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“The action seeking restitution by plaintiffs ‘is not a civil suit for money damages but rather an action to correct the unjust enrichment of’ New Miami,” Judge Michael Powell wrote for the unanimous court. “As the Ohio Supreme Court plainly held, ‘A suit that seeks the return of specific funds wrongfully collected or held by the state is brought in equity’ and ‘is consequently not barred by sovereign immunity.’”
New Miami’s attorney James Englert has previously maintained it will continue with appeals options available to it — now, that would mean another trip to the Ohio Supreme Court (the high court declined to look at the issue of class certification in July 2016) — but he said this week he isn’t certain whether that will happen.
“That was probably our sense then,” Englert said of the village’s previous position. “But I don’t know the village, whether they’ve changed their mind on it or not.”
The village has 45 days to file an application with the high court.
One of the speeders’ attorneys, Josh Engel, said he hopes the village will stop its fight.
“We hope New Miami decides that it is better to work with us to see that all motorists get repaid,” Engel said. “Instead of continuing to pay hundreds of thousands of dollars to their lawyers continuing to fight a case where they have lost at every stage.”
He said their next move will be to ask Butler County Common Pleas Judge Michael Oster to enter a final judgment in the neighborhood of $3.5 million, which includes interest.
Englert had asked the appeals court to remand the case to Oster so he could enter the final judgment so the appeal would be complete back in May.
“It’s clear the village does not have $3.4 million, it’s just absolutely clear,” Englert said. “It can’t pay that, it would mean the village would go into bankruptcy. And plaintiffs may do something crazy like hold the village in contempt for not paying $3.4 million, which it doesn’t have at this time. There’s a lot of absurdity in all this.”
The appeals court declined to broaden the scope of the appeal. Englert has said the village might have up to 10 years to pay back the money.
The village collected $1.8 million during the 15 months the cameras were in operation, and the third-party vendor Optotraffic was paid $1.2 million to run the program.
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After the previous speed camera program was ruled unconstitutional, the cash-strapped village found a new vendor. Now on any given day, a police officer can be spotted on the main drag through town with a handheld speed camera trained on traffic, at the point where the speed limit drops coming out of Hamilton to 35 mph, past the bridge on U.S. 127. New state laws require jurisdictions to have manned speed traps.
To date, the village has collected $756,588 under the new program and the lawsuit has cost taxpayers $304,804 in legal fees. New Miami has to pay the legal bills out of pocket because this type of lawsuit isn’t covered under insurance.
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