Cleveland v. Cord ( 2011 )

[Cite as Cleveland v. Cord, 2011-Ohio-4262.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96312
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
DANIEL CORD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-700171
BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: August 25, 2011
ATTORNEY FOR APPELLANT
Jeffrey P. Posner
Jeffrey P. Posner, L.L.C.
3393 Norwood Road
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director
Mark R. Musson
Assistant Director of Law
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114-1077
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Daniel Cord, seeks reversal of the decision of the
common pleas court in the administrative appeal of a civil notice of liability
issued by the city of Cleveland (the “City”) pursuant to its automatic traffic
enforcement ordinance, Cleveland Codified Ordinances (“C.C.O.”) 413.031.
After a thorough review of the record and based on the following law, we
affirm.
{¶ 2} According to a notice issued pursuant to an automated traffic
camera, on May 13, 2009, appellant was traveling 48 miles per hour in a
35-mile-per-hour zone on Chester Avenue in Cleveland, Ohio.
{¶ 3} Appellant was issued a notice of liability on June 9, 2009
informing him of the date, time, and location of his vehicle when the
automated camera system recorded him violating the posted speed limit.
The notice, reviewed by a City police officer, informed appellant of a $100 civil
fine and his right to request a hearing, which he did. A hearing was
conducted on July 9, 2009 before the Cleveland Parking Violations Bureau
(“PVB”).
{¶ 4} At the hearing, appellant attempted to call the police officer who
issued or reviewed the citation, but he was not present. Appellant objected
to the use of the citation as evidence because it was unsworn,
unauthenticated, and no testimony laid a foundation for its admittance or it
accuracy. The hearing officer found that the citation and photographs of
appellant’s car were prima facie evidence of liability and that the rules of
evidence did not apply to administrative hearings. The PVB officer found
appellant liable for the citation.
{¶ 5} Appellant filed for an administrative appeal in the Cuyahoga
County Common Pleas Court pursuant to R.C. 2506.01. On December 20,
2010, after extensive briefing by the parties, the court overruled appellant’s
objections and affirmed the determination of the PVB hearing officer. The
court found that much of appellant’s arguments constituted a facial challenge
to the City’s automatic traffic enforcement ordinance and were not properly
justiciable in an administrative appeal.
{¶ 6} The court also determined that appellant’s due process
arguments stemming from his inability to subpoena witnesses during the
hearing were cured by his ability to augment the record on appeal through
R.C. 2506.03, but that appellant had not taken advantage of this provision
and did not try to properly supplement the record on appeal.1
{¶ 7} Appellant then filed the instant appeal raising four assignments
of error.
Appellant did attach various newspaper articles to his briefs, which the trial court
1
determined were improperly included.
Law and Analysis
“As-applied” Constitutional Challenge
{¶ 8} Appellant first argues that the reviewing court below failed to
address his arguments, which were basically a recitation of the arguments
embodied in his second and third assignments of error.2
{¶ 9} Appeals from administrative proceedings are governed by R.C.
2506.01, et seq. Under these provisions, a party may appeal the decision of an
administrative tribunal to the common pleas court in that jurisdiction. R.C.
2506.01. The common pleas court then “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, capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence.” Cleveland v. Posner, 188 Ohio
App.3d 421, 2010-Ohio-3091, 935 N.E.2d 882, ¶10 (“Posner I”). This court
then reviews that determination for an abuse of discretion.
{¶ 10} Appellant first attacks the validity of evidence used. This court
has previously addressed this argument and held:
Assignments of error: I. “The court below erred in failing to address appellant’s
2
arguments”; II. “The procedure utilized below allowed conviction upon insufficient and improperly
allowed evidence”; and III. “The procedure below violated appellant’s due process rights by providing
for conviction upon improperly allowed evidence without the right to confront actual witnesses and
compel appearance and testimony.”
{¶ 11} “The Ohio Supreme Court has held that administrative agencies
are not bound by the rules of evidence applied in court. Simon v. Lake
Geauga Printing Co. (1982), 69 Ohio St.2d 41, 44, 430 N.E.2d 468. Evidence
that is admissible in administrative hearings is defined as follows: ‘(1)
“Reliable” evidence is dependable; that is, it can be confidently trusted. In
order to be reliable, there must be a reasonable probability that the evidence
is true. (2) “Probative” evidence is evidence that tends to prove the issue in
question; it must be relevant in determining the issue. (3) “Substantial”
evidence is evidence with some weight; it must have importance and value.’
Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571,
589 N.E.2d 1303. Furthermore, hearsay is admissible in administrative
proceedings. Simon, 69 Ohio St.2d at 44, 430 N.E.2d 468.
{¶ 12} “The evidence used against defendant at the administrative
hearing was the notice of liability for speeding, the [Automatic Traffic
Enforcement Camera (“ATEC”)] photographs, and the logbook showing the
ATEC’s calibration. Given the relaxed standards of evidence in
administrative hearings, this evidence is certainly probative and substantial
as to whether defendant was speeding. Cf. HCMC, Inc. v. Ohio Dept. of Job
& Family Servs., 179 Ohio App.3d 707, 2008-Ohio-6223, 903 N.E.2d 660, ¶48
(a state agency audit is admissible and prima facie evidence of what it asserts
in an administrative hearing).” Cleveland v. Posner, Cuyahoga App. No.
95301, 2011-Ohio-1370, ¶27-28 (“Posner II”). This is probative evidence that
appellant was speeding.
{¶ 13} Appellant further mounts certain constitutional challenges that
are not justiciable by this court or the court below. It is clear from the
holding in Posner I that only constitutional claims as they apply to appellant’s
specific case can properly be decided during administrative review. Id. at
¶17. Facial constitutional challenges cannot. It is also clear that so long as
appellant is presented with an opportunity to call witnesses, it does not
matter when this opportunity occurs in order to preserve appellant’s due
process rights. Posner II at ¶30-40.
{¶ 14} Appellants in an administrative review may supplement the
record created in the administrative hearing in narrow circumstances. R.C.
2506.03(A).3 This statute provides, in part, that if appellant was “unable to
present evidence by reason of a lack of the power of subpoena by the officer or
body appealed from[,]” then “the court shall hear the appeal upon the
transcript and additional evidence as may be introduced by any party. At
the hearing, any party may call, as if on cross-examination, any witness who
This statute states: “The hearing of an appeal taken in relation to a final order, adjudication,
3
or decision covered by division (A) of section 2506.01 of the Revised Code shall proceed as in the
trial of a civil action, but the court shall be confined to the transcript filed under section 2506.02 of
the Revised Code unless it appears, on the face of that transcript or by affidavit filed by the appellant,
that one of the following applies[.]”
previously gave testimony in opposition to that party.” R.C. 2506.03(A)(4)
and 2506.03(B).
{¶ 15} The notice of liability was reviewed or issued by a City police
officer with badge number 901. This officer was attesting to its accuracy by
issuing the notice. The hearing officer also stated that the notice was “sworn
by the officer who signs the violation when it’s sent to him.” This equates to
testimony against appellant by this officer. However, this officer was not
available for cross-examination. Appellant attempted to call this officer
while discussing whether or not the notice was sworn. Appellant’s attorney
stated, “[t]hen we call the police officer who is the reviewing police officer for
this.” The hearing officer did not acknowledge appellant’s request, continue
the hearing, or allow appellant to issue a subpoena to compel this officer to
testify. Appellant also testified during the proceeding that he was not given
the ability or opportunity to subpoena witnesses.
{¶ 16} In Posner II, this court remanded to give the appellant the
opportunity to subpoena and call witnesses in order to supplement the record
on review. What distinguishes that case from the present one is that
appellant did not attempt to subpoena witnesses to testify during the
administrative review. Appellant did file a motion for a case management
conference and additional time to conduct discovery, but this motion did not
mention R.C. 2506.03 or demonstrate a right to conduct full discovery under
R.C. 2506.03. The trial court denied appellant’s request noting, “R.C.
2506.03 establishes the procedure for admitting additional evidence into the
record and the court will hold a hearing upon such if necessary.” The trial
court was directing appellant to introduce additional evidence and witnesses
based on R.C. 2506.03, but appellant did not take that direction. Appellant
did nothing further to attempt to supplement the record other than attaching
various items to his brief.
{¶ 17} In Posner v. Cleveland, Cuyahoga App. No. 95997,
2011-Ohio-3071, ¶15, fn. 1 (“Posner III”), we rejected the same due process
arguments because “Posner never established a record on whether he was
prohibited from calling witnesses at the PVB hearing, and there is no
transcript available for our review.” This court went on to hold that Posner’s
ability to call witnesses pursuant to R.C. 2506.03 preserved his due process
rights.
{¶ 18} While the City argues that due process does not require that
parties be afforded the right to call or cross-examine witnesses against them
in administrative hearings where they are only subject to minimal fines, R.C.
2506.03 bestows a right to do just that during administrative review.
Therefore, the federal cases cited by the City do not properly address the
issues before this court. The City also argues that PVB hearing officers
“readily grant violators continuances to allow for preparation to contest a
Notice of Liability[,]” and that a public records request is an adequate avenue
to obtain much of the information appellant seeks. However, a records
request would not allow appellant to cross-examine the officer who reviewed
the notice. Further, the hearing officer did not continue the hearing to give
appellant the opportunity to call this officer or to file a public records request,
as the city intimates.
{¶ 19} Appellant’s due process rights were not frustrated because R.C.
2506.03 left an avenue open for him to call witnesses and present additional
evidence that he was prevented from utilizing during the PVB hearing.
Appellant never attempted to issue subpoenas during the administrative
review hearing. As applied to appellant, C.C.O. 413.031 is not
unconstitutional. As explained above, appellant’s arguments challenging the
ordinance on its face will not be addressed.
Jurisdiction of the PVB
{¶ 20} In his fourth assignment of error, appellant argues that “the trial
court erred in failing to reverse the decision of the parking violations bureau
for lack of jurisdiction.” This argument is based on a perceived conflict
between the duties exercised by the PVB in reviewing the notices of violation
and affirming the issuance of civil fines for violations of traffic laws and the
enabling legislation for such a body in R.C. 4521.04 and 4521.05. However,
this is a facial constitutional challenge of the ordinance establishing the
duties of the PVB and is unsuitable for determination in an administrative
appeal. Posner III at ¶17, citing Posner II at ¶16. Therefore, appellant’s
final assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR