(by Joe Patrice, ABOVE THE LAW) -- Judge of the Millennium Wade McCree has a special place in the hearts of ATL’s writers. The former Wayne County circuit judge had a penchant for disrobing for shirtless selfies and sex in his chambers, and was consequently disrobed by the Michigan Supreme Court.
On Monday, the Sixth Circuit correctly (if you mean “applying the law as it currently exists,” and “incorrectly” if you mean “adopting the better policy”) held that Judge McCree is immune from a civil suit brought by a man McCree slapped with a tether and high child support payments. The man’s complaint is that while Judge McCree was coming down hard on him, Judge McCree was also coming down hard on the child’s mother — specifically sexting her from the bench and carrying on an affair that ultimately ended in an abortion. The man and his lawyer are seeking an appeal to the Supreme Court.
Is absolute judicial immunity a doctrine worth keeping? Probably not…
In a sense, Wade McCree’s story is a microcosm of everything wrong with the city he calls home — a cocktail of arrogance and extraordinary legal loopholes designed to keep victims locked out of the courts.
Last week, I was in Detroit to see firsthand what happened when a city watched Robocop, a movie about its own dystopian future, and said, “I’ll bet we can one-up that corporate-run hellhole!” Today, in bankruptcy, Detroit has pulled it off. Except without their own Robocop. As much as they’re trying.
This wasn’t always Detroit. Detroit used to act like it had a trademark on “The American Dream” before it got derailed. There are a lot of contributing factors to Detroit’s decline, but one of them was assuredly an arrogance that tethering the entire economy to one industry was going to pay dividends forever.
A generation ago, the House of McCree was doing much better too. The Judge Wade McCree at the center of this story is the son of another Judge Wade McCree. The elder McCree served as Solicitor General and was the first black person to sit on the Sixth Circuit. His son followed in the profession with decidedly less luminous results. The reliability of his father’s brand buoyed the younger McCree’s political fortunes. The younger McCree acted as though his judicial pedigree would allow him to proposition bailiffs and sleep with litigants with no consequences.
And to some extent he was right. While McCree lost his judgeship and was subsequently suspended without pay for 6 years — a remedy the Michigan Supreme Court imposed because they honestly thought McCree could easily win reelection despite the scandal — the Sixth Circuit held that Judge McCree couldn’t be sued for any harms he caused while on the bench, regardless of a now-established record of impropriety.
The doctrine of judicial immunity is enshrined in Bradley v. Fisher, 80 U.S. 335, 348 (1871):
If civil actions could be maintained… against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away.
Now, one might think allowing judges to render decisions while boning the other side would undermine faith in the judicial system more, but the Supreme Court didn’t think that way. How convenient. Judges crafted an undemocratic immunity entirely for their own benefit that cuts the victims off from meaningful remedy?