Why Not Limited Judicial Immunity?
One of the occupational hazards of the legal profession is a close acquaintance with chaos. The darkness leads some into the wasteland of depression, and they fall prey to alcoholism, to drug use or to despair. Others yield to a haughty sense that they are above it all, that they are mere spectators to the struggles of the ordinary mortals whose cases consume their professional lives. This later arrogance breeds a species of entitlement to which even judges are not immune.
I’ve never met former Detroit Circuit Court Judge Wade McCree, so I only know what I’ve read. The reports, including a published decision by a federal appellate court, are disgraceful. The judge had an affair with, and apparently impregnated, a litigant over whose case he was presiding. I suspect when his bailiff called “all rise” to open court, Judge McCree often had something other than justice in mind.
The underlying facts are tawdry. Robert King owed his child’s mother $10,000 or more in child support. Non-payment of support is a felony in Michigan. The mother complained, and Mr. King was arrested. He eventually appeared before Judge McCree. At the hearing, the child’s mother caught the judge’s eye. He came on to her, and soon enough they were talking on the phone, at lunch, and between the sheets. Judge McCree gave her money; she grew impetuous. When she became pregnant and told the judge the child was his, things got testy. She appeared at the judge’s home, to the chagrin of his wife. He then filed stalking and extortion charges against her.
During most of this period, Judge McCree was also presiding over Mr. King’s case, threatening the man with prison unless he ponied up what he owed his child’s mother.
As lawyers often say to one another when discussing the cases they handle: “You can’t make this stuff up.” Fiction is but a pale reflection of reality.
Judge McCree lost his robe as a result of these libidinal hijinks, and rightly so. But why shouldn’t Mr. King be able to sue the judge for any harm the judge caused, and ask for money damages? No, the law says, judges, after all, are immune from suit for their conduct as judges. Just how did “we the people” get hoodwinked into giving a free pass to the high and mighty?
Mr. King contends Judge McCree’s indiscretion influenced the judge’s decisions. A close reading of the appellate court decision makes that claim doubtable. A federal appellate court just upheld a lower-court decision to dismiss the action on grounds of judicial immunity. A jury will never see this case.
Immunities are best understood by reference to board games. If the law prescribes the rules by which the pieces on life’s board can move, determining what we can do to one another and how, an immunity simply removes a piece from the board and takes in out of play. While the rest of us pass “Go” and from time-to-time end up in jail, an immunized person gets special treatment.
The broadest immunity imaginable is diplomatic immunity. We grant to representatives of other sovereigns on our soil impunity to act while here. Ask a Manhattan traffic cop near the United Nations about the pointlessness of ticketing an ambassador’s car. Sovereigns, we say, are immune. In the United States, both the federal government and state governments can, as a general rule, be sued only with their consent. They get a pass from what passes for justice in the courts.
Other immunities are narrower in scope. Lawmakers, for example, enjoy legislative immunity for the words they utter in assembly. We assume we get better government by unfettered debate. Thus, should your Congressman damage your reputation by some wayward remark on the floor of the House of Representatives, she is immune. The same harmful words uttered elsewhere might yield a defamation suit against her.
Judicial immunity resembles legislative immunity. We want an independent judiciary, with jurists able to make tough, and often close, calls without fear of suit from disgruntled litigants. I’d go so far as to say all judges ought to be appointed for life with removal from office only for good cause. Justice isn’t supposed to be a parlor game played for the benefit of a passionate mob.
But granting judges immunity from suit for shocking misconduct makes little sense.
There’s an almost medieval sense of entitlement to Judge McCree’s conduct. He’s behaved like a medieval lord, regarding those who appeared before him as little more than serfs, reserving to himself something like the old right of defloration – the lord’s right to despoil any virgin on his land.
Judicial independence is not preserved by a ruling permitting a judge to bed litigants appearing before him with impunity. Immunity in this context is absurd. Yet that is what the federal appellate court ruling tossing the Judge McCree case comes down to. The court held that his decisions while on the bench are judicial functions, and are, therefore, absolutely immune from suit.
Lawyers for Mr. King are considering taking this case to the United States Supreme Court. I suspect that they will meet with a hostile reception. The Court has shown great reluctance to hold public officials accountable for the harm they do, whether those officials be judges, police officers or judges.
Even so, I am rooting for Mr. King. The law calls conduct that injured another tortious, a term having its root in the Latin term for twisted. It ought not to take an extraordinary application of judicial imagination to see that some conduct is so far over the line that it does not deserve immunity, and that no broader public service is formed shielding a judge from suit.
Few things undermine public respect for the law than broadly applied immunities. Accountability ought not to stop in at door to a judge’s chambers.
Let Judge McCree tell a jury just why he thought his conduct was appropriate. And then let a jury tell the judge what it thinks. We the people are sovereign, right?