City of Cleveland v. Posner

188 Ohio App. 3d 421, 2010 WL 2637036
CourtOhio Court of Appeals
DecidedJuly 1, 2010
DocketNo. 93893
StatusPublished
Cited by7 cases

This text of 188 Ohio App. 3d 421 (City of Cleveland v. Posner) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Cleveland v. Posner, 188 Ohio App. 3d 421, 2010 WL 2637036 (Ohio Ct. App. 2010).

Opinions

Mary J. Boyle, Presiding Judge.

{¶ 1} Defendant-appellant, Jeffrey Posner, appeals from a judgment of the Cuyahoga County Common Pleas Court affirming an administrative decision of the Cleveland Municipal Court’s Parking Violations Bureau, Photo Safety Division. The administrative hearing officer found Posner liable for a speeding violation pursuant to Cleveland Codified Ordinance (“C.C.O.”) 413.031, which sets [424]*424forth the automated-traffic-camera enforcement system of plaintiff-appellee, the city of Cleveland (“the city”). He raises three assignments of error for our review:

{¶ 2} “[1] The court below erred in failing to address appellant’s arguments.
{¶ 3} “[2] The procedure utilized below allowed conviction upon insufficient and improperly allowed evidence.
{¶ 4} “[3] The procedure below violated appellant’s due process rights by providing for conviction upon improperly allowed evidence without the right to confront actual witnesses and compel appearance and testimony.”

{¶ 5} Although Posner raises three assignments of error, he presents only one argument, stating that his “assignments of error are somewhat related, as the evidentiary issues implicate due process rights, and will be argued together.”

{¶ 6} App.R. 16(A)(7), however, requires “[a]n argument containing the contention of the appellant with respect to each assignment of error.” While appellate courts may jointly consider two or more assignments of error, the parties do not have the same option in presenting their arguments. See, e.g., In re Jack Fish & Sons Co., Inc., 159 Ohio App.3d 649, 2005-Ohio-545, 825 N.E.2d 171. Appellate courts may disregard any assignments of error that an appellant fails to separately argue. See App.R. 12(A)(2). Thus, we would be within our discretion to simply disregard all of Posner’s assignments of error and summarily affirm the trial court. See Jack Fish; Park v. Ambrose (1993), 85 Ohio App.3d 179, 186, 619 N.E.2d 469; State v. Caldwell (1992), 79 Ohio App.3d 667, 677, 607 N.E.2d 1096, at fn. 3.

{¶ 7} Nonetheless, we will address Posner’s sole argument on appeal. As Posner indicates, all of his assignments of error address evidentiary issues infringing on his due-process rights. Essentially, Posner argues that the common pleas court erred by not considering his constitutional due-process challenge — based on evidentiary issues — to the city’s automated-traffic-camera enforcement system.

{¶ 8} Finding merit to his appeal, we reverse and remand.

Standard of Review

{¶ 9} In Henley v. Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 735 N.E.2d 433, the Ohio Supreme Court distinguished the standard of review to be applied by common pleas courts and appellate courts in R.C. Chapter 2506 administrative appeals. The court stated:

{¶ 10} “The common pleas court considers the ‘whole record,’ including any new or additional evidence admitted under R.C. 2506.03, and determines [425]*425whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. * * *
{¶ 11} “The standard of review to be applied by the court of appeals in an R.C. 2506.04 appeal is ‘more limited in scope.’ * * * Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 465 N.E.2d 848. ‘This statute grants a more limited power to the court of appeals to review the judgment of the common pleas court only on “questions of law,” which does not include the same extensive power to weigh “the preponderance of substantial, reliable and probative evidence,” as is granted to the common pleas court.’ Id. at fn. 4. ‘It is incumbent on the trial court to examine the evidence. Such is not the charge of the appellate court. * * * The fact that the court of appeals, or this court, might have arrived at a different conclusion than the administrative agency is immaterial. Appellate courts must not substitute their judgment for those of an administrative agency or a trial court absent the approved criteria for doing so.’ Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267.” (Emphasis deleted.) Henley, 90 Ohio St.3d at 147, 735 N.E.2d 433.

{¶ 12} Thus, this court will review the judgment of the trial court only to determine whether the lower court abused its discretion in finding that the administrative order was supported by reliable, probative, and substantial evidence. See Wolstein v. Pepper Pike City Council, 156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75.

Constitutional Challenge: Facial v. As Applied

{¶ 13} Posner raised several evidentiary, due-process issues to the common pleas court. He argued that the hearing officer’s decision was unlawful and unconstitutional because the procedure and admission of evidence violated his due-process rights and could not be used as a basis for a valid decision. He further argued that he was entitled to evidentiary and due-process safeguards and that the evidence used against him was unsworn, unscientific, and unsubstantiated, and was not authenticated.

{¶ 14} The common pleas court determined that Posner’s arguments were “principally based on claims that the underlying ordinance is invalid, unlawful, and unconstitutional.” It refused to address his constitutional arguments because “the validity of the underlying ordinance is not for this court to determine.” It further stated, “The scope of this court’s review is limited to the validity of the hearing officer’s decision.” The common pleas court then affirmed the decision of the administrative hearing officer, finding that it was not unconstitutional, illegal, [426]*426arbitrary, capricious, or unreasonable and was supported by substantial, reliable, and probative evidence.

{¶ 15} The city contends that the trial court had no jurisdiction to address Posner’s constitutional claims. Specifically, the city argues that the trial court correctly determined that Posner challenged the constitutionality of C.C.O. 413.031 only on its face. But Posner maintains that he raised both a facial challenge to C.C.O. 413.031 and an “as applied” challenge. Thus, Posner argues that the trial court erred by not considering his evidentiary, due-process arguments, as applied to his case.

{¶ 16} A statute’s constitutionality can be challenged on its face or on the particular set of facts to which the statute has been applied. Harold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334,

Related

Korey v. Hunting Valley Planning & Zoning Comm.
2021 Ohio 1881 (Ohio Court of Appeals, 2021)
Sultaana v. Barkia Ents., Inc.
2020 Ohio 4468 (Ohio Court of Appeals, 2020)
Knight v. Cleveland Civ. Serv. Comm.
2016 Ohio 5133 (Ohio Court of Appeals, 2016)
Davis v. Cleveland
2013 Ohio 2914 (Ohio Court of Appeals, 2013)
Cleveland v. Cord
2011 Ohio 4262 (Ohio Court of Appeals, 2011)
Posner v. Cleveland
2011 Ohio 3071 (Ohio Court of Appeals, 2011)
City of Cleveland v. Posner
951 N.E.2d 476 (Ohio Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
188 Ohio App. 3d 421, 2010 WL 2637036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cleveland-v-posner-ohioctapp-2010.