Judge of the Millennium Wade McCree has a special place in our hearts here at Above the Law. 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 U.S. 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?
How does McCree’s cloak of absolute immunity play into Detroit’s ills? Well, speaking of undemocratic solutions, the powers that be in Michigan were dealt a blow when voters struck down the so-called Emergency Manager law that allowed the state government to overthrow democratically elected leaders. So a month after that vote, they just re-passed the law. Chutzpah. Emergency Manager Kevyn Orr, formerly of Jones Day, used his power to offer sweetheart deals — rejected and ultimately reduced by Bankruptcy Judge Steven Rhodes — to Merrill Lynch and UBS while seeking a release to shield the banks from liability for suspiciously bad deals that helped push Detroit over the line into bankruptcy. Merrill is now owned by Bank of America, which is a prominent Jones Day client. I’ll let you work out the appropriate equivalency of millions in billables and f**king in chambers.
Could the people of Detroit have gotten some recompense for these deals? We’ll never know. Whether by judicial fiat or legislating over the top of a public vote, the right of victims to have their day in court got short-changed.
Is there any solution? There have been some cracks in the armor of judicial immunity over the years. Justice Powell argued that absolute judicial immunity should not be defended when the legal system provides no alternative remedy to the aggrieved. Stump v. Sparkman, 435 U.S. 349, 369 (1978) (Stewart, J., dissenting). The recent Kids-for-Cash scandal — where Pennsylvania judges trumped up sentences to put kids in privatized juvenile prisons in exchange for kickbacks — would seem like a good case study in how absolute immunity could fail to make victims whole. Stengel, Absolute Judicial Immunity Makes Absolutely No Sense, 84 Temp. L. Rev. 1071 (2012). Thankfully, a judge agreed — determining that parts of the kickback conspiracy exceeded protected “judicial acts.” Judge McCree’s actions are more solidly judicial acts. So the victim of his sexy-time-influenced jurisprudence has to hope the Supreme Court constructs a new standard that carves out exceptions for judicial acts influenced by certain benchmarks of corrupt behavior. It would be a good move for shoring up the credibility of the justice system so it probably won’t even get cert. I mean, SCOTUS can’t be bothered to apply ethical rules to itself.
As for the city’s hopes, the people of Michigan could have a referendum and overturn the Emergency Manager law. Oh, wait, they did that already. I guess they just have to trust that Kevyn Orr has the best interests of the city’s people at heart.
Shutting off the poor people’s water was a good start.
You know the drill, the McCree decision is reprinted in full on the next page….
And thanks to Westlaw for providing resources for researching this article.
6th Circuit Court: Ex-Judge Wade McCree’s conduct ‘reprehensible’ but immune from lawsuit
[Detroit Free Press]
False alarm, Detroit: The RoboCop statue isn’t ready for unveiling [Detroit Free Press]
Detroit: We need to renew the American dream [Daily Kos]