He had sex with a witness in chambers, but judge can’t be sued

July 30, 2014 in News by The Manimal

Source: Detroit Free Press

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.

Be he can’t be sued for money damages 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 bookthat 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?”

Consistent rulings

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,whichestablished 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.

Freedom from fear

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 — in someone’s opinion — was right, wrong or unfair, then our system of justice doesn’t work,” Einhorn said. McCree “followed the law.”

2 Tennessee cases

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.”

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