Opposition Brief — City of Macedonia v. DePiero

No. 99-522

Dn Che

Snareme Gonrt of the United States

CITY OF MACEDONIA: JOSEPH MIGLIORINI. IN HIS

OFFICIAL CAPACILY AS MAYOR AND JUDGE OF THE

CITY OF MACEDONIA MAYOR'S COURT,

Petitioners.

CHRISTOPHER DEPIERO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENT

MELISSA GRAHAM-HURD AUGUSTIN F. OONET

(Counsel of Record) The Durkin Building

704 Landmark Building 362 South Main Street

7 West Bowery Street Akron O11 44311

Akron, OH 44308-1149 (330) 255-3444

(330) 996-4099

Attorneys for Respondent

N

QUESTIONS PRESENTED FOR REVIEW

Whether a person is denied the Fourth and Fourteenth

Amendment right against issuance of a warrant when

the determination of probable cause and issuance of

such warrant is made by a law enforcement officer.

Whether a person is denied Due Process of Law under

the Fourteenth Amendment to the United States

Constitution by being subjected to adjudication and

sentencing by a judge who is simultaneously a law

enforcement officer.

Whether a person is denied Due Process of Law under

the Fourteenth Amendment to the United States

Constitution by being subjected to adjudication and

sentencing by a Mayor ofa Municipality acting as judge

of a Mayor’s Court when such Mayor is the Chief

Executive Officer responsible for the financial condition

of the municipality or the Chief Law Enforcement

Officer of such municipality.

Whether a Mayor of a Municipality who is granted

final and unfettered discretion by state law and

municipal charter as to whether or not to hold and

preside over a Mayor’s Court is establishing official

policy to render the municipality liable under Monell v.

New York Department of Social Services, 436 U.S. 658

(1978) and its progeny.

PARTIES TO THE PROCEEDING

The parties to this proceeding are:

City of Macedonia; Joseph Migliorini, in his official capacity as

Mayor and Judge of the City of Macedonia Mayor’s Court,

Petitioners/Defendants below,

and

Christopher DePiero,

Respondent/Plaintiff below

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW......... i

PARTIES TO THE PROCEEDING ................ li

TABLE OF CONTENTS......................... ili

TABLE OF AUTHORITIES....................... iv

BRIEF OF RESPONDENT IN OPPOSITION

I 59 68a 5 VEX 5G 66% Boned ve keke l

a es” 2

a 6 ws i dao ede oc 2

CONSTITUTIONAL PROVISIONS AND

cdl AF 0 3, >) a cs 2

SIATEMENT OF THECASE....................... 3

“deities: SOP eames 3

BS. Proceedings Below....................... 7

ARGUMENT

I. A person who is a law enforcement officer is

Constitutionally disqualified per se from sitting

as Judge and performing judicial functions ..... . 10

II. The Petitioners incorrectly characterize the

determination of probable cause and issuance

of a bench warrant as a perfunctory act........... 12

III. The Petitioners incorrectly claim that the

decision of the Court of Appeals is in conflict

with a decision from the Ohio Supreme Court.... 15

IV. __ The Petitioners incorrectly claim that Petitioner

Migliorini was not establishing official policy in

deciding whether to hold and how to structure

lg | ar 20

REASONS FOR DENYING THE WRIT............ 22

a 23

111.

TABLE OF AUTHORITIES

CONSTITUTION

Supremacy Clause, Article Six,

United States Constitution.................. 17

Fourth Amendment, United States Constitution....... 3,7,8

Fourteenth Amendment, United States Constitution. . passim

CASES

Commonwealth of the Northern Mariana

Islands v. Kaipat, 94 F.3d 574 (9" Cir. 1996)... .. 19

Coolidge v. New Hampshire, 403 U.S. 443 (1971). ..... 1]

Dugan v. Ohio, 277 U.S. 61 (1928). ...............4.. 18

Eggar v. City of Livingston, 40 F.3d 312 (9" Cir. 1994),

cert. denied, 515 U.S. 1136 (1995) ............. 1]

Gerstein v. Pugh, 420 U.S. 103 (1975). ............... 11

Gibson vy. Berryhill, 411 U.S. 564 (1973). ............. 17

In re Grand Jury Proceedings Harrisburg

Grand Jury 79-1, 658 F.2d 211 (3 Cir. 1981). ...... 15

In re Removal of Taylor,

172 Ohio St. 394, 176 N.E.2d 214 (1961). .......... 10

iv

Jett v. Dallas Independent School District,

491 U.S. 701 (1989)... 2.2... 1]

Johnson v. United States, 333 U.S. 10 (1948)......000.. 1]

North v. Russell, 427 U.S. 328 See ise eee 1]

Press Enterprises Co. (II) v. Superior Court,

478 U.S. 1 (1986)... 1]

Rose v. Village of Peninsula,

839 F. Supp. 517 (N.D. Ohio | 18

Rose v. Village of Peninsula,

875 F. Supp. 442 (N.D. Ohio ig, ee eee 17,18

Shadwick v. City of T ampa, 407 U.S. 345 ( | 1]

Smith v. Tolley, 960 F. Supp. 977 (E.D. Va. i 13

State of Ohio, ex rel. Ballard y. O ‘Donnell,

50 Ohio St. 3d 182, 553 N.E.2d 650 i. 5

Tumey v. Ohio, 273 U.S. 510 Lc i) Sana eee 18,19

United States v. Bennett, 170 F.3d 632 (6" Cir. 1999). . 13.14

United States v. Doe, 703 F.2d 745 (3" Cir. . <) 13

United States v. Leon, 468 U.S. 897 (1984).... 00 1]

United States vy. Spencer, 684 F.2d 220 (2™ Cir. 1982),

cert. denied, 459 U.S. 1109 ty) a 12,13

Vv

United States v. United States District Court,

E.D. of Mich., 407 U.S. 297 (1972). ............ 11

Village of Covington v. Lyle,

69 Ohio St. 2d 659, 433 N.E.2d 597 (1982)... 16,17,18

Ward v. Village of Monroeville,

4D US. ST GIGTS). oc ccccsavecvades 16,17,18,19,20

STATUTES

28 United States Code §1254(1). 2.0... ccc ccc ccc ccccces 2

42 United States Code §1983.................00.45. 3

Louisiana Revised Statute 33:423.................... 22

Ohio Revised Code § 1905.01..................20.5. 7,9

Obio Revised Code §I9GG.25..« <caccdencucueeaene 6

Ohio Revised Code § 2901.01(A)(11)(c). ...........2.0. 10

Ohio Revised Code §2935.26(B)(4). .............02.. 4

Ohio Revised Code § 2935.26(B)(6). .................. +

COURT RULES

Rule 4(C)(2), Ohio Rules of Criminal Procedure. ....... 4

Rule 4(D)(3), Ohio Rules of Criminal Procedure

vi

i eee

MUNICIPAL CHARTER

Article Ill, § 3.03(4), City of Macedonia Charter... ... 10

OTHER AUTHORITIES CITED

Charles Levendosky, “Federal appeals

courts in crisis— justice is delayed”,

Casper (Wyo.) Star-Tribune, October 10, 1999........ 2

Justice Sandra Day O’Connor, Address to the

Akron and Stark County Bar Associations’

Commemoration of the Bicentennial of the

United States Constitution, June 5, 1987.............. l

Publius, The Federalist, No. 10 (Madison)............. ]

Publius, The Federalist, No. 47 (Madison)

Publius, The Federalist, No. 78 (Hamilton)............. l

Vil

BRIEF IN OPPOSITION OF RESPONDENT

PREFACE

“No man is allowed to be a judge in his own cause, because his

interest would probably bias his judgment, and, probably,

corrupt his integrity."

Publius, The Federalist, No. 10 (Madison)

"The accumulation of all powers, legislative, executive, and

judiciary, in the same hands, whether of one. a few, or many,

and whether hereditary, self-appointed, or elective, may justly

be pronounced the very definition of tyranny."

Publius, The Federalist, No. 47 (Madison)

"*** the general liberty of the people can never be endangered

from [the courts of justice]; I mean so long as the judiciary

remains truly distinct from both the legislative and the

executive. For I agree that ‘there is no liberty if the power of

judging be not separated from the legislative and executive

powers. And it proves, in the last place, that as liberty can have

nothing to fear from the judiciary alone, but would have

everything to fear from its union with either of the other

departments;’"

Publius, The Federalist, No. 78 (Hamilton)

“You honor the constitution *** when you take a constitutional

question to court; *** The Constitution is not and never could

be defined only by judges. ***By spreading the responsibility

for upholding the constitution, our forefathers have enlisted a

legion of defense for our charter.”

Justice Sandra Day O’Connor, Address to the Akron

and Stark County Bar Associations’ Commemoration of the

Bicentennial of the United States Constitution, June 5, 1987.

l

“If judges were to become the stooges of police departments, it

would be the end of freedom as we know it. In those countries

where the judiciary is the servant of the police or the military,

a dictatorship exists or is in the process of arising. Civil rights

and civil liberties are clubbed and shot down in the streets. And

die there.”

Charles Levendosky, “Federal appeals courts in crisis—

justice is delayed”, Casper (Wyo.) Star-Tribune, October 10,

1999.

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. 1-46) is

reported at 180 F.3d 770. The opinions of the District Court

(Pet. App. pp. 47-95) are unreported.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 23, 1999. The Petition for Writ of Certiorari was sent by

U.S. Mail on September 21, 1999. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth Amendment and Due Process Clause of the

Fourteenth Amendment to United States Constitution and Ohio

Revised Code § 1905.01 are involved in this case. (Pet. App.

pp. 96-98, 103-110)

’

STATEMENT OF THE CASE

A. Underlying Facts

This case arises out of a civil action brought by

Respondent, Christopher DePiero, under 42 U.S.C. § 1983

against Petitioners, City of Macedonia and Joseph Migliorini,

in his official capacity as Mayor and Judge of the City of

Macedonia Mayor’s Court and an additional law enforcement

officer who is not the subject of the Petition. In his Civil Rights

Action, Respondent DePiero alleged a violation of his

Constitutional Rights under the Fourth and Fourteenth

Amendments to the United States Constitution. Specifically

relevant to the Petition, Respondent DePiero brought federal

claims against Petitioners alleging he was denied his right to

Due Process of Law under the Fourteenth Amendment to the

United States Constitution by being subjected to adjudication

and sentencing in the City of Macedonia Mayor’s Court by

Petitioner Migliorini because Migliorini, as Mayor of the C ity

of Macedonia, is simultaneously a law enforcement officer and

the Chief Executive Officer responsible for the financial

condition of the municipality. In addition, Respondent DePiero

brought a claim for denial of his rights under the Fourth and

Fourteenth Amendments to the United States Constitution due

to Petitioner Migliorini’s determining probable cause and

issuing an arrest warrant, as Petitioner Migliorini is a law

enforcement officer under State Statute, C ity Charter and Ohio

Supreme Court case law.

On December 4, 1994, a law enforcement officer for the

City of Macedonia placed a parking citation on Respondent

DePiero’s automobile alleging a violation of a codified

ordinance of the City of Macedonia. Petitioner City of

Macedonia and the law enforcement officer would later concede

that Respondent DePiero was not guilty of the charge made in

3

the citation. Ohio Revised Code §2935.26(B)(4) mandates that

all citations contain “An order for the offender to appear at a

stated time and place”. Ohio Revised Code § 2935.26(B)(6)

requires “***notice that the offender is required to do one of the

following and that he may be arrested if he fails to do one of

them: (a) Appear at the time and place stated in the

citation***,”. Rule 4(C)(2) of the Ohio Rules of Criminal

Procedure requires that the summons contain an order for the

defendant “to appear at a stated time and place and inform him

that he may be arrested if he fails to appear at the time and place

stated in the summons”. However, the citation used by

Petitioner City of Macedonia and the law enforcement officer

did not contain any such information as required under Ohio

law. The citation used by Petitioner City of Macedonia

contained no information as to how a defendant may contest the

charges filed against him or her. Because the citation used by

Petitioner City of Macedonia did not contain an order to appear

in Court, nor state when to appear to answer such charge, nor

contain information on how a person may contest the charge,

Respondent DePiero took no action.

Rule 4(D)(3) of the Ohio Rules of Criminal Procedure

provides that in a criminal case, the permitted methods for

service of process for the summons from which a court acquires

personal jurisdiction over a defendant are personal service,

residential service by leaving it at the defendant's usual place of

residence with some person of suitable age and discretion then

residing therein, or by mailing to the defendant’s last known

address by certified mail return receipt requested. On January

12, 1995, the Clerk of the City of Macedonia Mayor's Court

allegedly sent outa summons to Respondent’s home address by

regular U.S. Mail only, allegedly notifying him to appear in the

City of Macedonia Mayor's Court on January 23, 1995.

Respondent DePiero never received such summons.

Because the summons issued was not personally served

on Respondent DePiero, nor served by residential service, nor

by certified mail with return receipt requested, Petitioners City

of Macedonia and Migliorini lacked personal jurisdiction over

Respondent DePiero to proceed with the case in the City of

Macedonia Mayor's Court. Despite his lack of personal

jurisdiction over Respondent DePiero, Petitioner Migliorini,

acting as judge of the City of Macedonia Mayor’s Court, issued

a bench warrant on February 7, 1995 for Respondent DePiero’s

arrest for failure to appear in the City of Macedonia Mayor's

Court.'

On March 6, 1995, a law enforcement officer from

Boston Heights, Ohio stopped Respondent DePiero on an

unrelated traffic stop and informed Respondent that an arrest

warrant had been issued against him. The law enforcement

officer from Boston Heights, Ohio required Respondent

DePiero to drive his vehicle in caravan with the police car to the

police department of Boston Heights where he was held until

unknown law enforcement officers from the City of Macedonia

transported Respondent DePiero in handcuffs to the City of

Macedonia police department. Respondent DePiero was

informed by a law enforcement officer of the City of Macedonia

police department that he either had to post a $250.00 cash

bond or would be kept in the City of Macedonia jail until his

| It is axiomatic that fora court to acquire jurisdiction

there must be a proper service of summons or an entry of

appearance, and a judgment rendered without proper service

or entry of appearance is a nullity and void.*** It is thus

well-settled that a decision rendered by a court without

jurisdiction is unauthorized by law and amounts to usurpation of

judicial power.”

State of Ohio, ex rel. Ballard v. O'Donnell, 50° Ohio St.

3d 182, 183-84, 553 N.E.2d 650, 652 (1990) :

5

arraignment in the City of Macedonia Mayor’s Court.

Respondent DePiero posted a $250.00 cash bond and was

released by the City of Macedonia police department.

Respondent DePiero, unable to persuade anyone from the City

of Macedonia police department to provide him a ride back to

obtain his car, walked more than six miles in a rainstorm to

obtain his vehicle which was left at the Boston Heights police

station.

On April 3, 1995, Respondent appeared in the City of

Macedonia Mayor’s Court and entered a plea of “not guilty” to

both the parking and criminal contempt charge filed against

him. On April 17, 1995, a trial was conducted in the City of

Macedonia Mayor’s Court on the parking violation complaint

and criminal contempt charge wherein Petitioner Migliorini

presided as Judge. Even though both Petitioner City of

Macedonia and the complaining law enforcement officer would

later concede that Respondent was not guilty of the parking

charge filed against him, Petitioner Migliorini found

Respondent guilty of the parking charge filed. Even though the

City of Macedonia Mayor’s Court lacked personal jurisdiction

over Respondent DePiero due to lack of service in conformity

with the Ohio Rules of Criminal Procedure and Ohio Revised

Code and thus lacked even probable cause to find that

Respondent had failed to appear in court, Petitioner Migliorini

nevertheless found Respondent DePiero guilty of criminal

contempt for failing to appear. Petitioner Migliorini imposed

a fine of $50.00 on the parking citation and a $100.00 fine on

the criminal contempt charge. Respondent DePiero timely filed-

a Notice of Appeal to the Cuyahoga Falls Municipal Court with

the Clerk of the City of Macedonia Mayor’s Court. Pursuant to

Ohio Revised Code §1905.25, the timely filing of a notice of

appeal in a Mayor’s Court vacates the conviction and the

proceedings in the Municipal or County Court having

jurisdiction are de novo. On June 20, 1995, upon motion of the

prosecutor for the City of Macedonia, Judge William Pike of

the Cuyahoga Falls Municipal Court dismissed both cases

against Respondent DePiero.

B. Proceedings Below

On November 14, 1995, Respondent DePiero

commenced his civil rights case under 42 U.S.C.§1983 against

Petitioners City of Macedonia and Joseph Migliorini, in his

official capacity as Mayor and Judge of the City of Macedonia

Mayor’s Court. The three counts of his complaint relevant to

this Petition alleged: 1) Denial of Due Process by Petitioner

Migliorini sitting as Judge in the trial of Respondent DePiero’s

case and by Ohio Revised Code § 1905.01 which authorizes a

Mayor of a Municipality to sit as Judge and adjudicate and

sentence in a criminal case although such Mayor is

simultaneously Judge and the Chief Executive Officer

responsible for the financial condition of the municipality and

Chief Law Enforcement Officer responsible for enforcement of

federal, state and municipal laws (Counts | and II); and 2)

Denial of Respondent DePiero’s right under the Fourth and

Fourteenth Amendments by the determination of probable cause

and issuance of an arrest warrant by Petitioner Migliorini

because Migliorini is a law enforcement officer by State Statute,

City Charter and Ohio Supreme Court case law and was

therefore not a neutral and detached judicial officer. (Count III)

On June 19, 1997, the United States District Court in a

Memorandum and Opinion denied Respondent DePiero

summary judgment on Counts | and II of his complaint and sua

sponte dismissed count III. In dismissing Count II] of

Respondent DePiero’s complaint, the trial court held that the

requirement that probable cause and issuance of an arrest

warrant be determined by a judicial officer who is “neutral and

detached” from law enforcement does not apply to the issuance

of a bench warrant and that Petitioner Migliorini was a neutral

and detached judicial officer, although Petitioner Migliorini is,

in accordance with the City Charter, State Law and Ohio

Supreme Court case law, a law enforcement officer.

After additional cross motions for summary judgment

were filed, the trial court in a Memorandum of Opinion and

Order on February 18, 1998 granted Petitioners City of

Macedonia and Migliorini summary judgment on Counts I and

Il of Respondent DePiero’s complaint. In granting summary

judgment to Petitioners, the trial court held that “***the test for

determining whether a judge is neutral and detached for

purposes of due process is not the same test applied under the

Fourth Amendment for determining whether an individual is a

neutral and detached magistrate for purposes of issuing warrants

(i.e., that the person be neutral and detached from law

enforcement)” and that there was no Due Process requirement

of a person being “neutral and detached” from law enforcement

to preside as judge over a trial. In addition, the trial court held

that even if a Mayor had stated from the bench, “this is one of

my guys, he’s a good officer and | have no reason to doubt him”

it would not with certainty deny Due Process to a defendant but

that “this Court would be inclined to conclude that a mayor is

partial to the word of a ticketing officer.” Respondent filed a

timely notice of appeal to the United States Court of Appeals

for the Sixth Circuit.

On June 23, 1999, the United States Court of Appeals

reversed the District Court on the three counts of Respondent

DePiero’s complaint that are relevant to the Petition filed by

City of Macedonia and Migliorini. In reversing the District

Court, the Court of Appeals held that the wide level of

executive powers and administrative authority vested in

Petitioner Migliorini resulted in “two practically and seriously

inconsistent positions, one partisan and the other judicial” and

denied Respondent DePiero Due Process of Law and that Ohio

Revised Code §1905.01, although not unconstitutional on its

face. was violative of Due Process when the Mayor is vested

with wide executive powers. The Court of Appeals also held

that the determination of probable cause and the issuance of an

arrest warrant must be made by a person who is neutral and

detached from law enforcement and that Petitioner Migliorini’s

wide executive powers and administrative responsibilities

precluded him from presiding over Mayor's Court, and thus,

his determination of probable cause and issuance of an arrest

warrant against Respondent DePiero was a nullity. In addition,

the Court of Appeals held that Petitioner Migliorini had final

policymaking authority under State law in deciding whether to

hold and how to structure a mayor’s court and that Petitioner

City of Macedonia was therefore not immune for Petitioner

Migliorini’s deprivation of Respondent DePiero’s right to Due

Process.

ARGUMENT

I. A person who is a law enforcement officer is

Constitutionally disqualified per se from sitting

as Judge and performing judicial functions.

Petitioner Migliorini is a law enforcement officer under the

City of Macedonia Charter’, State Law’, and Ohio Supreme

Court case law*. A person who Is a law enforcement officer is

constitutionally disqualified under the Fourth and Fourteenth

Amendments from performing any judicial functions which

would include the determination of probable case and issuance

of a warrant or presiding over a court and adjudicating and

sentencing in any criminal case.

This Court has consistently held that the guarantee of Due

Process in the Constitution of the United States requires in any

court Where the Constitution of the United States is the

Supreme Law, that a judge or magistrate must be neutral and

detached from law enforcement and that a person who is a law

- “The Mayor shall be the chief executive officer of the

Municipality. He shall: *** 4. Be chief conservator of the peace

and cause all law to be enforced.”

Article Il, § 3.03(4), City of Macedonia Charter

> Law enforcement officer’ means any of the following:

A mayor, inthe mayor's capacity as chief conservator of the

peace within the mayor’s municipal corporation.”

Ohio Revised Code § 2901.01(A)(11)(c)

4+ The mayor, as the chief executive of the city, is

responsible for law and order in the city and for the enforcement

of the city ordinances and all criminal laws of the state and the

United States.”

In re Removal of Taylor, 172 Ohio St. 394, 399, 176 N.E.

2d 214, 217 (1961)

10

enforcement officer, as is Petitioner Migliorini, is not a neutral

and detached judicial officer and is constitutionally disqualified

per se from simultaneously sitting as judge and performing

judicial functions. See, Johnson v. United States, 333 U.S. 10,

14-15 (1948); Coolidge v. New Hampshire, 403 U.S. 443

(1971); United States v. United States District Court, E.D. of

Mich., 407 U.S. 297, 317 (1972)(“The Fourth Amendment does

not contemplate the executive officers of Government as neutral

and disinterested magistrates. Their duty and responsibility are

to enforce the laws, to investigate, and to prosecute.”);

Shadwick v. City of Tampa, 407 U.S. 345, 350

(1972)(*Whatever else neutrality and detachment might entail,

it is clear that they require severance and disengagement from

activities of law enforcement.”); Gerstein v. Pugh, 420 U.S.

103, 117-8 (1975); North v. Russell, 427 U.S. 328, 337

(1976)(“Our concern in prior cases with judicial functions being

performed by nonjudicial officers has also been directed at the

need for independent, neutral, and detached judgment, not at

legal training. See, Coolidge v. New Hampshire***”); United

States vy. Leon, 468 U.S. 897, 917 (1984)(“Judges and

magistrates are not adjuncts to the law enforcement team; as

neutral judicial officers, they have no stake in the outcome of

particular prosecutions.”); Press Enterprises Co. (1D) v.

Superior Court, 478 U.S. 1, 10 (1986)(*Although grand jury

proceedings have traditionally been closed to the public and the

accused, preliminary hearings conducted before neutral and

detached magistrates have been open to the public.” [emphasis

added}).

Petitioner Migliorini’s role as the Chief Law

Enforcement Officer for the City of Macedonia, with the

express duty to see that all laws are enforced, is enough by itself

to constitutionally disqualify him from acting as Judge of the

City of Macedonia Mayor’s Court and from performing any

judicial function.

11

Il. The Petitioners incorrectly characterize the

determination of probable cause and issuance

of a bench warrant as a perfunctory act.

The petitioners’ assertion that the determination of

probable cause and issuance of a bench warrant is a ministerial

function (Pet. pp. 10, 17-21) is incorrect as evidenced not only

by the federal appellate cases cited by Petitioners, but by

additional federal case law. The facts of this case clearly and

conclusively establish that the determination of probable cause

and issuance of a bench warrant is not a perfunctory act.

Petitioners are correct that the issuance of a bench

warrant based upon a defendant's failure to appear does not

require the judge or magistrate to appear before a clerk who is

neutral and detached from law enforcement and obtain such

warrant based upon oath or affirmation. However, this truism

is based upon.the presumption that the person who is acting as

judge or magistrate and issuing the bench warrant for failure to

appear is neutral and detached from law enforcement in the first

place as so indicated by federal case law. Thus, while

Petitioners cite United States v. Spencer, 684 F.2d 220 (2™ Cir.

1982), cert. denied, 459 U.S. 1109 (1983) to claim that the

issuance of a bench warrant is different from an arrest warrant,

the Court in Spencer, supra, made clear that the issuance of a

bench warrant requires a finding of probable cause by a neutral

and detached judge or magistrate.

“He claims that the bench warrant upon which the

search was predicated was issued without a

determination of probable cause*** In this case a New

York City criminal court judge issued the bench warrant

when appellant failed to appear in court in connection

with misdemeanor charges on which he had previously

been arraigned. *** The decision of the New York City

12

criminal court judge to issue a bench warrant

constituted a finding made by a neutral magistrate that

Spencer had failed to appear in a pending criminal

matter. *** Thus, the presence of the police in the

defendant's room was pursuant to a direction made by

a neutral magistrate.” United States v. Spencer, supra,

at 222-3

Similarly, the United States Court of Appeals for the Third

Circuit has held that probable cause for the issuance of a bench

warrant must be made by a “neutral and detached” judicial

officer.

“Pursuant to the indictment, a magistrate issued a bench

warrant that same day***

This “reasonable certainty” requirement both insures

that a sufficient showing of probable cause has been

made to the executing officer. Because the police are

directly “engaged in the often competitive enterprise of

ferreting out crime,” the fourth amendment requires

“that ... inferences be drawn [instead] by a neutral and

detached magistrate...” Johnson v. United States, 333

U.S. 10, 14, 68 S. Ct. 367, 369 92 L.Ed.436 (1948)”

United States v. Doe, 703 F.2d 745, 746-7 3"

Cir. 1983)

See also, Smith v. Tolley, 960 F. Supp. 977, 991 (E.D. Va.

1997) following United States v, Spencer, supra, holding that

bench warrant was valid since determination of probable cause

for failure to appear was made by a neutral magistrate. )

Petitioners citing of United States v. Bennett, 170 F.3d

632 (6" Cir. 1999)(Pet. P. 20) as being irreconcilable with the

Court’s decision in this case is also erroneous. In United States

v. Bennett, supra, the defendant challenged whether the clerk of

13

the county circuit court was sufficiently neutral and detached

from law enforcement. While the Court in United States v.

Bennett, supra, upheld the issuance of a warrant made by a

county circuit court clerk who ran a partisan race to be elected

to her post, belonged to the same political party as the

Commonwealth’s Attorney and had attended some of the same

campaign fundraisers as the Commonwealth’s Attorney, the

Court of Appeals made clear that if such clerk was not

sufficiently neutral and detached from law enforcement, the

warrant would violate the Fourth and Fourteenth Amendments

to the United States Constitution. “By way of clarification,

were Ms. Goad not considered neutral or detached, this would

necessitate a finding that the state search warrant was

constitutionally defective.”. United States v. Bennett, 170 F.3d

632, 637, f. 2 (6" Cir. 1999).

In order to issue a bench warrant for failure to appear,

there must be a finding of probable cause that the defendant not

merely failed to appear, but was served in accordance with the

court rules and statutes which provide the court with personal

jurisdiction over the defendant. If there is a failure of service of

process due to non-compliance by the court with binding state

statutes and court rules as to how service of process may be

made, there can never be probable cause against a person for

failure to appear. While Petitioner Migliorini claims the

issuance of a bench warrant to be a perfunctory act and asks this

Court to sanction his action, he fails to properly reveal to this

Court that he never had personal jurisdiction over Respondent

DePiero at the time he allegedly determined probable cause and

issued the bench warrant for Respondent DePiero’s alleged

failure to appear. The service made by Petitioners City of

Macedonia and Migliorini was invalid under controlling and

binding Ohio law and Ohio Court Rules and Petitioner

14

Migliorini cannot deny nor rebut such fact.’

Petitioner Migliorini asks this Court to hold that the

‘ssuance of a bench warrant is a perfunctory act, although he

lacked personal jurisdiction over Respondent DePiero but

nevertheless proceeded to issue a bench warrant against

Respondent DePiero. Petitioner Migliorini lacked personal

jurisdiction over Respondent DePiero due to lack of service of

process but still found probable cause and issued a bench

warrant and proceeded to act as judge and find Respondent

DePiero guilty of criminal contempt for failure to appear. This

tyrannical act by Petitioner Migliorini of issuing a bench

warrant for failure to appear against Respondent DePiero when

Petitioner Migliorini lacked personal jurisdiction over

Respondent DePiero, and which resulted in his arrest and

detention, should by itself eliminate any scintilla of doubt that

the issuance of a bench warrant is not a perfunctory act and that

a person who is a law enforcement officer can never be given

the authority to sit as judge and determine probable cause and

issue any warrant: bench warrant, arrest warrant or search

warrant.

5 Although Petitioners cite In re Grand Jury Proceedings

Harrisburg Grand Jury 79-1, 658 F.2d 211 (3% Cir. 1981) to claim

that the issuance of an arrest warrant for an individual who has

failed to appear in court after summons was issued by the court

clerk is a perfunctory act akin to a ministerial act, it can be

noted that, unlike the Mayor’s Court which Petitioner Migliorini

presided over, the Court in Jn re Grand Jury, supra, had personal

jurisdiction over the alleged contemnor as a result of valid service

of process and, thus, probable cause to issue a bench warrant

for failure to appear.

“An FBI agent served this second subpoena on McNabb in

Florida, on March 14. *** Thus, McNabb’s simple failure to appear

provided the court with probable cause to issue a bench warrant.”

In re Grand Jury Proceedings, 658 F. 2d at 212, 215

15

Ill. The Petitioners incorrectly claim that the

decision of the Court of Appeals is in conflict

with a decision from the Ohio Supreme Court.

While Petitioners claim that the decision issued by the

Court of Appeals in this case is in conflict with the decision of

the Ohio Supreme Court in Village of Covington v. Lyle, 69

Ohio St. 2d 659, 433 N.E.2d 597 (1982), a close examination

of Village of Covington, supra, reveals that such case defies the

Supremacy Clause of the United States Constitution as it

conflicts with this Court’s decision in Ward y. Village of

Monroeville, 409 U.S. 57 (1972).

In Ward y. Village of Monroeville, supra, this Court

struck down the Ohio Mayor’s Court system involving a Mayor

ofa Village acting as judge and presiding over a contested case.

In Ward. supra, this Court found that:

[t]he Mayor of Monroeville has wide executive powers

and is chief conservator of the peace. He is the

president of the village council, presides at all meetings,

votes in case of tie, accounts annually to the council

respecting finances, fills vacancies in village offices and

has general overall supervision of village affairs.”

Ward, 409 U.S. at 58

Ten years after this Court’s decision in, Ward, supra, the Ohio

Supreme Court issued ‘ts decision regarding the operation of

Mayor’s Courts in Ohio and the constitutional right to Due

Process of Law. In Village of Covington v. Lyle, supra, the

Ohio Supreme Court found that Mayors in Ohio had “diluted

executive authority’, rather than “wide.executive authority” as

this court had so found only ten years earlier. This was despite

the fact that the State statutes covering a Mayor’s executive

powers and responsibilities and accompanying duties for the

financial condition and law enforcement in Ohio had not

changed in the ten years since Ward, supra, as so found by the

16

United States District Court in Rose v. Village of Peninsula,

875 F. Supp. 442 (N.D. Ohio 1995).

“The Ohio statutes that today delineate the expanse of

Mayor Ruoff’s executive authority are the same statutes

as those that defined the village mayor’s authority in

Ward. Mayor Ruoff ’s executive authority is not diluted,

as was the mayor's executive authority in Dugan.” Rose

v. Village of Peninsula, 875 F. Supp. 442, 450 (N.D.

Ohio 1995)

The Ohio Supreme Court in Village of Covington v. Lyle, 69

Ohio St. 2d at 661, 433 N.E.2d at 599 then relied upon and

cited Justice White’s dissenting opinion in Ward, supra and

took the case-by-case approach that the dissent in Ward, supra,

had advocated. By citing a dissenting opinion as the basis for

upholding the Mayor's Court structure in Ohio, the Ohio

Supreme Court issued a decision contrary to the binding

precedent that a decision of this Court has on all state judges.°

In addition, the Ohio Supreme Court in Village of Covington v.

Lyle, 69 Ohio St.2d at 663, 433 N.E.2d at 600, viewed this

Court’s holding in Ward, supra, that Petitioner is entitled to a

neutral and detached judge in the first instance” as obiter dicta,

even though this Court one year after Ward, supra, and nine

years before Village of Covington, supra, reaffirmed such

holding in Gibson v. Berryhill, 411 U.S. 564 (1973).

Village of Covington v. Lyle, supra, is in conflict with

the decision of the Court of Appeals in this case only because

Village of Covington, supra, violates the Supremacy Clause of

Article VI of the United States Constitution. Village of

Covington, supra, has been rejected by the United States

6 “This constitution, and the laws of the United States,

which shall be made in pursuance thereof, shall be the supreme

law of the land; and the judges in every state shall be bound

thereby***”, Article VI, United States Constitution. (emphasis

added)

17

District Court judges in Ohio who have applied it in cases

before such courts. See, Rose v. Village of Peninsula, 839 F.

Supp. 517, 523 (N.D. Ohio 1993)(Bell, J.)(“This court believes

that the dissenters in Covington have the more correct

interpretation of Ward.”); Rose v. Village of Peninsula, 875 F.

Supp. 442, 453 (N.D. Ohio 1995)(O* Malley, J.)(This Court

finds Covington unpersuasive.”) A state supreme court decision

that defies the Supremacy Clause of the United States

Constitution should not serve as the basis for this Court hearing

the Petition of City of Macedonia and Migliorini.

Petitioners also claim that the Court of Appeals decision

in this case conflicts with this Court’s previous decisions in

Tumey vy. Ohio, 273 U.S. 510 (1927); Dugan v. Ohio, 277 U.S.

61 (1928); and Ward vy. Village of Monroeville, 409 U.S. 57

(1972) because the Court found that Petitioner Migliorini’s

broad reach of executive powers and sweeping administrative

responsibilities were enough by themselves to constitutionally

disqualify him from acting as judge of the Mayor’s Court.

However, in so holding, the Court of Appeals directly quoted

this Court's decisions in Tumey, supra, and Ward, supra, that

Petitioner Migliorini was in “two practically and seriously

inconsistent positions, One partisan and the other judicial.”

Ward, 409 U.S. at 60 quoting Tumey, 273 U.S. at 534, by his

extensive executive powers and administrative responsibilities.

The rationale of the Court of Appeals is consistent with this

Court’s prior holdings in 7umey, 273 U.S. at 532 which was

followed in Ward, 409 U.S. at 57 that:

“Every procedure which would offer a possible

temptation to the average man as judge to forget the

burden of proof required to convict the defendant, or

which might lead him not to hold the balance nice,

clear, and true between the state and the accused denies

the latter due process of law.” (emphasis added)

18

In addition, the rationale of the Court of Appeals in this

case. that Petitioner Migliorini’s dual inconsistent powers were

sufficient enough by themselves to deny Respondent DePiero

Due Process, is consistent with that of the Court of Appeals in

Commonwealth of the Northern Mariana Islands v. Kaipat, 94

F.3d 574 (9" Cir. 1996). While denying the constitutional

challenge to the Court structure, the Court of Appeals found:

that this case is closer to Dugan than to Tumey, and that

Kaipat has not shown a violation of his federal

constitutional rights since the judge had no pecuniary

interest in the fine and held no other position that could

reasonably warrant a fear of partisan influence on his

judgment.*** judges have no executive functions, only

judicial functions, judges are not responsible for raising

revenue;* ** CNMI judges are just judges; they have no

other governmental position, and no executive

responsibilities. Their functions are entirely

judicial.*** Unlike the mayor of North College Hill in

Tumey and the mayor of Monroeville in Ward, CNMI

judges have no responsibility for the financial condition

of the Northern Mariana Islands and no official motive

to improve it. *** Nor do CNMI judges hold any other

position that permits them to control municipal or state

policy with respect to establishing courts and enforcing

particular laws***

Commonwealth of Northern Mariana Islands v.

Kaipat, 94 F.3d at 575. 580-81 (emphasis added)

“Every procedure which would offer a possible

temptation to the average man as judge to forget the burden of

proof required to convict the defendant, or which might lead

him not to hold the balance nice, clear. and true between the

state and the accused***”, Tumey, supra. Ward, supra,

(emphasis added) means every time a person occupies “two

practically and seriously inconsistent positions, one partisan and

the other judicial,” Ward, 409 U.S. at 60 quoting Tumey. 273

19

U.S. at 534, there is a denial of Due Process of Law for the

defendant in such judicial proceeding. The decision of the

Court of Appeals in this case in which the Court held that

Petitioner Migliorini was in “two practically and seriously

inconsistent positions, one partisan and the other judicial,” and

thus denied Respondent Due Process of Law is sound and

consistent with this Court’s rationale in Tumey, supra and

Ward, supra.

IV. The Petitioners incorrectly claim that Petitioner

Migliorini was not establishing official policy in

deciding whether to hold and how to structure

the Mayor’s Court.

Petitioners City of Macedonia and Migliorini

acknowledge that “the Mayor has had the discretion to decide

Whether or not to establish a Mayor’s Court in the first

instance.” (Pet. p. 24) However, Petitioners incorrectly claim

that Petitioner Migliorini was not establishing municipal policy

when he decided whether to hold and how to structure the

Mayor's Court.

The Court of Appeals properly followed this Court’s

decision in Jett vy. Dallas Independent School District, 491 U.S.

701 (1989) in:

identif] ying] those officials or governmental bodies who

speak with final policymaking authority for the local

governmental actor concerning the action alleged to

have caused the particular constitutional or statutory

violation at issue.

Jett, 491 U.S. at 737

and correctly found that the Mayor, having unfettered discretion

under State Law as to whether or not to hold and how to

structure a Mayor's Court, “speaks with final policymaking

authority for the City of Macedonia concerning the functions of

20

the Mayor’s Court.” As the Court of Appeals correctly held

that “[b]y virtue of the breadth of his executive powers and

responsibilities, Mayor Migliorini lacked authority to preside

over Mayor’s Court”, and thus denied Respondent DePiero due

process of law, it was correctly decided that Petitioner

Migliorini’s decision to create and hold a Mayor’s Court were

official policymaking decisions for the City of Macedonia.

Although Petitioner Migliorini was granted judicial immunity

for his actions, this does not render the decision as to whether

or not to hold and structure a Mayor’s Court as anything other

than official policymaking for the municipality.

Petitioners also incorrectly claim that the decision of the

Court of Appeals as to municipal liability is in conflict with

Eggar v. City of Livingston, 40 F.3d 312 (9" Cir. 1994), cert.

denied, 515 U.S. 1136 (1995). In Eggar, supra at 314, the

Court stated that the proper focus was “whether under state law

the acts in question were performed under the municipality's or

the state’s authority” and acknowledged that “A city may be

liable for a judge’s acts if those acts are in accordance with city

policy.” Eggar, supra at 315. In denying municipal liability, the

court held that “a municipality cannot be liable for judicial

conduct it lacks the power to require, control, or remedy, even

if that conduct parallels or appears entangled with the desires of

the municipality.” /d. at 316 (emphasis added). As Petitioners

concede that Petitioner Migliorini “has the discretion to decide

whether or nor to establish a Mayor’s court in the first

instance”, they cannot argue that the City of Macedonia through

its Mayor “lacks the power to require, control, or remedy”

judicial conduct in the City of Macedonia Mayor’s Court. As

a result, Eggar supra, is distinguishable from the facts in this

case where Petitioner Migliorini had the final and unfettered

discretion as to whether to create and hold a Mayor’s Court, and

‘ts rationale is consistent with the Court of Appeals decision

holding Petitioner City of Macedonia liable as Petitioner

Migliorini does have the final, unfettered discretion to control

or remedy the constitutional defects in his creating and

presiding over the City of Macedonia Mayor’s Court.

21

REASONS FOR DENYING THE WRIT

This Court should decline jurisdiction as this case

advances none of the objectives of Supreme Court Rule 10.

Petitioners have failed to articulate any compelling reasons for

this Court’s review. Although Petitioners allege that the

decision of the Appellate Court in this case conflicts with a

decision of the Ohio Supreme Court and the Ninth U.S. Circuit

Court, such claim is erroneous, as addressed and explained in

this brief.

At the time of this Court's decision in Ward y. Village

of Monroeville, 409 U.S. 57 (1972), seventeen states, including

Ohio, used Mayor's Courts. With the Court of Appeals

decision in this case, no State judicial system remains in the

nation where a Mayor with wide executive powers as both the

Chief Executive Officer responsible for the financial condition

of the municipality and chief law enforcement officer

responsible for enforcement of federal, state and municipal law,

simultaneously sits and presides over Mayor's Court. As a

result, this case has no national implication, application or

effect.’

The decision of the Court of Appeals was a plainly

correct application of the law and follows the rationale used in

this Court’s establishment of the legal standard that “Every

procedure***” includes every time a person occupies “two

practically and seriously inconsistent positions, one partisan and

the other judicial,” there is a denial of Due Process of Law. The

decision of the Court of Appeals in this case in which the Court

held that Petitioner Migliorini was in “two practically and

seriously inconsistent positions, One partisan and the other

judicial.” and thus denied Respondent Due Process of Law is

sound and consistent with this Court's rationale in 7umey,

supra and Ward, supra.

7 Although Mayor's Courts do still exist in the State of

Louisiana, it is the police chief who is the chief law enforcement

officer for the municipality in those municipalities which have a

mayor's court. (Louisiana Revised Statute 33 § 423)

a2

CONCLUSION

For the reasons given above, the petition should be

denied.

Dated: November 14, 1999.

Respectfully submitted,

MELISSA GRAHAM-HURD AUGUSTIN F. O'NEIL

(Counsel of Record) The Durkin Building

704 Landmark Building 362 South Main Street

7 West Bowery Street Akron, OH 44311

Akron, OH 44308-1149 (330) 253-3444

(330) 996-4099

Attorneys for Respondent

Louisiana Revised Statute 33:423

§ 423 Duties of marshal

A. The marshal shall be the chief of police and shall be ex

officio a constable. He shall have general responsibility for law

enforcement in the municipality, and shall be charged with the

enforcement of all ordinances within the municipality and all

applicable state laws. He shall perform all other duties required

of him by ordinance. In those municipalities governed by the

provisions of this Part, R.S. 33:321 et seq., which have a chief

of police elected by the qualified voters thereof, he shall make

recommendations to the mayor and board of alderman for

appointment of police personnel, for the promotions of officers,

to effect disciplinary action, and for the dismissal of police

personnel. Such nominations or recommendations are to be

made regardless of race, color, disability, as defined in R.S.

§1:2232(11), or creed.

B. The provisions of Subsection A of this Section shall not

be construed to limit or restrict the provisions of R.S. 33.423.3.

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