The Essence Of Utilitarianism: 9 Out Of 10 Non-Lawyers Will Hate This, But It Is Ethical And Necessary

Wait, this doesn't seem proper at all...

Wait, this doesn’t seem proper at all…

In the case of King v McCree, the Sixth Circuit has handed down a decision that affirms the principle of judicial immunity.  The facts are reminiscent of the Gilbert and Sullivan one-act, “Trial by Jury.”

Judge Wade McCree,  presiding over a felony child – support case, conducted a secret sexual relationship with the woman seeking support from the defendant, King. The Michigan Supreme Court both removed Judge McCree from his judgeship and prospectively suspended him without pay for six years just in case Michigan voters—and voters have been known to do such stupid things–re-elect  him if he runs for judge again in November 2014.

The defendant sued the ex-judge, claiming that the judge’s obvious conflict of interest–playing bedroom bingo with the complaining witness while her case was being adjudicated in his court— violated King’s right to due process of law. The district court ruled that Judge McCree was immune from such lawsuits under the doctrine of judicial immunity, and the Sixth Circuit agreed.

Why? Because if the system allows bad judges to be sued for things like this, then good judges will be sued for just doing their job, and every judge will be factoring in the likelihood of a lawsuit by the losing party no matter what the case is, or what the facts are. The only way the judicial system can work is if judges know they will not be sued for doing their jobs correctly and competently. This requires, unfortunately, that judges who are corrupt, incompetent and stupid cannot be sued either.

This is classic and proper utilitarianism—allowing a wrong in protection and furtherance of a greater good.

Doesn’t it feel awful?


Pointer and Facts: Legal Ethics Forum


28 thoughts on “The Essence Of Utilitarianism: 9 Out Of 10 Non-Lawyers Will Hate This, But It Is Ethical And Necessary

  1. I don’t see a downside to allowing a civil lawsuit after a judge is removed for misconduct. Clearly there would need to be the link between the misconduct and the case.

    The law now makes sense for keeping honest judges from being harassed. But that’s clearly not the case here. If the law was changed, an honest judge doesn’t need to worry, only the ones doing things that would cause them to be removed from the bench.

    • Matthew:
      Being an honest judge does not eliminate the potential for a suit. You can do everything right. You can also be ethical as the day is long and you can be sued for something that another feels has wronged them. The judge’s role is to sort out the facts and make a decision. Being sued takes up valuable time and energy even if you win.

      Given that the taxpayer will cover the cost of defending even the most frivolous lawsuit, it stands to reason we do not want the courts clogged with litigants that allege wrongdoing by a judge when the decision goes against them.

      • I guess I didn’t explain clear enough – continue to forbid lawsuits against a judge – EXCEPT for judges removed from office for misconduct.

        Every state has a mechanism for removing a judge for misconduct. I can’t state what other states are like, but where I live, removing a judge is a pretty high bar. Pretty much only taking bribes or other serious crimes will get them removed.

        What I’m proposing is once they have been removed for misconduct, they can be sued. Not before. This has no impact on judges who aren’t committing CRIMES while sitting on the bench.

        • so, to put it bluntly, going to jail is sufficient? I think not. ANYBODY can still sue ANYBODY else for ANYTHING. Not necessarily a good thing, and there may need to be a mechanism in place to limit who can sue who for what, then and only then would immunity go away.

  2. I’m going to disagree somewhat here: I’m perfectly fine with this.

    Provided, of course, two things:

    1) Judicial immunity doesn’t shield McCree from other relevant ethics decisions (like, say, disbarment). I don’t think it does, but I do believe that allowing McCree to practice law would be a threat to our ability to trust our legal professionals.

    2) King was, in this case, able to appeal McCree’s… rather blatantly biased… decision.

  3. As a non-lawyer I completely understand the concept of judicial immunity. Society delegates the power of arbitration of laws to these individuals and there is an appellate process in the event one gets it wrong or is compromised in rendering a fair decision.

    In courts of equity some one always feels that the decision was unfair otherwise the parties to the dispute would have resolved the issue to their own equitable satisfaction. The judge’s role is to render an unfavorable result to one of the parties. If judges are subject to suits then the trial lawyers will look for ways to gain an upper hand in any proceeding.

    With that said, judges that willfully breach their cannons of ethics should be removed from the bench forthwith.

  4. I disagree. I have no problem with qualified immunity. Absolute immunity might be tolerable if and only if officers of the court were consistently held accountable for misdeeds. That doesn’t seem to be the case. And I reserve the right to hang on to that word “might” if such a situation ever did arise.

    If you aren’t actually operating within the bounds of your office, you should be liable for the negative consequences that follow from that. Disbarrment and removal from office are the just consequence of abusing your office or failing to uphold the dignity of the office, being sued is the just consequence of causing tangible harm to someone else while abusing it. The second might not apply in this case, so qualified immunity might still be valid. It depends on the actual quality of his decisions. There is a difference between ordering a search warrant based on no evidence and one based on legitimate but weak evidence, as an example of where such a line could be drawn.

    Which level of immunity was held to apply in this case?

    • Ok, should have double checked. Judicial immunity is apparently absolute immunity. I think it should be reduced to qualified immunity.

  5. The problem, as I see it, is that anybody can be sued for anything without the immunity. And I do NOT see any way to qualify that, without abridging the right to sue, if such exists.

  6. You are making a horrible slippery slope argument here. Don’t allow these judges to be sued because then all judges could get sued? Come on. That is ridiculous.

    Wording this should be quite easy. If a judge is removed for improper behavior, then that judge loses immunity from civil lawsuits from victims of that specific improper behavior. This wouldn’t open the door for judges to be sued just because a case was lost or even if the case was wrongfully ruled on. Only judges removed for improper behavior will lose the immunity and only in cases pertaining to that improper behavior.

    How hard was that?

    • All of which is subject to fact-finding and potential error. Your approach is the slippery slope. Absolutes are never slippery slopes…that’s why they are absolutes. A judge must know with certainty that his decision will not result in possible civil liability. We don’t know that he decided the case wrong, or that the affair had a material affect on his decision, but it’s a serious ethics violation whether it did or not. That’s irrelevant to liability matters.

      • I’m a layperson, so please correct me if I’m wrong. His judicial immunity protects him from lawsuits that involve performing his duties within the context of deciding the case. But he’s not shielded from lawsuits for unrelated things, right? So, if he were texting and driving and happened to crash into the car of a defendant in his court, then a lawsuit could potentially still be on the table.

        As such, could a judge be sued for sexual harassment if a woman or a man who had a case before the judge could establish that the judge’s position of power was coercive when the judge initiated a sexual relationship? The sexual relationship itself wouldn’t be any part of the judge’s duties. (Though, if s/he tried to make that argument, one would think that would strengthen the case for a sexual harassment lawsuit.)

  7. You can call Judge Boggs’s decision many things, but “ethical” is not among them. Judges writing law for the benefit of judges (correct me if I am wrong here, but I don’t recall an overt provision in your constitution granting anyone absolute immunity) is usurpation, which can never qualify as “ethical.” That the original usurpation occurred long ago does not validate it, any more than it did the institution of slavery.

    For rights to have meaning, there must be a remedy for every breach. What absolute immunity does is deprive the victim of a remedy.

    On the one hand, exposing judges to suit might result in the harassment of honest judges. On the other, NOT exposing judges to liability DOES result in manifest injustice. Deciding which value is paramount is certainly not the job of the judges, as they have an obvious personal interest in the outcome.
    The rest of the world has found that absolute immunity is incompatible with the notion of rights under law. Nelles v. Ontario [1989] 2 S.C.R. 170. Why is everyone else wrong?

    • Judicial immunity, which originates from the British Common Law, has nothing to do with judges “writing for the benefit of judges.” Judges hate the kind of thing the judge did in this case…they would love to see him get sued, if it didn’t undermine the independence of all judges. The principled is long-established US law, and the two courts simply acknowledged precedent, as they are supposed to.

      The immunity does not extend to criminal acts, as in this, a case I remember from law school that turns up in Wikipedia:

      Note, however, that, while the judiciary may be immune from lawsuits involving their actions, they may still be subject to criminal prosecutions. In 1997 West Virginia judge Troisi became so irritated with a rude defendant, he stepped down from the bench, took off his robe, and bit the defendant on the nose.[2] He pleaded no contest to state charges but was acquitted of federal charges of violating the defendants civil rights.[3] He spent five days in jail and was put on probation.[4]

      • But doesn’t your constitution override the common law? Here, where the common law conflicts with a law enacted by Parliament, the statutory law controls. The common law is not the supreme law of the land. Is it different in the States?

        By what explicit authority did American judges import the rule of absolute judicial immunity? If Mr. King had a constitutional right to have his claims heard by a fair and independent tribunal, much as we do pursuant to the Charter of Rights and Freedoms, doesn’t judicial and sovereign immunity extinguish that right? It has been our law for three centuries that a “right” cannot exist without an effective remedy for its breach. Ashby v. White [1703] 92 Eng. Rep. 126 (K.B.). Here, a spectacle such as that would be a violation of the principles of fundamental justice, and the courts could not grant immunity without violating the Charter.

        The common law is the codification of reason. Absolute judicial immunity seems to violate that rule of reason, and I still don’t see the mechanism by which your courts may do so. I would appreciate your insight on this, as it is unfathomable to me.

        • Absolute judicial immunity seems to violate that rule of reason, and I still don’t see the mechanism by which your courts may do so. I would appreciate your insight on this, as it is unfathomable to me.

          Judicial immunity simply means that judicial acts do not constitute torts.

          It has been our law for three centuries that a “right” cannot exist without an effective remedy for its breach

          the remedy is the appeals process.

          • “fox is watching the hen house”. Judicial accountability is a farce and subject to “ultimate power corrupts ultimately”. There is no balance of powers nor of, for, or by the people. The Judiciary with ease thwarts their own accountability even to the appeal process, so the judicial machine does not function. It is a breeding grounds for collusion and allowing all sorts of corruption from minor to gross so only the most heinous is held to account …sort of. ( Greylord, Cash for Kids ). The idea is so the system is publicly trusted is laughable… especially when federal and state monies can be exploited for local gain. We have legalized the mafia and put them in black robes, calling evil the new “righteous”. We have sacrificed the scale and the blindfold… This is a form of Tyranny, and freedom from such always costs blood.

              • Glad I could make you laugh…but I am not after living it for the last 11 years. ( my family has over 100 years cumulatively in the “system”). I, an innocent person, have been and am currently railroaded by the system. I seek the appeal process, only to have it blocked by every means in & out of the book, to keep me from bringing my case to justice in trial court, or by appeal. Modified records and transcripts, fraud upon fraud to cover fraud, holding my own 7 children one by one on a proverbial stick in attempt to make me comply with acts out of color. I am not laughing, neither are the 100’s of thousands of others I find are being blocked from a voice seemingly everywhere but the internet. Substance? “Cash for kids” case in PA. is not substance enough… this is epidemic. … or even an internal treasonous terrorism that threatens our national security. No not laughing.

  8. We have the same conundrum currently being at war with terrorists who are almost exclusively Muslim. Can you now say all Muslims are terrorists? What is the answer? This is extreme as it works for all areas… are all whites racist? Are all Mexicans illegal? NO… But when any named group does not hold themselves accountable for increasing evil among us then by our silence we agree and thereby encourage the Evil. When Judges do not really hold each other accountable but collude and cover, they are calling for outside accountability that will come… whether by legislation or by revolt. Profit while you may accountability is coming and you will be held to a truly much higher standard and judgement.

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