Judge Was Bad, But ...

... Judicial Immunity Is Important

Posted: July 30, 2014

Just when you thought you had heard everything, up pops a story that proves the maxim that truth is stranger than fiction. It’s one of those stories that shakes your faith in human nature, yet proves the human nature doesn’t much change, and indeed that the more things do change the more they stay the same. Recall Acton: Power corrupts, and absolute power corrupts absolutely. Judges often have near aboslute power, particularly those in family courts, which raises the subject at hand: a judge used his power to exploit a mother and shaft the father of her children.

In Michigan, former Judge Wade McCree Jr., the Detroit Free Press reports, was removed from the bench after he “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.”

This reprehensible behavior rightly cost McCree his seat on the bench, but the courts to date have affirmed that he is protected from any civil liability for his actions.

Robert King, the father of the child of the woman with whom the judge had the affair, is attempting to sue the judge. Joel Sklar represents 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.”

The U.S. 6th Circuit Court of Appeals disagreed, upholding the longstanding concept that judges have immunity from civil proceedings to protect their impartiality.

Sklar promises to take the case to the Supreme Court, but “is facing an uphill battle,” according to the Free Press. Michael Crowell, a law professor at the University of North Carolina-Chapel Hill, told the newspaper that “we don’t want litigants being able to take judges to court for everything they think they have done wrong,” but noted that “just because you can’t sue judges for money damages doesn’t mean they get away with bad behavior or an unfair decision.”

And McCree has been punished. “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,” the Free Press observes.

The provisional suspension certainly makes a scary statement about the electorate if someone who behaved as McCree could again win the confidence of voters. But we applaud the Michigan Supreme Court for covering that possibility.

Whether the U.S. Supreme Court takes this case looks unlikely, as defenders of the system claim the need for immunity for judges trumps the ability to sue them for money. Opponents say that at the least, the immunity should be stripped if misconduct is found.

Salacious cases such as this one make headlines and heat up the rhetoric on the topic. Sheldon Nahmod, of the Chicago-Kent School of Law, told the Free Press “the long-held doctrine works and shouldn’t be tinkered with.”

“The Supreme Court does not really need to get into this,” Nahmod said.

We expect they won’t, but we are sure the details of this case were not on the radar when the founding fathers were laying the foundation for the notion of judicial immunity.



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