Plaintiff's Trial Memorandum
Here is the trial memorandum filed by Plaintiff on February 23, 2006:
IN THE COURT OF COMMON PLEAS JEFFERSON COUNTY, OHIO
Case No. 05 CV 524
Judge David E. Henderson
APRIL STERN et al.,
Plaintiffs
-vs-
THE CITY OF STEUBENVILLE, OHIO
and TRAFFIPAX, INC.
Defendants
PLAINTIFF'S TRIAL MEMORANDUM
I. The City Failed to Comply with its Own Ordinance.
Applicable Law: The word "shall" in a statute is construed to be mandatory when the right of the public or of third persons depends on the performance of a duty to which it refers. The word "must" is considered even stronger than "shall" in requiring mandatory performance. Mandatory provisions must be strictly complied with, and performed in the manner and within the time prescribed by the statute. 85 O. Jur. 3d Statutes, §§ 18, 27. The same rules apply to the construction of municipal ordinances. Flury v. Central Pub. House (1928), 118 Ohio St. 154.
A. Failure to Publish Notice of Locations
Steubenville Ordinance 307.02(b)(1) requires that, for at least 14 consecutive days prior to installation of automated traffic enforcement at an intersection or street location, the Police Department must publish notice in a local newspaper of general circulation that the intersection or street location will be subject to automated enforcement.
The notice published by Traffipax merely advised that a photo speed enforcement program would be launched in Steubenville on September 12, 2005. It did not specify any intersection or street location. The notice, therefore, did not comply with the mandatory notice requirements of the ordinance.
B. Failure to Erect Conspicuous Signs
Steubenville Ordinance 307.02(b)(2) requires that the Police Department shall erect a sign in a conspicuous location giving notice that automated enforcement is being used to monitor traffic "prior to the date" on which enforcement begins at the intersection or street location.
According to the testimony of Sergeant Sciarra, the police did not erect a sign at any street location being monitored prior to the date the speed camera was deployed at that location, but erected the sign on the same date they set up the speed camera equipment. Nor was the sign in a conspicuous location, according to many drivers who received citations.
C. Failure to Maintain a List of Locations Available to the Public.
Steubenville Ordinance 307.02(a)(2) requires that the Police Department "shall maintain a list available to the public" of the intersections and streets being monitored by automated traffic enforcement systems.
There is no such list. The document provided to the plaintiff by the City in response to a discovery request, labeled "Streets Subject to Being Monitored By Automated Traffic Enforcement," lists every street in Steubenville. This document not only fails to satisfy the requirement set forth in section 307.02(a)(2) but, in fact, is virtually useless for any purpose.
RESULT: Because the City failed to comply with the mandatory provisions of its own law, all of the speeding citations issued to date are void.
II. The Ordinance is Unconstitutional on its Face.
A. The Ordinance Violates Article XVIII § 3 of the Ohio Constitution.
Article XVIII § 3 of the Ohio Constitution provides that:
"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are NOT IN CONFLICT WITH GENERAL LAWS." [Emphasis added.]
Ohio's laws regulating vehicle speeds (formerly GC § 12603, now O.R.C. § 4511.21) are general laws, and any municipal ordinance that conflicts with them is unconstitutional. Schneiderman v. Sesanstein (1929), 121 Ohio St. 80.
(1) Conflict Exists When a Municipal Ordinance Prohibits That Which State Law Permits
One test to determine whether an ordinance conflicts with a general law is if the ordinance prohibits something that state law allows, or vice versa. Struthers v. Sokol (1923), 108 Ohio St. 263. Driving faster than the speed limits set forth in O.R.C. § 4511.21(B) is only prima-facie unlawful, and if driving above that speed is not unreasonable "having due regard to the traffic, surface, and width of the street or highway and other conditions" existing at the time, then it is not a speeding violation under the basic rule set forth in subdivision (A) of the statute. Tenhunfeld v. Parkway Taxi Cab Co. (1957), 105 Ohio App. 425.
But under Steubenville's Automated Enforcement ordinance, 307.02(1)(a), if the camera records a vehicle exceeding the posted speed limit, then the vehicle owner or driver is strictly liable, regardless of the reasonableness of the speed under the conditions existing at the time. This is clearly unconstitutional, for the ordinance prohibits something that is not necessarily prohibited under state law. It also violates the express language of O.R.C. § 4511.21(J), which provides that "local authorities shall not modify or alter the basic rule set forth in division (A) of this section."
(2) Conflict Exists When a Municipal Ordinance Changes the Class of an Offense
The Ohio Supreme Court has held that where an ordinance only changes the penalty for an offense, it is not in conflict with a state law that imposes a different penalty for the same conduct, but if an ordinance changes the degree of an offense from a misdemeanor to a felony, it violates Ohio's constitution. City of Niles v. Howard (1984), 12 Ohio St. 3d 162. And the Seventh District Court of Appeals has held that when a municipal ordinance changes conduct that is a civil offense under state law to a criminal offense under city law, it is likewise unconstitutional. State v. Rosa (1998), 128 Ohio App. 3d 556.
The City of Steubenville, by changing the classification of a speeding violation from a criminal offense under state law to a civil violation under local law, has violated Ohio's constitution.
(3) Steubenville's Ordinance Violates Ohio's Uniform Traffic Laws.
O.R.C. § 4511.06 expressly prohibits local governments from enacting any law in conflict with the uniform traffic laws contained in §§ 4511.01 to 4511.78, with certain limited exceptions: (1) it allows those local laws listed in § 4511.07 (none of which gives Steubenville the authority to enact its Automated Traffic Enforcement ordinance), and (2) it authorizes local governments to enact laws making parking violations civil rather than criminal offenses in accordance with O.R.C. Chapter 4521. There is no enabling statute allowing Ohio cities to change speeding and red light violations from criminal to civil offenses.
If, as defendants contend, the City does not need an enabling statute to change speeding and red light violations from criminal to civil offenses, why did the legislature have to pass the enabling statutes contained in Chapter 4521 to allow cities to make parking violations civil offenses? The answer should be obvious - cities cannot pass laws that change traffic offenses from criminal to civil unless there is enabling legislation by the state allowing them to do so.
B. The Ordinance Violates Procedural Due Process Guaranteed Under the Ohio and U.S. Constitutions.
The only "hearing" provided by the Automated Traffic Enforcement ordinance is conducted by a police officer whose department is the very agency that issued the citation. His decision is final, and there is no right to further review. Due process of law is violated when there is no provision for judicial review of a decision made by an administrative body affecting the rights of persons or property. Stanton v. Tax Commissioner (1926), 114 Ohio St. 658.
A municipal ordinance which gives the employees of a city regulatory department the right to both investigate and adjudicate whether the ordinance was violated, with no further right of review by a court of law, violates due process. Burke v. Fought (1978), 64 Ohio App. 2d 50.
The U.S. Supreme Court has recognized that it is not constitutionally permissible to allow a hearing procedure in which the factfinder has an "incentive to convict." Ward v. City of Monroeville (1972), 409 U.S. 57. In Ward, the Court held that a "situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial," is a denial of due process. Id. at 60.
Even in an administrative proceeding, due process still requires a fair opportunity to be heard, and a fair hearing includes the right to produce testimony, the right to cross examine witnesses, and the right to be informed of the evidentiary facts on which the tribunal bases its decision. Cicerella, Inc. v. Jerusalem Township Board of Zoning Appeals (1978), 59 Ohio App. 2d 31 at 38.
The Steubenville ordinance, however, provides none of these basic safeguards. The police do not have to produce any evidence other than a photograph, and no witness is required to authenticate what that photograph purports to show. No evidence is required to establish that the speed-measuring instrument was properly calibrated, or even that the device is reliable or accurate. A photograph cannot authenticate itself. One cannot effectively cross-examine a machine.
While an administrative tribunal many not have to follow particular rules of evidence, it still has to hear evidence. Fundamental due process requires that a decision be based on facts, not conjecture. A speed reading obtained from a metal box cannot be competent evidence of speed without proof that the metal box can accurately measure speed. But in Steubenville, the hearing officer's only evidence that the Traffipax radar device works is that the folks at Traffipax told him it works.
In Ohio, the construction and accuracy of a new radar device must be established by expert testimony at least once, in some evidentiary forum, somewhere, before other tribunals can take judicial notice of its accuracy. Cincinnati v. Levine (2004), 158 Ohio App.3d 657. The reliability and accuracy of the radar device used by Traffipax has never been addressed by expert testimony in any tribunal.
The due process defects in the Steubenville ordinance are strikingly clear when compared to the procedures required for prosecuting civil parking offenses under O.R.C. Chapter 4521. Hearings for parking violations must be conducted by an administrative body established by a court having territorial jurisdiction. O.R.C. 4521.04(A)(1). The hearing officer must be either an attorney or a former law enforcement officer. O.R.C. 4521.05(A). All testimony must be under oath; the city has the burden of proving the violation; and the person charged with the violation has the right to demand the appearance of the law enforcement officer who issued the parking ticket. O.R.C. 4521.08(A). Finally, the hearing officer's decision can be appealed to the municipal court. O.R.C. 4521.08(D). All of these procedural safeguards helped to save a Columbus parking ordinance from a due process challenge in Gardner v. Columbus, 841 F.2d 1272 (6th Cir. 1988). None of these protections exist under the Steubenville ordinance.
III. Appropriate Remedies
A. Injunctive and Declaratory Relief
If the court finds that the Steubenville ordinance is invalid under any one of the grounds set forth above, then the court should declare that the ordinance, at least in its present form, is either invalid, unconstitutional, or both. In addition, the court should grant a permanent injunction against the city's further enforcement of any pending speeding citations. This would be the appropriate remedy for all persons who have not paid their tickets (Subclass A), as authorized by Civil Rule 23(B)(2).
B. Relief for Those Who Have Already Paid
In the event the court determines that the Steubenville ordinance is invalid, then those members of the class who have already paid their tickets (Subclass B) are entitled, at the very least, to restitution.
The "voluntary payment doctrine" asserted by Traffipax was never intended to allow persons or governments to keep money or property obtained through undue advantage from persons who had little practical choice under the circumstances. Peters, Ricker & Co. v. Marietta & Cincinnati Rd. Co. (1884), 42 Ohio St. 275. In Peters, the Ohio Supreme Court held that payments of illegal charges, made under threat of further penalties if not timely paid, are not voluntary, even where resort to legal action is possible.
The voluntary payment doctrine was an equitable doctrine. It cannot be applied to deny restitution to a citizen who, in good faith, pays an illegal fine he is led to believe is valid by the very municipality responsible for passing the illegal ordinance in the first place. Unjust enrichment, a far more appropriate equitable doctrine under these circumstances, requires otherwise.
An unconstitutional law is void from the date of enactment - not merely from the time it is judicially declared unconstitutional. It is a nullity, as inoperative as if it had never been enacted. 16 Ohio Jur. 3d, Constitutional Law, § 172. Allowing both the City and Traffipax to keep money they collected under a law that never validly existed is not equitable. It would not only be a deprivation of property without due process, it would amount to a deprivation of property without any process at all.
C. Notice to Class Members
Civil Rule 23 does not require notice to members of Subclass A, since there is no rational likelihood that persons facing prosecution for speeding would object to a judgment enjoining further prosecution. See, for example, Monroe v. Monroe (1972), 32 Ohio Misc. 129 at 130 ("This court finds the notice requirements of Rule 23(c) inapposite since it is most implausible that any number of the class defined would urge anything other than the invalidation of his statutory disability.")
While it is also unlikely that persons in Subclass B would object to restitution, if so ordered, they may wish to opt out and assert claims for damages beyond restitution, or may object to any provision the court might make regarding counsel fees. Whether notice to them is even necessary will depend, of course, on whether the court first determines that the Steubenville ordinance is invalid. If the court makes such a determination, then any decision as to whether the persons in Subclass B are entitled to restitution should be deferred until the court decides what manner of notice is appropriate for them under the provisions of Civil Rule 23(C)(2) and 23(D).
STERN, STERN & STERN CO., LPA
Gary M. Stern (#0001399)
108 S. Fourth Street
Steubenville, OH 43952
Trial Attorney for Plaintiff
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