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Critiques of the Judiciary
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Critiques of the Judiciary
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Sex in the Chambers WHEN YOU'RE A JUDGE, YOU CAN GET AWAY WITH IT ... MOSTLY
Wade McCree Jr. lost his job, but he won't lose his shirt.
The disgraced judge, who once texted a shirtless photo of himself to a female court bailiff, had an affair with a woman while overseeing her child custody case, had sex with her in his chambers, and sexted her from the bench.
But he's over any of that because judges are immune from civil lawsuits, a well-established doctrine that has many in the legal profession demanding change, arguing the McCree case highlights a pervasive problem in the justice system: judges getting away with bad behavior on immunity grounds.
"There has to be a point where there is no immunity for judges. When we're told that certain government officials are off limits ... it undermines public confidence in government," said Connecticut civil rights attorney Norm Pattis, author of "Taking Back the Courts," a 2011 book that documents flaws in the justice system.
"I don't think anybody should be above the law, least of all those who administer it," said Pattis, who called the immunity doctrine "a crazy rule" and the McCree case "outrageous."
"It's sort of a medieval relic to suggest that the king can do no wrong, so why sue them," Pattis said.
And McCree did plenty wrong, said Detroit attorney Joel Sklar. He's preparing to take the McCree case to the U.S. Supreme Court, which has long held that judges are immune from lawsuits for their acts and decisions, even unconstitutional ones. The idea is to help judges stay impartial.
Last Monday, the U.S. 6th Circuit Court of Appeals cited that philosophy in concluding that McCree could not be sued by the father of his mistress' child, even though his actions were "often reprehensible."
The ruling baffled Sklar. He represents the father, Robert King, who claims McCree denied him access to a fair and impartial judge by having an affair with Geniene La'Shay Mott when she sued King over child support. King claims McCree's decisions such as placing him on a tether were influenced by his "sexual desires," and that his rulings unfairly favored his mistress.
"This conduct is absurd," Sklar said. "It's so beyond description. A judge uses his chambers to have sex with a litigant? ... If this isn't too far, what is too far?"
Sklar is facing an uphill battle.
Over the last several decades, federal courts nationwide have consistently ruled against plaintiffs who tried to sue judges for civil damages over decisions they made or misconduct issues. The courts granted immunity to judges under the guidance of the U.S. Supreme Court, which established the judicial immunity doctrine in 1967 when it ruled that a Mississippi justice of the peace was immune from a civil rights suit for trying to enforce illegal segregation laws.
The U.S. Supreme Court weighed in on the issue again in 1978, when it blocked a lawsuit against an Indiana judge who had authorized the sterilization of a mentally handicapped 15-year-old girl at her mother's request. The girl, who didn't learn she was sterile until she got married (she was told she had an appendectomy) sued on due process grounds, but lost.
The high court essentially has held that anything a judge does in his or her capacity as a judge is covered under the immunity clause. But if, for example, a judge unlawfully fires someone, that's not covered because because hiring or firing is not considered a judicial activity.
Meanwhile, only a handful of judges nationwide have been successfully sued for civil rights violations — none in Michigan. One such case involved a Tennessee juvenile court judge who was accused of violating the civil rights of three women by sexually assaulting them and threatening to take their kids away if they didn't give in. In 1996, the 6th Circuit denied him judicial immunity from civil liability.
Those cases are very rare.
According to legal experts, it has long been recognized that in order for judges to be able to make impartial decisions without fear of repercussions, they need to be immune from lawsuits.
"We don't want judges looking over their shoulder, being worried about being sued by litigants. And we don't want litigants being able to take judges to court for everything they think they've done wrong," said Michael Crowell, a public law and government professor at the University of North Carolina-Chapel Hill.
But just because you can't sue judges for money damages doesn't mean they can get away with bad behavior or an unfair decision, Crowell said. He noted that judges who engage in misconduct can be removed from the bench, as McCree was. The Michigan Supreme Court removed him from the bench in March and suspended him without pay for six years, just in case he is re-elected to office this fall.
Crowell said that judges can be criminally prosecuted if their conduct is bad enough. Or, a litigant unhappy with a judge's decision can use the misconduct as grounds for an appeal.
"Judicial immunity protects a judge from being sued ... but that doesn't get the judge off the hook altogether," Crowell said, noting he'd be "very surprised" if the U.S. Supreme Court takes the McCree case.
Sheldon Nahmod, a constitutional law and civil rights professor at Chicago-Kent College of Law, who has lectured and written about judicial immunity for 35 years, also is doubtful. He believes the long-held doctrine works and shouldn't be tinkered with.
"People are surprised, shocked by this, but it's been part of the turf for a long time," Nahmod said. "I think it works reasonably well. Are there abuses? Of course."
Loosening the immunity doctrine would trigger a tsunami of lawsuits against judges, discourage appeals, and strip judges of their independent decision-making authority — all of which would hurt the justice system, Nahmod said.
"The Supreme Court does not really need to get into this," he said.
McCree's attorney, Brian Einhorn, agrees.
"I think he's wasting his time," Einhorn said of Sklar's efforts to get the case before the U.S. Supreme Court. "I didn't think there was a basis to the lawsuit when he started it ... or after the appeal."
Einhorn applauded the 6th Circuit for upholding the judicial immunity doctrine on McCree's behalf. He said McCree acted appropriately by tethering the father and ordering him to pay child support. That was his job as a judge, he said; the father conceded he owed child support.
"In our system, people are going to be unhappy when a judge renders a decision. And if a judge can be sued because the decision they made ... was right, wrong or unfair, then our system of justice doesn't work," Einhorn said. McCree "followed the law."
Judicial immunity is a sore spot for Stuart James, a civil rights lawyer in Chattanooga, Tenn., who is handling two civil suits against state judges, one of whom escaped liability recently. That case involved a judge accused of propositioning a woman for sex in exchange for him issuing a warrant for some individuals she claimed attacked her.
In February, a federal judge dismissed the lawsuit, concluding that even if the judge did ask her for sex, he was protected by the immunity doctrine. The judge, however, lost his job and was indicted on criminal charges. He just can't be sued for money.
That's not enough for James. He believes that if a judicial panel has removed someone from the bench for misconduct, the immunity defense shouldn't hold up anymore.
"If your conduct was so reprehensible that you're being taken off the job ... I think they should be monetarily liable," James said. "That's the way our justice system works. Victims should be compensated for what's been done with them."
As for the immunity doctrine, he said: "There's gotta be a change ... because unfortunately, there are a lot of bad judges."
Copyright 2014, Detroit Free Press
Adapted from: Tresa Baldas, "He had sex with a witness in chambers, but judge can't be sued," Detroit Free Press, December 22, 2014, http://www.freep.com/story/news/local/michigan/detroit/2014/12/22/wade-mcree-archive/20762383/, accessed 01/28/2017. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose. Tresa Baldas can be contacted at: tbaldas@freepress.com.
Judges should be held accountable, not granted immunityNORM PATTISJuly 30, 2014One of the occupational hazards of the legal profession is a close acquaintance with chaos. The darkness leads some into the wasteland of depression, and they fall prey to alcoholism, to drug use or to despair. Others yield to a haughty sense that they are above it all, that they are mere spectators to the struggles of the ordinary mortals whose cases consume their professional lives. This later arrogance breeds a species of entitlement to which even judges are not immune.
I’ve never met former Detroit Circuit Court Judge Wade McCree, so I only know what I’ve read. The reports, including a published decision by a federal appellate court, are disgraceful. The judge had an affair with, and apparently impregnated, a litigant over whose case he was presiding. I suspect when his bailiff called “all rise” to open court, Judge McCree often had something other than justice in mind.
The underlying facts are tawdry. Robert King owed his child's mother $10,000 or more in child support. Non-payment of support is a felony in Michigan. The mother complained, and Mr. King was arrested. He eventually appeared before Judge McCree. At the hearing, the child's mother caught the judge's eye. He came on to her, and soon enough they were talking on the phone, at lunch, and between the sheets. Judge McCree gave her money; she grew impetuous. When she became pregnant and told the judge the child was his, things got testy. She appeared at the judge's home, to the chagrin of his wife. He then filed stalking and extortion charges against her.
During most of this period, Judge McCree was also presiding over Mr. King's case, threatening the man with prison unless he ponied up what he owed his child's mother.
As lawyers often say to one another when discussing the cases they handle: "You can't make this stuff up." Fiction is but a pale reflection of reality.
Judge McCree lost his robe as a result of these libidinal hijinks, and rightly so. But why shouldn't Mr. King be able to sue the judge for any harm the judge caused, and ask for money damages? No, the law says, judges, after all, are immune from suit for their conduct as judges. Just how did "we the people" get hoodwinked into giving a free pass to the high and mighty?
Mr. King contends Judge McCree's indiscretion influenced the judge's decisions. A close reading of the appellate court decision makes that claim doubtable. A federal appellate court just upheld a lower-court decision to dismiss the action on grounds of judicial immunity. A jury will never see this case.
Immunities are best understood by reference to board games. If the law prescribes the rules by which the pieces on life's board can move, determining what we can do to one another and how, an immunity simply removes a piece from the board and takes in out of play. While the rest of us pass "Go" and from time-to-time end up in jail, an immunized person gets special treatment.
The broadest immunity imaginable is diplomatic immunity. We grant to representatives of other sovereigns on our soil impunity to act while here. Ask a Manhattan traffic cop near the United Nations about the pointlessness of ticketing an ambassador's car. Sovereigns, we say, are immune. In the United States, both the federal government and state governments can, as a general rule, be sued only with their consent. They get a pass from what passes for justice in the courts.
Other immunities are narrower in scope. Lawmakers, for example, enjoy legislative immunity for the words they utter in assembly. We assume we get better government by unfettered debate. Thus, should your Congressman damage your reputation by some wayward remark on the floor of the House of Representatives, she is immune. The same harmful words uttered elsewhere might yield a defamation suit against her.
Judicial immunity resembles legislative immunity. We want an independent judiciary, with jurists able to make tough, and often close, calls without fear of suit from disgruntled litigants. I'd go so far as to say all judges ought to be appointed for life with removal from office only for good cause. Justice isn't supposed to be a parlor game played for the benefit of a passionate mob.
But granting judges immunity from suit for shocking misconduct makes little sense.
There's an almost medieval sense of entitlement to Judge McCree's conduct. He's behaved like a medieval lord, regarding those who appeared before him as little more than serfs, reserving to himself something like the old right of defloration – the lord's right to despoil any virgin on his land.
Judicial independence is not preserved by a ruling permitting a judge to bed litigants appearing before him with impunity. Immunity in this context is absurd. Yet that is what the federal appellate court ruling tossing the Judge McCree case comes down to. The court held that his decisions while on the bench are judicial functions, and are, therefore, absolutely immune from suit.
Lawyers for Mr. King are considering taking this case to the United States Supreme Court. I suspect that they will meet with a hostile reception. The Court has shown great reluctance to hold public officials accountable for the harm they do, whether those officials be lawmakers, police officers or judges.
Even so, I am rooting for Mr. King. The law calls conduct that injured another tortious, a term having its root in the Latin term for twisted. It ought not to take an extraordinary application of judicial imagination to see that some conduct is so far over the line that it does not deserve immunity, and that no broader public service is formed shielding a judge from suit.
Few things undermine public respect for the law than broadly applied immunities. Accountability ought not to stop in at door to a judge's chambers.
Let Judge McCree tell a jury just why he thought his conduct was appropriate. And then let a jury tell the judge what it thinks. We the people are sovereign, right?
Copyright 2014, The Register Citizen
From: Norm Pattis, "Judges should be held accountable, not granted immunity," The Register Citizen, July 30, 2014, http://www.registercitizen.com/opinion/20140730/norm-pattis-judges-should-be-held-accountable-not-granted-immunity, accessed 01/29/2017. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose. Norm Pattis is a criminal defense and civil rights lawyer, and blogs at www.pattisblog.com. He is also the author of "Taking Back the Courts" and "Juries and Justice," and can be reached at: norm@normpattis.com.
Additional Reading
- Gus Burns, "Michigan Supreme Court bans Detroit Judge Wade McCree Jr. from bench until 2021," MLive Media Group, March 26, 2014, http://www.mlive.com/news/detroit/index.ssf/2014/03/michigan_supreme_court_bans_de.html, accessed 11/11/2017.
Censure Judge Berrigan?
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