New Miami says speeders are wasting the court’s time by requesting a financial watchdog to safeguard a $3 million judgment that hasn’t yet been court-approved.
PREVIOUS REPORT: New Miami speeders want financial watchdog to protect their judgment
The cash-strapped village isn’t insolvent, or even under the state auditor’s scrutiny, according to attorneys who say the request for a receiver — or financial watchdog — is improper and at the very least premature. They want the judge to deny the request.
“As they have on two prior occasions, plaintiffs once again attempt to strong arm the village into submission prior to conclusion of the litigation by seeking prejudgment remedies unauthorized by relevant law,” New Miami’s attorneys wrote, adding there is no evidence New Miami is spending money that speeders say should be set aside for them.
One day after the Ohio Supreme Court denied review of the speed camera case, drivers asked that a financial watchdog be appointed to oversee the village’s spending.
“(New) Miami has made no effort to establish reserves to pay the anticipated judgment, even though, as the court is aware from previous motions, New Miami has contracted with a new automated speed enforcement company and has a new stream of revenue,” the plaintiff’s attorney, Josh Engel, wrote in the motion.
The financial watchdog “can oversee the village’s spending to assure that the assets from this new stream of revenue are not dissipated and remain available to satisfy the anticipated judgment,” the motion stated.
As of June the village has collected $783,969 from the new speed camera program that has been operating since early 2016.
CLOSER LOOK: Audits reveal conservative spending in New Miami
The village is taking the stance that under the law governments can’t be subject to such an invasion, usurping their power to govern as they see fit, unless some fiscal wrong-doing can be proven. They claim this intrusion would hamstring them and be a “death knell” to the village if a third party is deciding what money can be spent on, in order to preserve funds for the speeders.
The speeders’ attorneys filed their own motion this week saying the receiver would not necessarily be hired to make decisions about how the village is spending its money, only to oversee whether officials adhere to a to-be-devised spending plan that includes monies set aside for a judgment.
The attorneys argue there is no law that requires the village to segregate funds for a potential judgment and they maintain once the appellate courts can finally review the core of the case — whether the former speed camera program violated their due process rights — there will likely not be a $3 million payout at all.
“There is a strong likelihood that a higher court will find that there was no due process violation…,” the motion reads. “The plaintiffs act as if it is a legal certainty that a potential judgment in this case will withstand appeal — notwithstanding the fact that the only appellate court to review the issue unequivocally found a similar … program satisfied the due course of law requirement.”
The higher courts have considered side issues like class certification and governmental immunity.
The speeders attorneys acknowledge appointing a financial watchdog is unusual, but say the circumstances in this case are anything but routine. In most cases governmental entities have insurance coverage — the village has paid $309,592 worth of taxpayer dollars defending the suit because lawsuits of this nature are not covered by insurance — or they have governmental immunity. The courts have determined that does not apply here.
“It is also rare for a party in the class action context facing imminent insolvency to continue to ‘bet the company’ by aggressively litigating towards a final judgment instead of seeking a resolution of matters,” the filing reads. “But that is the course the village consciously chose to pursue, despite knowing the risks that strategy posed. Simply put, the appointment of a receiver is one of the risks that a ‘bet the company’ defendant assumes.”
Earlier in this nearly five-year-old case the speeders attorneys wanted to garnish funds the village is collecting from the new speed camera program. The judge said no.
The two sides will soon argue this issue before Butler County Common Pleas Judge Michael Oster.
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