Sixth Circuit: Michigan Judge Who Had Affair With Wife Of Man In Child Custody Case Before Him Is Entitled To Judicial Immunity From Lawsuit

250px-US-CourtOfAppeals-6thCircuit-SealBy any measure, former Wayne County Circuit Judge Wade McCree was a disgrace to the bench. The worse of his violations was his affair with the wife of a man in a child-support case before his court. However, while calling McCree’s conduct “often reprehensible,” a three-judge panel ruled that his affair with a litigant before him was still covered by judicial immunity when the former husband Robert King sued for damages in a civil rights case. The United States for the Sixth Circuit barred such recovery as a matter of judicial immunity in what will likely be a highly controversial decision.

mccree-and-mottWe previously discussed the infamous record of McCree as a judge. You may recall our earlier discussion of his sending court personnel revealing pictures of himself. He was sanctioned for that little episode. McCree is back before a judicial ethics panel for allegedly making a false report of a felony, misrepresentations to the commission and engaging in improper bench conduct and demeanor. Then there is his having sex with a witness in his chambers and his allegedly impregnating Geniene La’Shay Mott (left with McCree). Despite his continual bizarre and improper conduct, McCree has remained on the bench for a surprisingly long time.

The Sixth Circuit described the relationship:

The Michigan Judicial Tenure Commission (JTC) ultimately filed a complaint against Judge McCree based on his conduct surrounding People v. King. At a hearing before the JTC a year later, Judge McCree recalled what transpired after King’s pre-trial hearing ended and court adjourned on March 28, 2012.

“Well, the courtroom had now pretty much cleared,” Judge McCree said. “There weren’t a half dozen people left in the courtroom[,] and she was chatting with my deputies and so forth[,] and I’m still on the bench doing my paper shuffle. And she’s making conversation, and we’re all involved in it. Making light conversation. Everybody is into it.”

Judge McCree acknowledged that this was not “standard practice.” “But,” he said, “I confess she was an attractive, striking woman, and, you know, she caught my eye.” The JTC examiner asked Judge McCree if he “c[a]me on to her at that point.” “Oh, we chatted, sure,” Judge McCree said. “As you can probably tell, I’m a bit animated. I’m a rather effervescent personality, and sure, we chatted.”

Judge McCree’s courtroom deputy dropped Mott’s card on Judge McCree’s bench, and Judge McCree may have given Mott his business card as well. Judge McCree could not recall giving Mott his business card, but he acknowledged that it was “quite likely” that he did so.

Judge McCree later described his meeting Mott in a text message to her. It said: “Girl, every man in the damn courtroom was peeping your upscale game.” Judge McCree stated that “everyone” referred, in part, to himself. The message also said: “C’mon, U’r talking about the ‘docket from hell,’ filled w/tatted up, overweight, half-ass English speaking, gap tooth skank hoes … and then you walk in.” (ellipsis in original). It concluded: “Had Jewell not been [there] that day, I’d have asked Deputy Green to escort you back into chambers so I would be [sic] so obvious giving you my biz card.” Judge McCree stated that he sent the message in order to flatter Mott and that he did not intend to demean any litigant who had appeared before him.

Judge McCree testified before the JTC that Mott called his chambers a day or two later. As Judge McCree recalled: “I returned the call to her[,] and we chatted, and she was talkative. She was interesting, and she said, [‘]Can we get together?[‘] I said sure. I don’t have – I don’t see why not.” The two made lunch plans for a week later.

On May 30, 2012, Judge McCree and Mott had lunch [*6] together in Detroit’s Eastern Market area, just east of downtown. The two “hit it off.” Mott “had a very interesting lifestyle,” Judge McCree testified. “She was — she loved sports and knew sports. She was not someone who just feigned an interest.” They also discussed Mott’s work. Mott “claimed to have been in public relations and media consulting work, and obviously a whole lot more, as it did involve intimate – that did involve intimate . . . relations.”

Judge McCree knew that Mott was involved in a pending case before him when he made plans with her. Judge McCree said that on both May 21 and on May 30 it did not “dawn on [him]” to transfer King’s case.

C. A “Volatile” Relationship

According to Judge McCree, after lunch, on May 30, 2012, Mott texted Judge McCree, telling him that she would like to see him. Judge McCree responded, telling Mott that they should coordinate their “calendars together.”

In June 2012, Judge McCree and Mott began a romantic, sexual relationship. At his JTC hearing, Judge McCree described the relationship as “volatile.” “Ms. Mott is passionate,” Judge McCree stated. “She would be at the apex of euphoria. She’d be at the abyss of near homicidal anger.” As Judge McCree recalled, “[A]fter the romance began, I found out that I had to do a lot of things just to pacify her. I had to tell her things she needed to hear to pacify her.”

In the course of their relationship, Judge McCree loaned Mott money. Judge McCree estimates that he gave Mott about $6,000. “Her big time is the NBA season, which, of course, kicks up November, December and then runs through the winter and early spring,” Judge McCree said. “She was coming into this sum of money. And Wade, if I could just get, you know – just to tide me over.”

Judge McCree acknowledged that, on a few occasions, their trysts took place in his chambers. Judge McCree occasionally escorted Mott through the courthouse’s back entrance and into his chambers. Judge McCree acknowledged texting Mott while he was on the bench but denied doing so while court was in session or while he was on the record.

Judge McCree asked Mott to remain discreet about their relationship. He stated that he “obviously made these requests because he was concerned about his wife and family discovering their relationship.” On June 20, 2012, Judge McCree allegedly e-mailed Mott: “My Judicial Tenure Commission matter has me nervous, as you [*8] might expect. I have to be real careful until this matter is put to rest. I can only ask humbly for your indulgence. Sorry.” The e-mail also allegedly said: “Second, you are the complaining witness in a case that is before me. Naturally if it got out that we were seeing each other before your B.D.’s [presumably, “baby daddy’s”] case close, everybody could be in deep shit.”

The opinion goes on to detail the case developments and McCree “acknowledged that, during his relationship with Mott, they “probably” discussed whether King was in compliance with the delayed-sentence agreement.” The Sixth Circuit “At some point after the August 16 hearing, Judge McCree decided that he needed to transfer King’s case to another judge.”

On February 11, 2013, King sued Judge McCree and Mott under 42 U.S.C. § 1983, alleging that Judge McCree violated his due-process rights, in violation of the Fifth and Fourteenth Amendments as well as, under § 1983 and § 1985, for a conspiracy to violate his due-process rights. However, the district court dismissed on the ground of judicial immunity for Judge McCree. The Sixth Circuit agreed. While McCree acted with serious personal misconduct and possible motivations, the Sixth Circuit focused on the fact that the actions themselves were judicial in nature:

the district court correctly held that all acts taken by Judge McCree directly involving King were judicial ones. See King, 2013 WL 3878739, at *4-5. As in Stump itself, both Stump factors point in the same direction. First, we consider “the nature of the act itself, i.e., whether it is a function normally performed by a judge.” Stump, 435 U.S. at 362. Judge McCree’s actions involved accepting a guilty plea, entering a delayed-sentence agreement, affording King apparent leniency in implementing a sentence agreement, placing King on a tether, and transferring King’s case to another judge. These are functions undoubtedly “normally performed by a judge.” Stump, 435 U.S. at 349. Second, we consider “the expectations of the parties, i.e., whether they dealt with the judge in his official capacity.” Stump, 435 at 362. King dealt with Judge McCree as the presiding judge in his felony child-support case. The interactions occurred in a courtroom and King’s counsel was present, as were a lawyer for the state and a court reporter. The proceedings occurred on the record. They were also notated on the docket sheet. Because Judge McCree performed acts normally performed by judges and because he did so in his capacity as a state circuit court judge, his acts were “judicial.” Accordingly, he receives judicial immunity.

The court found that the actual orders and decisions in the case did not deprive King of due process and were acts of a judge. The disassociation of those official acts with the possible underlying motivation of the court were not determinative or even relevant in such an analysis. The result will likely be very troubling for many. However, the court noted that the remedy for judges like McCree is found elsewhere:

At common law, judges received immunity from liability for damages for acts committed within their “judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 554 (1967). The Supreme Court formally adopted the doctrine in 1871. Bradley v. Fisher, 80 U.S. 335 (1871).3 That year, the Court held that “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id. at 347. “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.” Id. at 348. The Supreme Court made clear the proper penalty for judges who act “with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively” “in the exercise of the powers with which they are clothed as ministers of justice:” such judges “may be called to an account by impeachment and suspended or removed from office.” Id. at 350.

It is the demeaning end to a judge who proved a disgrace to both the bar and the court. His case unfortunately could embolden other judges who consider abandoning the most basic ethical demands of their office.

The case is King v. McCree, 2014 FED App. 0531N (6th Cir.)

Here is the opinion: King v. McCree

32 thoughts on “Sixth Circuit: Michigan Judge Who Had Affair With Wife Of Man In Child Custody Case Before Him Is Entitled To Judicial Immunity From Lawsuit

  1. What do you care you’ve gone all Fox News. Shouldn’t you then be defending the right of conservatives to do whatever they want?

  2. Sometimes it is not difficult, even in the Sixth Circuit, to determine that the acts complained of were extra-judicial and therefore liability exists: King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge’s initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts);

    Same in other courts: “Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).

    But most of the time immunity is the rule.

  3. Dredd,

    It appears the bench actions by McCree were analyzed and determined to be normal. I imagine (hope) that if there was a whiff of abnormality in the actions themselves, McCree would have been open to greater liability.

    As is, the man needs to be off the bench and, yes, disbarred.

  4. To show you how tight judges are with each other and the powers to be, when Arizona applied to be a state, one of the articles of their constitution allowed for the recall of judges. Arizona was not allowed to become a state until they removed that. However, as soon as Arizona became a state they added the provision again.

  5. As a man, I can empathize that a girl can cause a severing from one’s better conscience and judgement. That’s not an excuse for McCree – being professional, doing one’s duty, and rising to one’s responsibilities are the bigger social ethical part of being a man – but yes, we are susceptible to our basic sexual nature.

  6. A new type of immunity is emerging in America which is being rejected in Europe.

    The European Court of Human Rights has held Poland liable for allowing the CIA to torture people there, and for allowing the CIA to remove people from there (Here Come The Torture Investigations – 2).

    But in the U.S. the CIA is immune by lawlessness that has surreptitiously changed the written law.

  7. This is sort of like….. Letting the church investigate all claims of ‘child-molestation’ by priests……………

  8. And people wonder why lawyers, used car salesmen, and politicians are at the bottom of the pile for being respected – and to let slime like this continue should be beyond belief – but so what

  9. Government “workers” get away with anything they want, from petty theft to murder. This will always be the case as long as the ignorant, obedient sheeple continue to submit to the State’s territorial monopoly. As Murray Rothbard and Hans-Hermann Hoppe have shown, we actually don’t need to employ monopolists with artificial authority over our lives. There’s just no reason for it.

  10. Obama orders Attorney General to NOT appoint a special prosecutor after Obama orders IRS to suppress vote through audits of contributors and opponent organizations compelling Lois Lerner to take the 5th as the IRS obstructs justice before Congress by suppressing evidence related to e-mail records claiming computer crashes with attendant memory loss while records of Lois Lerner’s correspondent/co-conspirator at the Committee to Re-elect Obama suffers simultaneous e-mail computer crashes with file loss.

    This is corruption and abuse of power orders of magnitude more egregious than the intrigue of a common family court.

    Does anyone believe that that this Nixonian cover-up, one of the many administration surreptitious machinations, is appropriate for comment by Professor Turley?

    P.S. Obama reminds me of Magic Johnson who has AIDS but is none the
    worse for wear.

    There is a cancer growing on the Presidency.

  11. Oh Lordy! This dude is a sicko!!! This begs for an Irish Poem!

    A Bon Mott???
    An Irish Poem by Squeeky Fromm

    There once was a judge named McCree.
    Who invited the girlies to see
    That beneath his black robe
    Lay a judicial probe. . .
    So they came in his chambers with glee!

    Squeeky Fromm
    Girl Reporter

  12. Really, this judicial immunity nonsense has to be pegged back a few notches.
    I didn’t read the civil complaint against the judge. But if he could have severed the judicial conduct from extrajudicial conduct, maybe something could have come about it. They way the judge cover their own, is by saying ANYTHING a judge does that even remotely is related to judging or judicial action, is immune from lawsuit.
    So, civilly speaking, if a witness is on the stand, says a lie, and the judge says: “I will not stand lying in my court” then pulls out a gun and shoots the guy, but the guy survives. Later the guy tries to sue the judge for damages in being shot. By current jurisprudence, the judge is immune from that lawsuit. I believe he can still be criminally prosecuted though, of what condolence that is to the victim.

    I wrote an article on this very topic a couple years back:
    http://www.nolanchart.com/article9741-the-horrifying-extent-of-absolute-judicial-immunity-html

  13. Gary T – I am for judicial immunity except in cases like this where the judge has a real conflict of interest. I am beginning to think there should be a limited immunity.

  14. Since judicial immunity is a creature of the common law, it is subject to modification, or even elimination, by the courts under the right circumstances. In this instance, it appears that the relationship between the judge and the plaintiff’s ex-spouse did not affect the ultimate decision in the case. Therefore, the plaintiff suffered no injury despite the inappropriateness of the judge’s actions. However, that does not mean that the judge is immune from discipline, including removal from the bench, and this case fairly screams for removal.

  15. From Guantanamo to the Patriot Act to this case – there is something very broken in our federal judiciary. These public servants are supposed to have the highest integrity of any government servant and uphold the U.S. Constitution against the other branches of government.

    If judges don’t have integrity, who does?

  16. Wayne County Circuit Judge Wade McCree is a cretinous fraction of a human being loser as are those who continue to turn a blind eye to his malfeasance.

  17. In my view fraternising by the judiciary with one of the parties ought to invalidate any subsequent orders, regretfully I (in Australia) discovered all 7 judges to visit the first defendant at his residence and well no guesses what subsequently were their orders. it was only months later that I discovered this to have happened when searching about some matters on the internet.
    As Judge McCree did discus the matter with her (Mott) then I view it placed in question his judicial capacity and impartiality and it is irrelevant if any harm existed or not as it is the conduct of the judge that matters. I used to have numerous judges disqualified because of certain comments they had made that indicates or could indicate to a FAIR MINDED PERSON that the judge was or appeared to be bias.

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