A billboard warned motorists of the speed cameras set up in New Miami, Thursday, June 27, 2013. GREG LYNCH / STAFF

New Miami speed camera case could be heard by Ohio Supreme Court

The village filed with the high court late last week after both Judge Michael Oster and the 12th District Court of Appeals denied its argument they can’t be sued because they are a government, performing the government function of traffic control.

RELATED: 12 District Court of Appeals sides with New Miami speeders

“This case presents a critical issue of importance to municipalities across Ohio, in that the opinion of the Twelfth District below has deprived the Village of New Miami (“Village”) of sovereign immunity guaranteed by the Legislature in a statutory scheme this Court has already recognized as necessary for the ‘preservation of the fiscal integrity of political subdivisions,’” the filing in the high court reads.

The 12th District 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. Retired Common Pleas Judge Michael Sage declared the speed catchers unconstitutional in 2014.

The village took the class certification aspect of the case to the 12th District, lost there and then asked the high court to take a look. That court declined jurisdiction.

The high court only accepts jurisdiction in roughly seven percent — it was five percent in 2016 with 68 appeals accepted out of 1,381 filed — of the cases filed there annually. One of the speeders’ attorneys Josh Engel said he doubts this appeal will be heard.

“The village is well aware that the chances of the Supreme Court deciding to hear this issue is slim. So why are they pursuing this Hail Mary?” Engel said. “This is another stalling tactic to further delay having to pay back the money taken from motorists in an unconstitutional scheme.”

RELATED: 5 things to know about the New Miami speed camera case

The village’s outside counsel James Englert is proceeding on this issue but said this won’t be the last trip to the high court if they fail this time. The heart of the case is that the speeders claim their due process rights were violated during administrative hearings the village held for people who contested the tickets.

Until Oster issues a final judgment in the case, which means the total amount he feels the village owes — $3.5 million including interest has been the operative amount — the village can’t fight the due process claim in the appeals courts.

Englert said the high court recently 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. “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.”

To date, the lawsuit has cost taxpayers around $305,000 in legal fees. New Miami has to pay the legal bills out of pocket because this type of lawsuit isn’t covered under insurance.

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