The crux of the case is 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 — must be repaid to about 33,000 traffic scofflaws.
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. Some of their comments appeared to reflect their position that they shouldn’t have taken the case.
The speeders’ attorney Josh Engel was up first during the 30-minute oral argument held over video conference. Fischer began the questioning.
“If we issue an opinion, how many jurisdictions will that affect?” Fischer asked Engel. “What would a decision by this court ... what effect would it have?”
Engel replied no jurisdictions would be impacted at the moment by this particular issue since the legislature enacted financially punitive laws that make operating speed cameras virtually impossible for municipalities. Engel argued a high court decision could impact future decisions by governments.
“A decision by this court would have a reach far beyond just speed cameras,” Engel said. “Because if the court were to say that if a municipality imposes fines low enough, they can create civil administrative procedures that swallow up all the criminal law and be used to increase revenue and not have to provide any due process.”
Over the course of 20 months when the speed cameras were rolling, about 33,000 violation notices went out, but only 113 drivers were found liable and ordered to pay the $95 speeding tickets during administrative hearings.
The process New Miami used was flawed, according to two Butler County Common Pleas court judges, because the camera program does 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.
The village has spent more than $460,000 fighting this case since 2013. The litigation has taken three visits to the 12th District and two visits to the Ohio 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.
OptoTraffic kept 40% or $1.2 million of the $3 million collected from speeders to run the program. The speeders have said since OptoTraffic had a vested interest in the issuance of tickets, drivers have a right to suspect the accuracy of the pole-mounted cameras. Justice Jennifer Brunner appeared to agree.
“Isn’t this kind of akin to letting a bail bondsman be a probation officer?” Brunner asked New Miami’s outside counsel James Englert. “I mean the company has an interest in making money and if the calibration is just a little bit off, it’s going to make more money.”
Englert said there is no evidence to show that OptoTraffic did anything of the sort. But the justice said there was no way to test the theory by questioning OptoTraffic employees without having to spend $285 to file an appeal in Common Pleas Court.
Depending how the court rules, the speed camera issue is basically moot now because when the state passed the transportation bill in 2019, it reduced the amount of state financial aid local jurisdictions receive by the amount they collect annually in speed camera ticket revenue. It also mandated the courts handle speed camera citations as civil proceedings that include court fees and costs. New Miami has sued the state over the legislation but the case has been stalled for sometime, likely pending the high court decision.
Fischer asked Englert “why should we care about this case?” and O’Connor echoed the sentiments, asking if they shouldn’t just decide they shouldn’t have taken the case in the first place, which she referred to as “improvidently allow.”.
“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 additionally “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.”
A few of the other justices asked more procedural questions, such as what happens if the speeders win. Engel said since Oster ruled the full amount of ticket revenues is owed — rather than just the $1.8 million that went into village coffers — and decided the village could take 10 years to repay the drivers, the case would go back to the 12th District because those issues will also be challenged.
He told the Journal-News he believes they made their point.
“I think they appeared to understand there are significant due process problems with the New Miami ordinance,” Engel said. “And they seemed to appreciate that someone who wanted to challenge they were speeding faced really significant obstacles.”
Englert said “we just have to wait and see it’s very hard to read what the justices are thinking and say which way are they leaning with such and such a question, I can’t predict right now what’s going to happen.”
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