Ex-Judge Wade McCree Can't Be Sued for Impregnating Witness

"Hot dog, yep that's me. I've got no shame in my game."

No shame and no liability. We've covered Ex-Judge Wade McCree's extra-judicial activities before: sending a topless pic to a married bailiff, and even worse -- carrying on a six-month affair and impregnating a witness in a felony child support case. Oh yeah, and he falsely drummed up felony charges against her, according to the Michigan Judicial Tenure Commission.

Needless to say, he's no longer a judge. But can the defendant whose baby mama was the witness and paramour sue the ex-judge for violating his due process rights?

No. Not Even Close.

While admitting that the doctrine of judicial immunity can lead to unfair outcomes, and admitting that the Supreme Court itself has, on occasion, criticized the current formulation and application of the doctrine, the bottom line is that the SCOTUS-approved doctrine is the law.

"Our task on appeal, though, is limited to applying the law of the 'one supreme Court,'" Circuit Judge Danny Boggs wrote for the majority. "The Supreme Court's judicial-immunity doctrine has remained undisturbed for decades. Under existing Supreme Court law, Judge McCree is immune from suit under the doctrine of judicial immunity."

Judicial immunity is damn near impossible to beat -- the majority notes that the only exception is for extra-judicial conduct that has nothing to do with the judge's duties. And though Robert King, the defendant in the original suit and the plaintiff here, argues that diddling the witness repeatedly in one's chambers is certainly extra-judicial, the core of his complaint is that the affair led McCree to rule unfairly in his case.

Why are judges given such broad immunity?

"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," the Supreme Court noted back when it officially adopted the common law immunity principle in 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."

Other Remedies Exist

Judge Guy Cole, writing in concurrence, emphasized that the court condemns McCree's actions in the strongest terms possible.

"Casual readers of this opinion (as well as the plaintiff-appellant, Robert King) may erroneously conclude that, by affirming the grant of absolute judicial immunity from suit for personal damages, we are somehow endorsing Judge McCree's conduct or going out of our way to protect one of our own," Cole wrote. "Though constrained by precedent to grant immunity, we do nothing of the sort."

Cole noted that the Michigan Supreme Court has already removed McCree from office and suspended him for six years without pay -- just in case he is reelected in the fall. He called this the "best justice possible" for judicial misconduct.

Indeed, the Supreme Court noted in the 1871 case, Bradley v. Fisher, that a judge who acts maliciously or with partiality "may be called to an account by impeachment and suspended or removed from office."

And unless King's planned petition for certiorari is granted, that is where the line lies: judicial disciplinary proceedings rather than civil suits.

Related Resources:

• King v. McCree (Sixth Circuit Court of Appeals)
• Was Boyce Martin a Victim of 6th Cir. Judicial Infighting? (FindLaw's U.S. Sixth Circuit Blog)
• Was Ret. Judge Martin, The Liberal Lion, Lying? Case Sent to DOJ (FindLaw's U.S. Sixth Circuit Blog)