After New Miami’s attorney James Englert told the court the speeding fines were obtained legally, one of the judges begged to differ.
“(The fines were obtained) pursuant to an unconstitutional ordinance,” Judge Mike Powell said. “How can that be obtaining them legally?”
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The speed camera program was declared unconstitutional by former Butler County Common Pleas Judge Michael Sage in 2014, and Englert argued the fines were legal, the process wasn’t.
“The important thing there is these $95 that were paid, it was a traffic fine. It was theirs originally but they paid it as a traffic fine, which is a legal thing to do even under this program,” Englert told the court. “The illegal thing would be they were denied due process.”
Much of the 30-minute hearing was devoted to whether New Miami is responsible for the entire $3.3 million speeders paid, or only the portion the village actually received from its third party vendor. The village contracted with Optotraffic to run the program and the vendor retained 40 percent of the ticket revenue.
The village received $1.8 million from the old program and claims it cannot repay either $3 million or the $1.8 million. Presiding Judge Robert Hendrickson asked one of the speeders’ attorneys Josh Engel about that.
“What about the practical argument that this would bankrupt the village,” Hendrickson asked.
Engel said no one knows for sure if paying the judgment would bankrupt the village and just because the village may have spent the money, doesn’t mean they are immune from paying the ill gotten gains back.
“The sovereign immunity statute is meant to protect in many ways the treasuries of small municipalities from a huge hit from a tort, their garbage truck runs over somebody and they have to pay a huge liability they can’t afford,” Engel said. “That’s not this situation. This situation is one where there’s not a loss that’s occurred, but merely returning what is taken.”
After the hearing Englert said he felt the judges were focused on what is important in this case.
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“The interest in whether the village received all the fines or 60 percent of them, relates to the test of whether the money sought can be considered equitable restitution.The case law says that in equitable restitution, the particular funds sought by plaintiff have to be in the possession of the defendant. Plaintiffs here seek all of the fees paid. The village was never in possession of all of the fees,” Englert said. “The judges were interested in both of those criteria, and both of those have to be satisfied. Judge Ringland brought up the possession point in questioning Mr Engel. But my impression is that the former point – the nature of the injury – was more important to the judges.”
Engel said it typically it takes two to four months for the appeals court to render a decision and he is “optimistic” they will find in their favor.
“We are optimistic that the Court of Appeals will find that the village is not immune from having to pay back money collected under an unconstitutional scheme,” Engel told the Journal-News. “An outcome otherwise would mean that the government can collect money through all sorts of unconstitutional actions without having to pay the money back; that makes zero sense.”
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