# Appendix — Shadwick v. Tampa > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0044%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 407 U.S. 345 ## Text el 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 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 - 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.”'> ~ +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 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 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: 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 . 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 = 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. * = ® 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 ‘ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0044%3A2. Public record. Not legal advice.