Article from: www.thenewspaper.com/news/33/3353.asp

12/17/2010

Cleveland, Ohio Loses a Third Appellate Case
Cleveland, Ohio loses a third appellate court case in four weeks over its photo enforcement program.

In the space of just over four weeks, Cleveland, Ohio has lost three appellate-level cases over its photo enforcement program. On November 10, a federal appeals court panel shot down the city's attempt to block a class action lawsuit by drivers of leased vehicles who received traffic camera ticket (view opinion). On Monday, a state appeals court panel came to the same conclusion, finding it likely that the city unjustly enriched itself with photo tickets (view opinion). Yesterday, a new three-judge panel of the the Ohio Court of Appeals for the Eighth Appellate District threw out a speed camera tickets on the grounds that Cleveland had ignored state law.

In June 2009, Redflex Traffic Systems mailed a speed camera ticket to Reginald Barnes, accusing him of driving 38 MPH in a 25 zone. Barnes appealed and a city-paid hearing officer found Barnes guilty. Barnes appealed to the court of common pleas and an actual trial judge affirmed the hearing officer's decision. Acting as his own attorney, Barnes appealed to the state's second-highest court.

"The common pleas court abused its discretion when the judgment of liability is unconstitutional, illegal, arbitrary, capricious and unsupported by a preponderance of substantial, reliable, and probative evidence on the whole record," Barnes wrote.

The court agreed, but not on all of Barnes' arguments. Under Cleveland's photo enforcement ordinance, an automated ticketing machine could be placed in one of twenty-nine specified locations. Barnes was photographed at a different location. New locations must be announced in a press release and a two-week warning period. Barnes insisted the plain language of the ordinance applied to mobile camera systems as well.

"We agree with the city that it would be absurd to interpret the statute so as to limit the location of the mobile camera units to the 29 locations listed in the ordinance," Judge Larry A. Jones wrote. "Any other result would render mobile speed units the same as fixed locations; a result certainly not intended by city council... It would be impractical to require the prior publication of the location of automated traffic enforcement cameras in mobile units."

The court left open the possibility that the warning period requirement could apply, but it is up to the ticket recipient to prove no such notice was given. The court agreed fully with Barnes that Cleveland failed to follow the ordinance requiring warning signs posted near ticketing cameras.

"We find the plain words of the statute require the posting of signs for all automated traffic enforcement camera systems, including those placed in mobile units," Jones wrote. "To find to the contrary would create two classes of citizens similarly situated and treat them unequally: those ordinary observant motorists that received no notice that they are approaching an area where a mobile automated camera is monitoring for red light or speed violators and those ordinary observant motorists that received notice that they are approaching an area where a fixed or stationary automated camera is monitoring for red light or speed violators."

To save the city from refunding millions of dollars worth of citations collected, the court specified that the ruling only applies to future and pending cases.

A copy of the decision is available in a 45k PDF file at the source link below.

Source: Cleveland Parking Violations v. Barnes (Court of Appeals, State of Ohio, 12/16/2010)

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