Will new Toledo law violate Constitutional due process?

Well, it's official. The City of Toledo is seeking a law to either immobilize or impound vehicles with unpaid red light or speed camera tickets.

And here I thought the cameras were all about safety - not money. Apparently not.

Toledo has so many of these unpaid tickets that they're using it as an excuse for part of their budget woes. Recent news reports quote Police Chief Mike Navarre as saying the total amount due (dating back to 2000) is around $6 million, though not all of that money would go to the city. Some would go to the red-light camera company, RedFlex, which has a contract with the city to provide the cameras.

Last year, Toledo budgeted $2.5 million (more than they budgeted in 2008) in revenue from these cameras, but they only collected $874,308, leaving a significant shortfall. Of course, the fact that they over budgeted in 2008 should have given them their first clue about the problem.

They've tried a collection agency, but that's not working out too well. The problem isn't that the collection agency (a local law firm) isn't very good - it's that no court has ever issued a judgment in favor of the city for these civil fees, so people are ignoring them.

Under the current law, the photograph from the camera is prima facie evidence of a civil (not criminal) violation. The only way to appeal the violation is to request a hearing before a person hired by the city to serve as a hearing officer. The way the law is written, if the camera shows a vehicle and you are the owner, you are guilty. So when you appeal, the only way to get out of the presumption of guilt is to name another person as the driver.

It's no wonder this is a civil violation and not enforced under the traffic laws. If a person accused of hit-and-run were presumed guilty with the only way out being to present the actual offender, could you imagine how quickly various groups and citizens would be expressing their outrage? There's a reason why we have a presumption of innocence and due process procedures in the United States.

But when it comes to red light and speed camera violations, all those protections are thrown under the bus, ignored and flouted.

Now, without benefit of court adjudication, the city wants to confiscate property as a penalty for the violation.

Here is what the two ordinances relating to the immobilization/impoundment proposal say:

SECTION 5. That a new Toledo Municipal Code Subsection 313.12 (d)(6) is hereby enacted to read as follows:

“In lieu of assessing an additional penalty, pursuant to subsection (d)(5) above, the City of Toledo may (i) immobilize the vehicle by placing an immobilization device( e.g. a “boot”) on the tires of the vehicle pending the owners compliance with the Notice of Liability, or (ii) impound the vehicle, pursuant to TMC Section 303.08(a)(12). Furthermore, the owner of the vehicle shall be responsible for any outstanding fines, the fee for removal of the immobilization device (i.e., $75), and any costs associated with the impoundment of the vehicle.

and:

SUMMARY & BACKGROUND:

Toledo Municipal Code Section 303.08 provides authority for the City of Toledo Police to remove (i.e., impound) a vehicle under certain circumstances specified. Likewise, the Section provides a mechanism for an owner to redeem his or her impounded vehicle. This proposed legislation amends, specifically, Toledo Municipal Code Section 303.08(a) by enacting a new Subsection, i.e., TMC Subsection 303.08(a)(12), to include authority to impound a vehicle of an owner who has refused or failed to comply with the civil penalty imposed pursuant to the City’s automated red light and speeding photo enforcement Sections; i.e., TMC Section 313.12,et.al.

NOW, THEREFORE,

Be it ordained by the Council of the City of Toledo:

SECTION 1. That Toledo Municipal Code Chapter 303, and specifically Section 303.08(a), is hereby amended by enacting Section 303.08(a)(12) to read as follows:

“When any vehicle against which two or more notices of liability has issued, pursuant to TMC Section 313.12, and the vehicle owner, as defined by TMC Section 313.12(b)(4), has failed or refused to comply with the civil penalty assessed, but after the appeal period has expired, pursuant to TMC Section 313.12(d) (4).”

Yes, that's correct. They want to come and take your vehicle - or put a 'boot' on it, depriving you of its use - without ever having gone to court.

Your failure to cater to their desire for more income will result in the confiscation of your property.

The 5th Amendment to the Constitution states:

No person shall ... be deprived of life, liberty, or property, without due process of law;

So how is this proposed law NOT a deprivation of property without due process? You don't even have a way to appear before a judge under Toledo's current law and this new authority for the city doesn't change that fact.

Where are all the civil liberties groups on this issue? Are they even aware of the proposed law?

Chris Finney, an attorney and co-founder of COAST, Coalition Opposed to Additional Spending and Taxation, has been very vocal in opposing these cameras and might even be partially responsible for the failure of the city's budget projections.

He has advised individuals to ignore the tickets because the city has no ability to enforce them. He has also advised people that letters from attorneys threatening collection have no force unless adjudicated in a court of law. During my fill-in for Brian Wilson on WSPD yesterday, I talked to him about the plan to immobilize/impound vehicles and his response was that this was a lawsuit waiting to happen. He continued to tell people that unless they get a summons or notice from a court, the fines are unenforceable.

Obviously, he's not well-liked by the politicians, especially because he's going to mount another campaign in Toledo to repeal the law allowing cameras in the first place, with collection of signatures for the ballot measure scheduled to begin in about a month.

My hope is that individuals, attorneys and groups who believe in the Constitution and the protection of rights will vigorously oppose these two measures. Here is contact information to help you in this goal:

City Council phone: 419-245-1050

City Council emails:

phillip.copeland@toledo.oh.gov

rob.ludeman@toledo.oh.gov

joe.mcnamara@toledo.oh.gov

adam.martinez@toledo.oh.gov

george.sarantou@toledo.oh.gov

Steven.Steel@toledo.oh.gov

wilma.brown@toledo.oh.gov

dmichael.collins@toledo.oh.gov

mike.craig@toledo.oh.gov

michael.ashford@toledo.oh.gov

tom.waniewski@toledo.oh.gov

lindsay.webb@toledo.oh.gov