Barrow v. New Miami

[Cite as Barrow v. New Miami, 2016-Ohio-340.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
DOREEN BARROW, et al., :
Plaintiffs-Appellees, : CASE NO. CA2015-03-043
: OPINION
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:
VILLAGE OF NEW MIAMI, et al., :
Defendants-Appellants. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2013-07-2047
Rittgers & Rittgers, Charles H. Rittgers, 12 East Warren Street, Lebanon, Ohio 45036;
Markovits, Stock & DeMarco, LLC, Paul M. DeMarco, 119 East Court Street, Suite 530,
Cincinnati, Ohio 45202; and Michael K. Allen & Associates, Michael K. Allen, Joshua Adam
Engel, 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for plaintiffs-appellees,
Doreen Barrow, Diane Woods, Michelle Johnson and Don Muirheid
Rendigs, Fry, Kiely & Dennis, LLP, Wilson G. Weisenfelder, Jr., James J. Englert, Laura I.
Hillerich, 600 Vine Street, Suite 2650, Cincinnati, Ohio 45202, for defendant-appellant, village
of New Miami
HENDRICKSON, J.
{¶ 1} Defendant-appellant, the village of New Miami, appeals a decision of the Butler
County Court of Common Pleas certifying a class action challenging the constitutionality of a
municipal ordinance. For the reasons outlined below, we affirm.
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I. INTRODUCTION
A. Facts
{¶ 2} New Miami operates a civil enforcement program to deter motorists from
exceeding the speed limit at several intersections in its village. The Automated Speed
Enforcement Program (ASEP) was instituted in July 2012 with the adoption of Ordinance
1917. If a vehicle exceeds the posted speed limit, a camera photographs the license plate
and the registered owner of the vehicle receives a Notice of Liability in the mail.
{¶ 3} Pursuant to the Notice of Liability, motorists may pay the penalty and thereby
waive the right to a hearing. Alternatively, motorists may request a hearing within 30 days
from the date of the violation. The hearing is conducted by a hearing officer appointed by the
mayor of New Miami. As outlined in the notice, motorists may proffer one of four affirmative
defenses at the hearing: the vehicle was stolen, someone else was driving the vehicle, the
vehicle was loaned to someone, or the license plate was not clearly discernable in the
photograph.
{¶ 4} A motorist may appeal the result of the hearing to the Butler County Court of
Common Pleas. Motorists who neglect to pay the penalty are subject to a late fee and are
reported to a collection agency, and the judgment against them is conveyed to credit
reporting agencies.
B. Procedure
{¶ 5} In July 2013, six named plaintiffs (hereinafter "appellees") filed suit against New
Miami challenging the Ordinance. This was followed by an amended complaint which
advanced four causes of action. Count I sought a declaration that the Ordinance divested
the municipal court of jurisdiction over traffic violations in contravention of the Ohio
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Constitution.1 Count II sought a declaration that the Ordinance violated appellees' due
process rights. Count III prayed for injunctive relief prohibiting continued enforcement of the
allegedly unconstitutional Ordinance. Finally, Count IV sought equitable restitution for any
penalties or fees paid by appellees pursuant to the allegedly unconstitutional Ordinance.
{¶ 6} In March 2014, the trial court granted summary judgment to appellees on
Counts I, II, and III.2 The court also certified a class comprised of all persons who had
received Notices of Liability under New Miami's ASEP. New Miami appealed the certification
decision.
{¶ 7} In the first appeal, this court reversed and remanded for the trial court to clarify
its Civ.R. 23 findings in support of certification. Barrow v. New Miami, 12th Dist. Butler No.
CA2014-04-092, 2014-Ohio-5743 (Barrow I). The trial court issued a decision complying with
our remand instructions in February 2015. This appeal followed.
II. ANALYSIS
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED IN CERTIFYING A CLASS ACTION UNDER
CIVIL RULE 23(B)(2) WITH TWO SUBCLASSES, AND IN APPOINTING PLAINTIFFS
WOODS AND JOHNSON AS [SUB]CLASS 1 REPRESENTATIVES AND PLAINTIFF
MCGUIRE AS SUBCLASS 2 REPRESENTATIVE.
{¶ 10} New Miami's sole assignment of error challenges the trial court's decision to
1. Appellees' amended complaint purported to invoke "R.C. §2720.02" as a basis for declaratory relief. No such
section exists. Declaratory judgment actions are governed by Chapter 2721 of the Ohio Revised Code. We
presume this was merely a typographical error in the complaint, given the fact that appellees clearly titled Count I
"Declaratory Judgment – Infringement on Jurisdiction of the Mayor's Court and the Municipal Court" and Count II
"Declaratory Judgment – Violation of Ohio Constitution." Moreover, the Revised Code section cited by appellees
was only off by one number.
2. Appellees filed their motions for partial summary judgment and class certification simultaneously. The trial
court's entry granting partial summary judgment preceded its entry granting class certification by about three
weeks. The wisdom and effect of determining liability before sanctioning a class is not before this court, but we
note the procedural anomaly.
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certify the class. New Miami argues that the trial court failed to consider the threshold issue
of whether the class representatives possessed jurisdictional standing to file suit. New Miami
insists that the trial court erroneously equated the Civ.R. 23 class membership prerequisite
with jurisdictional standing. Alternatively, New Miami urges that appellees failed to satisfy the
requirements of Civ.R. 23.
A. Standing to Sue Versus Standing to Represent the Class
{¶ 11} Part of the confusion in this case arises from the commingling of terminology for
two legal concepts which are, in fact, distinct: standing to sue and standing to serve as a
class representative. A brief review of the relevant law should provide clarity.
{¶ 12} Subject matter jurisdiction refers to a court's power to hear and decide a case
on the merits. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75, 1998-Ohio-275.
Jurisdiction and justiciability are threshold considerations in every case, without exception.
Cf. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197 (1975). Even where a court possesses
subject matter jurisdiction over a matter, it shall refuse to hear a case that is not justiciable.
Id. See also ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, ¶ 11
("Article IV, Section 4[B] provides that the courts of common pleas 'shall have such original
jurisdiction over all justiciable matters'"). (Emphasis in original.) Examples of issues affecting
justiciability are ripeness, mootness, and standing.
{¶ 13} Individual standing to sue is an indispensable requirement that must be present
at the inception of every lawsuit, including class actions. Woods v. Oak Hill Community Med.
Ctr., 134 Ohio App.3d 261, 269 (4th Dist.1999). There is no separate "class action standing"
requirement. 1 Rubenstein, Newberg on Class Actions, Section 2.1, at 59 (5th Ed.2011).
Rather, once individual standing is met, plaintiffs must satisfy the class representation
prerequisites contained in Civ.R. 23(A) and the action must fall into one of the categories
delineated in Civ.R. 23(B). Id.-4-
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{¶ 14} What New Miami deems "jurisdictional standing" contemplates justiciability,
which effectively acts as a limitation upon jurisdiction. Warth at 498. Regardless of
nomenclature, New Miami correctly asserts that all class members, including the
representatives, must satisfy the threshold requirement of standing in order for the lawsuit to
be justiciable. "Standing is a preliminary inquiry that must be made before a trial court may
consider the merits of a legal claim." Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-
Ohio-6036, ¶ 9.
{¶ 15} In other words, a litigant must have a personal stake in the outcome of the
controversy to file suit. Cf. Anderson v. Brown, 13 Ohio St.2d 53 (1968), paragraph one of
the syllabus. The classic three-part test for making this determination was outlined by the
United States Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130(1992). Pursuant to Lujan, a plaintiff demonstrates a sufficient stake in the controversy only if
he or she can show an injury in fact, causation, and redressability. Id. at 560-561. See also
Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, ¶ 22 (implementing the Lujan
test). "These three factors – injury, causation, and redressability – constitute 'the irreducible
constitutional minimum of standing.'" Id., quoting Lujan at 560. This is the concept of
standing which New Miami challenges.
B. Deciding the Standing Issue Does Not Engage the Merits
{¶ 16} Appellees maintain that New Miami invites this court to consider the merits of
the complaint under the guise of standing. It is true that the certification stage of a class
action is not an appropriate time to delve into the merits of a case. Ojalvo v. Bd. of Trustees
of Ohio State Univ., 12 Ohio St. 3d 230, 233 (1984). The allegations in the complaint are to
be accepted as true rather than analyzed during certification. Begala v. PNC Bank, 1st Dist.
Hamilton No. C-990033, 1999 WL 1264187, *5 (Dec. 30, 1999). The merits may be
examined only where inextricably intertwined with the "rigorous analysis" of the certification
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elements. Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019,
¶ 29-44, analyzing Wal-Mart v. Dukes, 564 U.S. 338, 131 S.Ct. 2541 (2011). This inquiry is
exceedingly limited, permitting scrutiny of the merits only to the extent necessary to ascertain
the propriety of certification. Stammco at ¶ 33.
{¶ 17} These limitations notwithstanding, New Miami correctly asserts that a
determination of the threshold issue of standing for justiciability purposes does not implicate
an assessment of the merits of appellees' claims. It is well-established that standing does
not hinge upon the merits of a claim that certain governmental action is unconstitutional.
Moore at ¶ 23. To the contrary, "standing turns on the nature and source of the claim
asserted by the plaintiffs." Id. See also Warth, 422 U.S. at 500. As the United States
Supreme Court explained:
[I]n ruling on standing, it is both appropriate and necessary to
look to the substantive issues * * * to determine whether there is
a logical nexus between the status asserted and the claim
sought to be adjudicated. For example, standing requirements
will vary in First Amendment religion cases depending upon
whether the party raises an Establishment Clause claim or a
claim under the Free Exercise Clause. Such inquiries into the
nexus between the status asserted by the litigant and the claim
he presents are essential to assure that he is a proper and
appropriate party to invoke [ ] judicial power.
(Citation omitted.) Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942 (1968). Accord Clifton v.
Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, ¶ 18. Thus, we must analyze standing
with an eye towards the particular claims advanced by appellees in their complaint. Moore at
¶ 23.
C. Did Appellees Have Standing to File This Lawsuit?
{¶ 18} Properly framed to fit this case, our inquiry is whether appellees have standing
to pursue a declaratory judgment action challenging the constitutionality of Ordinance 1917
implementing New Miami's ASEP. Specifically, we examine whether appellees have
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standing to assert that the Ordinance violates the due course of law provision in the Ohio
Constitution. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 48
(noting that the due course of law provision in the Ohio Constitution is analogous to the Due
Process Clause of the United States Constitution).
{¶ 19} It should be emphasized that our inquiry does not assess whether the
Ordinance itself is constitutional. Moore at ¶23. Such an analysis would involve a three-part
test that is distinct from the Lujan test for standing. See, e.g., In re B.C., 141 Ohio St.3d 55,
2014-Ohio-4558, ¶ 18 (applying the three-part procedural due process test enunciated by the
United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893[1976]). Rather, our focus in the present matter concerns whether there is a sufficient nexus
between the status asserted by appellees and their due process claim. Flast at 102.
{¶ 20} In order to possess standing to challenge the facial constitutionality of an
ordinance, "the private litigant must generally show that he or she has suffered or is
threatened with direct and concrete injury in a manner or degree different from that suffered
by the public in general, that the law in question has caused the injury, and that the relief
requested will redress the injury." State ex rel. Ohio Academy of Trial Lawyers v. Sheward,
86 Ohio St.3d 451, 469-470, 1999-Ohio-123. This reflects the Lujan standard for
determining standing.
1. Did Appellees Suffer a Direct and Concrete Injury Different From That Suffered
by the General Public?
{¶ 21} Yes. The general public may fear or dislike the automated traffic cameras and
avoid all intersections in New Miami where the cameras are positioned. But only persons
whose vehicles were recorded by the automated traffic cameras received Notices of Liability.
Whether they paid the penalties or not, these individuals incurred repercussions not suffered
by the general public. Thus, the group of individuals who received the Notice of Liability was
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injured in a manner distinct from the public generally. See, e.g., League of United Latin Am.
Citizens v. Kasich, 10th Dist. Franklin No. 10AP-639, 2012-Ohio-947, ¶ 32.
2. Did the Ordinance Cause Appellees' Injury?
{¶ 22} Yes. "[When] the plaintiff is himself an object of the action (or foregone action)
at issue * * *, there is ordinarily little question that the action or inaction has caused him
injury, and that a judgment preventing or requiring the action will redress it." Clifton, 131
Ohio St.3d 287, 2012-Ohio-780, at ¶ 16, quoting Lujan, 504 U.S. at 561-562. Here, but for
the civil traffic enforcement program established pursuant to Ordinance 1917, appellees
would not have received the Notices of Liability and incurred the attendant financial
repercussions.
3. Will the Relief Requested Redress Appellees' Injury?
{¶ 23} Yes. If Ordinance 1917 is declared unconstitutional on its face, New Miami's
ASEP cannot continue to operate as established under the ordinance. Operation of the
program would be halted by the injunctive relief requested by appellees. Effectively, any
Notices of Liability issued pursuant to this unconstitutional program would be void.
Regarding those appellees who paid the penalty, any funds collected pursuant to the
program would be disgorged pursuant to the relief requested under appellees' unjust
enrichment claim. Regarding those who did not pay, actions undertaken by collection
agencies and credit reporting agencies would presumably have to be rescinded because the
program upon which they were founded was unconstitutional.
{¶ 24} Because all three prongs are met, we hold that appellees possess jurisdictional
standing to pursue a declaratory judgment action challenging the constitutionality of
Ordinance 1917.
D. Was Certification Proper under Civ.R. 23?
{¶ 25} It is not necessary to review all seven of the class certification elements. New
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Miami concedes that it does not contest the trial court's findings regarding the existence of an
identifiable class, numerosity, or adequacy of representation by class counsel. Rather, New
Miami challenges the trial court's findings regarding the class membership status of the
representatives, commonality, typicality, adequacy, and the propriety of certification under
Civ.R. 23(B)(2).
{¶ 26} At the outset, we observe that consideration of New Miami's challenge to the
class membership status of the representatives is barred by the law-of-the-case doctrine. In
Barrow I, we held that plaintiffs Woods, Johnson, and McGuire shared the requisite interest
and injury with the members of their respective subclasses to serve as class representatives.
Barrow I, 2014-Ohio-5743 at ¶ 10-18. See also Warner, 36 Ohio St.3d at 96-97. A decision
rendered by a reviewing court in a case remains the law of that case on legal questions in
subsequent proceedings. Brock v. Brock, 12th Dist. Clermont No. CA2013-04-026, 2014-
Ohio-350, ¶ 38. Accordingly, Barrow I operates as law-of-the-case regarding the satisfaction
of the implied class membership prerequisite under Civ.R. 23(A).
{¶ 27} We review the remaining findings properly challenged by New Miami for an
abuse of discretion. See Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 201 (1987). An
abuse of discretion connotes that a ruling was unreasonable, arbitrary, or unconscionable,
and not merely an error of law or judgment. Id.
1. Commonality
{¶ 28} Civ.R. 23(A)(2) requires commonality of claims in a class action. This involves
scrutinizing class claims for a "common nucleus of operative facts, or a common liability
issue." Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 77, 1998-Ohio-365. The
commonality requirement was clarified by the United States Supreme Court in Wal-Mart v.
Dukes, 564 U.S. 338, 131 S.Ct. 2541 (2011). See also Stammco, 136 Ohio St.3d 231, 2013-
Ohio-3019 at ¶ 29-44 (implementing Wal-Mart). The existence of common questions is still
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required, but the inquiry does not end there. Id. at ¶ 32. Rather, there must be the potential
for the claims to "generate common answers apt to drive the resolution of the litigation."
Wal-Mart at 2551, quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84
N.Y.U.L.Rev. 97, 132 (2009). (Emphasis in original.) Where an action involves subclasses,
this inquiry must be assessed as to each subclass separately. See Civ.R. 23(C)(4)(b).
{¶ 29} All members of Subclass 1 seek repayment of penalties and fines paid
pursuant to the ASEP. As the trial court explained, these class members share a common
prayer for restitution of monies paid pursuant to the allegedly unconstitutional Ordinance.
Despite varied rationales underlying the subclass members' payments, there exist common
issues of law that are likely to generate common answers to resolve the litigation. Wal-Mart
at 2551.
{¶ 30} Similarly, all members of Subclass 2 share a common prayer for relief from
application of the allegedly unconstitutional Ordinance. These subclass members seek
declaratory and injunctive relief striking down operation of the Ordinance. Their various
reasons for failing to pay the penalties do not defeat the common issues of law that underlie
resolution of their claims. Id.
{¶ 31} Despite New Miami's argument to the contrary, the trial court's failure to invoke
the commonality standard as clarified by Wal-Mart does not connote an abuse of discretion.
As stated, an abuse will not lie where a court merely commits an error of law or judgment.
Marks, 31 Ohio St.3d at 201. The court's decision must be unreasonable, arbitrary, or
unconscionable. Id. It was not. The resolution of the litigation does not hinge upon proof of
individual appellees' various defenses to infractions recorded by the automated traffic
cameras. Rather, a declaration striking down Ordinance 1917 as unconstitutional would
resolve the claims of all members of both subclasses. We hold that the trial court did not
abuse its discretion in finding that the proposed subclasses in the case at bar satisfied the
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commonalty requirement imposed by Civ.R. 23(A)(2).
2. Typicality
{¶ 32} Pursuant to Civ.R. 23 (A)(3), the claims or defenses of the class
representatives must be typical of the claims or defenses of the class. This does not require
that the class representatives possess claims or defenses that are identical to those of the
putative class members. Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480,
484-485, 2000-Ohio-397. Rather, where a class representative's interests are substantially
aligned or not in express conflict with those of the class, typicality is satisfied. Id. at 484.
See also Marks, 31 Ohio St.3d at 202.
{¶ 33} Regarding Subclass 1, the trial court did not abuse its discretion in finding that
the claims of Woods and Johnson were typical of the subclass. Although not required,
Woods and Johnson are identically situated with all members of the proposed subclass.
That is, they are persons who received a Notice of Liability and paid a penalty pursuant
thereto. The fact that the amounts paid by these class representatives may vary from other
members of the class is inapposite. The following directive, plucked from a leading class
action treatise by the Ohio Supreme Court, supports such a finding:
When it is alleged that the same unlawful conduct was directed
at or affected both the named plaintiff and the class sought to be
represented, the typicality requirement is usually met irrespective
of varying fact patterns which underlie individual claims.
Baughman at 485, citing 1 Newberg & Conte, Newberg on Class Actions, Section 3.13, at 74-
77 (3d Ed.1992). Thus, as noted by the trial court, the fact that members of Subclass 1 paid
differing amounts does not defeat typicality. All members of the subclass uniformly challenge
the due process afforded by the Ordinance, and all advance the same injury and seek the
same remedy. As such, the trial court did not abuse its discretion in finding the typicality
requirement imposed by R.C. 23(A)(3) was met by Subclass 1.
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{¶ 34} Similarly, regarding Subclass 2, the trial court did not abuse its discretion in
finding that the claims of McGuire were typical of the subclass. Again, though it is not
necessary for the class representative to be in the exact same position as all members of the
proposed class, McGuire is so situated. Like all other members of Subclass 2, McGuire is a
person who received a Notice of Liability and did not pay the penalty. The fact that differing
reasons might underlie McGuire's or any other member's decision to forestall payment of the
penalty does not obviate typicality. See Baughman at 485. All members of the subclass
uniformly challenge the due process afforded by the Ordinance, and all advance the same
injury and seek the same remedy. Thus, the trial court's determination that Subclass 2
satisfied the typicality requirement under Civ.R. 23(A)(3) did not constitute an abuse of
discretion.
3. Adequacy of Representation
{¶ 35} In accordance with Civ.R. 23 (A)(4), the representative parties must fairly and
adequately protect the interests of the putative class members. This issue involves
consideration of two distinct elements, namely, adequacy of the class representatives and
adequacy of counsel. Marks, 31 Ohio St.3d at 203. New Miami does not challenge the trial
court's finding that appellees' counsel is capable of representing the class. Instead, New
Miami attacks the adequacy of the class representatives.
{¶ 36} A class representative satisfies the adequacy requirement where his or her
interest is not antagonistic to those of the remaining class members. Id. As stated, far from
being antagonistic to the interests of the remaining members of Subclass 1, the interests of
Woods and Johnson are directly aligned with the rest of the subclass. All are recipients of
the Notice of Liability who incurred financial repercussions in the form of payments rendered
pursuant to the allegedly unconstitutional Ordinance. All seek a declaration invalidating the
Ordinance and disgorgement of their payments.
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{¶ 37} The interest of McGuire is similarly harmonious with those of the remaining
members of Subclass 2. All are recipients of the Notice of Liability who did not pay the
penalty but were subject to financial repercussions in the form of collection agencies and
credit reporting as a result of the allegedly unconstitutional Ordinance. All seek a declaration
invalidating the Ordinance and enjoining enforcement thereof. Thus, the trial court did not
commit an abuse of discretion when it found that the representatives for both subclasses
satisfied the adequacy requirement imposed by Civ.R. 23(A)(4).
4. Categorization of Action Under Civ.R. 23(B)
a. General Applicability
{¶ 38} Finally, a proposed class action must fall within the purview of one of the
categories delineated by Civ.R. 23(B) in order to be certified. Here, the trial court found that
the action qualified for certification under Civ.R. 23(B)(2). This subsection provides that an
action is maintainable as a class action where "the party opposing the class has acted or
refused to act on grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the class as a whole[.]"
{¶ 39} Certification under Civ.R. 23(B)(2) requires that (1) a proposed class primarily
seeks injunctive relief, and (2) the proposed class is cohesive. Wilson v. Brush Wellman,
Inc., 103 Ohio St.3d 538, 2004-Ohio-5847, ¶ 13. Here, cohesiveness of the class is not an
issue. Both subclasses complain of conduct perpetrated by New Miami against the class as
a whole. Id. at ¶ 7. Specifically, appellees challenge alleged due process defects applicable
to all those subjected to Ordinance 1917. The propriety of certification under subsection
(B)(2) thus turns upon the type of relief sought.
{¶ 40} The primary relief sought by both subclasses is a single declaration that the
Ordinance is unconstitutional and a single injunction prohibiting its enforcement. This would
provide relief to all members of both subclasses. Cullen v. State Farm Mut. Auto. Ins. Co.,
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137 Ohio St.3d 373, 2013-Ohio-4733, ¶ 21.
{¶ 41} Additionally, members of Subclass 1 seek restitution of monies paid under the
Ordinance. It is true that actions that predominately seek individualized monetary damages
are not properly certifiable under Civ.R. 23(B)(2). Id. However, as stated, the primary
objective in the case at bar is to halt operation of the allegedly unconstitutional Ordinance.
See Maas v. The Penn Cent. Corp., 11th Dist. Trumbull No. 2006-T-0067, 2007-Ohio-2055, ¶
45 (upholding certification under Civ.R. 23(B)(2) where "granting the declaratory and
injunctive relief that appellees seek is of greater value to the class members than monetary
relief * * *"). Consequently, the trial court did not abuse its discretion in certifying the class
under Civ.R. 23(B)(2).
b. Common Questions Predominate
{¶ 42} Even if the prayer for damages on behalf of Subclass 1 could not properly be
certified under Civ.R. 23(B)(2), the Ohio Supreme Court advocated for certification of
"incidental aspects" of a case under Civ.R. 23(B)(3). Hamilton, 82 Ohio St.3d at 87, quoting
7A Wright, Miller, & Kane, Federal Practice and Procedure, Section 1775, at 470 (2d
Ed.1986). Civ.R. 23(B)(3) permits maintenance of a class action where:
[Q]uestions of law or fact common to the members of the class
predominate over any questions affecting only individual
members, and [ ] a class action is superior to other available
methods for the fair and efficient adjudication of the controversy.
{¶ 43} The trial court found that this standard was satisfied in the present matter. The
court reasoned that common legal issues in the lawsuit constituted significant aspects of the
case that were amenable to resolution for all members in a single adjudication. Marks, 31
Ohio St.3d at 204. Admittedly, as mentioned, the particular circumstances surrounding each
motorist may mean that class members proffer different arguments in their respective
defenses. This does not defeat certification under Civ.R. 23(B)(3), however. As noted by the
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Ohio Supreme Court:
The mere existence of different facts associated with the various
members of a proposed class is not by itself a bar to certification
of that class. If it were, then a great majority of motions for class
certification would be denied. Civ.R. 23(B)(3) gives leeway in
this regard and permits class certification where there are facts
common to the class members.
In re Consol. Mtge. Satisfaction Cases, 97 Ohio St. 3d 465, 2002-Ohio-6720, ¶ 10.
{¶ 44} Hence, the existence of differing defenses among class members does not
obliterate the significance of the legal issues that predominate in this case, namely, the
constitutionality of the Ordinance and the propriety of restitution. Id. In addition, these
factual differences do not make the predominant issues any less capable of resolution in a
single adjudication before the trial court. Id. Indeed, the court may decide in one stroke
whether the procedure established by Ordinance 1917 ensures adequate due process to
citizens. This amenability to swift disposition renders class action status superior to other
methods for a fair and efficient adjudication of the matter in complicity with Civ.R. 23(B)(3).
Marks at 204. See also Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, __
U.S. __, 133 S.Ct. 1184, 1195 (2013). We therefore see no abuse of discretion in the trial
court's alternate path supporting certification under Civ.R. 23(B)(3).
{¶ 45} In sum, the trial court's entry on remand reaffirming certification of the class
adequately set forth its findings in support of certification. The trial court therefore properly
certified the class in the case at bar.
E. How Does Walker Affect Barrow?
{¶ 46} During the pendency of the proceedings below, the Ohio Supreme Court
released Walker v. Toledo, 143 Ohio St.3d 420, 2014-Ohio-5461. The high court reaffirmed
its holding in Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, that municipalities
may, pursuant to their home-rule authority under Article XVIII of the Ohio Constitution,
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impose civil liability on traffic violators through the use of automated red light cameras.
Walker at ¶ 3, 21. The court ruled that the ordinance in that case did not unlawfully usurp the
jurisdiction of municipal courts over traffic violations. Id. at ¶ 22-25. In addition, the court
held that municipalities' home-rule authority permitted them to establish civil administrative
proceedings that must be exhausted before traffic violators may pursue judicial remedies. Id.
at ¶ 26-28.
{¶ 47} New Miami insists that any members of either subclass who did not have an
administrative hearing lack standing to contest the constitutionality of the hearing procedures
afforded by Ordinance 1917. Alternatively, New Miami maintains that the issuance of the
decision in Walker by the Ohio Supreme Court transformed appellees' constitutional
challenge from facial to as applied.
{¶ 48} This court is of the opinion that we are not authorized to address the effect of
Walker on Barrow at this time. The only final appealable order before us is the trial court's
February 2015 decision certifying the class. The trial court's pre-certification decision
granting partial summary judgment to appellees on their first three claims is not yet before us.
See generally State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 1997-
Ohio-366. Whether or not the administrative procedure established by Ordinance 1917 in
fact satisfies procedural due process is not yet before us. Similarly, whether or not Walker
nullifies all or part of appellees' claims is a merits issue. Any proclamation we make on the
effect of Walker at this stage would be advisory. We therefore decline to address Walker at
this phase of the litigation.
III. CONCLUSION
{¶ 49} Pursuant to the foregoing analysis, we hold that the trial court's February 2015
decision reaffirming class certification sufficiently enunciated the bases upon which the court
made its decision in support of class certification. Accordingly, we affirm the trial court's
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Butler CA2015-03-043
certification decision.
{¶ 50} Judgment affirmed.
M. POWELL, P.J., and RINGLAND, J., concur.
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