Ward v. Village of Monroeville

PETITIONER:Ward
RESPONDENT:Village of Monroeville
LOCATION:American Trust & Security Company

DOCKET NO.: 71-496
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Ohio Supreme Court

CITATION: 409 US 57 (1972)
ARGUED: Oct 17, 1972
DECIDED: Nov 14, 1972

ADVOCATES:
Bernard A. Berkman – for petitioner
Franklin D. Eckstein – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – October 17, 1972 in Ward v. Village of Monroeville

Warren E. Burger:

Your argument is next in 71496, Ward against the Village of Monroeville.

Mr. Berkman.

Bernard A. Berkman:

Mr. Chief Justice, and may it please the Court.

This case raises squarely, the question of the continuing vitality of the mayor’s court system and a dispensation of roadside justice in Ohio.

Specifically, the issue here is whether a mayor charged with the financial and law enforcement responsibilities for the village of which he is executive and the administrative head can serve as an impartial judge and fact finder in criminal proceedings without violating the Due Process Clause of the Fourteenth Amendment.

The facts which give rise to this issue are briefly stated.

Actually, the petitioner was convicted of a couple of traffic offenses in the mayor’s court in Monroeville.

He was convicted of offenses which are violations of ordinances of that incorporated village.

Monroeville is a small, uncharted, incorporated village in North Western, Ohio and Huron County through which a main truck in auto highways state route 20 rise.

It carries a considerable amount of truck traffic and from time to time, public utilities commission state officials conduct safety checks at its village boundaries in cooperation with village constables.

And the record reveals that in some instances when these safety checks occur up to 20 arrests per day, happen.

In this particular instance, the petitioner was convicted of failure to comply with a lawful order of the police in and which it was contended that he did not stop within a reasonable period of time after having been waived down in order to participate in one of these PUC traffic checks.

And secondly, he was charged with failure to produce a driver’s license upon request of a police officer in an altercation, which occurred after he did stop his truck somewhat at the road during which an episode of shooting of Mace and so on occurred.

Petitioner was tried.

He interposed the defense.

He was convicted and fined the maximum of $50 cost in each case.

The constitutional question which is here presented was preserved by affidavit to disqualify the mayor as judge, a motion to dismiss the prosecution or any alternative to certify to a proper court.

In all of these instances, the petitioner was frustrated and a number of it has occurred during the course of the trials and both trials ultimately in the Court of Appeals were consolidated so that they are here presented.

A number of rather aberrant episodes occurred during which the mayor sought to shift the burden of going forward to the accused, a period that somewhat surprised and amazed the defense council would even challenge the credibility of a uniformed officer under oath, abandoned to the police officer witness the right to determine whether he need to answer questions put to him by defense council.

And as a layman, not a lawyer relied rather substantially and heavily upon the prosecutor’s legal advice.

At a hearing conducted on the affidavit to disqualify, some additional information of relevance and importance to the constitutional question here presented emerged.

It was demonstrated that from the years 1964 through 1968, the five previous years, prior to the conviction that of the total number of — total amount of money in the village’s general funds.

In each year somewhere between 36% and 51% of all of the general revenues of the village came from fines assessed in the mayor’s court.

In addition, it appeared in 1959, at the time when the village was concerned that the jurisdiction of mayor’s courts was to be less the alarm that the village had with respect to the fact that the lessening of jurisdiction of mayor’s courts would somehow rather affect adversely its physical position is demonstrated by a Village Ordinance 59-9 in 1959 in which an expert was hired in, at least partially, in concern over the fact that the decrease in the jurisdiction of the mayor’s courts would involve some increased tax responsibilities are curtailed services for the members of the village.

That ordinance is reproduced in our brief and also appears in the — in the appendix.

As a matter of state law and as a part of the hearings, a number of other important constitutional facts were developed in the case below.

In the first place, it was established in the law of Ohio’s clearance, I think, that the mayor is the chief law enforcement officer of the village with the power to hire, fire, and supervise the police chief and all the members of the — of the police force.

He has the — he has the power as the sheriff and is to enforce the — the piece in the — within its boundaries.

And in this instance, he was — he had the power to do and actually did appoint — the police chief who was the principal witness against the accused in this case and had, as a matter of fact, to determine the credibility of his employee.

It is true that there is some approval required of council in this instance.

Bernard A. Berkman:

But the — the principal responsibility in the chief law enforcement officer I think without question is the mayor who sits as the judge in these kinds of cases.

The Ohio Revised Code Section 73715, 18, 73330 and 190520 made very clear his position as chief law enforcement officer in the village.

In addition, it was developed and the law is also clear that the mayor is the chief executive of the village with financial responsibility for its physical condition.

He is required to report his physical condition in the event that there were excess expenditures or expenditures which are improper, he is required to enforce it and Ohio Revised Code Section 73332 and 73333 make that abundantly clear.

Potter Stewart:

Does the record show what the mayor’s salary was?

Bernard A. Berkman:

No, it does not.

We do not contend that his salary was dependent upon the — the outcome of a particular case except that it — it is demonstrated and it was taken from the general fund.

Potter Stewart:

But now the salary is a matter of a local decision as it is not determined by state law?

Bernard A. Berkman:

Yes, sir.

That’s right.

Potter Stewart:

And it’d probably be to the few hundred dollars in a village like this one.

Bernard A. Berkman:

I would imagine.

It was also developed that the mayor is not a lawyer, not subject to the canons of judicial ethics and yet required by law to make procedural and evidentiary rulings under Ohio Revised Code Section 293815.

And that, inasmuch, as he was not a lawyer, the person from whom he sought his legal advice was the village solicitor who happened to be the prosecutor in this case.

William H. Rehnquist:

Well, Mr. Berkman, doesn’t it have to be true of almost any none lawyer traffic judge you go regardless of whether he has some executive position (Voice Overlap) —

Bernard A. Berkman:

Mr. Justice Rehnquist, I think you’re quite right.

I think that that in itself would not be an unusual fact.

Our contention was that coupled with all of the other factors which keep the — the tribunal from seeing the — the situation in a neutral manner, add to the situation which he is obtaining all of his information, including matters of admissibility of evidence and so on from a — a source which is biased in one direction of the case.

William H. Rehnquist:

I need to be sure I understand you.

You’re not blaming them.

But the absence of a lawyer, a law-trained man as a judge, is a violation of due process alone, standing in the law.

Bernard A. Berkman:

That is not our — our particular consideration.

As a matter of a fact, what we are saying is that the entire composite of circumstances under the statutory scheme which has established mayor’s courts has both executives in charge of the functions of their village and also to see it as a neutral and detached magistrate in — in criminal manners, is in itself a denial of due process.

And all of these factors add together to create the constitutional infirmity of which we complain.

Byron R. White:

Did you have a right, an unrestricted right (Inaudible)

Bernard A. Berkman:

Well, I think that it is now clear that under the 1970 amendments at least which followed the — the case as it was tried initially, by some two years, now that there is under Section 1905 —

Byron R. White:

But was there at the time?

Bernard A. Berkman:

I think not.

I think that the county court’s appeal was a matter of law, and as a matter of fact, there was a good deal of additional skirmish or issue taken at the Court of Appeals level and at the Supreme Court level.

Byron R. White:

Let’s assume there was for the moment.

Bernard A. Berkman:

Yes, sir.

Byron R. White:

That there could have been an appeal in this connection (Inaudible) de novo trial, though what was the — what’s the — what’s the first trial having the most significance later in this trial.

Bernard A. Berkman:

Yes.

Byron R. White:

Would that be de minimis to your case?

Bernard A. Berkman:

We think that it would not make any difference because of the fact that we contend that it is not necessary or condition to proceed to go through an unconstitutional trial in order to get a constitutional one.

Our — our position is that they have to go through two — two trials before you get the minimal amount —

Byron R. White:

You want to say that all of these traffic enforcement (Inaudible) it has to be on constitutional trial.

Bernard A. Berkman:

We think that the —

Byron R. White:

That would withstand all — all kinds of questions?

Bernard A. Berkman:

Well, I don’t think we need to stretch that far, Mr. Justice White, because so far as we are concerned, at least in these kinds of cases, the bare minimal amount of due process, and we know that in different kinds of circumstances, this Court has applied different standards of — of due process.

But we say this, that regardless of whether or not an individual is entitled to a jury trial regardless of whether or not an individual is entitled — entitled to — to counsel.

Regardless of whether he’s entitled to have witnesses and all of the other aspects that get together in due process, we think that at the very minimum, even in traffic offenses, even in petty matters, that an impartial tribunal, unquestioned as a result because of his — his role in other matters is a basic exemption.

Byron R. White:

How much of the fine have there been in this case?

Bernard A. Berkman:

In this case, the maximum was imposed.

It was $50.

Byron R. White:

Could you have — could it have been transferred to another court?

Bernard A. Berkman:

As a matter of fact, it could not because under — under the — the rule, if the fine exceeds $50, then and under those circumstances, the individual who is on trial is entitled to a trial by jury in a court of record in as much as —

Byron R. White:

Could be fined $50 or more than that?

Bernard A. Berkman:

Yes.

Byron R. White:

And here, it couldn’t more than that.

Bernard A. Berkman:

That’s right.

And so we were not so entitled.

Potter Stewart:

The Court – it could be the County Court?

Bernard A. Berkman:

The — the court said they have current jurisdiction which are courts of record in Ohio municipal court and the county court set up incidentally —

Potter Stewart:

— were created back in the ‘50s right?

Bernard A. Berkman:

Back in 1957, as a result of the — the legislative —

Potter Stewart:

Abolition of the (Inaudible)

Bernard A. Berkman:

The abolition of the Justice of Peace Courts, Your Honor.

Potter Stewart:

And then — and would there be a municipal court with jurisdiction over Monroeville?

Bernard A. Berkman:

I think not, but the county courts have jurisdiction where — where the municipal courts do not.

Potter Stewart:

Now, while I interrupted you, may I ask if I’m right in my understanding that this is a — this system is not in anyway peculiar to Monroeville, Ohio but it would be as a situation to be found in all of the non-chartered, incorporated villages throughout the State, isn’t it?

Bernard A. Berkman:

Yes.

It is set out in Section 1905, Chapter 1905 of the Ohio (Voice Overlap) —

Potter Stewart:

And there hundreds of such villages.

Bernard A. Berkman:

— and there, I would imagine, hundreds of — of such mayoral courts.

Their jurisdiction is limited to — to consideration of criminal cases under their village ordinances and moving traffic violations that occur within their border.

So that in fact, they also had jurisdiction over state statutory violations involving moving vehicular traffic.

Potter Stewart:

But again, their — their power to punish is limited even for a violation of those state laws, isn’t it?

Bernard A. Berkman:

To the extent that the accused actually has a right to and seeks a jury trial.

But, Your Honor, I would point out that there are a number of tactical and financial reasons why somebody would decide that he ought not to have a jury trial.

And in those instances, the court has jurisdiction to hear such cases.

Potter Stewart:

But well, a limited power to punish.

Isn’t it true?

Bernard A. Berkman:

No, I — I find those such —

Potter Stewart:

Should a village (Voice Overlap) —

Bernard A. Berkman:

— no such —

Potter Stewart:

I fine somebody for manslaughter?

Bernard A. Berkman:

I find no such statutory limitation and desire contention that traffic manslaughter is indeed within the jurisdiction of the Court if the accused does not signature a trial.

Byron R. White:

(Inaudible) put people in jail.

Bernard A. Berkman:

I think he can.

As a matter of fact, Section 1905.30 specifically indicates that particularly in the event of — of the non-payment of a fine that the individuals to be incarcerated.

And that is — that appears specifically in the statute.

As I read its jurisdiction, I think that traffic manslaughter, driving while intoxicated, all of which carry penalties including imprisonment would be within the court’s jurisdiction, subject only to the provision that if an individual seeks a jury trial, he can have it somewhere else and that is in the Court of Record.

The due process issue was preserved at each level of appeal and the hearing County Court of Appeals consolidated both cases and affirmed the convictions and the Supreme Court by a five-to-two decision and Ohio did the same.

Certiorari was granted and the issue is now before us.

I think that it is not necessary to belabor the point that a neutral, detached, impartial judge and fact finder is essential to minimum standards of due process in fair hearings, both in criminal and non-criminal cases.

I would only point out that an impartial judge as a requirement of fair hearings is as old as the history of courts, as old as the judicial process itself.

The whole point it seems to me, of letting somebody have the power to adjudicate a decision between two competing parties, is the hope that the judge will act in a way which goes straight down the middle and be neutral and determine the result on the basis of the evidence and not on the basis of his own self-interest.

Warren E. Burger:

Would it violate due process if you had judges appointed by the mayor?

Bernard A. Berkman:

Judges appointed by the mayor, I think that it might not violate due process under such circumstances so long as the judge takes a note and — and performs as — as officer.

Warren E. Burger:

What if — what if the mayor had appointed the judges under those statutes to serve at the pleasure of the mayor?

Bernard A. Berkman:

Well, I think we might run into a question depending upon the entire aggregate of circumstances under those concerned.

Warren E. Burger:

But what you want is some other person.

Bernard A. Berkman:

Yeah, it seems to us that we are asking too much.

Warren E. Burger:

Judicial officer, whether he is a lawyer or not.

Bernard A. Berkman:

Yes, Mr. Chief Justice.

We — we think that he’s asking too much of a system and too much of an individual under the intertwined system in — in which he must wear the hat of a policeman and the hat of the impartial judge and the hat of the administrator of — of the village to give, not only justice, but the appearance of justice to which we think that every motorist and every individual comes within the jurisdiction that the court is entitled.

Byron R. White:

Is this — is this scheme the same one that we had here in both Tumey and in Dugan?

Bernard A. Berkman:

Well, I think that the — the situation has changed, insofar as the statutes are concerned with respect to Tumey, and since that time the jurisdiction of the — of the mayor’s court has been whittled away so that it no longer involves countywide jurisdiction as I’ve indicated in response and answer to that.

Potter Stewart:

And no longer I got it from what you said earlier that the mayor gets paid part of his compensation from the fines.

Bernard A. Berkman:

Right.

Those — those are two distinctions and the fact that we present to you now as — as distinguished from Tumey.

And also on Tumey, if I’m not mistaken, there was no right to a trial de novo.

Bernard A. Berkman:

That’s right.

Now, is the situation then like — more like Dugan than it was like —

Bernard A. Berkman:

No, we think it is less like Dugan than it is like Tumey.

As a matter of fact, we think that — that Dugan is not applicable at all because — because the Dugan case involved a — a chartered municipality and a commission form of government in which it was conceded and stipulated by all of the parties, that the person designated, the mayor, in that case, was not the Chief Executive Officer as the mayor is in this case.

And that really, all he was, was a member of the — a commission of five persons.

William H. Rehnquist:

That Commission though, exercised here the executive authority of the municipality.

Then so he was one of five.

Bernard A. Berkman:

I believe Mr. Justice Rehnquist that — that he was not, in anyway, involved in the executive operation of the — of the city.

Really that — that executive responsibility was posited in the — in the city manager.

William H. Rehnquist:

Wasn’t the manager responsible to the Commission?

Bernard A. Berkman:

I think he was but the actual administrative or executive function was confined in the hands of the city manager rather than the Commission itself.

Potter Stewart:

The — the — all members of the council there have shared the responsibility for financing the municipality.

Bernard A. Berkman:

Yes, I think that’s correct, but I think that — that the individual role of the person who sat as a mayor was subject to at least the checks and balances that the chartered system gave under those circumstances.

And as a matter of fact, a great deal of time and attention in that opinion, a short one, was devoted to the distinction between — between the chartered system and the mayoral system which — which we had in Tumey and which appears presently before this Court.

I call to the Court’s attention only in addition to Tumey and Dugan which — which are at the — at the core of this Court’s concerns in this case.

In re Murchison, which, I think, finishes the job that was began in Tumey, to indicate that the appearance as well as the actual form of justice has got to appear.

Now, in order to excuse the kind of — of system that we have had in Ohio, some arguments have been made by the respondent.

Bernard A. Berkman:

Some arguments have been made by legislators and I think that there are basically three.

The first is that this is de minimis and that the kind of damage that can be done to an accused in this kind of court is something that really ought to be overlooked, in the interest of the expediency of — of operating a court and so on.

It is the —

Warren E. Burger:

Do you really have to argue that counsel now that you’re here?

Bernard A. Berkman:

We — we think that the grant of certiorari in this case has been an indication that that is not an argument that is — that is necessary to deal with and if the Court fields that we ought not, we will move on to our next contention, which is — which is a contention that is made, that with respect to the infliction of substantial, that no substantial damage can be inflicted.

In response to question from Mr. Justice Stewart, I’ve indicated that there are grave consequences.

But I’d like to add one more to that, which has not been brought out and that is that under Ohio’s point system for the accumulation of points to revoke a driver’s license, Ohio Revised Code Section 4507.40.

Twelve points are necessary to take away a driver’s license.

The petitioner in this case is a truck driver.

He drives a truck for a living.

The events of which he was convicted under the list of points per violation that appear in that statute would take — would give him six points.

And a mayor’s court, although there’s not a court of record, for purposes of giving reports to the Bureau of Motor Vehicles on — in Ohio, is indeed a court of record for at least that limited purpose.

And so, as a result of this conviction, half of the necessary points to take away his driver’s license in this Court occurred.

Bell against Burson, your case and forward to U.S., I think indicates the importance particularly to a — a wager around the road of having his driver’s license.

And we would have that point.

I think we have dealt with our contention in response to a question from Mr. Justice White with respect to the appeal de novo.

But I would only add that the appeal de novo is a rather peculiar animal in Ohio and the one that you will be considering in this case has within it, a couple of contradictions that caused me concern to think that maybe it isn’t a fresh slate upon which is written in the new trial.

Our answer would stand that we think that you don’t have to have two trials in order to get one that’s constitutional.

Potter Stewart:

Is that way.

But you should not prevail here.

Harry A. Blackmun:

May he then seek de novo under the new dispensation in Ohio?

Bernard A. Berkman:

That’s another question which I don’t understand the answer to.

Particularly, I view the fact that during the course of our appeal that new right in our contention was made available to us.

But I will only urge that even under the present — the present statutory law, the Section 1905.30 provides for incarceration and or bond.

And also, the 1905.24 very curiously provides that the appeal, even the appeal de novo which is referred to in — in the next section cannot be even docketed unless a transcript to the proceedings below is presented to the court.

And I ask for what purpose if this is a de novo hearing.

Is a transcript necessary to be prepared and how is that to be used either to influence the court above or to be used as a judicial admission in the taking of testimony or there is no transcript.

Thurgood Marshall:

There is no transcript of the magistrate here?

Bernard A. Berkman:

Well, I refer, the Court respectfully, to read the Section 1905.24 which makes that a condition proceeding to —

Potter Stewart:

— that there is no transcript in this record?

Bernard A. Berkman:

Well, there isn’t except —

Thurgood Marshall:

Well, it’s not the court of record.

Bernard A. Berkman:

No, it isn’t the court of record.

Thurgood Marshall:

Well, how come they have a transcript?

Bernard A. Berkman:

Well, I presume that — that the parties can make private arrangement, but there is no statutory arrangement for a statute.

And I point out only the difficulties in application of the de novo —

Byron R. White:

Do you know what the practice is?

Bernard A. Berkman:

The practice I — the practice I believe is — is that there — there is ordinarily, the practice is that there is no appeal from these kinds of cases.

Byron R. White:

Right, but did you know what the practice is when there is —

Bernard A. Berkman:

I’m sorry.

This is the only appeal from that —

Byron R. White:

It’s the new statute, isn’t it?

Bernard A. Berkman:

Yes, it is new since June of 1970.

Byron R. White:

(Inaudible) there’s the transcript from the documentaries or something?

Bernard A. Berkman:

Well, because the original papers are also referred to, Your Honor, and I’m — I’m not sure.

It is unclear.

Also, the word “trial” as used in that — in that statute, and I only suggest that merely calling something de novo does not solve all of the problems that — that may emerge in dealing with the question, and it’s new.

An argument is also made that the provisions of Ohio Revised Code Section 2937.20, which provide for disqualification for bias is a protection against excesses in the mayor’s court.

And we tried that in this case, and I — I’m here to report to you that it didn’t work successfully unless you — you feel that — that at every $50-fine needs to come to this Court in order to have — to have ultimate adjudication.

What we are saying basically is that there’s a difference between individual bias and systemic interest.

And we are saying that this particular statute is designed to deal with the mayor who happens to be the brother-in-law of an opposing party or something to that kind, but does not deal with the inherent systemic problems and therefore cannot be handled in every case in a way which — which permits that kind of — of disqualification.

I would like to reserve the balance.

Warren E. Burger:

Very well, Mr. Berkman.

Mr. Eckstein.

Franklin D. Eckstein:

Mr. Chief Justice, may it please the Court.

My name is Franklin Eckstein.

I’m the solicitor for the Village of Monroeville, Ohio.

I’d like to first say there are a lot of questions about trial de novo and I’m just a country lawyer and I’d like to say that although I hesitate to differ with opposing counsel, there was a right to trial de novo at the time of Ward’s case.

It was in the Common Pleas Court.

But Ward did not have the right to a trial de novo for the reason that he had brought in a court stenographer.

Franklin D. Eckstein:

And the rule then was the same as the rule as today although you go to the county court or municipal court.

That rule is, once you bring in a stenographer and all the evidence is reduced to a record, you have the right to appeal on questions of law, but not on questions of fact.

And back then as today, if you don’t bring in your stenographer and you go before the mayor, the mayor prepares his docket form which is a single piece of paper.

No evidence or testimony other than the mayor’s finding of guilty is on that piece of paper and you go to the county court or the municipal court where you have a complete new trier of the facts, as well as the law.

Warren E. Burger:

Now, you’ve got to sort it out.

Could this particular petitioner have got a true de novo trial as a matter of right here?

Franklin D. Eckstein:

He could not in his first case because he brought in a stenographer and what I’ll call a second case where he did not bring one in and simply —

Warren E. Burger:

The second case was the other related —

Franklin D. Eckstein:

That was a fear to produce a driver’s license.

It was related.

We consolidated in the — in the Court of Appeals.

In that case, he could have had a trial de novo, if he had chosen, and that would be same rule of law today.

Byron R. White:

What’s the difference between the (Inaudible)

Franklin D. Eckstein:

Well, what happened Mr. Justice White —

Byron R. White:

What’s the difference in the rule when you say he had a (Inaudible) stenographer.

Franklin D. Eckstein:

The rule was that if you bring in a court reporter and the testimony and the written evidence is reduced to a writings when you appeal from the mayor’s court, you only get a review of the questions of law.

You do not get a review of the question’s effect.

If you leave the stenographer home which is a tactical decision, then if you lose, you can start all over in the county court or municipal court and have a legislature who wanted to keep this system.

In 1970, before the Ohio Court of Appeals says, “now, the question they asked us, would we prepare supplemental briefs on the question of whether or not appeal from mayor’s court into the Common Pleas Court was gone because of a recent amendment.

Byron R. White:

One of these questions involved (Inaudible) sufficiency of the evidence.

Franklin D. Eckstein:

Yes, Your Honor.

Byron R. White:

It is there to take the evidence over again that’s all.

Franklin D. Eckstein:

That’s correct.

Byron R. White:

I see.

Franklin D. Eckstein:

But to go back to —

Potter Stewart:

And you say that’s true also now since 1970?

Franklin D. Eckstein:

This was true then, and as I say, I would hesitate to differ with any interpretation with our practice in county courts and municipal courts as well as mayor’s courts in the — in the surrounding communities.

And this is the practice where we —

Potter Stewart:

There was a change in the law in 1970 but you say — and this reflects us that the law is the same.

Franklin D. Eckstein:

It’s the same.

Franklin D. Eckstein:

The only difference was the court you went into on appeal because of an amendment to (Inaudible) constitution that made that appear to be doubtful, whether you could appeal in Common Pleas Court the legislature not waiting on a decision in our case by the Ohio Supreme Court amended that law.

But as recently as 1970, they kept the system although they changed the court.

Potter Stewart:

So while the — while the 1970 law does talk about a trial de novo, you are telling us that when in fact you had a stenographer in the mayor’s court, it may not be a trial de novo.

Franklin D. Eckstein:

It was not a trial de novo.

Potter Stewart:

Even though — even though the legislature is calling that.

Franklin D. Eckstein:

Well, the provisions if you — they’re — they’re now, unfortunately set up (Inaudible) that if you read the provisions as the way it worked out and that’s in our practice, that’s the way it was.

Byron R. White:

What does the Court of Appeals do in (Inaudible)

Franklin D. Eckstein:

Yeah, it’s an appeal, Mr. Justice White.

In other words, the judge — the county court judge would — could have heard a worse case than that; it would have been a Common Pleas judge.

We would have heard the evidence that wouldn’t have been, I don’t think, influenced by the fact that a mayor had found the man guilty or — or of course if he was not guilty, he wouldn’t be in it, for the prosecution.

But I don’t think that a county court judge would have been influenced.

Harry A. Blackmun:

No, no, the question is when is it transferred as you say was in the first case?

What — what does the Common Pleas Court do if there are conflicts on the evidence on the whole record?

Franklin D. Eckstein:

I see.

Well, I presume that it would be up to him as a reviewing judge to decide whether or not —

Harry A. Blackmun:

(Inaudible)

Franklin D. Eckstein:

No, it’s not a new trial.

It’s just a review of questions of law and it would be only a question of evidence.

Was the judgment —

Harry A. Blackmun:

(Inaudible) sufficiency of the evidence, you have to know what the facts are and it’s a fact they disputed.

They decide the facts on a court record or if you —

Franklin D. Eckstein:

In that case, I think you would have to.

Harry A. Blackmun:

(Voice overlap) de Novo trial, isn’t it?

Franklin D. Eckstein:

No, not when there’s a transcript.

Warren E. Burger:

Do you know whether they have developed any clearly erroneous type of rule or — do you know —

Franklin D. Eckstein:

None to my knowledge

William H. Rehnquist:

Mr. Eckstein what are the — you — you mentioned the tactical decision that the litigant faces in deciding whether or not to bring a stenographer, whether to the mayor’s court, what sort of tactical considerations would lead him to bring a stenographer with?

Franklin D. Eckstein:

Well, if he felt that he would not get a favorable decision in that particular mayor’s court, he could bring in a stenographer to preserve a record so that he could go to the — to the county court and perhaps — and perhaps did a very minimal effort in terms of time, isn’t just written briefs, perhaps, could get a reversal.

And — but that would be the only real reason that — that a defendant would want to bring in a —

Potter Stewart:

Well, there might be another reason again to the argument we heard earlier today in this antitrust case just the presence of the stenographer might lead to a fairer trial by the mayor, would it not?

Franklin D. Eckstein:

I think that that could be a possible consideration.

William J. Brennan, Jr.:

If you have a trial de novo, may the judge in the court have rendered — or the jury imposing higher sentence or a more severe sentence?

Franklin D. Eckstein:

No, they would not be able to, and in this case, the maximum fine would have been $50.

You’d have to follow the ordinance and there would have been no right to a jury trial.

It would have been tried to a judge.

William J. Brennan, Jr.:

Tell me, Mr. Eckstein, if Mr. Ward fails on this appeal, would he have an opportunity for trial de novo?

Franklin D. Eckstein:

No, not under a higher law.

He brought in a stenographer and — and he forfeited that right when he brought the stenographer in.

William J. Brennan, Jr.:

Well, how about on the second offense was that before us?

Franklin D. Eckstein:

Well, that has been — that has been merged into the second offense and the failure to ask for a — a complete retrial for facts in that case, in my estimation would have waived the right.

I just like to point out that —

Thurgood Marshall:

What is it — your view of the difference between the trial de novo and in the field?

Franklin D. Eckstein:

Well, as we view it in — in the case of mayor’s courts, an appeal would only be where you have the transcripts and the question would be a question to whether or not the law had been properly applied to the facts as they appear in the transcript, whereas, trial de novo, as we understand it, is a complete retrial as to an introduction of evidence and everything else.

Thurgood Marshall:

It is an anomaly of appeal from a non-judicial officer?

Franklin D. Eckstein:

All I can say, Mr. Justice, is that I believe that the legislature in weighing to keep this court system wanted to provide every protection they recently could and still keep the system.

It is indeed a unique situation.

But I’d like to say — I’d like to point out to the Court that the first time that affidavit for — for prejudice was filed in the Monroeville mayor’s court, that the mayor granted the — the motion of the defendant and he did certify the cases to the Huron County court.

Now, begin — from beginning to end, the constitutional question has been raised and in raising the — the question on the affidavit, the mayor said, “Yes, you’re right.”

He certified the county court.

And the case sat over there for about four months until December 17, 1968, when the county court judge discovered the grounds for the transferal and decided he did not have original jurisdiction to hear the case and sent it back to Mayor (Inaudible)

We saw in the first instance, the mayor, I think, bent over backwards to be fair.

And unfortunately, the county court did not send back the second case involving the driver’s license until January, so that you were not tried together at the same time, before mayor (Inaudible)

Thurgood Marshall:

And now you said that over badly if you might have done what was right.

Franklin D. Eckstein:

Well, the point — the point was, Mr. Justice that once that the county court judge returned the case to him, he felt obligated to go forward under — under Ohio law.

Thurgood Marshall:

Why?

Franklin D. Eckstein:

Well, the county court did not have original jurisdiction in that instance to — to hear that case, because of the fact that the fine was less than $50, and the basis for the — the motion in the county court judge’s opinion was not well-taken.

That was the constitutional question.

Potter Stewart:

What — what is the basis — were a valid basis i.e., let’s just say that there was a personal prejudice part of the mayor.

Then — then what — what substitute judge would he have had, the mayor of another town or the county judge or –?

Franklin D. Eckstein:

I don’t see how they could have done other than have the — have a substitute county court judge hear the case because I can’t — I’ve — I’ve not personally had that experience, but I don’t see how they did appoint a mayor —

Thurgood Marshall:

Why would they have to have a substitute judge?

They could have a substitute civilian.

Franklin D. Eckstein:

Well, I — under the system, I’ll tell you that’s —

Thurgood Marshall:

Because the mayor wasn’t a lawyer, he wasn’t a judge.

Well, they could have gotten a substitute non-lawyer, like a deputy mayor or got a member of the council.

Franklin D. Eckstein:

Well, I think that —

Thurgood Marshall:

Or any other civilian.

Franklin D. Eckstein:

Let’s open to question, possibly the president of council, who assumes the role of mayor when the mayor is out of town or resigns, perhaps —

Thurgood Marshall:

Or the head of the — the doctor, the head of the hospital or some obstetrician.

Franklin D. Eckstein:

That’s — that’s a question I simply can’t answer, I’m sorry.

Potter Stewart:

It’s not clear under the Ohio law.

Franklin D. Eckstein:

Yeah.

Potter Stewart:

But because you suggest in your brief that he could have filed then.

Franklin D. Eckstein:

My — my suggestion was that he should have based it on other facts.

Potter Stewart:

All right, but if he had, and if that had been valid, now my question is, “What would have happened?”

Franklin D. Eckstein:

Yeah.

Potter Stewart:

And you don’t know the answer.

You say —

Franklin D. Eckstein:

In this case, I don’t see how it — how it could have been other than a county court judge, but possibly, it could have appointed the president of the council, let’s say.

Potter Stewart:

Because in this case, the county court judge probably said, “I have no jurisdiction of this case, even though the mayor had disqualified himself.”

Right?

Franklin D. Eckstein:

Yeah, that’s right.

But in this — in this particular case, I’d like to briefly point out that the facts of life in a small town simply aren’t the way that the — that the (Inaudible) by the council for Ward.

I think that the mayor’s exactly — responsibility is — is greatly overstated.

It’s true that the statute says a mayor is to report to council on a financial status of the town.

But as a point of fact, the only one who has any idea at all about what’s going on in town is that there’s a court treasurer, who is usually the only full-time salaried official in the town other than the street department man or the policeman.

Potter Stewart:

So, this mayor, you’re telling us, gets no salary at all?

Franklin D. Eckstein:

He received a couple of hundred dollars a year and as a footnote, he was right.

The case didn’t make him any richer or poorer.

He retired like most of them usually do after he had enough of being mayor.

Franklin D. Eckstein:

It did not lead on to any great political career and he didn’t pick any political or — or financial claims during the time he was a mayor.

But really, a small village does not resemble the — the federal government at all in terms of domination of the legislative by the executive branch.

If — if it’d be so —

Potter Stewart:

Does the record show what the population of Monroeville village?

Franklin D. Eckstein:

It has a population of 1300, Your Honor.

Potter Stewart:

It’s on Huron County.

Franklin D. Eckstein:

Huron County.

And as a point of fact, of course, you can prove anything with statistics.

It’s true that the village did have traffic fines and made up third to a half of the general fund.

Of course, the general fund is only about one-fifth of the budget of the village because you have street fund, electric fund, water fund, sewer fund.

And certainly, all of these other funds contribute to important services to the people in the village.

And so, it’s a question of — of relativity, it seems to me.

If you look at the flow of traffic through town, I think that you recognize when you have a heavy volume of traffic, there are more apt to be convictions because there are offenses and as through the public utilities commission, does run these safety checks.

So the testimony was they ran about one a month.

Now, that’s hardly, if the village were in the position of wanting to make money, it seems to me, they’d be asking to do a lot more of these safety checks.

Thurgood Marshall:

Are you gone to distinguish all of these, you’re talking about in Tumey?

Franklin D. Eckstein:

I think so, Your Honor.

I think in Tumey, you had a very remarkable situation where the mayor’s court had countywide jurisdictions, that fines were in the thousands of dollars.

The marshall kept 15%, the prosecuting attorney 10%, and the special policeman, 15% of the fines.

They were interested in the outcome.

The mayor kept the cost.

He was interested in the outcome and in paying the cost for this people who are doing the law enforcement.

And they’re going through a small village under a big city to enforce the prohibition law.

But that was set up by the legislature separately because they couldn’t get it enforced any other way.

Now, today, in a mayor’s court, this mayor has jurisdiction only over offenses within his own boundaries, within a municipal corporation.

And if the fine is over $50, the person has the right to a trial by jury, which means you go to the county court and then you can waive the jury trial and go ahead and have the county court judge try it.

Thurgood Marshall:

(Inaudible)

Franklin D. Eckstein:

I’m sorry, I didn’t understand the question.

Thurgood Marshall:

The fact that they can get the (Inaudible) a new trial does not interfere with some people consider it to be a right to be tried by impartial judicial officer.

Franklin D. Eckstein:

Well, I would simply like to suggest, Your Honor that —

Thurgood Marshall:

Well, this man is not a judicial officer, is he?

Franklin D. Eckstein:

He does have a limited judicial function just as he has a limited executive function, just as he has a limited legislative function, believe it or not.

Thurgood Marshall:

Could this man be an officer obstetrician?

Franklin D. Eckstein:

He sure could.

He can be — this man was a truck driver.

The mayor of Monroeville who tried work —

Thurgood Marshall:

Well, could be the magistrate be a truck driver?

Franklin D. Eckstein:

Yes.

Thurgood Marshall:

This magistrate was.

Franklin D. Eckstein:

Yes, he was, in fact.

Thurgood Marshall:

And that’s the new impartial judicial officer?

Franklin D. Eckstein:

Well, Your Honor, I would like to —

Thurgood Marshall:

Yes or no?

Franklin D. Eckstein:

In this particular instance, I would say that — that the man was — was partial, because of — of a lot of things that got into newspapers over the sixth-month waiting period.

Some of them, very unfavorable like this reference —

Thurgood Marshall:

Well, I’m saying without anything to do with this case or anything.

Is a truck driver your idea of an impartial judicial officer?

Franklin D. Eckstein:

I don’t see why he couldn’t be just as impartial as a man —

Thurgood Marshall:

Is that your idea of what it is?

Is that your idea?

Franklin D. Eckstein:

I can’t say but what — that he could be as impartial as — as a lawyer could be.

Thurgood Marshall:

(Inaudible)

Franklin D. Eckstein:

With — within the limited judicial function I think so.

Thurgood Marshall:

(Inaudible)

Potter Stewart:

In any event, he was elected by the voters of Monroeville, wasn’t — was he not to this period?

Franklin D. Eckstein:

Yes, he was, and all I want to — would like to point out is that he does not have — he doesn’t have — the mayor doesn’t have the power to levy taxes.

The mayor does have the authority to appoint a policeman, but as was testified to below and as this was the practice, safety committee of council goes to the candidates.

They have the mayor appoint him but the council must approve the man, the council must appropriate the money for the salaries, the council must buy all the equipment for the policeman.

And it’s up to the village clerk to keep the council informed as a practical matter with respect to what is going on financially (Inaudible)

And I think if you — if you take a look at what actually happened below that the facts are susceptible to different interpretations.

Franklin D. Eckstein:

Now, this truck driver got confused.

What happened was he granted the motion the first time around.

Six months later, it bounced back.

He had a hearing.

He started to open the court and council for Ward was interrupting him, renewing the motion he said, and the mayor says, “Well, I can’t grant it now.”

Then a proffer was read into the record and the mayor didn’t know what he was doing.

I’ll admit that.

He then preceeded upon the end of the proffer a plea of not guilty to ask Ward, “Do you have anything to offer for a testimony?”

This proves, in my estimation, that the man was confused, which is unfortunate, but I don’t think it’s fair to say that the mayor put some burden of proof on defendants or at all, the mayor has put the burden of proof on defendants.

Same way with what happened in the course of the trial.

The mayor couldn’t see that we were going to end up in the U.S. Supreme Court.

He didn’t know all the questions about what — what was the process of — of procedure charging under ordinances or what was going on with respect to the facts of the same case.

He thought they were going up blind alleys wasting time and he got mad and he lost his temper and he challenged council for Ward and then with respect to cross-examining the policeman.

I would say that the mayor in this case, did lose his temper.

He did act poorly.

But I don’t think council for Ward is right to say that what we have here is a man who’s above reproach, but the system put him in this bad spot.

I think you’ve got a man here, who listened to six months of stuff in the newspapers, because this was a very remarkable case for — for a small town.

And the facts were in the story that it wasn’t Mace that was used, although it was widely reported that it was Mace and other facts were distorted.

The mayor came with pretrial knowledge that was — was improper and the mayor during the course of the trial lawsuits (Inaudible)

I don’t think that it’s fair to say that all mayors necessarily are — are in the same category as this one mayor with respect to this one — one man.

And all I can say is that the — that there’s — there’s no denying the fact that this mayor did a bad job, I think, in the handling of this case.

And maybe there is — there is argument there for consideration by this Court, but I don’t think that we can make the leap in logic and see that all mayors always play some burden of proof on defendants, but that they all tend to defend policeman because they aren’t responsible for the policeman.

Potter Stewart:

I don’t understand — I don’t understand, Mr. Berkman, to be making that argument.

In fact, I rather understood him be emphasizing that his attack is upon the system as such.

Franklin D. Eckstein:

Well —

Potter Stewart:

But you know, I think that the system may in some cases grant very, very fair trials.

Franklin D. Eckstein:

Well, it was —

Potter Stewart:

In other cases, unfair trials but that the system itself is constitutionally invalid.

That’s what I thought.

Franklin D. Eckstein:

Yeah.

Franklin D. Eckstein:

That what I’m saying is, I don’t think that that argument is — is right.

What I’m saying is that in this case, I think the system is okay.

But I think in this particular case, they should have filed an affidavit for prejudice, based on the facts of — of the mayor’s prior knowledge.

The mayor certainly knew about this.

Ward was arrested in Monroeville and the mayor certainly had the kind of a pretrial knowledge that I think would have been a basis for a valid affidavit for — for prejudice for interest.

He’s certainly —

Potter Stewart:

As I understand it, you can’t tell us what, under the law of Ohio would have happened, if the mayor had said, “Yes, you’re right I am prejudiced.

I’m not —

Franklin D. Eckstein:

I, with my limited experience, Your Honor, all I can say was I would presume it would be tried by a county court judge or that — appointed for that special purpose so they’d appoint some other civilian.

Potter Stewart:

But you know that the law is not clear, as I understand it.

Franklin D. Eckstein:

There is no provision in the laws, I — as I have read it to say who must then take this spot of the mayor.

I think that — that another question that’s — that’s worthy of consideration is what will happen if — if mayor’s courts are abolished.

I think that the — the State of Ohio has indicated through the legislature they want to keep them because of the fact that they do serve the purpose of allowing defendants to have a — a hearing in an evening before a mayor, not to have to miss work and go and appear before a — a magistrate who does — does have court like a municipal court, a county court during the day.

Mayors are — are part-time employees as far as being mayor’s concern.

They have court session in the evening because they work during the day time.

In fact, you could — you could argue that more people would be apt to post bond and forfeit it rather than miss work and appear before a municipal court judge or county court judge.

Warren E. Burger:

Well, couldn’t you elect a local village judge or a magistrate if you want to call him that, the same way they elect the mayor in the city council and at the same time with no great burden?

Franklin D. Eckstein:

If — depending on the holding of this Court and a change in the state law as you could, Your Honor, but not under the existing laws.

Warren E. Burger:

I wasn’t speaking on the existing law.

You were — you were saying this — you were at least suggesting this was impossible of solution.

There is a solution.

Franklin D. Eckstein:

I was assuming that if the mayor’s court system per se is held to be unconstitutional that people would have to go immediately to a county court for relief in the municipal court.

Warren E. Burger:

Until some other program were set up.

Franklin D. Eckstein:

Depending on the grounds for the holding of course.

Potter Stewart:

How many county judges are there in Huron County?

Franklin D. Eckstein:

Believe it or not, there are only two, Your Honor.

It’s not a very large county.

Potter Stewart:

No, I know.

It is — does either one of them live in Monroeville, hold court in Monroeville?

Franklin D. Eckstein:

No, the court has held in Willard, Ohio where I practice, a town of about 6,000.

Franklin D. Eckstein:

The other session is in the county seat Norwalk, Ohio, town of about 12,000 or 11,000.

Potter Stewart:

And only day time sessions?

Franklin D. Eckstein:

And these judges hold court during the day time.

Potter Stewart:

And not at all at night?

Franklin D. Eckstein:

No.

Warren E. Burger:

How does the Village of Monroeville get its legal advice on a —

Franklin D. Eckstein:

Well, I would like to say —

Warren E. Burger:

Any basis?

Do they just go to any lawyer they want to or do they have a permanent solicitor?

Franklin D. Eckstein:

No, this is provided in state — state law.

They retain council for a period of up to two years under contract and I must say that the financial officer who knows what’s going on the village clerk more often than not, goes to the state auditor’s office rather than come to council.

That’s one of the many bones of contention.

But they receive their advice from the solicitor when they ask or from the state auditor, whomever prosecute them, or they consult.

But I think that this is a — a unique situation.

The — the mayor presides also in the sessions of council.

The council is where the real power is in the small municipality.

They have the power to tax.

They have the power to spend.

And the mayor’s executive financial — executive responsibility is limited.

If you look at the executive power as invested in the court treasurer or in the marshall, street department and whoever else gets appointed in — in small towns.

As a matter of fact, the mayor does not run the town.

It is in the executive office similar to large cities or — or similar to the federal executive.

I think that if you review the — the proceeding that actually went on that it’s susceptible to more than one interpretation.

And I would just respectably urge the Court to consider that whether — whether or not the defendant fully availed himself of all the rights that the state law provided with respect to trial de novo, which I — I say did exist, and with respect to an affidavit for prejudice based on — on other grounds.

And I respectfully submit that the — the mayor does not pick any great financial or political fruits from being mayor.

And the fact — point of fact, I represent five municipalities between 1,200 and 1,300 and 8,000 of population that have mayor’s courts.

And we’ve had 12 mayors in the last four years.

I’ve practiced law four years and most, only one was defeated for re-election.

Most of the practice, I mean there are service mayors for a couple of years and quit because there has one and they pay for a couple of hundred dollars a year.

They don’t find innocent people guilty just to get revenues for the city.

Franklin D. Eckstein:

And — and I guess in closing, what I’d like to say is, I don’t think this case is at all like Tumey.

And if the Court should find though that the — the operation of the Monroeville mayor’s court resembles Tumey, I don’t think that it’s fair to conclude that all mayor’s courts have a high revenue, in the mayor’s court, but that all mayors conduct themselves the way this mayor did.

He was provoked.

There was six months publication in magazine and newspapers locally about this particular event and what had transpired.

And I think that I can’t argue with the — the fact that the mayor acted improperly at some points in the hearing, lost his temper and was not the fair and impartial judicial officer he should be.

But I don’t think there are grounds for filing that in a substantial number of cases that other mayors would be like–

Byron R. White:

(Inaudible) proceeding them and that is required substantial reports with —

Franklin D. Eckstein:

No.

Byron R. White:

And that — these convictions should be reversed?

Franklin D. Eckstein:

No, I think that if the defendant had filed an affidavit for prejudice and had cited facts to show the kind of —

Byron R. White:

(Inaudible) in great words that the mayor in this case had acted improperly.

Franklin D. Eckstein:

I think that you can — that if you look at the fact that the mayor lost his temper and first, I think on — on the findings of fact, I think that he made, as far as the findings are concerned, I don’t think the outcome would have been changed but that’s not — well, then I think the mayor losing his temper acted as — not as a fair and impartial judicial officer.

Byron R. White:

(Inaudible) in case you haven’t investigate.

Franklin D. Eckstein:

No, not from having investigated, in a small town, when the newspaper picks up this kind of events and they’re republished over six months.

And when newsletters are published, in some cases they distort factual events, I think if he comes to the trial with a kind of prior knowledge, it isn’t right.

Byron R. White:

Was he — was he responsible for the event?

Franklin D. Eckstein:

No, he was not and the mayor — the mayor is not in charge of police.

It may say in the statute that he’s a chief conservator of the peace.

I don’t know what that means.

The mayor does not set schedules for policemen to work.

He doesn’t tell a policeman how to do the job.

The real authority is the safety committee of council who is responsible for all expenditures and really responsible for the hiring of police.

They are the ones who govern what the police —

Byron R. White:

And who’s responsible for bringing the charges?

Franklin D. Eckstein:

The charges are always brought by a policeman or by people who have witnessed events.

Byron R. White:

(Inaudible)

Franklin D. Eckstein:

Well, I suppose so.

I — I would presume that he would have that right if he felt that the — if the thing were clearly illegal and the affidavit was clearly improper.

Byron R. White:

(Inaudible)

Franklin D. Eckstein:

I don’t think that the mayor — I — I know a little of five times I represented, he can and he does.

Franklin D. Eckstein:

I don’t think a mayor can direct that charges could be brought.

I think that it’s up to the chief of police to decide how to enforce law.

The only thing the mayor can do is what he did in this case which is to say, he — he says that if there’s a clear-cut violation, arrest people, and if there’s not a clear-cut violation, forget it.

And — but I don’t think the mayor isn’t deeply involved in law enforcement.

Warren E. Burger:

Thank you Mr. Eckstein.

Do you have anything further, Mr. Berkman?

Bernard A. Berkman:

Yes, Your Honor.

A couple of comments, I — the fact that the judge in this case was a truck driver and the defendant was a truck driver, I think is not the kind of trial by what appears is that was — was intended.

I — I would only say that I — I misspoke in my principal argument with respect to the use of the word “Mace.”

The record specifically says tear gas and I would — I think there’s no constitutional difference.

Warren E. Burger:

Well, what’s it all about?

Bernard A. Berkman:

There was apparently an altercation after the — the attempt by the village constable to flag down the accused.

This occurred at a parking lot near a restaurant, some 1,700 feet beyond the point at which the individual is flagged down.

His defense was that he had a loaded truck and that he could not stop immediately and that it was not safe to stop his truck there and he pulled into the first location off the berm where his truck could reasonably stop.

At that point, the village constable now the — or at the time of the hearing, the — the chief of police of the city took chase in his automobile, an altercation took place there, during which time — during which time Mr. Ward was hit with — with tear gas from the police officer’s cannister.

Thurgood Marshall:

The mayor wasn’t there.

Bernard A. Berkman:

I beg your pardon?

Thurgood Marshall:

The mayor wasn’t there.

Bernard A. Berkman:

The mayor was not there at that time.

Thurgood Marshall:

He had nothing to do with them?

Bernard A. Berkman:

No.

I would point out a — a couple things that this Court has a rare opportunity to determine for itself, what, or I should say that, has a rare opportunity because it has already been determined whether or not the financial responsibilities of the mayor are such that they involved him in that kind of activity.

In Tumey, the very same statutes that we have here with respect to the mayor’s responsibility were considered and the Court shall find.

Their numbers have been changed with the renumbering system but this — the language I have checked and it is identical with respect to the responsibility that the mayor has for the financial affairs in the city.

And the Court’s specific —

Potter Stewart:

But the facts were quite different with respect to in his salary and so on.

Bernard A. Berkman:

Yes, I’m only talking about those particular aspects of his financial responsibility, which were an issue here.

I would also urge with respect to the necessary neutrality, necessary detachment which is required although we have not taken a position that — that separation of powers is compelled against the state.

We — we do say that this Court has drawn a line between judiciary action and police action, at least, in certain areas.

And we have called the Court’s attention in our brief, the Coolidge against New Hampshire, in which one of the principle points dealt with the importance of a neutral and detached judicial officer required to issue a warrant.

Bernard A. Berkman:

And in Shadwick against Tampa, last term, in 407 U.S., this Court in distinguishing, are between whether or not a clerk could issue an arrest warrant, made it very clear that neutrality and detachment of the judicial officer requires severance and disengagement from activities of law enforcement.

And so, it seems to me to be an easy move from the issuance of warrants to a situation where a — a determination is not being made of the threshold issue of probable cause, but really the ultimate determination of guilt or innocence.

How much more important is it to make sure that the judicial and the police officers are not intertwined in that way?

We would urge that in the event that mayor’s courts should be abolished or the statutory provision, dealing with them should be dealt with appropriately by this Court.

No great inconvenience would occur.

We are ready to stipulate that some way could be found in order to take bond forfeitures and pleas of guilty.

Our contention is that when you have a dispute that court is of no use, if we are going to concern ourselves with minimal standards of due process.

We think that the county courts which have concurrent jurisdiction are available and can set up some kind of a night procedure or some kind of a procedure for bond forfeitures and so on to — to adapt to the convenience of the — of the population.

Warren E. Burger:

You wouldn’t expect us as a matter of due process to tell them what hours of the day.

Bernard A. Berkman:

Oh no.

I — I’m only responding to the policy suggestion that there might be some difficultly if this Court did its constitutional duty and struck down this court.

Warren E. Burger:

Are you telling us that if the Court should hold that the mayor can’t try a contested case as distinguished from a non-contested case that it will go to the county court?

Bernard A. Berkman:

We are saying that there are a couple of alternatives, Mr. Chief Justice.

One is that it might go to the county court or it might do as it has done in 1957 as a result of this Court’s decision in — in Tumey in striking down the Justice of the peace courts, who were paid on the fee system decried by the Court in Tumey.

It set up an entirely new court system in order to handle the traffic of problem and that’s not the county courts —

William H. Rehnquist:

Thirty years after Tumey —

Bernard A. Berkman:

Pardon?

William H. Rehnquist:

Thirty years after Tumey, they did that?

Bernard A. Berkman:

Sometimes, the decisions of this Court reach Ohio slowly, Mr. Justice Rehnquist.

And I think that’s an example.

But they cited in the — in the legislative history that this was the reason for doing it.

You have it there sometime like —

Potter Stewart:

Do you have any — do have any knowledge, Mr. Berkman, as to how wide and how great an impact a decision in your favor in this case would have, in other words, of how many states are — exists or a similar system exists?

Bernard A. Berkman:

In our brief, we have listed in one of the footnotes approximately 13 to 14 other states which have this kind of — of system.

I think they’re probably are less now, and their number is dwindling.

There was a time, I think, when some 40 states had some — something similar.

They’re not all identical, of course, but something similar.

I think there are now some 13 states which we’ve listed in our brief which do have some —

Potter Stewart:

Giving judicial power to the mayor of a municipality.

Bernard A. Berkman:

Yes, yes.

Bernard A. Berkman:

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.