By 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.

We 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

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