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Thursday, July 31, 2014

When Should Judges Be Liable for their Decisions?

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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