http://www.thenewspaper.com/news/31/3191.asp

7/5/2010
Ohio Appeals Court Green Lights Traffic Camera Suit
Ohio Appeals Court allows constitutional challenge to speed camera program in Cleveland to proceed.

Ohio's second highest court on Thursday ruled that a constitutional challenge to photo enforcement should proceed. Attorney Jeffrey Posner had appealed a speed camera ticket he received from a private contractor operating in Cleveland on the grounds that the way the private firm handled the evidence undermined his right to due process. A three-judge panel of the Court of Appeals for the Eight Appellate District found merit in his concerns and reversed the Cuyahoga County Common Pleas Court decision that previously had found no problem with the system of automated ticketing.

Posner argued that the evidence used against him was unscientific, unsubstantiated and not authenticated. The common pleas court replied that this line of reasoning was equivalent to saying that the city's ordinance was unconstitutional -- something the common pleas court claimed it did not have the power to decide. Posner, however, challenged the constitutionality of the process as applied to his specific case.

"Although the common pleas court had no jurisdiction to determine a facial challenge to the ordinance, it should have addressed Posner's 'as applied' arguments," appeals court Presiding Judge Mary J. Boyle wrote for the majority. "We therefore reverse the decision of the trial court and remand with instructions to address Posner's constitutional due process challenges to C.C.O. 413.031 'as applied' to his case."

Because Posner showed that he had reasonable grounds to appeal, the court ruled that he should recover costs. Judge Larry A. Jones disagreed with the majority, saying that he did not believe Posner had proved anything.

"It is a well-settled presumption that municipal ordinances are presumed to be constitutional," Jones wrote in his dissent. "C.C.O. 413.031 is afforded the same presumption... We should find, similar to the context of an as-applied constitutional challenge to zoning ordinances, that a party challenging the constitutionality of an ordinance on due process grounds bears the initial burden to produce evidence rebutting the presumption of constitutionality."

A copy of the decision is available in a 45k PDF file at the source link below.

Source:  Cleveland v. Poser (Court of Appeals, State of Ohio, 7/1/2010)

Court Ruling:  http://www.thenewspaper.com/rlc/docs/2010/oh-posner.pdf

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