About jmdenison

Patent and Trademark Attorney practicing in Chicago, Illinois accepting clients nationwide. We also do trademarks, general intellectual property and business litigation. See our website at www.DenisonLaw.com. Now suspended for 3 years by the Illinois Atty Regn and Disciplinary Commission for blogging about corruption and telling truths that the ARDC wants to cover up. Still a patent agent, tho.

From CS: Federal Court proceeds with wrongful death claim against gship probate judge who allowed abuse of disabled ward.

https://setexasrecord.com/stories/511420179-houston-federal-judge-allows-state-judge-to-be-sued

Looks like Texas is paving the way for Illinois:

 

HOUSTON – Southern District Chief Justice Lee H. Rosenthal recently issued a landmark ruling allowing a wrongful death lawsuit against a Houston probate judge to proceed in an adult guardianship claim.

Sherry Johnston sued Harris County Probate Judge Christine Butts in 2016, alleging that her elderly mother Willie Jo Mills suffered broken bones and a rapid, preventable decline, which contributed to malnutrition and death when Mills was a ward of the State of Texas under guardianship.

A ward is typically a senior citizen experiencing cognitive decline or a younger adult with physical or developmental disabilities.

“Construing the allegations in the light most favorable to Johnston, she has alleged a plausible claim against Judge Butts’s bond under § 1201.003,” Judge Rosenthanl states in her May 15, 2018 Decision.

Issued by Texas Bonding Company and Harris County, Judge Butt’s public official bond is valued at $500,000, according to court records.

Judge Rosenthal’s ruling comes at a time when the adult guardianship system in Texas is under fire, according to a press release.

Bexar County Probate Judge Kelly Cross was admonished this month by the State Commission on Judicial Conduct for labeling a proposed ward in another case “Mr. Maggot” and “Maggot Man” while the Spectrum Institute’s Legal Director Tom Coleman has requested records from Texas Supreme Court Chief Justice Nathan Hecht to determine whether a self evaluation of the state’s guardianship system is underway. On April 18, the Texas Judicial Council’s David Slayton announced to Congress in Washington, D.C. that nearly half of adult guardianship cases in the state are out of compliance with reporting requirements.

“Johnston does not allege that Judge Butts failed to conduct the annual examination,” wrote Judge Rosenthal in her May 15, 2018 Memorandum and Opinion. “But she does allege that Judge Butts ignored requests for emergency relief, including a request made two days before Mills died. The context and timing of these requests are enough to state a claim that Judge Butts did not exercise reasonable diligence to determine whether Dexel and Lott were performing their duties as Mills’s guardian. The claim is limited to the amount of Judge Butts’s bond.”

According to court records, successor guardian Ginger Lott settled with Johnston in April 2018.

Judge Rosenthal dismissed claims against Harris County and guardian ad litem Clarinda Comstock however claims against Judge Butts and David Dexel will continue with a status conference on May 29, 2018 at 10:30a.m.

Section 1201.003 of the Texas Estates Code (TEC) specifically states that a judge is liable on a Judge’s bond to those damaged if damage or loss results to a guardianship or ward because of the gross neglect of the judge to use reasonable diligence in the performance of the judge’s duty under this subchapter.

“It creates a limited waiver of judicial immunity, allowing recovery for losses directly tied to the judge’s duties under the subchapter,” wrote Rosenthal in her decision.

Johnston sued David Dexel for breaches of his fiduciary duty based on allegations that he improperly billed and received attorney’s fees at $300 per hour in many instances instead of billing at a Guardian’s rate of $100 per hour.

According to Judge Rosenthal’s order, claims against Dexel include discontinuing physical therapy for Johnston’s mother, which Johnston alleges made her mother’s muscle problems worse.

“The allegations as to Dexel’s conduct as Mills’ guardian and the allegations as to his conduct in the probate-court proceedings support one claim for breach of fiduciary duty,” Judge Rosenthal’s order states.

 

From MG: Illinois now has standardized Dissolution of Marriage Forms

http://www.illinoiscourts.gov/Forms/approved/divorce/divorce.asp

I think this is a great idea and putting them on the internet is an even better idea.

Now we need standard forms to defend against abusive probate, theft in estates and defense of mortgage foreclosure.

Approved Statewide Forms – Divorce, Child Support, and Maintenance Forms

The following forms have been approved for use by the Supreme Court Commission on Access to Justice and are required to be accepted in all Illinois courts. The forms are ADA accessible, and you can handwrite or type into the PDF form.

You will need Adobe Acrobat or free Adobe Reader XI or higher in order to save completed forms.

Dissolution of Marriage/Civil Union (Divorce with Children)

Form Title
Notes
Suggestions?
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018

Child Support and Maintenance

Form Title
Notes
Suggestions?
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018
Approved
5/2018

Dissolution of Marriage/Civil Union (Divorce No Children)

Illinois Legal Aid Online provides a guided interview that will ask you a series of questions related to this topic and then the program will complete the forms for you. It is free to use.
Form Title
Notes
Suggestions?
Approved
1/2018
Approved
2/2018
Approved
1/2018
Approved
1/2018
Approved
1/2018
Approved
1/2018
Approved
1/2018
Approved
1/2018
Approved
1/2018
Approved
1/2018

 

Financial Affidavit (Family & Divorce Cases)

Illinois Legal Aid Online provides a guided interview that will ask you a series of questions related to this topic and then the program will complete the forms for you. It is free to use.
Form Title
Notes
Suggestions?
Approved 4/2016
Approved 4/2016
Approved 9/2016
Approved 4/2016

 

From SK: Right to take notes and record in Court

https://concurringopinions.com/archives/2014/06/fan-19-first-amendment-news-law-prof-contests-ban-on-note-taking-in-courtroom.html

FAN 19 (First Amendment News) Law Prof. Contests Ban on Note-Taking in Courtroom

This first part of this column is about bans on note-taking in courtrooms, federal and state. To illustrate this point, I want to say a few things about a law professor and the recent hell he went through in his attempt to takes notes in a public courtroom in Cook County, Illinois. Before I get to his story, which is an incredible one, permit me to set the stage with a few bits of history.
* * * * 
There was a time, in my adult lifetime, when spectators in the Supreme Court were barred from taking notes. Yes, note-taking was not permitted unless one was a member of the press corps. One had to sit and listen in silence. In an August 18, 1997 Washington Post op-ed, Professor David M. O’Brien and I put it this way:

“It is an unwritten rule but a rule nonetheless. No ordinary citizen can take notes in the courtroom of the U.S. Supreme Court, unless granted special prior approval by the officer of the Public Information Office. . . . (For an unknown period before 1988, not even members of the Court’s bar could lift a pen.) . . . . No one really really knows when the rule, which is of contemporary vintage, began. Insofar as there is any reason for the rule, it is to protect the ‘decorum factor.’ Violate the rule and the marshals whisk you away.”

“No one, including the ever-attentive press corps, fusses over the rule, one of the few of its kind enforced in any federal or state court in this land. . . . Back in 1988, however, Justice Harry Blackmun complained about the rule in a memo to his colleagues: ‘I wonder if we go too far in our request for decorum.’ Noting came of the complaint.”

We concluded our op-ed this way: “Imagine courtroom audiences . . . taking notes about what they hear and see, as if the Court were a civic classroom. Imagine citizens exercising their First Amendment rights to further their knowledge of [the Supreme Court] and their Constitution. What is amazing is that such things can only be imagined — for now.”

Ban Silently Lifted 

And then the world changed in November 2002. As Tony Mauro reported in a May 5, 2003 article for Legal Times: The rule’s “demise came without fanfare and without public notice, but Court public information officer Kathy Arberg confirmed last week that sometime last November the policy against note-taking was ‘no longer enforced’ by Court Police officers.” And then this: “One of the weblogs that handicaps Court cases, [SCOTUSblog], first noted the change on April 25th after blogger Ted Metzler attended the arguments in Nike v. Kasky. As he and other spectators went through security, Metzler recalls, ‘The officer told us we could bring in a notebook and pen and we all looked at each other.’ Metzler is currently a law clerk at D.C.’s Goldstein & Howe . . . .”

Professor Samuel V. Jones

12 Years Later — Enter Professor Jones (the would-be notetaker)

He doesn’t fit the typical profile of a rabble-rouser. He is a former Marine Sargent, a former U.S. judge advocate, and before that senior counsel in the Commercial Law group at AT&T Corp and later as corporate counsel for Labor and Employment for Blockbuster, Inc. He is also a former Special Advisor to the Chair of the Illinois Judicial Council. And now he is a professor at the John Marshall Law School.

He is Samuel V. Jones. This former Marine is not a man to sit on his rights, especially his First Amendment rights. And so when the deputies in a circuit court ordered his to forsake those rights, he refused.

It all happened on May 8th during the course of bail hearings in a Cook County court presided over by Circuit Judge Laura Sullivan. Apparently, the atmosphere was tense as deputies patrolled the courtroom. At one point, according to Professor Jones, a “deputy approached and impolitely inquired, ‘Are you an attorney’? I identified myself as a professor of law doing research. She responded, ‘There is no note-taking in here.’ I wondered if the deputy knew that ‘the right of the press to access court proceedings is derivative of the public’s right,’ and journalists held no greater right than I did. I informed her that the office of the chief judge had advised me that note-taking is permitted. I asked if I had violated any laws or was disruptive. ‘No,’ she replied, and walked away.”

But that was hardly the end of the matter. Shortly thereafter, two different deputies ordered the professor out of the courtroom and confiscated his notes. “One deputy approached Judge Sullivan,” recalls Professor Jones, “and the proceedings immediately stopped. I was ordered to sit on a bench, told not to move or write, and was surrounded by several deputies.”

Judge Laura Sullivan

Here is how it ended: “After roughly 30 minutes, they released me with my notes. As I left, a group of African-Americans approached, wanting to shake hands. A lady enlightened me, ‘We saw what they did to you and figured you must be important.’ ‘Why,’ I asked. She explained, ‘Because they let you go.’”

Turns out that this is a old story in Cook County courts. According to recent a Chicago Tribune editorial, “in 2004, a different Cook County judge threw a different law professor out of her courtroom for taking notes. [Now retired] Judge Gloria Coco  forbade . . . writing in her courtroom . . . . That time, it ended up in federal court. A judge said the First Amendment protects public access to the courts so that citizens can observe and critique their government, and note-taking helps ensure an informed discussion.” (Here is the case: Goldschmidt v. Coco (2006).)

Thanks to Professor Jones, the problem may now have been solved for good insofar as Chief Judge Timothy Evans has since signed an “administrative order spelling out that note-taking is permitted in court.”

→ For an earlier discussion of the same problem, see Eugene Volokh, “Ban on Note-Taking by Spectators in Court,” Volokh Conspiracy, May 24, 2013

→ The American Judicature Society has conducted a federal court and 50-state court survey of “Note-Taking Laws,” this in connection with juror note-taking.

Third Circuit to Hear Challenge to Delaware’s Voter Guide Rules

The case is Delaware Strong Families v. Biden. In his complaint filed in federal district court for DSW (a 501(c)(3) biblical civic group), attorney David E. Wilks alleges that Delaware’s election laws concerning submission of voter guides are unconstitutional. The group plans to publish a voter guide (see appendix here) 60 days before the upcoming 2014 general election.  DSF’s non-partisan voter guides list all major party candidates for federal and state offices and those candidates’ positions on various issues. The responses are collected from the candidates themselves and, failing a reply, from public sources. In 2014, DSF intends to spend more than $500 to distribute its guide via direct mail and the Internet. DSW argues that Delaware’s election laws (15 Del Code § 8002(10), § 800(27), and § 8031) force it to file unduly burdensome reports with the state and require disclosure of the group’s confidential information, including the identities and home addresses of its contributors. The group maintains that such requirements violate its First and Fourteenth Amendment rights.

The lead defendant is Joseph Biden, III, the state attorney general. The State’s brief in opposition to the motion for a preliminary injunction can be found here.

Lawyers for the Center for Competitive Politics are co-counsel (Allen Dickerson, Esq.) in the case. As the Center sees it, the issue in the case comes down to this: “Should the state have the power to regulate groups that publish nonpartisan voter guides in the same way that it regulates candidate committees, political parties and PACs? . . .  As written, the law appears to require groups to choose between publishing information on candidates or violating the privacy of their supporters who might contribute as little as $9 a month. As a result of the law, Delawareans will find it more difficult to get information about elected officials and candidates.”

→ See here reWSJ video interview the Center’s president David Keating speaking on the case.

Last April, Judge Sue L. Robinson issued a preliminary injunction barring enforcement of the challenged Delaware laws pending resolution of the case. In its earlier Memorandum Opinion, the District Court found the laws unconstitutional, relying on both Supreme Court and Third Circuit precedents.There was no discovery in the case.

Briefs are due in early July. The Third Circuit is in recess for August, so the case is likely to be calendared for September or October.

Woman Said to Lose City Job Offer over Campaign Contribution

Last month Elizabeth Riel was offered the job of Public Affairs and Communications Officer for the City of Santa Monica. But last week city officials rescinded that offer. Why? As her attorney Steven J. Kaplan told a reporter for the Santa Monica Daily Press, her contract was termintaed because of a “legal campaign contribution she made in 2006.”

“‘Ms. Riel contends that the City of Santa Monica violated her First Amendment rights of free speech and association,’ Kaplan said in a statement, ‘by rescinding her employment contract because’ of the contribution.”

At first, City Manager Rod Gould would not comment, noting that it was a personnel matter. But later he said: “‘The duties of the Communications and Public Affairs Officer are different from most other positions in that this person must interact with all members of the City Council, various community leaders, the media, other legislators and serve as the official spokesperson for City government,’ he said. ‘To have the trust of all involved, this person must be free of all political alliances.’”

According to Daily Press reporter David Mark Simpson, Kaplan’s “lawsuit would assert claims for breach of Riel’s First Amendments rights of free speech and association, violation of a state code that,” as Kaplan maintains, “‘prohibits restrictions on the political activities of any municipal employee,’ and claims relating to City Hall’s breach of her employment contract.”

For the Record: ACLU Opposes Udall Constitutional Amendment

In a June 3, 2014 letter to Senators Patrick Leahy and  Charles Grassley, the American Civil Liberties Union formally opposed S.J. Res. 19, a proposed constitutional amendment, sponsored by Sen. Tom Udall (D-NM). The ACLU argued that “would severely limit the First Amendment., lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance—namely encouraging vigorous political dissent and providing voice to the voiceless, which we, of course, support.”

The 8-page letter (signed by Laura Murphy (director of the Washington Legislative Office, and Gabriel Rottman, Legislative Counsel) listed three main objections to the proposal to amend the First Amendment:

  1. The Amendment is Unnecessary and Would be Corrosive to Vigorous Political Debate About the Issues of the Day
  2. The Amendment Could Perversely Harm Freedom of the Press and Would Directly Eviscerate the Freedoms of Speech, Assembly and Petition, and
  3. Amending the Constitution to Limit a Specifically Enumerated Constitutional Right is Unprecedented in the History of the Republic

The letter closed with the following statement:

“For all of these reasons, we strongly urge you to oppose the Udall amendment, and to focus Congress’s attention on enacting effective public financing laws, tightening up the coordination rules, ensuring prosecutors have effective resources to pursue straw donations and other common sense measures for promoting the integrity of our political system.”

“What you must not do is ‘break’ the Constitution by amending the First Amendment.”

[Hat tip to Nadine Strossen]

From FB: How Family court hands over custody to an abuser

https://www.abc10.com/mobile/article/news/local/abc10-originals/the-problem-with-family-court/103-550687204

THE PROBLEM WITH FAMILY COURT

ABC10-ORIGINALS

5 CHAPTERS
Author:Lilia Luciano
Published:12:06 AM PDT May 10, 2018
Updated:11:24 PM PDT May 11, 2018

Family court handles divorces, the division of assets, restraining orders and custody of children.

In most cases, divorcing parents go through the process outside of the courtroom, through mediation.

But high-conflict divorces, when the parties can’t agree, can end up on trial.

From FB: Some Great Law you can use in Motions and Briefs on parental rights

Procedural right to Due Process–parents rights under state kidnap

The right to procedural due process is implicated where a constitutionally protected liberty or property interest is concerned. Board of Regents of St. Colleges v. Roth, 408 US 564 (1972). The crux of procedural due process is the right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 US 67 (1972).

The US Supreme Court has repeatedly held that parents have a fundamental right to make decisions as to the companionship, care, custody and management of their children, which right is a protected liberty interest under the Fourteenth Amendment. Troxel v. Granville, 530 US 57, 65-66 (2000). As a result, there can be no doubt that the Fourteenth amendment is implicated whenever the government seeks to separate a parent from his or her child, and due process principles generally require the right to notice and a hearing before children are separated from their parents. Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir. 1997). The separation does not have to be carried out with force for due process to be implicated; instead, duress or coercion will be sufficient, such as where a social services worker threatens to place the children in foster care if the children are not “voluntarily” placed outside of the home with family or friends. Croft v. Westmoreland County Children & Youth Services, 103 F.3d 1123, 1125 (3rd. Cir. 1997); Dupuy v. Samuels, 462 F.Supp.2d 859 (ND.Ill. 2005), aff’d, 465 F.3d 757 (7th Cir. 2006).

However, where there is reasonable suspicion to believe that a child is in “imminent danger” of serious harm, a pre-deprivation hearing is not required. Hollingsworth, 110 F.3d at 739. In such a case, several courts have determined that a post deprivation hearing must be afforded within 72 hours, even if such a hearing has not been requested by the family. Patterson v. Armstrong County Children and Youth Services, 141 F.Supp.2d 512, 531-39. (WD Pa. 2001). Some courts have permitted slightly longer or required slightly shorter periods depending on the circumstances. Berman v. Young, 291 F.3D 976, 985 (7th Cir. 2002) (concluding that 72 day delay was “rather outrageous” but finding no damages), Jordan v. Jackson, 15 F.3d 333, 351 (4th Circ. 1994)( concluding that 75 hour delay was constitutionally permissible but was “near, if not at, the outer limit of permissible delay between a child’s removal from his home and judicial review. A delay of this length, absent extraordinary circumstances, for example, cf. County of Riverside, 500 U.S. at —-, 111 S.Ct. at 1670 (“bonafide emergency or other extraordinary circumstance” must be shown to justify delay greater than 48 hours), most certainly would be difficult to justify under either the statute or the Constitution (if it could be justified at all) where a removal is effected other than during, or shortly prior to, a weekend, as the Commonwealth has recognized through its statutory scheme. We are not prepared to say, however, that a delay of this length over an ordinary weekend is so offensive to principles of fairness as to require its invalidation under the Constitution.
The state’s removal of a child from his parents indisputably constitutes an interference with a liberty interest of the parents and thus triggers the procedural protections of the Fourteenth Amendment. There are few rights more fundamental in and to our society than those of parents to retain custody over and care for their children, and to rear their children as they deem appropriate. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554-55, 54 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573-74, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); see also Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978). To say that “the
institution of the family is deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) (plurality), as the Supreme Court often has said, see e.g., Michael H. v. Gerald D., 491 U.S. 110, 123-24, 109 S.Ct. 2333, 2341-42, 105 L.Ed.2d 91 (1989) Page 343 (plurality); Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977), borders on understatement. The unitary family is the foundation of
society. Through the intimate relationships of the family, our children are nurtured, tutored in the values and beliefs of our society, and prepared for life. See Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979) (“[P]arents generally ‘have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.’ “) (quoting Pierce, 268 U.S. at 535, 45 S.Ct. at 573). Through these relationships,
our children–indeed, we, as parents–are strengthened, fulfilled and sustained. The bonds between parent and child are, in a word, sacrosanct, and the relationship between parent and child inviolable except for the most compelling reasons. Where the state seeks to interfere with these “essential,” Meyer, 262 U.S. at 399, 43 S.Ct. at 626, or “fundamental,” Santosky, 455 U.S. at 753, 102 S.Ct. at 1394, parental rights, its action must satisfy the procedural strictures of the Due Process Clause. Cf. id.; Lassiter v.
Dep’t of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Due process, however, does not always require prior process. See FDIC v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 1787, 100 L.Ed.2d 265 (1988) (“An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.”); see also United States v. James Daniel Real Property, — U.S. –
—, —-, 114 S.Ct. 492, 501, 126 L.Ed.2d 490 (1993) (hearing may be postponed until after the event in extraordinary situations) (citing Fuentes v. Shevin, 407 U.S. 67, 82, 92 S.Ct. 1983, 1995, 32 L.Ed.2d 556 (1972)). And, as appellants concede, it is well-settled that the requirements of process may be delayed where emergency action is necessary to avert imminent harm to a child, see Weller v. Dep’t of Social Services, 901 F.2d 387, 393 (4th Cir.1990); Doe v. Hennepin County, 858 F.2d 1325, 1329 (8th Cir.1988), cert. denied, 490
U.S. 1108, 109 S.Ct. 3161, 104 L.Ed.2d 1023 (1989); Donald v. Polk County, 836 F.2d 376, 380-81 (7th Cir.1988); Hooks v. Hooks, 771 F.2d 935, 942 (6th Cir.1985); Duchesne v. Sugarman, 566 F.2d 817, 826 (2d Cir.1977), provided that adequate post-deprivation process to ratify the emergency action is promptly accorded. See Weller, 901 F.2d at 396; Hennepin County, 858 F.2d at 1329.

From FB/USA Today: Does Judicial immunity cover sexting and sex with female litigants in chambers? I sure hope not.

https://amp.usatoday.com/amp/13259199

""

https://us-u.openx.net/w/1.0/pd?plm=6&ph=bbb82fae-1d27-4d90-bb10-e24164ecd7bc

Immunity lets bad judges off hook for bad behavior
Wayne County Circuit Judge Wade McCree testifies in Washtenaw Circuit Court in Ann Arbor, Mich, on Tuesday, May 21, 2013. During his misconduct hearing, McCree talked about his affair with Geniene La’Shay Mott who appeared as a witness in a child-support case in his court.
Wayne County Circuit Judge Wade McCree testifies in Washtenaw Circuit Court in Ann Arbor, Mich, on Tuesday, May 21, 2013. During his misconduct hearing, McCree talked about his affair with Geniene La’Shay Mott who appeared as a witness in a child-support case in his court.
AP
TRESA BALDAS | DETROIT FREE PRESS | 7:25 am EDT July 28, 2014
DETROIT — Wade McCree Jr. lost his job, but he won’t lose his shirt.

 

The disgraced judge — who once texted a shirtless photo of himself to a female court bailiff — had an affair with a woman while overseeing her child custody case, had sex with her in his chambers and sexted her from the bench.

But he can’t be sued for money damages over any of that because judges are immune from civil lawsuits — a well-established doctrine that has many in the legal profession demanding change, arguing the McCree case highlights a pervasive problem in the justice system: judges getting away with bad behavior on immunity grounds.  (Note however, the plaintiff was the woman’s boyfriend, and not herself, so that probably made a difference.  It is doubtful that boyfriends and husbands would have standing to sue the judge.  I would hope that the woman would have standing, but in this case it appeared the Judge was favoring her, not demanding she have sex for custody or child support).

“There has to be a point where there is no immunity for judges. When we’re told that certain government officials are off limits — it undermines public confidence in government,” said Connecticut civil rights attorney Norm Pattis, author of “Taking Back the Courts,” a 2011 book that documents flaws in the justice system.

“I don’t think anybody should be above the law, least of all those who administer it,” said Pattis, who called the immunity doctrine “a crazy rule” and the McCree case “outrageous.”

 

“It’s sort of a medieval relic to suggest that the king can do no wrong, so why sue them,” Pattis said.

And McCree did plenty wrong, said Detroit attorney Joel Sklar. He’s preparing to take the McCree case to the U.S. Supreme Court, which has long held that judges are immune from lawsuits for their acts and decisions, even unconstitutional ones. The idea is to help judges stay impartial.

Last Monday, the U.S. 6th Circuit Court of Appeals cited that philosophy in concluding that McCree could not be sued by the father of his mistress’ child, even though his actions were “often reprehensible.”

The ruling baffled Sklar. He represents the father, Robert King, who claims McCree denied him access to a fair and impartial judge by having an affair with Geniene La’Shay Mott when she sued King over child support. King claims McCree’s decisions — such as placing him on a tether — were influenced by his “sexual desires” and that his rulings unfairly favored his mistress.

 

“This conduct is absurd,” Sklar said. “It’s so beyond description. A judge uses his chambers to have sex with a litigant? … If this isn’t too far, what is too far?”

Consistent rulings

Sklar is facing an uphill battle.

Over the last several decades, federal courts nationwide have consistently ruled against plaintiffs who tried to sue judges for civil damages over decisions they made or misconduct issues. The courts granted immunity to judges under the guidance of the U.S. Supreme Court,which established the judicial immunity doctrine in 1967 when it ruled that a Mississippi justice of the peace was immune from a civil rights suit for trying to enforce illegal segregation laws.

The U.S. Supreme Court weighed in on the issue again in 1978, when it blocked a lawsuit against an Indiana judge who had authorized the sterilization of a mentally handicapped 15-year-old girl at her mother’s request. The girl, who didn’t learn she was sterile until she got married — she was told she had an appendectomy — sued on due process grounds, but lost.

The high court essentially has held that anything a judge does in his or her capacity as a judge is covered under the immunity clause. But if, for example, a judge unlawfully fires someone, that’s not covered because because hiring or firing is not considered a judicial activity.
This conduct is absurd. A judge uses his chambers to have sex with a litigant? … If this isn’t too far, what is too far?
DETROIT ATTORNEY JOEL SKLAR
Meanwhile, only a handful of judges nationwide have been successfully sued for civil rights violations — none in Michigan. One such case involved a Tennessee juvenile court judge who was accused of violating the civil rights of three women by sexually assaulting them and threatening to take their kids away if they didn’t give in. In 1996, the 6th Circuit denied him judicial immunity from civil liability.

Those cases are very rare.

Freedom from fear

According to legal experts, it has long been recognized that in order for judges to be able to make impartial decisions, without fear of repercussions, they need to be immune from lawsuits.

“We don’t want judges looking over their shoulder, being worried about being sued by litigants. And we don’t want litigants being able to take judges to court for everything they think they’ve done wrong,” said Michael Crowell, a public law and government professor at the University of North Carolina-Chapel Hill.

But just because you can’t sue judges for money damages doesn’t mean they can get away with bad behavior or an unfair decision, Crowell said. He noted that judges who engage in misconduct can be removed from the bench — as McCree was. The Michigan Supreme Court removed him from the bench in March and suspended him without pay for six years, just in case he is re-elected to office this fall.

 

Crowell said that judges can be criminally prosecuted if their conduct is bad enough. Or a litigant unhappy with a judge’s decision can use the misconduct as grounds for an appeal.

“Judicial immunity protects a judge from being sued … but that doesn’t get the judge off the hook altogether,” Crowell said, noting he’d be “very surprised” if the U.S. Supreme Court takes the McCree case.

Loosening the immunity doctrine would trigger a tsunami of lawsuits against judges, discourage appeals and strip judges of their independent decision-making authority — all of which would hurt the justice system, said Sheldon Nahmod, a constitutional law and civil rights professor at Chicago-Kent College of Law.

“The Supreme Court does not really need to get into this,” he said.

2 Tennessee cases

Judicial immunity is a sore spot for Stuart James, a civil rights lawyer in Chattanooga, Tenn., who is handling two civil suits against state judges — one of whom escaped liability recently. That case involved a judge accused of propositioning a woman for sex in exchange for him issuing a warrant for some individuals she claimed attacked her.

In February, a federal judge dismissed the lawsuit, concluding that even if the judge did ask her for sex, he was protected by the immunity doctrine. The judge, however, lost his job and was indicted on criminal charges. He just can’t be sued for money.

That’s not enough for James. He believes that if a judicial panel has removed someone from the bench for misconduct, the immunity defense shouldn’t hold up anymore.

“If your conduct was so reprehensible that you’re being taken off the job … I think they should be monetarily liable,” James said. “That’s the way our justice system works. Victims should be compensated for what’s been done with them.”

As for the immunity doctrine, he said: “There’s gotta be a change … because unfortunately, there are a lot of bad judges.”

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