[Cite as Jodka v. Cleveland, 2014-Ohio-208.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99951
SAM JODKA PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND, OHIO, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-784372
BEFORE: Rocco, J., S. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: January 23, 2014 ATTORNEYS FOR APPELLANT
Andrew R. Mayle Ronald J. Mayle Jeremiah S. Ray Mayle, Ray & Mayle, L.L.C. 210 South Front Street Fremont, Ohio 43420
John T. Murray Murray & Murray Co., L.P.A. 111 East Shoreline Drive Sandusky, Ohio 44870
ATTORNEYS FOR APPELLEE
Barbara Langhenry Director of Law City of Cleveland By: Gary S. Singletary Assistant Director of Law Cleveland City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44114-1077
For Affiliated Computer Services, Inc., et al.
Chris Bator Gregory V. Mersol Baker & Hostetler 3200 PNC Center 1900 East Ninth Street Cleveland, Ohio 44114-3485
KENNETH A. ROCCO, J.: {¶1} This appeal presents another challenge to the constitutionality of a city’s
automated camera civil traffic enforcement system. See Mendenhall v. Akron, 117 Ohio
St.3d 33, 2008-Ohio-270, 881 N.E.2d 255; Posner v. Cleveland, 193 Ohio App.3d 211,
2011-Ohio-1370, 951 N.E.2d 476 (8th Dist.); State ex rel. Scott v. Cleveland, 166 Ohio
App.3d 293, 2006-Ohio-2062, 850 N.E.2d 787 (8th Dist.), aff’d State ex rel. Scott v.
Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923; Balaban v. Cleveland,
6th Cir. No. 07-CV-1366, 2010 U.S. Dist. LEXIS 10227 (Feb. 5, 2010); Gardner v.
Cleveland, 656 F. Supp.2d 751 (N.D.Ohio2009); Mendenhall v. Akron, N.D.Ohio Nos.
06-CV-139 and 06-CV-154, 2008 U.S. Dist. LEXIS 112268 (Dec. 9, 2008); Walker v.
Toledo, 6th Dist. Lucas No. L-12-1056, 2013-Ohio-2809.
{¶2} Herein, plaintiff-appellant Sam Jodka appeals from the trial court’s order that
granted the motions to dismiss and for summary judgment that defendants-appellees the
city of Cleveland, Affiliated Computer Services, Inc., Boulder Acquisition Corp., and
Xerox Corporation1 filed in response to Jodka’s complaint. Jodka’s complaint asserted
that Cleveland Codified Ordinances (“CCO”) 413.031, which adopts an automated
camera civil traffic enforcement system with a concomitant quasi-judicial process for that
city, violates the Ohio Constitution’s Article IV, Section 1. That section of the
constitution gives the Ohio General Assembly the exclusive power to create a court.
Jodka further asserted in his complaint that, because the city wrongfully collected monies
1As they were in the trial court, the latter three defendants-appellees are referred to in this opinion collectively as “ACS.” from purported violators of this unconstitutional ordinance, he was entitled to class
certification in order to pursue a claim of unjust enrichment against the appellees.
{¶3} Jodka presents three assignments of error. He argues in his first and second
assignments of error that the trial court’s decision to dismiss his complaint was improper
because: (1) several sections of CCO 413.031 impair the jurisdiction of the Cleveland
Municipal Court; and (2) he presented a cognizable common law claim for unjust
enrichment. In his third assignment of error, he asserts that the trial court improperly
granted ACS’s motion for summary judgment.
{¶4} This court finds that sections CCO 413.031(k) and (l) violate Article IV,
Section 1 of the Ohio Constitution. Therefore, the trial court improperly dismissed that
count of Jodka’s complaint, and Jodka’s first assignment of error is sustained.
{¶5} However, because Jodka lacks standing to pursue a claim for unjust
enrichment, his second assignment of error is overruled. This court declines to address
Jodka’s third assignment of error because he presents no authority for his argument as
required by App.R. 16(A)(7). The trial court’s order is affirmed in part, reversed in part,
and this matter is remanded for further proceedings.
{¶6} Jodka filed his complaint on June 6, 2012. Therein, he made the following
pertinent allegations.
{¶7} Cleveland adopted a “civil enforcement system for red light and speeding
offenders” pursuant to CCO 413.031. ACS provided the physical components for
implementing the system. By means of this system, an electronic photographic, video or electronic camera and vehicle sensor automatically captures images of each vehicle that
violates a speed limit or a red light. ACS employees review the images, obtain the
names and addresses of the vehicle owners, then send them to Cleveland employees.
Appellees “jointly” send “tickets” for these violations to the vehicle owners, and the
vehicle owners are assessed a monetary penalty of between $100.00 and $200.00.
Appellees “jointly” reap the benefits of the monies collected under traffic camera
enforcement system pursuant to CCO 413.031. In 2007, appellees sent Jodka a ticket for
a violation of the ordinance, and he “paid the associated monetary penalty.”2
{¶8} In the first count of his complaint, Jodka alleged that CCO 413.031 violated
Art. IV, Sec. 1 of the Ohio Constitution because it “stripped” the municipal court of
jurisdiction over violations of “any ordinance” as conferred by R.C. 1901.20. Jodka
alleged that actions over which CCO 413.031 purported to apply were under the exclusive
jurisdiction of municipal courts pursuant to R.C. 1901.20 because, “[b]y definition,
413.031 violations (i.e., speeding and red light) are not ‘parking infractions.’” Jodka
asserted that his payment of the penalty did not waive his claim, but “created” it.
{¶9} In the second count of his complaint, Jodka further alleged that, prior to its
2009 amendment, when he paid his fine, CCO 413.031 also violated the Art. I, Sec. 2 of
the Ohio Constitution, because “owners” were the only class of persons who were liable
for violations. Jodka asserted there was no rational basis to differentiate drivers who
violated the ordinance between vehicle “owners” and vehicle “lessees.” He demanded a
2Jodka did not specify the amount. “return of the monies collected or held under former 413.031” by appellees, and asserted
this claim was brought “in equity.”
{¶10} In the third count of his complaint, Jodka requested the trial court to certify
a class pursuant to Civ.R. 23 for every person who paid a penalty for a ticket issued under
the unconstitutional ordinance. He sought to establish a “sub-class” of owners like
himself who had paid a fine for violating the ordinance prior to its 2009 amendment.
{¶11} ACS filed a “motion to dismiss and/or for summary judgment” with
respect to Jodka’s complaint, attaching an affidavit to its motion.3 On August 20, 2012,
Cleveland filed a Civ.R. 12(B)(6) motion to dismiss Jodka’s complaint. Neither appellee
filed an answer.
{¶12} Appellees maintained in their motions that the ordinance is constitutional.
ACS also argued that Jodka could not support his unjust enrichment claim against it
because, rather than “splitting” ticket monies with ACS, Cleveland simply paid for ACS’s
services pursuant to a contract.
{¶13} On September 11, 2012, the trial court issued a journal entry that stated as
follows:
By agreement of the parties, Defendant ACS’ argument that Plaintiff’s unjust enrichment claims against ACS fail as a matter of law (found at pp. 16-17 of ACS’ August 17, 2012 motion to dismiss and/or for summary judgment) is hereby severed from the motion, without prejudice. ACS will have the opportunity to reassert the argument, and the parties will
3ACS’s affidavit was that of its “Program Manager,” Paul Kuczkowski, who “clarified” some of the “misstatements” about appellees’ relationship as alleged in Jodka’s complaint. have the opportunity to engage in discovery, in the event Court denies ACS’ motion to dismiss. * * *
(Emphasis added.)
{¶14} On September 21, 2012, Jodka filed a single brief in opposition to appellees’
motions. He attached to his brief copies of: (1) the 1985 Cleveland Municipal Court
order that permitted the city to establish a “Parking Violations Bureau” with the authority
“to handle all parking infractions occurring within the territory of the municipal
corporation,” and (2) CCO Chapter 459, the enabling legislation for that bureau. As set
forth in CCO 459.01(a), violation of CCO 413.031 was not listed within the definition of
a “parking infraction.”
{¶15} On May 3, 2013, the trial court issued an opinion and journal entry that
granted appellees’ motions and dismissed Jodka’s complaint. The trial court stated in
pertinent part as follows:
Under CCO 413.031(k), violations are handled along the same lines as parking violations. As such, when an alleged violator disputes the claim, there is an appeal process where appeals are heard by the Parking Violations Bureau through an administrative process established by the Clerk of the Cleveland Municipal Court.
* * * [T]he Complaint indicates that in 2007, Plaintiff Sam Jodka (hereafter “Plaintiff”) was issued a ticket for violation of CCO 413.031. Plaintiff paid the monetary penalty and did not appeal the violation. However, five years after the ticket was issued, Plaintiff brought suit based upon the receipt of his ticket on the theory that CCO 413.031 violates Article IV, Section 1 of the Ohio Constitution, and that the version of CCO 413.031 in effect in 2007 violated the Equal Protection Clause of Article I, Section 2 of the Ohio Constitution.
Plaintiff now seeks monetary relief against ACS and the City of Cleveland * * * . Defendants * * * have moved to dismiss and/or for summary judgment * * * .
***
The General Assembly exercised its exclusive power to establish courts and determine their jurisdiction under Ohio Const. Art. IV, Sec. 1 by enacting R.C. 1901.20(A)(1), under which municipal courts were granted jurisdiction over the “violation of any ordinance * * * unless the violation is required to be handled by a parking violations bureau pursuant to Chapter 4521 of the Revised Code.”
* * * [T]he precise issue of a constitutional violation has already been considered and rejected by Ohio Courts. * * *
Based on the applicable standards, and a review of case law, this Court finds CCO [413.031] does not violate Article IV, Section 1 of the Ohio Constitution, and finds the logic of both [State ex rel.] Scott [v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923], and Mendenhall [v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255] persuasive. Accordingly, this Court gran[t]s Defendants’ Motions to Dismiss/Motions [sic] for Summary Judgment.
[As to] Plaintiff’s claim that the earlier version of CCO 413.031 in effect prior to March 11, 2009 violated the Equal Protection Clause of Article I, Section 2 of the Ohio Constitution by treating vehicle owners and lessees differently[,]
[a]s a preliminary matter, this Court notes that “legislative enactments are presumed to be constitutional.” See McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005 Ohio 6505, 839 N.E.2d 1, P. 20. * * *
* * * [T]his Court finds that there is no private cause of action for alleged violations of the Equal Protection Clause of the Ohio Constitution.
Accordingly, Plaintiff’s claim for an alleged violation must fail as a matter of law.
For the reasons as outlined, the Court hereby grants Defendants’ Motions to Dismiss and/or for Summary Judgment in their totality. Final.
{¶16} Jodka appeals from the trial court’s decision with the following three assignments of error.
I. The trial court erred in holding that a municipality has power to enact an ordinance that restricts and impairs a court’s jurisdiction provided by the General Assembly.
II. The trial court erred in holding that a common law unjust-enrichment claim is not valid unless it is first enabled by statute.
III. The trial court erred in granting the non-Cleveland defendants’ motion for summary judgment.
{¶17} In his first assignment of error, Jodka argues that the first count of his complaint was
improperly dismissed because several sections of CCO 413.031 violate Art. IV, Sec. 1 of the Ohio
Constitution, which vests judicial power in the courts of this state as “established by law.” He
contends that the trial court thus incorrectly relied upon the Ohio Supreme Court’s decisions in State ex
rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, and Mendenhall v.
Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, when it dismissed his complaint, because
those cases did not consider his specific argument. This court agrees.
{¶18} Appellate review of an order dismissing a complaint for failure to state a
claim for relief is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
2004-Ohio-4362, 814 N.E.2d 44. This court accepts the material allegations of the
complaint as true and makes all reasonable inferences in favor of the plaintiff. Johnson
v. Microsoft Corp., 106 Ohio St.3d 278, 280, 2005-Ohio-4985, 834 N.E.2d 791. In order
for a defendant to prevail on a Civ.R. 12(B)(6) motion, it must appear from the face of the
complaint that the plaintiff can prove no set of facts that would justify a court granting
relief. O’Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).
{¶19} Municipal ordinances, like other legislative enactments, are entitled to the
presumption of constitutionality. Hudson v. Albrecht, 9 Ohio St.3d 69, 71, 458 N.E.2d
852 (1984). The burden is on the party challenging the ordinance to prove it is
unconstitutional beyond a reasonable doubt. State v. Lowe, 112 Ohio St.3d 507,
2007-Ohio-606, 861 N.E.2d 512, ¶ 17, citing Klein v. Leis, 99 Ohio St.3d 537, 795
N.E.2d 633, ¶ 4. Jodka maintains that CCO 413.031 unconstitutionally usurps the
authority of the Cleveland Municipal Court to adjudicate certain traffic infractions. He
does not assert that the ordinance is unconstitutional on another ground, as was the
situation the Ohio Supreme Court faced in Mendenhall, 117 Ohio St.3d 33,
2008-Ohio-270, 881 N.E.2d 255.
{¶20} With respect to a different constitutional challenge to an automated camera
civil traffic enforcement system, the Mendenhall court made the following pertinent
observations at ¶ 16-41:
Section 3, Article XVIII of the Ohio Constitution provides that municipalities are authorized “to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”
We use a three-part test to evaluate claims that a municipality has exceeded its powers under the Home Rule Amendment. * * * [The test is] whether (1) the ordinance is an exercise of the police power, rather than of local self-government, (2) the statute is a general law, and (3) the ordinance is in conflict with the statute.
The first part of the test relates to the ordinance. As we have held, “If an allegedly conflicting city ordinance relates solely to self-government, the analysis stops, because the Constitution authorizes a municipality to exercise all powers of local self-government within its jurisdiction.” Am. Fin. Servs. Assn. v. Cleveland, 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 23. If, on the other hand, the ordinance pertains to “local police, sanitary and other similar regulations,” Section 3, Article XVIII, Ohio Constitution, the municipality has exceeded its home rule authority only if the ordinance is in conflict with a general state law. * * *
A. The ordinance
It is well established that regulation of traffic is an exercise of police power that relates to public health and safety, as well as to the general welfare of the public. See Linndale v. State (1999), 85 Ohio St.3d 52, 54, 706 N.E.2d 1227, citing Geauga Cty. Bd. of Commrs. v. Munn Rd. Sand & Gravel (1993), 67 Ohio St.3d 579, 583, 621 N.E.2d 696. Here, there is no dispute that the Akron ordinance is an exercise of concurrent police power rather than self-government. Thus, the question remains whether the state statute involved is a general law and, if so, whether the Akron ordinance impermissibly conflicts with the general law.
B. The statute as a general law
* * * When interpreted as part of a whole, R.C. 4511.21 applies to all citizens generally as part of a statewide regulation of traffic laws and motor vehicle operation.
C. Conflict Analysis
Because the statute regarding speed limits is a general law, we must finally determine whether, when cities pass ordinances creating automated systems of speed-limit enforcement, the municipal ordinances are in conflict with the state statute.
R.C. 4511.07 does not expressly signal that the state has exclusivity in the area of speed enforcement. Furthermore, because there is no indication that the state has intended to reserve to itself the ability to enforce statewide traffic laws through a civil process, we decline to recognize a conflict by implication.
* * * The ordinance does not change the speed limits established by state law or change the ability of police officers to cite offenders for traffic violations. After the enactment of the Akron ordinance, a person who speeds and is observed by a police officer remains subject to the usual traffic laws. Only when no police officer is present and the automated camera captures the speed infraction does the Akron ordinance apply, not to invoke the criminal traffic law, but to impose an administrative penalty on the vehicle’s owner. The city ordinance and state law may target identical conduct — speeding — but the city ordinance does not replace traffic law. It merely supplements it. * * * The Akron ordinance complements rather than conflicts with state law.
IV. Other theories
* * * Although there are due process questions regarding the operation of the Akron Ordinance and those similar to it, those questions are not appropriately before us at this time and will not be discussed here.
V. Conclusion
* * * We hold merely that an Ohio municipality does not exceed its home rule authority when it creates an automated system for enforcement of traffic laws that imposes civil liability upon violators, provided that the municipality does not alter statewide traffic regulations.
{¶21} Thus, the Mendenhall court determined that a city’s automated camera civil
traffic enforcement system is constitutional pursuant only to Section 3, Article XVIII of
the Ohio Constitution. Previously, in Scott, 112 Ohio St.3d 324, 2006-Ohio-6573, 859
N.E.2d 923, at ¶ 2-6, the Ohio Supreme Court determined that issues of the
constitutionality of CCO 413.031, which were “unclear” for purposes of the issuance of
an extraordinary writ, should be resolved “in the ordinary course of law.” Accord
Carroll v. Cleveland, 522 Fed.Appx. 299, 2013 U.S. App. LEXIS 7178 (6th Cir.2013).
Scott also provided an overview of the quasi-judicial process CCO 413.031 established at
its inception. Since the decision in Scott, the ordinance, as amended, includes the
following pertinent provisions:
(h) Notices of Liability. Any ticket for an automated red light or speeding system violation under this section shall:
(1) Be reviewed by a Cleveland police officer;
(2) Be forwarded by first-class mail or personal service to the vehicle’s registered owner’s address as given on the state’s motor vehicle registration, and
(3) Clearly state the manner in which the violation may be appealed.
(i) Penalties. Any violation of division (b) or division (c) of this section shall be deemed a noncriminal violation for which a civil penalty shall be assessed and for which no points authorized by R.C. 4507.021 (“Point system for license suspension”) shall be assigned to the owner or driver of the vehicle.
(j) Ticket Evaluation, Public Service, and Appeals. The program shall include a fair and sound ticket-evaluation process that includes review by the vendor and a police officer, a strong customer-service commitment, and an appeals process that accords due process to the ticket respondent and that conforms to the requirements of the Ohio Revised Code.
(k) Appeals. A notice of appeal shall be filed with the Hearing Officer within twenty-one (21) days from the date listed on the ticket. The failure to give notice of appeal or pay the civil penalty within this time period shall constitute a waiver of the right to contest the ticket and shall be considered an admission.
Appeals shall be heard by the Parking Violations Bureau through an administrative process established by the Clerk of the Cleveland Municipal Court. At hearings, the strict rules of evidence applicable to courts of law shall not apply. The contents of the ticket shall constitute a prima facie evidence of the facts it contains. Liability may be found by the hearing examiner based upon a preponderance of the evidence. If a finding of liability is appealed, the record of the case shall include the order of the Parking Violations Bureau, the ticket, other evidence submitted by the respondent or the City of Cleveland, and a transcript or record of the hearing, in a written or electronic form acceptable to the court to which the case is appealed.
A decision in favor of the City of Cleveland may be enforced by means of a civil action or any other means provided by the Ohio Revised Code.
(l) Evidence of Operation. It is prima facie evidence that the person registered as the owner of the vehicle with the Ohio Bureau of Motor Vehicles, or with any other state
vehicle registration office, or in the case of a leased or rented vehicle, the “lessee” as
defined in division (p), was operating the vehicle at the time of the offenses * * * .
{¶22} The adjudicatory hearing procedure established by CCO 413.031(j) through
(l), therefore, consists of the following: (1) a representative of the camera vendor and a
police officer jointly determine if the photo shows a violation; (2) notice of this
determination is sent to the vehicle owner or lessee; (3) if the vehicle owner wants to
dispute the determination, he or she files an appeal; (4) at the hearing on the appeal, a
person appointed by the city presides; (5) this city-appointed person displays the camera
vendor’s photo to the vehicle owner or lessee; (6) the city-appointed person determines
the sufficiency of the photo as evidence of liability; and then, (7) the decision about
liability proceeds to the municipal court as an administrative decision. In this process,
the same non-judicial hearing officer is both the prosecutor and the judge, and the person
who contests liability lacks any meaningful ability to present a defense.
{¶23} Article IV, Section 1 of the Ohio Constitution vests the “judicial power” of
the state in the Supreme Court and the other inferior courts that are “established by law.”
Thus, the General Assembly has the exclusive power to create courts, and “[t]he power to
create a court carries with it the power to define its jurisdiction.” Cupps v. Toledo, 170
Ohio St. 144, 150, 163 N.E.2d 384 (1959); see also State ex rel. Whitehead v. Sandusky
Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-Ohio-4837, 979 N.E.2d 1193, ¶ 34. Municipal ordinances, therefore, cannot constitutionally impair or restrict jurisdiction
granted to a court by the legislature. Cupps.4
{¶24} R.C. 1901.20 states in pertinent part:
(A) (1) The municipal court has jurisdiction of the violation of any
ordinance of any municipal corporation within its territory, unless the
violation is required to be handled by a parking violations bureau or joint
parking violations bureau pursuant to Chapter 4521. of the Revised Code,
and of the violation of any misdemeanor committed within the limits of its
territory. The municipal court has jurisdiction of the violation of a vehicle
parking or standing resolution or regulation if a local authority, as defined
in division (D) of section 4521.01 of the Revised Code, has specified that it
is not to be considered a criminal offense, if the violation is committed
within the limits of the court’s territory, and if the violation is not required
to be handled by a parking violations bureau or joint parking violations
bureau pursuant to Chapter 4521. of the Revised Code. * * *
{¶25} The statute thus provides that a municipal court’s jurisdiction extends to
violations of “any” ordinance. The statute’s sole exception grants a municipality’s
“parking violations bureau” jurisdiction “pursuant to Chapter 4521” over vehicle
4Similarly, municipal courts cannot interfere with jurisdiction granted by the legislature to mayor’s courts. State ex rel. Coyne v. Todia, 45 Ohio St.3d 232, 543 N.E.2d 1271 (1989). “parking” violations.
{¶26} R.C. 4521.01(A) defines “parking infractions” as “violations of any
ordinance * * * enacted by a local authority that regulates the standing or parking of
vehicles.” (Emphasis added.) Such ordinances also must be “authorized pursuant to
section 505.17 or 4511.07 of the Revised Code,” or “authorized by this chapter * * * .
Id. R.C. 505.17 permits a municipality to regulate vehicles to prevent excessive noise
and to prevent parking so as to allow access for emergency services. R.C. 4511.07
permits municipalities to regulate “stopping, standing or parking of vehicles.” The
single word “parking” is not statutorily defined.
{¶27} It is a general rule of statutory construction that words and phrases that
neither have been legislatively defined or nor acquired a technical meaning “shall be read
in context and construed according to the rules of grammar and common usage.” R.C.
1.43. Common usage may be ascertained by reference to a dictionary. See Cincinnati
City School Dist. Bd. of Edn. v. State Bd. of Edn., 122 Ohio St.3d 557, 2009-Ohio-3628,
913 N.E.2d 421, ¶ 15-16. With respect to motor vehicles, Webster’s New Collegiate
Dictionary (G & C Merriam Co.1977) defines the word “park” as to “bring to a stop and
keep standing at the edge of a public way,” or “to leave temporarily on a public way or in
a parking lot or garage.”
{¶28} In Columbus v. Webster, 170 Ohio St. 327, 164 N.E.2d 734 (1960), the Ohio
Supreme Court intimated, too, that the word “parking” implies a lack of action, rather
than movement. Quoting People v. Hildebrandt, 308 N. Y. 397, 126 N.E.2d 377 (1955), the Webster court noted that “parking violations are of a special sort,” because “[t]he car
is left unattended, there is usually no one present to be arrested and it is not unreasonable
to charge to the owner an illegal storage of his vehicle in a public street.” See also
Gardner v. Columbus, 841 F.2d 1272 (6th Cir.1988). Simply put, the fact of a vehicle’s
stationary presence in a prohibited place cannot generally be reasonably disputed.
{¶29} CCO 413.031, however, makes it a violation of the municipal code for a
vehicle operator to fail to stop for a red light and to travel in excess of the posted speed
limit. Perhaps logically, therefore, “violation of CCO 413.031” is not included in CCO
459.01(a)’s definition of what offenses constitute “parking violations.” The automated
camera system captures this fleeting moment in time. Because the vehicle operator is
unaware of the camera’s action, he or she cannot adequately mount a challenge to the
accuracy of the device.5
{¶30} The exhaustive, well-reasoned opinion in Mendenhall v. Akron, 117 Ohio
5The accuracy of mechanical devices is often decided in municipal court. See Beachwood v. Joyner, 8th Dist. Cuyahoga No. 98089, 2012-Ohio-5884, 984 N.E.2d 388. It would seem to be a simple matter for the municipal court to assign a magistrate to contested automated camera cases to determine whether the automated system is scientifically valid, accurate, and reliable enough to legitimately allege a moving violation. Compare Davis v. Cleveland, 8th Dist. Cuyahoga No. 99187, 2013-Ohio-2914 (appellant failed to raise issues of system’s accuracy before the administrative hearing officer, and facial constitutionality of CCO 413.031 could not be considered in an administrative appeal.) But see Carroll v. Cleveland, 522 Fed.Appx. 299, 2013 U.S. App. LEXIS 7178 (6th Cir.2013) (appellants “would have received ample opportunity * * * to present their arguments about * * * constitutionality, first in an administrative proceeding, then in the Ohio court system,” but they simply paid their fine). As a practical matter, as Jodka did in this case, many persons who are cited for moving violations simply pay the fine and do not proceed to court. St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, justified a city’s authority as a concurrent
police power to impose civil violations for traffic offenses only under “home rule.” The
court did not thereby give its imprimatur to the quasi-judicial procedure that CCO
413.031(k) and (l) establishes for those persons charged with civil violations who wish to
contest their liability. Although the evidence in the record demonstrates the Cleveland
Municipal Court expressly relinquished jurisdiction over “parking infractions” in favor of
the city in 1985 pursuant to R.C. 4521.04(B), nothing in R.C. 1901.20(A) permits the city
to assume jurisdiction to adjudicate matters involving moving traffic violations. The
“city has attempted to divest the municipal court of some * * * of its jurisdiction by
establishing an administrative alternative without the express approval of the legislature.”
Walker v. Toledo, 6th Dist. Lucas No. L-12-1066, 2013-Ohio-2809, ¶ 36. The city’s
assumption of that authority violated Art. IV, Sec. 1 of the Ohio Constitution. Id. If the
Ohio General Assembly had intended to authorize municipalities, rather than municipal
courts, to adjudicate violations relating to moving traffic, it would have expressly done
so. See, e.g., R.C. 1905.01(A), which defines the jurisdiction of mayor’s courts. State
ex rel. Brady v. Howell, 49 Ohio St.2d 195, 360 N.E.2d 704 (1977).
{¶31} The General Assembly has permitted municipalities to establish by
ordinance administrative tribunals that preside over contests of purely internal matters of
local self-government. For example, R.C. 713.11 allows municipalities to create boards
with the power to “hear and determine appeals from refusal” of building and zoning
permits, R.C. 718.11 requires a municipality to create a board of tax appeals to hear issues concerning municipal income tax obligations, R.C. 737.12 provides for a city’s director of
public safety to conduct hearings with respect to a police or fire chief’s decision to
suspend an officers or firefighter, and R.C. 1901.20(A)(1) permits a municipality to
acquire jurisdiction over “parking” violations “pursuant to Chapter 4521.” In stark
contrast, the tribunal created by CCO 413.031(k) for the adjudication of contests of
automated traffic camera citations deals with the general and external matter of moving
traffic.
{¶32} The creation of such a tribunal, an issue not addressed in Mendenhall, 117
Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, does not constitute a proper exercise of
“concurrent police power” pursuant to R.C. 1901.20(A)(1). Nor is it otherwise a power
of “local self-government.” This court agrees with Walker, 6th Dist. Lucas No.
L-12-1066, 2013-Ohio-2809, ¶ 35-36, that the power to adjudicate civil violations of
moving traffic laws lies solely in municipal court.
{¶33} Based upon the plain meaning of the words used in R.C. 1901.20(A)(1), in
purporting to label moving violations as “parking infractions” so as to deprive the
municipal court of jurisdiction over violations of “any ordinance,” the procedure set forth
in CCO 413.031(k) and (l) violates the Ohio Constitution’s Art. IV, Sec.1. The trial
court, therefore, improperly granted appellees’ motion to dismiss Count 1 of Jodka’s
complaint. Jodka’s first assignment of error is sustained.
{¶34} Jodka’s complaint also presented a claim of unjust enrichment. In his
second assignment of error, he argues that the trial court improperly dismissed this claim. Although the Walker court held to the contrary, this court does not agree with Walker on
the question of whether Jodka has standing to pursue such a claim. It is well settled that
standing does not depend on the merits of the plaintiff’s contention that particular conduct
is illegal or unconstitutional. Rather, standing turns on the nature and source of the claim
he asserts. Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977,
¶ 34, citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
Jodka never availed himself of the unconstitutional quasi-judicial process created by CCO
413.031(k) and (l); consequently, he lacks standing to present his claim of unjust
enrichment.
{¶35} As this court noted in Tate v. Garfield Hts., 8th Dist. Cuyahoga No. 99099,
2013-Ohio-2204, ¶11-12:
Standing is a jurisdictional prerequisite that must be resolved before
reaching the merits of a suit. Fed. Home Loan Mtge. Corp. v. Schwartzwald,
134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 23. To establish
standing, the party invoking the court’s jurisdiction must establish that he
suffered (1) an injury that is (2) fairly traceable to the defendant’s allegedly
unlawful conduct, and (3) is likely to be redressed by the requested relief.
Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d
977, ¶ 22, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112
S.Ct. 2130, 119 L.Ed.2d 351 (1992).
To have standing [to pursue a claim], a plaintiff must have a personal stake in the outcome of the controversy and have suffered some concrete injury that is
capable of resolution by the court. Middletown v. Ferguson, 25 Ohio St.3d 71, 75,
25 Ohio B. 125, 495 N.E.2d 380 (1986). It is not sufficient for the individual to
have a general interest in the subject matter of the action. The plaintiff must be the
party who will be directly benefitted or injured by the outcome of the action.
Shealy v. Campbell, 20 Ohio St.3d 23, 24, 20 Ohio B. 210, 485 N.E.2d 701 (1985).
The purpose behind this “real party in interest rule” is “‘* * * to enable the
defendant to avail himself of evidence and defenses that the defendant has against
the real party in interest, and to assure him finality of the judgment, and that he
will be protected against another suit brought by the real party at interest on the
same matter.’” Id., quoting In re Highland Holiday Subdivision, 27 Ohio App.2d
237, 240, 273 N.E.2d 903 (4th Dist.1971).
{¶36} In Carroll v. Cleveland, 522 Fed.Appx. 299, 2013 U.S. App. LEXIS 7178
(6thCir.2013), the court made the following pertinent observation:
* * * The citations that Appellants received clearly indicated that paying the
fine, rather than contesting the citation, was an admission of liability. Thus, by
paying, each Appellant admitted that he or she committed the alleged traffic
violation, without asserting any defenses. * * *
{¶37} Jodka admitted in his complaint that he simply paid the citation the city
issued to him. Thus, Jodka neither placed himself under the purported authority of the quasi-judicial process the city instituted in CCO 413.031 nor contested the ordinance’s
constitutionality during such process. Carroll. This fact made Jodka an inappropriate
person to assert a claim that provisions of CCO 413.031 unconstitutionally stripped the
municipal court of jurisdiction over his offense.
{¶38} Jodka’s second assignment of error is overruled.
{¶39} Jodka argues in his third assignment of error that the trial court should not
have granted ACS’s motion for summary judgment after the court had “severed” that
motion from appellees’ motions to dismiss his complaint. This court declines to address
this assignment of error for two reasons.
{¶40} First, Jodka supplies no authority to support his argument as required by
App.R. 16(A)(7). App.R. 12(A)(2). Second, in light of this court’s disposition of his
first and second assignments of error, this assignment of error is moot. App.R.
12(A)(1)(c).
{¶41} The trial court’s judgment is affirmed in part and reversed in part. The
provisions in CCO 413.031 that purport to create a quasi-judicial tribunal to handle
contested automated camera traffic citations violate Art. IV, Sec. 1 of the Ohio
Constitution. Therefore, that portion of the trial court’s order is reversed, and this case is
remanded for further proceedings.
It is ordered that appellant and appellees share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_____________________________________________ KENNETH A. ROCCO, JUDGE
MARY EILEEN KILBANE, J., CONCURS; SEAN C. GALLAGHER, P.J., CONCURS IN PART AND DISSENTS IN PART (SEE ATTACHED OPINION)
SEAN C. GALLAGHER, P.J., CONCURRING IN PART AND DISSENTING IN PART:
{¶42} This case presents issues that I believe defy resolution at the intermediate
appellate level. This is yet another case that reflects a need for legislative policy-making
and oversight over modern technological advancements implemented by municipalities in
law enforcement. As we are seeing with automated traffic camera ordinances, such
measures often result in protracted litigation within the legal system. It is not the
function of the courts to engage in policy matters, yet the issues that are appearing
involve matters that should have been reviewed by the legislature before implementation.
{¶43} This case is among the increasing number of lawsuits challenging municipal
ordinances that authorize the use of automated traffic cameras to impose civil penalties
for red light and speeding violations. In the case of the Cleveland ordinance, the city,
without any legislative oversight, decided to implement an automated traffic enforcement system and established an administrative review process under the parking
violations bureau.
{¶44} While the General Assembly has provided jurisdiction to municipal courts
over criminal traffic-code violations, R.C. 1901.20(A)(1), and has allowed for the
establishment of a parking violations bureau in a municipality for handling local,
noncriminal “parking infractions,” R.C. 4521.04, there are no provisions concerning the
implementation of automated traffic enforcement systems. Moreover, there is nothing
within R.C. Chapters 1901, 4511, or 4521, or elsewhere in the Ohio Revised Code, that
specifically allows a municipality to establish a civil automated traffic enforcement
system with administrative procedures that are handled by a parking violations bureau.
As the Ohio Supreme Court has recognized, “although the General Assembly has enacted
a detailed statute governing criminal enforcement of speeding regulations, it has not acted
in the realm of civil enforcement.” Mendenhall v. Akron, 117 Ohio St.3d 33,
2008-Ohio-270, 881 N.E.2d 255, ¶ 32. The court in Mendenhall determined that the
creation of a civil automated traffic enforcement system does not exceed a municipality’s
home rule authority, provided that the municipality does not alter statewide traffic
regulations. Id. at syllabus.
{¶45} The Ohio Supreme Court recently granted discretionary review in Walker v.
Toledo, 6th Dist. Lucas No. L-12-1056, 2013-Ohio-2809, 994 N.E.2d 467, discretionary
appeal allowed, __ Ohio St.3d __, 2013-Ohio-5285, wherein the Sixth District
determined that a Toledo municipal ordinance was unconstitutional under the Ohio Constitution, Article IV, Section 1 because it “attempted to divest the municipal court of
some, or all, of its jurisdiction by establishing an administrative alternative without the
express approval of the legislature.” The lead opinion in this case follows that view.
{¶46} However, unlike Walker, the lead opinion finds the plaintiff lacked standing
to present his claim of unjust enrichment because he did not avail himself of the
unconstitutional quasi-judicial process created by the ordinance. In Walker, the court
determined that an unjust enrichment claim could be pursued by a defendant who had
paid the penalty for a red-light camera violation. I agree with Walker in that regard.
{¶47} There are no provisions providing for a reduction to judgment when a
citation is paid, or when a citation is unchallenged but remains unpaid. Additionally,
with minimal fines involved, there is little incentive for a person to challenge the citation,
let alone to engage in protracted litigation. More significantly, even accepting that the
parking violations bureau has quasi-judicial authority to review whether a violation
occurred, there is no authority for the parking violations bureau to hear unjust enrichment
claims or constitutional challenges against the ordinances. Therefore, it is my view that
the unjust enrichment claim cannot be barred for lack of standing or by res judicata.