July 25, 2014

Judge who had admittedly had an affair with the wife of a man in a child support case that was before his court...

... is protected from a lawsuit by the doctrine of judicial immunity.

From the 6th Circuit opinion (PDF):
The doctrine of judicial immunity exists “not for the protection or benefit of a malicious or corrupt judge” but 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 consequence.”
Judicial immunity doesn't apply to "nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity," but the acts that affected the man (Robert King) — things that happened in the child support case — were judicial.
On appeal, King argues that Judge McCree’s non-judicial acts deprived him of due process. Specifically, King argues that he was “personally and directly deprived of [the constitutional guarantee of due process] every time Judge [Wade] McCree and Mott engaged in any extrajudicial contact.” Appellant Br. 21. King also argues: “Plaintiff’s due process rights were violated when McCree and Mott had sex in chambers and elsewhere, when they spent time together outside the courtroom, discussed and decided how to sentence Plaintiff for his late child support payments.” Ibid. Before the district court, King identified other allegedly non-judicial acts by Judge McCree that deprived him of due process, including: flirting with Mott from the bench on May 21, engaging in ex parte communications with Mott, giving Mott his business card, having lunch with Mott, “hav[ing] sex repeatedly” with Mott, having sex with Mott in his chambers, giving Mott $6,000, secretly discussing with Mott using jail to loosen King’s “purse strings,” and instructing Mott not to disclose the affair in order to avoid “deep shit.” r. 20 n. 16. At oral argument, King’s counsel argued that the depth and number of these non-judicial acts, as well as the intimacy of Judge McCree’s personal relationship with Mott, makes this case exceptional....

These acts, though often reprehensible, did not directly involve King....

43 comments:

Big Mike said...

Is he immune to tar and feathers? If Glenn Reynolds' frequent suggestion takes hold, pretty soon your Wisconsin Law curriculum may need a 1 day mandatory seminar on how to clean tar off your face and out of your hair.

Curious George said...

http://www.mlive.com/news/detroit/index.ssf/2013/05/best_of_detroit_judge_wade_kin.html

David said...

The judge was Wade Hampton McCree III, who did not make his father proud. His father was Wade H. McCree, Jr., the first black solicitor general of the United States. Before that appointment Mr. McCree Jr. had been a federal district judge, and after he was a professor at University of Michigan Law School. General McCree was also a prominent Unitarian. His father had been the first black licensed pharmacist in the United States.

That's a sad come down for a distinguished family.

EDH said...

The 'harm requirement' has to be revisited across-the-board.

It should include a judge fucking your wife and the president fucking the country.

Rae said...

I'm trying to understand how it benefits the public to allow judges to behave like this with impunity. If attitudes like this persist, extrajudicial penalties like tar and feathers may indeed return, because there won't be other recourse.

Toby said...

Under this logic, wouldn't judicial immunity apply to a judge who takes a bribe to rule a certain way? That's idiotic.

sane_voter said...

This is insane. How did this not affect the plaintiff? Judge McCree and the ex-wife discussed ways to punish the plaintiff in order to benefit the same ex-wife the judge was screwing at the time. Judge McCree should be impeached and disbarred.

traditionalguy said...

An adulterous Judge is only expressing his sexuality.

Dicta from the decision say a Judge is free to make oral contracts in his Chambers without religious bigots acting out from phobias.

black robes are like blue dresses.

David said...

Judge McCee Jr. was the second black solicitor general. The first of course was Thurgood Marshall. Sorry for the mistake.

NotquiteunBuckley said...

The shit heel proles aren't smart enough to figure out their betters deserve better, so screw 'em.

And by screw 'em I mean fuck their wife.

What did this piece of crap husband do for a career anyway? Where was he educated? Probably some shitty state school, so he deserves everything he gets.

Peter said...

It's hardly a secret that tenant-protection laws mostly work to protect the crummiest tenants, while increasing the cost of rental housing for everyone else.

The only difference here (if there is one) is the public's unwillingness to put an airbnb rental in the same category as an ordinary landlord-tenant relationship.

damikesc said...

I agree. How can this not be extra-judicial by default?

This isn't bias by a judge when not serving in a judicial capacity. This is bias in a judge WHILE serving in that capacity.

The ruling elite don't need to follow rules. Why people want to give these criminals MORE power is baffling.

CachorroQuente said...

Wade Hampton McCree, III.

What black person would give their child the name of one of the most notorious and richest slave owners of the pre-war south, not to mention his fame for causing the burning of Columbia, SC?

That's like Jews naming a child Adolf Hitler Bernstein.

Roger Sweeny said...

Police protect other police. Bureaucrats protect other bureaucrats (in the V.A., etc.). Judges protect other judges.

William said...

I think it would be so cool if he got to adjudicate Kim Kardashian's next divorce. Reality TV gold. Make it happen Hollywood.

Richard Dolan said...

Judicial immunity is a judge-made (judge-invented) rule, just like prosecutorial immunity and executive immunity. Same with the various levels of immunity (qualified vs. absolute). Only members of Congress enjoy constitutionally based immunity, and then only in limited circumstances that do not protect them from sanctions imposed by their own house.

The idea that a judge's rulings can be attacked only by direct appeal or the more limited avenues for collateral review, has a lot to recommend it. But the rationale for judicial immunity is the empirical claim that permitting a judge to be sued personally for misconduct would chill the exercise of the judge's duty to decide cases objectively, without fear of criticism for making unpopular decisions. If that were true, it would be a powerful argument in favor of the immunity doctrine. Yet I have never seen anyone try to prove that proposition. Instead, it's just offered as self-evidently true.

If judicial immunity did not exist, it's hard to imagine any lawyer trying to build a career out of suing judges personally. Since the law offers many grounds on which to dismiss cases even without regard to immunity doctrines, it's even harder imagining that courts would allow dubious claims against judges to proceed or verdicts against judges (or prosecutors) to stand without a really good basis in the evidence.

Here is an area where textualism, and its hostility to free-wheeling judicial policy making, would make a difference. Alas, even the textualists decline to take that step.

gspencer said...

This doesn't shock the judicial conscience?

SGT Ted said...

Well then it may come to having to shoot such judges in the street, or in their homes, if they will not be held to account by their fellow judges.

Left Bank of the Charles said...

I took legal ethics at Michigan Law School from Wade McCree, the father of this Wade McCree, who was a judge for a decade on the 6th Circuit that issued this opinion.

It strikes me that prosecutors using a felony charge as a debt collection device also violates legal ethics, although that may exactly how the child support felony laws were meant to be used.

john said...

I think the case is a lot more ambiguous than is being made out here in the comments. Obviously, sex-in-chambers by definition cannot be extra-judicial. Sex-in-parking-lot would be extra judicial if it is not a government owned lot. The judiciality of sex in a private parking lot would depend on who's car it was, and whether the judge gets a transportation stipend.

And finally, was the car rocklin' (ie, a motion under consideration)?

Michael Fitzgerald said...

Sounds like a judge and ruling from Uday Hussein's legal system.

AustinRoth said...

It is not only the police that have a Blue Wall of Silence, and similar thought patterns.

Judicial immunity is a farce, created whole cloth from no existing laws or Constitutional authority, for the Judiciary to escape accountability.

It, and prosecutorial immunity, should be banned. We would get a lot better justice then, despite the plaintive whining from the protected class.

HoodlumDoodlum said...

I'm really disappointed that no one has yet mentioned the child yet. These cases are about what's in the best interest of the child, after all, and fairness doesn't factor into it. Maybe it was in the best interest of the child for the judge to nail the (ex?)wife, right? In that case I don't really see a problem here.

Anonymous said...

Law is to keep the little people in line to do their part to keep this Republic "Great". The Ruling Elite's job is to rule, little people's job is to work and pay taxes to support the Elite so they can do their job.

SeanF said...

"You were my divorce attorney - until you started sleeping with my wife! Then, you got the judge to double the alimony request she originally made!"

"Well, you didn't want her to keep seeing me in cheap motels, did you? For God's sake, man, she was your wife!"

n.n said...

Extraordinary corruption.

James Pawlak said...

Is he subject to criminal prosecution or for other means ("Address"; Impeachment, trial & removal)?

Did anyone in Michigan look into those possibilities?

Michael K said...

"Judge McCree should be impeached and disbarred."

Then he might run for Congress and be elected. Think of the history of Alcee Hastings . you just have to find a district with the right skin tones.

richard mcenroe said...

Another self-appointed superior caste in the American "Republic."

The Crack Emcee said...

You can make it if you tryyyyyyyy,….

Fernandinande said...

James Pawlak said...
Is he subject to criminal prosecution or for other means ("Address"; Impeachment, trial & removal)?


March 27, 2014
"The Michigan Supreme Court on Wednesday removed Wayne County Circuit Judge Wade McCree from office after he carried on an affair with a woman who had a case before him. If McCree is re-elected in November, the court ruled he’ll be suspended for the entire six-year term."

Fernandinande said...

PDF from previous link:
"The JTC subsequently filed a formal complaint against respondent,
alleging five counts of misconduct: that respondent had engaged in improper conduct in two criminal cases before him, falsely reported a felony, exhibited improper bench conduct and demeanor, and made misrepresentations to the JTC."

TreeJoe said...

I'm choosing my words carefully here.

To my understanding, the point of the rule of law is to provide an excellent standard of justice for all. This provides a consistency to society that promotes following the rule of law, rather than groups or individuals seeking to impose their view of justice in a given situation.

Occasionally bizarre situations arise, at which time justice is not served.

However, when a clear injustice is served - by and for the very organization tasked with providing justice - it promotes a disregard for the law and a prompting for individuals or groups to take action for themselves to right the wrong.

In my mind, this judge is actually less safe and less well served by this ruling than if he had been allowed to be sued. He committed a heinous breach of duty and as far as I can tell actually conducted illegal behavior in his official capacity. This is in league with PA judges sending kids to private prisons and receiving kickbacks.

Anonymous said...

This is how you get reparations, Crack.

n.n said...

TreeJoe:

Ideally, "rule of law" ensures a separation of ego and state. Unfortunately, when morality is absent, and competing interests are impotent, then proscriptive measures are merely exploited for leverage, and corruption becomes rampant and commonplace -- progressive corruption and dysfunctional convergence, respectively.

ken in sc said...

Wade Hampton II and his Redshirts brought Jim Crow to South Carolina after reconstruction. He also gave Mussolini's Blackshirts and Hitler's Brownshirts a pattern to follow. This judge is probably descended from one of his slaves.

HoodlumDoodlum said...

Something something sounds like they both got screwed by the Court

Revenant said...

Notice they said "the doctrine of judicial immunity", not "the law of judicial immunity".

That's because nobody actually gave judges this power. They just declared that they had it.

CachorroQuente said...

There were at least 3 Wade Hamptons. Wade I was an officer during the Revolution and is well revered, particularly in South Carolina. Wade II fought in the war of 1812 and afterwards built up one of the greatest slaveholding fortunes in America. Wade III was the Civil War general who burned Columbia and tried to blame it on Sherman. After the War he was governor of South Carolina and a US senator. I think Wade III is the one that Ken refers to above. It's sometimes tough to keep these bastards straight.

Probably Wade I deserves respect for his role in the Revolution. Wade II and Wade III, however, were truly despicable and evil men who deserve nothing but to be reviled.

Skyler said...

If the law is not just, people will take the law into their own hands. The Courts need to have better sense than this.

Aric said...

Judges have difficult, important jobs; they need to be able to do them without fear that a single mistake, or string of mistakes, will ruin them. It's not like they're doctors or something.

Anonymous said...

@Michael K, ultimately the judge was removed from the bench for the remainder of his current term and for the next term. Unfortunately nothing at all prevents him from following in Alcee Hastings' footsteps. The Donkey party sure can pick 'em, can't it?

But I gave up on any hope for "justice" years ago. For one thing it is impossible even to "DEFINE" the word "justice"; at least not with any rigor. It almost impossible to hit an undefined/poorly defined target and even if you DID hit it, how would you know?

Look at the "criminal justice" system:
1) The case is heard in a government courthouse
2) Before a government judge.
3) You are prosecuted by the government's lawyer and
4) Represented by a lawyer licensed by the government

That doesn't sound like a recipe for anything even remotely resembling "justice" - however you define the word. Seems to me all defendants ought to be required to enter the courthouse through a special door. Over that door, deeply inscribed in the most adamantine stone, would be the inscription:
Abandon hope, all ye who enter here.

Jhn1 said...

I thought bribery was one of the few conditions that voided immunity.

Just because sex instead of cash was the bribery medium should not void the punishments to the judge, or the reliefs to the victims of the bribed judge.