Robert King v. Wade McCree, et al

Filing

OPINION filed : The judgment of the district court is AFFIRMED. Decision not for publication. Danny J. Boggs (AUTHORING); R. Guy Cole, Jr. (CONCURRING), and David W. McKeague, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0531n.06
No. 13-2033
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Jul 21, 2014
DEBORAH S. HUNT, Clerk

ROBERT KING,
Plaintiff - Appellant,
v.
WADE MCCREE; GENIENE LA’SHAY
MOTT
Defendants - Appellants.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

Before: BOGGS, COLE, and McKEAGUE, Circuit Judges.
BOGGS, J., delivered the opinion of the court, in which COLE and McKEAGUE, JJ.,
joined. COLE, J., delivered a separate concurrence, in which McKEAGUE, J., joined.
BOGGS, Circuit Judge. Judge Wade McCree, while serving as the presiding judge in a
felony child-support case against Robert King, maintained a romantic and sexual relationship
with the complaining witness against King. In part as a result of this conduct, the Michigan
Supreme Court both removed Judge McCree from judicial office and prospectively suspended
him without pay for six years if voters should reelect Judge McCree in November 2014. King
sued Judge McCree under 42 U.S.C. § 1983, alleging that Judge McCree’s conduct surrounding
his case violated his right to due process of law. The district court determined that Judge
McCree is immune from suit under the doctrine of judicial immunity. Because any violation of
King’s constitutional rights arose purely from Judge McCree’s judicial actions, we affirm.

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I
A. The First Encounter
In January 2012, Judge Wade McCree was a judge on the Third Judicial Circuit Court in
Wayne County, Michigan. Robert King and Geniene La’Shay Mott were the unmarried parents
of a five-year-old girl.
On March 12, 2012, the court issued a felony warrant for King’s arrest for failing to pay
child support, in violation of Mich. Comp. Laws § 750.165. On March 21, 2012, the state
arraigned King before Magistrate Renee R. McDuffee, and the court entered a plea of not guilty.
The court then transferred King’s case to Judge McCree.
On March 28, 2012, Judge McCree held a hearing in King’s case, consisting of an
arraignment on an information and a preliminary examination. King waived the preliminary
examination.
Two months later, on May 21, 2012, Judge McCree conducted a pre-trial hearing in
People v. King, No. 12-003141-01-FH. Mott, the custodial parent in the state’s child-support
case against King, was present. King owed Mott $280.50 per month in support, and he owed
Mott over $10,000 in total.1 At the hearing, the state learned that King had made a $400
payment on his arrears that day. Consequently, the court and the parties agreed to a “delayed
sentence” in which King agreed to a stipulated payment plan.
During this hearing, Judge McCree met Mott for the first time. As the prosecutor
prepared the child-support payment agreement, Judge McCree told Mott: “Ma’am you’ve been
so patient all day and you know, having all this time with my deputy here, let me get a little of
it.” Judge McCree then asked Mott about her daughter’s age and school. Mott told Judge
1

At one point, the prosecutor listed the total as $15,000. At another point, the prosecutor listed
the total as “[j]ust shy of” $12,000.
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McCree that she had gone years without receiving much payment. Mott told Judge McCree that
“[i]f [King] don’t have court dates he doesn’t pay. If we have to go to court he magically always
has the money.”
King pleaded guilty to failure to pay child support. Judge McCree entered the delayed
sentence, pursuant to Mich. Comp. Laws § 771.1(2), under which the court would withdraw the
plea and dismiss the charges if King made his payments for eleven months. Judge McCree
scheduled the case for review hearings on August 16 and November 15, 2012.
B. The Spark
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.”

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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 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.”

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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

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their relationship.” On June 20, 2012, Judge McCree allegedly e-mailed Mott: “My Judicial
Tenure Commission matter has me nervous, as you 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.”
D. The August 16, 2012, Review Hearing
Judge McCree acknowledged that, during his relationship with Mott, they “probably”
discussed whether King was in compliance with the delayed-sentence agreement. King was
scheduled for an August 16, 2012, review hearing before Judge McCree.

Judge McCree

acknowledged that in the days prior to the hearing, he and Mott exchanged text messages about
King’s hearing and the potential actions that Judge McCree could take if King were not in
compliance with the agreement. Mott allegedly suggested that Judge McCree impose a jail
sentence for King unless King paid $2,500 in cash. Judge McCree allegedly responded in a text
message: “I figured if he hasn’t come current by his courtdate, he gets jail 2 pay. If he says he
can bring me the $$, I’ll put him on a tether till he brings the receipt 2 FOC [presumably, “friend
of court”] or do ‘double time’.”
According to Judge McCree, he advised Mott that he could not order King to pay more
than the consent order required or pay any quicker than the order required. Judge McCree
acknowledged that he told Mott that he could send King to jail or place him on a tether until
King made payments.

These were statements, Judge McCree said, that he made to other

complaining witnesses in felony child-support cases. Prior to the August 16 hearing, Mott
informed Judge McCree that King was behind on his child-support payments.

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On August 12, 2012, Judge McCree and Mott allegedly exchanged additional text
messages about King’s upcoming review hearing. In these messages, Mott suggested that King
pay more than what was required under the delayed-sentence order. Judge McCree states that he
again told Mott that he could not require King to pay more.
On August 16, 2012, the date of King’s review hearing, Judge McCree assisted Mott in
bringing her cell phone into the courtroom, in violation of courthouse policy. At the hearing, the
prosecutor informed Judge McCree that King was $672 short of compliance with the delayedsentence agreement. King told the court that he had been working as a manager of a bar in
Pontiac, Michigan but that assailants robbed him of $2,000 and shot and killed two of his friends.
Judge McCree permitted King to pay the money that was owed by the end of the month. Judge
McCree also placed King on a “tether” in order to monitor his whereabouts. Judge McCree also
advised that the court could remove the tether as soon as King paid what he owed. He stated:
“[W]hen $672 o[f] that is paid I’ll certainly take the tether off.” If King did not pay the money
by that time, Judge McCree informed King that he would consider withdrawing the delayedsentence agreement and imposing a felony conviction. Judge McCree scheduled an additional
review hearing for August 29. King alleges that, immediately after the August 16 hearing, Judge
McCree and Mott had sex in Judge McCree’s chambers.
E. Judge McCree Transfers King’s Case
At some point after the August 16 hearing, Judge McCree decided that he needed to
transfer King’s case to another judge. On September 19, 2012, around 8:46 a.m., Judge McCree
allegedly texted Mott: “Running upstairs 2 C if Judge Callahan will ‘take’ Brother King’s case.
I’ll B N touch w/a quickness:-)” Judge McCree acknowledged that he told the assistant attorney
general that he was transferring the case because his son and Mott’s son attended a social event

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together, which, he says, was a true statement because the boys attended a football game
“together” at Wayne State University. Judge McCree allegedly told the same information to
Chief Judge Timothy Kenney. Judge McCree did not disclose his personal relationship with
Mott. Around 9:48 a.m., Judge McCree allegedly texted Mott: “DONE DEAL!!!:-). I told a
story so well, I had me believing it!! Brother King is on his way 2 ‘hangin’ Judge Callahan. He
fuck up ONCE & he’s through!!” That day, Judge McCree entered an order transferring King’s
case to Judge Callahan.
The court scheduled King for a November 15, 2012, review hearing before Judge
Callahan. The clerk noted on King’s docket sheet that the assistant attorney general informed the
court that King was in compliance with the agreement. The court delayed the review hearing at
the prosecutor’s request.
On November 15, the day of King’s scheduled hearing, Mott allegedly texted King
asking why King’s hearing before Judge Callahan did not occur. Judge McCree stated that he
did not respond. Judge McCree allegedly told Mott he would ask the prosecutor why King’s
hearing was delayed. Judge McCree stated that he did not recall speaking with the prosecutor
about the November 15 hearing.
F. Denouement
Around October 31, 2012, Judge McCree told Mott that he wished to end their
relationship. Mott informed Judge McCree that she was pregnant with his child.
At one point, Mott confronted Judge McCree at his house, causing Judge McCree’s wife
to contact the police. Mott also confronted Judge McCree during an afternoon in Detroit’s Belle
Isle park. Additionally, Judge McCree stated that Mott confronted him in the courthouse parking

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lot, demanding money and his time. Judge McCree also stated that Mott attempted to contact
him on his daughter’s cell phone.
Consequently, on November 20, 2012, Judge McCree filed a stalking and extortion
complaint against Mott with the Wayne County Prosecutor’s Office. Judge McCree stated that
he told the prosecutor’s office that he had a relationship with Mott and that he transferred the
case to Judge Callahan. Judge McCree also stated that he told the prosecutor’s office that Mott
demanded money from him in exchange for an abortion and silence about their relationship.
On December 6, 2012, Mott disclosed the details of her relationship with Judge McCree
to a local television reporter. That day, a local television station broadcast a report about Judge
McCree’s relationship with Mott.
G. Aftermath
On March 12, 2013, the Michigan JTC filed a formal complaint against Judge McCree
based, in part, on his conduct relating to People v. King. See In re Judge McCree, Formal
Compl.

No.

93

(Mich.

Jud.

Tenure

Comm’n

Mar.

12,

2013),

available

at

http://jtc.courts.mi.gov/downloads/FC93.complaint.pdf. Judge McCree acknowledged that his
failure to recuse himself from King’s case after beginning a relationship with Mott constituted
“misconduct in office,” in violation of both Mich. Const, art. 6, § 30(2), and Michigan Court
Rule 9.205, providing standards for judicial conduct. Judge McCree denied that his relationship
with Mott impacted his handling of the King case in any way. Michigan disciplinary rules
provide that “conduct that violates the standards or rules of professional conduct adopted by the
Supreme Court” constitutes “grounds for discipline.” Mich. Ct. R. 9.104(4). Judge McCree
acknowledged that he “likely violated” this rule when he conducted King’s August 16, 2012,
review hearing. Judge McCree further acknowledged that he violated the standards of judicial

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conduct. Additionally, Judge McCree acknowledged that he violated Canon 3C of Michigan’s
Code of Judicial Conduct when he did not disqualify himself from King’s case before August 16.
After investigation, the Judicial Tenure Commission recommended that that the Michigan
Supreme Court remove Judge McCree from office. In re Judge McCree, 845 N.W.2d 458, 459
(Mich. 2014).

Judge McCree petitioned the Michigan Supreme Court to reject the JTC’s

recommendation on the ground that his failure to recuse himself resulted in “no harm no foul.”
Id. at 460. The Michigan Supreme Court determined that Judge McCree’s conduct resulted in
harm to the “parties’ rights to a fair legal process and to the public’s right to an impartial
judiciary.” Ibid. The court affirmed the JTC’s factual findings and adopted its recommendation.
Id. at 459. The Michigan Supreme Court removed Judge McCree from office and conditionally
suspended him without pay for six years, with the suspension becoming effective only if voters
reelect Judge McCree to judicial office in November 2014. Id. at 459–60. The court also
ordered Judge McCree to pay the JTC $11,645.17 in costs. Id. at 460.
The Michigan Supreme Court’s published opinion discusses in great detail Judge
McCree’s relationship with Mott. We limit our description of the facts here to those relevant to
King’s case. Relevant here, the Michigan Supreme Court found that Judge McCree:
had an affair with a complaining witness in a case pending before him, had
numerous ex parte communications with that witness about the case, extended to
her special treatment concerning the case, and caused her reasonably to believe
that she was influencing how he was handling her case. When their relationship
subsequently went sour, he sought to employ the prosecutor attorney’s office as
leverage against her by concocting charges of stalking and extortion.
Id. at 476.
H. Current Litigation
On February 11, 2013, King sued Judge McCree and Mott in federal court. King sued
Judge McCree under 42 U.S.C. § 1983, alleging that Judge McCree violated his due-process
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rights, in violation of the Fifth and Fourteenth Amendments. In a separate count, King alleged,
under § 1983 and § 1985, that Judge McCree and Mott conspired to violate his due-process
rights.
The district court granted Judge McCree’s motion to dismiss. See King v. McCree, No.
13-10567, 2013 WL 3878739, at *6 (E.D. Mich. July 26, 2013). The district court recognized
judicial immunity for Judge McCree from a civil lawsuit arising out of his judicial actions. Id. at
*5. The court determined that immunity also extended to King’s § 1983 conspiracy count
against Judge McCree. Ibid. The court also found that King’s claim, to the extent based on
§ 1985, failed to state a claim because it was not plausibly based on class-based animus. Ibid.
The court permitted the § 1983 conspiracy claim to proceed against Mott. Id. at *5 n.2.
On August 1, 2013, King appealed the district court’s order dismissing the case against
Judge McCree. At that time, King’s case against Mott remained pending. On August 13, 2013,
we directed King to show cause why we should not dismiss his appeal for lack of jurisdiction.
On August 14, 2013, the district court accepted King’s and Mott’s stipulated order and dismissed
the case against Mott without prejudice. On September 4, 2013, we withdrew the show-cause
order and ordered that the appeal proceed on the merits.2

2

McCree argues that we lack appellate jurisdiction. See Appellee Br. x–xiii. We previously
held that the district court’s August 14, 2013, order resolved all pending claims and rendered the
July 26, 2013, order final and appealable. Order, King v. McCree, No. 13-2033 (6th Cir. Sept. 4,
2013), ECF No. 22. King moved for reconsideration of our order withdrawing the show-cause
order, and a three-judge panel denied King’s motion. Order, King v. McCree, No. 13-2033 (6th
Cir. Nov. 6, 2013), ECF No. 54.
“[T]he law-of-the-case doctrine . . . expresses the practice of courts generally to refuse to
reopen what has been decided.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988) (internal quotation marks omitted). We retain the power to revisit prior decisions,
“although as a rule [we] should be loathe [sic] to do so in the absence of extraordinary
circumstances such as where the initial decision was clearly erroneous and would work a
manifest injustice.” Ibid. (internal quotation marks omitted). McCree has not demonstrated that
extraordinary circumstances merit revisiting our prior rulings.
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II
We review de novo a district court’s determination about judicial immunity. See Bright
v. Gallia Cnty., Ohio, -- F.3d --, Nos. 13-3451 & 13-3907, 2014 WL 2457629, at *4 (6th Cir.
June 3, 2014). Judge McCree, as the party claiming judicial immunity, bears the burden of
establishing that judicial immunity is proper. See ibid. (citing Antoine v. Byers & Anderson, Inc.,
508 U.S. 429, 432 (1993)).
III
A
Section 1983 provides a federal cause of action against state officials for the deprivation
of constitutional rights under color of state law. 42 U.S.C. § 1983. Similarly, § 1985 provides a
federal cause of action against persons who conspire to deprive an individual of “equal
protection of the laws” or of “equal privileges immunities under the laws.” 42 U.S.C. § 1985(3).
Here, King alleges that Judge McCree violated his Fifth and Fourteenth Amendment due-process
right and that Judge McCree conspired with Mott to do so.
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,

3

This fascinating case concerns the aftermath of the assassination of President Lincoln.
In June 1867, the government tried John H. Suratt in District of Columbia criminal court
for Lincoln’s murder. Bradley v. Fisher, 80 U.S. 335, 344 (1871). At trial, Suratt was
represented by attorney Joseph Habersham Bradley, and George P. Fisher was the presiding
“justice.” Ibid. Fisher claimed that one day after recessing court, he was descending from the
bench when Bradley “accosted [him] in a rude and insulting manner,” “charging [Fisher] with
having offered [Bradley] a series of insults from the bench from the commencement of the trial.”
Ibid. According to Fisher’s account, he “disclaimed any intention of passing any insult
whatever” and “assured [Bradley] that he entertained for him no other feelings than those of
respect” but that Bradley “so far from accepting this explanation,” “threatened [Fisher] with
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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.
The doctrine of judicial immunity exists “not for the protection or benefit of a malicious
or corrupt judge” but for “the benefit of the public, whose interest it is that the judges should be
at liberty to exercise their functions with independence and without fear of consequence.”
Pierson, 386 U.S. at 554. Section 1983, enacted in 1871, did not abolish judicial immunity.
Ibid.; see Stump v. Sparkman, 435 U.S. 349, 356 (1978) (“[J]udicial immunity . . . appli[es] in
suits under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983.”) 4
The Court has clarified that judicial immunity is immunity not just from the ultimate
assessment of damages but is immunity from suit itself. Mireles v. Waco, 502 U.S. 9, 11 (1991)
(per curiam). A plaintiff may overcome judicial immunity in only two circumstances. Ibid.
personal chastisement.” Ibid. Fisher then entered an order barring Bradley from practicing
before that court. Ibid.
Bradley complained against Fisher. The United States Supreme Court held that Fisher’s
removal of Bradley from the bar could not provide the basis for action against Fisher. Id. at 356.
The Court determined that Fisher could not be liable for damages for his judicial act. Id. at 357.
4
President Grant signed into law the bill containing § 1983 on April 20, 1871. The Supreme
Court decided Bradley on December 1, 1871. Even aside from the Court’s express holding in
Pierson, that alone might suggest that the passage of § 1983 did not abolish judicial immunity.
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Relevant here is the exception for “nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity.” Ibid.5 “[T]he proposition that judicial immunity extends only to liability for
‘judicial acts’ was emphasized no less than seven times in Mr. Justice Field’s opinion for the
Court in the Bradley case.” Stump, 435 U.S. at 365 (Stewart, J., dissenting). Two factors
determine whether an act is a “judicial” one: “the nature of the act itself, i.e., whether it is a
function normally performed by a judge” and also “the expectations of the parties, i.e., whether
they dealt with the judge in his judicial capacity.” Stump, 435 U.S. at 362 (majority opinion).
Courts must “look to the particular act’s relation to a general function normally performed by a
judge.” Mireles, 502 U.S. at 288. Under this “functional approach,” “immunity is justified and
defined by the functions it protects and serves, not by the person to whom it attaches.” Forrester
v. White, 484 U.S. 219, 224, 227 (1988).
The Supreme Court has offered several examples of acts that are “judicial” within the
meaning of its judicial-immunity doctrine.

These include: entering an order striking an

attorney’s name from the roll of attorneys entitled to practice before the bar, Bradley, 80 U.S. at
356–57; adjudging parties guilty when their cases are before a judge’s court, Pierson, 386 U.S. at
553; and approving petitions relating to the affairs of minors, Stump, U.S. at 362. In Mireles, a
state public defender alleged that after he failed to appear for the initial call of a judge’s morning
calendar, the judge “ordered police officers ‘to forcibly and with excessive force seize and bring
plaintiff into his courtroom.’” Mireles, 502 U.S. at 10 (quoting certiorari petition). The Ninth

5

The second exception is for actions “taken in the complete absence of all jurisdiction.”
Mireles, 502 U.S. at 12. We recently considered the scope and nature of this exception. See
Bright v. Gallia Cnty., Ohio, -- F.3d --, Nos. 13-3451 & 13-3907, 2014 WL 2457629, at *6–8
(6th Cir. June 3, 2014). It was also the subject of our decision in Stern v. Mascio, 262 F.3d 600
(6th Cir. 2001).
Here, King does not argue that McCree’s actions were taken in the absence of all
jurisdiction.
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Circuit denied immunity for the judge on the ground that authorizing the use of excessive force is
not a judicial act. Id. at 11. With neither briefing nor argument, the Supreme Court summarily
reversed, holding that ordering court officers to bring a person before a judge is a judicial act.
Id. at 12.6
On the other hand, the Court has held that the act of demoting and discharging a court
employee, along with other acts “involved in supervising court employees and overseeing the
efficient operation of a court,” is not a “judicial” one. Forrester v. White, 484 U.S. 219, 229
(1988). Judges who perform these acts do so in an “administrative capacity” only. Ibid.
B
1
King complains of multiple acts taken by Judge McCree. If these acts are “judicial,” then
Judge McCree is immune from suit under the doctrine of judicial immunity.

See Stump,

435 U.S. at 359. In deciding whether Judge McCree’s actions are judicial, we look to both “the
nature of the act itself” and “the expectations of the parties.” See id. at 362.
The district court correctly identified three actions taken by Judge McCree that involved
King directly. These are: Judge McCree accepting King’s guilty plea and entering the delayedsentence agreement on May 21, 2012; Judge McCree extending King additional time to pay the
money that was owed and Judge McCree placing King on a “tether” on August 16, 2012; and
Judge McCree transferring the case to “hangin” Judge Callahan on September 18, 2012.
As for the May 21 actions, at the time Judge McCree accepted King’s plea and entered
the delayed-sentence agreement, Judge McCree had not begun his relationship with Mott. The

6

Justice Stevens dissented on the merits. See Mireles, 502 U.S. at 14. Justices Scalia and
Kennedy dissented from the decision granting certiorari and also from the decision to decide the
case without briefing and argument. See id. at 15.
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May 21 actions, then, likely did not deprive King of due process. Additionally, as for the
September 18 actions, Judge McCree’s act of transferring the case to another judge was certainly
improper insofar as he did not do so sooner and may have been improper insofar as he
intentionally transferred the case to a judge whom he believed to give harsh sentences.
At any rate, 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.
On August 16, 2012, at the time of King’s review hearing before Judge McCree, King
was not in compliance with his delayed-sentence agreement. King was behind $672 on the
agreement. Judge McCree noted that he could have sent King to “have a date across the
street”—presumably to jail. Instead, Judge McCree allowed King to pay the money that was

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owed by the end of the month. Additionally, Judge McCree placed a tether on King. Judge
McCree may not have treated King differently from other similarly situated litigants. Assuming,
arguendo, that Judge McCree’s relationship with Mott motivated him on August 16 or that Judge
McCree acted in bad faith on that date, the district court nonetheless correctly applied Supreme
Court law: “A judge will not be deprived of immunity because the action he took . . . was done
maliciously.” Stump, 435 U.S. at 356; see King, 2013 WL 3878739, at *5; see also Bright, -F.3d at --, 2014 WL 2457629, at *6 (recognizing judicial immunity even when a judge’s actions
“were petty, unethical, and unworthy of his office.”).
2
On appeal, King argues that Judge McCree’s non-judicial acts deprived him of due
process.

Specifically, King argues that he was “personally and directly deprived of [the

constitutional guarantee of due process] every time Judge McCree and Mott engaged in any
extrajudicial contact.” Appellant Br. 21. King also argues: “Plaintiff’s due process rights were
violated when McCree and Mott had sex in chambers and elsewhere, when they spent time
together outside the courtroom, discussed and decided how to sentence Plaintiff for his late child
support payments.” Ibid. Before the district court, King identified other allegedly non-judicial
acts by Judge McCree that deprived him of due process, including: flirting with Mott from the
bench on May 21, engaging in ex parte communications with Mott, giving Mott his business
card, having lunch with Mott, “hav[ing] sex repeatedly” with Mott, having sex with Mott in his
chambers, giving Mott $6,000, secretly discussing with Mott using jail to loosen King’s “purse
strings,” and instructing Mott not to disclose the affair in order to avoid “deep shit.”7 Appellant

7

We accept King’s assertion that McCree’s personal relationship with Mott consisted of nonjudicial acts. See Archie v. Lanier, 95 F.3d 438, 444 (6th Cir. 1996) (Merritt, C.J., concurring)
(“Yielding to an unruly libido is not the exercise of judicial power, or somehow like or related to
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Br. 20 n.16. At oral argument, King’s counsel argued that the depth and number of these nonjudicial acts, as well as the intimacy of Judge McCree’s personal relationship with Mott, makes
this case exceptional. King’s counsel described his theory as “death by a thousand cuts.”
These acts, though often reprehensible, did not directly involve King. The district court
correctly determined that these acts could not, without more on Judge McCree’s part, deprive
King of due process. See King, 2013 WL 3878739, at *4. “In the Sixth Circuit, a section 1983
cause of action is entirely personal to the direct victim of the alleged constitutional tort.”8
Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000). King can point to no case supporting
his claim that Judge McCree’s relationship with Mott, in itself, amounted to a constitutional tort
against King. King relies on the following language from In re Murchison, 349 U.S. 133, 136
(1955): “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course
requires an absence of actual bias in the trial of cases.” But this right extends to what occurs in
trials and tribunals. This language suggests, at most, that Judge McCree’s presiding over King’s
case violated King’s due-process right—not that Judge McCree’s non-judicial acts violated
King’s constitutional right.

Murchison does not support King’s claim that Judge McCree

deprived King of due process every time Judge McCree engaged in extrajudicial contact with
Mott. We hold that a defendant cannot avoid the bar of judicial immunity by relying on non-

the performance of judicial duties. . . . A judge’s long study of the law does not proceed from
sexual appetites, even though we may sometimes say that ‘the law is a jealous mistress.’”).
8
To be sure, we made this statement in the context of discussing the identity of persons whose
injuries may give rise to a § 1983 harm. See Claybrook, 199 F.3d at 357. King seeks to recover
for injuries allegedly sustained only by him—not by other persons. But the underlying principle
is similar: King must point to actions by McCree that directly deprived him of due process.
King’s argument, essentially, is that McCree’s non-judicial acts affected McCree’s judicial acts.
But King cannot rely on this argument to escape the bar of judicial immunity.
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judicial, out-of-court acts that may have affected in-court, judicial acts. Personal bias alone of a
judge—when not serving in a judicial function— does not create a due-process violation.9
The district court held that even if King could proceed against Judge McCree under
§ 1983 for Judge McCree’s non-judicial acts, King’s claims would fail because Judge McCree
was not “acting under color of state law.” King, 2013 WL 3878739, at *4. On appeal, King
argues that Judge McCree “acted under color of state law when he used his position as the
presiding judge to satisfy his sexual desire.” Appellant Br. 23. Because Judge McCree’s nonjudicial acts did not deprive King of due process, we need not decide whether Judge McCree was
acting under color of law when engaging in his relationship with Mott. See Stump, 435 U.S. at
369 n.6 (dissenting opinion) (declining to decide whether judge was acting under color of state
within the meaning of § 1983 when judge approved a petition relating to the affairs of a minor).
3
Although King does not discuss it, we are aware of the ongoing civil litigation against a
former Pennsylvania state-court judge in which a district court held the former judge liable for
his non-judicial acts that violated plaintiffs’ civil rights. That case is substantially different. See
Wallace v. Powell, Nos. 3:09-cv-286/0291/0357/0630/0357/2535, 3:10-cv-1405, 2014 WL
70092 (M.D. Pa. Jan. 9, 2014).
Mark Ciavarella, a former Pennsylvania juvenile-court judge, conspired with another
judge and developers to construct and finance a new juvenile-detention facility and then to send
juveniles to that facility, in exchange for kickbacks from the developers. See id. at *4–6.
Between 2003 and 2007, while the conspiracy was ongoing, Ciaverella placed 217 to 330
9

A due-process violation may, however, occur when the biased judge assumes the bench and
presides over an actual case. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“The Due
Process Clause entitles a person to an impartial and disinterested tribunal in both civil and
criminal cases.”).
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juveniles in the new detention facility each year; between 2009 and 2011, after the conspiracy
ended, the county juvenile court placed 31 to 38 juveniles in detention each year. Id. at *6.
Ciavarella received over $2.7 million as part of his role in the conspiracy. Ibid. A federal grand
jury indicted Ciavarella for racketeering, fraud, money laundering, extortion, bribery, and federal
tax violations in connection with the conspiracy. Id. at *7. A federal judge sentenced Ciavarella
to 28 years of imprisonment.
Multiple plaintiffs sought to hold Ciavarella civilly liable for violating their civil rights
and for conspiracy to do so.

Id. at *8.

Even under these truly conscience-shocking,

extraordinary circumstances, the district court recognized that Ciavarella received judicial
immunity for his judicial acts—namely, finding the juveniles delinquent and sentencing them to
the detention facility. Id. at *1. The district court said: “[B]ecause the law requires that judges
no matter how corrupt . . . are immune from suit, former Judge Ciavarella will escape liability for
the vast majority of his conduct in this action.” Ibid.
The court, however, held Ciavarella liable for non-judicial acts that directly harmed the
plaintiffs. See id. at *9–12. These acts included: appearing on television to urge the shutdown of
an old county-run detention facility, aiding the new detention center in staffing the facility with
employees of the old facility, enacting an administrative zero-tolerance policy that resulted in
more juveniles receiving detention, persuading another judge to join the conspiracy, proposing
the construction of the new facility, introducing two of the facility’s developers, failing to
disclose payments, and actively concealing payments. Id. at *9–10. Under a “setting in motion”
theory of causation in which “[a] person ‘subjects’ another to the deprivation of a constitutional
right . . . by setting in motion a series of acts by others which the actor knows or reasonably
should know would cause others to inflict the constitutional injury,” the court held that these

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non-judicial acts directly caused the deprivation of plaintiffs’ rights to an impartial tribunal. Id.
at *11 (emphasis added).
As we see the case, Ciavarella’s non-judicial acts not only “set in motion” the deprivation
of the plaintiffs’ rights but directly deprived the plaintiffs of their rights. Ciavarella was part of a
scheme to deprive juveniles of their liberty who otherwise might not be so deprived.
C
Judge McCree receives judicial immunity under existing Supreme Court law. We note,
however, that whether judges should receive judicial immunity for all judicial acts is a question
not free from doubt. In 1871, in Bradley itself, Justices Davis and Clifford dissented “from the
rule laid down by the majority of the court, that a judge is exempt from liability in a case like the
present, where it is alleged . . . that he acted maliciously and corruptly.” Bradley, 80 U.S. at 357.
In their view, judges who act maliciously should be “subject to suit the same as a private person
would be under like circumstances.” Ibid.
Additionally, in Stump, of the eight Justices to hear the case,10 three dissented from the
decision creating the Court’s two-factor test to determine which acts are “judicial.” See Stump,
435 U.S. at 364–69 (Stewart, Marshall, & Powell, JJ., dissenting). The dissenting Justices
proposed an alternative test relying on the underlying rationale for judicial immunity. See id. at
368. They would have adopted a test that considered, in part, whether a judge’s act occurred in
the course of a case, whether litigants were present, whether the losing party could appeal, and
whether there was even a pretext of principled decision-making. See id. at 368–69. For Justice
Powell, the dispositive factor was whether a judge’s act precluded “any possibility for the

10

Justice Brennan did not sit. See Stump, 435 U.S. at 364.
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vindication of [an individual’s] rights elsewhere in the judicial system.” Id. at 369 (Powell, J.,
dissenting separately).11
Nor has the Court spoken with a single voice in determining what qualifies as a judicial
act even under the accepted Stump test. In Mireles, Justice Stevens dissented, arguing that a
judge’s ordering officers to commit a battery “has no relation to a function normally performed
by a judge” and is, therefore, a non-judicial act. Mireles, 502 U.S. at 14. Justices Scalia and
Thomas have also questioned whether the Court’s “functional” approach to immunity questions
has strayed significantly from the common-law foundation for absolute immunity as it existed in
1871, when § 1983 was enacted. See Kalina v. Fletcher, 522 U.S. 118, 131–35 (1997) (Scalia &
Thomas, JJ., dissenting).
Our task on appeal, though, is limited to applying the law of the “one supreme Court.”
U.S. Const., art. III., § 1.

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.
IV
We AFFIRM the district-court judgment.

11

McCree’s acts would be “judicial” even under the tests proposed by both dissenting opinions
in Stump.
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COLE, Circuit Judge, concurring. What dark days for the Michigan court system,
whose Hall of Justice is inscribed with the words “freedom,” “truth,” “equality,” and perhaps
most importantly—“justice.” Through a deeply troubling pattern of personal and professional
misconduct, as well as a long line of salacious news headlines that followed, Circuit Court Judge
Wade McCree may as well have taken a sandblaster to those inscriptions. 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.
Though constrained by precedent to grant immunity, we do nothing of the sort.
In this case, there is no debate that Judge McCree failed to meet even the most basic
expectations for members of the judiciary. The Michigan Supreme Court recently determined
that he had a sexual affair with Geniene La’Shay Mott, who was a complaining witness in a case
before him; that he regularly engaged in ex parte communications with Mott regarding the status
of the case, even while he was sitting on the bench, which led her to believe that she could
influence his judicial decisions; that he asked Mott to keep their relationship confidential because
of a then-pending Judicial Tenure Commission investigation regarding his previous conduct
toward a female deputy sheriff; that he intentionally used his judicial position to advance his own
interests by holding on to the King case to keep Mott interested in him; and that he failed to
recuse himself from the case as soon as he started the relationship with Mott. In re McCree,
845 N.W.2d 458, 460–62 (Mich. 2014). As a result, the Michigan Supreme Court removed
Judge McCree from office and conditionally suspended him without pay for six years beginning
on January 1, 2015, on the off chance that Wayne County voters might re-elect him to office this
fall. Id. at 476.

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I applaud the Michigan Supreme Court for taking these actions and for doing its level
best to restore some measure of dignity and integrity to the bench that Judge McCree so sullied.
That said, King’s suit seeking to hold Judge McCree personally liable for damages is not the
solution. “Generally, we rely upon the judges further up the judicial hierarchy to review and
correct the rulings of lower courts.” Bright v. Gallia Cnty., Ohio, --- F.3d ---, Nos. 13-3451 &
13-3907, 2014 WL 2457629, at *1 (6th Cir. June 3, 2014). “Only in a few circumstances do we
allow lawsuits against individual judges to proceed, and for good reason.” Id. While Judge
McCree’s misconduct was worthy of removal from office, see McCree, 845 N.W.2d at 476, the
majority opinion properly and persuasively concludes that his misconduct does not fit within one
of the narrow exceptions to absolute judicial immunity.
Absolute judicial immunity remains “strong medicine.” Forrester v. White, 484 U.S.
219, 230 (1988) (internal quotation marks omitted). At times, its application will seem overinclusive—shielding from suits for damages those who clearly have abused their office and
tarnished the reputation of the judiciary. This is the price we all must pay for “the benefit of the
public, whose interest it is that judges should be at liberty to exercise their functions with
independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967)
(internal quotation marks omitted). I take solace knowing that the Michigan Supreme Court has
already stepped in and rendered the best justice possible: removing Judge McCree from office.
Accordingly, I join the majority in affirming the district court’s grant of judicial immunity and
dismissal of King’s suit.

24