Sunday, July 18, 1999


Traffic ticket leads to mess of a case

The Cincinnati Enquirer

        Christopher DePiero thought his Dec. 4, 1994, parking ticket in Macedonia, Ohio, was a joke, his lawyer says, “so he pitches it in the back seat and forgets it.”

        After all, it didn't say how to pay or appeal.

        A few weeks later, Mr. DePiero was picked up for a traffic offense in nearby Boston and learned there was a Macedonia Mayor's Court warrant for his arrest.

        Macedonia officers fetched him but refused to drive him back after he posted $250 bond.

        “So he walks 8 miles back to his car in a rainstorm,” said his attorney, Augustin F. O'Neil.

        When Mr. DePiero finally appeared in Mayor's Court, Mayor Joseph Migliorini fined him $50 for illegal parking and $100 for criminal contempt.

        Mr. DePiero successfully appealed both charges to Cuyahoga Falls Municipal Court and sued the mayor and Macedonia, saying the warrant and convictions violated his right to due process.

        U.S. District Judge Patricia A. Gaughan in Cleveland disagreed, and Mr. DePiero appealed to the 6th Circuit. There, Judges Cornelia G. Kennedy, Gilbert S. Merritt and Jerome Farris gave Mr. DePiero and his attorney much of what they sought.

        Mayors' courts have created constitutional problems for years, either because mayors get a share of the fines or costs, or because their involvement with police raises questions about the ability to judge fairly.

        In Macedonia, it was power, not personal profit, that became pivotal in the 6th Circuit analysis.

        The court said Mr. Migliorini's power to appoint police and responsibility for city fiscal health put him in “two practically and seriously inconsistent positions.”

        For that reason, he never should have sat as a judge in mayor's court.

        Mr. DePiero did not have to prove the mayor used police and his court to fatten city coffers. Rather, the U.S. Supreme Court has said the “mere possibility” of an unconstitutional overlap of police and judicial powers is enough.

        Given those facts, the 6th Circuit said, Mr. DePiero was deprived of his right to due process “when Mayor Migliorini tried his contested traffic and criminal contempt charges.”

        For that reason, the 6th Circuit reversed Judge Gaughan's refusal to grant summary judgment to Mr. DePiero, giving him, in effect, the acquittal he sought.

        That same unacceptable tension between police and judicial powers also meant Mayor Migliorini couldn't be the “neutral and detached” judge required for an arrest warrant.

        That, too, violated Mr. DePiero's right to due process.

        Both of those claims can go to trial against the city of Macedonia, the court said.

        However, Mayor Migliorini may not be sued. His mistaken decisions — to issue the warrant and preside over the trial — were within his judicial capacity, and he is immune from liability.

Illegal-search suit allowed
        Richmond, Ky., police officers violated Ali Shamaeizadeh's rights when they searched his two-family building twice without a warrant. In 1996, the 6th Circuit threw out the evidence, saying those searches violated the 4th Amendment. Prosecutors dropped drug charges, and Mr. Shamaeizadeh sued the city and officers for damages.

        However, U.S. District Judge Karl S. Forester dismissed the complaint. He said Kentucky's one-year statute of limitations for such personal-injury actions began the day of the search, March 14, 1994, more than three years earlier.

        Mr. Shamaeizadeh appealed and won.

        Judges Nathaniel R. Jones, LeRoy J. Contie Jr. and Karen Nelson Moore reversed Judge Forester's decision, saying “the resolution of this issue is more complicated.”

        Drawing on precedents involving those accused or convicted of felonies, Judge Moore said, in effect, that defendants could not file such personal-injury suits against local authorities before criminal proceedings and habe as corpus petitions ended.

        Moreover, it “would misdirect” defense efforts to require individuals to initiate such damage suits while defending themselves against criminal charges.

        “It is only appropriate that the statute of limitations not begin to run for criminal defendants seeking to file the same (civil rights) claims until the disposition of any pending criminal proceedings,” Judge Moore wrote.

        Those proceedings ended April 9, 1996, when charges were dropped. The suit was filed April 8, 1997.

        “Shamaeizadeh thus appears to have filed his ... action within Kentucky's one-year statute of limitations for personal-injury actions.”

Discrimination claim tossed
        Probationary Corrections Officer Carla Warfield was fired by the Lebanon Correctional Institution. She sued, saying LCI officials discriminated against her because she is a woman.

        U.S. District Judge Sandra S. Beckwith in Cincinnati granted pretrial summary judgment to LCI and supervisor Lt. Jacqueline Marshall.

        Ms. Warfield appealed, but Judges Robert Krupansky, Danny J. Boggs and Eric L. Clay said Ms. Warfield was so unqualified that it didn't matter how male officers on probation were treated.

        Judge Boggs said Ms. Warfield and attorney Teresa L. Cunningham did not “seriously dispute” LCI claims that Ms. Warfield had difficulty supervising inmates, did not respond properly to prison alerts, allowed too many inmates out of their cells, inappropriately engaged in conversation with inmates, did not keep proper order among inmates during mass movements, and gave inaccurate counts of prisoners.


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