Warren E. Burger: -- next in number 71-5445, Shadwick against City of Tampa. Mr. Rezneck.
Daniel A. Rezneck: Mr. Chief Justice, may it please the Court. This is an appeal from a decision of the Supreme Court of Florida. The Court below upheld the constitutionality of certain Florida statute which authorized clerks of the municipal Court of the City of Tampa to issue arrest warrants for persons who were accused of violations of municipal ordinances is raises the issue --
Harry A. Blackmun: Mr. Rezneck, let me know at the start, has Mr. Shadwick ever been tried and convicted?
Daniel A. Rezneck: No sir.
Harry A. Blackmun: Well, do we have a final judgment here then?
Daniel A. Rezneck: I believe that you do. In first place, I think that a counsel for the city as I understand at page 2 of his brief does characterize this as a final judgment of the Supreme Court of Florida. I think, that it is a final judgment under state law.
Harry A. Blackmun: Well, it is a final judgment under federal statute --
Daniel A. Rezneck: Well, I believe that it is. This was commenced as an independent proceeding by way of common law certiorari in the Circuit Court of Hills Brooklyn County, which is a Court of journal jurisdiction to review the decision of the Municipal Court of Tampa refusing to quash the warrant in this case and it was -- the writ of certiorari was denied and that was affirmed by the District Court of Appeals and by the Florida Supreme Court. So that this common law certiorari proceeding which is an independent and separable proceeding under Florida law is at an end and I think that does make this final for this Court's purposes as well. In other words, it's not a part of the pending criminal proceeding. I would in that connection, Your Honor, refer you to this Court's decision in Camara, the Municipal Court, the case involving administrative searches in this Court, which involved a writ of prohibition in advance of a trial for the violation of municipal ordinance and the case came all the way through this Court on the writ of prohibition without any factual record or without any trial of the issue and it was decided by this Court and thereby deemed final. So, that I do think that under the test that this Court has laid down, that you do have a final judgment under the judicial code.
William H. Rehnquist: Was that passed upon specifically in Camara, Mr. Rezneck?
Daniel A. Rezneck: That particular issue?
William H. Rehnquist: Yes.
Daniel A. Rezneck: I do not believe that it was raised and that issue was litigated as to whether it was a final judgment or not, but since that I suppose would be deemed a jurisdictional matter for this Court, I think the fact that this Court went on to decide the case, does decide the jurisdictional issue, at least by implication. The appellant here was arrested in March, 1969 on a warrant which charged him with violation of a Tampa ordinance, careless driving of a motor vehicle while impaired by alcohol or a drug. This warrant was applied for by a police officer of the City of Tampa and it was issued by a deputy clerk of the City of Tampa who had been designated as a clerk of the municipal court. The affidavit and the warrant appear at pages 6 and 7 of the joint appendix here. This offense is triable in the Tampa Municipal Court and it carries a penalty of not less than five days, no more than six months in jail or fine of not less than $250 or more than $500 or both. As I indicated there was a motion to quash the arrest warrant in the Municipal Court which was denied and then the common-law certiorari proceeding was brought in the Circuit Court. It was denied there, affirmed by the Circuit Court of Appeals and by the Florida Supreme Court. The Florida Supreme Court opinion is at pages 41 to 43 of the appendix and the Florida Supreme Court held that clerks and deputy clerks of the municipal court are authorized under Florida law to issue arrest warrants. And it further held that such clerks are neutral and detached magistrates under the Fourth and Fourteenth Amendments, “by virtue of the Florida statues fixing their powers and duties to issue arrest warrants.”
William J. Brennan, Jr.: Tell me Mr. Rezneck, are these clerks permitted some times as substitute for the judge as an a acting judge?
Daniel A. Rezneck: No, I don't believe so. No, all trial jurisdiction is lodged in the municipal court judges.
William J. Brennan, Jr.: Only in the judge?
Daniel A. Rezneck: Yes.
William J. Brennan, Jr.: Because I know in my own state, local police magistrates, clerks could by statute, exercise judicial powers I believe of the police judges in certain instances when the police judge himself was absent, that's not so in --
Daniel A. Rezneck: No as I understand the Florida law, the only judicial function which is confided to the clerk is the issue on certain arrest warrant. For example, he does not even have the authority to issue a search warrant. That is confided solely to the municipal court judges and of course to other judges of the State of Florida, but --
Warren E. Burger: That's by virtue of the limitation that the Florida legislature imposed, is it not?
Daniel A. Rezneck: Yes, that’s correct.
Warren E. Burger: In other words, they gave a limited quasi judicial power to the clerk?
Daniel A. Rezneck: Yes, that is precisely, yeah, right.
Warren E. Burger: How is that very much different from what's done in the federal system?
Daniel A. Rezneck: Well, I think it is very much different because the arrest warrant powers lodged in only -- first of all it must be lodged in a judicial officer in the federal system and that means either a federal judge or a United States magistrate, those are the only officers who would constitute the judicial officers for purpose.
Warren E. Burger: How about the commissioner, when we had the commissioners?
Daniel A. Rezneck: Well, the commissioners were judicial officers at that time. They were -- they operated under --
Warren E. Burger: Was there a time when the United States commissioners were not required to be lawyers?
Daniel A. Rezneck: They were not required to be lawyers until the United States Magistrates Act was passed in 1968.
Warren E. Burger: So, until 1968, would you say that the posture of a United States commissioner was very different from that of the clerk exercising these functions in this case?
Daniel A. Rezneck: Yes, I would say that it was because he was clearly a judicial officer. He was responsible solely to the courts. He had a specified term of office, in that sense, he had a guaranteed tenure. It is true that some of them were not lawyers, but that is only part of our argument here, we do not raise -- rest this case at all.
Warren E. Burger: But to whom is the clerk of court responsible, Mr. Rezneck?
Daniel A. Rezneck: Well, I think that it is not at all clear from the Florida statutory structure. You have a kind of a mixed situation here. He is actually a deputy city clerk and he is appointed by the city clerk who is administrative officer. He has membership in the city civil service, and in that sense he really is an administrative or an executive officer. He is designated by the city clerk to work in the municipal court, as a deputy municipal court clerk. In that sense, he is responsible or answerable, I suppose to the municipal court judges in his duties, but he also is responsible to the city clerk to whom he is a deputy. So that you do not have it seems to me a clear chain of command here, such as you do in the US magistrate system and as you did under US commissioner system of responsibility by the officer solely to a judicial authority.
Warren E. Burger: You don't think this clerk is responsible solely to judicial authority when he is performing quasi judicial duties?
Daniel A. Rezneck: Well, what I meant was that, in terms of his jobs, the appointed power, his responsibilities also run to the clerk who appointed him. I have no doubt that his decisions on an arrest warrant could be reviewed and in fact an effort was sought to review them in this proceeding before the municipal judge after the fact, after the warrant had been issued. But what we are concerned about with, I think are his status and his independence in exercising the judgment to issue the warrant in the first instance. In other words, I don't think it’s sufficient that his decisions can be reviewed later on by the way of quashing the warrant before a municipal court judge. I don't think that, that's what this Court contemplated when it spoke of an independent judicial officer or a neutral and detached magistrate issuing the warrant in the first instance.
Thurgood Marshall: Well, is there anything that says he is not neutral?
Daniel A. Rezneck: Is anything that says he is not neutral? No, and I don't think this --
Thurgood Marshall: Is there anything to say that he is not detached? He is certainly not connected with Police Department?
Daniel A. Rezneck: No, we are not alleging that he is connected with the Police Department, but we do not think that this case ought to turn on an inquiry into whether a particular clerk or deputy clerk is impartial or neutral or detached or capable as an individual of having those qualities. I think that the problem about the Florida procedure here is not personal really, but it’s institutional in a sense that the clerk has not been given the kind of status, independence, there are no qualifications for the office which will allow him to exercise these powers in the manner contemplated by this Court.
Thurgood Marshall: Yeah, but the Florida statute has any limitation on the ability of a magistrate?
Daniel A. Rezneck: Well, the magistrate is purely a judicial officer.
Thurgood Marshall: Yeah, but they don't say what he has to be?
Daniel A. Rezneck: Well --
Thurgood Marshall: It doesn't say he has to be detached, does it?
Daniel A. Rezneck: No, but I think that the assumption would be taxed on the inference --
Thurgood Marshall: What does the Florida statute say about magistrates?
Daniel A. Rezneck: It doesn't deal with the point of detachment in those words, but I --
Thurgood Marshall: (Voice Overlap) any state, I ever heard.
Daniel A. Rezneck: No I think the inference of detachment and neutrality arises from the fact, that he is clearly a judicial officer. In other words, he has a guaranteed tenure in office. For example, municipal court judge has a four-year term in office. He is a judge, he does perform judicial functions.
Thurgood Marshall: Well how long the clerk has?
Daniel A. Rezneck: Pardon me?
Thurgood Marshall: How long does the clerk --
Daniel A. Rezneck: The clerk is under – is a civil service employee. He, as a municipal court clerk, in terms of exercising this arrest warrant function, he does not have a specified tenure in office. In other words he is a civil service employee who has been given this particular function to exercise.
Thurgood Marshall: Well, I still don't see the tie-in between him acting as a magistrate and acting as a clerk?
Daniel A. Rezneck: But his primary duties are, clerical duties and they are the usual duties that one would associate with a clerical job. He has been given this one particular judicial function.
Thurgood Marshall: Suppose the law says that, deputy clerk of any country may also act as magistrate?
Daniel A. Rezneck: In effect that's what Florida has done here, that's what the Florida Supreme Court giving him the title of magistrate, without giving him any of the status of the judge, without changing his essential status from that of a clerical officer --
Thurgood Marshall: You keep saying the status of a judge. Magistrates are not judges?
Daniel A. Rezneck: They do not have the name of judges, they do not have the title of judges, but --
Thurgood Marshall: And they don't have the authority of judges?
Daniel A. Rezneck: Well, I think that they exercise judicial authority. They have a guaranteed tenure in office. There are limitations as to the power of --
Thurgood Marshall: Is that true in Florida?
Daniel A. Rezneck: Yes, the magistrates, such as the municipal court judges have a four-year term. They are elected and have a four-year term just as --
Thurgood Marshall: But no qualification is required?
Daniel A. Rezneck: In a Tampa, they have to be members of bar.
Thurgood Marshall: Magistrates?
Daniel A. Rezneck: Yes, municipal court judges.
Thurgood Marshall: Sitting at bench.
Lewis F. Powell, Jr.: Does Florida law require the court magistrates with authority to the issue warrants, must be lawyers?
Daniel A. Rezneck: No, under a new constitution which is going to go and which has been approved in Florida, and that will become effective several years from now, all judges with the exception of county judges and counties of small population below a specified limit will have to be members of the bar.
Lewis F. Powell, Jr.: Who issues warrants in felony cases in Florida or does it vary from jurisdiction to jurisdiction?
Daniel A. Rezneck: Under the Florida Rules of Criminal Procedures as I understand them, either a felony or a misdemeanor warrant, may be executed, may be issued by one who is defined as a committing magistrate under the rules and committing magistrates include all the judges and magistrates of the courts authority down to including the municipal court judges and the justices of the peace. However, they do not include court clerks for this purpose. So you have really a paradoxical situation here, where for a felony or for a misdemeanor warrant and that was for a more serious offense. There would have to be an independent judicial determination by a judge or magistrate, in other words by an officer in whom the authority of Constitution vests judicial power, but only for violation of the municipal ordinances, is a deputy clerk or a clerk of court who is not a judicial officer and does not have judicial power under the Florida Constitution, only for that kind of warrant, can he act to to issue it, and as I said he could not do it for a search warrant either. So it seems to me that you have a rather strange and anomalous situation here where for more serious offenses and for search warrants. Florida court clearly it does carry out the purpose of this courts decision and provides what independent judicial determination, before any such warrant should issue, but for municipal ordinances, they part from it and in this one instance they do authorize the clerk to do it.
Byron R. White: Mr. Rezneck for Fourth Amendment purposes if a police officer had left over the facts here and thought that there was probable cause to arrest and went out and arrested without a warrant at all. Whatever the situation might be under Florida law, what about the Fourth Amendment?
Daniel A. Rezneck: Well, I think that would involve the question what --
Byron R. White: Let's suppose -- assume for the moment that there was clearly probable cause.
Daniel A. Rezneck: Yes, He could not do under Florida law.
Byron R. White: How about the Fourth Amendment?
Daniel A. Rezneck: Yes, well I think, that would require the decision by this Court which I don't leave has been made ever as to what the probable cause requirements of the Fourth Amendment are with respect to municipal ordinances. I think the common law would be that, where you are dealing with an offense of that character that the arrest power of an officer without a warrant would be limited to a situation where it was committed in his presence.
Byron R. White: Well, that was the common law, what about the general proposition of the police being able to arrest without a warrant, without a probable cause?
Daniel A. Rezneck: I think that there is a legislative authority in some situations certainly, and I know it has been exercised here in the District of Columbia to give the police the authority to arrest on probable cause for certain misdemeanors.
Byron R. White: And then what about the states?
Daniel A. Rezneck: I assume that there are similar statutes in the state, and I think that will allow --
Byron R. White: Would you say to that's unconstitutional?
Daniel A. Rezneck: No, I don't think so, I think that there would be a power in the legislature to define a reason to resemble search procedure to that extent, but I would point out we're not dealing with that here because Florida has the authority to do that.
Byron R. White: Now, it's purported to say that a clerk can determine probable cause and authorize an arrest?
Daniel A. Rezneck: Yes, but it requires a warrant, in other words, this is an arrest warrant which is required under the state law.
Byron R. White: But you would say, Florida could authorize the police authority -- the legislature could authorize police themselves to determine probable cause and make an arrest?
Daniel A. Rezneck: For this kind of offense, I'm not sure that I would want to see that because I don't think that we're dealing with this kind of offense that you have the sort of necessity that might justify that practice.
Byron R. White: For a more serious misdemeanor, for a felony it would --
Daniel A. Rezneck: Well for a felony, I think it's clear under the common law and under the Fourth Amendment which incorporate the common-law rule that a police officer can arrest on probable cause without a warrant.
Byron R. White: But he may not do for, do so for a less serious municipal offense?
Daniel A. Rezneck: Well, certainly a common-law he could not. I think there might be a legislature power to vary the common-law rule in the instance of certain misdemeanors whether when you get down of the municipal ordinances level and that power will also extend. I don't think it's really necessarily to decide Your Honor. The state of Florida has not purported to do that. In other words, they -- you are dealing here with an arrest warrant, it's a Fourth Amendment warrant.
Byron R. White: But the Florida court here has said that under Florida law that the clerk is sufficiently independent to perform his function as a matter of Florida law, I gather?
Daniel A. Rezneck: Well I think that --
Byron R. White: In your opinion anyway --
Daniel A. Rezneck: -- that is a conclusion drawn by the Florida Supreme Court. I don't believe that it is possible to point to anything in Florida statutory structure, which anything objective which would give the clerk the kind of independence that a judge has.
Byron R. White: There is nothing in the statute that indicates that he isn't neither or that the Florida Supreme court is wrong and as a matter of judicial judgment investing at this Court with some independence?
Daniel A. Rezneck: Well, I think that you have your supervening federal question it seems to me under the Fourth Amendment as to who is a neutral and detached warrant for Fourth Amendment purposes and that's a federal question. I don't think that the Florida Supreme Court can decide that, and in effect they've given their opinion. They are satisfied that he is a neutral and detached magistrate, but I don't think it's possible to point to anything in Florida statutes here that would give him the kind of independence and statute that the United Stated magistrate, for example has, or that other judicial officers in Florida have, or the judicial officers elsewhere in the United States to issue warrants have.
Warren E. Burger: Well, tell me again then, what is the source of his authority to the issuing the warrant, from what does it derive?
Daniel A. Rezneck: From the statutes of Florida, one statute of general applicability which gives clerks of the municipal court the authority to issue warrants in municipal ordinances cases and then from two specific statutes applicable in Tampa which are part of the Tampa City Charter.
Warren E. Burger: Isn't kind of legislative decision that these are proper officers, as Mr. Justice White suggested?
Daniel A. Rezneck: Alright, absolutely we are dealing with a legislative act here. We do not deny that and we are challenging the constitutionality of that statute on it's face on the grounds that it isn't sufficient for the legislature just to say that somebody who is a clerical person, is ipso facto a neutral and detached magistrate because we've chosen to give him the power to issue arrest warrants, and have said that he is a neutral and detached magistrate. In other words, that's really all that you have here. You have a statute that has confided the function but has not confided or conferred any of the protections that we normally associate with the holding a judicial office. It's giving him only this one judicial function, it isn't as if it is is given a whole range of judicial functions. It certainly has not called him a judge or a magistrate and while, I would not suggest that the title is dispositive, I would point out Your Honor one of the reasons why the Tremulous commissioner was changed by Congress to US magistrate was because the title US magistrate denoted that he was a judicial officer and they were conferring judicial authority on him. Florida hasn't done any of these things, nor has the Florida Supreme Court. They have simply said we are satisfied that he is a neutral and detached magistrate.
Potter Stewart: You say Mr. Rezeck you're not, of course you're not relying on the title and the label of clerk, but you're rather relying on the nature of this man's job and duties and position.
Daniel A. Rezneck: Yes.
Potter Stewart: Where does that appear in the record, I looked for it and I --
Daniel A. Rezneck: Well --
Potter Stewart: I gather that what you say is correct that this is the only -- that his authority to issue arrest warrants for violations of municipal ordinances is the only power, the only duty he has in his job, is to perform any task that have traditionally been considered judicial tasks. What -- do we have any thing here what the -- what his job content is?
Daniel A. Rezneck: It's not in the record before you. I believe it is contained in various places in the city code, in the City Charter of Tampa. There is civil service regulations and his functions are predominantly and I would say in fact, entirely clerical with the exception --
Potter Stewart: What is he -- does he file papers and keep track of them or send in the courtroom and act as bailiff or --
Daniel A. Rezneck: Some of them do that.
Potter Stewart: What does he do?
Daniel A. Rezneck: He receives fines, for example, and gives receipts for fines in traffic cases, he prepares the dockets and the records, he issues the commitment, once a judge has ordered as opposed to sentence on seomone the deputy clerk makes out the commitment --
Potter Stewart: Equivalent of a clerk’s office in any court, in this court or any court?
Daniel A. Rezneck: Yes and more specifically I would say in any police court or any municipal court in the country that you’ll find --
Potter Stewart: Track of fines paid, and disbursements and --
Daniel A. Rezneck: (Inaudible) if the case is continued --
Potter Stewart: (Voice Overlap) payroll for the court?
Daniel A. Rezneck: that I don't know. I think the city clerk probably will have that function. I don't believe it is --
Harry A. Blackmun: Does he issue subpoenas?
Daniel A. Rezneck: Yes, he’s, I believe, the power to issue to subpoenas.
William H. Rehnquist: Mr. Rezneck, if Florida by legislation could authorize a policeman to arrest, if there were in fact probable cause in this situation without a warrant and if in fact there is a probable cause in this case, do you have really a Fourth Amendment point, simply because the policeman has taken a warrant issued by a clerk, that made a finding of probable cause?
Daniel A. Rezneck: Well, I think that you do because I think that's Florida has utilized the arrest warrant procedure here and it has made a determination that it's not proper for a policeman to arrest simply on a probable cause for offenses not committed in their presence. In other words --
William H. Rehnquist: That’s a State Law point?
Daniel A. Rezneck: Yes. Well, not entirely. For example in the Groppi case as I recall, Groppi v. Wisconsin established the right to a change of venue in a misdemeanor case. I think this Court said that it was not passing any question as to whether he would have had for example a jury trial right as an original matter, but they said that the state had provided a jury trial right, and once they did that, that invoked the impartial trial guarantee of the federal constitution through the Fourteenth Amendment and therefore they could not provide for such a transfer of venue in a felony case, but not in a misdemeanor case. So I think it is of significance that the state has elected to utilize the familiar arrest warrant procedure. In other words, you really are dealing here with what I would call frankly an ordinary garden variety arrest warrant. There’s no – nothing, you know, that the state of Florida has done here in the sense of deciding that they will extend the common law arrest powers of the police. They’ve directed the police -- policemen, as would be true all over the country, don't give a warning in this kind of situation. We would submit that, that is sufficient to make a fourth amendment warrant to invoke the decisions to this Court which do require that as I understand that he be a judicial officer.
Warren E. Burger: Mr. Rezneck, how would you categorize the power to issue a warrant, a subpoena rather as distinguished from a warrant?
Daniel A. Rezneck: I think that that would be wholly ministerial power that would not be classified as a judicial power, because you do not have the elements of discretion and judgment that enter into the warrant decision. Certainly it is not a Fourth Amendment type of decision where this Court has made it clear that, where you’re dealing with a question of probable cause to arrest a person --
Warren E. Burger: But then when we’ve considered the traditional language of a subpoena, it usually has the arcade form of briefing. You, the undersigned are directed to appear before a particular court at a time and place, laying inside all other business and sometimes it will recite on pane of penalties of the law for failure to appear, and you seem to dismiss that as ministerial duty?
Daniel A. Rezneck: No I don't dismiss it. In fact Florida had provided for such a system here toward a summons or subpoenas system. I don't think we would be here today because I don't think we would have the same problem. In other words, that does not effectuate an arrest. That is the summons or subpoena to appear. It does not result in the defendant being bodily taken into court, and of course he has got the right to come in. He has the option to come or not, the comity, to come in and try to challenge the process. In other words, if what you had here was utilized simply a summons or subpoena procedure issue by the clerk, I think you would have an entirely different case because then you would not have an arrest of the person. It's the fact that this is an arrest warrant which authorized the police officer to take the defendant immediately in the custody and with all that, that implies in terms of loss of liberty, having the post-bail, possible embarrassment and humiliation in terms of employment and with family and of course an arrest record. All those consequences flow for what happened here, because it was an arrest warrant rather than a summons or a subpoena procedure, So that I think that the subpoena or summons procedure is particularly where you’re dealing with the municipal ordinances, although these are not emergency situations, these are not serious crimes in the sense of felonies where you can dispense with warrant altogether, I think that's really the proper way to proceed. In that connection, I would like to direct Your Honor’s attention to the decision of the Supreme Court of Minnesota, in the Paulick case which we have sited both in our brief and then in our reply brief. The court there took precisely that position, that the proper way to proceed in these cases was through a summons procedure, if it was too burdensome on the judges to issue arrest warrants, but that it would not be constitutional under the Fourth and Fourteenth Amendments for deputy clerk in Minnesota.
William J. Brennan, Jr.: Mr. Rezneck, if this is the part of statute, I'm looking at your brief at page 3, and that third line after -- and where it took and may issue a warrant --
Daniel A. Rezneck: Yes sir.
William J. Brennan, Jr.: -- that were -- if that had been there and may on a finding of probable cause issue a warrant, what would your position be?
Daniel A. Rezneck: As far as the clerk is concerned?
William J. Brennan, Jr.: Yes. I am just changing the stats by adding in finding a probable cause.
Daniel A. Rezneck: Our position would be exactly the same because the Florida courts have read in a requirement and I think this case does it that the clerk must find probable cause. I think it would fairly be unconstitutional, if it made it a ministerial duty where he had to issue the warrant. I don't understand that Florida has gone quite that far, but that wouldn’t make any difference because our point would be that clerk does not have the status of the judicial officer and make that determination.
William J. Brennan, Jr.: And I take it, your position be the same if the statute said only that the clerk may exercise the powers of the local magistrate insofar as he may administer an oath, take an affidavit so forth and issue of warrant, what would you think of that?
Daniel A. Rezneck: I think he could administer the oaths, I think --
William J. Brennan, Jr.: No, but if the statute said that the clerk may exercise the powers of the local magistrate and he suspects?
Daniel A. Rezneck: Then I don't think it will be any different, I think it will be the same case.
William J. Brennan, Jr.: It'd still be here?
Daniel A. Rezneck: Yes, that they would be confining to the clerk a judicial determination, the probable cause without giving in any of the status or qualifications of an independent judicial officer, that they could not do that.
William J. Brennan, Jr.: You mean, they have at least to go to so far as to say, the clerk in the absence of the magistrate may perform the functions of the magistrate?
Daniel A. Rezneck: Well, if the functions of the magistrate is extended to issuing arrest warrants or search warrants, I would say the clerk could not do that, could not be given that power and --
William J. Brennan, Jr.: He couldn't he be designated an acting magistrate in absence of the --
Daniel A. Rezneck: Not without more -- not if he remained simply a clerk and was not given any additional status, any additional protections in office, that would simply be changed --
William J. Brennan, Jr.: (Voice Overlap) earlier, that’s right then that whole system in New Jersey.
Daniel A. Rezneck: Well, New Jersey is one of the --
William J. Brennan, Jr.: (Voice Overlap)
Daniel A. Rezneck: New Jersey is one of the few states, I might say that does authorize its clerical personnel to issue arrest warrants. There would only be a relatively few states, I think no more than six or seven.
William J. Brennan, Jr.: New Jersey still goes as far as it used to, doesn’t it, to permit the clerk to actually to function as the magistrate in the absence --
Daniel A. Rezneck: Yes, I believe they do, but of course the New Jersey statute with respect to the warrant procedures those quite far in number of respects. For example, it authorizes the issuance of arrest warrants by police chiefs, police officers and in charge of the police stations. In other words, parts that I think are already invalid in the light of this Court’s decision in Coolidge versus New Hampshire, This isn’t adding very much to that in our view. Like I said, there really is a paradoxical situation here where for the municipal violation of the municipal ordinance which is presumably the least serious of offenses in the state, that here a deputy clerk of the municipal court which is the Court at the bottom of the judicial pyramid is authorized to issue the arrest warrant, but for any other offense, no other clerk in Florida is authorized to do so. I think what that suggests is that you do not have a very fundamental state policy here in favor of the issuance of such warrants by clerical personnel. If I have anytime left, Your Honor, I would like to reserve it for rebuttal.
Warren E. Burger: I think you have consumed it all, but we'll see what the situation is Mr. Rezneck. Mr. Bee.
Gerald H. Bee: Mr. Chief Justice, may it please the Court. First I would like go to the appellants' argument concerning, in the very last portion of his brief and on argument here as concerns this appellant in relationship to the issuance of summons to come into court, in other words, an invitation. In this sense, the appellant in this case, of course, was charged, he has not been tried, was only charged then immediately then proceedings commenced, so he has not been tried or convicted.
Potter Stewart: But the offense --
Gerald H. Bee: The offense was under the ordinance called generally careless driving while drinking which is a phrase I use, but more specifically careless driving while his ability to drive is impaired by the use of alcohol or a drug. But they shortened that and call it careless driving while drinking. Now, this is a violation of -- and one of the more serious violations of our municipal ordinances. In other words, we're covering an area here and you have to realize it's all the way from a parking ticket, speeding, stop light, all the way on through up to the more serious offenses such as this one.
Potter Stewart: In Tampa do you have to get a -- as a policeman do you have to get a warrant to issue a parking ticket?
Gerald H. Bee: No sir, that is one of distinguishing features. Of course, if a parking ticket is issued and the fine is not paid then they are summoned to court. There is a difference here between this type of offense and ones that are less offensive than those that do not outwardly, what you would call jeopardize life or property. Summons; the appellant was arrested on this particular offense and if you accept what appellant is saying here that he should be summoned rather than arrested on the street, that is invited to court. What we are concerned here with is a situation, where last year throughout the entire United States 28,000 deaths occurred by reason of drunken drivers. Now that is not to mention the ones that remained in injury. 28,000 deaths caused by drinking drivers. Now that was a small city, an island. Now if you accept the appellant's argument that he should be summoned and invited rather than arrested in this particular case, what you are really saying is that if the officer sees the man driving the automobile down the road, cars going in every which way, the drunken driver weaving from side to side, he pulls a man over, he stops him. The door opens, the man falls out. He writes down a summons, tears it off and says, 'Here is your summons. Now you go home, sober up and appear up in court tomorrow morning. In effect this is saying if you use the summon system, not in the parking ticket --
Thurgood Marshall: What is there in Tampa? The man opens the door and the man falls out, this is what the police can do in Tampa?
Gerald H. Bee: Then what he does, is he picks him back up and they call the paddywagon, Your Honor, and they take him down and they put him in drunk tank for approximately four hours if he is unable to manipulate himself what-so-ever.
Thurgood Marshall: Well I know, that's not at issue here at all, is it?
Gerald H. Bee: No Sir.
Thurgood Marshall: Where do you get to decide on he would go on and keep on driving?
Gerald H. Bee: Well, because appellant has argued and in his brief says, that we should give this man summons rather than arrest him on the street, because by arresting him on the street, what your are doing, the appellant says --
Thurgood Marshall: I thought appellant’s position was that you couldn't get that warrant, unless you got it from a judicial officer.
Gerald H. Bee: Yes sir, that is his issue. There is no question about that. I'm only starting with the summons portion that, this type of offense you just can't use a summon Your Honor because this way you don't physically arrest him, you leave him in jeopardy only --
Thurgood Marshall: Then why don't you give the summons when he gets out of tank?
Gerald H. Bee: Why can you not?
Thurgood Marshall: Yes sir.
Gerald H. Bee: Well sir, because once you physically place a person under custody, when a police office takes that man and puts him into custody that technically is an arrest, even though he doesn't say “You are under arrest” or if the man doesn't understand it. Once a police officer --
Thurgood Marshall: If I understand you correctly, this man was put in the tank --
Gerald H. Bee: No sir, I'm not saying that this particular man is put --
Thurgood Marshall: But didn't you say any drunken driver is put in the tank?
Gerald H. Bee: I'm saying if he's so inebriated that he can't control himself, he's put in a drunk tank, if he is not, he is not put in the tank.
Thurgood Marshall: If he is, and he's put in a tank, you say you go get a warrant from the deputy clerk and arrest him after that, right?
Gerald H. Bee: No Sir, I'm saying --
Thurgood Marshall: Well, you couldn't go, get the arrest warrant, while the man is laying on the street, do you? Let's get that straight now what do you do?
Gerald H. Bee: Yes sir. If the man is there, he is arrested on the street. He does not go back, because the officer has observed the offense with his own five senses. Therefore it is a warrantless arrest.
Thurgood Marshall: And then he never gets a warrant after that?
Gerald H. Bee: No, Your Honor but he does, right up a complaint where he puts down the various factors that he has observed. To answer to your question, yes sir he is arrested.
Thurgood Marshall: Well, then the point is that what we're talking about is where it's not into policeman's presence, is that what we're talking about in this case?
Gerald H. Bee: I'm not saying that in this case because in this case we don't know from the record what it is. This case, I wish I did know and I wish I could answer your question Your Honor, but on the record, and the original record is filed here, commences as the appellant started this case with his motion to quash the original affidavit and warrant.
Potter Stewart: Well, restoring my Brother Marshal's questions, you know, what kind of cases is this applicable? When a policeman hears and sees and/or smells and touches, he is using his five senses, that his five senses know that the offense is committed in his presence then he arrests the person and this procedure is not applicable to all as I understood your answers to Justice Marshal's questions, is that right? And if this warrant procedure is applicable only, while there is a complaining witness or something like that who comes to a policeman or comes to the deputy clerk, is that it?
Gerald H. Bee: What you're saying is true unless the man is incarcerated post bail. Now this is, he's arrested in officer's presence. He is incarcerated he posts bail, he gets out. He is assigned a court date to come back to court, but on that date he does not come back. Then, the police officer does take his complaint, another complaint and he goes out and makes out a rearrest warrant such is involved in this case. The man is immediately rearrested but in the original arrest it was the violation on the street, initially that was really the arrest. So --
Potter Stewart: And there was no warrant at all?
Gerald H. Bee: No, there was no warrant for that at all no sir. So the answer to your question can be two ways. A warrant can be issued as a rearrest.
Potter Stewart: Or as an original arrest --
Gerald H. Bee: Or as an original arrest if it was not in officer's presence.
Potter Stewart: Right , right.
William J. Brennan, Jr.: Incidentally, who's the marshal under, what officer is that, marshal?
Gerald H. Bee: Yes sir.
William J. Brennan, Jr.: Is he a police officer --
Gerald H. Bee: 168.04 which is the general statute, I think that you're referring to is two separable parts. The first part dealing with the clerk and the second part dealing with, “the marshal may issue a warrant in the absence of the clerk and the mayor.” This is the general law.
William J. Brennan, Jr.: Yeah, but who is the marshal now?
Gerald H. Bee: Now in Tampa we do not have a marshal. We have a Chief of Police, the marshal does not – well, we simply don't have a marshal.
William J. Brennan, Jr.: Well is a marshal a policeman wherever they have a marshal?
Gerald H. Bee: Yes sir but the general law which provides that runs throughout for all the municipalities of the state of Florida whether they be in a population of say 200 people. In that case, obviously the legislature has to take care of the small municipalities as well as the larger ones.
William J. Brennan, Jr.: Well, this statute then means that not only the clerk, but in the absence of the clerk and the mayor, then the police officer may issue a warrant for the arrest of the person complaining, is that right?
Gerald H. Bee: Yes sir that is true under the general law. Now, the point is this, and this is a point that bothers me also. This particular statute is in two parts and the obvious intent of the legislature in passing that second sentence, involving the marshal is the fact that often times in your small town, not always, the town may only have a Mayor, one Clerk and one Marshal and it would not be unusual for the mayor and the clerk to be gone at the same time in one day. Now you just can't let law enforcement fall down for the one day if the clerk happens to be gone or the Mayor is out of town.
Byron R. White: But the clerk issued one here, didn't he?
Gerald H. Bee: But that's it. This case involves a clerk. In any event if the court goes to that second sentence involving a marshal and would by dictum hold it unconstitutional or whatever, it is separable from the first sentence which deals with the clerk which is the case here. Now, the State of Florida has been referred before, has passed a revision of it's judicial article, it's Article 5, consolidating it's judiciary, especially in the trial court systems to radically keep up with this case load. But the point is that this question may become moot by 1977. It provides in that article that the municipal court shall be abolished by the year 1977. The City of Tampa has filed with Chief Justice Roberts of Supreme Court of Florida, a resolution of intent, a resolution of intent to abolish its municipal courts by the end of this year, that would be January 1, 1973. What in fact I'm saying is simply this that all these municipal courts and their clerks will be abolished by 1977. Tampa is moving to do so by 1973.
William H. Rehnquist: That wouldn't affect the applicability of the statute to the other parts of Florida, would it?
Gerald H. Bee: No sir, it would not but I felt in justice this should be pointed out to the Court and brought to the Court's attention that Tampa is moving in this direction and the clerks --
Thurgood Marshall: Do you mean abolished or renamed?
Gerald H. Bee: They will be certainly --
Thurgood Marshall: Where I come from I have municipal court there. Well, where are you going to try traffic violations, I know you won't give it up?
Gerald H. Bee: No sir. What will happen when I say abolish the municipal court. They would be transferred to what is called --
Thurgood Marshall: That's right?
Gerald H. Bee: Yes sir. They would be transferred what's called a County court and these municipal judges will then becomes state judges, these clerks will then becomes state clerks. Now there are some issues that were raised as side issues in the appellant's brief concerning the conclusory terms, the affidavit is formed, the rubber stamp arguments and simply the insufficiency of the affidavit. I would merely show the Court, if it looks at the original motion to quash and the order of the first municipal judge that what appellant originally attacked in this case is the constitutionality of these particular statutes, vesting the power in the clerk to issue these warrants. Furthermore, there was never a question of did he determine probable cause. The question attacked the power of the clerk in the first instance. If you look at the order in municipal court, you will find that it was submitted really as a question of law to the court. The appellant did not produce or question of probable cause or the conclusory terms or form. There was no testimony of officer Larga (ph), the arresting officer. There was no testimony given by the appellant, there was no testimony of the clerk and there was no testimony taking of any other witness in this cause. In other words, the question of the affidavit or did he determine probable cause was never an issue. This is borne out on certiorari to the circuit court which was the next step and again, there were four specific places that the appellant put directly in question. The issues that were raised and are here and on page 8 of my brief, I show the court that disposition says and the position taken by appellant, the position taken by the petitioner in the original brief is that the city charter did not authorize the clerk to issue an arrest warrant. Then on page 14, this is on page 14 of the appendix, petitioner -- then the appellant says again. So we're here today solely on the question of the constitutionality of both statutes. Appellant says again on page 14 of the appendix. It is the contention of the petitioner that a clerk of the court is an administrative officer and not empowered to exercise and discretion and then he goes on again to reemphasize to that Circuit Judge, “we're dealing here with whether or not a particular officer can exercise judicial functions?”
Harry A. Blackmun: Mr. Rezneck, if I were to be in this connection, do you agree with Mr. Rezneck that we have a final judgment in this case under 1257 of Title 28?
Gerald H. Bee: Yes, sir.
Harry A. Blackmun: You think you do?
Gerald H. Bee: I do.
Harry A. Blackmun: And you do so on the ground that this common-law writ of certiorari haven't followed a -- equates with a writ of prohibition or something of this kind?
Gerald H. Bee: Yes, Your Honor, I think that would be sufficient to bring it up and the cause determined by Supreme Court of Florida in particular dealing with the issues that it would be classified as a final judgment.
Harry A. Blackmun: And that Mr. Shadwick may be acquitted in this case?
Gerald H. Bee: Right, he could be, he could be. What an essence is this here -- this is not an appeal from a conviction of Mr. Shadwick. Mr. Shadwick was arrested, then immediately a motion was filed with the municipal court, and certiorari an appeal to the District Court of Appeals and the Supreme Court of Florida.
Harry A. Blackmun: Well, suppose it were motion to suppress evidence made in advance of trial, what happens in your system? Do you have a common-law of certiorari there?
Gerald H. Bee: Yes, the State of Florida -- the essential requirements of law, if the defendant feels that court has not performed within the essential requirements of law, he has a right to common-law writ of certiorari to the Circuit Court, from there he can take it to the District Court of Appeals and then to Supreme Court of Florida.
Harry A. Blackmun: Is this a handy state way to avoid our usual barrier of the finality of judgments?
Gerald H. Bee: Yes sir, it is. Usually a way to avoid that, the finality of judgments that's true, this is one of the --
Harry A. Blackmun: I'll confess that I I for one am bothered by this issue in your case. It's really your opponent's problem, not yours?
Gerald H. Bee: Yes sir, I understand. In the record itself, in the appendix you will find when I argued before judge Neil MacMillan at the Circuit Court level on certiorari, I argued the wrong remedy, that was I do not have the page in the appendix because it was not in my brief, but it is -- I did argued the remedy problem that it should not worked by some certiorari originally.
William H. Rehnquist: Mr. Bee suppose --
Gerald H. Bee: Yes, sir --
William H. Rehnquist: Mr. Shadwick didn't wanted to file a special writ of certiorari and had simply gone to -- gone to trial, would he at sometime during the trial proceedings have had an opportunity to raise the validity of the warrant as a part of those proceedings?
Gerald H. Bee: Yes, Your Honor. In other words, once he has raised this, and it is in here in his record, and he has order of denial, this goes with him up to scale. He can -- if he is convicted, see he will never appeal to the Circuit Court, and the only way he is going to reduce the appellate procedure in the Circuit Court is if he is convicted. Now suppose Mr. Shadwick filed a regular motions he did here, they were denied, he went to trail, he was convicted then he would use the appellate procedure to the Circuit Court, and he would have in his appeal the assignments of error, that means i.e. the denial of his motion in the lower court.
Thurgood Marshall: Mr. Bee we're assuming that an attack is made on the search warrant in Florida. Could you take that all the way up here, in the same way before trial?
Gerald H. Bee: I believe normal approach of attacking validity of a search warrant in an affidavit is that if the motion is filed and the judge denies --
Thurgood Marshall: In my hypothetical he is using the exact same proceeding he used in this case, is that possible, in Florida?
Gerald H. Bee: I would – Your Honor that's a hard question to answer, but I think, I think it would be and the reason I say I think --
Thurgood Marshall: Well, my question is if we rule with the petitioner in this case, then every preliminary motion, in any criminal case comes right straight up here, before the man is ever brought to trial?
Gerald H. Bee: It could possibly very well do that way by common-law writ of certiorari if the appellant claims that the essential requirements of law have not been followed, then he can go by writ of certiorari and own up to this --
Thurgood Marshall: Like my brother Blackmun I got the problems too.
Gerald H. Bee: Yes sir.
Potter Stewart: This is however an independent action, as I understand it under Florida law, equivalent or roughly similar at least to action for a declaratory judgment and an injection or for a pre-trail habeas corpus which is I think historically well known --
Gerald H. Bee: Are you talking about the writ of certiorari?
Potter Stewart: Yes.
Gerald H. Bee: Yes sir.
Potter Stewart: And the final judgment and an independent action, isn't it?
Gerald H. Bee: I wouldn't call it a final and independent. It definitely affects the rights of the appellant whoever that appellant may be or the petitioner taking the risk.
Potter Stewart: It's not part -- it's not part of the criminal prosecution, it's independent action --
Gerald H. Bee: That's correct --
Potter Stewart: Independently to test a provision under the law.
Gerald H. Bee: Yes Your Honor, it's independent action.
Potter Stewart: Equivalent as I say, at least similar to an action for a declaratory judgment, or an injunction.
Gerald H. Bee: Yes, sir, that's correct.
Potter Stewart: Or for equivalent, in other ways to a pretrial habeas corpus?
Gerald H. Bee: It's another avenue of approach outside of the avenue of appeal and by error.
Harry A. Blackmun: You have declaratory judgment procedure in Florida?
Gerald H. Bee: Yes, Your Honor.
Harry A. Blackmun: Could this issue have been tested there?
Gerald H. Bee: I believe not, I believe that would be more in the civil field. They would not ask for declaratory judgment as such and I have not heard it Your Honor. It has not arisen as such out of our municipal courts, let me put it that way Your Honor, but we do in civil cases.
William H. Rehnquist: Mr. Bee, was there a seizure as a result of the seizure of evidence, as a result of the arrest in this case?
Gerald H. Bee: No, Your Honor, there is no question of seizure in this case to my knowledge.
William J. Brennan, Jr.: Well, does that mean Mr. Bee that if you lose up here, what you will do is go to the clerk's boss and get a new arrest warrant and start this prosecution all over again?
Gerald H. Bee: Would I go get another warrant for it?
William J. Brennan, Jr.: If you lose here, on the ground of this arrest was invalid, then what you'd do with the case?
Gerald H. Bee: Well, Your Honor, I would certainly not prosecute it. If I lose a request that would be prosecuted at this level, it would probably be no prosecute.
Warren E. Burger: But you could -- the issue is whether you could?
Gerald H. Bee: What -- we could continue prosecution?
Warren E. Burger: Yes.
Gerald H. Bee: Yes, sir.
William J. Brennan, Jr.: Just go to the magistrate now and get the same arrest warrant issued by the magistrate, wouldn't you, and arrest this man all over again.
Gerald H. Bee: No, sir.
Byron R. White: Why not?
Gerald H. Bee: We wouldn't rearrest him. He is already within the jurisdiction. His case has been factual, his case has just been continued until the disposition of this and then a trial date will be set down.
William J. Brennan, Jr.: Was he on bail or something?
Gerald H. Bee: Yes, sir, originally he was out on bail as I understand.
William H. Rehnquist: Well, so the determination of this issue up here will have virtually nothing to do with his trial on the merits?
Gerald H. Bee: Not on the merits, no sir. I can't see that -- let me say this, the disposition of the case here would have something to do and that would have to happen after the determination of what this Court arrives at.
Potter Stewart: But if Mr. Rezneck should prevail here and this Court should simply hold that the matter of the Fourth and Fourteenth Amendment, Florida could not constitutionally confer this power upon a deputy clerk. My brother is correct in saying that has nothing to do with the merits of his whether or not, he committed this offense, nothing to do with his trial for his offense and absent a statute limitation, there is something like that, you would just have him arrested under a warrant issued by a magistrate, would you?
Gerald H. Bee: I am not, Your Honor, I am not sure that I follow exactly your question --
Potter Stewart: All that's at issue here before us is the validity of Florida's law that confers upon this person, the power to issue an arrest warrant?
Gerald H. Bee: Yes, sir, that's correct.
Potter Stewart: And if we hold that Mr. Rezneck is correct, and Florida acted unconstitutionally in conferring this power upon Deputy Clerk, it has nothing whatsoever to do with whether or not the petitioner committed this offense and has nothing whatsoever to do with these trial, has nothing whatsoever to do with whether or not he cannot -- after this Court's decision, be validly arrested under a warrant issue by a magistrate unless there is a statute limitations problem.
Gerald H. Bee: It would have nothing to do with his trial, no sir, whatsoever this is true.
Potter Stewart: Nor with his guilt not with anything or is there any evidence that might come into that trial -- anything else.
Gerald H. Bee: That's true. I agree.
Potter Stewart: So why wouldn't you answer to my brother's White -- Rehnquist questions, yes we would go ahead presumably and have this man arrested and rearrested, if this arrest was invalid, have him rearrested and go to trial. There maybe a statute limitations problem, but if there isn't, I don't see why your answer wouldn't be yes, of course, we would.
Gerald H. Bee: Well, yes, of course we would proceed with the prosecution but not if this particular warrant type of situation is held unconstitutional, then we -- certainly wouldn't come back and use that same type of warrant to go out and arrest --
Potter Stewart: No, but you would go before a judge and get a warrant.
Gerald H. Bee: Yes sir, yes sir, it's correct. What appellee feels is a real -- is the real jugular vein of this case is the fact that the appellant, when you take the Fourth Amendment and you say, no warrant shall issue but upon probable cause supported by oath and affirmation, there are two things that must happen here. The appellant is saying he wants to change the test that came out of Giordenello and Johnson case, that is a neutral and detached magistrate. Now when you take the Fourth Amendment and you look at it, nothing there says who is it, that shall issue this warrant. I submit to the Court that the appellant wants to change this test from a neutral and detached magistrate to that of a strictly judicial officer, that is a judge who adjudicates. Now even so, the second thing under the Fourth Amendment where it says no warrant shall issue but upon probable cause supported by oath or affirmation, nothing is said of what kind of a function this is. Now that I contend is the jugular vein of this case, is what the function is and this function is like a broad spectrum. You have over here, strictly judicial functions, in the middle you have the quasi-judicial functions and over the other end are the ministerial which are those involving clerks. We are simply saying by virtue of these statutes that the legislature has delegated to this clerk, a quasi-judicial power, he has move him from his normal clerks. He still does the ministerial duties of a clerk, but they moved him into the middle field where this quasi-judicial areas are. For instance, many civil service boards issuing subpoenas and -- giving out quasi-judicial acts, that is all the statute has done.
Potter Stewart: Well, could the legislature do that with the prosecuting attorney and all of his deputies?
Gerald H. Bee: No, sir.
Potter Stewart: Just saying, we know that they are his normal duties or be -- or the prosecute cases but we are going to give him this little sliver of judicial power and allow him to issue arrest warrants and even search warrants, could you do that?
Gerald H. Bee: No, sir.
Potter Stewart: Why not?
Gerald H. Bee: My answer to that is simply this. As I recall the Coolidge case, the test and the reason why you cannot a state attorney or prosecutors because he is so involved with law enforcement and the test of this course is a neutral and detached magistrate, must be interposed between law enforcement and the public. Yet if you have a prosecutor who is there driving his case home or a state's attorney or this type, then I would say that he does not fulfill the neutral and detached magistrate.
William J. Brennan, Jr.: Or a policeman.
Gerald H. Bee: Or a policeman does not --
William J. Brennan, Jr.: Well, if you -- new statute, you told me earlier in the absence of the judge and mayor or the mayor and the clerk, lets the policeman issued the warrant.
Gerald H. Bee: No, sir, we do not have that system.
William J. Brennan, Jr.: But the statute says so.
Gerald H. Bee: Yes, sir, the statute says that, but the Special Acts do not in the city of Tampa. We do not have marshals. What I am saying to the court, if you are looking at that issue.
William J. Brennan, Jr.: You mean in Tampa, if the mayor and clerk are absent then no one can issue it?
Gerald H. Bee: No, we have many clerks. There will be -- there are many clerks there.
William J. Brennan, Jr.: What many clerks of the court?
Gerald H. Bee: There are many Deputy Clerks, yes, sir, Your Honor. In other words, it's not the situation of the small town. The point is this Court has ruled in Ocampo and has stated specifically, that the function of determining probable cause for an arrest is only quasi-judicial in the middle and not a strictly judicial function or one for a judge to adjudicate sentence and find innocence. Now as to the neutral and detached magistrate, the clerk of that municipal court is appointed by the city clerk. He is not appointed by a chief of police, he does not wear a uniform, he does not have powers of arrest, he is not a small police officer, he doesn't wear a uniform, he doesn't carry a badge and he doesn't carry a gun and he certainly doesn't prosecute cases. He is assigned to the judicial part at the city of Tampa. What I am saying is under the broad definition that I have pointed out in my brief, the magistrate, the clerk does fit the broad definition of the magistrate that this Court held in Compton versus State of Alabama and Florida has also followed that in Miller versus McLoyd case. So I submit to the court in conclusion, and pray the court to affirm final judgment on appeal of the Supreme Court of Florida.
Warren E. Burger: Thank you, Mr. Bee. You have ran out of time, Mr. Rezneck, but we will give you two minutes or three minutes if you think you need it, maybe some questions to you also.
William J. Brennan, Jr.: Would you tell me, Mr. Rezneck, if you win a (Inaudible) victory for your client if you prevail?
Daniel A. Rezneck: I think that's for the state of Florida, for the city of Tampa to decide, Your Honor, as to where they want to proceed from here.
William J. Brennan, Jr.: Well, I know, -- if you win, what's to prevent them just from getting a proper arrest warrant?
Daniel A. Rezneck: Well I think that's a decision that they will have to make, but --
William J. Brennan, Jr.: But does not prevent them making it because you win.
Daniel A. Rezneck: I believe that's correct.
Warren E. Burger: We have got to assume if it's irrelevant at all, but they will do so, isn't that true?
Daniel A. Rezneck: I don't think we can assume one way or another.
Warren E. Burger: They have the power, they have the power.
Daniel A. Rezneck: I believe that they do provided that they comply with constitutional standards in how they do it. I would like to spend a brief time that I have on this question of finale since it is obviously at some concern to the Court. The test that was laid down most recently in the Mercantile National Bank versus Langdeau case, this is at 371 US 555. As I understand it is whether the order is a separate and independent matter anterior to the merits and not enmeshed in the factual and legal issues comprising the plaintiff's clause of action.
William H. Rehnquist: Was that a Federal Court of the state?
Daniel A. Rezneck: State, straight from a state court, yes and my understanding is that is the test in this Court for appellate jurisdiction under 1257 (2) and we would submit that we have met that. There are some other cases I think I could cite in that connection. I believe this Court in Mills versus Alabama at 384 US 214, upheld appellate jurisdiction over the denial of a demur by a state Supreme Court even though the state Supreme Court had remanded the case for trial. So the Separability Doctrine has been applied in a number of cases. I believe also in the old Ku Klux Clan case State ex Rel. Bryant versus Zimmerman, that came to this Court I believe on habeas corpus, in advance of trial and was decided by this Court in exercise of its appellate jurisdiction even though there had been no trial on the merits and the case was still awaiting trial in the state court and I did also cite the Camara case which I think is close to this one.
William H. Rehnquist: Of course, in Mills, didn't the Court say that the ruling on the demur was for all practical purposes, a determination of a litigation that a remand was just going to result in a formality?
Daniel A. Rezneck: The issues being raised by the defendant, I would suggest, that was respect to this particular issue that's before the Court here, and and with the constitutionality of Florida arrest procedure that there is nothing further to be done, there is nothing more to be said on that point and a further proceeding would not illuminate that point at all, and I would l think that that would meet the point that the Court was getting at in Mills, unless there is nothing further to be raise on that particular point.
William H. Rehnquist: But in Mills, they are talking about the merits and I think for to be on merits, where the merits were criminal prosecution not an abstract --
Daniel A. Rezneck: Yes Your Honor, I understand there is that distinction but I do think that in terms of the issue --
Thurgood Marshall: Mr. Rezneck, suppose in this case, when you filed your action they go and got a warrant from the Chief Judge of the Court, would you be here?
Daniel A. Rezneck: And had rearrested?
Thurgood Marshall: Yes sir.
Daniel A. Rezneck: I would suppose that we would not be here then. That would have mooted the case, but they didn't do that. I just want to make one final point on the state law. I think contrary to Mr. Bee's statement that it is not at all clear that this issue could be preserved in a state court at trial and this kind of certiorari proceeding may well have been required as a method of preserving this point. There is one Florida case that I would like to give the Court the citation to because I think it does, bear on case, called Campbell versus County of Dade, 113 So.2d 708. It's a District Court of Appeals decision not a Supreme Court decision in Florida, but it does deal with the question of challenging the validity of an arrest at the trial itself and I think that in view of that decision that appellant here was really quite justified and perhaps required under Florida Law to resort to this independent proceeding and it is an independent proceeding under state law and I do think that you have a appellate jurisdiction, Your Honor.
Warren E. Burger: Thank you, Mr. Rezneck, thank you, Mr. Bee. The case is submitted.