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64 Va. L. Rev. 833 (1978)
Stump v. Sparkman: The Doctrine of Judicial Impunity

handle is hein.journals/valr64 and id is 843 raw text is: STUMP v. SPARKMAN: THE DOCTRINE OF JUDICIAL IMPUNITY Irene Merker Rosenberg* E VER since the Supreme Court's ruling in 1967 that* state judges acting within their jurisdiction are absolutely immune from suit for damages under section 1983,1 legal commentators have persistently condemned this unqualified exemption.2 In Stump v. Sparkman,3 the Court gave its response to these critiques by not only reaffirming but also apparently expanding the immunity doc- trine, thus facilitating the use of still another mechanism for federal courts to avoid the merits of constitutional claims.4 * Associate Professor of Law, University of Houston. The author expresses her thanks to Ms. Tobi A. Tabor of the University of Houston College of Law, class of 1979, for her invalu- able research assistance in connection with this article. Pierson v. Ray, 386 U.S. 547, 553-55 (1967). In Pierson, the Court held immune from suit under 42 U.S.C. § 1983 (1976) a Mississippi justice of the peace who had found the plaintiff clergymen attempting to integrate bus terminals guilty of a misdemeanor (breach of the peace). The Court reasoned that the doctrine of judicial immunity was well established at common law and that the legislative history of § 1983 contained no clear indication that Congress intended to disturb such immunity. See 386 U.S. at 554-55. But see Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322, 324-29 (1969). When the Supreme Court first addressed the issue of judicial immunity in Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868), it proceeded more tentatively. In that case, the Court held that a lawyer who had been disbarred by a judge of a court of general jurisdiction for grossly unethical conduct could not sue that judge civilly notwithstanding alleged errors in the disbarment proceeding. The Court added in dictum, however, that where judges of courts of general jurisdiction acted in excess of their jurisdiction, they might be held liable if such acts were found to have been done maliciously or corruptly. See id. at 537. Only four years later, the Court specifically rejected this limitation on judicial immunity in deciding that the doctrine protected a judge of a court of general criminal jurisdiction who had prohibited the plaintiff attorney from practicing in his court on the ground that the lawyer had allegedly threatened the judge. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872). Although absolutely barring damage actions, the doctrine of immunity does not preclude suits under § 1983 for declaratory or injunctve relief against state court judges, see Mitchum v. Foster, 407 U.S. 225 (1972), or criminal prosecutions under the federal civil rights laws, see Imbler v. Pachtman, 424 U.S. 409, 428-29 (1976); O'Shea v. Littleton, 414 U.S. 488, 503 (1974). 2 See, e.g., Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson v. Ray Reconsidered, 65 Nw. U.L. REv. 615 (1970); Kattan, Knocking on Wood: Some Thoughts on the Immunities of State Officials to Civil Rights Damage Actions, 30 VAND. L. REV. 941 (1977); Note, Immunity of Federal and State Judges From Civil Suit-Time for a Qualified Immunity?, 27 CAsE W. REs. L. Rav. 727 (1977); Note, supra note 1. 3 435 U.S. 349 (1978). Stump was a five-to-three decision. Justice White wrote the majority opinion; Justice Stewart wrote the main dissenting opinion, id. at 364, joined by Justices Marshall and Powell, with the latter also writing a brief, separate dissent, id. at 369. Justice Brennan did not participate in the decision. See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977) (procedural default in state court with

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