Judge Michael Oster held a hearing Wednesday but did not address the outstanding issues. Instead the lawyers and the judge huddled in chambers for more than an hour hammering out the final notice that tells speeders they can object to the 33 percent attorney fee calculation at a hearing scheduled for June 28. There have been four attorneys fighting the village on behalf of the class of speeders since 2013.
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The notice will be published in three newspapers, and speeders must notify the court if they want to speak at the fee hearing this summer. The notice is also posted at engelandmartin.com/new-miami-speed-camera-litigation/.
The figures in the notice will not be final until Oster rules on questions including::
• New Miami wants the judge to reconsider his order in February 2017 that said the speeders must be made whole and their $95 tickets refunded. The village maintains that since their third-party vendor Optotraffic retained a portion, the village is only on the hook for about $1.8 million.
• The speeders’ attorneys want Oster to reconsider his decision that the village can spread repayments out over 10 years.
• The judge has not yet ruled on the exact amount of interest owed, just that it will be 3 percent of the final judgment. The speeders say it is $560,823 because they claim the interest clock started ticking when the speed camera program was deemed unconstitutional in March 2014. The village maintains interest hasn’t started to accrue because there is no final monetary ruling yet.
Josh Engel, one of the speeders’ attorneys, said because his clients would have been without their funds for as long as seven years when a ruling comes, that time must be taken into consideration.
“If I could take your money and hold it and then give it back to you seven years later I haven’t made you whole, that’s not equity,” Engel said. “You’ve lost the benefit of the use of that money for all that time.”
New Miami’s outside counsel James Englert said that isn’t what state law says.
“To us, Ohio law is pretty clear that interest can only run from the date of a money judgment,” Englert said. “An order for the payment of money… Our position then is you can only have interest run from a judgment where there is money that’s been ordered to be pay and a definite amount.”
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On the matter of the correct judgment amount, Englert recently added a new wrinkle, asking they judge to consider that the speeders may have needed to add Optotraffic to the suit to recoup the whole sum.
“The specific remedy sought by the plaintiffs precludes recovery of the amounts received and retained by Optotraffic,” attorney James Englert wrote. “Plaintiffs were not without remedy for the relief they now seek. In limiting their cause of action to equitable (rather than legal) restitution, plaintiffs were required to add Optotraffic as a party defendant.”
New Miami also reiterated those speeders who did not request a hearing to dispute their ticket — the administrative hearing process was what the judge found objectionable — are not entitled to a refund.
Engel said Oster plans to make his final ruling in June and, depending on the final decisions he makes, a driver who got a speeding ticket in July 2013 can expect a check for about $70, interest and attorneys fees included. If the pay-over-time decision stands, he said they will likely send payments to the first 10 percent of all the class members who got tickets.
“As we get money in we’re going to give it out to people,” he said. “We’ll probably figure out a way to rank them, probably by the date they paid.”
However, regardless of the final amounts Oster settles on, Englert has always said his side will appeal the heart of the case — whether due process rights were trampled by the old program — to the 12th District Court of Appeals. The case has traveled to the appellate divisions, including the Ohio Supreme Court, several times on “pieces” of the case, but never on the central question.
Englert told the Journal-News previously 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.
“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.
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