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Date: 10-27-2021
Case Style:
James Radke v. Monroe County, MI, et al
Case Number:
Judge: BEFORE: BATCHELDER, WHITE, and BUSH, Circuit Judges
PER CURIAM
Court: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Cincinnati, Ohio- Criminal defense lawyer represented defendant with claiming violations of his Fourth and Fourteenth Amendment rights after being accused of drunk driving and drawing of blood from the Appellant .
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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 2
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-3-
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
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 3
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-4-
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. SinenengSmith, 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 neutralmagistrate 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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 4
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-5-
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 stateauthority 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).
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 5
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-6-
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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 6
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-7-
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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 7
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-8-
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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 8
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-9-
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
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 9
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-10-
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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 10
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-11-
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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 11
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-12-
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.
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 12
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
-13-
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”).
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 13
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
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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
Case: 19-2340 Document: 54-2 Filed: 10/04/2021 Page: 14
Nos. 19-2331/2340, Radke v. Monroe Cnty., Mich.
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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.
Outcome: 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.
Plaintiff's Experts:
Defendant's Experts:
Comments: