Attorneys for the speeders caught by New Miami speed cameras are asking the Ohio Supreme Court not to consider the village’s appeal in the $3 million-plus case.
The village filed with the high court in March after both Judge Michael Oster and the 12th District Court of Appeals denied its argument they can’t be sued because they are a government, performing the government function of traffic control.
Josh Engel, one of the speeders’ attorneys, filed a response with the court Tuesday saying this case has no great public interest value since it involves an old speed camera program that was discontinued and sovereign immunity protection for the village doesn’t apply.
Generally speaking governments cannot by sued for performing their legal function, but the speeders contend that immunity only applies when someone sues say after being hit by a snow plow and the other driver wants money for pain and suffering. In this case the old speed camera program was found unconstitutional by now retired Judge Michael Sage, thus they contend New Miami must return the speeding fines it collected.
Engel wrote that just because the case involves money — an estimated $3.5 million with interest — doesn’t mean the statutes providing sovereign immunity govern this case.
“Ohio courts have been consistent in one significant and relevant respect in interpreting R.C. c. 2744: sovereign immunity has no application in actions for equitable relief…,” Engel wrote. “The class’s claim for equitable restitution based on unjust enrichment is one for equitable relief because the plaintiff class seeks to recover the specific funds that were wrongfully obtained by the village under the unconstitutional ordinance.”
The case has been rolling around the courts — this is the second time it has made its way to Columbus — since 2013, when a group of speeders, hit with the $95 traffic fine, sued the village. Earlier this year the 12th District sided with speeders that sovereign immunity isn’t available in this instance.
When he filed with the high court, the village’s outside counsel James Englert wrote this case does have great importance for municipalities who could go bankrupt over lawsuits and thus the court should accept jurisdiction.
“This case presents a critical issue of importance to municipalities across Ohio, in that the opinion of the Twelfth District below has deprived the village of New Miami of sovereign immunity guaranteed by the legislature in a statutory scheme this court has already recognized as necessary for the ‘preservation of the fiscal integrity of political subdivisions,” Englert wrote.
The high court only accepts jurisdiction in roughly seven percent — it was five percent in 2016 with 68 appeals accepted out of 1,381 filed — of the cases filed there annually.
Englert told the Journal-News this case is also critically important, and one the Supreme Court should take, because there is also the question of how much money is a violation of due process worth. Sage, and subsequently Butler County Common Pleas Judge Michael Oster who has the case now, found the speeders rights were trampled under the old ticketing and hearing process.
“I think that’s what this case is all about, it’s all about how you measure the injury for due process,” Englert said, adding that question is ripe for Supreme Court scrutiny.
Engel in his reply also addressed this issue, saying New Miami has “artfully” reframed the issue at hand and even if this issue can be considered, immunity doesn’t apply.
“This is, significantly, an injury separate and distinct from compensation sought for the deprivation of property without due process,” Engel wrote. “Most important, even if the Village had correctly characterized the equitable restitution claim by the class (the village has not), the sovereign immunity statute still would not apply.”
To date, the lawsuit has cost taxpayers around $305,000 in legal fees. New Miami has to pay the legal bills out of pocket because this type of lawsuit isn’t covered under insurance.