Appendix — Shadwick v. Tampa
Supreme Court brief1972
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APPENDIX A
NOT FINAL UNTIL TIME EXPIRES TO FILE.
-REBEARING PRIFTION AND, IF FILED,
. DETERMINED. —.
ny THE SUPREME COURT OF FLORIDA >
| JANUARY TERM, AD. 1971
a Case. No. 40,156. :
‘GERALD SHADWICK,
Appellant, |
. v. * . .
CITY:OF TAMPA,
Appellee.
~ Opinion filed June 16,1971
An appeal from the District Court of Appeal, Sec- ,
ond District |
Malory B. Frier, for Appellant -
William Reece Smith, Jr., City Attorney and.Gerald
H. Bee, Assistant City Attorney, for ame
ADKINS, J.
- . This is an appeal from a decision of the District
Court of Appeal, Second District (Shadwick v. City of
Tampa, 237 So.2d 231), which directly and initially peas:
ed upon the validity of certain statutes. —
The only question involved is’ * whether FLA. | STAT.
(1967) § 168.04, F.S.A., and §§ 495 and 160.1 of the Char-.
ter of the City of Tampa (the provisions of these stat-
utes are included in the District Court of Appeal opin-
_ ion, 237 So.2d 231, 222) are unconstitutional insofar as
they purport to vest in the city clerk the power to issue.
arrest warrants, and impliedly therewith, the power to
determine the question of probable cause for arrest. The
Florida Constitution provides that special laws or gen-
alateinail
A-2
seal laws of local application may te enacted by the
_ ' Legislature pertaining to the duties of municipal of-
ficers. FLA.CONST. art III, § 11(a) (1) (1968). Similar.
provisions’ were included in the earlier constitution. FLA. °
CONST., art. III § 20 (1885). Pursuant to this autharity, © *
the Legislature enacted special laws pertaining to the’.
duties ‘of, clerks and deputy clerks of the _municipal
courts in the City..ef Tanffia, aid” incorporated. in the
-- Charter of the City of Tampa provisions authorizing
the clerk of the municipal court to issue warrants for’
arrest. The powers granted the. clerk of the municipal a
court, or his deputies, in the special law were not in-
compatible or in conflict with the general laws of the ~
State of Florida..See FLA. STAT. § 168.04 (1967); Headley |
v. State, 166 So.2d 479 (Fla.App.3d, 1964). -
Appellant says the clerk or deputy clerk of the .
municipal court is. not a judicial officer such as could
perform the duties of determining probable cause or
act as a neutral or detached magistrate in the exercise
of a judicial discretion to determine the existence of
probable cause. However, the detrmination of probable
-cause for-an arrest need not be confined to strictly judi-
cial officers, as such a function #% only quasi-judicial.
Ocampo v. U. &., 234 US. 91, 34 S.Ct. 712, 58 L.Ed. 1231
(1914). : .
a _Therefore, the statutes 1s authorizing-a clerk or dep-
uty clerk of-a municipal court to issue arrest warrants
are not an unconstitutional exercise or delegation of
“judicial power” and conform to the requirement: of the
Fourth and Fourteenth-Amendments to the Constitution
. of the United States..See Florida Motor Lines v. Rail-
‘ road Commissioners, 100 Fla. 538, 129 So. 876 (1930).
'. The general law is stated in 22 C_J.S., Criminal Law,
, ‘3 318, pp. 820, 821, as: follows:
“When so provided ne statute, the authority. to is- -
sue warrants may be vested in officers whose other
| duties are purely ministerial, such as clerks, * * * .”
and further in 15 Am.Jur.2d, Clerks of ¢ Court § 22, pp.
528, 529:
ay ee
_. “A clerk of court may not exercise judicial power"
_ except by constitutional or legislative provision,
_ and then only in accordance with the strict lan-
_ Suage of the provision. * * * a os
“Certain acts, although partially judicial in nat- -
| ure, may be performed by thé clerk of the court. A
“~~ —~—~—e familiar example is the power to issue ‘warrants of
arrest.” | (Emphasis supplied ) rr a
yen " g .*,
~ : Arrest warrant procedure requires that inferences ;
from facts which lead to the complaint “be drawn by a
neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive enter-
prise of ferreting out crime.” Giordenello v. U.S., 357
U.S. 480,-78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958). The
_ word “magistrate” has been given a*broad meaning.
officer. See J. D. Compton v. State of Alabama, 214 U.S.
1, 29 S.Ct. 605, 607, 53 L.Ed. 885 (1909) ; State ex, ret:
Miller-v. McLeod, 142 Fla, 254, 194 So. 628, 630 (1940).
The clerk and deputy clerks of the mu icipal court -of
the City of Tampa are neutral and detached “magis-_
The opinion and decision of the District Court of
Appeal is approved and. affirmed.
ROBERTS, C. J., ERVIN, CARLTON, McCAIN, DEK.
' . LE and DREW, (Retired), JJ., concur 4 2
Ak
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
_ SECOND DISTRICT
| JULY TERM, A. D. 1970
_ CASE NO. 70-62,
GERALD SHADWICK,
: —
erry or "TAMPA, ' eh, > ge
~~", Appellee. a 4
Opinion filed June:24, 1970 ae. fe
- Appeal from the Circuit Court
for Hillsborough County —
Neil C. McMullen, Judge. .
Malory B. Frier, Tampa, for Appellant.
Gerald H. Bee, Assistant City Attorney, ‘Tampa,
' for Appellee. -
| HOBSON, CHIEF JUDGE.
Appellant was charged in — Manicipal Court
of careless driving while his ability to drive was impair-
ed. He had been arrested under a warrant. issued in the
name of the city clerk of the City of Tampa, and signed |
by a deputy clerk. Appellant moved to quash the war-
rant in the municipal court on the grounds that the is- ©
suance of a warrant by a city clerk was the exercise of
a judicial function by a non-judicial officer, and there-
- fore a violation of the separation of powers. under Fla. —
Const. Art. II, § 3 (1968), and Fla. Const. Art, V,§1 - me
(1968) which vests the judicial power in the courts of ~~.
the state. Appellant’s, motion was denied, and he peti- ( zs,
tioned the Circuit Court of Hillsborough County for 4
writ of common law certiorari to review the denial ‘of ee
motion to quash the warrant. The petition was denied
by the <aeeant Court, and the appellant — to the
wi og
ent ei ettenen att” ee
AS ©
2.2
Supreme Court of Florida. The Supreme Court found the
matter to be within the jurisdiction ofthis court and
transferred the case here! OA os
___ Appellant contends that Fla.Stat§ 168.04 (1967). - :
and Sections 495° and 160.1¢ of the charter of the City ..
- of Tampa are unconstitutional insofar as they purport
-
‘ to vest in the city clerk the power to issue arrest war-
_Tants, and impliedly therewith, the power to determine |
the question of probable cause for the arrest. These and
like provisions have been dealt with before by. Florida
courts,® but the Se ak of the procedure has
not been raised in this state.’ Teena tat |
\
Appellant ‘contends that the decision as to whether
a warrant should issue is a judicial function and that
because the legislature may not exercise judicial func-
tions, it may not delegate judicial functions by statute .
1 PAR. 2.1(a(5) (a). ,
? FLA. Stat. § 163.04 (1967): “CLERK AND MARSHAL May TAKE ©
: — _ -. AFFIDAVITS AND IssUE WARRANT.
“The clerk may administer.an oath to and take affivadit of
any person charging another with an offense by. breach of an
ordinance, and may issue a warrent to the marshal to have
complained against.” .
"3 Laws or FLA. 1903, Ch. 5363, S17:
“The chief of police, or any policeman of the city of Tampa, -
may arrest, without warrant, any person violating any of the
ordinances of said city, committed in the presence of guch
officer, and when knowledge of the violation of any ordin4nce
of said city shall come to said chief of police or policeman,
not committed in his presence, ‘he shall at once make affidavit,
fore the judge or clerk of the municipal court, against the °
Person charged with such violation, whereupon said judge or
cierk shail issue a warrant for the arrest of such person.”
' # Laws oF FLA. 1961, Ch. 61-2915, §1:
* United States v. Melvin, 258 F.Supp. 252 (S.D. Fla, 1966): Head. -
ley v. State ex rel. Bethune, 166 So.2d 479 (Fla, App. 3d_1964). |
a
State v. Paulick, 277 Minn. 140,151 N.W.2d
tb » non-judicial officers.- We disagree, and hold that the
decision whether to issue a warrant is, at most, quais-
judicial and not within the “judicial power” reserved:
by the constitution to the judicial branch. See generally a
Florida Motor Lines v. Railroad- Commissioners, 100 ©
Fla. 538, 129° So. 876 (1930)—#.g-Kreulhaus v.-City-of—
Birmingham, 164 Ala. 623, 51 So. 297: (1909); State
v. Ruotolo, 52 .N.J.° 508,9247 A.2d 1 (3968) 7 State v.
‘Thompson, 151 S.E.2d 870 (W.Va. 1966) ; cf. State v.
" Furmage, 250 N.C. 616, 109 S.E.2g 563 (1956 iF Contra,
1 (1967).
State v. Paulick, supra, relied upon heavily by ap-..
llant, dealt with the very question,before this court :
/ in ‘the .case sub judice. There, the Supreme Court of
- Minnesota held ‘that. a statute which vested authority
to issue arrest warrants in clerks of municipal.courts ,
was unconstitutional as a violation of.the separation. .
of powers. Although the ¢court’s, opinion is scholarly and
appealing, we chose to follow the reasoning of the Su-
_preme Court of New Jersey in State v. Ruoloto, supra.
aay court stated at pages 3-5:
“with regard re the i issuance of a saree, there
. is no doubt that if a determination Of ‘probable
cause’ is to have any meaning, it must be made by «0
a neutral afd detached court official who: is im-
‘mune ffm ‘the often competitive enterprise of fer-
reting out crime.’ Johnson v. United States, supra,
333: U.S. at 14, 68 S.Ct. at 369, 92 L.Ed. at 440.” :
. ‘ . ‘
* . * ee
P
“A finding of neutrality, Riou, goes sly part
_of the way to justify the challenged procedure. Be-:
fore a deputy clerk is constitutionally permitted to
determine whether the facts as alleged by the com-
plainant constitute probable cause that an offense
has been committed and that the defendant is the .
culprit, we must ask: Is the deputy clerk er.
to exercise a cams d judgment?” » :
° ‘
*. * * "2 *
. .
pat HM ° ey. ‘ ; wigs
oe ; Lhd else ie are . ST
. A-T ait ie nets
° Paget
" “[Wle béfieve that background in the law, al-
though desirable, is. not a ‘requirement imposed ‘by
the Constitution on a determinatign of probable —
cause. After’ all, probable case [sic] is a. standard
which is designed to be applied by laymen. A po-
liceman may make an arrest without a warrant
where there is probable cause, i.e., where there are -
: a _ ,, facets which would lead ‘a man of reasonable caution’ -
‘>
to believe a crithe has been or is being committed.”
9 4 “2 Ms
o * * » 2
“Throughout the history of this country laymen
have served in various judicial capacities, and par: .
ticularly in order to determine ‘the existence of
probable cause. United. States Commissiorrers, ap-
%
pointed by the United States District Courts; have
. jurors and petit jurors apply sundry rules of law to.-° :
‘factual complexes; our jury: system rests upon thé —
the city -clerk is unalterably aligned with the forces of _
-*
“— s
yp :
we",
, utes constitutional and the order appealed is
/YILES and McNULTY} IS, CONCUR.
.f 7 : AS
law enforcement® and dunetuie he may fulfill the-role of
the. neutral person which the constitution requires to. :
“be placed between the Police and the public.
Appellant argues. that the city, by allowing a
clerk to issue arrest warrants, was providing nothing
more than q.“rubher.stamp” for the police. If this were -_
.. the case, it would bé clearly unacceptable. However, there
is oe in the record to substantiate this allegation.
‘For the reasons stated, we hold the challenged stat-
o
y .
/ AF E IRMED.
\ i,
: \ ; ~
oN < |
aN
a, - ‘N _
aN
ON a
a’
7 i ot
i |
; a
o" . z. : ° rl ‘ .
6 Re. State v. ‘iaathows, 270 N.C. 35,. 153 S S.E. 2a 791 (1967) ; State
| « rel. White v. ‘Simson, 28 Wis 2d 590, 137 N.W. 2d 391 (1985).
in si
ho
APPENDIX B
_ Florida Statute (1967), Section 168.04, F:S.A.
: The clerk may administer an oath toggnd take
_ affidavit of any person. charging anothe? with an
offense by breach of an ordinance, and may issue
a warrant to the marshal to have the accused per-.
,son arrested and brought before the. mayor ‘for
_trial. The marshal may, in the absence of the mayor
and clerk from the police station, administer oaths
to affidavits of complaint and issué warrants for |
the arrest of persons complained against. '
Section. 495, Charter of the City of Tampa, wneaea
by: Laws of Fla. 1903, Ch. 5363, Section 17. |
The Chief of Police, or any policeman of the City ©
of Tampa, may arrest, without warrant, any per-
son violating any of the ordinances of said city,
committed in the presence of such officer, and when
knowledge of the violation of any ordinance of said
. city shall come to said chief of police or policeman,
not committed in his presence, he shall at once
make affidavit, before the judge or clerk of the
‘municipal cdurt, against the person charged with
. such violation, whereupon said judge or clerk shall
issue a warrant for the arrest of such person.
. Section 160.1, Charter of the City of Tampa, énacted *
_ by Laws of Fla. 1961, Ch. 61-2915, Section 1.
The city clerk of the City of Tampa, with the
_ approval of .the mayor, may appoint one or more
deputies, such députy or deputies to be selected
from the- appproved classified list of the city civil
_ Service, and to-have and exercise the same powers-.
_» as the. city clerk himself; including but’ not limited
to the.issuance of warrants. Oné or more of such
Adeputies may be — as clerks of the muni-
cipal court.
A10 : _ | *
APPENDIX C -
IN. THE MUNICIPAL COURT OF THE
CITY OF TAMPA, FLORIDA
STATE OF FLORIDA . | 3
COUNTY -OF HILLSBOROUGH (. AFFIDAVIT .
To the Chief of Police or any Policeman: of the City
of Tampa, whereas, Cpl. W. H. Larder, City of Tampa
Police Department, Tampa, Florida has this day made
complaint before me that on the 8th day of February,
A:D. 1969, in the City aforesaid, one Gerald Shadwick,
14912 Pine Crest, Tampa, Florida did unlawfully DRIVE
- A VEHICLE IN A CARELESS MANNER IN DISRE-
GARD FOR THE SAFETY. OF PERSONS OB PROP-
_ ERTY WHILE HIS ABILITY TO DRIVE A MOTOR
VEHICLE IS IMPAIRED BY ALCOHOL OR DRUG.
36-89B City of Tampa Code. :
W.'H. LARDER GERALD SHADWICK
‘ Affiant ., 7 Defendant
Sworn to and subscribed before me this 6th day. of.
March, A.D. 1969.°:
W.. L. STARK, City Clerk
By Deputy NELSON P. GULLO
No. 64028 City: Clerk of the City of. Tampe
STATE OF FLORIDA ;
COUNTY OF HILLSBOROUGH
This is to certify that the above and Sregcine is a
true and correct copy of the Affidavit for Warrant in . .
. the Municipal Court, in the case of the City of Tampa
vs. Gerald Shadwick as the same appears of record in.
Municipal Court Docket No. F156951, Warrant No.64028,.
Record of the a Court of the | of Tampa,
. Florida.
4
Dated this 14th day of April, A.D. 1969.
. : W. L. Stark; City Clerk
By ROBERT D. CARDEN, } Re Os
A-11 |
IN THE MUNICIPAL COURT OF THE
CITY OF TAMPA, FLORIDA
SPATE OF FLORIDA d a
COUNTY OF HILLSBOROUGH { WARRANT
“To the Chief of Police or any Policeman of the City
of Tampa, whereas, Cpl. W. .H. Larder, City of Tampa .
-Police Department, Tampa, Florida has this day made.
complaint before me that on the 8th day of February,
A.D. 1969; in the City aforesaid, one Gerald Shadwick, -
14912 Pine.Crest, Tampa, Florida did unlawfully DRIVE .
- A VEHICLE IN A CARELESS MANNER IN DISRE-
GARD FOR THE SAFETY OF PERSONS OR: PROP- .
ERTY WHILE HIS ABILITY TO DRIVE A MOTOR
VEHICLE IS IMPAIRED BY ALCOHOL OR A DRUG,
36-89B: City of Tampa Code.
These are therefore to command you to arrest the
body of Gerald Shadwick, the said defendant, and ‘bring
him before the Judge of the Municipal Court of the City
of Tampa, Florida,.to be dealt with according to law. ~_
__~ Given under my hand and seal of said City this 6th
day . March, A -D. 1969. |
W.. L. STARK, City Clerk
By Deputy NELSON P. GULLO:
' City Clerk of the City, of Tampa
No. 64028
STATE OF FLORIDA
.. COUNTY OF HILLSBOROUGH
This is to certify that the above and foregoing is a
true and correct copy of the Warrant in the Municipal .
Court, in the case of the City of Tampa vs.. Gerald
Shadwick, as the same appears of record in Municipal_
Court Dockket No. F156951, Warrant No. 64028, Record
of the Municipal Court of the City of Tampa, Florida.
» Dated this 18th day of April, 1969. —
W. L. Starx, City Clerk
_ Rogert D. CARDEN, D. C
A-12
IN THE MUNICIPAL COURT OF THE -
CITY OF TAMPA; STATE OF FLORIDA -
C
F15695i
CITY OF TAMPA, Pjaintiff,
| | vB.
GERALD SHADWICK, Defendant.
MOTION TO-QUASH WARRANT _
COMES NOW tthe defendant, GERALD SHAD-:
WICK, by his undersigned attorney and moves the Court:
to. quash the warrant heretofore issued out of this Court
on the 6th day of March, 1969, and the docket entry
~ made pursuant thereto upon the following grounds and.
’ each of them:
1. Said warrant of arrest was issued by : a non-
judicial officer, to wit, W. L. Stark, City Clerk, contrary
to the express provisions contained in Section’ III of
Article II of the Florida Constitution of 1968. -
2. Although the revised charter of the City of
Tampa of 1927, in Section 22 thereof, now appearing in:
‘Section 159. of Chapter IX of the compiled City Charter
of the City of Tampa purports to make the City Clerk © |
of the City of Tampa ex officio Clerk of the Municipal
Court, said Charter did not authorize the City Clerk of
the City of Tampa, a non-judicial officer, to exercise any
judicial duties, and specifically,’ did not. authorize said
Clerk to issue warrants for arrests, said powers being
reserved. to the Municipal Judge of the City of. Tampa |
' in Section 21 of the revised Charter of 1927; now con-
tained in Section 410 of the comes Charter of the City
of Tampa.. a
3. Although Chapter 61-2915, Special ‘Acts of 1961,
of the laws of Florida, in Section I thereof, now con-
‘tained in: Section 160.1 of the compiled Charter of the
City of Tampa purports: to authorize the City Clerk of
the City of Tampa, with the approval of the Mayor, to
z ee e e a
' warrants to collect taxes
. ’ : : a A-13
appoint one or more deputies te ave: and exercise the
same powers as the City Clerk himself, including but-
_not limitd to the issuance of ‘warrants, said Special Act
did not specify whether said warrants which said deputy
clerks were authorized to issue, were warrants for ar-
rest, warrants for the payments of moneys,.or distress
that in any event, the City
t ever having possessed
of persons under the
Clerk for the City of pa
powers to issue warrants for
| _ City of Tampa Chartér, none of hix deputies can possess _
any powers which the City Clerk
possess.
himself, does not
| 4. That in arly ye insofar as Sé
for the City of Tampa, to issue warrants for arrest, the
same is invalid, unconstitutional and void by attempting »
to vest judicial powers in a non-judicial officer, contrary ©
_ to the express language contained, in- Section 08 of . Arti-
cle IT-of the Constitution of Florida of 1968.
Ido certify that a true copy of the foregoing | Motion
has been furnished to the City Attorney for the City of
Tampa, by delivery, at the Police Station in the ao of.
Tampa, this 13th day of March, 1969. -
“ Matory B. FRIER
Attorney for Defendant .
LAW, Inc. of Hillsborough County
8145 Nebraska Avenue.
Tampa, Florida 33604
-CERTIFICATE OF CLERK
: I hereby certify that the above and foregoing is a
true and correct copy of Motion Filed and Judgement of
the Municipal Court, in the case of the City of Tampa vs. -
Gerald Shadwick as the same appears of record in Muni- |
cipal Court Docket No. F156951, Record of the Municipal.
Court of the City of Tampa, Florida. ©
Dated this 14th. day of April, A.D. 1969.
W. L. STARK, City Clerk
By Roser D. CARDEN, D.C. Ff
“A-14
IN THE MUNICIPAL COURT OF THE’
‘CITY OF TAMPA, STATE OF FLORIDA.
F156951
CITY OF TAMPA, Plaintiff,
GERALD SHADWICK, Defendant.
' ORDER.DENYING MOTION TO QUASH © -
- '
. This cause having come on for hearing pursuant: .
to rule of Court wpon the Motion of the defendant to
Quash the warrant issued: by the City Clerk as ex officio
Clerk of this Court on the 6th day of March, 1969, and
the Court having heard argument of counsel and read
briefs filed ye defense counsel in support of said motion, | |
‘it is.
ORDERED that the defendant's Motion to Quash |
_ said warrant is hereby eoniee
DONE AND ORDERED at Tampa, Florida, the
_ th day of April, 1969 nunc pro tune this 18th day of.
April, 1969.
, CHARLES H.. ‘Scavaes, It
> - Judge.
. _CLERK’S CERTIFICATE °
i hereby certify that the above and foregoing is a
true and correct copy of Order Denying Motion to Quash
in the Municipal Court, in the case of the City of Tampa
. -vs. Gerald Shadwick, as the same appears of record in *
Municipal Court -Docket No. F156951, Record of .the
-Municipal Court of the City of Tampa, Florida. . .
Dated this 18th day of April A. D. 1968.
W. L. STARK, City Clerk |
By RoBERT D. CARDEN, D. C.
©
os AS:
IN THE CIRCUIT COURT OF THE THIRTEENTH ™
JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH
COUNTY, FLORIDA
Division H |
| No. 177715
=! =e Petitioner,
CITY. OF TAMPA. Respondent.
| aria FOR WRIT OF CERTIORARI -
The parllionee GERALD SHADWICK: respectfully -
- represents unto this Honorable Court as follows: 7
a, This is a Petition for Writ of Common Law.
_Certiorari directed: to the Municipal Court of the City
of Tampa, Florida, under and pursuant to the provisions |
of Rule 1. 640, of the Rules of Civil Procedure. '
2. Petitions was arrested:by a City Police Officer -
of the respondent, City of Tampa, on the 6th day of ©
March, 1969, under color of a2: warrant issued on that
date in the name of W. L. Stark, City Clerk, and —
by Nelson P. Gulle, as Deputy Clerk.
3. On the 11th day of March, 1969, the petitioner:
filed. a Motion in the. Municipal Court of the City of
Tampa, Florida, to Quash said warrant and ‘the docket
entry made pursuant thereto upon the grounds that said
warrant was issued by a non-judicial officer, namely the —
_ City Clerk of the City of Tampa, ‘who was not vested
with judicial powers.
4. Said Motion came on for a before a
“Municipal Court on the 7th day of April, 1969, at which
time said Motion was denied by said Municipal —
' 5. This Petition for Writ of Certiorari is accom-
Sai by a certified trariscript of the record_of the pro-
Cy
+ A-16 . . |
ceedings petitioner seeks to have reviewed, pursuant to
the provisions of Rule 1.640 of the Rules of Civil Proce-
dure, including the following items:
A. Affidavit of Corporal W. H. Larder, dated
March 6,, 1969. — |
B. The warrant. issued Mar¢h 6, 1969, under .
which petitioner was arrested as aforesaid.
| C. Defendant’s Motion to Quash said warrant
- filed March 11, 1969. |
. D. The Order of the Municipal Court for the.
City of Tampa, denying said Motion tp Quash, enter- —
ed April 7, 1969, nunc pro tune on April 18, 1969.
* 6. By the record so made, petitioner would show ©
~ unto this Honorable Court that said Municipal Court did .
not proceed in said cause according to the essential ree"
quirements of the law, in the following matters pai for’ -
the following reasons, to wit: -
A. The City Clerk for the City of Tampa i is a
- ministerial officer and is not possessed of judicial
powers either under Section 22 of the Revised Char-
ter of the City of Tampa of 1927 ( Compiled Charter
of the City of Tampa, Section 159) or under Section
1, Chapter 61-2915, Special Acts of the Legislature, .
- “Laws of Florida 1961 (Section 160.1 of the Compiled
Charter of: the City of Tampa), said power to issue
warrants of arrest being expressly reserved to the
Municipal Judges of the. Municipal Court of the City
_of Tampa by Section 21. of the Revised Charter of
_ .1927 for the City of Tampa (Section 410 of the Com-
piled Charter of the City: of Tampa).
°B. That. insofar as Section 168.04 of the Flor-
ida Statutes purports to vest judicial powers in the
_ City Clerk for the City of Tampa to issue arrest .
' warrants; or insofar as any. attempt is made to read °:
such powers into the City Charter of the City of
_ . Tampa, the same are clearly invalid and ‘unconsti-
‘, tutional. for the reason that the-:same violates the
a. premises.
A-17
ee of Powers idan ‘siatalal in Section
3 of Article II and Section 1 of Article. V-of the Con- |
‘stitution of Florida, as well as the due process and.
- equal protection clauses contained in Sections 2 and:
9 of Afticle 1 of the Constitution of Florida and the.
> Kifth and Fourteenth Amendments to: the Constitu- |
tidn of the United States.
, WHEREFORE, the premises considered, cetitioner:
prays that this Honorable Court will. grant unto your
petitioner .a Writ of Certiorari directed to. the Municipal
Court of the City. of Tampa, Florida, requiring that the
- record of said Court, together with the Order of said —
“ Court Denying Petitioner’s Motion to Quash the warrant -
in said cause, be certified to this Court and that this
_ . Honorable. Court will thereupon proceed to review the
_ same and determine that the said Order Denying Peti-
tioner’s Motion to Quash said warrant is ‘erroneous and.
-'. veid for the reasons heretofore pointed out, and will
Quash the same and grant. unto your petitioner such
further and other relief as the nature of the case may .
periuce fn sete tage mms mine oem eeeeee fe the,”
rerenaiey for Petitioner Hs
_ LAW, Inc. of Hillsborough County
- 8145 Nebraska Avenue
Tampa, Florida —
STATE oF FLORIDA |
COUNTY OF HILLSBOROUGH
Before me, the undersigned authority, personally
came Malory B. Frier, who being by me first duly cau-__.
tioned and sworn upon oath deposes and says that he i is
the attorney for the Petitioner in the above styled cause
and as such, is duly authorized to make this affidavit -
for and in behalf of said Petitioner; that he has read and -
_ knows.the contents of the above and foregoing Petition
_ for Writ of Certiorari and that the: same is true.
‘Mavory B. ‘FRIER |
MALORY B. FRIER
Swern to and subscribed before me at Tamps, Flr. :
ida, | this 23rd i of April, 1969.
_ EVELYN F. RODRIGUEZ .
Notary Public
_ My,Commission Expires: 10-21-72
CERTIFICATE OF SERVICE
%
‘tion. has been furnished ‘to the City Attorney, whose
is located in the City of Tampa Police Station, by
deliver} , this 23rd day of April, 1969.
| “Matory B. FRIER . :
os Nediee alates Gee i
. JUDICIAL CIRCUIT OF FLORIDA, HILLSBOROUGH
NT CIVIL ACTION
“Case No. 177, 715
oe
~~ Division “H”
GERALD SHADWICK, Petitioner,
_cIry OF TAMPA, Respondent.
_ ORDER DENYING WRIT OF CERTIORARI
\
‘THIS CAUSE came on to be heard before the Court
uppon. Petition for issuance of Writ. of Certiorari, the
‘Court having heard and considered the-arguments of
respective counsel together with the Briefs filed. by both
the Petitioner and Respondent,: and ° the Court being
otherwise fully advised in the Premises, it thereupon,
CONSIDERED, ORDERED. and: ADJUDGED that
_ Issuance of Writ.of Certiorari on Petition therefore, be
and the sare is herein and hereby, denied. |
“DONE AND ORDERED in Chambers at. Tempe,
Florida, this 23rd day of July, 1969.
NEI C. McMULLEN, Cireuit J Judge
it Noe do certify that a-true copy of the. foregoing Peti-
oe
ante *. Ang
IN THE CIRCUIT COURT OF THE THIRTEENTH
JUDICIAL CIRCUIT OF FLORIDA, HILLSBOROUGH
- COUNTY, CIVLL ACTION’ -
| eee , Case No. 177,715
raf ’ GERALD SHADWICK, Petitioner, |
ee , . CITY OF TAMPA, Respondent. =
ASSIGNMENTS OF ERROR |
"GERALD SHADWICK, the petitioner, hereby a’-
"signs the following errors for review on his appeal to
-the Supreme Court of Florida: : 3
— °- 4. The Trial Court erred hy entictna the Order
Denying Writ of Certiorari, dated July 23, 1969, and ren-
dered and recorded Jyty 24, 1969 in Circuit Court Order
Book 722 at page 705 of the ar records of Hillsbor- :
ough County, Florida, - '
2. The Trial Court erred by refusing to. nae: the «.-
’ Petition for Writ of Certiorari directed to the Municipal
Court for the City of Tampa, Florida, as abeeaees in the .
Petition.
_ °8, The Trial Court erred by refusing to quash ihe
Order of the Municipal Court of *the City of Tampa, ~-
‘Florida, dated and rendered April 7, 1969 which denied
petitioner’s Motion to Quash an arrest warrant issued
by a deputy clerk of said Municipal Court without prior
determination of probable cause by a judicial officer.
- I do %ertify that a true copy of the f goitig “As-
- gignments of Error has been furnished illiam Reece
: Smith, Jr., City Attorney, P. O. Box 3 , Tampa, Flor- _
_\ ida.33601 and to Gerald H. Bee, Assistant City Attorney,
_ * . %29 First Federal Building, Tampa;-Florida 33602, Attor-
bee for respondent, by mail, this 21st — of August, :
1969.
-&
MALLORY B. [FRIER
Attorney for Petitioner,” . 3
LAW;; Inc. of Hillsborough County
‘° 8127 Nebraska Avenue - E;
- Tampa, Florida 33604
ee
" APPEAL OF FLORIDA,
“INTHE Di RICT COURT
ote ee =e _
yan > \GBRALD SHABWICR, “Appellant,
ant e ne ‘ cry oF TAMPA, J Appellee. ©”
) a ~ _ PETITION, FOR REHEARING
\¢
“ithe «ane GERALD SHADWICK, petitions this
‘Honorable Court to grant. a‘rehearing upon his appeal, -
* pursuant to the -provisions of, Rule 3.14 FA. me and |
“would show unto the, Court as fellows:
>” ef this “Comrt’s . opinion filed June 24,1970, that: the
" " appellant had been “convicted” of the offensé of “driv-
ing under the influence” of alcohol or drugs. is apparent- 7
“dy the result ‘of aii ramet or. clerical ‘error . in. two
en sua bon wit:
vee + of
Tire appellant hag ‘not’ ‘been souiioted: of. ous -
ee but: has. merely | sought timely- relief from an |...
ms arrest ' warrant he ‘believes invalid in order not to fore-
/ Pages 2 through 5,
b. ‘Abpellant ae ‘su been charged with “driving Baas
__ under ‘the influence” ‘but ‘has been. charged with the . -
: _ lesser offense of “careless driving” while his “ability to -
age \ rive is impaired.” See the affidavit of W.H. LARDER, |,
‘dated March ‘6, 1969, and the arrest ——w issued the
/ same: date. (R 4 and 5).
hie
* 2. The statement contained. in ‘the nent to. the last .
... Sentence of said opinion that there is nothing in the
ios recone this — to .eenenene iat accusa-
on eee .
>
te 2 as The statentent contained in the first siiiinias
se that: right by ‘voluntarily submitting | himself to the °: |
isdiction of the Municipal Court. See appellant’s Peti-
Writ of Certiorari A ss and appellant's brief at:
.
. q a i ‘ -
h
itreereentterrennemnemeninentnennpmen a. -
os .
~
A-21
} tion that allowing the Clerk to issue arrest warrants
.merely provided a rubber stamp for: the police overlooks
or fails to consider the warrant (R5) and the affidavit
upon which it was issued (R4) contained in the record
on appeal. While the documents contained in'the record |
on appeal are merely xerox or photographic reproduc-
tions of ‘the original affidavit and warrant, an inspection
. Of those documents reveals the following matters which
the Court failed to consider: “ egg ee a
; a The affidavit and warrant are pre-printed
forms constituting a ‘single unit or set whereby carbon
' paper. is merely inserted between the affidavit and the
_: Warrant, the blank spaces (excepting the specific
charge are filled in by typewriting on the affidavit in
Buch ‘a manner as to cause the same words and figures
‘ .to be a onto the warrant .\by the carbon paper.
(Note itioning of the date on the warrant and com-. . |
. b £
_ the wafrant was actually stamped therein with a rubber
sonal Knowledge of the matter contained therein and
without otherwise indicating. any sources for the offi-
cer’s belief or setting forth any other sufficient basis
upon which a finding of probable,cause could ade
appellant’s brief.
3. By citing Florida Motor Lines v. Railroad Com. §
. , missioners, 100 Fla. 538, 129 So. 876 ( 1930) as authority
for the Proposition that the exercise of “quasi-judicial”
, ..
A “¢ . »
is .
A-22,
powers does not constitute the exercise of «judicial pow-. -
er’ under the State Constitution; the Court overlooked
or failed to consider Article V, Section 35, of the Florida
- Constitution: as amended in 1910 which expressly au-
thorized the Legislature,to grant judicial powérs to the
Florida Railroad Commission, and upon which the Flor-_ -
ida Supreme Court — in that case. See 129 So. at -
- pages 881 and 883. | | =,
_ 4, By relying upon the: New Jersey decision of
State v. Ruotolo, 52 N.J. 508, 247 A.2d 1 (1968), the
Court overlooks or. fails.to consider the fallacy implicit
in that Court’s reasoning in the seca particulars:
_a. The fact that one-third of all U. S. Commission-
ers are laymen does not alter the fact that they are, in
‘fact, judicial officers with limited trial jurisdiction un-
der Title 18, Section 3401, U. S. Code, enacted: by Con-
gress pursuant to authority contained in Article I,
Section 8, Clause 9 of. the United States Constitution.
b. The fact. that Grant Jurors and petit jurors
apply sundry rules of law to factual-situations does not
-alter the fact that the Clerk of the Municipal Court does.
not receive a “charge” or instructions from the Court
such as jurors received from the presiding judge, or
others legally knowledgeable which he can substitute
for his independent knowledge ; or lack’ of —— of
the law.
ae .
c. The fact that policemen may arrest without -
warrant upon probable cause in felony cases overlooks
the rule started in Aguilar v. Texas, 378 U.S. 108, 84
S.Ct. 1509, 122 L.Ed. 2d 723 (1964) cited at page 6 of
appellant’s. brief, that a ‘magistrate’s determination of -
probable cause for the issuance of a warrant may be
baséd upon less judicially competent or persuasive evi-
dence than is permitted for —— when sO acting.
See 378 U.S#at p>
-
A-23
5. Finally, this Court’s 8 decision that the Legisle-
ture. may constitutionally delegate to a Court Clerk the .
“quasi-judicial” authority to determine the existence of
probable cause for the issuance of arrest warrants over-
looks or fails to consider the decision of the Florida |
Supreme Court in Otto v. Harllee, 119 Fla. 226, 161 So.
402 (1935), cited at page 7 bf appellant’s brief that
determination of the sufficiency of property descrip-
tions in tax certificates was a judicial function which
the. same Legislature is prohibited from delegating to
such a Court Clerk, and the resulting implication that:
decisions involving human liberty are not as important -—
and do not possess the same gravity as decisions involv-
ing mere property —.
MALORY B. FRIER .
Attorney for Appellant
8127 Nebraska Avenue
. Tampa, Florida 33604
CERTIFICATE OF SERVICE ,
I do certify thats a true copy of the foregoing Peti-
tion: for Rehearing has been furnished by U. S. Mail to
WILLIAM REECE SMITH, JR., City Attorney, and
‘GERALD H. BEE, Assistant City, Attorney, 729 First
1970. Building, Tampa, or this 7th day of July,
1
~ MALORY B. FRIER .
Attorney for Appellant
A-24
_ APPENDIX D
IN THE SUPREME COURT OF FLORIDA
Case No. 40, 156.
GERALD SHADWICK, .
Appellant,
VS.
CITY OF TAMPA,
Appellee. ~
°
BRIEF OF APPELLANT
APPEAL FROM THE DISTRICT COURT OF APPEAL _
" SECOND APPELLATE DISTRICT
OF FLORIDA ~ |
WM. REECE SMITH, JR. and
GERALD H. BEE
Attorneys for Appellee
.. |: %25 E. Kennedy Boulevard
acd a Tampa, Florida 33602.
«lie. Telephone? 813/229-7966.
MN tt gee St ' MALORY B. FRIER
oN See ee 4, Attorney, for Appellant
_ 1809 N. Howard Avenue
- Tampa, Florida 33607
Telephone: 813/ 253-0087
CERTIFICATE OF SERVICE
I DO CERTIFY that a true copy of the within Ap-
pellant’s Brief has been furnished to Wm. Reece Smith,
Jr., and Gerald H. Bee; Attorneys for Appellee, ed mail, °\
this 30th day of ——— 1970. ‘
-MALORY B. FRIER
mn for oe
A-25
STATEMENT OF THE CASE _ ol
This is an appeal from the decision of the District -
Court of Appeal, Second District of Florida, which has |
been reported as Gerald Shadwick, Appellant vs. City of ~
Tampa, Appellee, (Fla. App. 2, 1970), 237 So.2d 231.
_ The appellant, Gerald Shadwick, who was also the ap-
pellant in the District Court of Appeal, and the peti-
_tioner in the common-law certiorari proceeding in the
Circuit Court for Hillsborough County, Florida, was .
‘originally defendant in the Municipal Court for the City
of Tampa, Florida. The. appellee, City of Tampa, who
was also the appellee in the District Court of Appeal .
and the respondent in said Circuit Court proceeding,
was the prosecuting authority in said Municipal Court
proceeding. The following oo will be used-in this -
‘Brief:
“R” Record on Appeal;
“Ar ~Appendix to Appellant's Brief.
. ‘The proceedings which have culminated in the fil-
_ing of this appeal originated in the Municipal Court for
the City of Tampa, Florida, on March 6, 1969, when
- Corporal W. H. Larder of the City of Tampa Police De-
partment; subscribed and swore to an Affidavit (A 6)
_ before Nelson P. Gullo, as Deputy for W. L. Starke, City: _
Clerk of the City. of Tampa, and who thereupon issued
a warrant (A.7) for the arrest of the appellant to an-.
swer a charge of careless driving while his ability to
- drive was impaired by alcohol or’a drug. The appellant ©
was arrested the same date, and on March 13, 1969, filed »
- his written. motion-in said Municipal Court to quash
that warrant upon the ground that the issuance of such —
a warrant was the exercise of a judicial function by a
-non-judicial officer. in violation of the separation of
powers clause contained in Article II, Section 3 and
Article V, Section 1, Florida Constitution of 1968, which
vests the judicial power of this state in certain enumier--
ated courts, and that the provisions of the City of Tam-
pa Charter purporting to authorize the issuance of ar-
Ms Seale fi
TOYS IER SNIPERS NT FIRS NR NY NIT al SRR Rok ety Ss pNeNN
He trammeRNe 2
A-26
rest waren by. the City Clerk was, therefore, an un-
constitutional delegation of judicial powers. (R 6) Ap- ~
pellaht’s motion was denied by the Municipal Court on
Avril 7, 1969 (R 8), and on April ‘23, 1969, appellant
filed his netition with the Circuit Court for Hillsbor-
ough County. seeking a writ of common-law certiorari
to review that order upon the ground that the denial of
his Motion to Quash constituted-a departure from the
essential requirements of law because the warrant pro- -
eedure and charter provision authorizing it, as well as.
. the general state statute ‘authorizing it, not only vio- .
lated the cited provisions of our state constitution, but
also violated the due process clauses contained in Article |
_ I. Sections 2 and 9 of the Florida Constitution of 1968,
_ and the Fourteenth Amendment to.the United States
Constitution. (R:-1) The Circuit Court denied the peti-
tion for common-law certiorari (R 9), and the appel-
lant took a timely appeal from that decision to this
Court which transferred the same to the District Court
of Appeal, Second District of Florida, on January 14,
1970. The District Court of Appeal ultimately rendered
its opinion on June 24, 1970 (A 1), and denied appel-
' lant’s petition for a rehearing (R-62) by an order en-
tered August 5, 1970. (R 66) Within 30 days after that
Court’s denial of his petition for rehearing, the appel- —
lant timely filed his notice of appeal to this Court, pur- -
snant to Article V, Section 4 (2), Florida Constitution,
“because the District Court’sdecision directly and initi-
ally passed upon the validity of Statutes of this State.
Included ‘in the Appendix to this Brief are the re-
vised' opinion of the District Court of Appeal (A 1-5),.
as well as xerox copies of the Affidavit and Warrant
’ attacked (sic.) (A 6, 7) and.the applicable sections of
the-Cornpiled Charter of the City — - 8-10)..
1 The original opinion as printed in the Southern Reporter ' Ad-
‘ . vance Sheets at 237 So.2d 231 was “revised” by the District
Court of Appeals to correctly state that appélant had merely
_ been “charged” (and not conyicted) with “careless. driving while
‘his ability to drive was impaired”. (and not driving under the
influence of alcohol or drugs), in response. to —* petition
for’ rehearing. . ;
,
: a
.
POINTS INVOLVED — APPEAL -
2, WHETHER THOSE PROVISIONS. OF ‘THE
CITY OF TAMPA CHARTER, AS WELL AS SECTION
168.04, FLORIDA STATUTES, WHICH PURPORT TO '
AUTHORIZE THE €ITY CLERK FOR THE CITY OF:
.TAMPA TO ISSUE ARREST WARRANTS WITHOUT
ANY DETERMINATION OF PROBABLE CAUSE BY
A JUDGE OR MAGISTRATE, ARE AN UNCONSTI- -_.
TUTIONAL DELEGATION OF JUDICIAL POWER”
‘The lower Cont answered this question i in the’ nega-
tive. | é
pie 3 akomanerr 2
a L
‘THOSE PROVISIONS OF THE CITY OF TAMPA.
CHARTER, AS WELL AS SECTION 168.04, ‘FLORIDA, -
STATUTES, WHICH PURPORT TO AUTHORIZE THE
CITY CLERK FOR THE CITY OF TAMPA TO ISSUE
- ARREST WARRANTS WITHOUT ANY DETERMINA-
‘TION OF PROBABLE CAUSE BY A JUDGE OR MAG-
ISTRATE ARE AN INVALID AND UNCONSTITU-
TIONAL DELEGATION OF JUDICIAL POWERS.*
a ‘BOTH THE FOURTH AMENDMENT TO
THE UNITED STATES CONSTITUTION MADE AP-
PLICABLE TO THE STATES BY THE FOURTEENTH ~
‘ AMENDMENT AND ARTICLE I, SECTION 12 OF |
THE 1968 FLORIDA CONSTITUTION PROHIBIT THE
ISSUANCE OF: AN ARREST WARRANT WITHOUT.
A PRIOR DETERMINATION: OF PROBABLE CAUSE.
The Fourth Amendment to the United States Con-_
stitution guarantees that no warrant shall i ~~. for the —
>. al
2 This question is raised by Assignments of Error numbered 1& 2. .
_ 3 Raised by ee of =_— numbered. 1 and 2.
‘A288
arrest of any persons except. upon probable cause sup-
ported by oath or affirmation. 4
Article I, Section 12 of the 1968 Florida Constitu-
tion, and. its forerunner, Section 22 of the Declaration
‘of Rights contained in the Florida Constitution of 1885,
contained-stmilar cdianuaaes ae
The Supreme ieet of. the. United States has held .
that the restrictions imposed by the Fourth Amendment
apply to arrest warrants, as well as to search warrants,®.
that they extend to the several states under the Four-
teenth Amendment,’ and that the determination of prob-
_ able cause for the issuance of such warrants involves a
.determination of whether an offense had been commit-
_ ted, and if*so, what reason there is to believe cad the
defendant committed it.®
(B). THE QUESTION. OF PROBABLE CAUSE
REQUIRED TO SUPPORT THE ISSUANCE OF. AN
ARREST ae — A SUDICIAL a.
“4 “The right of the people to be secure in their persons * * * against
. unreasonable * * * seizures, shall not be violated, and no war-
rants shall issue, but upon probable cause, supported by oath or
- affirmation, and particularly describing * * * the persons * * *
to be seized *.* * ‘Fourth Amendment, U.S. Constitution. -
5 “The right of. the people to be secure in their persons, eee
against unreasonable * * * seizures * * * shall not be violated.
No warrant shall be issued except upon probable cause, supported
by affidavit, particularly describing * * * the person or persons
82 S6y te eee © FS: Article t Section 12, Floriga ‘Constitu-
tion, (1968) ..
6 Giordenello v. U.S. (1958) 357 U-S. - 480, 78 ‘S.Ct. 1245, 1250,
2 L.Ed. 2d 1503; Wong Sun v. U.S. (1963) 371 U.S. 471, 83 S.Ct.
471, 9: L.Ed. 2d 441. See also U.S. v. Melvin — wiact 1966)
258 F. Supp. 252.
ne
7 Ker v. California (1963). 374 U.S. 23, 30, 83 S.Ct. 1623, 10 LEd. ‘a
2d 726; Aguilar v. Texas (1964) 378 US. 108, 84 S.Ct. 1509, 12
L.Ed. 2d 723. eo
& Jebon 0. US. (1965) 381 U.S. 214, 85 S.Ct. 4565" “4 L.Ed. 24
353; Rehearing Den. 382 U.S. 873, 86 S.Ct. 1, 15 L.Ed: 2d 114;
“Johnson v. U.S. (1948) 333 U.S. 10, 68 S.Ct. 367, 92,L.Ed. 436;
see also footnotes, 6 — w
. @
A-29 °° |
THAT MUST BE DETERMINED BY A JUDGE OR
MAGISTRATE BEFORE A VALID WARRANT saarg yo.
ISSUE. -
‘The Supreme Court of the "United States has held:. }
“When the right of privacy must reasonably yield. ~
to the right of search, is, as a rule to be decided by-
' a judicial offjcer, not by a policeman or government :
enforcement Jagent.”°
~*~
The Florida li Court has also held, in con- —-
sibaeas Section 22, Declaration of rights of the 1885.
Florida Constitution which has been incorporated into ~~
. Article I, Section 12 of the 1968 Florida Constitution: |
“The question .of ‘probable cause’ for the issuance:
of a search warrant to invade the privacy of: our
dwelling or person is a judicial question that must
be determined by a judge or magistrate before a
valid warrant may issue.”’'° - (emphasis supplied)
| Indeed, the lower court, prior to its decision i in the
instant case, had indicated that no one is authorized to
make the decision to issue an arrest warrant except a
judicial officer. tt f |
: -In arriving at the decision appealed iim, the Dis-
trict Court of Appeal held that the issuance of a war-
rant was merely “quasi-judicial” and not within the —
‘ judicial power reserved to those courts enumerated in .
Article V, nessa 1 of the.1968 Florida. Constitution. )
Pig ery U.S. (1948) 333 US. 10, 68 S.Ct. 367, 92 L.Ed. 436; .
quoted in Camara v. Municipal Court, (1967) 387 US. 523, 87 S.Ct.
1727 at 1731, 18 L.Ed. 2d 930. See also U.S: v.. Melvin (UBD,
'Fia., 1966) 258 Fed. Supp. 252.
10Samuel v. State (Fla., 1969) 222 So.2d 3 at 4: Thurman v. ‘State...
(1934) 116 Fla. 426, 156 So. 484 at 488.
State v.-Hickman (Fla. App. 2, 1966) 189 So.2d -254, siete
a warrant in which the magistrate’ s signature and seal had been |
affixed by. a member of his clerical staff becausé there was no
showing that the magistrate did not make the actual oom
to issue the. warrant. —
om A-30
° 5 et
As sitiaiattes for that incindaieiini the District: Court of us
Appeal cited several eases, including the previous deci-
sion of this Court-in Florida Motor Lines v. ‘Railroad
~~ Commissioners:'2 However, an examination of that case —
reveals that this Court there relied on then @iticle V,
-- Section 35 of the 1885 Florida Constitution as amended
in. 1910, which expressly authorized the Legislature to
a grant judicial powers to the Florida Railroad Commis-
sion. Thus, there: was really ho qitestion of “quasi-judi-
cal powers”, in that case, since the Constitution had, in
fact, granted judicial nee to the Florida Railroad
Commission.
By “e
¢
_ arrest warrant procedure is, at most, “quasi-judicial”
and not a judicial function, fails to recognize the plain
_intefit:of our State and Federal Coastitutions that. the
¥ determinatior-of probable cause required for the is-
~suance of a valid arrest warrant must ~ made a a
judicial offen. ars oeo
It is not every arrest and not every search that: is
proscribed by our State and Federal Constitutions. It is
' the“unreasonable” arrest that is prohibited, and as the
Supreme ‘Court indicated in Camara, “probable cause”
| is the standard by which’a particular decision to arrest
(seizure of person) is tested against the Constitutional
nrandate of reasonableness,"* |
12(1930) 100 Fla. 538, 120 So. 876.
13See footnotes 9 and 10, supra. Indeed, the Aladin Court of
'. Appeal has recognized this requirement ‘in Miller v. Birmingham,
(Ala., 1969) 218 So.2d 281, notwithstanding the 1909 decision of
the Alabama Supreme Court in Kruelhaus v. Birmingham, 164
Ala. 623, 51 So. 297, reliéd on by the District Court. of Appeal,
as has the Narth Carolina Court in State v. Matthews (1967)
270 N.C. 35, 153.S.E.2d 791,-and on that basi distinguishes its
- own prior decisions, relied on by the District Court of. Appeal, in
‘State v. Furmage (1959) 250 N.C. 616, 109 S.E.2d S63.
14Camara v. Municipal: Court (1967) 387 hess 523, 87 S.ct. cava .
1735, 18 L.Ed.2d 930.
ig The: decides ‘of the District Court of Appeal onl
the cases cited by it in support | of its decision that the -
&:
ees
eo
-
. - ie ia ABI
Sy ieee ae it may be more convenient for po-
lice officers to obtain arrest ts from clerical em- S
ployees of the City, and to thereby dispense with the |
necessity of technical accuracy and formality required
in felonies and indictable crimes, but in the absence of
. some showing of a‘compelling need, there is no valid
- reason why jurisdiction over the person of a citizen
-. charged with violation of a municipal ordinance cannot
be obtained by service of summons. As — by the’
Supreme Court of Minnesota: ‘
“It occurs to us that in initiating and prosecuting
charges which are misdemeanors, the grave con-
: ‘sequences to the accuséd,-resulting from a wrong-
' ful arrest, far outweigh the potential harm to the
community in requiring something more than the’
" peremptory issuance of a warrant by a clerk un-
trained in the law. The harm to an aceused arrest-
ed in his-home or at his place of’ work, the humilia-_
tion and embarrassment to his‘family,and the fact
he had a record of arrest, however —* are con- —
\ eee difficult to measure.”'> ~
<i “governmental interest “justifying the arrest .
must be balanced against the constitutionally protected °
‘liberty of the private citizen, and where grounds.do not.
. exist forSarrest without a warrant, that balance —:
only be determined by one _ the _—
discretion of a judicial officer.**
(C)- ARTICLE Il, ‘SECTION 3, AND ARTICLE
_'V, SECTION 1 OF THE 1968 FLORIDA CONSTITU-.
‘TION PROHIBIT THE DELEGATIQN OF: JUDICIAL
'SState v. Paulick (196 ) 277 Minn. 40, 151 N.W. 2d 591: : see sles
State x. Simpson (1965) 28 Wis. 2d 590, 137 N.W. 2d 391: Caulk
v. Municipal. Gourt (Del., 1968) 243 A.2d 7071; French v. Superior ~
Court (Ind., 1969) 247- N.E. 2d 510.
‘8Camara v. —— footnote 14; supra.’
_\ PQWERS TO-AGLERK
& 3
*.
. - ganic law which crea
| 200tto v. Harllee (1935) 119 Fla. 266, 161 So. 402.
Bae . 4 .
LPN RR SR np RN ap Er ENE at , eos . ; . :
- ™ ¢ » - .
oe; ‘ : _
. tos .
: 4
: . air, -
- eet ee @ aye ey ; ee % A aed.
scien ae : : : ? : _ BES ee
; i : : bd A ae
. ae _ A-32 . > +0 os
° ,
"| the question is thus presented whether the Legis-
-- lature may delegate the judicial function of determin- |
ing probable cause for the issuance of arrest warran
to the City Clerk for the City of Tampa."* ae
‘In 1985, this Court held that an act of the Legisla-
- ‘¢ure.purporting to empower the Clerk of the Circuit
Court to.cancel tax certificates which he determined —
Te
the land described therein, was an unconstitutional dele-
gation of judicial,powers, because: | : :
“The Legislature annot exercise judicial functions.
- Tf it-carinot exercise judicial functions, certainly it
_ igs, precluded from delegating. the exercise of judi-
cial functions to ministerial officers.”7°_ ee
'7Article II, Section 3, Florida~Constitution;. 1968, provides:
“The powers of the state government shall be divided into
. legislative, executive and judicial branches.. No person be-
longing to one branch shall exercise any powers appertaining
: to'either of the other branches unless expressly provided:here- .
Article V, Section :: Florida Constitution, provides: Ses *
“The judicial power of the State of Florida, is. vested in a:
_-~ - ing Municipal Courts or Commissions, as the —— :
from time.to time ordain and establish.”
1eWaller v. Florida (1970) 397 U.S. 387 90 S.Ct. 1184, 25 L.Ed. 24
Ch. 4883, Laws of Florida, 1889).
a
a
‘were void for’ insufficiency of the legal description of
Ne
fore,-need not
ss eee :
Pe eS
This Court hag also held that the City Recorder
ficer, amenable to mandamus, to perform his duties
_ where he sought to act independently of the Municipal ~
_ Court’s judgment.?' Being a ministerial officer, a clerk
—_request of law enforcement officers for arrest warrants.
The décision of the District Court of Appeal that: the
arrest watrant procedure is, at most, “quasi-judicial”,
' implies that decisions involving human liberty are: less
important and do not require the same_constitutional
. - safeguards as decisions involving property rightsin tax... _
certificates. i oe Se ge eS
for the City-of. Jacksonville, acting as Clerk of the Mu-~
_nicipal Court for that city, was a purely ministerial of-
‘The District Court of Appeal relied heavily on the -
_. New Jersey case, of State v. Ruotolé, (1968) 52 N.J. 508,
/ 247 A.2d 1, to, justify its holding that the arrest war-
rant med nope merely “quasi-judicial” and, there-- - ~
reasoning emplayed by that court was that nearly one-
performed by a judicial officer. The _.
third ofall United States. Commissioners are not law- .
-yers, yet are authorized to issue arrest warrants; that.
policemen may, under certain conditions, arrest. without
.& warrant; that both grand juries and petit juries are:
‘ composed of non-lawyers who apply rules of law in ar-.. -
-riving at their decisions: and that, refore, no harm >
could result from allowing a deputy clerk to issue an
dure. ~
.
“218tate v. Almand (Fla., 1954) 75 So.2d-905.
; . . ag ae Segre co)
: | a
‘ - "
_ While legal education and training may be desir-
able traits in a judicial officer, they are not: essential,
. . , and are by nd means the distinguishing feature by which |
_ the judicial branch of government is separated from aly
dg.
' arrest warrant. The, implication inherent in such rea-
_ Soning is that a judicial officer must be one leartied and —
.- trained in the law. This.conclusion misses the thrust.of
, the constitutional requirements of the warrant proce-
- other beanch, 22 The distinguishing fiature! of the . judi Nee Ko EN
‘cial branch of our government ‘isthe independence and. NS
discretion- it enjoys in forming its judgffents: 8 a RSS
. Thus, while grand juries and petit: juries are com- + Xe RSS
posed’ of non-lawyers who apply rules: ef law in’ baa a NES
‘ing at their decisions, they area part of ‘the judicial“. * - - &
az
‘ search warrants as well, conduct preliminary hearings,
branch of. our: government, whose judgments are inde- _ :
_ pendent of all other branches of government, 2#and such... -
-_Tules of law as they do apply are received in the form of —
legal advice’ from the State’s attorney, :in the case of _.
grand juries*® or instructions from’ the presiding judge,
in the case of petit juries.?¢ sae
| Similarly: United States Commiteaitneds: ‘Chow.
known as United States Magistrates) are judicial offi- —
cers who. not only issue arrest warrants, but issue
and have a limited trial jurisdiction. See 28 U.S.C. 636, .
18 U.S.C. 3401 et seq., and the Federal Rules of Criminal
_ Procedure. To pursue the argument that their functions *_
__.are-analegous to those of the City Clerk for the City. of - °
‘Tampa would sanction the legislative delegation to ie “og
-: ical-pérgonnel of power to issue search warrants, since - ie
the function of ‘determining - probable cause to, issue ~ oN
search warrants is the pene Tenctiee so min’ Be
wag derek warrants.“ | : os
_ f
DS igi wiph ade fod
m 4
22Article 5, ‘Séction: 13;. of the Florida. Comat. requires “a. |
that justices of the Supreme Court, judges of the District Courts * ee
of Appeal, Circuit Courts and Criminal Courts of Record to be
members of the Flerida Bar. It is debatable whether Section 13A
the requirement that judges of the Criminal
-- Courts of Record be*members of the Florida Bar. It is optional _ _
+ os ‘with. the Legislature whether the Judges. of out-other courts need
23For this reason, judges | are > granted fi ananity from civil liability oe :
258ec. 905.19, Florida Statutes.
| 27Giordenelio v. U.8.; Wag See . U8. and U.S. v. Melvin, supra:
to be lawyers. .
epee es 2 ae toe Sateen Sele sating within .
= Sat Seen. McDaniel 2. nme: (1921) oe 87 So.’
-.24Ryon 0. “Shaw (Fla, 1955) 77 So2a 455; dancing iets: ae ee
(Fla. App. 1, 1962) 141 So.24 749. | 3 ee
_ 26Sec. 918.10’ (1), Florida Statuteg,,RCP 1470(b). 9."
footnote 6. ea eta
(ARS
<p s
SS ~Kinaily “althongh is tens that pottée % ‘ffice:
SS arrest citizens without a warrant under ffcey many
» \. tions, the very necessity for the issuance ‘o: Pain arreat
warrant presupposes a situation where the evidence is
- not sufficiently ‘persuasive or judicially competent to —
show: that type -of compelling governmental interest . ©
needed to outweigh the citizen’s constitutionally-pro-
tected right to liberty in the absence of s1 h a warrant. :
In such a situation, an arrest may be eff only where
a judicial determination of that Soe has first been |
--made.?* Se ate 4
Sis Sines a clerk of court has no judicial powers under
our constitution;2® and the _Legislature is prohibited
‘from delegating, such powers, to. him,*° it follows that he
‘is incapable of that kind of independent discretion nec-
essary to refuse the issuance of a warrant when appli--
ee cation is made in proper form, and that those provisions: A
of the City of Tampa Charter*! and Section 168.04, Flor-
_.. ida Statutes, which. purport to authorize the City Clerk
cay —2¢ 423.- —_ peal
SS > for the City of IT'ampa to issue arrest warrants are an
SAS Scans is ag —e of epapans ae ae
> oh
eAguilar 3. Texas <2964) 378 US. 108, 84 s.ct 1509, 12 L.Ed. ;
— 29Newport v. Culbreath (1935) 120 Fie. 152, 161 So. gee
ms 3°0Otto v. Harllee, footnote 20, supra.
““31City’ of Tampa Charter,. Sec. 495 (Sec. 17, Ch. 5363, Law of:
_ Florida, — .
nd es
Nae ONS
a ce es oa
- °3.|2 Bottk the Fourth’ Amendment to-the United. State’ «SY
“a ‘© gnstitution and Article.I, Section 12 of the 1968:Flor- |: + |
tad m Cunetivation pectibie the issuance of an arrest war- |. '
Came ~¥ant, without ‘a. prior determination of probable cause ‘
An whieh | must be determined by a Judge or Magistrate,
Te possessing independent discretion to balance the-gov-
_ ‘ernméntal need to effect an arrest against the constitu-
_.. tionally, protected. liberty of the individual, and Section
\ 168.04, Florida- Statutes, an thé cited portion of the.
sss » City of Tampa Charter which authorize.that determina-
tion to:be made by the City Clerk for the City of Tam-
pa, as Clerk of that City’s Municipal Cowt, areanun-
hen ous ba conn of judicial powers. ae
ey MALORY B. FRIER |
Attorney. for Appellant -
oo fear. Tampa, — at |
* ae HE ; 3 ah hase IE fi ; . er me
¢
‘
4 ee .
_IN THE SUPREME COURT OF FLORIDA »
es yy
“No. 40,156.
ee GERALD SHADWICK,
ied Se hn ; Agpetiont, :
es " CITY-OF TAMPA, Oe oil os.
a ie Oe
to | APPENDIX TO APPELLANT'S BRIEF ee
'- APPEAL FROM ‘THE DISTRICT COURT OF APPEAL
_ . ‘SECOND. APPELLATE DISTRICT, fe
oe a
.
he in
fn . ‘ . :
; "WM. REECE SMITH JR. @”
G H. BEE Be
Attorneys f for Appellee a vy
725 E. Kennedy Boulevard oe
Tampa, Florida 33602 s ce
Telephone 813/229-7986-— :
L : | —MALORY B. FRIER oa
a ss | Attorney for Appellant ;
<n ss ‘ , 1809 North Howard Avenue
Tampa, Florida 33607 _ -.
_ Telephone 813/ 253-0087 _
CERTIFICATE OF SERVICE
6 ~ pen .
meeer Paect | SMITH, JR., and GERALD H. BEEF, Attorneys.
for the Appellee by mail this 30th day of November,
1970. ; | ae
a -_MALORY B. FRIER
tin .. Attorney for Appellant
e .
ae
JULY TERM, AD. 1970 fee
eg ,
; cies
oS ars ew We oS ee ee :
. 2 Fi Eta a ss ‘ ig % : ~ oP. ey :
(Rk 3 ee
“IN THE DISTRI f COURT or. APPEAL |
-. OF FLORIDA, st ee
“SECOND DISTRICT ©. 3),
-Case No. 70-62 -—
7%
/ /
ant fe te
“Opinion fed June 24, 1970.
a Appéllant : \ eiinieal in Tampa ‘Mehictoal Court ?
ie caren ot while his ability to drive was im- «
e had
°°
‘HOBSON, CHIEF JUDGE.
paired been under a warrant issued in
the name of the city clerk of.the City.of Tampa, dnd _
signed by 4 deputy clerk. Appellant moved to quash the
warrant in the Municipal ¢ on the grounds that the
- ‘of. a judicial function’ by a nén-judicial officer, arid.“ |
therefore a violation of the Sgverstion of powers under:
‘
ve
issuance’ ors & warrant bya c erk was the exercise
Fig, Const. Art. I, Section’ 8 (1968), and- Fla. ‘Const.
_Art. V, Section 1 (1968) which vests the judicial power
in the courts of the state. Appellant’s motion was de- —
nied, and he petitioned the Circuit Court. of Hillsbor-
ough County for a writ of.common law certiorari to re-
view the denial of his motion to quash the warrant. -
The petition was denied by the Circuit'Court, and:
- appellant appealed to the Supreme Court’ of Flori
. The Supreme Court found the matter to be within the
jurisdiction of this court and transferred the case here.' :
F BAR. 24 (a) (5) (@): - Chm ee
. 3 : . ; .
e : a oF
; . B ’ .
: i . 7" . = ..
. eo". : ig se e a
Nee SOCIOL ARETE TO OREO I ALLELE LOLOL ALE OTOL LEILA SEL AE LER Mit ep hen Cetennge gm eg eT ee ee
4 5 . . . cf :
° ° 2 . ’ . ar: e
ub
ree Or Perieeren ey
Sb lh tes ecb OSes gh Aaah allo
.
a4 ‘ % so 5 “ei
4 % seh e . ae - » ae & “i , «
3 j st. % he ee ae oa ° j ;
® A ig . ie eo - E s ES Sie. ° eo w S.. *
* “ ‘ ‘ 5 . . ” i S i co &
* . . . . ‘
= Ps . c-
Appelt contends that Fla. ‘Stat. Section 168.04 =
B “jarpert © vee hn te aye ti
_e4 ‘est warrants, and. cron ar yom Ae sole can
> by Florida courte.” but the constitutionality 0 of the wom
"cedure has-Hot been raised in ‘this-state. oe
Sone = peeeieal contend: that the dachideed’ as to whether
a warrant should jssué is a judigial function and that -
_ because the legislature may not exercise judicial func- .
tions, it:may not delegate judicial functions by statute
_ to. non-judicial officers. We disagree, and hold that the — . ¥
_ decision ee to issue a watrent is, at molt, await al:
6 ’ tie
2 FLA. Srar. Srcrion 168.04 (1967) : “CLERK AND. MARSHALL May
T. AFFIDAVITS AND ISSUE WARRANTS, +
“The clerk may an oath to and take affidavitofany =| e
: jenn ieanaiag team with an offense by breach of an ordi- . me :
. Rance, and may i a warrant to the marshal’ to have the
“*.- ° aeeused person arrested and ‘brought before the mayor for trial.
: The marshal may, in-the absence of the-mayor afd clerk from he ae
"hs a police station, administer oaths to affidavits of complaints :
K ee.0 and issue warrants for the - arrest of pernens . —
"+ against,” a 9 Se
‘3 Laws Pus. 1903, Ch. 5363, Section 17: :
“The chief of police, or any policeman of the ea a of Tampa, ."
- may arrest, without warrant, any person violating any of. the ;
ordinances of said city, committed in the presence of such . __
‘officer, and when knowledge of the violation of any. ordinance
' Of said eity shall come to said chief of police or policeman, not
-. “‘gommftted in his presence, he shall at once make affidavit,
before the judge or clerk of the municipal -court, against the
person charged with such violation, whereupon said judge or’
clerk shall issue a warrant for the arrest of —
4 Laws OF FLA. 1961, Gh. 61-2915, Section ae
“The city clerk of the City of Tampa, with the. epprpvel of the
mayor, may. appoint one or more deputies, such deputy or
‘deputies to be selected from the approved classified list of the. -
city civil service, and to. have and exercise the same powers
as the tity clerk himself, including but not limited to the issu-.
‘ance of warrants..One or more of-such deputies may = denig- ‘,
nated .as clerks of the municipal. court.” -
a United States v. Melvin, 258 F* Sapp: 252 (S.D. Fla. 1966); Head- -— os
. _, ley v. State ex rel. Bethune, 166 So.2d 479 (Fla. App. 3d 1964).
=i @
os ah a ee vm
mm ,
Be eR LN MR CLA ORION Ae, Age, St EA AES ITT ess SG AE LES. Se i Sie
~ es : = men > "S * wey a i a
’. Florida Motor Lines ¥.
a — 277 Minn. 140, :
judicial. and ok: within the iu i
bythe constitution to the judici: :
Fla.'538, 129 So. 876 (1930) . E.G. Kreulhaus y.. City of *
_ Birmingham, 164 Ala. 623, 51-So. 297 (1909) ; State v.
- Ruotolo, 52 N.J. 508, 247 1 (1968) ; State v. ee.
‘son, 151 S.E.2d 870 (W. @., 1966) ; cfe State v. Furmage,
250 N.C. 616, 109 S.B 563 (1959). Contra, wtate 'v.
NL N.W.2d 581°(1967) .
- State v. Paulick, supra} relied upen cn; by ap-
pellant, dealt with the very question before this couft in
the case ‘sub judice.. There, the Supreme Court of Min-
nesota held that a statute which vested authority to is--
‘sue arrest warrants in clerks. of municipal courts was. ae
unconstitutional ‘as. a, violation of the separation of
ae powers. Although the court’s opinion is scholarly and
-. appealing, we chose to folow the-reasoning ‘of the Su-
.preme Court of New Jersey in State q; — —
a court stated at pages 3-5: ! :
ie “With regard ti ‘the, iefuancs of & warratit,
- ‘there is no. doubt that if a determination of ‘prob- |
able cause” is‘to have any meaning, it must be made: |
‘. “by a neutral and detached court official who is im-
. mine from ‘the often competitive enterprise of fer-
_-reting out crime.’ Johnson y. United States, supra, .
333 US. at 14, 68 S.Ct. at 369, 92 L.Ed. at 440."
* x *. . @ 5
€ Se
eh finding of. neutrality, however, goes aay”.
a er of the way to justify the challenged procedure.
Before a deputy ¢lerk is constitutionally permitted — >
to determine whether the facts as alleged by the
complainant constitute probable cause that.an of-
fense has been committed and that the defendant is. ©
the culprit, we must ask? Is the deputy clerk quali-
fied to exercise ‘the necessary — ne
Or ee Be ee
e é, . believe a crime has been or js — committed.”
a able cause before issuing a warrant. We see no evidence:
' “(We believe that
_ though desirable, is: not a requi =
‘- the Constitution on ¥ rmination of. snc eh
.. ° -ause. After all, probable cause (sic) isa standard ~*
ae -which is designed te be applied by laymen. A police- ase
eS man may make ari arrest without a warrant where
_* there.is probablé cause, i.e., where there are facts .— .
_. Which would lead ‘a man of reasonable caution’ to
- oe o. = Bt) ae
y/
“Throughout ‘the history of this elie lays
‘men have served in various judicial capacities, an®
.. particularly in order to determine the existence of ©
probable ‘cause. United States Commissioners: ap-
. --Bointed by the United States District Courts,‘have.
been invested with the power to issue arrest war-. -
.., Yants in federal prosecutions. Fed. Rules Crim. Pro-
_ cedure 3, 4. Todayy, almost one-third of the. United . .
._ States commissioners are laymen. See Staff Memor- . —_ .
. @ndum, Sub-committee:on Improvements in Judi-
j #3 om Machinery; reported in Hearings, Senate Judi- —
“¢iary Committee, Federal M tes Act, 1967, —
p. 30. A grand jury, ign which eyes a are rou-.- +
tinely excluded, applies the stan of probable ey
cause in determining * whether - ‘return an indict- © ™
ment. Grand jurors and petit furors apply sundry
_.. yules of law-to factual complexes; our jury me:
_Trests upon the premise that: one need not bealaw- ~
‘yer to understand guiding principles and & make
°
| | judgments in- the light of. them.” a :
? We feel that. the emphasis should. ‘not ‘be placed
upon fine distinctions between judicial officers and non- _ bts
judicial officers, but instead upon the requirement A |
_ the person who issues the. warrant be ne and dis-
. interested, and that such person make a ding of prob-
2 a a the forces
7 : © =
- Br ‘s
20
= ‘ nw %: ae ee
of law enforcement® d therefore he may. fulfill the
role ‘of the neutral person which ‘the constitution re-
quites so “be Placed be een the police and the public.
Fees pe s ousathat the city, by allowing the clerk —
ssie arrest warrants, was providing nothing more
~ tha a “tubber stamp” for the police. If this were the.
8, Jak, & would be clearly w unacceptable. However, there is -
, wees in the record to substantiate this allegation. o
ws
* Wor the reasons stated, we hold the challenged stat- .
: utes ———. and aes order saegeed is
‘LILES and MeNULTY, 13. ‘CONCUR. Pt |
" Chapter 24. : _
- POLICE DEPARTMENT® -
7 ‘Sec, 494. Powers of mayor 1903 Charter; organization a,
of police force. ;
The duties of the mayor shall be to see that. ‘allthe |
os ordinances of the city council are faithfully executed,
and he is authorized by and with the consent of the city’ -
- counci organize and appoint such police force as
. shall-be necessary to insure peace.and good order of the .
' city and the observance of law within the municipal lim-
its. He shall have power to appoint by and with the con-
sent of the city council; all officers of the city who are ©
not made elective by this charter. He shall have the pow- .
- er to bid in all property for the city at any and all judi- .
cial sales, or sales under proéess of law, where the me
. isa party; to make pro tempore appointments to fi
vacancies ‘caused by death, — absence or other
6 E.g: State -v. “bathows, 270. N.C. 35, 153. S.E:2d 791 (1967);
. State ex’rel. White v. Simson, 28 Wis. 2d 590, 137 N'W.2d 391
ENe).. . °
-_2 m
-
.* Florida 1903).
nar e =
disabitity of any city-officer, but he:shall not have the
.power to*fill vacancies in the members of the board | See
-" commissioners of. public works or of the city council, —
(Ch. 4883, Laws of.Florida 1899; Ch. 5363, § 7, Laws of ‘”
ad
Sec 495. Arrest with and without, warrant.
The chief of police, or any. policeman of thé City ”
‘Tampa, may arrest, without warrant, any persor Wolat-
ing any of the ordinances of said city, committed id the
presence of such officer, and when knowledge of the vio-
lation of any ordinance ofsaid city shall come to sai
~ chief of police or policeman, not committed in his pres--.
.. ence, he shall at once make affidavit, before the judge .
. or clerk of the municipal. court, against the person
‘charged with such violation, where-upon said judge or
clerk: shall issue a warrant for the arrest of such per-
son. (Ch. 4883, Laws of Florida 1889; Ch. 5363, § 17, -
,Laws of Florida 1903)* si. sgh Se ..
Sec: 159. City clerk—Election: term; clerk of board;
| ex-Officio clerk of court; bond; compensation
"There shall be elected by the qualified electors of
the City of Tampa a city-clerk, who shall hold office for. .
four vears. He shall be the clerk of the board of repre-
sentatives*, and shall act as ex-officio clerk of the mu- —
.nicipal court. The. clerk shall give such bond as the board
_of representatives* may fix, and shall perform all the
‘duties now or hereafter imposed upon him by law or
_ ordinance.not inconsistent with the provisions of this.
’ revised charter. The city clerk shall be paid as.compen-
sation for his services the sum of $3,600.00 per year,
payable in monthly installments. (Rev. Char., § 22,
1927) Carey . |
a Editor’s note—The salary of the hy clerk was. $6000 as fixed
by § 160 (see § 160.01). oo: | =
a
*Cross references—For the creation of a police department, see
§ 142; for the designation of tht duties of-the police department .
and the chief of police, see § 143; for the designation of the duties
of the chief of police, see § 153... > ;
Supp. No.4. om os i
>
OS
ee ;
‘See. 160. iit: 1957.
“Tat beginning October 1,°1957; in lieu of any and:
all salary or compensation as now fixed by law, the full
salary and compensation of the city clerk of the City of © |
_ Tampa, shall be six thousand dollars ($6,000. 00) per an-
‘num, payable-in equal monthly: installnfents in the man- ~~
ner and form as now —— by law. ( a — > 57-—
oe. SS
. Editor’s note—The salary of the clérk as ‘established in the year
43 1908 is contained in § 161 and § 393: 4 .
Sec. 160. 01. ‘Same—Salary, 1965.
Siteninn October 1, 1965, in lieu of any _ all sal-
ary or compensation as now fixed by law, the full salary
‘and compensation of the.city clerk of the City of Tampa
shall be seven thousand five hundred dollars ($7,500.00) |
ov Per annum, payable in equal monthlyinstallments in the
manner and form as now provided by law.. (Sp. Acts, —
Ch. 65-2301,81).5 a
Editor’s note—Sec. Sec. 160.01, derived from Ch. 65-2301, tas
included herein supersedes the provisions régarding the city clerk’s
_ salary contained in eres, enactments, as compiled ~ in “$§ 159,
* 160, 161, and 393.
: *Editor’s note—Sec. 41.1’ cceael the designation of the govern-
. ing body to city council. . .
Supp. No.6"
"See. 160.02. Same—Salary; 1969. ~
The salary of the clerk in all cities — a popula-
‘ tion in excess of two hundred thousand (200,000) in all
_Gounties having a population of not less than three hun-
..dred ninety thousand (390,000) nor more than four
‘Mestad fifty thousand (450, 000) according to the lat-
est official decennial census is fixed and prescribed at
the sum of-nine thousand [dollars] ($9,000.00) per an-
num, payable in equal —— — ee
Laws, Ch. 69-690, § 2)
Editor’s note—Sec. 160.02, derived from Ch. 69-690; § 2, as in- -
cluded herein, supersedes $§ 159, 160, 160: 01, 161 and 393 pertain-
ing to . the salary of the city clerk. .
@
Pon a ten -
7 .
—
®
=
Sec. 160.1. Same—Appointment of deputies ; ‘powers. _
The city clerk of the City of Tampa, with the ap- -
mete of the mayor, may appoint one or more deputies, .
such deputy of deputies to be selected from.the approved
classified list of the city ciyil service, and to Have and —
exercise the same powers as the city clerk himself, in-:
. eluding but not limited to the issuance of warrants. One
or more of such deputies may be designated as clerks of ~
Ss the municipal court. (Sp. Acts, Ch. 61-2915, §1)
Cross reference—Sec. 415 empowers the city to make provision & ;
_ for a clerk of the ee court.. Moar 4,
Sec. 161. Salaries of mayor, clerk and attorney.
That beginning October 1, 1949; in lieu of any endl |
all salary‘or compensation as now fixed by law, the full
‘salary and compensation of each of the officers of the
City-of Tampa, Florida, hereinafter enumerated shall be
in the folowing — per. annum:
<7 ¥ ee eT"
IN THE SUPREME COURT OF .
.) + THE STATE OF FLORIDA).
_CASE ‘No. 40,156 -
- GERALD SHADWICK,
. Appellant,
" .- GS.
CITY OF TAMPA,
Appellee.
APPELLANT'S REPLY BRIEF
’ sedtenaeeer OF THE CASE.
(The Parties will be ‘referred to in this reply brief as
- they were in the ‘Appellant’s main brief, that is “Appel-
lant” and “Appellee”. The Appellant submits that the
Statement of the Case and the Facts of this Case were .
sufficiently stated in his main brief and requires an
' further in this regard.
; STATEMENT OF POINTS
‘I ‘REPLY APPELLEE'S FIRST POINT
THE ARREST WARRANT PROCEDURE IS .
A STRICTLY JUDICIAL;FUNCTION WHICH « |
-BECAUSE OF ITS ESSENTIAL NATURE RE-
QUIRING A DETERMINATION OF PROB-
ABLE CAUSE NECESSARY TO THE AS-.
SUMPTION OF .JURISDICTION BY THE
COURT ISSUING THE SAME AND POSSES-.
SING THE ATTRIBUTE OF -AUTHORIZING
SEARCHES AND ,SEIZURES INCIDENT
THERETO, MAY NOT BE DELEGATED BY
- SPECIAL OR GENERAL LAW TO A CLERK
OF COURT AS A QUASI-JUDICIAL FUNC-
TION UNDER THE FOURTH AND FOUR-
. TEENTH AMENDMENTS TO THE UNITED —
STATES CONSTITUTION, AND ARICLE. I, .
SECTION 12, ARTICLE I, SECTION 3 AND
ARTICLE V, SECTION 1 OF THE FLORIDA
CONS a | .
ay
_-
“ 7 ~ \
ER ia oo ua
=
Br “REPLY TO APPELLEE'S SECOND POINT a
’ THE TERM “MAGISTRATES” AS USED BY =»
THE .UNITED STATES SUPREME COURT :
_ INTERPRETING THE FOURTH AND FOUR-
* TEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION TO REQUIRE.
-. THAT ARREST AND SEARCH WARRANTS
BE ISSUED BY “NEUTRAL.AND DETACH-
ED MAGISTRATES” IS NOT SYNONYMOUS |
WITH THE TERM “MAGISTRATE” AS USED
_ IN THE FEDERAL EXTRADITION STAT-
_ - UTE, REQUIRING THAT REQUISITIONS IN
' EXTRADITION -PROCEEDINGS BE SUP-
PORTED BY “INFORMATION FOUND OR
_ AFFIDAVIT MADE BEFORE A MAGIS-—
a
_ARGUMENT
I REPLY TO APPELLEE'S FIRST POINT
THE ARREST. WARRANT PROCEDURE IS... “BF
- A STRICTLY JUDICIAL FUNCTION WHICH |
BECAUSE OF ITS ESSENTIAL NATURE RE-__
QUIRING ‘A DETERMINATION OF PROB-:'
ABLE CAUSE NECESSARY TO THE AS- _
' SUMPTION OF JURISDICTION BY THE —
COURT ISSUING THE SAME AND POSSES-
SING THE ATTRIBUTE OF AUTHORIZING — §—
SEARCHES. AND SEIZURES INCIDENT - Bs
THERETO, MAY NOT BE DELEGATED BY _ |
‘SPECIAL OR GENERAL LAW TO A CLERK |
OF COURT AS A QUASI-JUDICIAL FUNC- ~
TION UNDER THE FOURTH AND :FOUR- -
~ TEENTH AMENDMENTS TO THE UNITED |:
STATES CONSTITUTION, AND ARICLE De
SECTION 12, ARTICLE. II, SECTION.3 AND -
ARTICLE V, SECTION 1 OF THE
CONSTITUTION. - ,
| Appellee’ Ss first point’ ( and the District Court’s | de-
cision) asserts that = and L panels laws authori-~
bal J
: A-48
| zing Clerks of Municipal Courts to issue arrest warrants
do not violate Constitutional prohibitions against dele-
gation of judicial powers because the arrest warrant
procedure; including the making of. decisions as to the
existence of probable ‘cause, is merely “quasi-judicial”.
This seems to infer that Municipal Courts are not Courts ©
of law because the phrase “quasi-judjcial” is employed
to describe activities which, although” ‘Judicial i in nature, |
-_ “occurs other than in a Court of law.”"
. Thus, “quasi-juditial” pe of government may”
be conferred upon and exercised or performed by per-.
missible administrative agencies when direct or im-
mediate or continuing judicial action is inxepedient or
impracticable, and do not involve any essential judicial ay
powers. “td o
Although the decisions ‘of Lower Gourte, as well as
those of quasi-judicial bodies may both be reviewed by
~ Certiorari, the scope of review in the case of quasi-ju-
dicial bodies is considerably broader than that afforded
to decisions of Lower Courts,* and, on. at least one oc-
casion, mandamus was held to be the proper remedy
to review a quasi-judicial decision,* although | it is ele-
mentary that a strictly judicial Gecision is not subject
to review by mandamus. 5
- Although the Agipalion (anid: the District Court of
_ Appeal) cite Florida Motor Lines vs. Railroad Commos-
s
‘Sioners®.as — for —_ on that oe
‘Modlin v8. City of Miami Beach, (Fla. 1967) )1 So.2d 70,\ 74.
as McRae. vs. Robbins, 151 Fila. 109, 9 So.2d°284, 390 (1942).
3. Wilson vs. McCoy ‘Mfg. Co., (Fla. 1954) 69 So.2d 659.
4 Nelson vs. Lindsey, 151 Fla. 596, 10.So.2d 1313 (1942).
5 State ex rel Kaufman vs. Sutton, Fla. App: 3, 1970) 231 So.2d
874; United States vs. Lawrence, 3 Dall. 42, 3 US. 42, i L.Ed:
502 (1795). -
€ Florida .Motor Lines vs. Rattroat Commissioners, 100 Fla, 538,
"129 So. 876 ccgriea
et US Hil dats Lao sa eae Cia tins Sac NU Ral 8S te A en we SAND thig Slo wine rates 5A £
> San :
A-49
ra
. 9?
dicial functions do not embrace strictly judicial acti-
_ Vities which are restricted to the Courts enumerated in’
the judicial article of our Constitution, both the Appellee
' and the District Court of Appeal overloéked or failed. ‘
to consider the limitations imposed by the Fourth and
~ Fourteenth Amendments to
* ‘tution and Article I, Section:
the United-States Consti-
12 of the 1968 Florida Con-
stitution on the types o judicial activities which maybe
' designated ‘as “quasi-judicial” as distinguished from --—
. those which are strictly : judicial. As this Court stated
in that case:
- - “Whether a futiction is judicial or quasi-judicial
mast determined fro
m its essential nature and
attributes and the law applicable thereto.”
- Thus, the administrative procedures of the Florida
Railroad Commissioners for
modify or deny certificates:
Z
deciding whther to grant, ‘
of ppublic convenience and ——
necessity to common carriers was held in that case-to
not constitute a function whi
ch from its essential nature |
_ and attributes could only be performed by a Court. .
oa
It is thus necessary to examine the essential nature —
and attributes of ‘the arrest warrant procedure to de-
termine whether; from the
Jaw, it is’ such a function
- which need not’be performed by a Court: -
____ First, it_must be borne in mind that an arrest war-
rant is, in efféct, an authorization to séarch since every
lawful
of the person arrested and:
/ authorizes, as an incident thereto, a search
“the area within which he
might gain| possession of a. weapon or destructible evi- °
‘dence.”® Thus one attribute
7 Ibid at 199 So. 982. |
of the arrest warrant pro-
8 Chimel vs. California, 395 US 752, 89 So.Ct. 2034, 23 L.Ed. .
2d 685: (1969); c.f. State vs. O’Steen, (Fila. App. ; 1970) 238
_ So0.2d 434; and cases cited therein. *
—
Mh in the incidental aie: which His exrent entails, 5
which, although restricted as to the area to be searched,
is broader in the respect that no specific location or
items to be searched for must be enumerated in hiss
affidavit or warrant.
Appellee also cites Btate ex rel Melson vs. Peeler®
and Ocampo vs..United States’° to support its argument
that determinations of
ed to the Courts. Neither ols ese cases however, dealt
‘with the Constitutional li
in the Fourth and.Fot gate a o to the United
States Constitution or \Article I, Section 12 of the Flor-. .
ida Constitution. Ocampo. did hold that certain provis-
| ions ‘contained in the Manila Charter authorizing: the
_.. prosecuting attorney to conduct preliminary investiga-.._
‘tions and file information for prosecution under the
criminal laws of the Phillippine Islands did not violate
the Phillipine Bill of Rights but it should be pointed out |
that the informations were required to be sworn to be-
. fore the Judge of the Court of First Instance. who there-
upon: issued the arrest warrant. Although the Court’s
_ opinion did not make it clear whether the Judge of the |
‘ Court of First Instance held any discretion’ to refuse to
issue the arrest warrant it does appear that the act in |
question reserved to the Court of First Instanee the
ower to “make such summary. investigation into the
- case as. it may deem ncessary to enable it to fix bail or |
determine whether the offense is bailable” and it should
not be presumed that. thé Judge’s action in we the |
arrest warrant was ministerial." x
' Melson merely held that the limitation of prose-
cution statute in-Plorida was tolled by the filing of an ©
information in the Court noe se areaeicnea! of the of-
9 State ex rel Melson us. Peeler, 107 Fila: 615, oe So. 188.1933):
8 712, 582, ‘L.Ed. :
10Q0campo vs. United States,- 234 U. S. 91, 34
1231 (1913).
United States vs. Lawrence, 3 —_ 42, 3 US. 42,1 L.Ed.
le cause are not exclu-.
sively judicial functions whofe exercise must be restrict- ~
‘on arrest contained x
. - g iy
« . “
Unanseaeoned fleas Abd labial aside iM ti nc laanich land
’ : .
. M4 :
naleanekne.
WR i ane ARRAN na AND Ead nr
; :
-fense charged and since that act constituted the insti-
_ tution of a criminal prosecution the issuance of a
capias thereon by the Clerk .of the Court was purely a
‘ ministerial act, the validity of which was not questioned.
Although Melson is clearly inapplicable it is believed
that Appellee intended to assert that case for the prin-
ciple stated in Hall vs. State’? where the Court-referred
the duties of a State Attorney requiring an examination .
, Of evidence and the. determination of questions of law.
and fact. before taking action thereon by filing an infor-
‘mation as being “quasi-judicial” or discretionary in.
-. _ Character. However the Court there recognized that the.
- power of a State Attorney to perform such functions —
"| ‘was expressly sanctioned by our Constitution.’ The act —
_ performed by a prosecuting attorney in filing an infor-
mation charging the commission of a criminal offense
with the Court having jurisdiction over that offense
_ serves the same purpose as that of a magistrate in de-
termining probable cause for the issuancce of .an arrest.
%
warrant, since both activities confer jurisdiction upon
the Courts.'* Whereas jurisdiction may be conferred up-
-, On a Court in a particular criminal prosecution where .
the prosecuting: attorney. for the Court filed an infor-
mation therein, the determination of probable cause is —
necessary to the existence of the magistrate’s jurisdic-
tion to issue the arrést warrant. Thus, the assumption of
jurisdiction is a second attribute ° of the arrest warrant °
_ procedure, the essential nature of which is strictly ju-
dicial and may not be exercised by or delegated to Clerks
of Court.’
'2Hall vs. State, 136 Fla. 644, 187 So. 392 (1939).
'sArticle I, Section 15, Florida Constitution,of 1988 formerly Sec-
tion 10, Declaration of Rights, 1885 Florida Constitution. “
Sullivan vg. State (Fla. 1951) 49 So.2d 794...
'SNewport' vs. Culbreath, 120 Fla. 152,.461 So. 340 (1935); Otto
vs. Harllee, 119 Fla. 266, 161 So. 402 (1935).
erg
p
Abe.
ie ‘REPLY TO ) APPELLEE'S § SECOND POINT |
THE TERM “MAGISTRATE” AS USED BY -
\ “THE UNITED STATES SUPREME COURT
- \. INTERPRETING THE FOURTH AND FOUR-"
TEENTH AMENDMENTS TO: THE UNITED
STATES CONSTITUTION TO. REQUIRE,
‘THAT ARREST AND SEARCH WARRANTS
' - BE ISSUED BY “NEUTRAL AND DETACH-
- ED MAGISTRATES” IS N@T SYNONYMOUS
‘WITH THE TERM “MAGISTRATES”, AS
--USED IN THE FEDERAL EXTRADITION
STATUTE, REQUIRING THAT REQUISI- .
TIONS IN EXTRADITION PROCEEDINGS
BE SUPPORTED BY “INFORMATION
FOUND OR AFFIDAVIT MADE BEFORE
A MAGISTRATE.” * —
Appell lee also asserts that a Clerk of the Municipal
Court i is & and detached “magistrate” within the
intendment of certain United States Supreme Court de-_
- cisions requiring: that determinations of probable cauge
for.the issuance of arrest warrants be made by a neutral
“and detached magistrate under the Fourth and Four-
teenth Amendments to the United States Constitution
and Article’I, Section 12 of the Florida Constitution,
" because that Court and this Court have both ‘upheld
'. interstate extradition proceedings under a Federal Stat-
ute requiring the requisition of the demanding’ state to.
Qa.
be supported by “an indictment found or an affidavit |
_ made before a magistra ” of the demanding state,
, charging the commission of a crime by the person... |
sought to. be extradited where the requisition was sup-.
‘ported by affidavits executed before 4 Georgia notary” ~
~~ public'* =, a deputy clerk of the City of ss casa ies
. New ‘York.
| However, an examination ne those decisions Sas .
=
1Ciedneiel vs. Alabama, 214 US. 4, 29. S.Ct. 605, 53 L.Ed. “a ved
- (1909).
'7State ex nt Miller. v vs. McLod, 142 Fla. 254, 194 So. 628 (aio),
& ate ik 7 = a's suites .
iene See
big Pebdoet baie eo
: “ * ~ ment i in the statute that the magistrate decide any ques-
53
that the ‘cnatttaticbal question raised in this sciccinee:
~~were neither raised nor decided: in those cases, the sole
| ec aberpr hirer ipl cd ohaedbarnorelaaaa and
_ application of the federal extradition matute. -
(2
In -the latter case ‘(State ex rél vs. _ McLeod), 18
= _ the Florida Supreme Court quoted the New York stat-
ute which authorized the Clerk: to “take information up-
on which warrants for the arrest of persons, charged
with ‘the commission of a*trime or the violation of an .
ee eee es
(emphasis supplied ) The Court then noted :
: ‘tb An Wapoihitet tk Wk be ile, pide that ca the
-, Same day the affidavit, was made-before the deputy ~
clerk of. the City of estér, Criminal Branch,
: Plaintiff in ‘error had °committed ‘an offense, the
_ Judge of said Court signed a warrant for the arrest
of Plaintiff in error tested in the name of the ‘Peo- -.
ple of the State of New York’ address to any-
\ + "Beace Officer in the State of.New York’ and, re--
citing that ‘Information upon) oath had been laid
. Before him of the crime’ and accusing Charles E.
. Miller (Plaihtiff i in error) thereof’.”"9 _
Thus, for purposes of construing and applying the
federal extradition statute, that decision held, in efffect,
. that the mere ministerial act of mak as ont the oath
‘to an affidavit, for an arrest warrant was that was ©
a
7
» required by_the federal statut#, there being no require- .
23 tions of law or fact before aoc one the act.
In Compton vs. Alabama, 20 on. the other hand, the’.
Supreme Court: of’ the United States pointed out that
under Georgia law in effect at that time, notaries ‘public
*, were Martens justices of the Peace” deus were re-
19S¢e note 17 supra. ‘ “a : wail haces ai :
19At 194 (Bo. 630. ie | gee
20See note 16 supra. © ; : eae
A
a ae Is
7.
©
+s
he. | ms a A56 <.
_|.° IN THE SUPREME COURT OF \
|. ‘THE STATE-OF FLORIDA *.
CASE NO. 40,156
GERALD SHADWICK,
‘Appellant, © >.
vs. - :
co, : CITY OF TAMPA, |
os Appellee.. 7
APPELLEE'S BRIEF
" STATEMENT OF ' THE CASE 7
| This is an appeal from a. Final Judgment from the
‘District Court of, Appeal, Second District, reported as
- Shadwick. v. City of Tampa, 237 So.2d 231 (2d D.C.A., |
Fla., 1970). The Appellant was the Appellant below and | °
Appellee was Appellee. In this brief the parties will be-
- referred to as they stand in this Court, eens and
Appellee, respectively.
The following symbols ‘will be used:
“R” for Record-on-Appeal - |
_ “A? for Appendix of Appellee. . -..@
a “The cause was Sdaaensed = the Appellant was’
arrested and charged with “careless driving while drink-
ing” on March 6, 1969, in the City of Tampa, Hills-
borough County, Florida, in violation of Section 36-89 .
(b), City of Tampa Code’ (R-1 thru 5). The. Appellant
filed his Motion to Quash Warrant .on March: 13, 1969,
in the Municipal Court of the City of Tampa (R-6 and
7) and suhsequently, on April 18, 1969, an Order was
_ entered denying said Motion (R-8). Appellant on April .
23, 1969»-filed Petition for Writ of Certiorari in the Cir-.
, cuit Court of the Thirteenth Judicial Circuit, in and for
* Hillsborough County, Florida, (R-1 thru 3) and on
;
i
3
: x
%
;
Segoe - Eee ‘ . :
’ i
A-57
_ July 23, 1969, the Honorable Neil C. McMullen, Circuit - _
Judge, entered an Order Denying ‘Writ of eee.
(R-9). - -
- From this’ ‘Order (R-9), Appellant on ’ Alea 21,
1969, timely filed his Notice of Appeal (R-16) to the
Supreme Court of Florida which found the matter to
be within the jurisdiction of the District Court of Ap-
peal, Second District, and transferred the case there.
-
. Subsequently, : after oral arguinent the Second Dis-
trict Court of Appeal filed its Opinion en. June 24, 1970,
‘holding the challenged statutes constitutjonal and af-
firming the Order on appeal (R-57 thru 61), |
After entry of an ‘Order Denying neHeering
- (R-66), Appelant on August 24, 1970, timey filed his. .
Notice of Appeal in-this Court invoking its jurisdiction
under Article 5, iaacacu 4 (2), ; Florida Constitution
— (1968)...
.. The challenged decision of the Second District of
_ Appeal (R-57 thru 61) is made a part of this Brief.in —
the Appendix attached hereto (A-5).
POINTS INVOLVED
b THE DECISION ON APPEAL (R57 thru
61) SHOULD BE AFFIRMED AND AD-
_ OPTED BECAUSE’-SPECIAL AND GEN-
ERAL LAWS PERTAINING TO DUTIES OF
_ CLERKS OF -THE MUNICIPAL COURT TO
_ ISSUE ARREST WARRANTS ARE CONSTI-
TUTIONAL: DELEGATION OF A QUASI-JU-
DICIAL POWER WHICH, IMPLIES .THE |
POWER TO DETERMINE PROBABLE >
CAUSE. Art. 1, Sec. 12; Art. 2, Sec. 3; Art. 3,
. Sec. 11(a)(1); Art. 5, Sec. 1, Fla. Const..
(1968); 4th and 14th Amend., U.S. Const... —
. (raised by Appellant’s Assignment of Errors
- .No. 1 and 2 (R-67), and Appellant's Brief,
_ Points 1(A) (B) and (C)).. ;
9
ASB
Il. THE DECISION ON APPEAL (R-57 thru —
61) SHOULD BE AFFIRMED AND ADOPTED |
‘ BECAUSE A CLERK OR DEPUTY CLERK
OF THE MUNICIPAL COURT OF THE CITY ~
| OF TAMPA IS’ A NEUTRAL: AND DE-
TACHED “MAGISTRATE” WITHIN THE RE-
QUIREMENTS OF THE 4TH AND 14TH
AMEND., U.S. CONST., AND ART. 1, SEC.A2,
FLA. CONST., BY -VIRTUE OF THE FLOR-
- IDA* LAWS FIXING THEIR POWERS AND
DUTIES TO ISSUE ARREST WARRANTS.
Fla. Stat. Sec. 168.04(1967) and Secs. 495,
160.1, and 5(d), Charter of the City of Tampa
(A-1 thru 4), (raised by =— Brief,
‘Points I(a) (b) and. (c).) -
peal.
STATEMENT OF THE FACTS |
‘Due to the nature of the points involved, there are
no factual matters meres? determination on this Ap-.
_ ARGUMENT
_ POINT I
_ THE DECISION ON APPEAL ( R-57 thru. 61)
PERTAINING TO DUTIES OF CLERKS OF
SHOULD BE AFFIRMED AND ADOPTED |
BECAUSE SPECIAL AND GENERAL LAWS
THE MUNICIPAL. COURT TO ISSUE AR-
REST ‘WARRANTS ARE CONSTITUTIONAL
DELEGATION OF A QUASI-JUDICIAL POW-
ER WHICH IMPLIES THE POWER TO DE-
TERMINE PROBABL CAUSE. Art.'1, Sec. 12;
Art. 2, Sec. 3; Art. 3, Sec. 11(a) (1): Art. 5,
Sec. 1, Fla. Const. (1968) ; 4th and 14th Amend.,
U.S. Const. (Raised by Appellant’s Assignment |
of Errors No. 1 and 2 (R-67), and Appellant’s
-Brief, Points 1(A) (B) and. (C). )
The points raised in Appellant’s Brief are not in
harmony with the issues raised and decided in the decis-
WDE Ne en # iokoiiiae
9s
; . A-59
ion on hopes (R-57 thru 61). Briefly summarizing that .
decision, the Court held that Fla. Stat. Sec. 168.04 #£-
(1967), and Secs. 495 and 160.1 of the Charter of the
City of Tampa are constitutional “... . in so far as they
“ ‘purport to vest in the City Clerk the power to -issue
_ Arrest Warrants, and impliedly therewith, the power .
to determine the question of probable cause for the |
arrest.” (R-58)..The lower Court further held that
. the decision whether to issue a Warrant is, at most, ~~ Zs
Raat ane and not within the ‘judicial. power’ re- |
- served mei the Constitution to the ss branch. ” val
59). : ‘
Any implication, in Appellant’s Brief that the ee al
Court has departed from the numerous federal constitu-
_ tional requirements cited by the Appellant, or that the
‘lower Court ignored the issue of “probable cause” is
* quickly dispelled by the requirement “. . . that the per-
son who issues the Warrant be neutral and disinterested;
and that such person make a finding of hata cause |
before issuing a Warrant. ” (R-61).
The Constitution ‘of the State of Florida neovilies
that special laws or general laws of local’ application -
may be passed by the Legislature pertaining to duties
of municipal officers. Article I, Sec. 11(a) (1), Fla.
Const. (1968). This power of the Legislature to pass
_ laws fixing the duties of municipal officers is not ‘sub-
stantially changed from that which existed under Art.
3, Sec. 20, Fla. Const. (1885). _
By virtue of this constitutional power, ‘the Legisla-
ture enacted the following special laws’ pertaining to
the duties of Clerks and Deputy Clerks of the Municipal ;
. Court in the City ‘of Tampa and incorporated in the
‘Charter of the ‘City of Tampa, Sec. 495 and Sec. 160.1.
. “Sec. 495—Arrest with’ and without Warrant.
| The Chief of Police, ‘or any policeman of the
City of Tampa may arrest, without warrant, any
=< — any of the ordinances: of said City,
“>
A-60
committed in the presence of such officer, and when.
_, knowledge of the violation of any ordinance of said -
City shall‘come to said Chief of Police or policeman,
not committed in. his presence, he ‘shall, at. once
make affidavit, before the Judge or Clerk of the
' Municipal Court,.against- the person charged-with-- a sara
~ - such violation, whereupon said Judge or Clerk shall
issué a. Warrant for the arrest of such..person.”
Laws of Fla. 1903, Ch..5363, Sec. 17 (A-1).
Emphasis: eee =
“Sec. 160. 1—Same, Appointment of Deputies; |
_ Rowers. °
The City Clerk of the City of Tampa, wi with the
approval of the Mayor, may appoint one or more
_ deputies, such deputy or ‘deputies to be selected
fromthe approved classified list of the City Civil
Service, and to have.and. exercise the. same powers ©
as the City Clerk himself, including but. not limited
to the issuance of warrants. One or more of such
deputies may be designated as Cjerks‘of the Munici-
pal Courts.” Laws of bis 1961, Ch. 61-2915, Sec.
1(A-2 and 3). — |
Emphasis: ‘supplied. |
oe [he aforementioned powers of- the Clerk of the
Municipal Court, or his deputies, are not incompatible or
in conflict with the general laws of the State of Florida.” _
Fla. Stat. Sec. 168.04 (1967) ; Headley v.-State, 166 So.2d
479 (3rd D.C.A. Fla. 1964). ‘In fact, it is the duty of the
officers of the City of Tampa to ‘exercise the powers
granted to them by virtue of the general’ laws: of the
State of Florida. Sec. 5(d), Ch. of the deta of ne
(A-4). :
. The Appsiiant is ap ntly concerned that the
_ Clerk or Deputy Clerk of De e Municipal Court is not a
judicial officer such as could perform the duties of de-
termining probable cause or act-as a neutral. and
detatched magistrate in the exercise of a judicial dis-
eretion. to determine the existence of probable cause.
- However, the function of determining whether probable
:
A-61
cause exists for an arrest is only quasi-judicial and need _
oo
hot be confined to strictly judicial officers. State v. Fur-—
mage, 109 SE2d 563, 570 (Sup. Ct. N.C., 1959) ; Ocampo;
v..U. 8., 243. US. 91, 58 L. Ed. 1231, 34 S. Ct. 712. .
' . Ktter discussing the Various powers of a Solicitor
"and thé fact-that-the Legislature may grant quasi-judic-
-. lal powers, the Court in State v. Furmage, supra, quoted :
from Ocampo v. U.S:, supra, as follows:
_. “It is insisted that the finding of probable cause
is a judicial act, and cannot properly be delegated
to a prosecuting attorney. We think, however, that
it is erroneous to regard this function .. . as being
judicial in the proper sense. There is no definite
adjudication..A finding that there is no probable
cause is not. equivalent to an acquittal,- and. only
entitled the accused to his liberty for the present,
leaving him subject to re-arrest. . . . In short, the
. function of determining that probable cause exists
for the arrest of a person accused is only quasi-ju-
_dicial and not such that, because of its.nature, it
must necessarily be confided to-a strictly judicial
officer or tribunal.” Id. 109 §.E.2d 570, emphasis
supplied. a . . .
_ Although the case of State v. Furmage, supra, -in- ©
volved the powers of a Solicitor, the Court recognized -
that the Legislature may pass laws authorizing Clerks
_ to issue arrest warrants even though this function may .
be judicial or quasi-judicial because such a determin--
ation is in no sense a final adjudication. Id. 109 S.E.2d
570.
- The power to issue warrants of arrest, necessarily
implies the power to hear and determine the issue of
probable cause. Id. 109 S. E.2d at page 566.
. A statute which confers the powers to issue arrest |
warrants by a Clerk or Deputy Clerk of a Municipal
Court is not an urtonstitutional exercise or delegation
“K-62
_. Of “judicial power” and eonforms to the sequirement of
'. the 4th and 14th Amendment to the Constitution of the
‘ United States. See generally Florida Motor Lines v.
Railroad Commissioners,' 100 Fla. 538, 129 So.’ 876
(1930). E.g. Kreulhaus v. City of Birmingham, 164 Ala. —
. 623, 51 So. 297. (1909) ; State v. Ruotolo, 52 N.J. 508,
247 A.2d.1 (1968) ; ‘State v. Thompson, 151 S.E.2d 870°
(W.Va. 1966) ; ¢ f. State v. Furmage, 250 N.C. 616, 109
S.E.2d 563 (1959). Contra, State v.. Paulick, 277 Minn. :
140, 151 N.W.2d 591 (1967). 4 OY |
Farthermore, such statutes are not an unconstitu-.
tional delegation of judicial power because it was cer-
tainly not‘the intent of framers of our Cénstitution to --
deny the Legislature this specific grant of power. This
specific grant of power to the Legislature to pass these
special laws (A-1, 2 and 3) is conferred by Art. 3, Sec.
11. (a) (1), Fla. Const. 1968) as formerly contained in
Art. 3, Sec. 20 Fla. Const. . (1885). The delegation by the
Legislature of this quasi-judicial power to the Clerk
and Deputy Clerks of the Municipal Court of, the City of .
Tampa does not impose upon the “Judicial power” of the —
State of Florida vested in the various courts enumerat-
ed in Art. 5, See. 1, Fla. Const. (1968) or violate the
“separation of feign clause” under Art. 2, Sec. 3, Fla.
_ duty it is. not : an illegal delegation of “judicial powers”
_ or violate the “separation of powers clause”: Florida :
‘Motor Lines v. Railroad Commissioners, stpra; Nelson
- v. Lindsey, 151 Fila. 596 10 So.2d 131, 134 (Sup. Ct. Fla.
1942).
' The general law on the i issue before the Court 3 is as |
omws:
"When 80 decried iy statute, the authds Sty. to: 4
issue warrants may be vested in officers wliose’ oth=
er duties are purely ministerial, such as cler by es q
Emphasis supplied; 22 C.J.S., Sec. 318, at Site’ a _
820-821; State ex. rel. Melson v. Peeler, 107 Fla. 615,
- 146 So. 188 (Sup. -Ct. Fla. 1933). Also see,'22 C.3.S.
"Sec. 318, 1970 Supp. Citing Miller v. U.S. 354 F.2d
801 (8.C.C.A, Mo. 1966). oO
“A Clerk of ‘Court may not exercise 2 judicial
power except by constitutional or legislative provis-
ion, and then only in accordance with strict lang-
uage of the provision.” 6 Am, Jur.2d, ‘Gerke of
Court, Sec. 22. :
“Certain a Ga asda ig judicial in
‘nature, may be performed by the Clerk of the Court.
_ A familiar example is the power to issue warrants
' of arrest.” Emphasis supplied. 15 Am. Jur.2d, Clerks
of Court, Sec. (22, |
Jn conclusion, the’ Appellee cau as s part of this
. Brief, the decision on appeal ( R-57 thru 61) as officially
reported in the case of Shadwick v. City of Tampa, 237 —
So.2d 231 (2d D.C.A. Fla. 1970) dnd, further, respect- .
fully shows the Court that the Constitution of the State
of Florida provides that special laws or general laws of
local application, such as are ‘here involved, may be
_ passe@ by the Legislature pertaining to the duties of.
‘municipal officers. The Legislature by these latvs fas
provided that the Clerk or Deputy Clerk of the Munici-
pal: Court shall issue arrest warrants in‘ the City of
. Tampa (A-1, 2 and 3) . The power to issue warrants of _
arrest implies the power to determine probable cause. ~
In the exercise of this quasi-judicial duty or power, the
Deputy Clerk of the Municipal .Court. properly issued
an arrest warrant (R-5) after obtaining a aac
Affidavit from the police officer (R-4). ‘
The Clerk and Deputy Clerks of the roe Court. >
of the City of Tampa are not police officers: exercising
‘ a dual function of active law enforcement onthe street
. _ and also issuing arrest warrants upon ae
They are appointed officers under the City Clerk
‘City of Tampa vested wi e powers of the City Clerk.
(A-2, 3). ee
3 WHEREFORE, Appellee prays this Court to affirm
and atopt the decision on appeal: tied thru 61).:
‘ on . ° :
. : :
iy . ¢
=, * ° 7 . ° »
.
ey ; ; ‘ .
ani a ‘ — Soe eT I
‘ , . — 2 :
A ~_ a
"ARGUMENT. :
/- POINT 11 ee gi
°
iz
. ‘THE DECISION ON APPEAL. (R-5T aie 61) wey :
SHOULD, BE AFFIRMED AND ' ‘ADOPTED |
BECAUSE A CLERK OR DEPUTY CLERK -
OF THE MUNICIPAL COURT OF THE CITY |
“OF TAMPA .IS A NEUTRAL /AND DE-.
TACHED “MAGISTRATE”. WITHIN THE RE-
QU TS OF THE .4TH /AND ‘14TH -
AMEND. iM . CONSTITUTION /AND Sata. a’
SEC. 12, FLA. CONSTITUTION, BY VIRTUE. .
OF THE FLORIDA “LAWS G THEIR
POWERS AND DUTIES TO SUE ARREST
WARRANTS. Fla. Stat. Sec. 168.04 (1967) and
* Secs. 495, 160.1, and ered Charter of the City’
of Tampa;(A-1 thru 4). (raised by Appellant's.
Brief, Points I(a) {(b) and (c).) . :
The Appellant raised a. vexing question, "unex-
plained, whether in the realm of a constitutional war-
rant procedure, can’ a Clerk*or Deputy Clerk of a Muni-
cipal Court be a. “magistrate.
There ig no quaestion that a. conatitutional warrant
procedure requires that. inferences from facts which
lead to the Complaint “. . . be drawn by a neutral and .
_ detached magistrate instead of being judged by the offi-
cer engaged in the often competitive enterprise of fer-
.’ reting out crime.” Giordenello v. U.S.,'357 U.S. 480, 78 ©
S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958) ; Johnson v. U.S.,
333 U.S. 10, 14, 68'S.Ct. 367, 369, 92 L.Ed. 436 (1948) ’;
US. v. Lefkowicz, 285.U.S: 452, 464, 52 S.Ct. 420, 423,
. 76 L.Ed. 877, 82 A.L.R. 775; .U:8. v. Kirschenblatt, 16.
F.2d 202, 203, 51 A:L.R. 416 (2d C.C.A. 1926) ; 4th and
~~ 14th Amend., U.S. Const.; Ast, 1, Sec. 12. Fa. Const.,
' -. (1968). :
The Supreme Court of ‘the United States hiss given
_.| the’ word “magistrate” a broad meaning. In a general ©
‘sense a —. is a public civil officer, possessing
v e.
hee A-65 /
ae aint power, ingietattes,. exécutive,. or judicial, ‘: as the e
government appointing ae ma iam ordain; though in a
narrow sense he is regard
| ’ cer. 9 A, UPS. Sesto Da Court £ Digest, Lawyers Addition,
_ Justice of the Peace, Sec: 1 at page 184 (1970 Edition) ;.
J. D. Compton v. State’ of Alabama, 214 U.S. 1; 29 S.Ct. |
605, 607, 53 L.Ed..885 (1909), Where a notary public was vs
held ‘to be a “magistrate” to issue an oe war-
rant by a Governor, ~~ -
af “Mr. Justice Storey said: “y know of no other defini-"
' tion of the ‘term ‘magistrate’ than that he is a person
. ¢lothed with _ er ag a public civil officer. ” Compton
v. State of ma, a, at page 607. Tm
In the fede system, Clerks. of Municipal Court
_ clothed with authority. under State Statutes to ‘issue
arrest warrants are considered to be “magistrates.” .
". See‘generally, State’v. Ruotolo, 52 NYJ. 508, 247 A.2d 1,
inferior judicial offi-
5 (1968) footnote No. 4, citing State ex ‘rel Miller. v. ~
1940).
e ey
: Other definitions of a “magistrate” are tain 3
in the > following:
ane i person clothed with power’ as a public civil
: officer ; -4. public civil officer invested With execu-
McLeod, 142 Fla. 254, 194 So. 628, 630 (Sup. CL. Fla, :
tive or judicial powers; ...” Webster’s New Interna-
: tional TIAONETY Second Edition, —,
io’ SA Federal Law requiring an Affidavit to te
| sworn to before a magistrate, is complied with,when.
‘sworn to before me, J.M., Clerk of the Municipal
Ao eal
eo
Court,” it being presumed that it was taken’im the ~
‘Court; In re Keller, 36 Fed. 684; as used in U.S.R.S:,
_ Sec. 5278 (extradition proceedings) , it includes an...
assistant police magistrate of a City; Kurtz v.
State, 22 Fla- 36.1 Am: St. Rep. 173.” Volume 2
Bouvier’s Law pene, ae Edition ( 1914).
y
ABE
4cases — of by, them.. a
«
- of\the earlier pronouncemait bf the United States Su-
“Court refused to mandamus,a United States. District
_ Judge * issué an arrest warrant’ because: his’ actions
were performed in a judicial capacity when he deter-
mined that the évidence was not sufficient to atithorize :
the. iasuance of the warrant.
- .. Do say that a Municipal.Coyjt b Clerk or deputy’
clerk is a magistrate possessed of discretionary powers .
in pete arrest ' warrant procedure because. he may be
té having the’ ministerial duties of |
ing oaths in connection the issuance of
cha ant by one who is possessed of such discre-
tionary powers, is te ignore the principle - stated in Flor-
ida Motor Lines vs. Railroad Commissioners,?? cited by
both the Appellee and the District Court ‘of Appeal, that
it is the nature of the act to be performed, rather than.
~the name of the official who performed it, that deter--
mines whether the act is judicial or otherwise.
woe Ps CONCLUSION -
» The- Fourth and' Seairtnintts: ‘Seeehiaene. w the
United States Constitution and Article I; Section 12 of
the 1968 Florida Constitution, require that before an |
arrest warrant may issue, a determination be made that
‘Eeehaie cause exists to believe the accused person has
commi & specific crime. This determination involves |
_ augetto of law and fact, the resolution 6f which per-
or =¢ drawing: inferences from —— which is: judi-
—
- *21U nited States VS. Lasérence, 3 Dall. 42, 3. US. 42,1 L.Ed. 502
(1795).
22Florida .Motor -Linee ‘vs. Railroad Commissioners, 100 . Fla. 538,
129 So, 876 (1930). — ‘ r
quired to “keep, abparate dodkets of of all civil —_ crimihal |
_ These. <dpcisions and others, involving application -
‘the federal extradition statute, must be read in light
e Court in United States vs. Lawrence*' where that -
: , . . ‘ . °
: - s >
* = ®
Di sas eit ip lite oo an wen tetaotig bs Boat sikindairins disenth lab adie
ABB a
cially less competent. ere that ere to sanction an
arrest without t, and must therefore be made . -
.. by a neutral and Getached magistrate in the exercise of
discretionary or judicial power as opposed to the per-
' formante of purely ministerial or: executive duties. The
existance of probable cause is necessary to the assump- | :
. tion of jurisdiction by the Court issuing the warrant so
that one attribute of the determination of its existence, - -
is a determination of the Court’s jurisdiction. Another
attribute of the arrest warrant procedure is the search -
and seizure incident to the execution of the warrant by
arrest. ,
- The essential nature of both ettribates. require that
the decision making function ‘(the determination of:
7 probable cause) be performed by an officer po@sessed
of strictly judicial power and preclude its exercise by,-
or delegation to, a quasi-judicial officer, much less -a
. ministerial officer, Accordingly, both special and -gen-
eral laws purporting to vest these powers in a clerk or _
deputy clerk of the Municipal:-Court are unconstitutional
. delegations of judicial power .under the Fourth and_
Fourteenth Amendments to the United States Consti-
tution, Artiele I, Section 12 of the Florida Constitution,.
. andthe separation of power clause (Article II, Section
_ 8) and Article V, Section 1 of the Florida Constitution
' vesting the judicial power of the state in certain. Courts.
-MALORY B. FRIER
_ Attorney for Appellant |
-» 1809 North Howard Avenue
Tampa, Florida 33607
CERTIFICATE. OF SERVICE
‘I HEREBY CERTIFY that a true copy of the fore- ..
. going APPELLANT’S REPLY BRIEF has been furnish-’
ed, by U. S: Mail, to Gerald H. Bee, Esquire, 725 E.
Kennedy Boulevard, Tampa; Florida 33601 and Wm.
Reece Smith,.Jr., P. O. Box 3239, Tampa, Florida 33601,
3 Avoraeye for r Appellee, this 22nd day of January, 1971.
MALORY B. FRIER | +
_ Attorney for Appellant
@
A66
. “Person clothed with power as a public civil
_ officer. State ex rel Miller v. McLeod, 142 Fla. 254,
' 194 So. 628, 630.” Black’s Law mained 4th Edi-
‘ = (1957).
| The Supreme Court of Florida, following ‘the Su-
preme Court of the United States in:Compton. v. jeep :
of Alabama, supra, has given ‘the word “magistrate”
broad meaning and has held a Deputy Clerk to be i a |
magistrate within the meaning of a Federal Extradition: =.
Act by virtue of the powers vested in said Clerk under .
the laws of the.State of New York. State ex rel Miller
v. McLeod, 142 Fila. 254, 194 - 628, mcs (Sup. Ct. Fla.
cia \ :
- _In conclusten, Appellee respectfully shows the Court
-- that the definition of the word “magistrate” as applied’
in the case law in ‘the Florida arid the Federal systems .
to. determine the constitutionality of a warrant system
is given a broad meaning Py Clerk and-Deputy Clerks
of. the Municipal Court of City of Tampa are neutral
and: detached “magistrates pas todd with law en-
forcement, for the purpose of.issuing arrest warrants
within the requirements of the 4th and 14th Amend.,
..U.S. Const., and Art. 1, Sec. 12, ».Const. (1968), by
virtue :of the. Florida Laws fixing their powers and
‘duties to issue arrest warrants The lower~court in its -
decision on appeal did not depart from these~guiding.
‘.principles and set forth the correct standard _— a
constitutional warrant procedure. (R-60, 61). a
ae WHEREFORE, Appellee prays this Court to sftirm
' and adopt the decision on appeal (R-57 thru 61).
‘Respectfully wicbenitted, |
WM. ae aaere SMITH, JR.:
By: GERALD H. me
Assistant City Attornéy .
725 E; Kennedy Boulevard
Tampa,‘ Florida 33602.
i‘ ATTORNEYS rus APPELLEE ;
, .
me li vey + y
> é . og
* * CERTIFICATE OF SERVICE
| I HEREBY CERTIFY that a true copy of the. fore--
', going. Appellee’s Brief has been furnished, by U. S. ;
Mail, to Malory B. Frier, Esquire, 1809 North Howard |
Avenue, Tampa, Florida 33607, Attorney for Appetlant, —
aa 16th day’ of December, 1970. © pf
GERALD H. BEE
g
>
— A-68,.
Chapter 24 ° |
‘POLICE DEPARTMENT*
Sec. 494. Powers of mayor 1903 Charter; organization
of police force. -
‘The duties of the mayor shall be to see that all the | _
ordinances: of the city council are faithfully executed,
and he is authorized by and with the consent of the city
council to organize and appoint such police force as
shall be necessary to insure peace and good order of the
city and the observance of law within the municipal.
lithits. He shall have pewer to appoint by and with the
consent of the city council, all officers of the city who
.are not made elective by this charter. He shall have the —
" power to bid in all property for the city at any and all
judicial sales, or sales under process of law, where the _
city is a party; to make pro tempore appointments to
fill vacancies caused by death, sickness; absence or other |
disability of any city officer, but he shall not have the
power to fill vacancies in the members of the board of -— .
_ commissioners of public works or of the city council. .
(Ch. 4883, Laws of Florida. 1899; Ch. 5363, § 7, Laws of
_ Morida 1903)
' Sec. 495. Arrest with and without warrant.
The chief of police, or any policeman ‘of the City
'- of Tampa, may arrest, without warrant, any person
violating any of the ordinances of said city, committed
in the presence of such officer, and when knowledge of
the violation of any ordinance of said city shall come to
_ said chief of police or policeman, not committed in his
presence, ‘he shall at once make affidavit, before the ,
. Judge or clerk of the municipal court, against the per-
_son charged with such violation, whereupon said judge
or clerk shall issue a warrant for the arrest of such per-
- son. (Ch. 4883, Laws of Florida 1889; Ch, 5363, § 17,
Laws of Florida 1903) ~*~
Cross references—For the. creation of a police department, see
'§ 142; for the designation of the duties of the police department
and the chief of police, see § 143; for the designation of the duties
of the chief of — see § 153. .
_ Supp. No. 4
‘ ‘A-69
‘He shall be the’ clerk of the boa of representatives,
and shall also act as ex-officio clerk of the municipal
court. The clerk shall give such bond as the board of
representatives:may fix, and shall perform all the duties -
now or hereafter imposed upon him by law or ordinance
not inconsistent with the provisions of this revised. char- -
ter. The city clerk shall be paid as compensation for his ~
services the sum of $3,600.00 per year, payabble in mon-
thly installments. (Rev. Char., § 22, 1927) |
Editor's note—The salary of the city. clerk” was $6000 as 3 fixed
by § 160 (see. § 160.01).
Sec. 160. Same—Salary,. 1957.
-That beginning October 1, 1957, in lieu of. any and
* all salary or compensation as now fixed by law, the full
salary and compensation of the city clerk of the City
of Tampa, shall be six thousand dollars ($6,000.00) per
annum, payable ‘in equal monthly installments in the
manner and form as now provided. by law. ( Sp. Acts Ch.
57-1908, § 1) - |
Editor’s note—The salary of the clerk as eatablished in the year
1949 is contained in § 161 and § 393. -
' See. .1160. 01. Same—Salary, 1965.
Beginning October. 1, 1965, in ie of any and all |
salary or compensation as now fixed by law, the full
- salary and compensation of the city clerk of the City of
Tampa shall be seven thousand five hundred dollars
($7,500.00) per annum payable in equal monthly install-
‘ments in the manner and form.as now provided by law.
(Sp. Acts, Ch. 65-2301, §1)
_ Editor’s’ note—Section 160. 01, derived from Ch. 65- or a.
supersedes the, provisions regarding the city clerk’s sdlary con-
_ tained in previous enactments, as compiled in §§ 159, 161, and 393.
7 Sec. 160.1. Same—Appointment of deputies; powers.
The city clerk of the City of Tampa, with the ap-
- proval of the mayor, may appoint .one or more deputies,
such deputy or deputies to be selected from the-ap-
proved classified list ofthe city civil service, and to have
and exercise the same powers as the ed clerk himself i in-
| i |
A-70
cluding but not limited to the issuance of warrants. One >
or more of such deputies may be designated as clerks of
the municipal court. (Special Acts, Ch. 61-2915, § 1)
Cross reference—Section 415 empowers the city to make provi-
sion for a clerk of the municipal court. :
Sec. 161. Salaries of mayor, clerk and attorney.
_- . That beginning October 1, 1949, in lieu of any and /
all ‘salary or compensation as now fixed by law, the
full salary. arid compensation of each.of the officers of
the City of Tampa, Florida, hereinafter enumerated |
shall be in the one amounts per annum:. :
by attachment summarily against the person and pro-
perty of,the delinquent if the same can be found. Pro-
vided, that.the penalty enforced shall ih no case exceed
imprisonment for more than six months or a fine of five
hundred dollars, - either or both; (2). they shall have
. power to remit fines and commute ‘séntences imposed
by. the municipal judge; and
(da) In addition to the powers hereinbefore enum-
erated, the city council shall have the power and perform
all the duties imposed upon them by the laws of Florida,
now in force and which may hereafter be enacted, pro-
viding for the government of cities and towns, not in-
consistent with the provisions of this act; and the
' mayor, chief of police,-clerk, treasurer, tax assessor and
tax collector, and other officers, shall have the powers
and perform all the duties conferred and = upon
— by ‘<n law. .
(e) The said council shall have the onder to fix and
establish fire limits in said city. and to prescribe rules
and regulations for the erection and repair of buildings
in said city; provided, that the fire limits as now: estab-
lished shall not be decreased except by unanimous con-
_ sent of: all persons owning property in any block to be »
A-71
taken out of said fire limits. The city council shall also
pass such ordinances as may be necessary to protect
and preserve peace and order upon all property owned,
_ leased, managed or controlled by said city outside of .
-the city. (Special Acts, 1917, Ch. 7714, § 3; Special Acts,
Ch. 61-2927, § 3) :
Cross reference—For the powers of the city generally, see gg
3, 4. é
®
Sec. 5. 1. Rewards for spprehenaion, conviction: of per-
_ sons committing capital, crimes. ;
. ‘The City: of Tampa is authorized to offer rewards,
and.to appropriate funds for the payment of such re- .
wards, to a person or persons furnishing information
- resulting i in the apprehension and conviction of any per-
son or persons committing a capital crime within the -
corporate limits of the —- — Acts Ch. 59-1913,
§ 1) .
Cross re’ ference Authority of ‘city to make appropriations for -
necessary munieipal purposes, § 242; authority of city to provide *
group life, accident, aa annuity ‘insurance, § 492.1.
Supp. No. 5 ;
A-72 |
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
. -. SECOND DISTRICT
; JULY TERM, A.D. 1970
Case No. 70-62
GERALD SHADWICK,
Appellant, —’ °
ve. : ‘
| _ CITY OF TAMPA,
Fo . Appellee.
Opinion filed June 24, 1970
Appeal from the Circuit ‘Court.
for Hillsborough County;
Neil C. MeMullen, Judge
Malory B. Frier, Tampa, for -
Appellant.
Gerald H. Bee, Aniiciant City .
Attorney, Tampa, for Appellee
HOBSON, CHIEF JUDGE
Appellant. was charged in i Tampa Municipal Court
of careless driving while his ability to drive was im-
paired. He had been arrested under a warrant issued in
the name.of the city clerk of the City of Tampa, and
_ signed by a deputy clerk. Appellant moved to quash the |
warrant in the municipal court on the grounds that the
issuance of a warrant by a city clerk was the exercise
of a judicial function ‘by a non-judicial officer, and. there-..
‘fore a violation of the separation of powers under Fla.
Const.’ Art. II, § 3 (1968), and Fla. Const. Art. V, § 1
(1968) which vests the judicial power in the courts of |
‘the state. Appellant’s motion was denied, and he peti-
tioned the Circuit Court of Hillsborough County for a
writ of common law certiorari to review the denial of
his motion to quash the warrant. The petition was- de-
-nied by the Circuit Court, and the appellant appealed
.to the ee Court of Florida. The Supreme Court,
@
: AZ @ oe
found the matter to~be within the jurisdiction of this
court and transferred the case here."
4 Appellant contends that Fla. Stat. § 168.04 (1967) ,2
and Sections 495° and 160.1‘ of the charter of the City
_* of Tampa are unconstitutional insofar as they purport
to vest in the city clerk the power to issue arrest war-
rants, and impliedly therewith, the power to determine ©
the question of probable cause for the arrest. These and
_ like provisions have been dealt with before by Florida.
courts,* but the constitutionality of the procedure has -
not been raised in this state. — f> 4. ;
- f
OU RAR. 2.1(a) (5) (4).
2 Fla. Stat. § 168.04 (1967): “Clerk and Marshal May Take Affi- ©
| _ vits and Issue Warrants
_ “The clerk may administer an oath to. and take affidavit of
- . @my person charging another with an offense by breach of an -
_, ordinance, and may issue a warrant. to the marshal to have
the accused person arrested and brought before the mayor for:
trial. The marshal may, in the absence of the mayor and clerk
from the police station, administer oaths to affidavits of com-
plaint.and issue warrants for the arrest of persons complained |
3 Laws of Fla. 1903, Ch. 5363, § 17: ;
“The Chitf of police, or any policeman of the city of Tampa, .
may arrest, without warrant, any person violating any of the :
ordinances: of said city, committed in the presence of such
officer, and when knowledge of the violation of any ordinance
of said city shall come to said. chief of police or policeman,.
not committed in his presence, he shall at once make affidavit,.
before a judge or clerk: of the municipal court, ‘against the
person charged with such violation, whereupon said judge or
clerk shall issue a warrant for the arrest of such person.” .
4 Laws of Fla. 1961, Ch. 612915, §1: oy
“The city clerk of the City of Tampa, with the approval of
the mayor, may appoint one or more deputies, such deputy or
deputies to be selected from the approved classified list of the
city civil service, and to have and exercise the same powers as
the city clerk himself, inclugne but not limited to the issuance -
of warrants. One or more 6f such deputies may be designated -
as clerks of the municipal court.” - ;
® United States v. Melvin, 258 F.Supp. 252 (S. D. Fla. 1966):
_ Headley -v. State,ex rel. Bethune, 166 So.2d 479 (Fla. App. 3d:
1964). | Nat ae |
ATAS
Appellant contends that the decision as to whether
a warrant should issue is a judicial function and that
because the legislature may not exercise judicial func- .
tions, it may not delegate judicial functions by statute
‘to non-judicial officers. We disagree, and hold that the
. : decision whether to issue_a warrant is, at most, quasi-
judicial and not within the “judicial power” reserved by
thé constitution, to the judicial branch. See generally . |
‘Florida Motor Lines v. Railroad Commissioners, 100
Fla. 538, 129 So. 876 (1930)...#.g. Krelhaus. v. City. of .
Birmingham, 164 Ala. 623, 51 So. 297 (1909); State v.
Ruotolo, 52 ‘N.J. 508, 247 A.2d 1 (1968) ; State v. Thomp- -
gon, 151 S.E.2d 870 (W. Va. 1966) ; cf. State v. Furmage,
.250 N.C. 616, 109 S.E.2d 563. (1959). Contra, State v.
Paulick, 277 Minn. 140, 151 N.W.2d 591 (1967). |
State Vv. Paulick, supra, relied upon heavily by ap-
. pellant, dealt with the very question before this court.
_ in the case sub judice. There, the Supreme Court of Min
nesota held that a statute which vested. authority to
‘issue arrest warrants in clerks of municipal courts was
unconstitutional as.a violation of the separation of
powers. Although the court’s opinion is scholarly and.
appealing, we: choose to follow the reasoning of the
. Supreme Court of New Jersey in State v. aes supra.
The court stated at pages 3-5; . :
; “With regard to. the issuance of : a. iaebank,
there is no doubt that if a.determination of ‘proba- .
ble cause’ is to have any meaning, it must be made
by a neutral and detached ‘court official who is im-
- Maune from ‘the often competitive enterprise of fer-
reting.out crime.’ Johnson v. United States, supra,
. 333 US. giicaing , 68 S.Ct, at 360, 92 L.Ed. sek
* * * *
er finding of neutrality, eiaie. goes only
_ part of the way to justify the challenged procedure.
Before a deputy clerk is constitutionally permitted —
“to determine whether the facts as alleged by the ©
Soinplainalt constitute — cause that an of- '
AD
- . fense has been committed and that the defendant
is the culprit, we must ask: Is the deputy clerk
qualified to exercise the necessary judgment?”
5 wet @ Fes
e _ ' (W)e believe that background in the law, al-.
_ though desirable, is not a requirement jmposed by
the Constitution on a deterniination of probable
. cause. After all, probable case (sic) is a standard
_. which is designed to be applied by laymen, A police-
_ Ian may make an arrest without a warrant re
-. there is probable cause, i.e., where there are facts.
which would lead ‘a man of reasonable caution’ to
.» believe a crime has been or is being committed.”
“Throughout the history of-this country .lay-
_ men have served in various judicial capacities, and
_,particularly in order to determine the existence of .
. probable cause. United States Commissioners, ap- -
pointed by the United States District Courts, have
been invested with the power to issue arrest war- ‘.
_-. rants in federal prosecutions. Fed. Rules Crim. Pro-
cedure 3, 4. Today, almost one-third of the’ United
. States commissioners are laymen. See Staff Memo--—~
_ randum, Subcommittee on Improvements in Judicial...
_-Machinery, reproted (sic) in Hearings, Senate Ju-
_ diciary Committee, Federal Magistrates Act, 1967,. _
- p. 30. A grand jury, from which lawyers are fou- __
tinely .excluded, applies the standard of probable -.
cause in determining whether to return an indict-
ment. Grand ‘jurors and petit jurors apply sundry
rules' of law to factual complexes; our jury system
_ rests upon the premise that one need not be alaw-
yer to understand ‘guiding principles and to make |
judgment jin the light of them.” ...
_ We feel that the emphasis should not be placed upon _
. fine distinctions between judicial officers and hhon-judi-
person who issues the warrant be neutral and disinter-
ested, and that such person make a finding of probable |
o
o
|
' » Cial officers but instead upon the requirement that the _-
oe ae
ert
cause ‘before i issuing a warrant. “We see no évidence that
the city clerk is unalterably aligned with the forces of
law enforcement® and therefore he may fulfill the rofe |
_of the neutral person which the constitution — to
be placed between the police and the public. ~
Appellant argues that the city, by ilioding the clot’
to issue arrest warrants, was providing nothing more
_ ° than a “rubber stamp” for the police. If this were the. —
‘+ case, it would be clearly unacceptable. However, there .
is nothing‘! in the record to substantiate this allegation.
& “3
For the reasons stated, we hold the challenged : stat-
\ utes ee and the order appealed is
LILES and McNULTY, JJ.,.CONCUR.
6 Eg. State v. “Mathews, 210 N NO ‘35, 153- SE. 2d 791 (1967);
State.ex rel. White v. Simson, 28 Wis.2d 590, aah N.W. 24 =
(1965).
er
lp
A-77
"CERTIFICATE OF SERVICE
ee I HEREBY CERTIFY that on this . day.
- _ October, 1971; a copy | of the foregoing Moto to.Dismiss
or Affirm and Appendices was mailed, postage prepaid,
- to Malory B. Frier, Esquire, 1809 North Howard,Avenue, =,
ae Tampa, Florida 33607, Attorney for Appellant. I further’
certify that all parties sapere to. be served i been
served. | -
.
i
Ya oe
<<
Se Ww. ‘iecs Sara, Tr.
: . Counsel for Appetjer
a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.