[Cite as Toney v. Dayton, 2017-Ohio-5618.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
TERRY TONEY, et al. :
:
Plaintiffs-Appellants : Appellate Case No. 27245
:
v. : Trial Court Case Nos. 2014-CV-1713,
: 2014-CV-3292 & 2014-CV-3294
CITY OF DAYTON, et al. :
: (Civil Appeal from
Defendants-Appellees : Common Pleas Court)
:
...........
OPINION
Rendered on the 30th day of June, 2017.
...........
JOSHUA A. ENGEL, Atty. Reg. No. 0075769, 5181 Natorp Boulevard, Suite 210, Mason,
Ohio 45040
MICHAEL K. ALLEN, Atty. Reg. No. 0025214, 810 Sycamore Street, 5th Floor, Cincinnati,
Ohio 45202
PAUL M. DEMARCO, Atty. Reg. No. 0041153, 119 East Court Street, Suite 530,
Cincinnati, Ohio 45202
THOMAS J. MANNING, Atty. Reg. No. 0059759, P.O. Box 751484, Dayton, Ohio 45475
Attorneys for Plaintiffs-Appellants
JOHN C. MUSTO, Atty. Reg. No. 0071512, 101 West Third Street, Dayton, Ohio 45402
DAWN M. FRICK, Atty. Reg. No. 0069068, DAVID M. SHAVER, Atty. Reg. No. 0085101,
JEFFREY C. TURNER, Atty. Reg. No. 0063154, EDWARD J. DOWD, Atty. Reg. No.
0018681, CHRISTOPHER T. HERMAN, Atty. Reg. No. 0076894, 8163 Old Yankee
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Street, Suite C, Centerville, Ohio 45458
LORI E. DENLINGER, Atty. Reg. No. 0053384, 7501 Paragon Road, Dayton, Ohio 45459
QUINTON F. LINDSMITH, Atty. Reg. No. 0018327, JAMES P. SCHUCK, Atty. Reg. No.
0072356, 100 South Third Street, Columbus, Ohio 43215
STEPHEN C. MCHUGH, Atty. Reg. No. 0018788, 33 West First Street, Suite 600,
Dayton, Ohio 45402
Attorneys for Defendants-Appellees
.............
TUCKER, J.
{¶ 1} Plaintiffs-appellants, Ghassan Deek, Eusebio H. Faura, Teresa K. Griffith,
Thomas A. Griffith, Scott Howard, Darlene Lucas, Dean Lucas, Joe Meyer, Stacy Toney,
Terry Toney, Austin Troxell and Charles Grant Vandervort, appeal from the decision of
the Montgomery County Court of Common Pleas in their civil actions contesting notices
of civil liability issued under Dayton, Trotwood and West Carrollton municipal ordinances
implementing automated traffic enforcement systems. In its decision, the trial court
overruled Appellants’ motions for summary judgment and class certification, and
sustained the competing motions for summary judgment and judgment on the pleadings
of Defendants-appellees, the City of Dayton; Chief Richard S. Biehl of the Dayton Police
Department; the City of Trotwood; Quincy E. Pope, Sr., Public Safety Director and Deputy
City Manager for the City of Trotwood; the City of West Carrollton; Chief Doug Woodard
of the West Carrollton Police Department; and RedFlex Traffic Systems, Inc. Appellants
argue that the trial court erred when it determined that the cities’ automated traffic
enforcement ordinances are not facially unconstitutional pursuant to Article I, Section 16,
Ohio Constitution. We concur with the trial court’s determination. Therefore, we affirm.
I. Facts and Procedural History
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{¶ 2} The ordinances at issue (collectively, the “Ordinances”)—Revised Code of
General Ordinances of the City of Dayton, Ohio [hereinafter R.C.G.O.] 70.121; City of
Trotwood Code of Ordinances [hereinafter TCO] 313.11 and 333.09; and Codified
Ordinances of West Carrollton, Ohio [hereinafter WCCO] 72.130—implement automated
traffic enforcement systems. Under the Ordinances, automatic camera stations are
installed at selected locations to detect red-light and speed-limit violations. When a
vehicle is photographed in the midst of a violation, a notice of civil liability is mailed to the
owner of the vehicle. The owner may then pay the monetary penalty or request an
administrative hearing to contest the notice.
{¶ 3} Appellants Ghassan Deek, Teresa Griffith, Thomas Griffith, Stacy Toney,
Terry Toney and Charles Vandervort commenced Case No. 2014 CV 01713 in the
Montgomery County Court of Common Pleas on March 25, 2014.1 With the exception
of Thomas Griffith and Stacy Toney, all of them received at least one notice of civil liability
from the City of Dayton. None of the recipients requested an administrative hearing.
{¶ 4} Appellants Scott Howard, Joe Meyer and Austin Troxell commenced Case
No. 2014 CV 03292 in the Montgomery County Court of Common Pleas on June 4, 2014.
All of them received at least one notice of civil liability from the City of West Carrollton.
Mr. Howard received two notices and did not request an administrative hearing in
1 Originally, Aaron Berger and Alicia Berger were among the plaintiffs. The two
voluntarily dismissed all of their claims without prejudice in a notice of dismissal filed on
August 12, 2014. The trial court refers to the Bergers in passing in the decision on
appeal, and in their brief, Appellees likewise mention the Bergers in their recitation of the
facts. Nevertheless, in the absence of any counterclaims or cross-claims against them,
the Bergers would not seem to be parties to this appeal given that they voluntarily
dismissed their claims prior to the trial court’s entry of judgment.
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response to either of them. Mr. Meyer received three notices and requested a hearing
in response to one. Mr. Troxell received two notices and requested a hearing in each
instance.
{¶ 5} Appellants Scott Howard, Darlene Lucas and Dean Lucas commenced Case
No. 2014 CV 03494 on June 4, 2014, though they subsequently filed an amended
complaint to join Appellant Eusebio Faura as an additional plaintiff.2 Messrs. Faura and
Howard each received a notice of civil liability from the City of Trotwood, and neither
requested an administrative hearing in response. Darlene Lucas and Dean Lucas did
not receive notices from the City of Trotwood.
{¶ 6} In a series of orders entered on July 29 and July 30, 2014, the trial court
consolidated the three cases. The complaint in each case consists of essentially the
same four causes of action. Count I is a cause of action for declaratory judgment
concerning the jurisdiction of the administrative tribunals established by the Ordinances.
Count II, also a cause of action for declaratory judgment, concerns the constitutional
validity of the Ordinances pursuant to the due process clause of the Ohio Constitution.
Count III is a request for injunctive relief, and Count IV is a claim of unjust enrichment.
At Appellants’ request, and without opposition, the trial court dismissed Count I in all three
cases on March 1, 2016.3
2 Appellant Scott Howard appeared as a plaintiff in Case No. 2014 CV 03292 and in Case
No. 2014 CV 03294. In the former, he avers that he is a resident of the City of West
Carrollton residing at “1001 Primrose Drive, West Carrollton, Ohio 45449,” and in the
latter, he avers that he is a resident of the City of Trotwood residing at “1001 Primrose
Drive, Trotwood, Ohio 45449.”
3 The trial court had stayed the cases on August 22, 2014, finding that forthcoming
opinions from the Ohio Supreme Court were likely to have a direct bearing. In its entry
of March 1, 2016, it lifted the stay and dismissed Count I of Appellants’ complaints in the
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{¶ 7} On August 8, 2016, the trial court entered a final decision in the consolidated
cases, resolving a number of dispositive motions. In Case No. 2014 CV 01713, the
court:
a. overruled the plaintiffs’ motion for summary judgment;
b. overruled the plaintiffs’ motion for class certification;
c. sustained the motion of Defendants, the City of Dayton and
Chief Richard Biehl, for summary judgment; and
d. sustained the motion of Defendant, RedFlex Traffic Systems,
Inc., for summary judgment.
In Case No. 2014 CV 03292, the court:
a. overruled the plaintiffs’ motion for judgment on the pleadings;
b. overruled the plaintiffs’ motion for class certification;
c. sustained the motion of Defendants, the City of West
Carrollton and Chief Doug Woodard, for summary judgment;
and
d. sustained the motion of Defendant, RedFlex Traffic Systems,
Inc., for summary judgment.
And in Case No. 2014 CV 03294, the court:
a. overruled the plaintiffs’ motion for judgment on the pleadings;
b. overruled the plaintiffs’ motion for class certification;
c. sustained the motion of Defendants, the City of Trotwood and
wake of the Ohio Supreme Court’s opinions in Walker v. City of Toledo, 143 Ohio St.3d
420, 2014-Ohio-5461, 39 N.E.3d 474, and Jodka v. City of Cleveland, 143 Ohio St.3d 50,
2015-Ohio-860, 34 N.E.3d 99.
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Quincy Pope, Sr. for judgment on the pleadings; and
d. sustained the motion of Defendant, RedFlex Traffic Systems,
Inc., for summary judgment.
II. Appellants’ First Assignment of Error
{¶ 8} For the first of their two assignments of error, Appellants contend that:
THE TRIAL COURT INCORRECTLY CONCLUDED THAT THE
AUTOMATIC TRAFFIC ENFORCEMENT SYSTEMS DID NOT VIOLATE
THE DUE COURSE OF LAW PROVISIONS OF THE OHIO
CONSTITUTION.
{¶ 9} Appellants raise a facial challenge to the Ordinances, arguing that they
violate the Ohio Constitution because they fail to provide sufficient procedural due
process guarantees. A facial constitutional challenge posits that “a statute, ordinance,
or administrative rule, on its face and under all circumstances, has no rational relationship
to a legitimate governmental purpose,” a high standard made all the more difficult to meet
because it requires “proof beyond a reasonable doubt.” Wymsylo v. Bartec, Inc., 132
Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21, citing Jaylin Invs., Inc. v. Vill. of
Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d 903, ¶ 11; State ex rel.
Ohio Congress of Parents & Teachers v. State Bd. of Educ., 111 Ohio St.3d 568, 2006-
Ohio-5512, 857 N.E.2d 1148, ¶ 21. Reference “to extrinsic facts is not required to
resolve a facial challenge,” and when evaluating an ordinance by this standard, a court
should not “speculate about ‘hypothetical’ or ‘imaginary’ cases.” Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449-450, 128 S.Ct. 1184,
170 L.Ed. 2d 151 (2008), citing United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4
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L.Ed.2d 524 (1960); Wymsylo, 2012-Ohio-2187, ¶ 21, citing Washington State Grange,
552 U.S. at 450, and City of Reading v. Pub. Util. Comm’n, 109 Ohio St.3d 193, 2006-
Ohio-2181, 846 N.E.2d 840, ¶ 15.
{¶ 10} All “legislation, including municipal ordinances, [is] entitled to a strong
presumption of constitutionality.” (Citation omitted.) Cleveland Taxpayers for Ohio
Constitution v. City of Cleveland, 8th Dist. Cuyahoga No. 94327, 2010-Ohio-4685, ¶ 7.
As a result, courts should “liberally construe [a challenged ordinance] in order to save it
from constitutional infirmities.” Id., citing City of Lebanon v. McClure, 44 Ohio App.3d
114, 116, 541 N.E.2d 1073 (12th Dist.1988). If, by “ ‘any fair course of reasoning, the
[ordinance] and the constitution can be reconciled, [then] the [ordinance] must stand.’ ”
Id., quoting State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547,
¶ 9.
{¶ 11} Article I, Section 16 of the Ohio Constitution states, in relevant part, that
persons who suffer physical harm or harm to their “land[s], goods, * * * or reputation[s],
shall have remedy by due course of law”; this is “the equivalent of the Due Process Clause
of the United States Constitution.” Stetter v. R.J. Corman Derailment Servs., L.L.C., 125
Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 69. The “fundamental requirement
of [procedural] due process is the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d
18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62
(1965). In reviewing an ordinance “on due-process grounds, [a court should] apply a
rational-basis test unless the statute restricts the exercise of fundamental rights.” Arbino
v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 49, citing
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Sorrell v. Thevenir, 69 Ohio St.3d 415, 423, 633 N.E.2d 504 (1994), and Morris v. Savoy,
61 Ohio St.3d 684, 688-689, 576 N.E.2d 765 (1991). An ordinance is constitutionally
valid under this test if it bears “ ‘a real and substantial relation to the * * * health, safety,
morals or general welfare of the public’ ” and is “ ‘not unreasonable or arbitrary.’ ”
Mominee v. Scherbarth, 28 Ohio St.3d 270, 274, 503 N.E.2d 717 (1986), quoting
Benjamin v. City of Columbus, 167 Ohio St. 103, 146 N.E.2d 854 (1957), paragraph five
of the syllabus.
{¶ 12} Unlike “ ‘some legal rules, [due process] is not a technical conception with
a fixed content unrelated to time, place and circumstances.’ ” Mathews, 424 U.S. at 334,
quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230
(1961). Instead, due process is a “ ‘flexible [concept] and calls for such procedural
protection as [a given] situation demands.’ ” Id., quoting Morrissey v. Brewer, 408 U.S.
471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Identification of the precise
requirements of procedural due process for a specific set of circumstances generally
requires consideration of the following three factors:
First, the private interest that will be affected by * * * official action; second,
the risk of an erroneous deprivation of [that private] interest through the
[official] procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and [third], the [g]overnment’s interest,
including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement[s] would entail.
(Citation omitted.) Id. at 335; see also Shirokey v. Marth, 63 Ohio St.3d 113, 120, 585
N.E.2d 407 (1992), citing Mathews, 424 U.S. at 335. Simply put, “[t]he less that is at
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stake, other things being equal, the less process is due.” Van Harken v. City of Chicago,
103 F.3d 1346, 1353 (7th Cir.1997). When the “ ‘interest is purely economic, the [Ohio]
constitution demands only * * * a meaningful opportunity to be heard.’ ” See Shirokey,
63 Ohio St.3d at 120, quoting 1946 St. Clair Corp. v. City of Cleveland, 49 Ohio St.3d 33,
36, 550 N.E.2d 456 (1990).
A. The Ordinances
{¶ 13} Appellants direct their challenges at the Ordinances’ provisions on
administrative hearings, arguing that they suffer from four putative constitutional
shortcomings: use of hearsay testimony in the absence of discovery and subpoena
power; limitations on affirmative defenses; abrogation of spousal privilege; and the bond
requirements. Elaborating on their first argument, Appellants acknowledge that the
“Ohio Supreme Court has held that administrative agencies are not bound by the rules of
evidence applied in court.” City of Cleveland v. Posner, 193 Ohio App.3d 211, 2011-
Ohio-1370, 951 N.E.2d 476, ¶ 27, citing Simon v. Lake Geauga Printing Co., 69 Ohio
St.2d 41, 44, 430 N.E.2d 468 (1982). Discovery “is typically not available,” and an
administrative tribunal may admit any reliable, probative and substantial evidence,
including hearsay.4 Kuczak v. City of Trotwood Police Dep’t, S.D.Ohio No. 3:13-cv-101,
2016 WL 4987170, *6 (Sept. 15, 2016); Posner, 2011-Ohio-1370, ¶ 27. Moreover,
4 Reliable evidence “ ‘is dependable,’ ” meaning that “ ‘it can be confidently trusted.’ ”
Posner, 2011-Ohio-1370, ¶ 27, quoting Our Place, Inc. v. Ohio Liquor Control Comm’n,
63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992). To be deemed reliable, “ ‘there must
be a reasonable probability that the evidence is true.’ ” Id., quoting Our Place, 63 Ohio
St.3d at 571. Probative evidence “ ‘is evidence that tends to prove the issue in question’ ”
and “ ‘must be relevant in determining the issue.’ ” Id., quoting Our Place, 63 Ohio St.3d
at 571. Substantial evidence has “ ‘some weight’ ” or, in other words, “ ‘must have
importance and value.’ ” Id., quoting Our Place, 63 Ohio St.3d at 571.
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because “there is no constitutional right to confront witnesses in civil proceedings,” the
availability of subpoenas in administrative actions is not constitutionally mandated. See
Kuczak, 2016 WL 4987170, *13, citing Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct.
1502, 4 L.Ed.2d 1307 (1960), fn. 16. Recognizing these principles, Appellants contend
nevertheless that where an administrative tribunal “rel[ies] on hearsay evidence and [at
the same time does] not provide any opportunity for the [defendant] to compel the
attendance of the declarant[],” the defendant has been deprived of procedural due
process rights because the defendant has had no chance to attack “the veracity of the
hearsay statements.” (Emphasis added.) Appellants’ Br. 17.
{¶ 14} Regarding affirmative defenses, Appellants argue that limitations imposed
on the supporting evidence that may be introduced are unreasonably restrictive. They
also argue that the burden of proof required of some defendants may result in the
abrogation of spousal privilege inasmuch as R.C.G.O. 70.121(C)(2), TCO 313.11(c)(3)(A)
and 333.09(c)(3)(A), and WCCO 72.130(C)(4)(a) allow the owner of a vehicle to avoid
civil liability for a violation committed by another person by providing the name and
address of the person driving the vehicle at the time of the alleged violation. Regarding
the bond requirement, Appellants argue that the Ordinances effectively deny indigent
defendants the remedy of an administrative hearing.
1. R.C.G.O. 70.121
{¶ 15} The first of the Mathews factors is “the private interest that will be affected
by the official action.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d
18 (1976) Under the City of Dayton’s ordinance, the civil penalty assessed “may not
exceed $250.00 per violation,” but violators who fail to remit timely payment of the penalty
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must also pay a late fee of $25.00.5 R.C.G.O. 70.121(F)(2) and (4). The private interest
under the Dayton ordinance, then, is a maximum of $275.00. Although this amount
would doubtless be a significant expense for the average motorist, it is comparatively
insubstantial with respect to the overall cost of owning and operating a vehicle.
{¶ 16} The second factor is “the risk of an erroneous deprivation of [the] private
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards.” Mathews, 424 U.S. at 335. Dayton’s ordinance
establishes that an alleged violator must receive a notice of liability, has the right to an
administrative hearing, and at the hearing, may introduce at least some evidence in
support of a defense. R.C.G.O. 70.121(C)(3)-(4), (D), (E)(1)(c) and (E)(2). Under
R.C.G.O. 70.121(E)(2), which sets forth a list of “affirmative defense[s],” the owner—or
driver—of a vehicle can avoid liability by showing that commission of the violation was
necessary “in order to yield the right-of-way to an emergency vehicle * * * or to a funeral
procession”; that the vehicle “or [its] registration plates were stolen before the violation
occurred”; that “at the time and place of the alleged violation, the traffic control signal or
speed sensor,” as applicable, “were not operating properly”; or that the driver of the
vehicle at the time was not the person named in the notice. To “demonstrate that the
* * * vehicle or [its] registration plates were stolen before the violation occurred,” the owner
of the vehicle “must submit proof that a [corresponding] police report * * * was filed prior
to the violation or within 48 hours after the violation occurred.” R.C.G.O. 70.121(E)(2)(b).
Similarly, when an owner receives a notice of liability and wishes to defend on the grounds
5The ordinance does not set a minimum penalty or indicate how, in each case, the
amount of the penalty should be determined.
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that another person was driving the vehicle, the owner must indicate, “at a minimum, the
[actual] operator’s name and current address, and any other evidence [deemed
necessary] by the [h]earing [o]fficer.” R.C.G.O. 70.121(E)(2)(d). The owner of a vehicle
is, however, ultimately “responsible for a violation * * *, except when the owner can
provide evidence that the vehicle was in the care, custody, and control of another person
at the time of the violation.” R.C.G.O. 70.121(C)(1).
{¶ 17} Notwithstanding that these procedures fall short of the due process
accorded a defendant in a civil trial, they suffice to minimize the risk of penalizing the
wrong party. Procedural “due process rules are meant to protect persons not from [any]
deprivation, but [only] from the mistaken or unjustified deprivation of life, liberty, or
property.” (Emphasis added.) Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55
L.Ed.2d 252 (1978). Dayton’s ordinance accounts for the most likely scenarios in which
a person identified in a notice of liability is not responsible for the violation alleged—
authorized or permissive use of the vehicle by another person, theft of the vehicle or its
license plates, or malfunctioning of the automatic enforcement equipment. Furthermore,
despite the limitations imposed on the evidence that a defendant may introduce at an
administrative hearing, the defendant still has a reasonable opportunity to demonstrate
that another person was responsible for the violation; regarding defenses of this kind, we
conclude that additional or substitute procedural safeguards would likely have little value.
{¶ 18} By contrast, a defendant mounting a defense based upon a fault in the
automatic enforcement equipment encounters significant obstacles, the inability to submit
discovery requests or issue subpoenas to the person or persons responsible for
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monitoring and maintaining the equipment. 6 Even so, these obstacles do not of
themselves rise to the level of constitutional infirmities because a defendant has no
constitutional right to confront witnesses in civil proceedings. Kuczak v. City of Trotwood
Police Dep’t, S.D.Ohio No. 3:13-cv-101, 2016 WL 4987170, *13 (Sept. 15, 2016). The
ordinance, for that matter, does not on its face prohibit defendants from engaging their
own expert witnesses to testify regarding the equipment’s accuracy. And because
administrative hearings held pursuant to R.C.G.O. 70.121 qualify as quasi-judicial
proceedings, a defendant can overcome these obstacles through an administrative
appeal under R.C. Chapter 2506.7 City of Cleveland v. Cord, 8th Dist. Cuyahoga No.
96312, 2011-Ohio-4262, ¶ 13 (commenting that “so long as [a defendant in an
administrative hearing] is presented with an opportunity to call witnesses, it does not
6 R.C.G.O. 70.121 does not include an express grant of subpoena power to the
administrative tribunal. See Beachland Ents., Inc. v. City of Cleveland Bd. of Review,
8th Dist. Cuyahoga No. 99770, 2013-Ohio-5585, ¶ 58-59 (concluding that an
administrative tribunal lacks subpoena power in the absence of an express delegation).
7 An administrative tribunal qualifies as a quasi-judicial proceeding when it requires
notice, a hearing and the opportunity to introduce evidence through the testimony of
witnesses; subpoena power is not required. See, e.g., Beachland Ents., Inc. v. City of
Cleveland Bd. of Review, 8th Dist. Cuyahoga No. 99770, 2013-Ohio-5585, ¶ 47, citing
M.J. Kelley Co. v. City of Cleveland, 32 Ohio St.2d 150, 290 N.E.2d 562 (1972). Bearing
in mind that due process rules are intended to prevent only “the mistaken or unjustified
deprivation” of property, Appellants’ concern about the reliability of the automatic
enforcement equipment might be largely unfounded. Carey v. Piphus, 435 U.S. 247,
259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). They opine that “[t]his is not [merely] an
academic concern” because “[n]ews reports from other cities have suggested that there
are significant problems with some * * * automated speed enforcement system[s],”
pointing to an audit of a system in use in Baltimore, Maryland that “revealed
* * * an error rate of more than 10 percent.” Appellants’ Br. 22. Were the same true of
the systems to which Appellants object in the instant appeal, that would mean that the
systems have an accuracy rate of nearly 90 percent. This represents a substantially
lower tolerance for error than the preponderance-of-the-evidence standard commonly
applicable in civil matters.
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matter when this opportunity occurs in order to preserve [the defendant]’s due process
rights”), citing City of Cleveland v. Posner, 193 Ohio App.3d 211, 2011-Ohio-1370, 951
N.E.2d 476, ¶ 30-40.
{¶ 19} The third Mathews factor is the government’s interest, “including the
function involved and the fiscal and administrative burdens that additional or substitute
procedural requirements would entail.” Mathews, 424 U.S. at 335. Nominally, at least,
the ordinance is an exercise of the city’s police powers intended to promote traffic safety.
Compared to the administrative hearing process as presently constituted in the ordinance,
additional procedural safeguards, such as vesting the tribunal with subpoena power and
granting defendants the right to engage in discovery, would certainly result in a dramatic
increase in the city’s costs and administrative burdens. For example, as the Southern
District of Ohio found in a similar case, the “fiscal and administrative burdens of requiring
police officers, or others who could testify about the accuracy of the equipment used, to
attend each administrative hearing would eliminate any efficiencies that the civil
enforcement proceedings were designed to achieve.” Kuczak, 2016 WL 4987170, *13;
see also Balaban v. City of Cleveland, N.D. Ohio No. 1:07-cv-1366, 2010 WL 481283, *7
(Feb. 5, 2010). We find likewise that the increased fiscal and administrative burdens
would outweigh the potential benefit of enhanced procedural due process protections.
{¶ 20} Accordingly, Appellants’ arguments concerning use of hearsay evidence
and lack of discovery and subpoena power are unavailing. The ordinance affords the
recipient of a notice of liability with a reasonable opportunity to present a defense based
on the most likely grounds, even if a recipient seeking to prove an equipment malfunction
would, as a practical matter, have little choice other than to bring an administrative appeal
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under R.C. Chapter 2506.
{¶ 21} The balance of the purported constitutional infirmities with which Appellants
charge the ordinance are unavailing, as well. Appellants argue that the ordinance
unfairly restricts the evidence that an owner of a vehicle may present in support of an
affirmative defense. Their complaint in this respect is that “a person who receives a
notice of violation and who claims not to have been driving the car [at the time of the
violation] is not permitted * * * merely [to] convince the hearing officer that [another person]
was * * * the driver.” Appellants’ Br. 23. Yet, the ordinance effectively gives a defendant
in this position a choice: accept liability for the third party’s use of the car, or identify the
responsible third party. This would not seem to violate due process or upset traditional
notions of fair play. See, e.g., Idris v. City of Chicago, 552 F.3d 564, 566 (7th Cir.2009)
(affirming the constitutionality of this approach under a similar Chicago ordinance).
{¶ 22} Further, Appellants contend that married defendants who receive notices of
liability for violations committed by their spouses must either pay penalties for violations
they did not commit, or implicate their spouses. See R.C.G.O. 70.121(C)(2).
Appellants describe this Scylla and Charybdis as an abrogation of R.C. 2317.02(D), under
which a spouse “shall not testify” about “any communication made by one to the other, or
an act done by either in the presence of the other, during coverture, unless the
communication was made, or act done, in the known presence or hearing of a third person
competent to be a witness.”
{¶ 23} The difficult choice thus foisted upon married defendants does not render
the ordinance unconstitutional on its face. Assuming, without finding, that the ordinance
might abrogate spousal privilege in some cases, it would necessarily do so only in those
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cases in which one spouse is driving with the other in the car. Irrespective of whether
the ordinance might offend spousal privilege in certain circumstances, Appellants have
lodged a facial challenge to the ordinance, and to prevail, they must show that the
ordinance cannot be applied constitutionally in any circumstances. (Citation omitted.)
Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 21.
The ordinance would not, on its face, necessarily do so in every instance.
{¶ 24} Appellants’ remaining argument against the ordinance is that the bond
requirement in R.C.G.O. 70.121(E)(1)(c) denies due process to indigent defendants.
Certainly, this requirement creates additional hurdles for defendants with limited financial
means, and by extension, it could discourage such defendants from requesting
administrative hearings to contest notices of liability. Nevertheless, the rectification of
economic disparities of this kind is not the purpose of procedural due process protections.
The U.S. Supreme Court, for example, has held that “the Due Process Clause does not
automatically require the provision of counsel at civil contempt proceedings to an indigent
[person] who is subject to a child support order, even if that [person] faces incarceration”
for up to one year. Turner v. Rogers, 564 U.S. 431, 448, 131 S.Ct. 2507, 180 L.Ed.2d
452 (2011). Here, far less important interests are at stake, supporting the conclusion
that procedural due process does not require that the ordinance permit an indigent
defendant to obtain a waiver of the bond requirement. Furthermore, assuming without
finding that the bond requirement is unconstitutional with respect to indigent defendants,
the ordinance could still be applied constitutionally with respect to non-indigent
defendants. Appellants’ facial challenge therefore cannot succeed on this basis.
{¶ 25} Evaluated pursuant to the Mathews factors, the ordinance provides a
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situationally appropriate level of procedural due process protection. Consequently,
Appellants have not shown that the administrative procedures established in the
ordinance are constitutionally insufficient. Evaluated pursuant to the rational-basis test,
the result is the same.
{¶ 26} The ordinance bears a real and substantial relation to public safety and
implements a streamlined, low-cost system of traffic enforcement. Although it
considerably restricts the defenses and evidence available to recipients of notices of
liability, administrative costs in the absence of these restrictions would defeat the purpose
of the system. The design of the ordinance, then, is neither unreasonable nor arbitrary,
and for all of the foregoing reasons, we hold that the ordinance is not constitutionally
invalid on its face. Wymsylo, 2012-Ohio-2187, ¶ 21; Mominee v. Scherbarth, 28 Ohio
St.3d 270, 274, 503 N.E.2d 717 (1986), quoting Benjamin v. City of Columbus, 167 Ohio
St. 103, 146 N.E.2d 854 (1957), paragraph five of the syllabus.
2. TCO 313.11 and 333.09, and WCCO 72.130
{¶ 27} With respect to the Dayton ordinance, the Trotwood and West Carrollton
ordinances differ primarily in terms of maximum possible penalty. Under the Trotwood
ordinances, the amount of the penalty is $85.00, though a further penalty of $50.00 (for a
maximum total of $135.00) is assessed when the recipient of a notice of violation fails to
pay, submit proof that another person was driving, or request an administrative hearing
within 21 days of the notice date. See TCO 313.11(d)(1), (e) and 333.09(d)(1), (e)
Under the West Carrollton ordinance, the maximum penalty is $100.00. WCCO
72.130(D)(1)-(2).
{¶ 28} The Dayton ordinance also differs from the West Carrollton ordinance
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inasmuch as it states that a “certified copy of [a] notice of liability * * * shall be prima facie
evidence of the facts contained therein and shall be admissible in a proceeding alleging
a violation,” whereas the analogous provision of the West Carrollton ordinance states that
“[the fact that a vehicle is registered in the name of the person to whom a notice of
violation is issued will be deemed] prima facie evidence that [that person] was operating
the vehicle at the time of the offense.” R.C.G.O. 70.121(C)(4); WCCO 72.130(C)(3).
{¶ 29} The Trotwood and West Carrollton ordinances do not otherwise differ
substantively from the Dayton ordinance. Therefore, we hold that the Trotwood and
West Carrollton ordinances are not facially unconstitutional pursuant to Article I, Section
16 of the Ohio Constitution.
3. Procedural Questions
{¶ 30} In Case Nos. 2014 CV 01713 and 2014 CV 03292, the trial court entered
judgment in favor of Appellees under Civ.R. 56, and in Case No. 2014 CV 03294, the trial
court likewise entered judgment in favor of Appellee, RedFlex Traffic Systems, Inc.
Summary judgment is appropriate pursuant to Rule 56 of the Ohio Rules of Civil
Procedure when: (1) there is no genuine issue as to any material fact; (2) the moving
party is entitled to judgment as a matter of law; and (3) construing the evidence most
strongly in favor of the non-moving party, reasonable minds can come to only one
conclusion, which is adverse to the non-moving party. Harless v. Willis Day
Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). The movant bears the
initial burden of showing that no genuine issues of material fact exist. Mitseff v. Wheeler,
38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988).
{¶ 31} In order to meet this initial burden, the movant must identify those portions
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of the record properly before the court pursuant to Civ.R. 56(C) that demonstrate the
absence of any genuine issues of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-
293, 662 N.E.2d 264 (1996). If the movant provides the court with evidence supporting
its claim that no genuine issues of material fact exist, then the non-moving party bears
the reciprocal burden to establish, as set forth in Civ.R. 56(E), specific facts showing
genuine issues for trial. Id. at 293. The non-moving party “may not rest upon the mere
allegations or denials of [the] pleading[s], but must set forth specific facts showing there
is [at least one] genuine issue for trial” to satisfy this reciprocal burden. Chaney v. Clark
County Agric. Soc., 90 Ohio App.3d 421, 424, 629 N.E.2d 513 (2d Dist. 1993), citing
Civ.R. 56(E), and Jackson v. Alert Fire & Safety Equip., 58 Ohio St.3d 48, 51, 567 N.E.2d
1027 (1991).
{¶ 32} The key to summary judgment is that no genuine issue as to any material
fact is presented for trial. Whether a fact is “material” depends on the substantive law of
the claim being litigated. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Turner v. Turner, 67 Ohio St.3d 337, 340, 617
N.E.2d 1123 (1993). An issue of material fact exists when the relevant factual
allegations in the pleadings, affidavits, depositions or interrogatories are in conflict. Link
v. Leadworks Corp., 79 Ohio App.3d 735, 741, 607 N.E.2d 1140 (8th Dist.1992). If a
genuine issue of material fact exists, then summary judgment must, of course, be denied.
{¶ 33} In Case No. 2014 CV 03294, the court sustained the motion of Appellees,
the City of Trotwood and Quincy Pope, Sr., for judgment on the pleadings. Civ. R. 12(C)
provides that “after the pleadings are closed but within such time as not to delay the trial,
any party may move for judgment on the pleadings.” A trial court’s evaluation of a motion
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for judgment on the pleadings “ ‘is restricted solely to the allegations in the pleadings and
any writings attached to the complaint.’ ” Inskeep v. Burton, 2d Dist. Champaign No.
2007 CA 11, 2008-Ohio-1982, ¶ 7, quoting Peterson v. Teodosio, 34 Ohio St.2d 161, 165,
297 N.E.2d 113 (1973). On consideration of a motion under Civ.R. 12(C), the non-
moving party “is entitled to have all the material allegations in [the] complaint, with all
reasonable inferences drawn, construed in [its] favor as true.” Lin v. Gatehouse Constr.
Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8th Dist. 1992), citing Fischer v. Morales,
38 Ohio App.3d 110, 112, 526 N.E.2d 1098 (10th Dist. 1987).
{¶ 34} A motion for judgment on the pleadings can be “characterized as a belated
Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted,” the
purpose of such a motion being to resolve questions of law, as opposed to questions of
fact. Whaley v. Franklin County Bd. of Comm’rs, 92 Ohio St.3d 574, 581, 752 N.E.2d
267 (2001); State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664
N.E.2d 931 (1996). Judgment on the pleadings “may be granted only when no material
factual issues exist, and the movant is entitled to * * * judgment as a matter of law.”
(Citations omitted). Burnside v. Leimbach, 71 Ohio App.3d 399, 403, 594 N.E.2d 60
(10th Dist. 1991). A material fact is a fact that, “under the applicable substantive law,”
would “affect the outcome of the suit.” (Citations omitted.) Wood v. Dorcas, 142 Ohio
App.3d 783, 787, 757 N.E.2d 17 (6th Dist. 2001) (discussing meaning of term “material
fact” in context of motion for summary judgment).
{¶ 35} A motion to dismiss for failure to state a claim upon which relief can be
granted, pursuant to Civ.R. 12(B)(6), “is [a] procedural [motion that] tests the sufficiency
of [a] complaint.” State ex rel. Hanson v. Guernsey County Bd. of Comm’rs, 65 Ohio
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St.3d 545, 548, 605 N.E.2d 378 (1992). When a court reviews a motion to dismiss, it
“must presume that all factual allegations of the complaint are true and make all
reasonable inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co., 40
Ohio St.3d 190, 192, 532 N.E.2d 753 (1988) (citations omitted). The movant “may not
rely on allegations or evidence outside the complaint.” Hanson, 65 Ohio St.3d at 548.
{¶ 36} For a “trial court to dismiss a complaint under Civ.R. 12(B)(6) * * *, it must
appear beyond doubt that the plaintiff can prove no set of facts in support of the [claim or
claims in the complaint] that would entitle the plaintiff to the relief sought.” Ohio Bureau
of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814,
¶ 12, citing O’Brien v. Univ. Cmty. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327
N.E.2d 753 (1975), and LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-
Ohio-3608, 872 N.E.2d 254; see also Sacksteder v. Senney, 2d Dist. Montgomery No.
24993, 2012-Ohio-4452, ¶¶ 35-46 (holding that traditional standard of review applies to
motions to dismiss under Ohio law despite recent cases suggesting application of a
“plausibility test” in federal cases). The standard for dismissal under Civ.R. 12(B)(6) is
consistent with Civ.R. 8(A), which requires that a complaint “contain * * * a short and plain
statement of the claim [or claims] showing that the [plaintiff] is entitled to relief.” See also
City of Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768
N.E.2d 1136, ¶ 29 (noting that Ohio “is a notice-pleading state” and that “Ohio law does
not ordinarily require a plaintiff to plead operative facts with particularity”). To survive a
motion to dismiss, in other words, a plaintiff need not provide in a complaint “every fact
he or she intends to prove; such facts may not be available until after discovery” has been
exchanged. Hanson, 65 Ohio St. 3d at 549.
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{¶ 37} The “material facts are uncontroverted” in these cases. Appellants’ Br. 9.
Because we agree with the trial court’s conclusions of law regarding the constitutionality
of the Ordinances, we find that the court did not err by sustaining Appellees’ motions for
summary judgment and judgment on the pleadings.
B. Standing and Exhaustion of Administrative Remedies
{¶ 38} As a practical matter, our ruling on the constitutional validity of the
Ordinances all but obviates the need to address the argument that some of the appellants
lack standing to appeal from the trial court’s decision. We agree, however, with the trial
court’s determination that those who received a notice of liability have standing to appeal,
regardless of whether they paid or did not pay their civil penalties before commencing suit
in the trial court. See, e.g., San Allen, Inc. v. Buehrer, 2014-Ohio-2071, 11 N.E.3d 739,
¶ 57-58 (8th Dist.).
III. Appellants’ Second Assignment of Error
{¶ 39} For their second assignment of error, Appellants contend that:
THE TRIAL COURT IMPROPERLY GRANTED SUMMARY
JUDGMENT IN FAVOR OF APPELLEES ON APPELLANTS’ UNJUST
ENRICHMENT CLAIMS.
{¶ 40} Appellants base their claim of unjust enrichment on the argument that the
Ordinances are facially unconstitutional. Appellants’ Br. 43. Because we have held that
the Ordinances are not facially unconstitutional, we find that Appellants’ second
assignment of error is moot.
IV. Conclusion
{¶ 41} The Ordinances bear a rational relationship to a legitimate governmental
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function, and they are neither unreasonable nor arbitrary. They provide an appropriate
level of procedural due process guarantees in light of their purpose, the private interests
at stake and the administrative and fiscal burdens that additional due process protections
would impose on cities. Therefore, we overrule Appellants’ assignments of error and
affirm the trial court’s decision of August 8, 2016.
.............
WELBAUM, J., concurs.
FROELICH, J., concurring:
{¶ 42} I would find that there are significant legal concerns involving some of the
process provided, or not provided, to certain individuals who wish to contest a “notice of
civil liability.” However, on this record, I concur that the trial court did not err in granting
the motions for summary judgment and judgment on the pleadings and finding that the
ordinances in question are not facially unconstitutional.
..........
Copies mailed to:
Joshua A. Engel
Michael K. Allen
Paul M. DeMarco
Thomas J. Manning
John C. Musto
Dawn M. Frick
David M. Shaver
Jeffrey C. Turner
Edward J. Dowd
Joshua R. Schierloh
Lori E. Denlinger
Quintin F. Lindsmith
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James P. Schuck
Sommer L. Sheely
Stephen M. McHugh
Amelia N. Blankenship
Christopher R. Conard
Neil F. Freund
Kelly M. Schroeder
Hon. Michael W. Krumholtz
Toney v. City of Dayton
Court: Ohio Court of Appeals
Date filed: 2017-06-30
Citations: 2017 Ohio 5618, 94 N.E.3d 179
Copy CitationsCombined Opinion