Former Judge Wade McCree, Jr.

Generally, judges have broad immunity relative to their decisions from the bench.  Judges cannot be sued and held liable for how they decide a case.  Such sweeping immunity is necessary to maintain a fair and impartial judiciary.

This week, the concept of judicial immunity is being put to the test in various courts.  One case involves a disgraced Wayne County trial court judge; the other involves a sitting Michigan Supreme Court Justice.

There are two types of decisions to which judicial immunity applies: decisions in a case on the judge's docket, and administrative decisions made "off the bench", such as hiring or firing personnel.  The former is protected by judicial immunity while the latter is not.

An illustration of judicial immunity is playing out in the civil lawsuit against former Wayne Circuit Judge Wade McCree; he had an affair with a woman who had a custody case in his court and the father is now suing McCree.  The now-disgraced [and married] judge had the bad judgment to preside over the case, when he was secretly involved with the mother of the minor child; the entire family was subject to McCree's jurisdiction in the case.

The case against McCree was tossed out of federal court and appealed to the Sixth Circuit Court of Appeals which held that, although reprehensible, Judge McCree's conduct nevertheless fell within the scope of judicial immunity.  How far is too far then, if having sex with a litigant in your chambers is still protected?

Although Michigan has no case on record where a judge is held liable for his decision or conduct while on the bench, Tennessee has a rare example of a juvenile court judge held liable for violating the civil rights of three women by sexually assaulting them under the threat that he would take away their children if they did not comply with his demands.  So there you have it; having consensual sex is not sufficient to attach civil liability to the judge, but sexual assault may get a plaintiff some money damages.

Not all of a judge's decisions involve litigants on their docket.  In the case of Michigan Supreme Court Chief Justice Robert P. Young, Jr., the former administrator of the Michigan Attorney Grievance Commission is suing him in the Wayne County Circuit Court for an allegedly wrongful and retaliatory firing.  The former AGC administrator, Robert Agacinski, reported a series of bizarre staffer emails he discovered to the Attorney Grievance Commission and, he claims, instead of looking into it, the members of the Commission went to the Chief Justice of the Michigan Supreme Court [the High Court is charged with oversight of the Commission] to have Mr. Agacinski, a 14-year veteran of the AGC, very unceremoniously dumped.

Agacinski alleges that Justice Young's decision to terminate his employment violates Michigan law.  For its part, the Michigan Supreme Court merely noted that Agacinski was fired through a court order signed by all seven Supreme Court Justices.

Both the litigant suing former Judge McCree and Mr. Agacinski have hired Detroit lawyer Joel Sklar, who claims in both cases that his clients are merely seeking to hold those in positions of power accountable for their actions.

We shall see how it all turns out for Mr. Sklar's clients.

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Back in the summer of 1988, I took the bar exam along with hundreds of other lawyer hopefuls, then administered at one of MSU's convention halls near the Brody dormitory.  Thankfully, I passed on the first try.

Back then, if you scored a 50+ on the "multi-state" portion of the test [multiple choice questions], you passed without even having your essay questions evaluated.  Although I missed passing on the multi-state by two points, my 8.5 out of 10 average on the essays was good enough to pass; whew! [I've always been more on an essay kind-of-guy.]

Next week, the latest crop of lawyer hopefuls will truck up to East Lansing to sit for the 2-day exam.  They will be facing a new assessment technique developed by the Michigan Board of Law Examiners, in conjunction with and approval from the deans from all of Michigan's five law schools.  [Note: Long ago, the Board of Law Examiners did away with passage via your multi-state score.]

The Board of Law examiners is charged with ensuring that law school grads who pass the Michigan Bar Exam demonstrate the minimum level of competency necessary to become a member of the bar [a requirement to be a lawyer in Michigan].  In this way, the public is protected.

The essay exams next week will be assessed in a different manner than in years past.  For the first time, the exam takers will have their essay answers assessed by a method that more accurately:

• ensures that the essay test scores across various administrations of the exam reflect the same skill level; and

• continues to reflect differences in the difficulty between the multiple choice portion of the exam and the essay portion of the exam.

How the Board is going to do this remains part of their "secret sauce".  The idea behind the new assessment method is to ensure that a passing score should mean the same thing with regard to basic competence, from one year to the next.

In adopting the new method of assessment, the Board utilized a firm of leading experts in the development of "high stakes" professional examinations.  The new assessment establishes a common scale that accounts for differences in difficulty across different exam administrations.

You see, in the essay portion of the exam, the subject matter changes over the years.  Different topics are covered; some more difficult than others.

Well, good luck to all the exam takers next week; sure does suck to be you.  I fondly recall spending the month of July locked in the law library in Ann Arbor [back then without a/c], waiting for the doors to open at 8:00 am and dragging myself back out at dusk, wondering what kind of summer day I missed.

Good practice for the real world of lawyering.

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Last December, we blogged about federal judge Robert Shelby's ruling that Utah's same-sex marriage ban was unconstitutional.  Between his December 20, 2013 ruling and when the SCOTUS suspended the ruling on January 6, 2014  -pending resolution of the State of Utah's appeal to the 10th Circuit Court of Appeals-  some 1300 gay Utahans were hitched.

Now, with the 10th Circuit refusing to grant the state additional stay time for their appeals, the question before SCOTUS is whether to recognize these same-sex nuptials until a definitive ruling makes its way to the SCOTUS.  A senior federal judge from Salt Lake City ruled in May that Utah had to honor all same-sex marriages that occurred prior to the High Court stay.

While the 10th Circuit seems inclined to uphold Judge Shelby's ruling, it is providing the state time, in the form of a temporary stay, to crank-up the machinery to get the entire matter stayed by the SCOTUS.  Utah's Attorney General has until next Monday to file their briefs with the Supreme Court.

The Attorney Generals of the various states have taken one of two approaches in these federal court civil rights cases: aggressively pursue all avenues on appeal when a state law ban on same-sex marriage is invalidated by a federal court judge; or take the defeat of the state law in stride and abandon the appeal. Both Utah and Michgian's Attorneys General have taken the former approach.

It is a safe bet, although we here at the Law Blogger do not know for sure, that every state in the union has at least one same-sex marriage case pending in federal court.  So it will only be a matter of time before SCOTUS grants certeriorari in a post United States -v- Windsor case to more fully develop the constitutional civil rights jurisprudence of same-sex marriages.

For now, however, it is nearly a full-time job just keeping up with the caseload; it seems every month brings a new decision and a new twist to the analysis.

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Juvenile Lifer Raymond Carp

In 2012, the SCOTUS ruled in Miller v Alabama that state laws providing for life sentences for juveniles were unconstitutional.  Michigan is believed to have the most juvenile lifers in the nation; 350 prisoners convicted of life sentences when they were juveniles, all waiting to die in prison.

The juvenile lifer issue has become a hot-button topic for both the appellate courts and the legislature here in Michigan.  The consolidated cases decided this week by the Michigan Supreme Court, known as People v Carp, et al, squarely
addressed the narrow issue of whether the SCOTUS ruling in Miller should be applied retroactively.

If Miller's ban on mandatory life sentences for juveniles is applied retroactively, then the 350 juvenile lifers in MDOC prisons would have a shot at parole.  The retroactive application of Miller has also been the focus of cases in federal courts in Michigan, with one federal judge in Detroit last year ordering the MDOC to come up with a plan to address parole for this group of convicts.

Of course this comes as horrible news to people like Barbara Hernandez, doing a life sentence for her ancillary role in a 1991 murder right here in Pontiac, MI.  On the other hand, Attorney General Bill Schuette, whose office argued the case for the State of Michigan, hailed the decision as a victory for the families of murder victims.

No doubt, the attorneys for the three defendants in the consolidated cases will now petition to the SCOTUS for further appellate review, seeking clarification as to the retroactivity of Miller.  The remaining 350 juvenile lifers will continue to sit on the edge of their stainless steel racks awaiting final decision on their fate.

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By:  Timothy P. Flynn

Just last week, I was arguing a wrongful death civil rights appeal before the United States Court of Appeals for the Sixth Circuit.  It had been my first trip to Cincinnati for an appeal in more than 5-years.  Always very serious business down there.

Then today, I noted that the National Law Journal carried a story of Cooley Law School's ill-fated defamation law suit that was first dismissed by a federal judge in Detroit, then affirmed by the Sixth Circuit.

Faithful readers of our blog will recall that Cooley was one of our pet subjects in years past.  Usually, the law school's own folly provided grist for our mill; i.e. when they, with an apparent straight face, proclaimed their #2 law school ranking on their own website.

Here is the trajectory of the Cooley law suit.  First, several of Cooley's alumni sued in federal court on a fraud theory claiming the tier three school's promotional literature and web site misrepresented how their graduates fared in the legal industry.  [Keep in mind the timing of the disgruntled students' attempted class action suit was during the Great Recession.]  Next, while those suits were pending, Cooley hired Miller Canfield to counter sue and to file separate actions for defamation.

It was Cooley's defamation suits that were dismissed for lack of merit.  We here at the Law Blogger predicted the suits would fail after years of expensive discovery and an even more costly appeal; our prediction has come true.

It gets costly to prop-up an over-inflated image.  Perhaps coincidentally, the NLJ's article also referenced projected faculty and staff cut backs scheduled for the nation's largest law school.

So if you are a current Cooley Law student, and you are planning to attend the Ann Arbor Campus, think again; that extension has been terminated. You will need to commute to either Auburn Hills or the flagship campus in Lansing.

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