Infringement on the Private Persons Right To File Criminal Complaints
Citing 8 Moore’s Federal Practice § 3.05 at p. 3-7 (in effect in 1975), the district court observed that “[a]lthough a private citizen is not barred by the Rules from instituting a complaint before a magistrate” 403 F. Supp. at 174. Further citing Professor Moore, the court pointed out the problems that would result from a contrary rule: The broader issue which this presents is the scope of the government’s control over the prosecution of crime. In California Motor Transport, the Court added that “the right to petition extends to all departments of the Government [and] [t]he right of access to the courts is indeed but one aspect of the right of petition.” Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 123 L. Ed. 2d 611, 113 S. Ct. 1920 (1993) (same). With this underpinning, the Court stated, “[Because] the right of petition is one of the freedoms protected by the Bill of Rights, . . . we cannot, of course, lightly impute to Congress an intent to invade these freedoms.” Noerr, 365 U.S. at 136. The Fifth Amendment to the United States Constitution each contains a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law. The Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights. . It was the duty of a judge to issue a warrant on the complaint of any citizen. U.S. v. Skinner, C.C.N.Y. 1818, 27 F.Cas. 1123, No. 1630.
Although there does not appear to be case law on point in the Ninth Circuit, the Tenth Circuit Court of Appeals has held,[*17] of a First Amendment claim, “that ‘filing a criminal complaint with law enforcement officials constitutes an exercise of the First Amendment right’ to petition the government for the redress of grievances.” Monte L. Low, Plaintiff, V. City Of Sacramento, Defendant. No. 2:10-Cv-01624 Jam Kjn Ps United States District Court For The Eastern District Of California 2010 U.S. Dist. Lexis 98328 September 16, 2010, Decided September 17, 2010, Filed. We note preliminarily that an individual’s constitutional right of access to the courts is well settled. See Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907) Before a First Amendment right may be curtailed under the guise of a law, such as “willful failure to file” or promotion of an illegal tax shelter,” any evil that may be collateral to the exercise of the right, must be isolated and defined in a “narrowly drawn” statute (Cantwell v. 43 Connecticut, 310 U.S. 296, 307) lest the power to control excesses of conduct be used to suppress the constitutional right itself. See Stromberg v. California, 283 U.S. 359, 369; Herndon v. Lowry, 301 U.S. 242, 258-259; Edwards v. South Carolina, 372 U.S. 229, 238; N. A. A. C. P. v. Button, 371 U.S. 415, 433. In this matter the Court failed to recognize that it’s arguments regarding the Department of Justice authority in initiating prosecutions and the obligations of a Federal Judge in determining probable cause are “moot” as applied in this matter and that a State/Local Judge already made a determination of probable cause as authorized by 18 U.S. Code § 3041 – Power of courts and magistrates: For any offense against the United States, the offender may, by ………..any……… justice of the peace, or other magistrate, of any state where the offender may be found, and at the expense of the United States, be arrested and imprisoned or released as provided in chapter 207 of this title, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the office of the clerk of such court, together with the recognizances of the witnesses for their appearances to testify in the case. A United States judge or magistrate judge shall proceed under this section according to rules promulgated by the Supreme Court of the United States. Any state judge or magistrate acting hereunder may proceed according to the usual mode of procedure of his state but his acts and orders shall have no effect beyond determining, pursuant to the provisions of section 3142 of this title, whether to detain or conditionally release the prisoner prior to trial or to discharge him from arrest. In the present case the act was purely ministerial; not a particle of discretion was to be exercised. The United States, At Relation of Aaron Goodrich, Plaintiff In Error v. James Guthrie, Secretary of the Treasury, 58 U.S. 284, 299 (U.S. 1854).
The prohibition against a law enforcement officer issuing a warrant, as distinguished from a summons, is in accordance with the Court’s holding in State v. Ruotolo, 52 N.J., 508 (1968). And see Wong Sun v. United States, 371 U.S. 471 (1963); Johnson v. United States, 333 U.S. 10 (1948). The Rutolo Court held, further, that both the clerk and deputy clerk “possess the neutral status and qualifications necessary to comport with the requirements of the fourth amendment.” State v. Ruotolo, 52 N.J. at 515. Accordingly both clerks and deputy clerks are included as judicial officers for the purpose of issuing arrest warrants and making the necessary preliminary finding of probable cause. See also R. 3:3-1 AND Comments thereto.A description of the offense charged with a correct statutory citation on the prescribed form is adequate process. State v. Lutz, 309 N.J. Super. 317, 325 (App. Div. 1998).
An unusual equal protection argument was found persuasive by the Court of Appeals for the Second Circuit in Myers v. County of Orange in which the complainant challenged the first come first served cross complaint policy of local law enforcement agencies. See also Carrasca v. Pomeroy, 313 F. 3d 828 (3d Cir. 2002)……To this the Court responded: The issue, however, is not whether a DA must prosecute cross-complaints simultaneously, but whether a Defendant and a police department must entertain cross-complaints on the same basis as original complaints, investigate all complaints based on the circumstances of the case rather than o the order in which they were filed, and o that basis determine who, if anyone, should be prosecuted. To fail to do so, we believe, distort the even handed pursuit of justice and violate the Equal Protection Clauses. Id. At 75. See also Hilton v. City of Wheeling, 209 F. 3d 1005 (7th Cir. 2000), cert. denied 531 U.S. 1080 (2001) (differential treatment of residents in regards to enforcement of law could not be characterized as a violation of the right to petition for the redress of grievances, and claimant failed to show a denial of equal protection.
An official associated in any way with the prosecution of alleged offenders, because of his allegiance to law enforcement, cannot be allowed to be placed in a position requiring the impartial judgment necessary to shield the citizen from unwarranted intrusions into his privacy. See State ex rel. White v. Simpson, 28Wis. 2d590, 137N.W.2d391 (1965),holding that a statute permitting adistrict attorney to issue an arrestwarrant in a paternity suit violatedthe fourth amendment because thedistrict attorney was not an impartialjudicial officer. See alsoState v.Matthews, 270N.C.35, 153S.E.2d791(1967), holding that a police deskofficer is not the neutral anddetached judicial officer required bythe fourth amendment. In New Jersey, the municipal court clerk or deputy clerk is completely independent of any agency charged with the apprehension and prosecution of offenders. Pursuant to its power as set forth in Art. VI, § 2, par. 3 of the New Jersey Constitution, this Court promulgated R.R. 1:25 C restricting the activities of court personnel. By R.R. 1:25 C ( a )(7), clerks and deputy clerks, as members of the judicial branch of government “shall not hold any elective public office, nor be a candidate therefor, shall not engage in partisan political activity, and shall not, without prior approval of this court, hold any other public office or position.” In furtherance of this rule, this Court has [**4] instructed all municipal courts that “no municipal court employee or other employee assigned to serve a municipal court may have any connection [*513] with the police department.” Municipal Court Bulletin Letter No. 68 , p. 2, September 29, 1961. Although the clerks and deputy clerks are appointed by the governing authorities, as are most of the municipal court judges, 3 there is no question that the branch of government to which a clerk or deputy clerk is[***8]responsible is the judiciary. But we believe that background in the law, although desirable, is not arequirement imposed by the Constitution on a determination of probable cause. After all, probable[***10]cause is a standard which isdesigned to be applied by laymen. A policeman may make an arrest without awarrant where there is probable cause,i.e, where there are facts which wouldlead “a man of reasonable caution” to believe a crime has been or is being committed. Carroll v. United States,267U.S.132, 162, 45S. Ct.280, 69L. Ed.543, 555 (1925). As the Supreme Court stated in Brinegar v. UnitedStates, 338U.S.160, 175, 69S. Ct.1302, 1310, 93L. Ed.1879, 1890(1949):”In dealing with probablecause, * * * as the veryname implies, we deal with probabilities. These are not technical; they are thefactual and practical considerations of everyday life on which reasonable andprudent men, not legal technicians, act.”
Throughout the history of this country laymen have served in various judicial capacities, and particularly in order to determine the existence of probable cause. United States Commissioners, appointed by the United States District Courts, have been invested with the power to issue arrest warrants in federal prosecutions. Fed. Rules Crim.Procedure 3, 4. Today, almostone-third of the United States Commissioners[***11]are laymen. See Staff Memorandum,[**5] Sub committee on Improvements in Judicial Machinery,reported in Hearings, Senate Judiciary Committee, Federal Magistrates Act,1967, p. 30.4 A grand jury, from which lawyers[*515]are routinely excluded, applies the standard of probable cause in determining whether to return an indictment. Grand jurors and petit jurors apply sundry rules of law to factual complexes; our jury system rests upon the premise that one need not be a lawyer to understand guiding principles and to make judgments in the light of them. At the present time New Jersey has 37 municipal court judges who are notattorneys, all of whom have the power to determine probable cause and, indeed, to decide ultimate issues ofguilt. 5 Of course, a United States Commissioner, or a municipal court judge exercises a broader judicial power than does a clerk or deputy clerk who is authorized to determine probable cause by statute and court rules.
Also in the federal system, a clerk of a municipal court who has the authority to issue arrest warrants under a state statute, is considered to be a”magistrate” within the meaning of 18U.S.C.A.§ 3182, which requires that before a prisoner can be extradited there must be”an affidavit made before a magistrate of any State * * *charging the person demanded with having committed * * * [a]crime.”Marks v. Eckerman, 57App. D.C. 340, 23 F. 2d 761(1927). See also Compton v. State of Alabama, 214 U.S. 1, 29 S. Ct. 605, 53 L. Ed. 885 (1909);People v. Britt, 195 Misc. 722, 92N.Y.S. 2d 662 (Sup. Ct.),aff’d276 App. Div. 815, 93 N.Y.S. 2d704 (1949). By its very nature probable causeis a standard which can be applied by laymen, so long as they exercise reasonable caution. It is a practical,non-technical concept, not requiring the complex weighing of factual andlegal considerations which is the judge’s daily task. In issuing arrest warrants permitted by N.J.S.2A:8-27 and R.R.8:3-2, clerks and deputy clerks possess the neutral status and qualifications necessary to comport with the requirements of the fourth amendment.
18 USC § 2071 – Concealment, removal, or mutilation generally
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.
(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.