New Miami’s attorney James Englert responded on Monday basically saying the issue is moot because new laws require municipal courts to handle speed camera tickets, not the administrative hearing panels that were found so objectionable, “There is no issue for this Court to decide as a matter of great public importance.”
“Appellants’ claim that dismissal of this one-off case is contrary to the ‘interest of justice’ or prone to the ‘stealthy encroachment’ of constitutional rights are euphemisms for what they really seek — reargument,” Englert wrote. “This Court correctly decided that jurisdiction was improvidently accepted, and granting the Motion for Reconsideration would result in merely assessing whether the law ‘was correctly applied to the unique facts of this case.’ Appellants seek nothing more than ‘error correction’ which is not the basis for the Supreme Court’s exercise of discretionary review.”
The crux of the case was whether the village’s now defunct, unmanned speed camera program offered speeders due process, or whether it was unconstitutional and therefore about $3.4 million — including interest — should be repaid to thousands of drivers who were ticketed.
Hamilton resident Doreen Barrow is the lead plaintiff named in the lawsuit that was filed in 2013. She told the Journal-News she never paid the $95 ticket because she went to the hearing to protest the citation and the case was dismissed.
She said her daughter was driving her car and got lost, wound up in New Miami and was caught by a speed camera.
She said she went to a hearing to contest the ticket.
“I went there, they asked me if I had any questions and I said yes, I’d like to talk to the person that issued the ticket,” she recalled. “But that’s not possible. They acted a little bit aggravated, probably because they’ve heard that over and over and over. They said are you saying that you were not driving, which I wasn’t, that’s not what I was saying but I wasn’t driving. I said no I wasn’t driving and they said case dismissed.”
The process New Miami used was flawed, according to two Butler County Common Pleas court judges, because the administrative hearing process did not allow drivers to obtain discovery, subpoena witnesses, or question the people at Maryland-based OptoTraffic who calibrated the cameras and ran the program. The 12th District Court of Appeals decided it was fine, so the speeders took it to the Supreme Court.
So how did Barrow get to be the lead plaintiff in the case? Josh Engel, one of the speeders’ attorneys said they essentially had two groups of plaintiffs, those who actually paid the tickets and a much smaller group like Barrow, they needed as part of the class action to get the judge to issue an injunction stopping the camera program.
“Actually I didn’t want the city to suffer financial devastation because of it, I just wanted the cameras down because I think they’re wrong,” Barrow said. “I think they are unconstitutional. I think if you’re speeding or you run a red light or you have anything like that that’s against the law, I think you have a right to face your accuser.”
She said she isn’t a habitual scofflaw by any means, but if you do something wrong “there are some cases where you can say hey, here’s what happened, and it’s legitimate and you have that right and opportunity to explain, and you can’t in those cases.”
Engel said she got her wish and now he hopes the high court will see things their way in terms of ticket refunds. If the speeders ultimately prevail, Barrow would receive $950 for being a named plaintiff. In his final judgment Butler County Common Pleas Court Judge Michael Oster said Barrow and five other named plaintiffs would receive the stipend “for the initiation of the action, work performed and risks undertaken.”
Barrow said the attorneys did take her deposition in the case.
“I didn’t really do anything for that,” she said about the stipend. “I didn’t earn that I really didn’t.”
Oster also ruled the four attorneys who have fought this case would be paid about $1.2 million and 33% of accrued interest. If they lose they get paid nothing. He also approved a 10-year payback schedule of around $350,000 annually.
Engel told the Journal-News it would be a “long shot” to get reconsideration after the high court dismissed the case Feb. 16. The court heard oral arguments in January and some justices asked whether they shouldn’t have taken the case at all. On a divided vote the high court decided they shouldn’t have.
“We owe it to all of the people who paid fines under an unconstitutional scheme to exhaust all possibilities,” Engel said. “Since this was a 4-3 decision, we are hopeful that one of the justices will see the injustice of the result.”
The court voted 4-to-3 to accept the case for review and by the same margin to dismiss it.
Justice R. Patrick DeWine wrote the dissenting opinion, likening the administrative hearing process to “a game of rock-paper-scissors” that was joined by justices Michael Donnelly and Jennifer Brunner.
“A decision by this court would provide the benefit of a resolution to the live controversy in front of us as to whether the plaintiffs are entitled to a refund of their traffic fines,” DeWine wrote in his dissent. “But more importantly, by reaching a decision on the merits, we could answer the important question whether a government may deprive citizens of property through an administrative scheme that provides as little procedural protection as this one.”
Part of the reason the justices dismissed the case is because the state legislature essentially settled the issue with new laws that make it virtually impossible for municipalities to deploy the speed catchers.
The village was forced to put the brakes on the program in the summer of 2019 when the state transportation bill passed that year, it reduced the amount of state financial aid local jurisdictions receive if they use speed cameras and added a new wrinkle mandating the courts handle speed camera citations as civil proceedings that include court fees and costs that would have exceeded what the village collected in fines.
The village sued the state over the new law and the case has been pending since March 2020.
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