The high court heard oral arguments last month and some justices asked whether they shouldn’t have taken the case at all, which Chief Justice Maureen O’Connor referred to as “improvidently allow.” They decided on Wednesday they shouldn’t have.
During the argument she asked New Miami’s outside counsel James Englert if they should drop it.
“Procedurally the Court of Appeals has agreed with you, so the question is if this has no far-reaching ramifications, not great general public interest, (the new law) takes care of the problem, would this be an opportunity for us to improvidently allow this case,” O’Connor asked.
Englert said “the court does not need to rule on this case because there is a large body of Ohio law, Ohio cases are all on the side of the village here.”
The high court accepts about 6% of discretionary appeals annually and they took the case by a vote of 4 to 3 with Chief Justice Maureen O’Connor and justices Patrick Fischer and R. Patrick DeWine dissenting. The court again voted 4 to 3 to dismiss the case, this time with O’Connor, Fischer and justices Sharon Kennedy and Melody Stewart in the majority writing, “This cause is dismissed as having been improvidently accepted.”
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.”
The process New Miami used was flawed, according to two Butler County Common Pleas court judges, because the camera program 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.
“Obviously I’m happy; I think the Supreme Court made the right decision,” Village Solicitor Dennis Adams told the Journal-News. “The village is glad to have this ordeal finally over with.”
Village taxpayers have been footing the legal fee bill because insurance would not cover it. The village has spent $468,538 fighting this case since 2013, but the village hasn’t received invoices for January or February yet. The litigation has taken three visits to the 12th District and two visits to the Supreme Court, where jurisdiction was denied. New Miami challenged the lower court’s rulings on class action status twice and a sovereign immunity issue. Until Common Pleas Court Judge Michael Oster issued his final judgment, the village could not appeal the entire case.
Englert told the Journal-News he is glad the case is finally over and wished it hadn’t taken this long. He was not surprised the justices dismissed it.
“This decision that the appeal was improvidently granted simply says that there was no general or great public interest,” Englert said. “I think that it turned upon the fact this was a one-off thing effecting only the village of New Miami. Because under the current law any determinations of civil liability go directly to the municipal court so there aren’t these administrative hearings.”
Josh Engel, one of the plaintiffs’ attorneys, said it would be a long shot but they could ask the high court to reconsider. The decision hasn’t been made. He told the justices the case was very important because if they ruled for the village it would send a signal to municipalities they have free reign to create unconstitutional programs to line their pockets. He maintains that position.
“We are extremely disappointed for the 30,000-plus motorists who paid fines under a scheme that a significant number of judges believe was unconstitutional...,” Engel said. “I just think it’s disconcerting, because they’ve now given a roadmap to villages like New Miami to institute a scheme that’s unconstitutional and then if you then change it or drop it before you get to the Supreme Court, the Supreme Court may let you keep all the money. That’s not justice.”
Engel was joined on the case by Mike Allen, Paul DeMarco and Charlie H. Rittgers. They started out with two clients from Butler County and two from Cincinnati and it grew into a class action. Unlike Englert, those attorney have worked more than a thousand hours for free since they lost. Had they won they were asking for 33% of the $3 million-plus judgment, or $1.1 million.
“We do civil rights work because it’s the right thing to do not because we expect to get rich,” Engel said. “None of the lawyers were going to get rich in this case. We thought this was a wrong that needed to be addressed.”
There were squabbles over everything in the case, from the aforementioned plaintiffs’ legal fees to how much was actually owed to speeders after the Butler County Common Pleas judges, retired Judge Michael Sage and Oster found the stationary speed catchers unconstitutional.
The village contracted with Optotraffic to run the speed camera program, and for that service, the Maryland traffic camera business was paid $1.2 million, or 40 percent of the total fine collection amount. So the final figure the speeders wanted to collect was $3 million plus about $400,000 interest.
The village said it should only have to repay what actually went into village coffers. Englert argued early on that only the drivers who received a notice of liability, requested a hearing and were found liable to pay the fine deserved their money back, so only $10,728 was owed. Oster ruled they were on the hook for the whole amount but the village had 10 years to repay the tickets.
Had the village lost the case, Engel said they likely would have appealed the 10-year repayment plan and the amount of interest because that amount has been growing as time has gone on.
During the protracted litigation, the speeders’ attorneys tried some novel legal maneuvers, like trying to garnish proceeds of the speed camera program when it was restarted and requiring appointment of a financial watchdog over the village so they didn’t squander the money owed speeders.
The village rebooted the speed camera program with handheld speed catchers in January 2016, by hiring Blue Line Solutions of Athens, Tenn. After it had been running awhile the speeders’ attorneys accused the village of perpetrating a fraud — which state law says has to be an element to garnish — by moving the money out of state, beyond control of the court and reach of the people suing.
They asked Oster to garnish fines the village was collecting from the rebooted program. Oster Jr. issued a ruling saying garnishment is an “extraordinary remedy” and he found no evidence the village was trying to defraud speeders.
The village was forced to put the brakes on the program in the summer of 2019 after the state legislature passed punitive laws that make it virtually impossible for municipalities to run the programs. 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.
The village sued the state over the new law and asked Common Pleas Court Judge Greg Howard for a temporary restraining order, and preliminary and permanent injunctions. He argued the new laws violate home rule rights to enforce traffic laws. Howard denied the TRO.
The state filed a motion to dismiss, which Howard denied, and the case has been pending since March 2020.
State Rep. Bill Seitz, the architect of the new law, said this high court decision will have no bearing on the lawsuits challenging his bill.
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