“I’m glad that this got their attention, I’m glad that they almost accepted it,” Englert said. “I remember a time when the plaintiffs were saying this was a ridiculous issue and frivolous. Obviously with three justices interested in taking it, it was not.”
Englert said there are number of housekeeping matters Butler County Common Pleas Judge Michael Oster needs to address before they get to a judgment. The court needs to publish a notice to the 33,000 speeders in the class action that their attorneys have asked for $1.1 million in attorneys fees — the standard 33 percent in civil litigation — for the four attorneys who have been representing them.
The speeders’ attorneys also say the village owes more than $367,560 in pre-judgment interest — an amount that keeps growing — which would have to be included in the final judgment amount.
The 12th District Court of Appeals ruled in January that New Miami is not entitled immunity because the village gained funds by collecting fines under the old speed camera program, which has been declared unconstitutional.
“The action seeking restitution by plaintiffs ‘is not a civil suit for money damages but rather an action to correct the unjust enrichment of’ New Miami,” Judge Michael Powell wrote for the unanimous court. “As the Ohio Supreme Court plainly held, ‘A suit that seeks the return of specific funds wrongfully collected or held by the state is brought in equity’ and ‘is consequently not barred by sovereign immunity.’”
The case has been rolling around the courts — this is the second time it has made its way to Columbus — since 2013, when a group of speeders, hit with the $95 traffic fine, sued the village.
The village has spent more than $305,000 of taxpayer money on this case so far. This type of lawsuit is not covered by insurance so the funds are coming from village coffers. Englert said they keep fighting because once they finally get to the heart of the case — whether the village’s old program was unconstitutional or not — he believes they will prevail.
Englert previously noted the high court decided not to overturn a decision in a case involving the cities of Dayton, Trotwood and West Carrollton that said the administrative hearings were fine.
“Plaintiffs lost in those cases, there was no due process violation and the Supreme Court refused to take plaintiffs’ appeal,” Englert said. “The hearings in those cities were essentially identical to the hearing used by the village of New Miami, and the decision in the cases from those cities will be strong authority for New Miami, when it appeals the due process issue.”
Engel, who represented speeders in those cases too, doesn’t think that decision will have a huge impact on this case.
“The fact that the Supreme Court denied review for the Dayton cases means that the Supreme Court has still not decided exactly what due process protections need to be provided in speed camera cases,” Engel said previously. “The courts have been clear that some level of due process must be provided and that municipalities are not free to just impose whatever procedures they wish.”
One thing is certain, this case is far from over. Englert said once Oster issues final judgment — which will finally trigger a review of the due process issue — it will be appealed again to the 12th District Court of Appeals and then “I’m sure whoever loses there will appeal to the Supreme Court.”