The estimated 33,000 speeders nabbed by New Miami’s old speed camera program will have to wait longer to see if they are still due a $3.2 million ticket fine refund.
The village had asked Butler County Common Pleas Judge Michael Oster to reconsider the ruling by retired Michael Sage that the program violated the speeders’ due process rights, based on recent court rulings elsewhere in the state. Oster told the attorneys Thursday he feels almost like a “one man court of appeals” reviewing his predecessor’s opinion and said more time was needed for review, so he continued the hearing to September.
“Things have changed,” New Miami’s outside counsel James Englert said, pointing to a number of recent decisions. “I want to emphasize to the court the fact that these decisions, to a really kind of remarkable degree, are on all fours with the facts of this case.”
Oster asked Englert to go through 13 bullet points Sage outlined in his March 2014 order as violations of due process and size them up with issues addressed in a case involving a city of Dayton speed camera finding by the 2nd District Court of Appeals. Only two are unique to the New Miami case and not contemplated by the 2nd District.
They are the fact former New Miami Police Chief Kenny Cheek appointed the hearing officer who ruled over cases where speeders challenged the tickets. Also, those hearings were apparently not recorded — making the appeal process difficult and expensive.
Oster said both of those issues trouble him, especially that the police chief had a hand in setting up the adjudication process. He said there is at least an appearance of impropriety if the police chief appoints the person deciding if tickets issued by his department were valid.
“Of the ones you said that aren’t the same, that does strike a cord with this court,” Oster said. “As to whether those where fair and just processes.”
There was also considerable discussion about the fact the administrative hearings were not recorded, a fact it turns out wasn’t the case. Sage put in one of the bullet points that his colleague Judge Charles Pater granted one of the speeder’s appeals of her ticket because there was no record of the proceeding to consider.
After a lengthy discussion about recordings, village solicitor Dennis Adams, who was in the gallery during the hearing this week, informed Oster the village had installed a court recording system for the administrative hearings — similar to those used in the common pleas courts — but it malfunctioned in the case Pater heard and a few others. He said there is testimony about this in depositions filed in the five-year-old case.
Oster said he wished he would have known that earlier in the two-plus hour discussion. One of the village’s other attorneys Tony Raluy said Adams had been “nudging” them repeatedly about some “misconceptions” discussed during the hearing. Oster said since he didn’t originally hear this case he wants the lawyers to clarify those misconceptions the next time they meet.
One of the speeders’ attorneys Josh Engel said they should not be allowing new evidence into the case that was already decided, in their favor, by Sage.
“I do have a concern about what I hope is not an effort to reopen the record in this case,” Engel said.
The judge said he isn’t doing that.
“I’m not, I want factually accurate statements about the record that is already before this court…,” Oster said. “I want to be accurate … I’m not looking forward to new, I’m looking back to accurate.”
Oster noted that he has no obligation to apply the decisions the village wants him to consider to this case.
The parties will meet again in mid-September to continue discussing the constitutional questions and he will also hear about why the village may or may not have the ability to repay speeders over a ten-year period. He is also expected to render his decision on whether he will order the appointment of a financial watchdog to ensure the village comes up with a plan to refund speeders.
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