case with facts as extreme as this the issue in this case is there are no judge state court judge we may create violating my client's due process rights when he became involved in a sexual affair an economic relationship the very intimate relationship with the complaining witness in a criminal case in which my client robert king was defended the u s district court granted a motion for summary j based on absolute immunity traditionally pretty the court there found two reasons one reason for finding dismissing the case was that the court found that the due process violations as to my is that these are not mere allegations or suspicions the facts of the case as far as the transgressions of judge mccree are really not in dispute there's no question about the affair no question about the money he gave me asking the question about the allowed or not really i mean other than other than for interest does that really make a difference in the sense that if you had well pleaded allegations well pleaded allegations of the same thing judge was alleged to have taken a bribe to decide a particular case ok that's about as bad as it gets now in terms of deciding whether there should be absolute immunity doesn't matter whether it's been proved or not because it's a question of whether the case goes forward so obviously taking the money isn't a judicial act anymore than having sex with his model is a judicial act b the immunity extends because what hurts the plaintiff is the actor that you then got by taking the bribe so if those cases are good law how can this not be against judges who are making tough calls this case something to avoid to avoid in effect legitimate litigation because you can't tell the difference in principle correct because if you get to the facts then you have to litigate them or you may be one hundred percent right but we would in fact have to go through some litigation to do it so i guess you know again can tell me the difference between taking money taking money for a decision and taking  be closer to linear that it came to the first circuit decisions my theory is this the fourteenth amendment due process rights the due process clause belongs to the what again it's personal to everybody gets personal to my client when engage in these extrajudicial contacts and one of them is going to argue they were not extrajudicial in nontraditional he violated my client's due process rights to a fair impartial neutral judge every single time there were ten thousand e mails or tax all these communications each of those contacts in extra clearly extrajudicial violated mr king's fourteenth amendment rights of that bedrock principle that you get a neutral fair and unbiased judge and i think the whole premise of your argument is that the violation occurred when the sex acts occurred as opposed to it seems to me that the sex acts occurred but then the consequences of those sex acts the unfair  environment judicial environment that your client faced which seems indisputable here that happened during a judicial proceeding well no where do you what is the authority for saying that your client's words were violated time and would just in shorthand say at the time of the sex acts as opposed to the time when the judge actually then came into contact with your client all of which was in court i gotcha it is just the sex acts the entire relationship circles far relitigation whether or not the client the defendant is in court or out of court my belief is and i think that capper to me speak to this a little bit but it has far different facts and i can see that is that a court has a duty to maintain its fair unbiased views throughout the litigation it has an obligation to do something to compromise that throughout the litigation whether or not those specific a the result of undue bias are necessarily the issue i understand the i understand the emphasis of what you say but how again is that any different from the bribe in the sense that i set up a bribe i have a dinner at a steak house that looks biased the guy hands me the cash at that point i really am bias and i only actually go on the bench a month later or issue an order two months later why is that argument not exactly one hundred percent the same argument you're just making because i think that one the fifth circuit to the extent it's a one time event and this is the scripts the process found would have found i'm sorry  beyond a conversation in a backroom deal that i'd think that if that if this is so if the judge was was getting you know one thousand dollars a month that would make a difference in a one time bribe of i'll tell you maybe this is my philosophy i think that in relationships quite for them or for the money i think that the intimacy of a personal relationship goes beyond simply a monetary gain i think here we're not talking about simply  exchange of cash we're talking about it in a judge in a case that is litigating having an intimate deep emotional relationship with one of the litigants that he hasn't disclosed to anybody else because he knows he's in peril let's try to approach it this way  what would have happened had the exact same facts here occurred this affair starts and your client is doesn't know any of this is going on but right at the very beginning he pays up all the past due child support so nothing after the affair starts the case then ends because he pays up so that the two are it's only two or three actual judicial encounters th at a august so your kid your client's case was pending at the time these improper acts occurred but the case resolved itself with no involvement by the judge himself  for other reasons before the guy ever comes back into court would he still then have a due process claim because they were they were sort of setting up this scheme to to screw your client that's that i would use to yes i do think there is iowa in that case you'd still have you you would still have a nine hundred eighty three claim even though nothing ever happened if nothing if you nothing ever happened that directly impacted your great big if the question  understand is this is that assuming that you had the same situation but there was no impact on the plaintiff that he knew about essentially the same thing is there a violation my answer is yes and my answer is yes because of this because that due process right is that due process right to that to that fair panel that i think this goes back to to me merchants and it's for the camper ten i think that is inviolate and when a judge partakes in the type of conduct the judge be created here there is a violation of my client's fourteenth amendment due process with every single contact regardless of the result i understand i believe that the result may be a sham or not a sham that really doesn't matter for up for what i think matters and this is what i excessive as my creed judge mccree did here that there was any violation regardless of the result his rights whether he knows they've been violated or not have been violated whether he becomes aware of it cognizant of it there's still a due process violation and there should be a section eighty three action that is allowable to go forth on this and what what is his what is his harm in terms of action taken under color of state law because we usually the claim here is well certainly having sex is an under color of state law but to get a nine hundred eighty three remedy you've got to have a harm done under color of state law gutter i would say that there is a per se harm every time as i've tried to articulate it that mr king's to process rights for ballot with every extra judicial contact he did become aware of it down the road but there is the harm in it's like death by a thousand paper cuts each and every act becomes a violation i hear the argument i keep coming back to the bribery cases but do you have any case anywhere that gives some comfort to this notes that says that the violation occur you know i will good morning it may please the court trent collyer forward the crazy there's really no dispute in this case that what judge nick did was wrong and if there were that dispute has been settled by the fact that judge nick korea has now been removed from the bench by the michigan supreme court what the dispute really is is whether there is a private cause of action here and what and it's clear that there is harm but the harm was not to mr king the district court correctly held that the doctrine of judicial immunity barres this claim and even if that rationale were wrong the fact is mr king has not cited any cases to show that he twenty page twenty four plaintive perceives no way to distinguish archie versus lanier so how do you respond archie is very different for three reasons one is the constitutional right at issue in  e was not the right to due process the constitutional right to issue an r c was the right to bodily and take pretty the plainest there were assaulted by a judge so it's not the same right the other problem is that there's really two two main issues so that's the first one the other one is that the plaintiffs in that case were course the women who were actually assaulted and harmed by the judge in here there's kind of a third right crude of course that's not that issues not the first but they make that very distinction in their thing right so i think that's that's the key point the other case that the plaintiff brought up this morning is the lopez vs vendor water case and the difference there and that case goes to the issue of whether judge may create was acting under the collar of law when he was engaging in these personal intimate relationships with ms mine in lopez the judge was acting under color of law because because he was acting as a prosecutor it was not he was acting under color of law but not as a judge right so he wasn't a judge there so the doctrine of judicial did get immunity for that part right there with you rank that up against this case i'd have to say look this is even worse right then it says amanda jail and that's you know but the plaintiff has kind of argued that there's sort of this whipsaw factor where if he's acting under color of law then he's not a judge but if he's not a judge he's not i think one of the color of law lopez shows why that's not really a catch twenty two because you can act the judge can act outside of his or her role as a judge but still act under color of law and that's not what we have here so judge coleman correctly held that every factual issue raised by the plaintiff had one of three problems and either concerned rulings from the in which case it was a judicial act and it was subject to immunity or it wasn't under color of law or didn't affect king every single factual geisha and mr king's complaint has one of these three problems the only problem or shouldn't say it that way one of the concerns that i had about judge cohen's analysis was to say that some of these acts were not taken under color of state law and at this stage of the proceedings that seems to meet at least arguably to be somewhat of a premature decision because i assume one position that would be taken was that he was using his authority instead us as a judge to be sickly coerced her into having sex and continuing this relationship so it seems to me we have to assume that that's correct as at this stage of the litigation so i had trouble with that part of the opinion the question is does that make any difference because even if he was always acting under color of state law it still comes back to whether all of the acts that he was taking most of which were completely inappropriate obviously then actually impacted mr king and if they did was that impact did that impact occurs solely within the judge's function as a judge so right how do you how do you you seem to be relying upon under color state law but do you even need that i don't think we need it i guess today answer one of your question that you raise it was a twelve b six motion so for sure we have to presume that everything pleated is true for purposes here i think that issue in the reason why just comes right is because it goes to the bribery cases that judge boxer raised in those bribery cases when the judge is taking those bryants he's not acting as a judge and you can't over the doctrine of judicial immunity by by glomming that together with what the judge did on the bench so i think one other case that helps address this issue is the case that's one where the court stead the fact so what was at issue in that case is there was a prosecutor who conspired to produce false testimony and false evidence and this that the fact that this prosecutor conspired didn't avoid the an munity to which he was entitle for his testimony in court so the fact that he testified he was clearly amusing there and the fact that he was involved in a conspiracy didn't avoid that doctor did that work the other way that for his conspiracy he wasn't emu simply because it led to the testimony it didn't so there is there are two issues in that case one was that testimony he gave and the other was he i think he fabricated evidence and the court held he was immune for the testimony and for conspiring to testify falsely he was not mune for fabricating evidence outside of court so i think the basic principle behind these cases is that you can avoid these doctrines by adding outside of courts that influence action in court behind all of this and behind but judge cohen how there's the fact that the plaintiff has not produced a single case that would show that this is a valid one thousand nine hundred three claim in the first place what really is at issue here is an allegation of personal bias the claim is that judge be created and act fairly in the case because he was personally biased he was involved with ms ms not but the supreme court from the to me vs ohio case to its most recent capitan case has always said that personal bias does not implicate due process as a constitutional matter of course what he did was wrong but it is not a constitutional issue and of course if the court were going to make this the first case in which this type of personal bias claim became a valid due process claim this is not the proper case for doing it for second because the way you put it out through before those cases was a personal bias does not implicated due process violation is that true even even in a criminal case a person is convicted and he then is appealing his conviction he's not suing the judge he's appealing his conviction and says the judge should have recused himself because it turns out that the prosecutor is his brother or you know some other thing that does create clear personal bias and should have recused under four fifty five and so on it is true and i think the key case on point is this court's decision in riley versus webb that was a case where the judge was the nephew of a prosecutor and the defendant i believe that was a criminal case but i and then in that case the court held that there was no due process issue his actual rulings were wrong the allegation is that he was personally biased and that it looks wrong and of course it looks wrong but this would be the first case as far as i'm aware and as far as plainest briefing has shown to show that there would be a valid nine hundred eighty three due process claim based on personal bias and that's what we have here so for these but i think the court doesn't need to go to whether or not there's a valid due process that mirrored this terry says because this case is so exceptional so strange and i know the captain still speaks about that especially in the context of due process it's the exceptional case the that commands the most attention and this is the exceptional judged i don't think you should read and if any questions here the suggestion that because there there may not have been any damages that therefore that's why we think there was a constitutional violation i don't think anybody's guess that we're trying to drill down to find out if there is a constitutional violation if things that create bias or the appearance of bias occur soley outside the core and then the manifestation of that bias occurs clear isn't it true that the doctrine of absolute judicial immunity means you have absolute immunity even when you're violating people's constitutional rights when you're engaged in traditional acts and it is the nontraditional ac to my clients counsel can drive that but just if i let it down it's just just to be clear that the first part when you say we have constitutional rights absolute immunity doctrine says you're absolutely immune even if it if you are violating rights and i think the law is relatively clear that you have to apply it to effectuate just purposes i don't see exactly how that does that here with the exceptional facts that the court is presented and with the theory that we presented of the due process