# Opposition Brief — City of Macedonia v. DePiero

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0100%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1105

## Text

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. . 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.

Apx. |

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0100%3A4. Public record. Not legal advice.