Parma v. Demsey ( 2011 )


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  • [Cite as Parma v. Demsey, 2011-Ohio-6624.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96351
    CITY OF PARMA
    PLAINTIFF-APPELLEE
    vs.
    KENNETH DEMSEY
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Civil Appeal from the
    Cuyahoga County Common Pleas Court
    Case No. CV-723874
    BEFORE: E. Gallagher, J., Boyle, P.J., S. Gallagher, J.
    RELEASED AND JOURNALIZED:                  December 22, 2011
    ATTORNEY FOR APPELLANT
    2
    Robert Troll Lynch
    Lynch Legal Services
    26300 Seville Drive
    Suite 104
    Beachwood, Ohio 44122
    ATTORNEYS FOR APPELLEE
    Timothy G. Dobeck
    Law Director/Chief Prosecutor
    Milos Veljkovic
    Assistant Law Director
    Michelle L. Conrad
    Staff Attorney
    City of Parma
    6611 Ridge Road
    Parma, Ohio 44129
    EILEEN A. GALLAGHER, J.:
    {¶ 1} Kenneth Demsey appeals from the decision of the Cuyahoga County Court
    of Common Pleas, affirming his administrative appeal of the decision of the Parma, Ohio
    Photo Enforcement Program hearing officer. Demsey argues that the trial court erred
    when it failed to properly recognize and apply the Home Rule Amendment to the issue of
    traffic camera citations. For the following reasons, we affirm the decision of the trial
    court.
    {¶ 2} In 2009, Parma City Council enacted Parma Codified Ordinances 313.035,
    which created an automated school zone enforcement program. The program enacted
    3
    civil penalties for violations of the maximum school zone speed limit and also contained
    an administrative appeal process for those who wished to contest their notice of
    violation.
    {¶ 3} On January 29, 2010, Officer Kevin Stasiak of the Parma Police
    Department operated the mobile automated enforcement camera unit in the area around
    Holy Family Grade School, 7367 York Road. At 2:47 p.m., the automated enforcement
    system recorded Demsey traveling 35 m.p.h. in a 20 m.p.h. school zone through both
    video and still photographs.
    {¶ 4} In accordance with Parma Codified Ordinances 313.035, Officer Stasiak
    reviewed Demsey’s violation, which included the photographic and video evidence, and
    issued Demsey a notice of liability for speeding in a school zone. In addition to the
    violation notice, Demsey was provided with a payment coupon, an affidavit form for
    Demsey’s use if he wished to aver that he was not driving the vehicle at the time of the
    violation, and a hearing request form. These three options are mailed to each person
    that violates the speed limit. P.C.O. 313.035.
    {¶ 5} On February 24, 2010, Demsey requested a hearing and on March 11,
    2010, a hearing officer for the Parma Photo Enforcement Program conducted the
    hearing.     Prior to the commencement of the hearing, the hearing officer read the
    following general statement to all individuals scheduled to appear:
    “You are here because you have requested a hearing to review the facts
    4
    surrounding the Notice of Liability you received under Parma’s Photo
    Enforcement Program. The Notice was sent because a vehicle driven by you or
    registered under your name was found to be traveling at a speed in excess of the
    20 mph speed limit for a school zone.
    {¶ 6} “This is a civil matter and not criminal. If you are found liable, you will
    forfeit the bond that you have deposited with the Program. However, this finding will
    not be sent to the State of Ohio, Bureau of Motor Vehicles, and will not result in points
    being added to your driving record. In addition, your insurance company will not be
    notified of this violation or finding of liability.”
    {¶ 7} The hearing officer afforded Demsey the opportunity to speak on his own
    behalf. Demsey stated that he was a “real” radar technician and asked the city of Parma
    for proof of permission, granted by Jesus Christ to the City to set up the photo
    enforcement vehicle on Church property.                Demsey argued that “without god’s
    permission, the City had no right to be there and the ticket is void.”
    {¶ 8} Next, the hearing officer reviewed the video footage of Demsey’s vehicle
    and the documents supplied by the city of Parma, which included the following: a copy
    of the original violation notice, original written hearing request, copy of the notice to
    appear, the Court Scattergram, as well as the deployment form filled out by Officer
    Stasiak. Additionally, the hearing officer afforded Demsey the opportunity to review a
    copy of the Statement of Technology that explained the reliability and operating nature
    of the Redflex Technology Equipment.
    5
    {¶ 9} At the conclusion of the hearing, the hearing officer found Demsey liable
    for the speeding violation. The hearing officer notified Demsey of his decision both
    orally and in writing.
    {¶ 10} Demsey appealed this administrative decision to the Cuyahoga County
    Court of Common Pleas on April 12, 2010. The trial court established a briefing
    schedule and on January 4, 2011, the trial court affirmed the hearing officer’s opinion,
    concluding:
    “The Court having reviewed the entire record and the briefs of the
    Appellant-Defendant and the Appellee-Plaintiff, the court affirms the order of the
    hearing officer of the Parma, Ohio Photo Enforcement Program. This Court
    finds said decision and order to be constitutional, supported by a preponderance
    of substantial, reliable and probative evidence, and further, that it is not illegal,
    arbitrary, capricious, or unreasonable.”
    {¶ 11} Demsey appeals, raising a sole assignment of error:
    “The trial court below erred to the prejudice of the Petitioner/Appellant in that the
    trial court failed to properly recognize and apply the ‘home-rule’ concept to the
    issue of traffic cameras.”
    {¶ 12} We find no merit to this assigned error.
    {¶ 13} Construing the language of R.C. 2506.04, Ohio courts have distinguished
    the standard of review to be applied by common pleas courts and courts of appeals in
    R.C. Chapter 2506 administrative appeals.        The common pleas court considers the
    “whole record,” including any new or additional evidence admitted under R.C. 2506.03,
    and determines whether the administrative order is unconstitutional, illegal, arbitrary,
    6
    capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
    and probative evidence. See Smith v. Granville Twp. Bd. of Trustees (1998), 81 Ohio
    St.3d 608, 612, 
    693 N.E.2d 219
    , citing Dudukovich v. Lorain Metro. Hous. Auth. (1979),
    
    58 Ohio St. 2d 202
    , 206-207, 
    389 N.E.2d 1113
    .
    {¶ 14} The standard of review to be applied by the court of appeals in an R.C.
    2506.04 appeal is more limited in scope. Kisil v. Sandusky (1984), 
    12 Ohio St. 3d 30
    ,
    34, 
    465 N.E.2d 848
    . “This statute grants a more limited power to the court of appeals to
    review the judgment of the common pleas court only on ‘questions of law,’ which does
    not include the same extensive power to weigh ‘the preponderance of substantial,
    reliable and probative evidence,’ as is granted to the common pleas court.” 
    Id. at fn.
    4.
    “It is incumbent on the trial court to examine the evidence. Such is not the charge of the
    appellate court. * * * The fact that the court of appeals, or this court, might have
    arrived at a different conclusion than the administrative agency is immaterial. Appellate
    courts must not substitute their judgment for those of an administrative agency or a trial
    court absent the approved criteria for doing so.” Lorain City School Dist. Bd. of Edn. v.
    State Emp. Relations Bd. (1988), 
    40 Ohio St. 3d 257
    , 261, 
    533 N.E.2d 264
    .
    {¶ 15} Although Demsey raised numerous arguments during his administrative
    appeal to the trial court, his appeal to this Court focuses solely on the trial court’s failure
    7
    to apply the Home Rule Amendment to the issue of traffic cameras. 1 As such, our
    analysis of Demsey’s appeal will be so limited.             Further, while Demsey did not
    specifically raise the amendment in his brief before the trial court, he referenced the
    concept tangentially, enough that this court will not deem the issue waived. Having
    considered the entire record on appeal, we must determine whether the trial court abused
    its discretion in determining that the Home Rule Amendment did not bar Parma’s
    codified Ordinances authorizing the use of traffic cameras.
    {¶ 16} Section 3, Article XVIII of the Ohio Constitution provides that
    municipalities are authorized “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.” Ohio courts apply a three-part test
    to evaluate claims that a municipality has exceeded its powers under the Home Rule
    Amendment. “A state statute takes precedence over a local Ordinances when (1) the
    Ordinances is in conflict with the statute, (2) the Ordinances is an exercise of the police
    power, rather than of local self-government, and (3) the statute is a general law.”
    Canton v. State, 
    95 Ohio St. 3d 149
    , 2002-Ohio-2005, 
    766 N.E.2d 963
    , ¶9.
    {¶ 17} In Mendenhall v. Akron, 
    117 Ohio St. 3d 33
    , 2008-Ohio-270, 
    881 N.E.2d 1
            In his reply brief, Demsey argues issues of alleged due process violations in addition to
    his arguments surrounding home rule. The arguments relating to due process are outside
    Demsey’s assigned error raised before this court and as such, are not properly presented to this
    Court in a reply brief. App.R. 16(C). Accordingly, this Court shall disregard the arguments.
    8
    255, the Ohio Supreme Court applied this three-part test to a City of Akron Ordinances
    providing for an automated mobile speed enforcement system used to identify
    speed-limit violators in school zones. In Mendenhall, the court held that “[a]n Ohio
    municipality does not exceed its home-rule authority when it creates an automated
    system for enforcement of traffic laws that imposes civil liability upon violators,
    provided that the municipality does not alter statewide traffic violations.”       
    Id. at syllabus.
    {¶ 18} In upholding Akron’s Ordinances, the court reasoned as follows:
    “Enactment of Akron’s Ordinances is not an exercise of self-government
    but of concurrent police power. The statute governing speed limits is a general
    law because it is a comprehensive statewide enactment, setting forth police
    regulations that apply uniformly to all citizens throughout Ohio. Akron
    Ordinances 461-2005, which provides for implementation of an automated mobile
    speed-enforcement system, does not conflict with state law because it does not
    alter or supersede state law. The Ordinances provides for a complementary
    system of civil enforcement that, rather than decriminalizing behavior, allows for
    the administrative citation of vehicle owners under specific circumstances.
    Akron has acted within its home rule authority granted by the Constitution of
    Ohio.”
    
    Id. {¶ 19}
    The city of Parma’s Ordinances is substantially similar to the Akron
    Ordinances upheld by the Ohio Supreme Court in Mendenhall. Like Akron Ordinances
    461-2005, Parma Codified Ordinances 313.035 creates a system that Parma maintains is
    purely civil in nature. The system provides for the automated traffic enforcement of
    existing traffic laws and does not modify any speed limits set by the state.         The
    9
    Ordinances authorizes the imposition of civil monetary fines when the posted speed limit
    in the targeted enforcement areas has been violated. If a vehicle exceeds the posted
    speed limits, the owner of the vehicle receives a “notice of liability,” which includes
    photographs of the vehicle, the vehicle’s license plate, the date, time, and location of the
    violation, the posted speed limit, the vehicle’s speed at the time of the violation, and the
    amount owed as a civil penalty.         The criminal justice system is not involved in
    penalizing violations of the speed limit captured by an automated camera. Unlike those
    who receive speeding citations from a police officer who has observed the infraction,
    speeders caught by the automated enforcement system do not receive criminal citations,
    are not required to appear in traffic court, and do not have points assessed against their
    driving records.
    {¶ 20} Because we see no substantial difference between the Akron Ordinances
    upheld by the Ohio Supreme Court and Parma Codified Ordinances 315.035, we find the
    reasoning enunciated by the Supreme Court in Mendenhall equally applicable to the
    present case. Accordingly, in conjunction with Mendenhall, we find that Parma did not
    exceed its home-rule authority in creating Ordinances 315.035. Thus, we find no error
    with the trial court’s finding that the hearing officers decision was constitutional.
    {¶ 21} Demsey’s sole assignment of error is overruled.
    {¶ 22} The judgment of the trial court is affirmed.
    It is ordered that appellee recover from appellant costs herein taxed.
    10
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said lower court to carry this
    judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    EILEEN A. GALLAGHER, JUDGE
    MARY J. BOYLE, P.J., CONCURS;
    SEAN C. GALLAGHER, J., CONCURS WITH
    SEPARATE OPINION
    SEAN C. GALLAGHER, J., CONCURRING:
    {¶ 23} I concur fully with the judgment and analysis of the majority. I write
    separately to address concerns about due process and the admission of “technical”
    evidence with no record that it has ever been vetted for reliability.
    {¶ 24} “There is no such thing as a perfect person, a perfect machine, or a perfect
    computer operating system.”2
    {¶ 25} The use of automated technology in society is increasing.     Surprisingly,
    the admission of evidence derived from these new technologies is often unchallenged in
    Ohio courts.      Often, as here, there is a presumption that everything works and is
    2
    State v. Warren and Hayes (June 29, 2011), Athens M.C. Nos. 2011TRC01734 and
    11
    reliable.
    {¶ 26} In this case, Demsey was given a copy of a document titled “Statement of
    Technology” that purports to explain the reliability and operating nature of the Redflex
    Technology equipment that measured his speed.
    {¶ 27} Under Parma Codified Ordinancess 313.035(D)(4), the hearing officer may
    consider, as an affirmative defense, that the automated traffic enforcement camera
    system “was not operating properly.”              Despite this phrase, no standards for
    admissibility or reliability are outlined in the Ordinances.     There is nothing referencing
    source codes for operation, margins of error, calibration (if applicable), radio
    interference (if applicable), weather, or other potential considerations that may affect the
    result.     If the equipment is turned on and gives a result that the operator can explain, the
    motorist is liable.
    {¶ 28} Analogous to municipal governments embracing automated traffic
    enforcement technology is Ohio’s reliance on technology to enforce drunk driving under
    Ohio’s O.V.I. laws. R.C. 4511.19(D)(1)(b) creates a mandatory duty to follow Ohio
    Department of Health regulations for admission of test results involving bodily fluids for
    alcohol levels as outlined under the Ohio Administrative Code.                 Unlike O.V.I.
    enforcement, automated speed technology is not subjected to any independent review
    2011TRC02434 (Grimm, J.)
    12
    prior to implementation. Apparently, in this case no independent judicial review of the
    information contained in the “Statement of Technology” covering the reliability of this
    technology or the equipment occurred.        Further, no administrative agency of the local
    government “vetted” this technology or the equipment to ascertain its reliability.     The
    city of Parma entered into a contract with a private vendor, and inherent in this contract
    is the presumption that the science, the equipment, and the operator are apparently
    infallible.
    {¶ 29} I am not suggesting that a Daubert hearing is required in every automated
    traffic enforcement case. Daubert v. Merrill Dow Pharmaceuticals (1993), 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
    ; Miller v. Bike Athletic Co. (1998), 
    80 Ohio St. 3d 607
    , 
    687 N.E.2d 735
    .       Nor am I ignoring the fact that a vendor may be able to produce
    test results from the manufacturer that trumpet the accuracy and reliability of the device
    in question. Despite this, at some point courts cannot abdicate their responsibility to
    independently determine what evidence is admissible based on some objective standards
    of reliability.
    {¶ 30} Further, Ohio Evidence Rules 104 and 402 address general admissibility
    and relevance questions about evidence.       Specifically, Evid.R. 702 provides even more
    specific guidance.3 At section (C), the rule states:
    3
    State v. Warren and Hayes (June 29, 2011), Athens M.C. Nos. 2011TRC01734 and
    2011TRC02434 (Grimm, J.)
    13
    “To the extent that the testimony reports the result of a procedure,
    test, or experiment, the testimony is reliable only if all of the following
    apply:
    “(1) The theory upon which the procedure, test, or experiment is
    based is objectively verifiable or is validly derived from widely accepted
    knowledge, facts, or principles;
    “(2) The design of the procedure, test, or experiment reliably
    implements the theory;
    “(3) The particular procedure, test, or experiment was conducted in
    a way that will yield an accurate result.”
    {¶ 31} No such judicial or administrative requirements are set for automated
    camera enforcement as used in this case.
    {¶ 32} The Ohio Supreme Court, in a 4-3 decision, in 1984, held that an accused
    did not have a constitutional right to offer expert testimony to challenge the reliability of
    intoxilyzers in general.   State v. Vega (1984), 
    12 Ohio St. 3d 185
    , 
    463 N.E.2d 1303
    .
    Nevertheless, a defendant could still challenge the accuracy of his specific test results.
    See Vega.    In either instance, the admission or denial of such evidence is predicated on
    the requirement that standards are adopted and followed that support reliance on the
    results received from the testing process. No such standards exist in this case.
    {¶ 33} In any event, I concur fully with the majority opinion and discuss
    admissibility and reliability concerns so that they may be more fully explored at a later
    date.
    14
    

Document Info

Docket Number: 96351

Judges: Gallagher

Filed Date: 12/22/2011

Precedential Status: Precedential

Modified Date: 10/30/2014