5 1941 – 1950 The war years

In the brief 11 months before the country was drawn into the hostilities, the American people watched the war news from Europe with extreme trepidation. The nation may not have been officially fighting the war yet, but industries across the nation were already retooling for war production. Locally, representatives of the Department of Public Safety, the Police Department, the Cleveland Safety Council and some of the municipal judges were urgently lobbying Chief Justice Burt W. Griffin for the establishment of a night court. Many authorities were convinced that the evening court hours were necessary to permit workers in defense industries to appear for hearings after working hours. The decision was made to hold court 2 nights per week from 7:30 to 9:30 to handle less serious offenses, while those arrested for more serious offenses would still be required to attend day court as usual. A 90 day trial period was recommended, to be implemented as soon as possible. To appease the detractors, it was agreed that the night sessions could be abolished if found to be impractical. There were some complaints that the night session would simply be a convenience for traffic violators. Members of the committee were adamant that the night session was specifically intended to eliminate interference for workers involved with defense production.1 The night court sessions began on February 25th and were planned to run for a period of 60 days. The court would operate 2 nights per week, opening at 7:30 pm, with every effort made to limit defendants to those engaged in defense industries. The The First Night Court Session-Judges McDermott and Busher court would be limited to traffic cases, with all other types of cases to be heard in day court.2 Judge William J. McDermott opened the first night traffic court session at 7:30 pm. After a short speech, court began. Court attendants estimated that about half the offenders actually were employed in defense production. The session ended shortly before midnight, with the average fine was $10. The first offender was Lewis Emsheimer of Cedar Road, who asked for and was granted a continuance to day court. The first actual defense worker was Miss Jean Grabowski, an inspector at Cleveland Graphite Bronze Company. She pled guilty to a Stop Violation and was fined $3 as a first offender. At the close of the session, McDermott said too many offenders had taken advantage of the night court. “We’ll have to take steps to confine it more directly to those engaged in defense industries”3 When asked his opinion on the night court concept, McDermott was quick to express his disapproval. He favored the permanent abolishment of night police court, adding his remarks to

169 those of some high ranking police officers who branded the entire venture a “political gesture.” McDermott opined, “Night court has failed to accomplish its primary purpose – the accommodation of defense industry workers and the conservation of needed time in our defense production. More than 50% of the cases heard at night are those of persons not employed directly or indirectly by firms handling defense orders.” He added, “Through night court we are pampering the traffic violator and causing a loss of respect for the police and the courts. Under this plan, we are not cutting down violations.” Offering an opposing viewpoint was Judge Perry A. Frey, who along with Safety Director Eliot Ness thought the court was “following a successful course.” Frey, the leading proponent of the night court, said “According to all indications, evening court is meeting with success.”4 Director Ness informed Traffic Commissioner Martin A. Blecke of new instructions for all uniform police. Ness wanted all police making arrests for minor traffic violations to notify the offenders of the availability of night court. This was to be another way to insure the night court would continue as a session of municipal court. Ness was pleased with the plan and stated his opinion that night court should be continued because it was saving man hours so vital to defense production. “I think it is important for the police to remember that they have nothing to do with meting out the punishment to violators. Any penalties imposed on the traffic offenders come from the judge.” He added, “The inconvenience of appearing in court during the day and the loss of pay should not be part of the punishment. Instead that should take place in the court room.” Chief opponents of the night court had been Commissioner Blecke and judges McDermott and Artl, who had consistently insisted the plan had shown no success and should not be continued. Blecke had contended that night court serves to “coddle and pamper” the violators. Judge Joseph H. Silbert, who presided over a recent session of night court observed that of the 109 cases he heard, at least 75% of them involved defense industry workers, representing a saving of more than 600 man hours.5 At a meeting of the judges in late April it was decided that the night court pilot program in municipal court would continue. A committee of 3 judges, Perry A. Frey, William J. McDermott and John J. Busher agreed to gather data on the night court. The final statistics would be presented to the full judges’ panel. The decision whether to make night court a permanent session of the court would be reached at a future meeting.6 Despite the accord, Judges Joseph A. Artl and William J. McDermott were firmly against the night court. They charged that night traffic court failed in its primary purpose as a court for the convenience of defense industry workers, and was a failure to pedestrian and driving safety as well. Judge Artl referred to an analysis of day and night court dockets which revealed that night court was failing to follow its prime directive, to serve the defense industry defendant. Fewer than 30 percent of cases heard during evening sessions feature legitimate defense industry defendants. At a Tuesday night session with 267 offenders on the docket, only 72 were defense workers. Regardless of employment, the average docket size was swollen with 240 -260 for a night session, compared to the anemic 70-90 cases on the day docket. Further, it was his allegation that patrolmen making arrests were making no effort to determine whether or not the violator would be able to attend night court. McDermott characterized the court operation as the “cafeteria system”, grinding out cases every 40 seconds, with defendants failing to acknowledge the importance of their violations. Many first offenders come into court and are not favorably impressed with the power and

170 efficiency of traffic court. He said, “These persons carry away the impression that their violations are very minor, and after paying costs or a small fine feel that a repeated offense would not matter much to the court one way or another. Also, when police and the court begin to dicker with the violator as to the convenience of his appearance, both bodies will lose the respect of the average citizen.” Artl maintained that the night court had passed beyond the bounds of control, reverting back to the evils that existed in traffic court prior to 1938, when all the cases were assigned for 9 am. “There were many objections to crowding these cases into the morning,” Artl said. “The principal of which was the large number of persons congregated in inadequate quarters, the long wait that many at the end of the docket would be forced to undergo, and above all, the terrific rush with which the court was required to hear these cases. In 1938, this was remedied by dividing the work of the court into 2 sessions, morning and afternoon. Night hearings open to everyone, find the court room overcrowded. Persons are compelled to wait long hours for their cases to be called. In addition, the judges do not have sufficient time to devote to each case unless they expect to keep the motorist waiting until the early hours of the morning.”7 The night court faced its heaviest burden during the session of September 9th, when 286 defendants shoehorned into the courtroom and spilled over into the corridors. Judge Artl, facing the throng, complained that less than half were appearing as defense employees. He said it was apparent that arresting officers had forgotten the purpose of night court. The average docket, held twice weekly, was well over 200 cases, compared to the normal daily docket of 60-70 cases.8 By mid-September, Night Court reached a point where either a second judge or an increase in the number of weekly sessions was needed to solve the problem of overloaded dockets. These were the opinions of Judge Perry Frey, a sponsor of the court. The dissenting opinion was furnished by Judges Joseph A. Artl and William J. McDermott, who both agreed that the dockets were crowded. But they opined that the number of violators actually engaged in defense work was too small a proportion of those offenders attending the court, as it was originally dedicated to serve. Frey maintained that because so many came to court at night, the evidence was clear that the need for night court was wider spread among workers. He felt that the sessions were now vital because they served the entire community.9 Frey’s conviction of the need for night court was shared by business executives and workers in 32 major industrial plants, according to a survey of defense industry contractors. Judge Frey estimated that more than 75,000 man hours could be saved in 1 year by night court sessions. Fred T. McCrae, Executive Vice-President of the White Motor Company said, “We will undoubtedly face a labor shortage in a very short time. Every man-hour that can be saved will be important. When men are taken away from their jobs here during the day we lose time and production that can never be made up.”10 H. H. Henry, Safety Director for Otis Steel Co. characterized the night court as a good practice and urged it to continue.11 Frey was successful in lobbying for a second courtroom to ease the overcrowding but the detractors demanded better effort by police to winnow the numbers of nightly defendants. Judges meeting with traffic officials drafted a letter to Police Chief George J. Matowitz stressing the need to restrict night court to defendants employed or otherwise engaged in defense industries. The letter was to serve as a reminder to all policemen that the original purpose for night court was to prosecute defense industry violations.12

171 Although opinions on the value of night court sessions were many and varied, they would continue throughout most of the war years. The same crowded conditions also continued through 1942. Judge Frey’s Friday night court was often jammed full to the doors with 170 defendants. The judge disposed of these violators using his recently announced policy of fining speeders $1 for each mile per hour over the speed limit in their citation. The judge had said that if the $1 per mile policy was not effective in cutting down on speeding violations, he would not hesitate to resort to workhouse sentences.13 It could have been that the driving public became more conscious of their driving habits, or the number of traffic policemen may have been reduced due to wartime enlistment, but the number of traffic arrests was so greatly reduced by June of 1943, it caused the elimination of the Friday night court session. Judge Joseph H. Silbert announced the end of the 2nd weekly session after conferring with John R. Sammon, Deputy Traffic Commissioner. “Shortage of police personnel is at least part of the cause of this year’s 50 percent rise in non-fatal traffic accidents,” Silbert said. “Every time a special detail is assigned in labor cases or black-outs, the department must dip into the traffic division. We now have only about 100 night cases a week instead of the 250 we used to get. I am continuing the Tuesday night session only.” 14 The end of the war brought the end of night court. Although there were supporters on each side of the issue, the full measure of court resources were once again devoted to daytime sessions. In August of 1946, night court lost its most enthusiastic supporter when Judge Perry Frey passed away. The night court concept was briefly revived by an efficiency study of local government that was conducted by Griffenhagen & Associates, a Chicago survey firm. Their report suggested a return of night court, a proposal which the judges rejected. The notion of re- establishing night court would be discussed once again, in 1953. Members of the county grand jury, visiting the courts at Central Police Station, were told by Municipal Judge John E. Sweeney that about 10% of persons cited for traffic violations make no effort to attend court on their appointed day. The backlog of such cases at the time was over 800. Some court authorities were convinced that number could easily be reduced by holding hearings in night court. Many were of the opinion that the fear of losing a day’s pay forced defendant’s to ignore a police summons. “I see no reason for a night court now,” Chief Justice John J. Busher commented. “Violators who dodge hearings will do it no matter what time they’re set for. Eventually, the police catch up with them.”15 Arising out of the Copland controversy were 2 bills introduced in both the State House and Senate concurrently. Proposed by Dworkin (Harry A.) and Vanik (Charles A.), the bills sought to reduce from 16 to 14 the number of judges in Cleveland Municipal Court. Under these bills, the first 2 vacancies to occur would not be filled, except for that of Chief Justice. Because there was no law that specifically removed Judge Copland from office, Dworkin and Vanik sought to provide a law to deal with such an eventuality in the future. These bills as constructed would require that municipal judges must remain members of the bar continuously during their terms. Such a provision would automatically disqualify a municipal judge who might befall the law such as Copland had, and by nature of his disbarment be removed.16 State Representative Dworkin introduced a bill proposing the appointment of a Deputy Bailiff Referee for the Cleveland court. The appointee would be required to be a lawyer of at least 5 years’ experience, and the position would be under civil service regulation. The bill determined the level of compensation, to be not less than $4,800 annually, of which $1,500 would be paid by Cuyahoga County and $3,800 by the city.17

172 By a unanimous vote, the state Senate passed and sent to the House the bill to reduce the number of Cleveland municipal judges from 16 to 14. The bill provided that the first 2 vacancies to occur or exist on the bench because of death, resignation or removal shall not be filled, and that the terms so vacated shall be abolished. The first such vacancy would occur on April 1 when Judge David Copland’s resignation would become effective. This bill, sponsored by Senator Charles Vanik of Cleveland, also contained the provisions specifically designed to eliminate a repeat of the Copland situation.18 Following a meeting with probation supervisors, Judge Julius Kovachy, who at the time was the acting Chief Justice, ordered city probation officers to discontinue the practice of recommending specific insurance brokers to defendants who were forced to find insurance because of the Financial Responsibility Law. Kovachy said in a statement: “The drivers’ license law, as it applies to the offenses driving while intoxicated and failure to stop after an accident, makes it mandatory upon the trial court to suspend the license of the defendant, but leaves the period of time to the discretion of the judge.” Under this law a violator had to demonstrate his ability to meet damage claims before he was permitted to drive again. The law directed the Registrar of Motor Vehicles, following a conviction and order of a judge, to notify the defendant that unless he qualifies under the provisions of this act, his license shall be revoked and driving privileges terminated. The defendant could prove his financial ability by filing with the registrar $11,000 in money or acceptable public bonds, a surety bond in the same amount, acceptable public liability and property damage insurance or a bond representing $11,000 worth of real estate over and above all encumbrances. The judge was often confronted with problems involving the driving privileges of defendants. If a license was suspended or revoked it placed a hardship upon the defendant in that it may deprive him of his employment. This was a drastic punishment to inflict upon a person who in many instances was a first time offender, particularly when this burden is in addition to the penalty of a money fine. Kovachy’s order also stopped the practice of the clerk’s office returning to defendants their drivers licenses who have complied with the Financial Responsibility Act unless the return was authorized by the trial judge. In cases where the defendant had an aggravated record, the court refused to recognize his ability to qualify under the Responsibility Act. The trial judge under those circumstances suspends the license of such an individual for a year or longer.19 The new Uniform Traffic Code became effective on September 6, 1941. The bill had been under debate, first in the Senate then again in the House, since February, when it was first proposed. The bill in its final form, standardized traffic signals, signage and lane markings on all roads throughout the state.20 According to Harry E. Neal, Executive Secretary of the Ohio Traffic Council as well as Chief Engineer of the Ohio Highway Department’s Bureau of Traffic and Safety, “The Uniform Traffic Code now proposed will put Ohio into step with uniformity in driving practices now in effect in more than two-thirds of the 48 states.” Neal pointed out some surprising facts: “It was discovered by traffic engineers, that 1 driver in every 100 is totally color blind, and that 10 drivers in every 100 are blind to either red or green. Uniformity in signals would improve the safety for all the color blind.” When enacted, the code would standardize the shape and color of all traffic signs and lights, on every road throughout the state. At the time, there were no standardized lights or color arrangements for signs or lane markings.21

173 The Senate had passed the Uniform Traffic Code bill and forwarded the approved bill to the House for consideration. Before the Senate were several other bills for the control of traffic. Among the provisions of these bills was the restriction on issuance of drivers licenses, establishing license examiners across the state, inspection of motor vehicles by highway patrol, and a bill governing the reporting of accidents and failures of hit-skip reporting.22 Critics of the bill, including some members of the legislature, claimed that the Senate passed the Uniform Traffic Code bill without sufficient debate. Members of the House characterized the bill as error filled, condemning it to a sub-committee for error-checking.23 The Cleveland Bar Association made their opinions known when they opposed the adoption of a rule in municipal court which would have required the prepayment of a fee of 35 cents at the time petitions were filed. In a report by the judiciary and legal reform committees of the bar association published by their executive committee, their opinion was that prepayment would be a nuisance to lawyers, particularly because so many of the petitions are sent to the court clerk by mail. “Adoption of the rule would constitute a questionable exercise of power.”24 Judge Jacob Stacel collapsed on the steps of City Judge Mary B. Grossman, Hall when returning from lunch shortly after noon on running for re-election finds September 10, 1941. He was pronounced dead on arrival at more opponents in her “alley” than any other judge, Charity Hospital. Coroner Samuel R. Gerber attributed his remarked: “Guess I’ll have to death to Coronary Thrombosis. Because the legislature appeal to the street passed the bill which reduced the court by 2 judgeships, commissioner to widen my Stacel’s seat was abolished rather than filled by alley, it’s getting so crowded appointment. His abolished seat completed the mandated with candidates.” 25 reduction, the first of which was fulfilled by the resignation of David Copland in April.26

Chief Justice Burt W. Griffin called a meeting of municipal judges to discuss what steps to take to provide psychiatric exams for prisoners. The court had been without regular services of a psychiatrist since Dr. Royal G. Grossman was called up to military service. Common Pleas Court had already appointed 3 doctors who would divide Grossman’s duties with the higher court. Municipal court had yet to make any such arrangements.27 The result of that meeting was the judges decided to appoint Dr. Wilfrid M. Gill as the municipal court psychiatrist. Gill was one of three doctors to be hired on a part time basis by Common Pleas Court. He would now spend the majority of his time attending municipal court cases, but still attending to county cases when needed.28 Following the attack on Pearl Harbor and the American entry into World War II, ration and draft boards became a Dr. Wilfred M. Gill necessary part of life. Local judges in every jurisdiction were called upon to chair ration and draft boards. Mayor Frank J. Lausche appointed all 14 municipal court judges to the wartime automobile and truck tire rationing board. Their setup was to mirror that of the city’s other war emergency board, the fair rent committee. These were the first of many rationing boards to be initiated during the war. The chairman of the board would be Chief Justice Burt W. Griffin. The mayor’s decision to appoint the full court to the panel was made because he felt that citizens would be less likely to complain about decisions made by officials

174 they had elected.29 There were 55 in all of Cuyahoga County, and all were kept extremely busy. Rationing boards initially had the most difficult time with tires, a vital commodity for war and domestic use. The municipal court judges decided it was vital to hand out the most severe punishment to those who engaged in tire theft. It was decided “to impose the maximum penalty under the law.”30 One of the first controversies that faced the tire board was whether to treat beer as a food. The Leisy Brewing Company, if beer qualified as a food, was eligible for permits to buy tires and tubes, but those Leisy Brewery carrying commodities directly to individual consumers were not. Judge Griffin cast the deciding vote in Leisy’s favor. Beer would be deemed a food and the brewery was eligible to get its tires. In answer to many requests, Chief Justice Burt W. Griffin (County Tire Rationing Coordinator) pointed out that anyone whose tires were stolen would be unable to get permits to purchase new tires unless they fell into favored classes whose services were considered essential.31 In addition to tires, sugar and coal became the important commodities facing control of the ration boards. Also under scrutiny of the boards were new cars. Inventories were tightly controlled and brand loyalty less important than the obtainability of a new car permit. Their presence on the ration boards kept the judges busy on 2 fronts, governing rationing of vital commodities, and conducting the hearings of those who were charged with bribery in regards to those same vital products. Convictions for commodity violations were dealt with harshly, often earning penitentiary sentences.32 The Cleveland Bar Association was investigating the illegitimate trafficking of lawyers services to prisoners in police custody. This was a long flourishing abuse carried out by members of the association, mainly occurring inside Central Police Station. William F. Hecker, Chairman of the bar’s Municipal Court Committee, said recommendations for preventing solicitation of prisoners by “runner” attorneys would be made soon. Evidence had been uncovered that showed a small group of lawyers had access to prisoners and prior knowledge of which inmates had the ability to immediately pay a retainer for legal representation. A recent inquiry disclosed that a disproportionate number of prisoner access permits were assigned by police to a single attorney. The committee proposed these changes to improve the function of the court: ∗ That the burden of the work in the 3 courtrooms be equally distributed among the judges presiding there. ∗ That the prosecutor’s office adhere to the policy of issuing summonses before the issuing of warrants in cases involving domestic disputes and traffic cases involving damage to property.

175 ∗ That a clerk be on duty 24 hours a day so that bond may be fixed at any hour. At present there is none on duty from 4 am to 7 am. ∗ That an effort be made to rotate clerks between civil and criminal branches of the court. ∗ That judges, clerks and bailiffs restrict the use of the bench and their desks to themselves during trials. Hecker said the basis of these suggestions 1941 was the improvement of court procedure. On the basis of a lie detector Rotation of court clerks, he explained, would examination, Judge Lewis Drucker fined a be an attempt to prevent employees from litigant $50 and costs for Contempt of becoming too intimate with the “habitués” of Court. According to the judge, the the court’s criminal branch. “Nobody is information revealed during the entirely satisfied with the way the court is polygraph exam enabled him to 33 determine which of the 2 litigants gave conducted.” testimony that was contradictory to his By June of 1942 it was decided that a courtroom oath. This was believed to be reorganization of ration boards had become a the first time a witness in a civil suit in necessity. The number of ration boards municipal court submitted to a lie countywide had swelled to a high of 55. detector.34 Many administrators were concerned the system had grown too fast too soon. Through discussion and negotiation, the number of ration boards will be reduced to 17 in Cleveland and 12 more throughout the county for a total of 29. Each board would now feature 6 members dividing the responsibilities. Three members would concern themselves with rationing, the other three would see to maximum price matters. To insure that no member was overworked, each member was limited to 1 panel. Municipal judges would limit their participation to one judge per panel.35 An article in The Plain Dealer took Judge Drucker to task concerning his tenure in police court. The complaint surrounded Motions in Mitigation. The complaint regarded the judge’s willingness to accept these motions and the light sentences he was prone to issuing. The paper was concerned by his inclination to accept motions in mitigation when suspending sentences. Drucker defended his light sentences and acceptance of motions as a “remedy deeply rooted in the tradition of American legal procedure.” He described the suspending of sentences as a rehabilitation process. “It is still our opinion that only those that Lewis Drucker are close enough to the case to hear the evidence, to talk to the defendant, to get a report from a probation officer, are perhaps better able to determine the wisdom of the application of the laws of motions in mitigation.”36 A constitutional amendment to abolish judicial short terms was being submitted to voters on the November 1942 ballot. The Plain Dealer editorial on the subject: “A long overdue judicial election reform will be presented for the approval of Ohio voters next fall – a constitutional amendment abolishing the so-called judicial short term. This short term comes into being whenever a vacancy on any of the several benches has been filled by appointment. Under the present constitutional provisions, judicial

176 appointees can hold office only until the next general election, at which time the unexpired portion of the term is filled by the voters. It often happens that the unexpired portion of a vacated term lasts only from the time of the November election until the following January. Appointees who have served up until the election are loath to run for both the short term and the new term because of the confusion it might create in the mind of the voter. So they invariably run for the full term. This leaves the short term race open to political unknowns who ordinarily would not be considered for judicial positions. The amendment to abolish this farcical situation will be adopted by an overwhelmingly majority if the voters are made aware of its purpose.”37 The constitutional amendment to abolish the short term judgeships was adopted, passing by a margin of over 14,000. The amendment would not take effect until after January 1, 1943. From then on, placement in these judicial roles would be by gubernatorial appointment.38 A new anti-gambling ordinance was passed in July which made the mere possession of a policy slip a violation. Violators of this ordinance are subject to fines up to $500, 30-60 days in the workhouse, or both. Persons charged with violations of this ordinance were all requesting continuances, showing a serious reluctance to be the first to be tried. While numerous defendants relied on delaying tactics, it was a fruitless endeavor. Defendants eventually faced their day in court.39 Judge David Moylan passed away in May, leaving a vacancy on the court awaiting a gubernatorial nomination. Governor John Perry Jackson W. Bricker indicated that he would not immediately fill the seat on the court, preferring to evaluate a number of candidates. He would finally make the appointment, nominating Perry B. Jackson, who would be the first Negro to sit in any court other than mayor’s court in Ohio. Jackson was sworn in on August 22nd, becoming the first black judge in Cuyahoga County.40 On August 18th in Elyria, Nathaniel Spruiel killed Patrolman Howard Taft and was shot to death himself in a gun battle that led to the discovery of a nude woman’s body in the trunk of his car. Spruiel was appealing his conviction in another vice case and had obtained repeated vice case continuances in all the courts of the county. When these facts were revealed, there were numerous complaints of laxity and leniency in the criminal branches of the courts. The Cuyahoga County Bar Association agreed to investigate and selected State Representative Harry J. Dworkin to lead the inquiry into the administration of criminal justice and criminal procedure. Dworkin said members of the investigative committee would study the rules, procedures and practices in Municipal, Juvenile and Common Pleas Court. “Following the proposed examination, the committee will make recommendations based on the evidence that may be discovered. That will instill the confidence of the public in the judicial system.”41 In fact, both the Cleveland and Cuyahoga County Bar Associations ran concurrent investigations of local courts, and it became somewhat of a contest to produce viable suggestions for court improvements. Their first suggestions were specifically for improvements to municipal court.

177 The Cuyahoga County Bar Association was first to offer their suggestions, calling for more decorum during trials and hearings in the criminal branch and a discontinuance of “private conferences” by the court “in its chambers” was the first item on their suggestion agenda. “Much of the hardened indifference of the habitual offender and much of the sinister attitude, regrettably current among many defendants, that “influence” or “pull” with the judge, the prosecutor or the clerk will enable them to escape punishment or be dealt with leniently, can be attributed to the informal and casual manner which has characterized proceedings in court,” the report said. “It certainly fails to inspire the proper respect which judicial tribunals must command to be an effective agency in the enforcement of criminal law.” The association included these suggestions: ∗ Each judge should run his own court and not permit any officious or even well- intentioned clerk or court officer, anxious to hurry through the day’s work, to run it. ∗ Persons entering or leaving the court room should do so in a manner that will not disturb proceedings. ∗ All proceedings should be conducted in audible tones of voice. The bar committee reported that it had received “bitter complaints on the practice of some judges permitting a steady stream of persons to enter the court’s chambers before court convenes.” Their report addresses this practice, “Such conferences create suspicion and distrust on the part of those not so favored and unwittingly lend color to claims or subtle hints of ‘influence’ or ‘pull’ on the part of certain politicians, lawyers, clergymen, business agents and others of real or fancied influence.” The subject of importuning a judge regarding a pending criminal case was directly referenced in the report. While addressed by the court in the adoption of Rule 12 of the court’s local rules, the committee recommended that this rule should be rigidly enforced without exception or abrogated. The rule read in part: “Importuning judge forbidden. Character evidence properly offered in criminal cases in open court is desirable. Private importuning, directly or indirectly, of any judge with reference to his or her decision or action in any case tried or to be tried by such judge is strictly forbidden.” The report ended with a paragraph commending Judge Louis Petrash for his efforts to co- ordinate all branches of law enforcement in the criminal branch of the court to the end that records of each offender be brought to the attention of the court.42 The Cleveland Bar Association reported the results of their concurrent investigation into local courts. Their executive committee ratified the report with unanimous approval of the seven point program for reform of abuses. The report suggested: ∗ That the rule requiring written motions for further continuances other than the first one be mandatory and should not be waived at the discretion of the judge. ∗ That clerks be rotated between civil and criminal branches. ∗ That an assignment room be established for the handling and disposal of cases. ∗ That judges work a full day and that the old plan of running cases through in the morning be abolished. ∗ That better facilities for the operation of the prosecutor’s office and the probation department be obtained. ∗ That additional judges be assigned to the criminal branches whenever necessary. ∗ That decorum and a better judicial atmosphere be maintained in the courtroom.43

178 The Plain Dealer observed and editorialized: “The Cuyahoga and Cleveland Bar Association Committees, independently studying Municipal Court, arrive at virtually the same conclusions although the texts and forms of their reports vary as to detail. The outstanding fault of Municipal Court is to be found not in the ability and integrity of the judges and other court personnel, but in the turmoil and in the haphazard methods by which the courts are conducted. When not on the bench it is customary for judges to receive a never-ending procession of people in the “back room.” Most of the visitors are merely political hangers-on interested in nothing more important than ward clambakes. However, the stranger who faces a fine which he cannot afford to pay or the prospect of a few days or months in the workhouse must inevitably misunderstand the back-room gatherings and suffer the thought that those with influence get special consideration. A vast majority of criminal cases in Police Court are by common standards insignificant. However, no criminal charge is unimportant to the person on trial. It is common practice for police officers, reporters, prosecutors and other persons to hold whispered consultations with judges during the progress of a trial. Spectators wander in and out of court rooms at all times. In this bedlam it is impossible to follow the proceedings at hand without crowding round the bench. The judges themselves can eliminate these evils. By conducting trials in a dignified manner and by maintaining order at all times in the court room each defendant will receive the fair hearing to which he is entitled. The Cleveland Bar Association recommendation that the judges work a full day would, if adopted, do away with the desire for speed, which in itself is responsible for part of the turmoil and confusion. Municipal court judges are paid handsome salaries. In some ways their duties are of much greater importance than those of the judges on the higher courts. Police court deals largely with persons without the influence or means to obtain adequate assistance. A large portion of the defendants are more in need of guidance than of punishment. The municipal judges are charged with grave responsibility. They will discharge their duties only by conducting trial with dignity and in true judicial manner.”44 The reports caused a meeting between municipal judges and the bar associations to discuss the reports that were so critical of the municipal court. The results of that meeting were that the court agreed to complete an audit of the continued docket to classify these cases, to seek the aid of Mayor Frank J. Lausche and Safety Director Frank D. Celebrezze to obtain better facilities for municipal court, and to attempt to improve the decorum in the courtrooms. In addition, it was agreed that all future requests for continuances would be made in writing, and cases on the continued docket would be classified, sorted as to untried cases, tried and passed for sentence, and sentenced with time to pay or motion to mitigate. Further, when representing clients, all attorneys would be required to register with the court, providing contact information for mailings and phone calls.45 A committee of 5 municipal court judges developed additional recommendations which they termed a 9 point program to improve municipal court. The committee urged these actions: ∗ That local rule 3 be amended to make it mandatory that a written motion be submitted in order to gain a second continuance on a criminal case. ∗ Strict enforcement of the amended rule.

179 ∗ That a short form on which defendants could make requests for continuances be provided by the court. ∗ That rule 3 be further amended to indicate clearly that any continuance after the first must be requested in writing whether the first was requested by the state or defendant. ∗ That attorneys must give their name, office address and telephone number when they first appear on behalf of defendants. ∗ That cases be re-assigned so that all traffic cases would be handled by one judge. ∗ That the continued docket be classified into untried cases, cases tried and passed for sentence, and cases in which sentence has been passed and the defendant given a continuance for time to pay or on a motion in mitigation. ∗ That a daily record be kept of the continued cases according to the 3 classifications. ∗ That a monthly report be made on the condition of the continued report. The members of the committee, Judges Artl, Silbert, Petrash, Grossman and Frey pledged to reduce continuances to the minimum, permitting them only in cases where a refusal would result in an injustice to either that state or the defendant.46 At this time, the Cuyahoga County Bar Association also accused the municipal court judges of generally granting motions in mitigation without authority and in a manner contrary to the provisions of the Ohio General Code. In a report on motions in mitigation, the committee recommended the court follow the statute law of the state with regard to imposition of sentences, and that in the event the court holds it has power to mitigate sentences, the court adopt a rule providing that no sentence, once imposed, shall be modified until written notice of the action has been given to the police prosecutor in the case. The committee further suggested that the Chief Justice immediately reassign to other work of the court any judge refusing to comply with the rule and, if he persists in such conflict, then bring the situation to the attention of the state legislature for appropriate actions. “While the evil growing out of the method of administering those provisions of the General Code dealing with mitigating of sentences is not currently acute,” his report read, “this committee has received definite and justified complaints as to this phase of the administration of justice.” Their accusations were further explained, “The defendant has been found guilty of a flagrant or vicious violation of a criminal statute or ordinance. In the presence of the prosecuting witnesses, the assistant director of law, arresting police officers and newspaper reporters, the judge imposes a severe sentence, apparently completing the case. Thereupon, those involved in the prosecution and the newspaper reporters leave the court with the definite impression that the defendant has been dealt with sternly. Thereafter, before execution of sentence, the judge who imposed the sentence, without notice to the prosecutor, or anyone else involved in the prosecution of the case, makes an entry in mitigation and remits all or a substantial part of the imprisonment or the fine previously imposed.” This practice pleases both sides unless the deception comes to light. They further cite section 13451-2 of the General Code, which grants the court the power to remit or suspend the sentence, but only at the time the sentence is imposed. It read: “Any court sentencing a person for a misdemeanor forbidden by statute or ordinance, may at the time of sentence remit the same or suspend such sentence, in whole or in part, upon such terms as he may impose.” The Attorney General of Ohio in 1935 held that the court had only the power to remit or suspend the sentence at the time of imposition and that the court ceased to have that power after the sentence was imposed.

180 Chief Justice Burt W. Griffin withheld comment until he had the proper time to study the report thoroughly.47 The dawn of 1943 found municipal court was doing everything they could to help the war effort. In a step to help enforce gas rationing, arrangements were made between the court and the OPA (Office of Price Administration) to come down hard on speeders. Those convicted of driving over 35 mph would face the loss of their ration books. The responsibility for reporting fell to Clerk of Court Peter J. Henry to furnish the OPA enforcers with a list certified by the presiding judge, with the name and address of the violator, the speed they were traveling, type of ration book and the plea entered. OPA would forward pertinent data to the proper ration board for further action. (Ration books were given with the provision the driver not exceed 35 mph to conserve gasoline and tires.) In recent weeks as a test, the court had been temporarily confiscating the ration books of those convicted of Reckless Driving in addition to Speeding. The cooperation between OPA and the court was to test the success of the program, which would then be spread to other jurisdictions.48 Wallace J. Baker, Chairman of the Cleveland Bar Association’s committee on municipal court said continuances in the criminal branch of municipal court decreased by almost 50% since July/August of 1942. In a report to the Executive Committee, Baker attributed the decrease to the attention the newspapers and the public has focused on the problem. The report shows that judges are enforcing the rules regarding continuance requests in writing, and reminds the court that the bar association continues to monitor its performance.49 Judge Oscar C. Bell passed away from a fatal heart ailment at the age of 63. His death, coming just 1 day prior to the election filing deadline, left challengers scrambling for signatures.50 Several candidates hustled to file election petitions in the Bell slot. The petition submitted by State Representative Michael O’Brien was refused by the Board of Elections because it was over 2,000 signatures shy of the 3,000 that were mandatory. In addition, the board declared the petitions of David C. Meck Jr., former Assistant Law Director, and James T. Cassidy, former Assistant County Prosecutor, insufficient. Under law, this ruling allowed each of them an additional 5 days to obtain sufficient signatures.51 Cassidy demanded that the Board of Elections void the candidacies of David C. Meck Jr. and Elmer Judge Bradley Hull came under fire J. Patton. In a letter to the board, Cassidy charged from The Plain Dealer for dismissing charges against 2 defendants that Patton, whose petitions listed his address as at accused of selling liquor at a Euclid the Hotel Allerton, and Meck, whose petitions listed Avenue club without a state license. his residence as the Hotel Hollenden, actually lived His reasoning was that the in suburbs and thus did not comply with charter defendants had already been tried requirements for candidacy.52 earlier in the week on city liquor When election day dawned on November 2nd, ordinance charges, thus producing there were 4 candidates who vied for the Bell slot, a condition of double jeopardy. The Cassidy, Patton, Meck and Edwin J. Bradley. The newspaper saw the matter eventual winner was David C. Meck Jr. Cassidy, his differently, and inferred that the demands unmet, finished third.53 judge had been too lenient.54 An editorial in The Plain Dealer

181 characterized the election defeat of Clerk Peter J. Henry the “most urgent task to be undertaken by the voters of Cleveland.” Endorsing William J. Reichle, the paper went to great lengths to portray Henry’s treatment of the clerk’s office as “a personal fief” in his years in office. Clearing the political hacks out of the clerk’s office was a key step in restoring just and efficient law enforcement in the city. The paper had a low opinion of Henry’s tenure as the court clerk. They accused him, or his employees, of tipping off the people who are the object of warrants, releasing prisoners early, strategically missing files, cases transferred to friendly judges, all serious accusations. In addition, there were election fund collections from employees and the nepotism which was prevalent in the hiring in the office. The Plain Dealer hoped that Reichle would put an end to those practices, and he was fully prepared to do just that. Unfortunately, he finished about 6,000 votes short.55 Edward J. Crawley, Chief Probation Officer of municipal court was among a number of Clevelanders named to represent the Welfare Federation and lecture at the Yale University School of Alcoholic Studies. The locals (7) attending the school during the summer of 1944, members of clergy and social services, were on fellowships awarded here due to Cleveland’s pioneering work in the prevention and cure of alcoholism. Fellowships provided transportation, board, room and tuition for the month-long session. Judge Lewis Drucker, one of the local leaders in the fight against alcoholism, had just returned from New York where he participated in a previous seminar conducted by the Research Council on the Problems of Alcohol.56 In addition to his duties at municipal court, Drucker was the Chairman of the Welfare Federations’ Committee on Alcoholism. He revealed that of the 600+ cases that came before the municipal court probation department in May, 85% involved intoxication. What was more portentous was the fact that nearly 18% of the alcohol related cases were veterans of the ongoing war.57 Through Judge Drucker, the Welfare Federation announced their plans to establish an alcoholic clinic to intervene after intoxication arrests were made. The plan was to have doctors available for examinations and make referrals to hospitals if necessary. As proposed, the examination center would be staffed by a medical director, doctors and nurses working at least part time. Safety Director Frank D. Celebrezze, City Welfare Director Edward L. Worthington, Chief Justice Burt W. Griffin and Edward J. Crawley, Chief Probations Officer of municipal court all had expressed their support for the proposal. Drucker said the federation would now look to the Cleveland Hospital Council for their input because hospitals would be called upon for the use of facilities at some locations, as well as some personnel.58 A committee of the Cuyahoga County Joint Veterans Commission made the suggestion to Chief Justice Burt W. Griffin that the court appoint a person, preferably a veteran of World War I, to examine the cases of former service men brought before the court. The commission recommended that a special attaché of the probation department be selected to follow the proceedings brought against any veteran by Cleveland police. Following this meeting, on November 21st, Judge Griffin directed that Thomas P. Dwyer, probation officer, be assigned the handling of war veteran cases. Dwyer’s new position would be to examine the case of every veteran to learn if the veteran’s antisocial behavior was the result of war related mental or physical disability that might be best addressed outside a penal institution.59

182 Ralph Vince was appointed to municipal court by Governor John W. Bricker, succeeding Common Pleas Judge-elect Julius M. Kovachy. Vince, a Republican, was a football star at Washington and Jefferson College, and a graduate of the law school at Western Reserve University in 1925. He had been a football coach at John Carroll University, Baldwin-Wallace College, and St. Ignatius High School.60 In January of 1945, the Citizens League called for court unification within Cuyahoga County. The league maintained that a combined court system would reduce costs and increase efficiency. “All that judicial unification would seek to do would be to establish an efficient, expeditious and economical judicial system in the county to take the place of the present inefficient and wasteful system under so many separate judicial authorities which results in unnecessary delays and added expense to litigants.” Common Pleas Court Chief Justice Homer G. Powell was the first to join the cause, saying that there should be only one court of original jurisdiction in the county. “We’d need so many constitutional changes and revised laws that it might be impossible.” Powell added, “The ideal system would be one court here with various divisions and branches- small claims, probate, criminal, domestic relations, juvenile – whatever we would need.” If the Citizens League plan is completely adopted, a number of suburban courts and all Justice of the Peace courts would be abolished. The suggestions for their replacement include an advisory panel of judges, a rotating circuit for judges, enabling them to hold court in suburban locations, and judges elected to staggered terms who have run on their records.61 (The surrender of Germany was celebrated on VE Day on May 8, 1945) Judge Bradley Hull, a member of the court for nearly 21 years, passed away at the age of 65. Hull was working in his chambers when stricken by a cerebral hemorrhage. He was rushed by police ambulance to the hospital, where he passed away without regaining consciousness.62 Despite a large field of potential candidates, Governor Frank J. Lausche was considering a request to the legislature to eliminate the judgeship vacated by the death of Hull. The executive committee of the Cleveland Bar Association had already unanimously approved the elimination of the seat.63 With or without the governor’s prodding, a bill to reduce the number of judges of the court from 14 to 13 was introduced to the state Senate by William M. Boyd (D-Cleveland). It appeared the bill would fast track its’ own way through the legislature. Boyd, appearing before the Senate Judiciary Committee told them that 10 judges would be sufficient to handle any business faced by the court. In his opinion, judges worked 2-3 hours a day and spent afternoons playing golf. Mimicking a statement once made by the

183 governor, “It is a well-known fact that the Police Court in Cleveland is the greatest loafing center in Ohio,” he said. The committee on June 6th voted 6-0 on the bill, passing the bill to the full Senate. The Senate must have been convinced, for the vote taken on June 12th was 30-0. In opposition to the bill, Edwin F. Woodle, President of the Cuyahoga County Bar Association spoke against the bill. He correctly cited a wartime shortage of sources of litigation, and predicted a brisk business when war controls were lifted, particularly in eviction cases. His statements may have been pivotal, for when the bill was passed to the House, support for it appeared to be waning. Governor Lausche, in a letter on June 25th to Rep. Gordon Renner (R-Cincinnati) who was Chairman of the House Reference Committee, urged the bill be assigned to a committee. Lausche cited his own experience as a municipal judge in Cleveland. That familiarity persuaded him that the amount of work could be adequately handled by ten judges. He felt that judges were able to finish their assignments by noon each day, and there was now less work than during his tenure. Feeling there was no justification for filling the vacancy, Lausche said, “If the present incumbents are kept reasonably occupied, I am certain that their work will improve and that the citizen’s respect for the court will increase.”64 In the end, the Ohio House failed to act on the bill and the seat was not eliminated.65 Beginning on September 1st, municipal court would begin hearing some criminal cases in civil court. The criminal cases that stemmed from family, sex, mental or neighborhood problems would be shifted from police court to the civil branch. This plan was developed together by the court judges and the bar association. Harry B. Howells, Chairman of the bar Municipal Court Committee, said the new procedure was thought to be the first of its kind in the nation. The hope was that these steps would relieve some of the crowding of the criminal branch and allow fuller and more dignified treatment of offenders who are less criminal than they are disturbed. Chief Justice Burt W. Griffin estimated that between 500 and 600 cases could be affected each year under this new plan. Each case will be evaluated on its’ individual merits. These cases will primarily be those involving assaults on wives, neglect of children or wives, neighborhood fights and first offenses. If the person charged pleads not guilty or asks for a continuance, and if the judge believes the case merits further treatment, the case would be transferred.66 (The surrender of Japan was celebrated on VJ Day on August 15, 1945) With the war finally over and society making the adjustment to peacetime activities, plans were being finalized for a $1,000,000 expansion of municipal court. The committee for the new construction, chaired by Judge Joseph Artl, had approved the plans after a 2 year study. The building would have been adjacent to Central Police Station on East 19th, with a connection to Central for the purpose of prisoner transport. All functions of the criminal branch of the court would have been housed within the new building on the first floor, with office space for the psychiatric clinic, probation, prosecutors and jury commission on the second floor. The basement would provide parking and prisoner processing. The former quarters within Central would have been turned over to the police to alleviate their overcrowding. The plan for this building had the support of the judges, the Safety Director, the Chief Police Prosecutor, the President of Council, the Clerk of Courts, Chief Probation Officer, Chief of Police and both bar associations. It was agreed that once final working drawings and

184 specifications were prepared by the architects, City Council would act on the required financial legislation.67 This was the first post-war attempt at procuring a new court building, making it the first post-war effort to be defeated. Cleveland was like much of the country, experiencing a housing shortage/boom following the war. The housing problems were exacerbated by a rise in evictions as landlords sought to capitalize on the abundance of tenants. In response to the problem of the growing number of post war, rental housing evictions, many courts established limits on these cases. By mid-1946, the state was looking to step in and unify these actions with state regulations. Governor Lausche recommended to a special session of the legislature that they take action against the mounting housing crisis. The governor endorsed the enactment of a state rent control law which would cap rent increases at 10% over rents paid prior to January 1943. The law would include provisions to establish fair rentals on new or converted properties, to be determined by fair rental committees appointed by the courts. This measure would apply only to housing, and not include commercial property, and remain in effect during the absence of federal rent control legislation. The governor’s bill would authorize each common pleas or municipal court to appoint a fair rent committee that would have the power to fix rents. This bill, as well as 2 others proposed by state legislators, all awaited action being debated by Congress and President Truman on a revised OPA (Office of Price Administration) bill which would extend federal regulations. Federal action would render the Ohio measures moot.68 Congress did act by renewing the OPA (Office of Price Administration) legislation, resetting the rent ceilings back to June 30th limits and re-establishing all eviction controls. The congressional action forced a review of all eviction cases, with the high probability that most will not meet the new regulations and will be dismissed.69 Once again the subject of reducing the size of In August 1946, Judge municipal court was revived by the Cleveland Bar Perry A. Frey passed away from a Association. Their Executive Committee heart attack. Governor Lausche nominated Anthony A. Rutkowski recommended that municipal court be reduced from to fill the vacancy. Rutkowski 14 judges to not more than 12. They cited the had been Chief Police Prosecutor decreasing case numbers from 64,383 in 1930 to since 1941.70 18,009 in 1945. This would be the second reduction in five years, dropping from 16 to 14 in 1941. The report said that 14 judges handled 36,791 litigations in 1941, which was 48% more than last year. According to the bar, the decline in the average number of cases actually tried per judge per year from 1930 to 1945 was 67% despite the reduction in the size of the court. “In other words, on an average, the judges in municipal court are doing only 1/3 as much work as they did in 1930, because there is not enough business to keep them all busy. It is submitted that the Municipal Court of Cleveland can easily function efficiently if its number were reduced from 14 to not more than 12.”71 The election of November 1946 brought several changes to the court. Chief Justice Burt W. Griffin was triumphant in his quest for a seat on the Common Pleas bench, besting future municipal court judge Edward F. Feighan, with a margin of just 3,257 votes. Judge Joseph A. Artl was equally successful for Common Pleas Court, and Judge William J. McDermott won his race for Juvenile Court. Governor Lausche announced that he intended to fill all three appointments before he left office in January.

185 When the appointments were revealed, the governor selected Judge John J. Busher as the successor to Chief Justice Griffin. Frank D. Celebrezze, Cleveland Safety Director, was chosen to replace Judge Busher. In place of Judge Artl, Brookes Friebolin was appointed to the municipal bench. The 36 year old son of a Federal Referee, Friebolin had been an Assistant Law Director in Cleveland, as well as a Special Agent in the Army Counterintelligence Corps during the war.72 Closing the year 1946, the Cuyahoga County Bar Association resolved to take a position in direct opposition to that of the Cleveland Bar Association on the matter of the reduction of municipal court. The Cuyahoga bar group officially requested that the legislature refrain from reducing the size of the court.73 On the second day of 1947, Brookes Friebolin took the oath of office as a new Judge of municipal court, fulfilling his appointment made just 2 weeks previously. At the ceremony, Chief Justice of Common Pleas Court Samuel F. Kramer predicted Friebolin’s career “will be equal to that of any judge who has ever served in the Municipal Court of Cleveland.” The new Judge spoke saying he was grateful for “the more than complimentary things which have been said about me. I appreciate greatly the honor of the appointment and look forward to justifying the confidence expressed in me by Governor Lausche.”74 On the eighth day of 1947, Judge Brookes Friebolin died of carbon monoxide poisoning in his garage. His death was ruled an accident by Coroner Samuel Gerber. He was 16 days short of his 37th birthday. Mayor Thomas A. Burke said, “He was headed for a brilliant career for he was a notably endowed young man.”75 With time running out on his administration, Lausche still had 2 judicial appointments to be completed, for the vacated positions of Friebolin and McDermott. When the governor announced his choice for McDermott’s seat, newspapers called it one of the biggest surprises in his unpredictable career. Lausche appointed David E. Clarke, a 32 year old Assistant Police Prosecutor, the son of a professor at Hiram College and son-in-law of Lausche’s former law associate, Jesse W. Woods.76 The last nomination for municipal court was Joseph P. Sullivan, a 30 year old former Assistant City Law Director, who had been executive assistant to Mayor Thomas A. Burke.77 In a statement that surprised all of political Cleveland, Peter J. Henry, who had been clerk since the court was established in 1912, announced that he would not seek re-election as clerk of court. He was the target of continued criticism from the newspapers and civic groups. Henry had faced little opposition in elections over the years.78 Representative John A. Corlett (R-Cleveland) introduced yet another bill to reduce the size of municipal court. His bill would shrink the court from 14 to 12, providing no replacements for the next two vacancies occurring by death, resignation or removal. There was little or no provision for reduction due to end of term. By June, both the House and Senate would pass this measure unanimously.79 The Cleveland and Cuyahoga County Bar Associations remained split on the subject of the elimination of 2 seats in municipal court. Cleveland bar favored the reduction, while Cuyahoga County favored remaining at 14. That stalemate was a carryover from 1945 and 1946, when the question was raised, without success. The next volley in the battle of the bar associations came from the Cleveland group, who announced the result of a vote of their membership. The Cleveland Bar voted 862-458 in favor of the municipal court reduction. That vote was taken at the request of both judiciary committees of the state general assembly, who

186 indicated their action on the measure would depend upon the outcome of the vote. There were no statistics given regarding the vote, and it’s unknown how many voters may be members of both groups. Edwin F. Woodle, President of the Cuyahoga group opposed to the reduction, said the results of the vote would not change his group’s position.80 Each time in previous years when this matter was offered for a vote, it was turned down each time. This time however, the House approved the measure and passed the bill to the Senate. The Senate agreed and passed the bill that was unanimously approved by the house. The bill effects the next 2 vacancies that occur in the court by way of resignation, death or removal. Those seats would be abolished.81 Despite legislative efforts to ease the post-war housing crisis, the number of eviction cases increased nearly 40% over the last 2 months. Court officials were predicting an even sharper increase when landlords became more familiar with the legal aspects of the new rent control law. President Truman signed the rent legislation, and 2 days later, eviction filings were up 20%. With landlords and tenants uncertain of their rights, area Rent Director Karl M. Duldner was keeping his staff on overtime. “I am keeping the personnel of this office overtime to acquaint them with all the regulations and changes in the new rent law.” The area rent office was fielding over 1,500 calls a day from the inquisitive and the furious. Landlords were raising their rents 40-60%, and threatening to test the constitutionality of the new law. One landlord was quoted, “I’m sick of having other people run my property. There is no housing emergency; that was a wartime thing. Congress is playing two ends against the middle.” 82 Because of the increased filings, Chief Justice Busher committed more resources to the problem. He assigned 2 additional judges to assist Judge Andrew M. Kovachy in hearing the eviction cases. As dockets increased to over 75 evictions daily, Judges Joseph H. Silbert and Joseph P. Sullivan were to begin hearing their share of evictions on July 1.83 While many local politicians were hoping for legislative aid from the state capital, a mayoral subcommittee and the council housing committee were both considering intervention. The possibility of a city rent control ordinance was suggested in committee discussions held to consider all the possible means to hold off the epidemic of evictions being filed in municipal court. Eviction fever was spreading to other Ohio cities. Youngstown, Cincinnati, Dayton and Columbus were all dealing with eviction numbers that were spiraling out of control.84 Near the close of 1947, the Cleveland chapter of the National Lawyers Guild held a luncheon at the Hotel Hollenden, which featured Judge Mary B. Grossman, as a speaker. In her address, the judge said the administration of justice in municipal court could be improved greatly if “there were fewer defendants.” She considered the large number of defendants, especially traffic violators, as a reflection on the citizens of the community. “Traffic law violation is still a crime, but the violators show a total disregard of the rights of others. While only 10% of the population comes to court as defendants, it reflects on all the people.” At the same luncheon, Judge Lewis Drucker said he was not sure if there were too many violators as there were “too many laws and too many overzealous policemen.” He said there would be fewer evictions if there were not “too few houses and apartments, and too few landlords who will accept children.” Judge John J. Busher said that in the last 3-4 years, work in the criminal branch of the court had grown to the point where there were more than 50,000 traffic cases, 20,000 intoxication cases and 10-15,000 felony cases handled in 3 courtrooms each year. He stressed

187 the need for a new municipal court building with full facilities for carrying on the work of the court.85 The U.S. Supreme Court in January 1948 ruled 7-2 that evidence grabbed by police in an illegal way is not allowed to be used against a defendant. Attorneys who frequented Police Court saw this as a chance to kill the Ohio search and seizure law that had been based on the Lindway case, which involved the 1936 decision in the case of Michael J. Lindway, handyman in the National Screw & Mfg. Co. plant, in whose basement workshop a police inspector found dynamite during an Industrial Workers of the World (Wobblies) strike. The Ohio high court upheld seizure and search without a search warrant, and this verdict stood firmly against attacks by lawyers representing policy operators, bootleggers and gamblers who were raided and convicted on evidence seized in raids. A defendant named Luis Lorenzo who was found guilty and sentenced to the workhouse by Chief Justice John J. Busher attempted to challenge the Lindway decision, but his case was not accepted by the Supreme Court. He was fined and sentenced by the late Judge Bradley Hull on policy evidence seized in his home by police in a warrantless search. Judge Hull was said to be one of several judges here who would overrule lawyers motions to have evidence suppressed, saying “This Lindway verdict is, in my opinion, unconstitutional, but it is the law in Ohio.” Police Prosecutor Joseph Stearns said someone must take the challenge to the U.S. Supreme Court before the state courts could defy the Lindway case, saying: “But it will have to be the right defendant and the right attorney, and not Luis Lorenzo. Even then, police will not be much hampered, but they will have to get warrants to search homes. A great many of the attorneys have always felt that the Lindway verdict was against our constitutional guarantee against unlawful search and seizure. Nevertheless, lower courts must abide by it for the present. And the Ohio Supreme Court as now constituted has not the disposition to change its point of view. It will have to go to the higher court if it is to be shown to be unconstitutional.”86 A Chicago survey firm, Griffenhagen & Associates, had been hired to analyze the performance in all facets of Cleveland government. They published the portion of their report which dealt with municipal court, and their findings charged that the “prestige and dignity of the court had suffered in recent years”, that business management was weak and the internal structure was “not conducive to efficient and effective administration.” They opined that there was “overstaffing in the bailiff‘s department and the civil branch of the clerk’s office” which was partially offset by understaffing in the criminal branch of the clerk’s office and the psychiatric department. Their report contained 33 recommendations. Some were almost instantly rejected, such as uniforms for Bailiffs, voice recorders used by the probation department and the re-establishment of Night Court. One proposal which the judges voted to accept was the recommendation to wear robes when on the bench. There were an additional 28 recommendations which the court chose to refer to a judicial committee for further study. Chief Justice John J. Busher appointed Judges Grossman, Jackson,

Judges Cassidy and Drucker in the new attire

188 Silbert, Vanik and himself to a committee to study the report.87 Because the suggestion to wear robes on the bench was approved, arrangements were made and a robe investiture ceremony was held on June 24, 1948. Since that time robes have been worn. An editorial in the PD complimented the judges of the court for taking the time to study the Griffenhagen report. Commenting on the robes decision, the paper said: “Black robes can’t of course make a Brandeis or a Holmes of the possessor of a second rate judicial mind, but they will lend a little dignity to a court almost wholly lacking in that quality.”88 When the judges of municipal court officially donned their new robes at an investiture ceremony at City Hall, the ritual was delayed due to a zipper sticking on one robe. The victim of the zipper misfeasance was Judge Lillian M. Westropp, whose robe was rescued by 2 mechanically minded bailiffs who were quick with repairs. Carl V. Weygandt, Chief Justice of the Ohio Supreme Court presided at the ceremony. He commended the judges on their adoption of the practice of wearing judicial robes. He told the group, “It has been said that a robe cannot remake an inferior judge. I never heard anyone suggest that it can. On the other hand, I never have heard it intimated that a robe does not add needed dignity to a judicial tribunal; or that it does not impress litigants, witnesses, lawyers, jurors and the public; or – of even greater importance – that it does not serve as a constant admonition to the conscience Grossman observes Westropp's zipper repair of the judge himself in the discharge of his solemn duty.” L.C. Speith, President of the Cleveland Bar Association, gave a short talk in which he described the judicial robe as a symbol of love of country, justice and the democratic process. John H. Price, vice-president of the Cuyahoga County Bar Association, offered that organization’s congratulations. Congratulatory orations were offered by Mayor Thomas A. Burke and Appellate Judge Joy Seth Hurd. Chief Justice John J. Busher of municipal court asserted that the city judges would “try to live up to every tradition that goes with the wearing of robes.”89 Mayor Thomas A. Burke directed the Law Department to obtain appraisals on property on the north side of Payne Avenue west of East 19th Street. The mayor decided to investigate the cost of these properties as a possible location for a new municipal court building.90 The interest and activity of the court’s Building Committee resulted in the formulation and drafting of plans which must first gain the approval of the City Planning Commission. The aim was Thomas A. Burke

189 to erect a new Municipal Criminal Courts Building, adjacent to the Central Police Station. Here all municipal court activities would be transferred. The plan included suitable quarters for the Psychiatric Clinic, which presently was sharing quarters in the County Criminal Courts Building adjacent to Central Police Station on East 21st. Inquiry is also being made as to the feasibility and advisability of acquiring land with provision being made for automobile parking space. The scope of this project would address a number of factors critical to the Griffenhagen group in their assessment of the effectiveness and efficiency of the court. These improvements would address the desired increase in the dignity and decorum of the court as referred to in their report. The same three courtrooms at Central Police Station are used for the hearing of criminal cases that were used 25 years ago. The inadequacy of space is obvious when present day traffic is compared with the traffic that passed through at the time of their early use. The new plan would correct or eliminate the inadequate space of the three courtrooms Judges’ private chambers. The Probation Department would be housed in a single location as opposed to dividing space between Central Police Station and in the rented quarters in the Film Building. Additionally, the Clerk’s Office would be united at one location. “The handicap under which the court is laboring in its present quarters creates considerable congestion and confusion in the court and lessens its efficient operation.” 91 In his first year as municipal court Clerk, William J. Reichle inaugurated a number of changes in the business practice of his office. Almost immediately after the state examiners conducted an audit he initiated 24 hour service in the clerk’s Criminal Branch, thus permitting the filing of bail bonds any hour of the day or night. Additionally, Reichle required 36 credit companies to post deposits for court costs in cases filed by them. The previous method of business was to bill the companies monthly for costs and fines, which often led to missed payments and credit problems.92 Cleveland voters elected municipal Judge Joseph H. Silbert to Common Pleas Court. Because of legislation passed in the last general assembly, the next 2 vacancies in municipal court would not be filled. Silbert’s seat was the first to be abolished.93 In the issue for the proposed new municipal court building FOR 109,091 otes AGAINST 75,643 a 65 majority was required for passage.94 In February of 1949, the Court of Appeals put an end to a lawsuit which had shunted around in municipal court since 1943. Less than 24 hours after hearing the case, the appellate court finally dispensed with a landlordtenant squabble which had consumed 8 hearings in municipal court although only 200 was involved. The principal delay was caused by 3 of the judges who heard the case at separate times. While they all found for the defendant, they then granted new trials to the plaintiff. The plaintiff was Herbert S. Johns, executor of the estate of his wife Gertrude W., a lessor who sued Elmer Erlenmeyer, lessee of a store 4506 Clark Avenue. The case involved a 2 year lease at 30 a month that expired March 31, 1941. Erlenmeyer did not renew and vacated the premises in May of that year, not knowing that by remaining he had entered into an agreement for another year. Erlenmeyer was sued in municipal court for 340, and Judge Lewis Drucker found against him for 40. This was for 1 a day rent to Mrs. Johns until her death, and Erlenmeyer paid. Johns was not satisfied with the ruling, and brought a secondary suit. Judge Louis Petrash again found for Erlenmeyer on October 25, 1945. Johns’ attorney, R. H. Dawson, asked for and

190 was granted a new trial. The defendant’s attorney, Rexford C. Hyde, excepted when the court granted a new trial January 9, 1946. Judge Mary B. Grossman got the case March 21, 1946, and like Judge Petrash, ruled for the defendant. The plaintiff again asked for a new trial the following day, and Judge Grossman granted the motion April 10. Attorney Hyde again objected. Judge John E. Sweeney was given the case November 7, 1946, taking it under advisement that day. He ruled for the defendant December 2. Again a retrial motion was made December 4. Judge Sweeney transferred to police court and when he heard the motion, he granted another trial September 11, 1947. The parties found their way to court again March 24, 1948, this time before Judge Edward F. Feighan. He like his predecessors found for the defendant and Hyde pleaded that the judge not grant another trial, if asked. When the plaintiff asked for a new trial the following day, Judge Feighan denied the motion, and the plaintiff filed a notice of appeal April 12th on questions of law. The plaintiff contended to the appellate court that the trial court’s ruling was not sustained by the evidence, that the ruling was contrary to law and that the court erred in overruling a motion for a new trial. Appellate Judges Joy Seth Hurd, Daniel E. Morgan and Lee E. Skeel found unanimously for the defendant.95 Senator Edwin F. Sawicki and Representatives George E. Fedor and Stephen A. Zona would introduce legislation designed to consolidate the justice system in the county. Their bill would abolish all Justice of the Peace, Mayors, Municipal and Common Pleas Courts. Juvenile, Probate, Appeals, and one seat in Common Pleas Court as prescribed by the Ohio Constitution would remain. The proposed bill would replace those abolished courts with a new “Metropolitan Court” consisting of 30 judges. This new court would have county wide jurisdiction, with civil jury, civil non-jury, criminal, misdemeanor, domestic relations, and small claims divisions. Small claims would include a conciliation branch. Criminal Court would operate as now constituted, with misdemeanor cases now heard by mayors and justice courts. Small claims would have all civil cases heard by municipal and justice courts. With the demise of municipal courts would go the clerk of those courts and the police prosecutors as well. These functions would join the county clerk and prosecutor respectively. Judges of the new court would be elected county wide. The home for this court would be the Lakeside Courthouse. The bill as crafted now was similar to one introduced in 1941 by Rep. Harry Dworkin.96 Municipal court juries in the first 3 months of 1949 consumed nearly ½ of the funds appropriated for jury trials for the year. Chief Justice Busher said he would probably have to curtail jury activity, and if necessary, ask the administration for additional funding should the trend continue. Busher revealed that jury cases are usually scheduled on Monday, Tuesday and Wednesday. Recently, several cases had been running longer, into Thursday and Friday, increasing the costs for the additional days. Coupled with an increase of 763 cases over the same time period in 1948 have raised jury costs 46% over the first quarter of 1948. The largest percentage of cost increases were occurring in replevin cases, which had doubled over the first quarter of last year. Contract cases involving sums greater than $100 saw a 33% increase. Of all civil cases, the only type of case which saw a drop in filing was in second class tort cases, with less than $100 damage, which fell from 63 cases to 28.97

191 Chief Probation Officer Edward J. Crawley attributed an increase in departmental efficiency to the addition of 4 students to the staff who were studying social work. The students would become full-time probation officers on December 1. Their addition to the work force allowed probation officers to make more in-home visits, triple the number from 1948, to their clients who required more intense monitoring. Crawley cited additional improvements that have been made this year, including more staff members dedicated to pre-sentence investigations and more space leased in the Film Building, across the street from Central Police Station for expanded offices. Crawley reported the department was presently supervising 7,875 probationers.98 In June, the state legislature, as expected, worked in earnest on the long overdue Uniform Municipal Court Code. Debate was set to shift from committee to the full Senate as it was said that the Senate was prepared to follow the recommendations forwarded by their Judiciary Committee.99 This legislation’s origins date as far back as 1922. Judges of the state’s fledgling municipal courts, some in existence less than a decade, were planning to form an organization of municipal judges. Their stated purpose was to develop their suggestions for inclusion to a uniform municipal court code.100 Many within the government were absolutely convinced of the need for such legislation. Governor A.V. Donahey, at his second inauguration in 1925, outlined his stance on numerous topics facing the state legislators. His perspective on those topics directly related to the judiciary was quite specific. He was firmly in opposition to the creation of any new judgeships: “Instead of creating more Common Pleas judgeships, let the judges with congested dockets call on the Chief Justice of the Supreme Court, who has a list of idle judges anxious to be assigned to the more populous counties . . . Being assigned to neighboring counties will widen the experience of judges.” Donahey was equally committed to the creation of a uniform municipal court code for the entire state: “In order to force uniformity in the many existing municipal court laws and to bring about a movement for the adoption of a uniform municipal court code for Ohio, I vetoed all bills relating to this subject. The judicial council of Ohio, created 2 years ago, has a committee working on corrective, unifying measures of this sort, and could, I am sure, give you valuable information on the subject.” 101 Unfortunately Alvin Victor Donahey was only governor till 1929, which meant that the Uniform Municipal Court Code lost its most demonstrative champion. Through successive administrations of Governors Myers Y. Cooper, George White, Martin L. Davey, John W. Bricker and finally Frank J. Lausche, encompassing both Republicans and Democrats, the debate arose sporadically but was never the receptor of vigorous support. Finally, in 1949 the Ohio House was ready to take up the cause. After much debate, the Ohio House of Representatives passed the Uniform Municipal Court Bill. The aim was to bring a consolidation of 39 municipal court authorizations into a uniform act, with local variations as required. The bill was drafted by the Ohio Bureau of Code Revision at the direction of the legislature. This legislation could eventually eliminate more than 1900 sections from Ohio law, replacing them with a mere 38. The bill would allow for the establishment of uniform rules of practice eliminating confusion from special acts. The bill would effect 39 existing and 7 new courts. The Uniform Municipal Court Bill altered the method of determining the number of judges to which each court was eligible. The number of seats on a court would now be determined by a formula based on 1 judge per 75,000 inhabitants. Every candidate for judicial office must be a qualified elector of the territory and a practicing lawyer for 5 years. Each

192 successful judicial candidate would be elected for a 6 year term. Courts having 5 or more judges would elect a Chief Justice and those having fewer than 5 a Presiding Judge. Clerks of Court would serve 6 year terms and be elected in areas with a population of more than 100,000, and appointed by the courts of smaller locales. The Chief Justice of the Ohio Supreme Court would be permitted to send a municipal judge into an area where a municipal judge had been incapacitated. The vote to pass this bill was 26-3.102 Although the bill did pass through the House, it was not without its detractors. Many were concerned that the bill did not include language that would insure a uniform level of competence among municipal judges. In the negotiations to consolidate the separate acts into a single statute, the framers of the final act yielded to the protests of the Cleveland suburban members. The final language of the bill kept the Cuyahoga County courts under the same arrangements as they had been when established. When the Uniform Municipal Court Bill finally passed, it was as an emergency bill. It contained a clause which enabled judges to run for election in November for positions on several new courts that would not be established until January. The measure had to be examined by the Senate for concurrence.103 Before the Senate could act, newspapers were revealing the bill’s support problems. It was claimed that Governor Lausche would exercise his veto on the Uniform Municipal Court Act. It is possible the veto could have been based on technical reasons, but the rumors swirling around Lausche and the bill concerned the measure becoming a bill of exceptions. Article 2 of the Ohio Constitution mandates that all laws of a general nature must have a uniform application. Because Cleveland was removed by its own request, and despite its protests Cincinnati was to be included to test a number of new concepts, a number of attorneys predicted that the bill would quickly be declared unconstitutional. Many were certain that should the Supreme Court declare this bill unconstitutional, their action would reverberate throughout the election season, turning order and confidence into chaos and confusion, for judge and clerk candidates alike.104 But after the Senate passed the House bill with little debate, as predicted Governor Lausche vetoed the Uniform Municipal Court Bill, not because of the effects it would have on the existing 39 municipal courts, but mainly for the creation of 11 new courts. Lausche was equally displeased with the bills’ treatment of Cuyahoga and Hamilton county courts, and with provisions attached to the bill that had no relation to the courts at all. There were insufficient votes in the Senate to overturn the veto, so the measure died. A compromise bill was offered at the last minute which removed all the clauses to which the governor objected. While the house passed the compromise 102-6, the senate vote failed by 3 votes and the measure died.105 (This measure eventually passed in some form and became effective January 1, 1952.)106 In an effort to convince the voters of the importance of all races, the Junior Chamber of Commerce was including in their voter information packets an information page concerning the often overlooked municipal court contests. The fact sheet pointed out that in the last 20 years, 14 of the 44 judges who were members of municipal court for more than a 6 week term, went on to a higher court or office.107 A 17 million dollar bond issue appeared on the fall ballot in Cleveland which was to fund a number of civic improvement projects across the city. Among those was $1 million to build a new municipal court building adjacent to Central Police Station at Payne and E. 19th.108 The issue passed at the polls on election night but would be overturned by a Supreme Court ruling in March, 1950.

193 The Mayor’s Traffic Safety Education Committee proposed to the judges of municipal court that all offenders convicted of drunken driving be given workhouse sentences. Police Captain Augustus F. Foley disagreed with their conclusions and suggested that the concept did not go far enough. “Intoxicated drivers are only a very minor cause of accidents,” Foley said. “The major cause is the drunken pedestrian. Why not send him to jail?” The figures Foley quoted showed that only 0.7% of the drivers involved in fatal traffic accidents in the first 8 months of 1949 were intoxicated. Only 1.2% of the 42,191 drivers arrested in that period were drunk. However, slightly more than 14% of the pedestrians killed in traffic this year were intoxicated.109 In December, Assistant City Law Director Robert J. Selzer charged Judge Lewis Drucker with sentencing and removing defendants illegally to and from the Warrensville Workhouse. He was to appear before the Municipal Court Committee of the Cleveland Bar Association. For the past year, Drucker had been giving sentences in intoxication cases which he felt were justified in their length, but members of the bar felt obliged to object. Drucker was confident his testimony would justify to the bar his sentencing of habitual offenders.110 During the interview, Drucker admitted to sentencing some 300 defendants to the workhouse without “due process of the formality of requiring an affidavit charging them as habitual offenders.” In order to bolster his case, he cited appellate decisions which stated that habitual offender is not a crime in itself but is provided as an additional punishment and others which he said gave authority to sentence persons as habitual offenders “on information.” Selzer argued these authorities also required that an affidavit be sworn specifically reciting 3 previous arrests and convictions on which the person has served in the workhouse. Selzer also charged that Drucker was illegally releasing prisoners by sending revised commitment papers showing the prisoner had completed his sentence. Selzer stated that once a person is committed to the workhouse, the judge had no more authority over him.111 The Municipal Court Committee of the Cleveland Bar Association furnished a report of their investigation to the Ohio Bar Association. In all, they examined the circumstances involved in almost 300 cases in which Judge Drucker was accused of illegally committing intoxicated persons to the workhouse. The Executive Committee of the Cleveland Bar Association, after considering the situation at 2 different meetings issued a report which contained the following points: • Judge Lewis Drucker, despite his feeling that his procedures were for the best interests of the persons involved, agreed to discontinue his practices and did so beginning December 12, 1949. • The problems forcibly brought to the attention of the public by Judge Drucker’s practices have not been solved. The social problems involved, the rehabilitation of alcoholics, and the legal aspects of the situation resulting in the confusion as to procedures between the judge and the police prosecutors still remain; in fact, they have been highlighted by the recent controversy over special intoxication charges brought to the public’s attention by Judge Edward Blythin. • The Cleveland Bar Association appreciates the complex nature of the problems involved and the apparent desire on the part of the public officials to find the best solution to them. • It is the opinion of the Executive Committee and the officers of the association that the entire situation should be thoroughly investigated and an attempt be made to solve the problems. The Cleveland Bar Association, therefore, announces its intention, acting

194 through its appropriate committees, to give further study to the problems presented and to suggest adequate means for their solution.

Through the cooperation of the city Law Department, the Common Pleas Court and the Court of Appeals, all illegally detained prisoners were released from the workhouse. In March 1950, in a unanimous vote, the Ohio Supreme Court struck down the results of voting last November for issues in several parts of the state. The court held that several bond issues required the old 65 margin for approval, ruling that the law reducing the vote requirement to 55 was not in effect when proceedings authorizing submission of bonds was instituted. The new law in effect at the time of the election made no difference in their ruling. The decision negated the passing of bond issues in Cleveland, Cincinnati and Barberton, as well as Cuyahoga and Hamilton Counties. In Cleveland, the most important reversed issues were for the municipal court building, shore protection and airport expansion.112 In this decade, the war’s effect on American society could be measured by comparing court filings. The chart below shows that civil filings dropped substantially from a prewar high in 1941 down to the middecade low in 1945. Criminal filings, Probation and Psychiatric referrals decreased in like fashion.

1941 1945 1949 Civil cases filed 33,687 16,844 26,600 Criminal cases disposed 218,636 142,873 279,214 Probation referrals 6,361 5,789 5,638 Psychiatric referrals 444 438 329

The end of hostilities brought with it a similar end to the downward trend in court activities. By decade’s end, civil filings were still down from 1941 but showing a steady growth. Criminal cases in 1949 increased to establish a new record level, with total revenue from civil and criminal branches reaching 880,269.75. Many predicted the rise in filings that took place after the war. During this time the state legislature reduced by 2 the number of judges in the court, due in part to decreased filings. Those same prognosticators thought this a shortsighted endeavor, that the court would quickly be overcrowded when the 2 seats were eventually abolished. The coming years would prove which side was right.

195 Chapter 5 1941 – 1950 The War Years 1 The Cleveland Plain Dealer Historical Newspaper January 29, 1941 2 The Cleveland Plain Dealer Historical Newspaper February 12, 1941 3 The Cleveland Plain Dealer Historical Newspaper February 26, 1941 4 The Cleveland Plain Dealer Historical Newspaper March 16, 1941 5 The Cleveland Plain Dealer Historical Newspaper May 10, 1941 6 The Cleveland Plain Dealer Historical Newspaper April 26, 1941 7 The Cleveland Plain Dealer Historical Newspaper September 14, 1941 8 The Cleveland Plain Dealer Historical Newspaper September 10, 1941 9 The Cleveland Plain Dealer Historical Newspaper September 15, 1941 10 The Cleveland Plain Dealer Historical Newspaper April 27, 1941 11 The Cleveland Plain Dealer Historical Newspaper April 27, 1941 12 The Cleveland Plain Dealer Historical Newspaper September 16, 1941 13 The Cleveland Plain Dealer Historical Newspaper August 13, 1942 14 The Cleveland Plain Dealer Historical Newspaper June 8, 1943 15 The Cleveland Plain Dealer Historical Newspaper October 17, 1953 16 The Cleveland Plain Dealer Historical Newspaper January 30, 1941 17 The Cleveland Plain Dealer Historical Newspaper February 11, 1941 18 The Cleveland Plain Dealer Historical Newspaper March 12, 1941 19 The Cleveland Plain Dealer Historical Newspaper March 30, 1941 20 The Cleveland Plain Dealer Historical Newspaper July 20, 1941 21 The Cleveland Plain Dealer Historical Newspaper February 2, 1941 22 The Cleveland Plain Dealer Historical Newspaper March 18, 1941 23 The Cleveland Plain Dealer Historical Newspaper March 30, 1941 24 The Cleveland Plain Dealer Historical Newspaper August 4, 1941 25 The Cleveland Plain Dealer Historical Newspaper August 29, 1941 26 The Cleveland Plain Dealer Historical Newspaper September 11, 1941 27 The Cleveland Plain Dealer Historical Newspaper October 3, 1941 28 The Cleveland Plain Dealer Historical Newspaper October 11, 1941 29 The Cleveland Plain Dealer Historical Newspaper December 31, 1941 30 The Cleveland Plain Dealer Historical Newspaper January 4, 1942 31 The Cleveland Plain Dealer Historical Newspaper January 16, 1942 32 The Cleveland Plain Dealer Historical Newspaper February 12, 1942 33 The Cleveland Plain Dealer Historical Newspaper January 29, 1942 34 The Cleveland Plain Dealer Historical Newspaper October 24, 1941 35 The Cleveland Plain Dealer Historical Newspaper June 3, 1942 36 The Cleveland Plain Dealer Historical Newspaper June 11, 1942 37 The Cleveland Plain Dealer Historical Newspaper June 15, 1942 38 The Cleveland Plain Dealer Historical Newspaper November 3, 1942 39 The Cleveland Plain Dealer Historical Newspaper August 5, 1942 40 The Cleveland Plain Dealer Historical Newspaper August 16, 1942 41 The Cleveland Plain Dealer Historical Newspaper August 26, 1942 42 The Cleveland Plain Dealer Historical Newspaper September 9, 1942

196 43 The Cleveland Plain Dealer Historical Newspaper September 10, 1942 44 The Cleveland Plain Dealer Historical Newspaper September 11, 1942 45 The Cleveland Plain Dealer Historical Newspaper September 16, 1942 46 The Cleveland Plain Dealer Historical Newspaper September 26, 1942 47 The Cleveland Plain Dealer Historical Newspaper September 30, 1942 48 The Cleveland Plain Dealer Historical Newspaper January 14, 1943 49 The Cleveland Plain Dealer Historical Newspaper March 22, 1943 50 The Cleveland Plain Dealer Historical Newspaper August 17, 1943 51 The Cleveland Plain Dealer Historical Newspaper August 24, 1943 52 The Cleveland Plain Dealer Historical Newspaper September 9, 1943 53 The Cleveland Plain Dealer Historical Newspaper November 3, 1943 54 The Cleveland Plain Dealer Historical Newspaper September 11, 1942 55 The Cleveland Plain Dealer Historical Newspaper October 13, 1943 56 The Cleveland Plain Dealer Historical Newspaper June 24, 1944 57 The Cleveland Plain Dealer Historical Newspaper June 25, 1944 58 The Cleveland Plain Dealer Historical Newspaper November 9, 1944 59 The Cleveland Plain Dealer Historical Newspaper November 20, 1944 60 The Cleveland Plain Dealer Historical Newspaper December 23, 1944 61 The Cleveland Plain Dealer Historical Newspaper January 12, 1945 62 The Cleveland Plain Dealer Historical Newspaper May 4, 1945 63 The Cleveland Plain Dealer Historical Newspaper May 11, 1945 64 The Cleveland Plain Dealer Historical Newspaper June 26, 1945 65 The Cleveland Plain Dealer Historical Newspaper June 21, 1945 66 The Cleveland Plain Dealer Historical Newspaper July 26, 1945 67 The Cleveland Plain Dealer Historical Newspaper March 3, 1946 68 The Cleveland Plain Dealer Historical Newspaper July 23, 1946 69 The Cleveland Plain Dealer Historical Newspaper July 26, 1946 70 The Cleveland Plain Dealer Historical Newspaper October 16, 1946 71 The Cleveland Plain Dealer Historical Newspaper November 1, 1946 72 The Cleveland Plain Dealer Historical Newspaper December 14, 1946 73 The Cleveland Plain Dealer Historical Newspaper December 31, 1946 74 The Cleveland Plain Dealer Historical Newspaper January 2, 1947 75 The Cleveland Plain Dealer Historical Newspaper January 9, 1947 76 The Cleveland Plain Dealer Historical Newspaper January 11, 1947 77 The Cleveland Plain Dealer Historical Newspaper January 13, 1947 78 The Cleveland Plain Dealer Historical Newspaper January 19, 1947 79 The Cleveland Plain Dealer Historical Newspaper February 6, 1947 80 The Cleveland Plain Dealer Historical Newspaper May 22, 1947 81 The Cleveland Plain Dealer Historical Newspaper June 14, 1947 82 The Cleveland Plain Dealer Historical Newspaper July 4, 1947 83 The Cleveland Plain Dealer Historical Newspaper July 9, 1947 84 The Cleveland Plain Dealer Historical Newspaper July 10, 1947 85 The Cleveland Plain Dealer Historical Newspaper December 21, 1947 86 The Cleveland Plain Dealer Historical Newspaper January 7, 1948 87 The Cleveland Plain Dealer Historical Newspaper February 6, 1948 88 The Cleveland Plain Dealer Historical Newspaper February 16, 1948 89 The Cleveland Plain Dealer Historical Newspaper June 24, 1948 90 The Cleveland Plain Dealer Historical Newspaper March 13, 1948

197 91 Annual Report, Municipal Court of Cleveland 1948 92 Annual Report, Municipal Court of Cleveland 1948 93 The Cleveland Plain Dealer Historical Newspaper November 4, 1948 94 The Cleveland Plain Dealer Historical Newspaper November 4, 1948 95 The Cleveland Plain Dealer Historical Newspaper February 5, 1949 96 The Cleveland Plain Dealer Historical Newspaper February 13, 1949 97 The Cleveland Plain Dealer Historical Newspaper April 20, 1949 98 The Cleveland Plain Dealer Historical Newspaper April 22, 1949 99 The Cleveland Plain Dealer Historical Newspaper June 6, 1949 100 The Cleveland Plain Dealer Historical Newspaper February 12, 1922 101 The Cleveland Plain Dealer Historical Newspaper January 13, 1925 102 The Cleveland Plain Dealer Historical Newspaper June 16, 1949 103 The Cleveland Plain Dealer Historical Newspaper July 14, 1949 104 The Cleveland Plain Dealer Historical Newspaper July 24, 1949 105 The Cleveland Plain Dealer Historical Newspaper July 30, 1949 106 The Cleveland Plain Dealer Historical Newspaper July 29, 1949 107 The Cleveland Plain Dealer Historical Newspaper October 2, 1949 108 The Cleveland Plain Dealer Historical Newspaper October 19, 1949 109 The Cleveland Plain Dealer Historical Newspaper November 9, 1949 110 The Cleveland Plain Dealer Historical Newspaper December 11, 1949 111 The Cleveland Plain Dealer Historical Newspaper December 13, 1949 112 The Cleveland Plain Dealer Historical Newspaper March 30, 1950

Photo and Illustration Credits The First Night Court Cleveland Public Library Photographic Collection Dr. Wilfred Gill Cleveland Public Library Photographic Collection Leisy Brewery Encyclopedia of Cleveland History Louis Drucker Courtesy of Cleveland Memory Project Perry Jackson coolcleveland.com Too many judges cartoon Cleveland Plain Dealer Judges Cassidy and Drucker Courtesy of Cleveland Memory Project Robe repair Courtesy of Cleveland Memory Project Mayor Burke Wikipedia

198 The Deceptions, Deceits and Disbarment of David Copland

The saga of Judge David Copland and his disbarment began in late 1934. The conclusion would not be reached until April 1, 1941. Some might argue it was a fitting date given the facts of this case. Multiple courts, state and local politicians, anonymous lawyers, newspapers and his own son would be drawn into his web. Court jurisdiction would be questioned and laws would be changed. It began with an election. Born and reared in Glasgow, Scotland, Copland came to Baltimore when he was 20. It was said that his legal studies were taken “in the east”, and he came to Cleveland in the early 1930’s. On the surface, his biography sounds rather ambiguous, and that very ambiguity must have been a problem that greatly troubled Copland. You see, David Copland sought a place on the Municipal Court of Cleveland bench. He had previously made unsuccessful runs for a seat in the state senate in 1928 and again in 1932. In November of 1935, his ambition sent him down a judicial path. At some point during the campaign, in order to gain the endorsement of the Cleveland Bar Association, he must have decided that his resume was unimpressive. To the Cleveland Bar Association he furnished a biography which claimed he studied at Columbia University and passed the New York State Bar in 1917. Both were complete fabrications. Shortly after he joined the race, the bar association discovered that Copland did not attend Columbia University Law School as he declared. The bar investigators discovered he actually gained his legal education while employed at a law firm in New York. Armed with this information, they called for him to immediately withdraw from the judge’s race. Demonstrating a resolve which would become his trademark, he quite naturally declined. His claims left many in the bar association wary of his candidacy, but the voting public never learned of his fraudulent claims. Perhaps had the voters learned of his counterfeit past his election would have been thwarted and our tale ended almost before it began. Nonetheless he was successful, winning a seat on the court, to begin January 1, 1936. Copland’s misinformation was just part of the bar associations grievance against him. Compounding his falsification of biographical data he submitted to the organization’s campaign committee, his entire legal education, earned while working in a law office, came under scrutiny. In fact, the bar association discovered that he did not pass the New York State Bar until 1924, and only then on a motion through comity.1 Copland’s campaign tactics furnished additional aggravation. The bar association launched a judicial inquiry into his electioneering before Common Pleas Judge Walter McMahon. Twenty witnesses testified that Copland’s campaigning for the judgeship included distributing to prospective voters “favors” of miniature bottles of whisky and women’s vanity cases. Four witnesses testified that “seven or eight cartons” of ounce and a half bottles of whiskey were passed out at a meeting of 125 Democratic workers. At a meeting of 2,000 Republican women workers, vanity cases were distributed “with Copland’s compliments.” He was accused of submitting to the Board of Elections a false statement of his campaign expenses. Dinner parties allegedly given by Copland as a part of his campaign were

199 not mentioned on expense accounts introduced as court exhibits. Two restaurant proprietors testified Copland had given a dinner at their places to “people in the neighborhood.” Estimates of the proprietors placed the aggregate number of guests at nearly 80. No mention of the dinners was made on Copland’s expense statement.2 A. C. DiCola, reporter for The Cleveland Press, said Copland had denied to him that he had distributed the samples of whiskey, explaining that an office Judge McMahon neighbor, Samuel Greenbaum, who was in the whiskey distributing business, had offered to give Copland the whiskey, but had then distributed it himself. Lawrence Hackenberg, attorney, said he had attempted to find Greenbaum for the bar association committee bringing the inquiry and had learned Greenbaum had moved from the office near Copland’s a year ago, leaving no forwarding address.3 Apparently, Mr. Greenbaum was quite a hand at liquor procurement. While opposing campaigners would constantly complain about this tactic, little was done to prevent the illicit bartending. Finally drawing sufficient attention, Greenbaum’s home was raided by state liquor agents who confiscated 110 cases of whisky which lacked Ohio tax stamps. Greenbaum would come to court on these charges in late December, long after Copland had won his election. He would appear in the court of Judge Arthur Krause, who was fulfilling the last days of a six week stay of an unexpired term. Krause dismissed the charges, citing the lack of a search warrant. Although Chief Police Prosecutor Perry A. Frey would file with the Court of Appeals a petition for a review of Krause’s decision, Greenbaum would go unpunished. George Magnus, 28, was arrested December 26 on charges of transporting nineteen cases of Kentucky liquor bearing no Ohio tax stamps belonging to Samuel Greenbaum. On December 27th he pleaded guilty to transporting illegal liquor. Magnus was fined $200 and costs and given until January 15th to pay. Krause contended that he acted within the letter of the law in upholding a motion by defense counsel against the introduction of evidence on the grounds that the raiding authorities did not have a search warrant.4 After an all-day hearing, Judge McMahon issued a finding of “willful intent to violate” the Corrupt Practices Act, at the conclusion of the inquiry. The finding of intent to violate meant that the judge’s opinion and the testimony given at the inquiry would be submitted to County Prosecutor Frank T. Cullitan for grand jury consideration and possible action.5 Copland went on the offensive, characterizing the bar’s actions as “the climax of a series of insidious attacks.” He added, “My campaign has been conducted on as high a plane, and in some cases higher, than that of any bar association endorsed candidate. Criticisms of my distribution of souvenirs is no more reprehensible than the payment by the bar of fees to college students to campaign for the bar slate. It is lamentable that the dignity of the judicial campaign should be marred each year by these despicable 11th hour tactics by a self-appointed Prosecutor Cullitan

200 legal hierarchy.”6 In January 1936, a Grand Jury was impaneled to investigate racketeering and gambling, specifically at the Harvard Club in Newberg Heights and the Thomas Club in Maple Heights, which had been operating openly as gambling resorts. Because of accusations made by the Cleveland Bar Association, and the report of the inquiry opened by Common Pleas Judge Walter McMahon, an additional item was added to their agenda. They would hear testimony regarding the campaign activities of Municipal Judge David Copland. His judicial term began January 1. The new grand jury convened January 6. Conviction under the Corrupt Practices Act in case Copland should be indicted, would mean forfeiture of the office.7 Concurrently, Attorney General John W. Bricker of Ohio filed an action in the Court of Appeals, seeking to reopen the case against Samuel Greenbaum, freed on December 31st of a charge of possessing illegal liquor. The action sought to prevent Greenbaum from reclaiming the 110 cases of untaxed whiskey seized at his home when he was arrested. This case would be fought all the way to the Ohio Supreme Court, where the lower court’s opinion was affirmed, throwing out the appeal pressed by Assistant Attorney General Donald Hornbeck in 8 October of 1936. John W. Bricker More than 200 witnesses were eventually called before the Grand Jury in the Copland investigation. Despite the transcript of the testimony at Judge McMahon’s inquest, the conclusion of willful intent evidently had no bearing on the outcome of the Grand Jury. The County Grand Jury no-billed the case against Judge Copland. The Cleveland Bar Association, which had brought the charges, was forced to regroup.9 Judge McMahon, when up for re-election in a judicial race as the incumbent for a seat on Common Pleas Court, may have become embroiled in a revenge feud with Copland. His race against Donald Lybarger, of Lakewood would feature Judge Copland, appearing nightly at numerous meetings throughout the city, stumping for Lybarger. Copland regularly asserted, “There has never been a judge on the bench in this county that took such an arbitrary attitude toward union labor as Walter McMahon.” He made continued accusations that McMahon campaign expenditures had been paid by various anti-labor organizations and that McMahon and his supporters had vowed to “Beat Copland” at the next election of municipal judges. Unlike 1935, Copland’s campaign methods would be unsuccessful. McMahon would defeat Lybarger. With his legal troubles in 1936 behind him, Copland would become a successful jurist. Taking part in civic promotions to encourage safer Donald Lybarger driving and pedestrian awareness, he was developing into a community leader. Unfortunately, his self destructive tendencies would continue to haunt him.10 Vinton Randall Shepard was the publisher of the Cincinnati based Ohio Law Reporter. This journal published legal opinions by judges and scholars. Shepard had received a letter from Judge Copland, with an opinion enclosed, offering it for publication. Rarely did they publish opinions by municipal judges, due mostly to the type of cases they dealt with seldom set precedents. On this occasion, when offered a municipal case with sufficiently novel features, they were interested in publishing. The case of S. Bartikean v X. Bardos, featured an opinion

201 written by Municipal Judge David Copland. It would meet all the criteria, and be published on August 21, 1939.11 Almost immediately there were problems. Legal opinions, when published by journals such as the Ohio Law Reporter, spur law students and legal scholars alike to investigate. The problem in this instance was they could not find the case. Court records failed to prove the existence of any such case. Further, the case number which Judge Copland attributed to the Bartikean v Bardos action was found to be that of an entirely unrelated suit. The case did not exist in Municipal Court records, and no person of the name of either litigant could be found in the Cleveland City Directory. The Ohio Law Reporter affirmed that if they could not prove the existence of the case, they would in fact print a retraction. “Nothing of this sort has ever before come up in the many years we have been publishing the Ohio Law Reporter,” Shepard said. “We accepted Judge Copland’s decision in complete good faith and naturally without a question as to the authenticity of the case. If it is true that no such case exists we will make an immediate retraction.”12 Confronted with questions concerning the case, and demands to know why court records failed to disclose existence of such a case, Judge Copland was forced to admit that in fact, the opinion was not about an action that had been heard by him. Instead, he explained, two lawyers had come to him and presented a statement of facts concerning legal activities of the alleged Bardos and Bartikean. He claimed he was asked for an informal opinion on the case, which he gave them. Later, feeling the matter was of public interest, he said, he sent a copy of the opinion to the Ohio Law Reporter. The case dealt with the tangled affairs of the alleged Bardos family. A Bardos daughter married Bartikean, the opinion explained, and later domestic troubles arose. A divorce subsequently ensued, and then a suit over a business partnership. Later, the opinion stated, Bartikean brought suit against his former father-in-law, charging alienation of affections. In Municipal Court, a verdict for Bardos, the defendant, was returned, according to the opinion. Judge Copland asserted the case came to him on a motion for a new trial in the last mentioned legal dispute. Copland declared in his decision that Bartikean was represented by W.H. Stone and Bardos by J.H. Read, both known Cleveland attorneys.13 Once again, Copland was

Marcellus DeVaughn embroiled in a controversy that everyone clamored to investigate. Representatives of the Ohio Law Reporter were checking court records to verify reports that the case was non- Keith Wilson existent. The Cleveland Bar Association appointed a committee headed by Marcellus DeVaughn and assisted by Keith Wilson and Samuel Kornhauser to investigate the alleged case of Bartikean v Bardos, along with Copland’s involvement. The Ohio Bar Association forwarded a report to their Columbus headquarters in anticipation of an 14 Samuel Kornhauser investigation. Wisely, Copland refused any further comment.

202 Ultimately, the Ohio Law Reporter announced that the recently reported case of Bartikean v Bardos would be dropped from further issues. Shepard, as the publisher, issued this statement: “What really has been damaged is the reputation of this Judge, caught in a serious breach of confidence. If it is important for a practicing lawyer to be known as a man of his word, how much more important it is to shun even the appearance of misrepresentation. What this particular Judge has brought upon himself is likely to be seen when he next asks the public to place its trust in him.” 15 After an intense investigation, L.B. Davenport, President of the Cleveland Bar Association announced that his group would petition in Common Pleas Court to approve the appointment of a committee of three members with the intention to bring disbarment proceedings against Copland. Their investigation branded Copland’s conduct as a “peculiar misuse of judicial office which, so far as we know, is unique in all the history of our courts.” The report added, “Judge Copland manufactured and uttered a counterfeit opinion. In doing so, he debased the judgment seat, the durable value of which cannot be maintained unless judges are not only upright but unsuspected.” While the committee was convinced that Copland’s behavior was reprehensible, they were unsure what effect disbarment would have on the judge’s tenure on the bench. At the least, it should have made him ineligible for re-election, or at best perhaps, it should have persuaded him to resign. The bar committee was also critical of the two attorneys, W.H. Stone and J.H. Read, who loaned the judge the use of their names, permitting him to give his fictitious ruling an air of plausibility. Despite the disapproval, no action against them was suggested.16 Common Pleas Court would accept the bar association’s petition for disbarment. Judge Charles R. Sargent of Jefferson in Ashtabula County was assigned by Chief Justice Carl V. Weygandt of the Ohio Supreme Court to hear the disbarment case against Judge Copland. This assignment was made at the request of Cuyahoga County Common Pleas Chief Justice Homer G. Powell. Bar Association President Davenport nominated A.G. Isadore Grossman Newcomb, Isadore Grossman and Thomas A. Burke to press the disbarment in court. While the Cleveland Bar Association would no doubt make a strong A.G. Newcomb case against Copland in its petition to have him disbarred, presenting the facts of the case before the court was not a foregone conclusion. Some of his campaign methods, while widely denounced as unethical, were not deemed by a Grand Jury as illegal. Biographical information he furnished prior to his election was found to be untrue, and his report of campaign expenditures did not meet the requirements of law. These offenses may not have been enough to bring disbarment on their own. The climax of Thomas A. Burke Copland’s offending, his most important violation, the publication of

203 the phony lawsuit, was sure to bring confidence to the prosecutors. But Copland had been a member of the bar association’s Grievance Committee, which instituted disbarment proceedings against a lawyer for alleged misapplication of funds. He was well aware of the battle he was facing. Although he was well aware of the evidence against him, and more, he would not go without a fight. Before the trial could begin, Judge Sargent would have to rule on a number of motions, not the least of which was to determine if the court had jurisdiction at all. The defense presented motions attacking all five of the disbarment specifications. James C. Connell, Copland’s lead attorney, pressed the argument that the court had no jurisdiction as to the first specification in the charges, the charge that Copland faked the suit. Other motions would James C. Connell challenge all of the specifications, on the grounds Howell Leuck that, even if true, would not furnish sufficient basis to support disbarment proceedings. Connell and Howell Leuck, Associate Defense Attorney, contended in their argument that the court was without jurisdiction on the ground that the “right procedure under the constitution of the State of Ohio was by way of forfeiture of office as judge by impeachment through the House of Representatives, and not disbarment.” Connell said, “Disbarment proceedings were out of order because Copland’s act in sending out an allegedly spurious opinion was a judicial act and not the act of a lawyer. The other acts,” Connell added, “were not within the sphere of disbarment proceedings because they also were not acts of an attorney in the practice at law.” Judge Sargent’s ruling would force Copland to defend himself against the most serious charges; that he faked the lawsuit and gave a fictitious opinion on it, and that he gave false information about himself to the Cleveland Bar Association in 1935 when he ran for Judge. The trial would resume in earnest on February 28, 1940, in the Lakeside Avenue Court House, Courtroom 3.17 On Friday, May 31, 1940, Judge Sargent, in a 21 page opinion, found Judge David Copland guilty of having written a fictitious opinion for publication, and of giving false information about his education and practice for election purposes. Sargent commented: “Judge Copland has shown an utter, reckless disregard for the truth, and his actions have an effect on the general public as well as the bench and bar of the state. He was guilty of outrageous conduct, but on the witness stand he showed no realization of the seriousness of the thing he had done. He seemed only to regret that his deception had been detected.” As punishment, Copland was disbarred for life. Copland made no comment, but his attorney James C. Connell, immediately announced their decision to take the matter to the Court of Appeals for review. He would ask that court to suspend the lower court disbarment order, pending the appeal. Although powerless to remove Copland from his seat, Municipal Court Chief Justice Burt W. Griffin did limit his participation. His schedule would include no police cases or controversial civil actions, limiting him mostly to motions and defaults.18 The disbarment order became official on July 8th, when Judge Sargent forwarded his journal entry to Chief Justice Powell of Common Pleas Court. Copland would now have 20 days to appeal. The finding for disbarment was the only clear issue. Looming on the horizon were

204 greater questions. If the disbarment was upheld in higher courts, the question would then be, how to remove Copland from office. Ohio statute at the time had no provision for removing a disbarred attorney from an elected judgeship and there was no clear requirement for a judge to remain a member of the bar throughout his term. It was even unclear that the disbarment would prohibit him from running for re-election. The statute only required a candidate to be a member in good stranding for 5 years previous to his candidacy. If the disbarment was upheld, and he was permitted to complete his term, which ran to December 31, 1941, the ruling should have prevented him from seeking re-election, but would likely be litigated. Many expected that the ruling or the appeal would be enough to clarify the aforementioned issues. However, there were those who preferred not to wait for the appeals process. Twenty days were 20 too many for those so impatient for the judges removal.19

The Plain Dealer fired off a series of editorials in July of 1940: GUILTY JUDGE “Municipal Court Judge David Copland is disbarred for life from the practice of law by decision of Common Pleas Judge Sargent of Jefferson, who sustains two of the Cleveland Bar Association’s five charges against him. The two charges are that Copland used false information in his election campaign; and that he perpetrated a fraud on the public by pretending to make a decision in an imaginary law case. The decision is fully justified by the facts. Copland cannot fairly complain that he had been dealt with over-harshly. A surprising fact about the Sargent decision is that while it bars Copland from the practice of law, it does not remove him from the bench. He may still rule a court in which he could not appear as an attorney. It is a situation as ridiculous as it is serious. In justice to the community which mistakenly trusted him as a Judge, Copland should not again preside in a case at law. If Copland has even the slightest realization of the seriousness of his offenses, and the position in which his conviction places him before the people of Cleveland and the State, he will resign without delay. Whether he takes this step or not, however, legislative action is needed to meet such a situation as this, if it occurs again. Disbarment of a judge from the practice of law should reasonably imply his removal from the bench. Since new legislation seems to be required in order to affect this result, such new legislation should be adopted at the first opportunity. Meanwhile, Judge Copland, your resignation!”20 If the newspaper hoped that its stinging editorial would convince Copland to be civic minded and resign, they hid their disappointment behind further calls like: “If Judge Copland had any glimmering sense of propriety he would have resigned his judicial office when Sargent first made his decision disbarring him. He has not resigned, and appears to have no intention of resigning.” “There is one way the question can be determined as to Copland’s right to sit as a Judge after being deprived of the privilege of practicing law. His salary is paid in part by the city and in part by the county. If city and county were to refuse to pay him, Copland would be forced to sue. Such a suit would probably result in a judicial opinion as to a Judge’s right to continue on the bench after his right to act as an attorney has been denied. This test is worth making. It need not be delayed.”21

205 The editorials show plainly what side of the issue the paper was taking. An article on Tuesday, July 9, 1940 would indicate they might be willing to up the ante: “DEFERS RULING ON COPLAND’S SALARY City Law Director Henry S. Brainard said last night that he had no opinion as to whether the city could legally discontinue the salary of Municipal Judge Copland, whose disbarment for life became effective with the filing of a Thomas Herbert formal journal entry in Common Pleas Court. He said he had conferred with Assistant County Prosecutor Ralph Edwards and that he hoped to have some opinion by the end of the Henry S. Brainard week. The city pays $6,000 of Copland’s $9,000 annual salary, the county the rest. Meanwhile, attorneys for the disbarred are preparing to file an appeal of the disbarment. Copland has given no indication that he has any intention of resigning the post. If his salary were withheld he would be forced to institute suit to receive his pay, and the question of whether a disbarred lawyer may occupy a judicial position would be placed before the court”22 Perhaps they had more faith in the far reaching effects of one case, in one court. It would take more than a few editorials to solve this dilemma. The editors may have felt they needed more clout on their side. If you believe that they were willing to take the point on pressing this issue, then you won’t have a problem with them recruiting a court insider to lead the charge. Former Common Pleas Judge W. George Kerr inserted himself into the Copland controversy. Quite possibly at the papers urging given the tenor of their coverage, The Plain Dealer continued to press for withholding of salary to force Copland’s hand. Law Director Henry S. Brainard and County Prosecutor Frank T. Cullitan discussed the matter and Brainard was of the opinion that the salary was attached to the office, not the individual, and therefore he could not authorize withholding salary as long as Copland remained in office. Kerr decided or was convinced to threaten a taxpayer’s suit to force the withholding. Kerr also declared he had conferred with State Attorney General Thomas W. George Kerr J. Herbert on the matter. Kerr was of the opinion that Copland’s right to hold office could be attacked independent of the disbarment, even if Copland was removed, a successor named and the original decision reversed.23 Kerr and whoever his supporters/instigators were, brought pressure to bear on both Attorney General Herbert and Prosecutor Cullitan because of their ability to bring Quo Warranto action to seek Copland’s ouster. A Quo Warranto action in the Court of Appeals would force Judge Copland to show by what authority he continued to hold his place on the municipal court bench. While Cullitan and Herbert had the power to bring the Quo Warranto action, Cullitan believed it was premature to bring such to bear while the disbarment was under Appeals Court review, with the possibility that the decision could be reversed. Kerr would continue to threaten the taxpayer suit, vowing to seek in Common Pleas Court a restraining order to prevent the payment of Copland’s salary. Brainard and Cullitan continued to reject the notion of the Quo

206 Warranto action, informed Kerr they would not bring such action themselves, considering it improper at this time. The Cleveland Bar Association, through the Trial Committee, asked the Court of Appeals for an early hearing of the Copland appeal, lobbying the Ohio Legislature for amendments to the statutes which would prevent a recurrence of the situation in the Copland case.24 Cullitan refused to be baited by Kerr. He would not act to enjoin the payment of Copland’s salary at this time. Knowing that the disbarment did not become final until the reviewing courts had heard and affirmed this judgment, Cullitan preferred the patient approach. He did not support Copland, but he could not bring any action which he felt was not well founded in the law. Additionally he would have placed himself in a tenuous position of bringing an action against the County Auditor, whom he was required to defend, standing firmly on both sides of a complex issue. Newspaper reports assert that Cullitan told Chief Justice Burt W. Griffin of Municipal Court, his opinion that using a Quo Warranto action to remove Copland was not proper at this time because the judge’s filing of a $200 supersedes bond automatically stayed execution of the judgment against him. The prosecutor agreed with the opinion of the need for legislation to remedy this situation. Attorney General Herbert, who also had the power of the Quo Warranto action, was said by the paper to be considering that same action. Under consideration by the state legislature were possible amendments to the General Code to deal with the suspension of attorneys. Lawmakers sought to create a statute that would make it unlawful for a suspended attorney to hold any public office, if the qualifications included admission to the practice of law. Amendments to sections of the laws dealing with the procedure for removal of public officers were also being debated, the goal being to make it possible to institute removal of an attorney occupying a public office. George Kerr made good on his threats to file a taxpayer’s suit. The suit, filed in Common Pleas Court sought to restrain the city and county from continuing to pay Copland his $9,000 salary. Judge Charles J. McNamee would hear the case. Named as defendants were: Mayor Harold H. Burton, Law Director Henry S. Brainard, Finance Director G.A. Gesell, City Treasurer Leonard Levy, the County Commissioners, the County Auditor and the County Treasurer. The petition contended that, since a candidate for a judgeship must be a lawyer in good standing, an occupant of the bench loses his right to office when he is disbarred.25 The Plain Dealer of August 1, 1940 wrote in inflammatory fashion, finding a new place to lay blame: “$750 DOLLAR SALARY AWAITS COPLAND His $750 salary for July will be waiting at the City Treasurer’s office for Municipal Court Judge David Copland today, although he has been disbarred as a lawyer by Common Pleas Court order for more than 3 weeks. His salary will be collectable because Common Pleas Judge Frederick P. Walther yesterday refused a temporary restraining order to prevent city officials from paying Copland the salary.” The Plain Dealer of November 29, 1940 would continue to find new parties to blame: “CONTINUES FIGHT TO STOP COPLAND’S PAY Checked in his efforts to prevent the payment of $ 9,000 annual salary to Copland, who has continued to draw his pay since his disbarment in July, by a decision from Common Pleas Judge Joy Seth Hurd, George Kerr, attorney who brought a taxpayer’s suit late yesterday planned further action. Judge Hurd cited that an elected public official such as

207 Copland could be removed from office only through impeachment, a Quo Warranto proceeding brought by county or state officials or circulation of petitions charging misfeasance, non-feasance, or malfeasance in office. Kerr declined to say whether he would appeal the decision, but said he would make a further study. Copland has, since his disbarment, reported for work daily pending a decision on his appeal of the disbarment, but has been assigned no cases upon the order of Chief Justice Burt W. Griffin of Municipal Court.” While the debate regarding the judge remaining on the court payroll and the efforts to remove him went on, Copland and his representatives pressed his appeal to the higher courts. The Eighth District Court of Appeals affirmed the Common Pleas Court decision on December 23, 1940, with Judge Clyde C. Sherick the author of the ruling. In it his disdain for Copland was clear. Copland sought a reversal on two grounds: First, that the specifications, if true, did not charge misconduct or unprofessional conduct in office involving moral turpitude; Second, that because Copland was the incumbent of a judicial office he could only be disciplined by way of impeachment. Of Copland Judge Sherick was free with his commentary: “This legal Paul Bunyan did not possess the candor of him whom he would emulate, but by deception and concealment would foist his legal views upon his brethren as the judgment of a court of law. His effrontery in so doing is monstrously astounding. He would mislead the members of his profession, the courts and the people who so graciously elected him. His acts subject the legal profession and the courts to contempt and ridicule, when his every move should have been to uphold their dignity. Surely this highly reprehensible act involves moral turpitude.” Sherick continued: “But it is said that if all this be true it was not done "in office"; that is, as an Attorney at Law. Appellant would wrap his judicial robe about him and steal away from the nightmare into which his dream degenerated. He now asks a reviewing court to wash his soiled gown and absolve him of all censure because he bears the title, Judge. We believe the office of an Attorney at Law should be, and is, one of high standing. It is granted to one for life, while that of a judgeship is but for a few short years. They are not incompatible, for one in this state must hold the office of an Attorney at Law for a number of years before he can be elevated to the Bench.” And finally: “He testified that he obtained his legal education in a law office. He says it was his purpose to exaggerate his legal experience and qualifications so that he might obtain the approval and endorsement of the Bar. He admits that he sought thereby to deceive the members of the Cleveland Bar Association. This act was done as a lawyer who sought elevation to the Bench. It was done before he became a judge. It could not have been a judicial act. It also carried deceit and deception to his associates in the law and to the people. It was untrue and unethical and involved misconduct and unprofessional conduct in office involving moral turpitude.” In the end, Copland’s appeal was for naught; the judgment of the Common Pleas Court was affirmed.26

208 In January 1941, Harry A. Dworkin and Charles A. Vanik introduced bills in the Ohio House and Senate, intended to reduce from 16 to 14 the number of judges in Municipal Court. Under these bills, the first two vacancies to occur by death, resignation or removal would not be filled and the terms would be abolished, except in the case of the Chief Justice. The bills contain a provision that municipal judges must be continuously during their terms, members of the bar, which would automatically disqualify Copland, who has been disbarred from continuing to hold office.27 Despite The Plain Dealer and George Kerr’s efforts, Copland was still collecting a salary and still working every day as a judge. Kerr had previously filed a taxpayer suit seeking to stop paying Copland, but Judge Charles J. McNamee ruled there was no legal provision for a private citizen to force such action. In February 1941, Kerr would demand in a letter to County Prosecutor Cullitan that he file Quo Warranto action now. “It is very fine of you to take an interest in this situation,” Cullitan said in a letter of reply to the former Common Pleas judge. “However, let me assure you that no demand was necessary.” Cullitan, who was considering the question along with Law Director Brainard, pointed out that impeachment proceedings were being readied in the Senate against Copland. They could take effect sooner than a Quo Warranto action. The State Senate’s Judiciary Committee unanimously approved a resolution providing for impeachment, introduced by Senator Charles A. Vanik of Cleveland.28 Finally, The Plain Dealer, and George Kerr, and everyone who wished Copland was no longer drawing a salary got their wish. Wednesday February 26, 1941 the page 1 headlines read: “COPLAND OFF CITY-COUNTY PAY ROLLS Brainard Joins Cullitan In Withholding Salary From Disbarred Judge City Law Director Henry S. Brainard last night followed County Prosecutor Frank T. Cullitan in ordering that further salary payments to Municipal Judge David Copland, whose disbarment the Ohio Supreme Court refused to review last week, be withheld by the city and county treasuries. Cullitan had advised County Auditor John A. Zangerle not to certify further pay to Copland and that he had begun preparation of a petition in Quo Warranto, to be filed with the State Supreme Court, seeking to remove the judge from office because of the disbarment. Brainard drafted a letter to Finance Director G.A. Gesell in which he said that “for all practical purposes” the Supreme Court’s decision made Copland’s disbarment final and that in his opinion the city no longer was required to pay the judge’s salary. Brainard wrote he was “confident” of the success of the Quo Warranto proceedings. Cullitan said the Quo Warranto petition was in the printer’s hands. After it is filed the Supreme Court is expected to set it for hearing, at which time the court will decide whether a judge, required to be an attorney in good standing when elected, must remain in good standing for the duration of his tenure. Copland said he intended to ask the Supreme Court to reconsider its decision not to review his disbarment. He had no comment on Cullitan’s action. An editorial of a mea culpa from Thursday, February 27, 1941:

209 “ENDING A SPECTACLE The curtain seems to fall on the illogical spectacle of a disbarred lawyer drawing public pay as a jurist. Now the Ohio Supreme Court has in effect upheld the decision of the lower courts that Municipal Court Judge David Copland was not fit to be a member of the bar. City Law Director Brainard and County Prosecutor Cullitan have instructed the city and county governments to withhold Copland’s salary. Cullitan has gone further and instituted proceedings to have the discredited judge removed from the bench. It may be that laymen are too impatient with the technicalities of the law which, though designed to protect the innocent, too often play into the hands of the guilty. But we are inclined to think that the city and county lawyers did not need to wait for action by the Supreme Court before holding up Copland’s pay. Had they done so earlier, they would have placed the next move up to him, and if by any chance the courts had sustained his contention that he was still a judge, such a legal defeat of the public’s lawyers would have been more than offset by public approval of their attempt to apply common sense Copland’s court closed to the law. At any rate, we are glad Brainard and Cullitan have April 1, 1941 acted at last.”

As the Copland affair was winding down, The Plain Dealer on Friday, March 7, 1941 featured: “The Ohio Senate deferred action on a resolution aimed at the ouster of Copland after William M. Boyd, the Democrat floor leader, said he expected the judge to resign by that time, according to an Associated Press dispatch from Columbus. “The situation may take care of itself and this resolution won’t be needed,” Boyd said.” The resolution, offered by Senator Charles A.Vanik D-Cleveland, would set up a 10 member Legislative Committee to investigate Copland’s case. If it found he should be removed another resolution would have to be adopted by the legislature. Vanik agreed to the postponement, he said, “in the hope that Copland may realize the seriousness of the situation and try to reconcile himself to the situation in which he has placed us all.” Copland could not be reached for comment, but Mrs. Copland said she had heard nothing to indicate the judge planned to resign from the bench.29 On Monday March 10, 1941, Copland announced that he had sent Governor John W. Bricker his brief letter of resignation, “I hereby tender my resignation as Judge of the Municipal Court of Cleveland, to take effect as of April 1, 1941.” 30 On Tuesday March 11th, Cullitan and Brainard declared in The Plain Dealer that they were resolved to oppose any attempt by Copland to collect his salary for February and March ($1500). Their stance was that Copland’s resignation did not alter the fact that he was not entitled to sit as a judge after the disbarment became final. Cullitan further said he would not withdraw the Quo Warranto proceedings, but expected the court to dismiss them after the judge left the bench.31 Edward Blythin There was no surprise when the governor accepted Copland’s

210 resignation. Bricker announced that he would delay appointing a successor pending action on a bill in the legislature that would reduce the number of judges in the court from 16 to 14. The next day the Ohio Senate would pass and send to the House the bill to reduce the number of Municipal Court of Cleveland judges from 16 to 14. The bill provided that the first 2 vacancies to occur as result of death, resignation, or removal would not be filled, the terms so vacated to be abolished. This bill, sponsored by Charles Vanik, also contained a provision that required a judge of the municipal court to remain a member of the bar while serving as judge.32 The Plain Dealer on April 1, 1941 reported that Councilman Edward J. Kovacic attempted to introduce an amendment in council to use the $4500 remaining from Copland’s unpaid salary. He suggested $1000 for street signs, $2500 of recreation equipment, and $1000 for music. His motion was defeated when Mayor Edward Blythin reminded the council that the governor, after the legislation issue was resolved, may yet decide to appoint a new judge.33 Epilogue That should have been the end of David Copland’s notoriety. Unable or unwilling to maintain a low profile, Copland caused another stir, this time would include his son as well. In spite of Copland’s free fall from a law career and a courtroom bench, he landed on his feet. He managed to find work in Probate Court, not as a judge this time, but as a Property Administrator. Under Ohio Probate Code, an administrator is not permitted to buy or sell or “have any dealings with the estate” which he is administering. But, with the help of a “dummy man”, by the name of Harry Nolan in this case, they would bid and buy property, and the heirs would be unscrupulously separated from their rightful property. It was here he crossed paths with Laura Sloan Kort, or rather with her estate.34 Laura Sloan Kort passed away June 23, 1941. She was a wife, a mother, a sister; she left heirs. Her probate file landed on Copland’s desk and his fingers got sticky. Through his efforts, her home, at 1853 Windermere Street, East Cleveland, got sold through a Sheriff’s Sale for $4300. We cannot know if this was Copland and Nolan’s first attempt at such a transaction, or just that this one went wrong. The plan blew up when the dummy buyer went to court to evict the occupant of the house. Matters got complicated when the occupant didn’t leave his wife’s house. Fred K. Kort refused to leave the home and the transaction came to light during the eviction process. In late November 1942, charges were filed by Robert H. Sanborn, attorney for Kort in a referee’s hearing before George H. Martin. The accusation was made that Copland, thru a “dummy man”, purchased property at a Sheriff Sale that was part of an estate he was administering. Common Pleas Judge Frank J. Merrick subpoenaed Copland to appear in court to explain the realty deal. Also subpoenaed to appear with Copland was his son, Herbert, who acted as his attorney in the administration of the property and a “Harry Nolan” of 1196 Hayden Avenue N.E., described as the “dummy man” in the transaction. No Harry Nolan at this address was listed at that time in the city directory.35 The attorney for the defense was a young Howard Metzenbaum. He was fresh out of law school, long on ambition and short on clients. Metzenbaum had just been elected to the Ohio House of Representatives that fall, due to take office in January. There is no indication how or why attorney and client came together, and we don’t know what came between them during this trial. Howard Metzenbaum

211 What little we do know comes from the remarks of Judge Frank J. Merrick as quoted in The Plain Dealer on Saturday December 5, 1942, on page 15, where he exonerated Representative-elect Howard Metzenbaum, “youthful Cleveland attorney of any “intentional” wrongdoing in the Copland realty deal. Copland was charged with his son Herbert at a court hearing on Thursday of using a “dummy man” to buy the above mentioned property.” Metzenbaum admittedly served as attorney for both Herbert Copland and Harry Nolan, the “dummy.” Merrick characterized the promoters of the deal as “scoundrels, conspirators, contemptible and crooked” and called Metzenbaum a “dupe”. “I exonerate him of any intent to do wrong….I am convinced now he was used as a dupe by the intentional wrongdoers who are, of course, the 2 Copland’s. I think we can count his unintentional culpability to his youth and inexperience.” The article does not report what part Metzenbaum might actually have played in this drama, or why Merrick would find it necessary to exonerate him. Nor did the papers bother to include the results of criminal charges which one would think proper in this case. We are woefully shy of pertinent details. The papers would publish nothing between December 5 and January 24, when the story would conclude with an article reporting that the surviving widower, Fred K. Kort would regain title to the home on Windermere Street. Merrick signed an order nullifying the sale after Kort reimbursed Copland for the money spent. It is unknown if there were additional civil or criminal penalties to be paid after this attempted swindle. We would hope that this action would at least cost him his position with Probate Court.36 In 1943, Copland filed suit to recover the unpaid portion of his 1941 judge’s salary. The city counter sued him to recover the salary he was paid between the disbarment and his resignation. Both parties evidently agreed to withdraw their suits and the cases were dismissed by Municipal Judge Oscar C. Bell.37 It is difficult to compare the political environment of the late 1930s with that of today. The campaign shenanigans considered so grievous in 1935 pale in comparison to the tactics seen in recent years. It is doubtful that Copland’s method of electioneering would raise as much as an eyebrow today. Biographical misrepresentations are nearly impossible to perpetrate in this age of the internet, where transcripts and attendance are easily discovered. Perhaps if he were a candidate this year, Copland would be much more forthcoming with accurate information. The published case files which were so devastating to Copland in 1940 could easily be explained today as a possible screenplay, written on speculation and inadvertently published. It is difficult to imagine a seated, incumbent judge losing his place on the municipal court bench for such insubstantial reasons as those that befell David Copland. This judge’s tale ends as all must. On February 15, 1956, David Copland, former judge of the Municipal Court of Cleveland died suddenly in Dallas, Texas. He and his wife Shirley were on their way to California by car to visit their daughters. His death was believed to have been caused by a heart attack, having suffered for several years with a heart ailment. His remains were returned to Cleveland, and buried in Mayfield Cemetery.38

212 The Deceptions, Deceits and Disbarment of David Copland 1 A motion by which an attorney is admitted to practice without passing a bar exam 2 The Cleveland Plain Dealer Historical Newspaper December 19, 1935 3 IBID 4 The Cleveland Plain Dealer Historical Newspaper January 1, 1936 5 The Cleveland Plain Dealer Historical Newspaper January 3, 1936 6 The Cleveland Plain Dealer Historical Newspaper November 26, 1935 7 The Cleveland Plain Dealer Historical Newspaper March 3, 1936 8 The Cleveland Plain Dealer Historical Newspaper February 9, 1936 9 The Cleveland Plain Dealer Historical Newspaper March 7, 1936 10 The Cleveland Plain Dealer Historical Newspaper November 3, 1938 11 The Cleveland Plain Dealer Historical Newspaper August 29, 1939 12 The Cleveland Plain Dealer Historical Newspaper August 30, 1939 13 The Cleveland Plain Dealer Historical Newspaper August 29, 1939 14 The Cleveland Plain Dealer Historical Newspaper August 30, 1939 15 The Cleveland Plain Dealer Historical Newspaper September 2, 1939 16 The Cleveland Plain Dealer Historical Newspaper October 3, 1939 17 The Cleveland Plain Dealer Historical Newspaper February 27, 1940 18 The Cleveland Plain Dealer Historical Newspaper June 1, 1940 19 IBID 20 IBID 21 The Cleveland Plain Dealer Historical Newspaper July 9, 1940 22 IBID 23 The Cleveland Plain Dealer Historical Newspaper July 18, 1940 24 The Cleveland Plain Dealer Historical Newspaper July 20, 1940 25 The Cleveland Plain Dealer Historical Newspaper July 26, 1940 26 Court of Appeals of Ohio. 66 Ohio App. 304 (Ohio App. 1940) 27 The Cleveland Plain Dealer Historical Newspaper January 30, 1941 28 The Cleveland Plain Dealer Historical Newspaper February 21, 1941 29 The Cleveland Plain Dealer Historical Newspaper February 26, 1941 30 The Cleveland Plain Dealer Historical Newspaper March 10, 1941 31 The Cleveland Plain Dealer Historical Newspaper March 11, 1941 32 IBID 33 The Cleveland Plain Dealer Historical Newspaper March 12, 1941 34 The Cleveland Plain Dealer Historical Newspaper November 28, 1942 35 The Cleveland Plain Dealer Historical Newspaper December 5, 1942 36 The Cleveland Plain Dealer Historical Newspaper January 24, 1943 37 The Cleveland Plain Dealer Historical Newspaper March 16, 1943 38 The Cleveland Plain Dealer Historical Newspaper February 17, 1956

213 Photos and Illustrations David Copland ad edit Cleveland Jewish News Copland ad Cleveland Jewish News Judge McMahon Clevescene.com Frank Cullitan Cleveland Public Library Photographic Collection John W. Bricker Ohioattorneygeneral.gov Donald Lybarger Stamps.org Marcellus DeVaughn Cleveland Public Library Photographic Collection Keith Wilson Cleveland Public Library Photographic Collection Samuel Kornhauser Cleveland Public Library Photographic Collection Isadore Grossman Cleveland Public Library Photographic Collection A. G. Newcomb Cleveland Public Library Photographic Collection Thomas A. Burke Cleveland Public Library Photographic Collection James C. Connell Terapeak.com Howell Leuck Cleveland Public Library Photographic Collection Henry S. Brainard Cleveland Public Library Photographic Collection Thomas Herbert Ohioattorneygeneral.gov W. George Kerr Cleveland Public Library Photographic Collection Copland’s door Courtesy of Cleveland Memory Project Edward Blythin Findagrave.com Howard Metzenbaum Quotationof.com Copland Stone Mayfield Cemetery website

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