Jodka v. Cleveland

[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.

(Emphasis added.)

{¶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 * * * .

(Emphasis added.)

{¶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. * * *

(Emphasis added.)

{¶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).

(Emphasis added.)

{¶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.