. Rec. 11912 (1945). See also id., at 11906 (remarks of Rep. Robsion); id., at 11910 (remarks of Rep. Springer); id., at 11914 (remarks of Rep. Russell). In the wake of the Court’s decision in Teamsters, moreover, a paramount congressional concern was to be clear about what conduct was prohibited:

“We are explicit. That language is too general, and we thought it better to make this bill explicit, and leave nothing to the imagination of the court.” 91 Cong. Rec. 11904 (1945) (remarks of Rep. Hancock).

See id., at 11912 (remarks of Rep. Hobbs).

It is inconceivable that, at the same time Congress was so concerned about clearly defining the acts prohibited under the bill, it intended to make proof of racketeering — a term not mentioned in the statute — a separate prerequisite to criminal liability under the Hobbs Act.

III

We therefore conclude that respondent’s position has no support in either the statute or its legislative history. Respondent also invokes, as did the court below, two maxims of statutory construction, but neither is applicable here. It is true that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,” Rewis v. United States, 401 U. S. 808, 812 (1971), and that, “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance,” United States v. Bass, 404 U. S. 336, 349 (1971). Rut here Congress has conveyed its purpose clearly, and we decline to manufacture ambiguity where none exists. The two maxims only apply “when we are uncertain about the statute’s meaning”; they are “not to be used ‘in complete disregard of the purpose of the legislature.’ ” Scarborough v. United States, 431 U. S. 563, 577 (1977), quoting United States v. Bramblett, 348 U. S. 503, 510 (1955).

With regard to the concern about disturbing the federal-state balance, moreover, there is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law. The legislative debates are replete with statements that the conduct punishable under the Hobbs Act was already punishable under state robbery and extortion statutes. See, e. g., 91 Cong. Rec. 11848 (1945) (remarks of Rep. Powell); id., at 11900 (remarks of Rep. Hancock); id., at 11904 (remarks of Rep. Gwynne). Those who opposed the Act argued that it was a grave interference with the rights of the States. See, e. g., id., at 11903 (remarks of Rep. Welch); id., at 11913 (remarks of Rep. Resa). Congress apparently believed, however, that the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so. See, e. g., id., at 11911 (remarks of Rep. Jennings); id., at 11904, 11920 (remarks of Rep. Gwynne).

Our examination of the.statutory language and the legislative history of the Hobbs Act impels us to the conclusion that Congress intended to make criminal all conduct within the reach of the statutory language. We therefore decline the invitation to limit the statute’s scope by reference to an undefined category of conduct termed “racketeering.” The judgment of the Court of Appeals is, accordingly,

Reversed.

Mr. Justice Brennan took no part in the consideration or decision of this case.

       Respondent was also convicted of attempted bank robbery, a violation of 18 U. S. C. §2113 (a) (1976 ed.). In the Court of Appeals, however, the Government confessed error on the ground that § 2113 (a) is not violated unless the taking of the bank’s money is "from the person or presence of another.” Since respondent’s plan involved the delivery of the money by the bank president to a parking lot and did not contemplate any entry by respondent into the bank or any taking from the person or presence of the president, the Government conceded that the bank robbery conviction should be vacated. 548 F. 2d 1355, 1356-1357.
      In its brief in this Court, the Government notes that “the United States Attorney’s concession was not approved by the Solicitor General and does not represent the position of the Department of Justice on this question.” Brief for United States 33 n. 19. We express no view on the validity of the United States Attorney’s interpretation of §2113 (a).

       There is a conflict in the Circuits on this issue. Compare United States v. Culbert, 548 F. 2d 1355 (CA9 1977) (case below), and United States v. Yokley, 542 F. 2d 300 (CA6 1976), with United States v. Frazier, 560 F. 2d 884, 886 (CA8 1977), cert. pending, No. 77-847; United States v.
        Warledo, 557 F. 2d 721, 730 (CA10 1977); and United States v. Brecht, 540 F. 2d 45, 52 (CA2 1976).

       Title 18 U. S. C. § 1951 (b) (1976 ed.) provides:
      “As used in this section—
      “(1) The term ‘robbery’ means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
      “(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
      “(3) The term ‘commerce’ means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.”

         Although we find the statutory language to be clear, we have often stated that, “[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” United States v. American Trucking Assns., Inc., 310 U. S. 534, 543-544 (1940) (footnotes omitted). See Train v. Colorado Public Interest Research Group, Inc., 426 U. S. 1, 10 (1976); Cass v. United States, 417 U. S. 72, 77-79 (1974).

       The Anti-Racketeering Act provided in pertinent part:
      “Sec. 2. Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce—
      “(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable considerations, or the purchase or rental of property or protective services, not including, however, the payment of wages by a bona-fide employer to a bona-fide employee; or
      “(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of ofiicial right; or “(c) Commits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate sections (a) or (b); or
      “(d) Conspires or acts concertedly with any other person or persons to commit any of the foregoing acts; shall, upon conviction thereof, be guilty of a felony and shall be punished by imprisonment from one to ten years or by a fine of $10,000, or both.
      “Sec. 3. (a) As used in this Act the term 'wrongful’ means in violation of the criminal laws of the United States or of any State or Territory.
      “(b) The terms 'property’, 'money’, or 'valuable considerations’ used herein shall not be deemed to include wages paid by a bona-fide employer to a bona-fide employee.”

       Although the cited report was issued in 1937, it was intended to provide “a complete picture” of the earlier work of the Copeland Committee. S. Rep. No. 1189, 75th Cong., 1st Sess., 1 (1937).

       The Hobbs Act also separately proscribes conspiracies. 18 U. S. C. 1951 (a) (1976 ed.), quoted, supra, at 371-372.

       There are other indications that Congress did not intend to make criminal liability .under the Hobbs Act turn on proof of some additional element of “racketeering.” One Congressman, in enumerating for his colleagues exactly what the Government would have to prove to establish an. individual’s liability under the bill, made no reference to “racketeering.” 91 Cong. Rec. 11903 (1945) (remarks of Rep. Gwynne). Another emphasized that, with respect to a predecessor bill — one that “was substantially carried forward into the [Hobbs] Act,” United States v. Enmons, 410 U. S. 396, 404-405, n. 14 (1973) — Congress was “trying to make a legal definition of racketeering” by proscribing specific conduct in the statute. 89 Cong. Rec. 3227 (1943) (remarks of Rep. Vorys).

       We note that when Congress wanted to make racketeering an element of an offense, it knew how to do so. In the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922, Congress not only made “racketeering activity” an element of a statutory offense, but it specifically defined the term for purposes of the statute. 18 U. S. C. § 1961 (1) (1976 ed.). Moreover, the statute defines as “racketeering activity” any act which violates certain state laws as well as “any act which is indictable under . . . title 18, United States Code . . . sectiom.1951” — the Hobbs Act. § 1961 (1) (B).


author: Pee Cueiam.

text:
    BANKERS TRUST CO. v. MALLIS et al.
    No. 76-1359.
    Argued November 30, 1977
    Decided March 28, 1978

      .Jack H. Weiner argued the cause for petitioner. With him on the briefs was Charles Leeds.

      Noel W. Hauser argued the cause and filed a brief for respondents.

      John L. Warden argued the cause and filed a brief for the New York Clearing House Assn, as amicus curiae urging reversal.

      Harvey L. Pitt argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Paul Gonson, Jacob H. Stillman, and James E. Bowers.

   Pee Cueiam.

Respondents sued petitioner Bankers Trust Co. under § 10 (b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j (b) (1976 ed.), for allegedly fraudulent statements. The District Court for the Southern District of New York dismissed the action on the ground that the fraud alleged had not occurred “in connection with the purchase or sale” of a security, as required by § 10 (b). Mallis v. Federal Deposit Ins. Corp., 407 F. Supp. 7 (1975). The Court of Appeals for the Second Circuit reversed, holding that respondents were “purchasers [of securities] by virtue of their acceptance of [a] pledge” of stock and that petitioner was “a seller by virtue of its release of [a] pledge.” Mallis v. Federal Deposit Ins. Corp., 568 F. 2d 824, 830 (1977). We granted certiorari to consider the correctness of these rulings of the Court of Appeals. 431 U. S. 928 (1977).

We find ourselves initially confronted, however, by a difficult question of federal appellate jurisdiction. As the Court of Appeals noted in its opinion, a search of the District Court record fails to uncover “any document that looks like a judgment.” 568 F. 2d, at 827 n. 4. Because both the parties and the District Court “proceeded on the assumption that there was an adjudication of dismissal,” ibid. the Court of Appeals felt free to consider the merits of the appeal. The Court of Appeals action, however, conflicts with the decisions of other Courts of Appeals concluding that a judgment set forth on a “separate document” is a prerequisite to appellate jurisdiction. We conclude that the Court of Appeals for the Second Circuit was correct in deciding that it had jurisdiction in this case despite the absence of a separate judgment.

Appellate jurisdiction was invoked under 28 U. S. C. § 1291, which provides that the “courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” The issue posed is whether a decision of a district court can be a “final decision” for purposes of § 1291 if not set forth on a document separate from the opinion. The issue arises because of Fed. Rule Civ. Proc. 58, which reads in part: We assume, without deciding, that the requirements for an effective judgment set forth in the Federal Rules of Civil Procedure must generally be satisfied before § 1291 jurisdiction may be invoked. We nonetheless conclude that it could not have been intended that the separate-document requirement of Rule 58 be such a categorical imperative that the parties are not free to waive it.

“Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a).”

The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U. S. C. § 2107 begins to run. According to the Advisory Committee that drafted the 1963 amendment:

“Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., 'the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227, 229 . . . (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79 (a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post verdict motions and for the purpose of appeal. . . .
“The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document — distinct from any opinion or memorandum— which provides the basis for the entry of judgment.” 28 U. S. C. App., p. 7824.

The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. See United States v. Indrelunas, 411 U. S. 216, 220-222 (1973). Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.

In United States v. Indrelunas, we recognized that the separate-document rule must be “mechanically applied” in determining whether an appeal is timely. Id., at 221-222. Technical application of the separate-judgment requirement is necessary in that context to avoid the uncertainties that once plagued the determination of when an appeal must be brought. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227 (1958). The need for certainty as to the timeliness of an appeal, however, should not prevent the parties from waiving the separate-judgment requirement where one has accidentally not been entered. As Professor Moore notes, if the only obstacle to appellate review is the failure of the District Court to set forth its judgment on a separate document, “there would appear to be no point in obliging the appellant to undergo the formality of obtaining a formal judgment.” 9 J. Moore, Federal Practice ¶ 110.08 [2], p. 120 n. 7 (1970). “[I]t must be remembered that the rule is designed to simplify and make certain the matter of appeal-ability. It is not designed as a trap for the inexperienced. . . . The rule Should be interpreted to prevent loss of the right of appeal, not to facilitate loss.” Id., at 119-120.

The Federal Rules of Civil Procedure are to be “construed to secure the just, speedy, and inexpensive determination of every action.” In Foman v. Davis, 371 U. S. 178 (1962), this Court was asked to apply Rule 73 which, as then written, provided that an appeal was to be taken “by filing with the District Court a notice of appeal,” which notice “shall designate the judgment or part thereof appealed from.” Under Rule 73 it was clear that the filing of a notice of appeal was “jurisdictional,” and the contents of the notice of appeal were prescribed in the Rule. This Court nonetheless held in Foman that a notice of appeal from a denial of motions to vacate a judgment and to amend the complaint was, in view of an earlier and premature notice of appeal, a notice of appeal from the original judgment.

“The defect in the second notice of appeal did not mislead or prejudice the respondent. With both notices of appeal before it (even granting the asserted ineffectiveness of the first) the Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated.” 371 U. S., at 181.

The same principles of common-sense interpretation that led the Court in Foman to conclude that the technical requirements for a notice of appeal were not mandatory where the notice “did not mislead or prejudice” the appellee demonstrate that parties to an appeal may waive the separate-judgment requirement of Rule 58. “It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.” 371 U. S., at 181;

Here, the District Court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case. A judgment of dismissal was recorded in the clerk’s docket. And petitioner did not object to the taking of the appeal in the absence of a separate judgment. Under these circumstances, the parties should be deemed to have waived the separate-judgment requirement of Rule 58, and the Court of Appeals properly-assumed appellate jurisdiction under § 1291.

Although we conclude that the Court of Appeals did have appellate jurisdiction to pass on the merits of this case, we do not reach them. At oral argument, counsel for respondents took the position that “the mere release of a pledge is [not] a sale.” Tr. of Oral Arg. 32. Counsel urged that the judgment of the Court of Appeals be affirmed on a theory which differed from the reasoning of the Court of Appeals in reversing the District Court. Because of the change in the posture of the case between the time of the decision of the Court of Appeals and its presentation to us for decision, we dismiss the writ of certiorari as having been improvidently granted.

Dismissed.

Mr. Justice Blackmun took no part in the consideration or decision of this case.

       Respondents appealed from a combined opinion and order of the District Court dated September 30, 1975. In the relatively lengthy opinon, the District Court granted petitioner’s motion to dismiss the claim for failure to state a federal claim upon which relief could be granted and then concluded: “Complaint dismissed in its entirety. So ORDERED.” On the same day, an entry was made on the District Court docket reading, “Complaint dismissed in its entirety. So Ordered. Pollack, J. (mn).”

       See, e. g., Lyons v. Davoren, 402 F. 2d 890 (CA1 1968); Sassoon v. United States, 549 F. 2d 983 (CA5 1977); Richland Trust Co. v. Federal Ins. Co., 480 F. 2d 1212 (CA6 1973); Home Fed. Sav. & Loan v. Republic Ins. Co., 405 F. 2d 18 (CA7 1968); Baity v. Ciccone, 507 F. 2d 717 (CA8 1974); Baker v. Southern Pac. Transp., 542 F. 2d 1123 (CA9 1976). But see W. G. Cosby Transfer & Storage Corp. v. Froehlke, 480 F. 2d 498, 501 n. 4 (CA4 1973).

       Rule 58 reads in its entirety:
      “Subject to the provisions of Rule 54 (b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.”

       A “judgment” for purposes of the Federal Rules of Civil Procedure would appear to be equivalent to a "final decision” as that term is used in 28 U. S. C. § 1291. Federal Rule Civ. Proc. 54 (a), for example, provides that “ ‘[¿judgment’ as used in these rules includes a decree and any order from which an appeal lies.” See also Ex parte Tiffany, 252 U. S. 32, 36 (1920); 6A J. Moore, Federal Practice ¶ 58.02, pp. 51-52 (1972). Because Rule 58 provides that a “judgment is effective only . . . when entered as provided in Rule 79 (a),” it is arguable that a decision must be entered on the civil docket before it may constitute a “final decision” for purposes of § 1291. Unlike the separate-document requirement, however, the keeping of a civil docket pursuant to Rule 79 fulfills a public recordkeeping function over and above the giving of notice to the losing party that a final decision has been entered against it. A judgment of dismissal was entered in this case below. See n. 1, supra.

       Section 2107 provides that “[ejxcept as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.” See also Fed. Rule App. Proc. 4 (a).

       Nor would strict compliance with the separate-judgment requirement aid in the court of appeals’ determination of whether the decision of the District Court was “final” for purposes of § 1291. Even if a separate judgment is filed, the courts of appeals must still determine whether the district court intended the judgment to represent the final decision in the case. Cf. United States v. Hark, 320 U. S. 531 (1944).

       While our decision in Indrelunas is consistent with the result we reach today, the beginning paragraph of Indrelunas could be read as holding that a separate judgment must be filed in compliance with Rule 58 before a decision is “final” for purposes of § 1291. In Indrelunas, we noted that since both parties conceded “that the jurisdiction of the Court of Appeals was based on the provisions of 28 U. S. C. § 1291, making final decisions of the district courts appealable, the correctness of the Court of Appeals’ decision depends on whether the District Court’s judgment of February 25, 1971, was a final decision. That question, in turn, depends on whether actions taken in the District Court previous to the February date amounted to the ‘entry of judgment’ as that term is used in Fed. Rule Civ. Proc. 58.” 411 U. S., at 216. To the extent the above passage is inconsistent with our decision today, we disavow it.