James F. Radke v. Monroe Cnty., Mich.

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 4, 2021
• Docket: 19-2340
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0448n.06

Nos. 19-2331/2340

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JAMES FRANCES RADKE, ) FILED ) Oct 04, 2021 Plaintiff-Appellant/Cross-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ) ON APPEAL FROM THE MONROE COUNTY, MICHIGAN, JACK ) UNITED STATES DISTRICT VITALE, MICHELLE M. MARCERO, TINA ) COURT FOR THE EASTERN TODD, JESSICA D. CHAFFIN, DAVID ) DISTRICT OF MICHIGAN DELPIOMBO, TOD C. O’LONE, and MITCHELL ) MCFADDEN, ) ) Defendants-Appellees/Cross-Appellants. )

BEFORE: BATCHELDER, WHITE, and BUSH, Circuit Judges

PER CURIAM. “If bad facts make bad law, then ‘unusual facts’ inspire unusual

decisions.” Tharpe v. Sellers, 138 S. Ct. 545, 547 (2018) (Thomas, J., dissenting). In November

2017, Tod O’Lone, a magistrate for the First District Court of Michigan,1 signed a warrant (the

“Warrant”) authorizing the drawing of blood from Appellant James Frances Radke, who was

accused of drunk driving. In that state court criminal proceeding, Radke filed a motion to suppress

the Warrant, alleging that O’Lone lacked authority to issue it, but pled guilty before the court ruled

on the motion.

1 The First District “is a district of the first class,” “has 3 judges,” and “consists [only] of the county of Monroe.” Mich. Comp. Laws § 600.8111. Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

Radke filed this lawsuit in federal court, pursuant to 42 U.S.C. § 1983, naming as

defendants Monroe County (where the First District is located), First District Chief Judge Jack

Vitale, and six First District magistrates, including O’Lone (collectively “Defendants”). Radke

claimed violations of his Fourth and Fourteenth Amendment rights and that O’Lone and the five

other named First District magistrates had each violated the constitutional rights of countless other

persons whom Radke sought to represent as a class.2 The district court dismissed the complaint.

We AFFIRM.

I. Background

On November 12, 2017, Radke crashed his car into a ditch in Monroe County, Michigan.

According to the police report, Radke displayed several signs of intoxication, failed or was unable

to complete three field sobriety tests, and refused a preliminary breath test.3 The responding

sheriff’s deputy sought a search warrant from the First District to draw and analyze blood from

Radke. O’Lone, the magistrate on duty, issued the Warrant.4 The blood test revealed that Radke

had a blood-alcohol content of .222, well over Michigan’s legal limit.

Radke moved to suppress the blood-test results on the basis that the Warrant was invalid

because, Radke claimed, O’Lone was not properly appointed as a magistrate under Michigan

Compiled Law (“MCL”) § 600.8501(1). “However, before [that motion] was decided, Radke

dropped the challenge, pled guilty to the OWI offense, and was sentenced to 210 days in jail.”

Radke v. County of Monroe, No. 19-11483, 2019 WL 5310664, at *1 (E.D. Mich. Oct. 21, 2019).

Radke’s plea allowed him to apply for leave to appeal; he did not.

2 The district court never ruled on Radke’s attempt to certify the class. 3 This case was resolved under Rule 12(b)(6). Some of the facts in this paragraph come from attachments to the defendant’s motion to dismiss, not the complaint itself. We do not rely on these alleged facts to make any legal determinations, however, and set them forth solely to provide relevant introductory background. 4 O’Lone is the only named defendant who participated in Radke’s criminal case. His only involvement was issuing the Warrant.

-2- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

Radke filed the present lawsuit, claiming that the named magistrates had no “authority to

issue search warrants because their appointments . . . were never approved by the Monroe County

Board of Commissioners.” Id. Radke sought “damages on behalf of himself related to the search

and on behalf of a proposed class he seeks to represent.” Id. Specifically, Radke says O’Lone

issued an illegal search warrant, causing an unlawful blood draw that violated his Fourth

Amendment rights. More broadly, he alleges that all the named magistrates took innumerable

actions causing violations of the Fourth Amendment and due process rights of all persons who

came before them. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

The district court dismissed the five magistrates besides O’Lone because “they were not

involved in Radke’s underlying criminal case and Radke fail[ed] to allege they took any other

action related to him.” Id. The court dismissed Radke’s claims against O’Lone, Vitale, and

Monroe County on two grounds. First, it held that res judicata barred the claims because Radke

already had the opportunity, during his criminal case, to challenge O’Lone’s appointment. Id. at

*2. Second, it held that, despite its determination that the magistrates were initially appointed

improperly because the Monroe County Board of Commissioners did not approve their

appointments before they took office, the Board ratified the appointments by providing line-item

funding for them, so O’Lone had been properly appointed under MCL § 600.8501(1) when he

issued the Warrant. Id. at *2–3.

Radke timely appeals, and Defendants cross-appeal to raise additional defenses.

II. Party Presentation Principle

Radke raised three arguments on appeal: that (1) the district court wrongly dismissed his

class claims, (2) the district court improperly applied Michigan law by holding that O’Lone’s

appointment was improper but ratified, and (3) res judicata does not bar his complaint. Defendants

-3- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

responded to Radke’s arguments and raised three additional defenses in their cross-appeal: that

(1) the district court’s interpretation of Michigan’s magistrate-appointment was incorrect and the

statute violates the Michigan Constitution, (2) Heck v. Humphrey, 512 U.S. 477 (1994), bars

Radke’s appeal, and (3) the Rooker-Feldman doctrine bars Radke’s appeal. Under the “party

presentation principle,” we would ordinarily decide this case on these arguments, avoiding

unraised or unpreserved doctrines such as governmental immunity. See United States v. Sineneng-

Smith, 140 S. Ct. 1575, 1579 (2020). But “[t]here are . . . circumstances in which a modest

initiating role for a court is appropriate.” Id. This is one such time.5

On the merits, both sides proceed as if this appeal turns on a binary question of whether

O’Lone was properly appointed. This would be true if Radke had brought an action solely to

challenge O’Lone’s (and the other magistrates’) appointment. But he did not; he brought a broad

§ 1983 case alleging that the magistrates’ improper appointment caused a significant number of

constitutional injuries, including a personal Fourth and Fourteenth Amendment injury. While

much of the argument in this case centers on whether O’Lone had been improperly appointed when

he issued the Warrant, the real question for Radke’s claims is whether O’Lone met the neutral-

magistrate requirement of the Fourth Amendment.

The Supreme Court instructs that, to meet the neutral magistrate requirement, a magistrate

“must be neutral and detached, and he must be capable of determining whether probable cause

exists for the requested arrest or search.” Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972).

Radke conceded at oral argument that O’Lone met both requirements, and nothing in his complaint

5 Because the Rooker-Feldman Doctrine is jurisdictional, however, we note that it does not bar Radke’s appeal. See Hutchinson v. Lauderdale County, 326 F.3d 747, 755 (6th Cir. 2003). That doctrine bars lower federal courts from conducting appellate review of final state-court judgments if the state-court judgment itself is the cause of the injury. VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 402 (6th Cir. 2020). Here, Radke’s injury was caused by the allegedly invalid Warrant that authorized the drawing of his blood. That is independent from the state-court judgment convicting him of driving while intoxicated.

-4- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

or briefing says otherwise. In addition, however, the magistrate must have authority to issue the

warrant under state law; “when a warrant is signed by someone who lacks legal authority necessary

to issue search warrants, the warrant is void ab initio.” United States v. Scott, 260 F.3d 512, 515

(6th Cir. 2001)6; accord United States v. Duval, 742 F.3d 246, 254 (6th Cir. 2014); United States

v. Beals, 698 F.3d 248, 265 (6th Cir. 2012); United States v. Master, 614 F.3d 236, 241 (6th Cir.

2010). In other words, “a warrant issued by a person lacking state law authority violates the Fourth

Amendment.” United States v. Davis, 970 F.3d 650, 665 (6th Cir. 2020). “States have ‘flexibility

to determine who has the authority to issue warrants.’” Id. (quoting Master, 614 F.3d at 240).; see

also Godboldo v. County of Wayne, 686 F. App’x 335, 342 (6th Cir. 2017) (mentioning state-

authority rule in § 1983 case). Because the states have that flexibility, they also have the power

“to delineate the scope of that authority.” Master, 614 F.3d at 241; see also Shadwick, 407 U.S.

at 354.7 So while the parties frame the question as whether O’Lone’s appointment was proper or

improper, the key question is whether O’Lone had state-law authority to issue warrants.

Those questions appear facially identical, but whether they are is more nuanced. Michigan

courts apply a “de facto officer” doctrine that “validate[s] . . . the acts of officials who function

under color of law” even if the officer’s appointment was somehow improper. People v. Davis,

272 N.W.2d 707, 710 (Mich. Ct. App. 1978); see also People v. Townsend, 183 N.W. 177, 178

(Mich. 1921). Therefore, O’Lone might have had state-law authority to issue warrants, as required

6 Scott has been abrogated on other grounds. As we recognized in Master, 641 F.3d at 243, Scott’s statement that the good-faith exception to the exclusionary rule does not apply where a warrant is void for this reason, see Scott, 260 F.3d at 516, is no longer viable in light of subsequent Supreme Court decisions addressing the good-faith exception. This abrogation of Scott’s discussion of the good-faith exception has no bearing here, however, because this case involves a § 1983 civil action in which the exclusionary rule and good-faith exception have no relevance. See Davis v. United States, 564 U.S. 229, 248 n.9 (2011) (recognizing that that plaintiff could proceed in § 1983 suit against municipality “without the obstacle of the good-faith exception”). 7 Although “if a search otherwise complies with the Fourth Amendment, the Court generally holds that it does not matter that the search violated some state requirements,” Davis, 970 F.3d at 665, our circuit applies an exception to this rule “in this context: ‘[s]tate law determines what person is allowed to approve what warrant,’ so a warrant issued by a person lacking state-law authority violates the Fourth Amendment.” Id. (quoting Master, 614 F.3d at 239–41).

-5- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

by our Fourth Amendment jurisprudence, regardless of whether his appointment was proper under

Michigan law.

III. Analysis

We review de novo a Federal Rule of Civil Procedure 12(b)(6) dismissal, accepting as true

all factual allegations contained in the complaint and construing it “liberally in favor of the party

opposing the motion to dismiss.” Scott v. Ambani, 577 F.3d 642, 646 (6th Cir. 2009).

To reiterate, Radke’s personal claims rest only on the proposition that O’Lone was

improperly appointed under MCL § 600.8501, and therefore was not authorized to issue warrants

under Michigan state law. “State law determines what person is allowed to approve what warrant.

If a state has the flexibility to determine who has the authority to issue warrants, it should be

allowed to delineate the scope of that authority.” Master, 614 F.3d at 240. “To hold otherwise

would allow federal courts to completely undermine state determinations of who is an authorized

magistrate.” Id. at 241.

Michigan’s magistrate appointment statute provides:

In all [] counties in districts of the first . . . class, the county board of commissioners shall provide for not less than 1 magistrate if recommended by the judges of the district. Additional magistrates may be provided by the board upon recommendation of the judges. All magistrates provided for shall be appointed by the judges of the district and the appointments shall be subject to approval by the county board of commissioners before a person assumes the duties of the office of magistrate.

MCL § 600.8501(1). Radke’s claim is that the County Board of Commissioners failed to properly

approve O’Lone before he took office. This kind of challenge has only been raised once before.

See United States v. Neering, 194 F. Supp. 2d 620, 625–28 (E.D. Mich. 2002). Radke is the first

plaintiff we are aware of to allege violation of MCL § 600.8501(1) in a case seeking civil relief

for a violation of the Fourth Amendment.

-6- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

In Neering, the magistrate at issue was appointed under a “blanket authority arrangement”

granted to the state court’s chief judge by the county board. Id. at 626. The government argued

that the local practice—under which the chief judge purportedly had authority to appoint

magistrates at his pleasure with no ex-post approval requirement—satisfied statutory

requirements. Id. The district court held that this system ran afoul of the process required by MCL

§ 600.8501(1), which plainly requires that the county board approve magistrate appointments after

they have been made. Id.

Defendants assert a similar but distinct defense of their process; they claim that Monroe

County’s use of budget line-items to pay the magistrates constitutes approval. They also claim

that interpreting the statute to require any other form of county board approval would violate the

Michigan Constitution’s doctrine of separation of powers. Our review reveals no Michigan court

decisions interpreting the county approval requirement of MCL § 600.8501(1).

So, rather than dwell on the propriety of O’Lone’s appointment, we turn to whether O’Lone

was a de facto officer under Michigan law. If he was, we consider whether that status gave him

authority, under Michigan law, to issue the warrant in Radke’s case, so as to satisfy the state-law

component of the Fourth Amendment’s neutral-magistrate requirement.

As we explain hereinafter, we conclude that Michigan would consider O’Lone a de facto

officer at the time he signed the Warrant, that O’Lone thus had sufficient authority to issue the

Warrant, and that he therefore did not violate Radke’s federal constitutional rights. Radke

therefore failed to state a claim upon which relief may be granted. Both his claims and the claims

of his purported class were dismissed properly.

-7- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

A. O’Lone was a de facto officer

Under Michigan’s de facto officer doctrine, Michigan courts “will validate, on grounds of

public policy and prevention of a failure of public justice, the acts of officials who function under

color of law,” even if the official was improperly appointed. Davis, 272 N.W.2d at 710; see also

Ryder v. United States, 515 U.S. 177, 180–81 (1995) (justifying the federal de facto officer doctrine

on similar grounds).8

In Michigan, a de facto officer must (1) be in possession of, but not properly entitled to, a

legal, de jure, office, (2) exercise the duties of that office, and (3) have “a fair color of right or title

to the office, or [have] acted as an officer for such a length of time, and under such circumstances

of reputation or acquiescence by the public and public authorities, as to afford a presumption of

appointment” and “induce people, without inquiry, and relying on the supposition that he is the

officer he assumes to be, to submit to or invoke his action.” Davis, 272 N.W.2d at 710 (citation

omitted); People v. Stackpoole, 375 N.W.2d 419, 423–24 (Mich. Ct. App. 1985) (applying the

Davis test). The Michigan Supreme Court recited the same principles in People v. Matthews, 286

N.W. 675, 678 (Mich. 1939).

Accepting all facts in a light most favorable to Radke, and accepting, arguendo, that

O’Lone’s appointment did not comply with the statutory process prescribed by MCL § 600.8501,

O’Lone satisfied the de facto officer doctrine. O’Lone possessed a properly created and funded

magistrate seat and he exercised the duties of that seat—satisfying the first two elements set forth

in Davis and Matthews. As to the third element, O’Lone “acted as an officer for such a length of

8 The federal doctrine does not directly affect our analysis, because the question we are facing is whether O’Lone had state law authority to issue a warrant. With that said, see SW General, Inc. v. N.L.R.B., 796 F.3d 67, 81–82 (D.C. Cir. 2015), for a thorough discussion of the federal de facto officer doctrine, and the modified doctrine applied by the D.C. Circuit.

-8- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

time, and under such circumstances of reputation or acquiescence by the public and public

authorities, as to afford a presumption of appointment” by the time he issued Radke’s search

warrant in 2017. By that point—according to Radke’s own allegations—O’Lone had been

working as a magistrate for over three years, exercising powers to issue misdemeanor and felony

arrest warrants, issuing search warrants, and setting bonds for persons in custody. And based on

Radke’s complaint, the allegedly defective appointment system—having the Chief Judge appoint

a magistrate, followed by ex-post generalized funding for all magistrates by the Board—had been

in place for at least fifteen years before O’Lone assumed office.

That result does not differ if we apply the test that Radke appears to prefer. His brief refers

to a section of a treatise cited by a 1960 single-Justice dissent in Greyhound Corp. v. Mich. Pub.

Serv. Comm’n, 104 N.W.2d 395, 403 (Mich. 1963) (Carr, J., dissenting in part), which, as recited

in the dissent, reads:

A person is a de facto officer where the duties of the office are exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; (4) under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.

Id. (quoting 43 Am. Jur., pp. 225, 226 [date omitted in original]). Radke references only

the second part of this definition and argues that because O’Lone’s appointment was not “a valid

appointment,” the doctrine does not apply. But Radke’s argument ignores the fact that this

definition sets out four alternative circumstances, including the third one: “. . . the duties of the

office are exercised . . . (3) under color of a known election or appointment, void . . . by reason of

-9- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

some defect or irregularity in its exercise, such . . . defect being unknown to the public . . . .” Id.

And this part of the definition describes exactly what Radke alleges: a known appointment voided

“by reason of some defect or irregularity in its exercise” that is “unknown to the public.” O’Lone

meets this test, for the reasons discussed above. Radke’s own complaint claims that O’Lone served

as a magistrate for about three years before he signed the warrant at issue here; Radke’s allegation

that O’Lone was not a de jure magistrate stems from a defect or irregularity in the exercise of a

known appointment; and Radke makes no allegation that the defect was known to the public. The

definition’s second circumstance—the only one Radke acknowledges—applies only “under color

of a known and valid appointment or election,” which in this case, we are assuming (without

deciding) did not occur. Radke also briefly mentions the federal test by arguing that the flaw in

O’Lone’s appointment was not “merely technical.” But we are applying Michigan’s de-facto

officer doctrine, not the federal one. And the alleged defect in O’Lone’s appointment is at least of

the same type as that in People v. Davis—where an appointing judge lacked any statutory authority

to appoint a special prosecutor. 272 N.W.2d at 710. If the doctrine only applied to “merely

technical” defects in Michigan, it is hard to explain its application in Davis. If anything, the defect

here—if there is one—would be more “technical” than that in Davis, because here we at least know

that there was authority to appoint O’Lone; the only dispute is whether the method of “approval”

sufficed. This brief argument—adverted to only in passing—does not persuade. Therefore, we

conclude that the Michigan Supreme Court would find as we find: that, assuming he was

improperly appointed, O’Lone was, at the time he signed the Warrant, a de facto officer under

Michigan’s de facto-officer doctrine.

-10- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

B. De facto officers under Michigan law satisfy the neutral-magistrate requirement

The next question is whether O’Lone, as a de facto officer, had sufficient state-law

authority to satisfy the Fourth Amendment’s neutral-magistrate requirement.9 Our research

uncovered no caselaw directly on point. The Second Circuit held that an arrest by two unlawfully

appointed police officers did not violate the Fourth Amendment because the officers were covered

by New York’s de facto officer doctrine. Malone v. County of Suffolk, 968 F.2d 1480, 1482–83

(2d Cir. 1992). Closer to home, though further from the facts, our circuit held that a de facto

judge’s procedurally defective appointment did “not render his judicial actions invalid or deprive

him of absolute judicial immunity in connection with the discharge of his judicial duties.” White,

892 F.2d at 462 (applying Tennessee law); see also Lloyd v. Pokorny, No. 2:20-cv-2928, 2020 WL

4455547, at *8 (S.D. Ohio, Aug. 3, 2020) (applying Ohio’s version of de facto doctrine).

Remember, “[s]tates are entitled to some flexibility and leeway in their designation of

magistrates” so long as they meet the constitutional requirements from Shadwick, 407 U.S. at 354.

States have the right to designate both “who has the authority to issue warrants” and “to delineate

the scope of that authority.” Master, 614 F.3d at 241. This power is broad; “it is beyond question

that we determine who is a qualified magistrate by consulting state law.” Id. Michigan’s de facto

officer doctrine ratifies actions taken by public officers who were improperly appointed to their

positions but otherwise acted under color of law. Bd. of Wayne Cnty. Auditors v. Benoit, 20 Mich.

176, 180 (Mich. 1870); Davis, 272 N.W.2d at 710. Radke does not plausibly allege that O’Lone

exceeded this definition.

Radke raises three arguments on this issue. First, he points to an opinion that says that

warrants “signed by someone who lacks the legal authority necessary to issue search warrants [are]

9 We emphasize that Radke concedes that O’Lone met the two Shadwick requirements, so the only issue we are looking at is whether O’Lone was authorized to issue warrants under state law.

-11- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

void ab initio,” Scott, 260 F.3d at 515, and argues that even if O’Lone was a de facto officer, that

would not defeat Radke’s claims.10 This argument raises a potentially close question. As noted,

our guiding question is whether O’Lone possessed adequate authority to issue the warrant. If the

de facto officer doctrine bestows authority, then the answer is yes. But if, instead, it merely serves

as a procedural bar to challenging an official’s lack of authority—i.e., a state procedural rule

limiting the instances in which someone can challenge an official’s lack of authority, rather than a

positive source of authority—then it is questionable that the de facto officer doctrine would suffice.

On the one hand, some Michigan cases invoke the de facto officer doctrine as a reason to

avoid addressing a challenge to an officer’s authority, describing the doctrine as being grounded

in the recognition that, procedurally, it is inappropriate to collaterally challenge an official’s

authority in a lawsuit focused on something else. For example, in People v. Townsend, 183 N.W.

177, 178 (Mich. 1921), a defendant who was arraigned after a drunk-driving accident moved at

trial to quash the information filed against him on the basis that the warrant issued for his arrest

was issued by a magistrate who lacked jurisdiction. Id. The Michigan Supreme Court invoked

the de facto officer doctrine to reject the challenge; but, notably, it seemed to use the doctrine as a

procedural device to avoid deciding if the magistrate had authority—not to decide that the

magistrate actually had authority. See id. (“We are not inclined to stop and examine the question

of whether such magistrate had authority to hold the office he in fact occupied and to which he

had color of authority, but content ourselves with applying the rule that, if the magistrate was a de

10 As discussed supra at [5 n.7], an unrelated portion of Scott—holding that the good-faith exception does not apply when warrants are void for this reason, id. at 517—was abrogated by subsequent Supreme Court decisions discussing the good-faith exception, as recognized in Master, 614 F.3d at 243. This discussion in Master, of course, did not affect Scott’s statement that a warrant “signed by someone who lacks the legal authority necessary to issue search warrants [is] void ab initio,” a proposition that Master itself repeated, as have several other of our published decisions. See Master, 614 F.3d at 241; see also United States v. Duval, 742 F.3d 246, 254 (6th Cir. 2014) (reciting same rule from Scott); United States v. Beals, 698 F.3d 248, 265 (6th Cir. 2012) (same). And because we operate here in the civil context, not the criminal suppression context, the good-faith exception is irrelevant for our purposes.

-12- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

facto officer, his act in this public matter cannot be attacked in this proceeding nor his title to the

office be here passed upon.”).11

On the other hand, some statements from the Michigan Supreme Court indicate that the

doctrine does bestow at least practical authority to act. For example, in the same paragraph of

Townsend, the court added that “it would avail defendant nothing [to challenge the magistrate’s

authority] because there is no difference between the acts of de facto and de jure officers, so far as

the public interests are concerned. . . . Even though a law creating a judicial office be declared

void, the acts of an official thereunder will be upheld[.]” Id.; see also Gildemeister v. Lindsay,

180 N.W. 633, 635 (Mich. 1920) (“Turning to Black on Judgments, vol. 1 § 173, we find the

following: ‘In order that a judgment should be recognized as valid, it is of course necessary that it

should have been rendered by a lawful and duly constituted court . . . . But on principles of public

policy and for the security of rights, it is held that the regular judgments of a de facto court, whose

existence has afterwards been pronounced unconstitutional and void, are nevertheless valid and

conclusive.’”); id. (“‘[T]here can be no question that judgments rendered by and other acts

performed by [a de facto judge] are valid and binding.’” (citation omitted)).

These latter statements persuade us that the Michigan de facto officer doctrine does, as a

practical matter, bestow authority on de facto officials to act. Thus, Radke’s invocation of Scott’s

pronouncement that warrants are void when “signed by someone who lacks the legal authority

necessary to issue” them, 260 F.3d at 515, does not help his cause.

11 See also id. (describing de facto officer doctrine as a “salutary rule that while one is in public office, exercising the authority thereof under color of law, we cannot, except in a direct proceeding to test his right to office, pass upon the question here raised[.]”). The Michigan Court of Appeals, in People v. Davis, took a similar approach. See 272 N.W.2d at 709-10 (holding that special prosecutor’s “incumbency was illegal” because he was illegally appointed, but adding that under the de facto officer doctrine, his “authority . . . in this instance could not be attacked collaterally, but required a proceeding instituted directly for that purpose”).

-13- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

Second, Radke argues that applying the de facto-officer doctrine in this case violates the

Guarantee Clause of the United States Constitution—that is, by applying the de facto-officer

doctrine we are depriving the people of Michigan of their right to legislatively decide how

magistrates are selected. He relies upon the Supreme Court’s comment that “the people of the

States [have the authority] to determine the qualifications of their most important government

officials.” Gregory v. Ashcroft, 501 U.S. 452, 463 (1991). That critique, however, could apply in

any case implicating the de facto officer doctrine—itself a part of Michigan’s law that the state’s

high court has recognized on several occasions. We are not acting, as Radke suggests, as a federal

court coming from on high to “usurp the sovereign prerogatives of the State of Michigan.” Rather,

we are applying Michigan law to determine whether O’Lone had authority under Michigan law to

issue warrants, so that we may properly analyze the federal claims Radke brought in federal court.

Finally, Radke argues that his constitutional claims would be unaffected by a finding that

Radke was a de facto officer. As explained above, he is incorrect.

The federal Constitution leaves to states the power to determine who has the authority to

issue warrants. Master, 614 F.3d at 240. In Michigan, a de facto judicial officer’s “judgments . . .

and other acts . . . are valid and binding.” Gildemeister, at 180 N.W. at 635. O’Lone was a de

facto officer when he issued the Warrant. He thus had authority adequate to satisfy the Fourth

Amendment, and Radke’s individual claim therefore fails.

C. The Warrant satisfied the Fourth Amendment neutral-magistrate requirement

Radke conceded any argument that O’Lone did not meet the two Shadwick requirements;

the only issue before us is whether O’Lone had state law authorization to issue warrants.

If O’Lone’s appointment was proper under MCL § 600.8501(1), he was authorized by Michigan

law to issue warrants. If O’Lone’s appointment was improper under MCL § 600.8501(1), he was

a de facto magistrate when he issued the Warrant, and therefore was authorized by that doctrine of -14- Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.

Michigan law to issue warrants. Either way, O’Lone met the neutral magistrate requirement.

Radke failed to plausibly allege a constitutional violation. His claims were properly dismissed.

D. Other Claims

Because Radke failed to plausibly state an individual claim, we also AFFIRM dismissal of

the defendants brought into the suit solely for alleged wrongs against proposed class members.

See Sprague v. General Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (explaining that “as goes

the claim of the named plaintiff, so go the claims of the class.”).

Because we have dismissed all named and purported plaintiffs, no case or controversy

remains in which we may analyze Defendants’ claims of error. See Deposit Guaranty Nat’l Bank

v. Roper, 445 U.S. 326, 335 (1980). We DISMISS the cross-appeal as moot.

IV. Conclusion

O’Lone was a de facto officer under Michigan law and had state-law authority to issue

warrants when he issued the one involved here. The Fourth Amendment’s neutral-magistrate

requirement was satisfied and there was no constitutional violation.

For the foregoing reasons, we AFFIRM dismissal of Radke’s personal claims and the

claims of his purported class. We DISMISS Defendants’ cross-appeal.

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