ELECTRONICALLY FILED

COURT OF COMMON PLEAS

Monday, July 29, 2019 9:52:09 AM
CASE NUMBER: 2019 CV 03464 Docket ID: 33654560
MIKE FOLEY
CLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COURT OF COMMON PLEAS

MONTGOMERY COUNTY, OHIO

CITY OF DAYTON, ) Case No.

)
Plaintiff, ) Judge
)
v. )
)
STATE OF OHIO, ) MOTION FOR A TEMPORARY
) RESTRAINING ORDER AND
Defendant. ) PRELIMINARY INJUNCTION

Pursuant to Rule 65 of the Ohio Rules of Civil Procedure, Plaintiff City of Dayton moves

this Court to enjoin the State from enforcing provisions of Amended House Bill 62 (“H.B. 62”)

that impermissibly limit Dayton’s Home Rule authority to operate a photo enforcement program

(“Photo Enforcement Program”). These contested provisions have already been enjoined by the

Lucas County Common Pleas Court, which found that they violate the Home Rule Amendment

and are not general laws. (Toledo v. State, Lucas C.P. No. CI0201802922, June 28, 2019, copy

attached hereto as Exhibit A). The decision enjoined the State from enforcing any of the

provisions. On July 15, 2019, the State filed a Motion with the Lucas County Common Pleas court

to clarify whether the injunction was statewide or limited to the City of Toledo. Last Friday

afternoon the Lucas County Common Pleas Court issued a clarification that the injunction only

applied to Toledo, requiring Dayton to file the instant Complaint and Motion for Temporary

Restraining Order to enjoin the Contested Provisions with respect to Dayton. Most pressing is the

provision that would retroactively reduce Dayton’s Local Government Fund Distributions based

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upon Dayton’s running a lawful photo enforcement program during the calendar year before H.B.

62 went into effect. This reduction will occur in August in the absence of an injunction.

The Contested Provisions of H.B. 62 are much like the provisions in 2014 Amended Senate

Bill 342 (“S.B. 342”) and 2015 Amended House Bill 64 (“H.B. 64”), which this Court and the

Ohio Supreme Court (and others) have already struck down as unconstitutional. 1 Dayton v. State,

151 Ohio St.3d 41, 2017 Ohio 6909; Dayton v. State, Montgomery C.P. No. 15-CV-1457; Toledo

v. State, Lucas C.P. No. CI0201802922; Akron v. Ohio, Summit C.P. No. CV-2015-07-3666;

Toledo v. State, 2017-Ohio-215, 72 N.E.3d 693 (6th Dist. 2017). They attempt to retroactively

reduce Dayton’s Local Government Fund distribution based upon gross fines lawfully received

during the previous fiscal year. H.B. 62 goes further, however, and prohibits local authorities from

using administrative processes to adjudicate Photo Enforcement Program tickets and compels local

authorities to pay non-recoverable court fees up front for such tickets in order to make Photo

Enforcement Programs uneconomical to operate. Thus, Dayton seeks injunctive relief.

Like S.B. 342 and H.B. 64, which courts throughout this State (including this one) have

already held unconstitutional, the Contested Provisions of H.B. 62 unconstitutionally limit the

rights of municipalities, such as Dayton, to enact and implement Photo Enforcement Programs.

These programs are a valuable law enforcement tool that protect the residents of Dayton from the

dangers of unsafe vehicle operation.

The Contested Provisions of H.B. 62 violate numerous Ohio constitutional doctrines.

Under established Ohio law, “an unconstitutional law must be treated as having no effect

whatsoever from the date of its enactment . . . . [I]t confers no rights; it imposes no duties; it affords

no protection; it creates no office; it is, in legal contemplation, as inoperative as though it has never

1
The contested provisions of H.B. 62 in this action include R.C. 1901.20(A)(1), 1907.02(C), 4511.093(B)(1),
4511.096(C), 4511.099(A), 5747.502(C),(D),(F) (the “Contested Provisions”).

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been passed.” City of Middletown v. Ferguson, 25 Ohio St. 3d 71, 80 (1986) (internal quotation

marks omitted). Dayton therefore urges this Court to grant a temporary restraining order,

preventing the State from enforcing the Contested Provisions of H.B. 62 until the provisions can

be more fully reviewed on the merits, as this Court did with S.B. 342 and H.B. 64.

A memorandum of law in support of this motion and proposed order are attached hereto

and incorporated fully herein.

Respectfully submitted,

BARBARA J. DOSECK
CITY ATTORNEY

S/John C. Musto
John C. Musto (#0071512)
Chief Trial Counsel
Department of Law
101 W. Third St.
P.O. Box 22
Dayton, OH 45401
(937) 333-4116 (telephone)
(937) 333-3628 (fax)
John.Musto@daytonohio.gov

MEMORANDUM

I. INTRODUCTION

Dayton seeks a temporary restraining order and preliminary injunction enjoining the State

from enforcing the Contested Provisions of recently adopted H.B. 62. Signed into law by Ohio

Governor DeWine on April 3, 2019, the Contested Provisions attempt to do through the State’s

transportation budget bill what this Court already held the State could not constitutionally do

directly (with S.B. 342) or indirectly through a budget bill (with H.B. 64). After a hearing and

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extensive briefing, the Lucas County Common Pleas Court has already enjoined the State from

enforcing these provisions via its order of June 28, 2019.

Much like the laws this Court and the Ohio Supreme Court previously held unconstitutional

and enjoined, the Contested Provisions of H.B. 62 impermissibly limit Dayton’s Home Rule

authority to implement Photo Enforcement Programs by: (a) reinstating the S.B. 342 requirement

that a law enforcement officer be present at every Photo Enforcement Program device location at

all times during operation; (b) reducing Dayton’s Local Government Fund allocation by the

amounts collected from drivers for Photo Enforcement Program violations, and eliminating Local

Government Funds altogether for local authorities that fail to report Photo Enforcement Program

revenues to the State; (c) eliminating local authorities' ability to appoint administrative hearing

officers to adjudicate Photo Enforcement Program tickets and conferring “exclusive jurisdiction”

over such actions to municipal and county courts; and (d) requiring local authorities to provide

advance and non-recoverable court deposits to cover “all applicable court costs and fees” for civil

actions relating to Photo Enforcement Programs.

The Contested Provisions of H.B. 62 violate multiple provisions of the Ohio Constitution

including the Home Rule Amendment. Ohio Constitution, Section 3, Article XVIII. Namely,

 By attempting to do indirectly what the State has been enjoined from

doing directly, the Contested Provisions impose unconstitutional
conditions on local authorities’ Home Rule authority;

 By enacting legislation that applies only to certain municipalities but

not others, the State has violated the Uniformity Clause (Ohio
Constitution, Section 26, Article II);

 By penalizing conduct that preceded the enactment of H.B. 62, the State
has violated the prescription against retroactive laws (Ohio
Constitution, Section 28, Article II);

 By usurping the authority of the judicial branch to determine the

constitutionality of the laws and the authority to operate the judicial

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 system without interference by the legislation, the State has violated the
separation of powers doctrine (Ohio Constitution, Section 1, Article IV
and Section 32, Article II);

 By burying the Contested Provisions in a last minute rider to the State’s

biannual transportation budget, the State has violated the One-Subject
Rule (Ohio Constitution, Section 15(D), Article II); and

 By enacting legislation that does not provide fair warning of the conduct
that is required, the State has violated the prescription against
unconstitutionally vague laws.

Ohio municipalities’ Home Rule authority to enact Photo Enforcement Programs has been

affirmed squarely by the Ohio Supreme Court on multiple occasions. Mendenhall v. City of Akron,

117 Ohio St. 3d 33 (2008); Walker v. Toledo, 143 Ohio St. 3d 420 (2014); Dayton v. State, 151

Ohio St. 3d 168 (2017). As the Lucas County Common Pleas Court has already held, the Contested

Provisions of H.B. 62 therefore fly in the face of this well-established precedent.

II. STATEMENT OF FACTS

A. Dayton’s Photo Traffic Enforcement Ordinance

Dayton is an Ohio charter municipality established and governed pursuant to the Ohio

Constitution, the Dayton Charter, and its ordinances and resolutions. (Affidavit of Det. Eric

Brown (“Brown Aff. at ¶3, copy attached as Exhibit B). Dayton enacted an Automated Traffic

Control Photographic System (“Program”) pursuant to the authority granted to it by the Home

Rule Amendment of the Ohio Constitution for the health, safety, and welfare of its residents.

(Brown Aff. ¶4; Exhibit 1). The program was initially passed on June 12, 2002 and provided

only for red light violations. Later, on February 17, 2010, the Program was modified to provide

for speed violations as well. (Id. at ¶¶’s 4-5). The ordinances are codified in Dayton R.C.G.O.

§70.121. The current version is attached to the Brown Aff. as Exhibit 2.

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 The purpose of the program was to reduce the number of red light and speeding

violations and accompanying accidents in the City of Dayton, as well as to conserve limited

police resources:

WHEREAS, The City seeks to reduce the frequency of

vehicle operators running red traffic lights; and

WHEREAS, The frequency of running red lights creates a

substantial risk to the safety of citizens on the roadway; and

WHEREAS, An automated traffic control photographic

system will assist the Dayton Police Department by alleviating the

necessity for conducting extensive conventional traffic

enforcement at high accident intersections; and

WHEREAS, The adoption of an automated traffic control

photographic system will result in a significant reduction in the

number of red light violations and/or accidents within the City of

Dayton;

(See Brown Aff. Exhibits 1 and 2).

Dayton conducted traffic and accident studies and located the traffic control cameras at

intersections and locations that had high instances of violations related to traffic accidents. (Id.

at ¶7). After installing the cameras, Dayton noticed an immediate reduction in the number of

violation related accidents. (Id. at ¶9). For example, Dayton noticed a 45% decrease in red light

violation related accidents at the intersections where the cameras were installed. (Id.). In

addition, Dayton noticed a 30% decrease in speed related accidents at locations where the

cameras were installed. (Id.).

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 Dayton currently has over 13 speed and/or red light violation cameras operating at

locations throughout the City. (Id. at ¶11).

Dayton’s Program is a civil program, not a criminal program. (Id. at ¶12). The Program

provides for civil enforcement imposing monetary liability upon the owners of vehicles that do

not comply with posted speed limits or run red lights. (Id. at ¶12). Offenders are not issued

criminal traffic citations. (Id.) Offenses are not enforced by the Dayton municipal courts. (Id.)

Points for violations are not assessed against vehicle owners’ driving records. (Id.) Dayton has

implemented an administrative hearing process for those who want to appeal a violation. (Id.)

The fine for a violation is currently $85. (Brown Aff. ¶6). The cameras provide both video and

still pictures of the cars showing vehicles running a red light or speeding. (Id. at ¶13). Before a

citation is issued, a Dayton police officer must review the video and photographs and confirm

that the vehicle captured by the cameras in fact ran the red light or was speeding. (Id.).

B. Amended Senate Bill 342 And Its Unconstitutionality

On December 19, 2014 – the day after the Ohio Supreme Court issued its opinion in Walker

v. City of Toledo, reaffirming municipalities’ Home Rule authority to maintain Photo Enforcement

Programs – Ohio Governor Kasich signed into law S.B. 342, adding provisions to the Ohio Revised

Code that limited municipalities’ authority to enact and implement Photo Enforcement Programs.

S.B. 342 provided that a local authority could implement a Photo Enforcement Program

only if a law enforcement officer was present at the location of each device at all times during its

operation. S.B. 342 also required municipalities to conduct safety studies and public relations

campaigns for all new device locations. In addition, S.B. 342 prohibited municipalities from

issuing Photo Enforcement Program tickets for violations of not more than 6 mph over the speed

limit in school and park zones, and for not more than 10 mph over the limit in other locations.

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 After Governor Kasich signed S.B. 342 into law, municipalities across Ohio challenged its

constitutionality in Ohio courts. In April 2015, common pleas courts in Dayton, Akron, and

Toledo struck down the three cited provisions of S.B. 342, and issued injunctions against their

enforcement. Dayton v. State, Montgomery C.P. No. 2015-cv-1457; Akron v. State, Summit C.P.

No. 2015-02-0955; Toledo v. State, Lucas C.P No. CI0201501828. After intermediate appeals, on

July 26, 2017, the Ohio Supreme Court held that the there-cited provisions of S.B. 342 violated

the Ohio Constitution’s Home Rule Amendment. Dayton v. State, 151 Ohio St. 3d 168 (2017).

The Sixth District Court of Appeals also struck down additional provisions of S.B. 342.

Toledo v. State, 2016-Ohio-4906, 56 N.E.3d 997 (6th Dist. 2016). On December 13, 2017, the

Ohio Supreme Court vacated and remanded the Sixth District’s opinion to the trial court to apply

Dayton v. State. See Toledo v. State, 152 Ohio St. 3d 496 (2017). On remand, the Lucas County

Court of Common Pleas affirmed its prior opinion and determined that additional provisions of

S.B. 342 were unconstitutional as well – an opinion that the Sixth District substantially affirmed

on May 3, 2019. Namely, the Sixth District held that S.B. 342 provisions requiring officers to

examine evidence of Photo Enforcement Program violations, dictating the procedures by which

local authorities could issue Photo Enforcement Program tickets, limiting the way hearing officers

could adjudicate Photo Enforcement Program cases, and requiring camera manufacturers to

provide maintenance records and certificates of operation violated the Home Rule Amendment.

Toledo v. State, 2019-Ohio-1681, 2019 Ohio App. LEXIS 1773 (6th Dist. May 3, 2019). The State

has not appealed this decision.

C. Amended House Bill 64 And Its Unconstitutionality

On June 29, 2015, while the S.B. 342 cases were being decided in Ohio courts, the State

enacted H.B. 64, its biannual budget bill for fiscal year 2016-2017. Included in H.B. 64 were

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provisions, inserted in a last-minute rider, which required local authorities like Dayton to do

exactly what the Ohio Supreme Court held that the State could not require in Dayton v. State:

comply with S.B. 342, or risk losing Dayton’s Local Government Fund allocation.

H.B. 64 provided that “[o]n or before July 31, 2015,” any municipality that “has operated

a traffic law photo-monitoring device between March 23, 2015, and June 30, 2015,” must file with

the State either: (1) a report “that includes a detailed statement of the civil cines the local authority

has billed to drivers” if the municipality’s Photo Enforcement Program was not in compliance with

unconstitutional S.B. 342; or (2) a “signed statement of compliance” if the municipality’s Photo

Enforcement Program does comply with the unconstitutional S.B. 342. R.C. 4511.0915(A). A

local authority was required to file reports or statements of compliance every three months

thereafter. R.C. 4511.0915(B).

Under H.B. 64, any local authority operating a Photo Enforcement Program not in

compliance with the unconstitutional S.B. 342 would be designated a “Noncompliant

Subdivision.” Pursuant to H.B. 64, Local Government Fund distributions to Noncompliant

Subdivisions were to be reduced by the amount of civil fines the local authority “billed to drivers.”

R.C. 4511.0915(B). Any local authority that operated a Photo Enforcement Program but failed to

file a Report or Statement of Compliance would be designated a “Delinquent Subdivision.”

Pursuant to H.B. 64, Local Government Funds to Delinquent Subdivisions were “to cease” until

the local authority was no longer “Delinquent.” R.C. 5747.502. Any Local Government Funds

withheld pursuant to H.B. 64 are to be “redistributed” to the subdivisions in each county not

designated as Noncompliant or Delinquent. Redistributed Local Government Fund payments

would not have been recoverable. Id.

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 Ohio municipalities challenged H.B. 64 in court, alleging that the contested provisions of

H.B. 64 violated the Home Rule Amendment and other Ohio constitutional provisions. Common

pleas courts in Dayton, Akron, and this Court enjoined the State from enforcing the contested

provisions of H.B. 64. Toledo v. Ohio, Lucas C.P. No. CI0201501828; Dayton v. State,

Montgomery C.P. No. 15-CV-1457; Akron v. Ohio, Summit C.P. No. 2015-07-3666. This Court

held that “[t]he State of Ohio, however, cannot financially penalize the City for challenging the

constitutionality of legislative enactments, prevailing on that challenge in a state court, and then

acting in accordance with the current state court ruling.” City of Dayton v. State, Montgomery

Cty. C.P. No. 2015-CV-1457, Decision of July 30, 2015 at pg. 4.

The State appealed the Toledo order, but did not appeal the Montgomery or Summit

County orders. The Sixth District upheld the trial court’s judgment, ruling that H.B. 64

impermissibly sought “to resurrect the city’s obligation to comply with S.B. 342, with no changes

being made to the constitutionally defective provisions, through the use of financial coercion.”

Consequently, according to the court, “allowing the provisions to be enforced against the city

would result in the city being penalized for its refusal to comply with the very statutes that the trial

court already deemed unconstitutional.” Toledo v. State, 2017-Ohio-215, 72 N.E.3d 693 (6th Dist.

2017). The Ohio Supreme Court reversed the Sixth District because Toledo did not challenge the

contested provisions of H.B. 64 in an action separate from its S.B. 342 action. Toledo v. State,

154 Ohio St. 3d 41, 48 (2018). Toledo has subsequently refiled.

As a result of S.B. 342 and H.B. 64 and the litigation, Dayton was required to shut-down

its photo enforcement program pending a final determination. While Dayton stopped issuing

notices of violation, it continued to track the number of violations captured by the photo

enforcement cameras. During the first month of non-enforcement, there was a 218% increase in

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red light violations and a 66% increase in speed violations at intersections that previously had

operational cameras. (Brown Aff. at ¶16). In addition, during the two-year period that the cameras

were off there was a 31% increase in injury crashes at the intersections. (Id.)

D. Amended House Bill 62

On April 3, 2019, Governor DeWine signed into law H.B. 62, the State’s two-year

transportation budget bill. H.B. 62 was supposed to go into effect on July 3, 2019. However, the

Lucas County Common Pleas Court issued a decision on June 28, 2019, enjoining the State from

enforcing any of the provisions involving photo enforcement. Like S.B. 342 and H.B. 64, H.B. 62

also contains provisions that impermissibly circumscribe local authorities’ ability to enact Photo

Enforcement Programs. The Contested Provisions of H.B. 62 were reinserted during the final day

of the bill’s Conference Committee (April 2, 2019), after having been stripped by the Senate during

the committee process before Senate passage on March 21, 2019.

H.B. 62 restates the requirement from S.B. 342 (that the Ohio Supreme Court held

unconstitutional), that a law enforcement officer must be present at the location of any Photo

Enforcement Program device at all times during operation. R.C. 4511.093(B)(1). Much like the

contested provisions of H.B. 64, H.B. 62 also requires local authorities to file annual reports with

the State that include “a detailed statement” of the civil fines collected from “drivers” for Photo

Enforcement Program violations (a slight variation from H.B. 64, which required reports of

amounts “billed” to drivers). These reports must identify both “the gross amount of such fines”

and “the gross amount of such fines that have been collected for violations that occurred within a

school zone.” R.C. 5747.503(B).

As with the H.B. 64 provisions whose enforcement were enjoined by various Ohio courts,

local authorities that fail to file reports will lose their Local Government Fund allocations until

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they are in compliance. R.C. 5747.502(D). Local authorities that do file H.B. 62 reports will have

their Local Government Fund allocations reduced by the amount of Photo Enforcement Program

fines collected from “drivers” (even though Photo Enforcement Program tickets are issued to

vehicle owners), except for fines collected for violations “that occurred within a school zone.”

R.C. 5747.502(C). Under H.B. 62, withheld funds are to be deposited into a “Ohio highway and

transportation safety fund” on a prorated basis for each local authority, to be used “exclusively to

enhance public safety on public roads and highways within [the local authority’s] transportation

district.” R.C. 5747.502(F). The City of Dayton anticipates receiving approximately $6.6 million

dollars in Local Government Funds for 2019. (Affidavit of Diane Shannon (“Shannon Aff.”) at

¶5).(A copy of the Shannon Aff. is attached hereto as Exhibit C). The loss of this money would

be devastating to Dayton and its budget. (Id.) This is especially true since Dayton experienced

unprecedented damage due to tornadoes at the end of May and other unforeseen expenses

preventing violence at a Klan rally. (Shannon Aff. at ¶8). The costs resulting from damages

caused by the tornadoes is expected to exceed $5.5 million dollars. The total costs for providing

security and preventing violence at the Klan rally was approximately $675,000. (Id. at ¶8).

Further, the impact of tornado damage on income tax revenue and the additional costs to rebuild

neighborhoods affected by the tornadoes has not been completely calculated, and may greatly

exceed the current $5.5 million dollar figure. (Id. at ¶11). The loss of the Local Government Funds

in addition to these unexpected expenses would be detrimental to the City’s budget and negatively

impact the City’s ability to provide services to its citizens. (Id. at ¶9).

The H.B. 62 Contested Provisions also eliminate local authorities’ ability to appoint

administrative hearing officers to adjudicate Photo Enforcement Program cases. Instead, H.B. 62

grants “exclusive jurisdiction over every civil action” concerning traffic violations to municipal or

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county courts, as applicable, and requires local authorities to file copies of all Photo Enforcement

Program tickets with applicable court. R.C. 1901.20(A)(1). H.B. 62 then requires local authorities

to pay advance court deposits covering “all applicable court costs and fees” for civil actions

relating to Photo Enforcement Program citations. R.C. 4511.099(A). These deposits are non-

recoverable, regardless of the outcome of the cases. Id.

III. LAW AND ARGUMENT

A. Injunctive Relief is Appropriate.

Ohio Rule of Civil Procedure 65 and Ohio R.C. §2727.02 et seq. vests this Court with the

power to enjoin a party’s illegal and unconstitutional conduct when warranted by the following

factors: (1) plaintiff has a substantial likelihood of success on the merits; (2) plaintiff will suffer

immediate and irreparable injury in the absence of injunctive relief; (3) injunctive relief will not

inflict greater injury on others; and (4) issuance of injunctive relief is in the public interest. Neal

v. Regina Manor, 2008-Ohio-257, ¶ 11, 2008 Ohio App. LEXIS 225 (6th Dist. Jan. 25, 2008). “In

determining whether to grant injunctive relief, no one of the four preliminary injunction factors is

dispositive; rather, a balancing should be applied.” Intralot, Inc. v. Blair, 2018-Ohio-3873, ¶ 31,

2018 Ohio App. LEXIS 4200 (10th Dist. Sept. 25, 2018) (citation omitted); Premier Health Care

Services, Inc. v. Schneiderman, 2001 WL 1658167 *1, *4 (2nd Dist. 2001); Try Hours, Inc. v.

Douville, 2013-Ohio-53, ¶ 20, 985 N.E.2d 955 (6th Dist. 2013). Relief is applicable when there is

an inadequate remedy at law, and it is designed to preserve the status quo until a final hearing. Id.

In this case, as has already been determined by the Lucas County Common Pleas Court, all

four factors weigh decisively in favor of granting an injunction to enjoin the Contested Provisions

of H.B. 62 from going into effect. The Contested Provisions violate numerous protections of the

Ohio Constitution, including (1) the Home Rule Amendment, (2) the unconstitutional conditions

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doctrine, (3) the separation of powers doctrine, (4) the One-Subject Rule, (5) the Uniformity

Clause, (6) the Retroactivity Clause, and (7) the void for vagueness doctrine. Dayton is therefore

likely to succeed on the merits. Moreover, Dayton and its citizens will suffer irreparable injury –

in the form of harm to public safety and the non-recoverable loss of Local Government Funds – if

the Contested Provisions of H.B. 62 are not enjoined. This is especially important after the recent

tornadoes and the millions of dollars of unforeseen and unplanned expenses related to them.

Injunctive relief will not harm the State, and issuance of an injunction will not harm the public

interest. This Court issued injunctions that enjoined both the predecessor bills to H.B. 62 – S.B.

342 and H.B. 64. A preliminary injunction is appropriate here as well.

1. Plaintiff is Likely To Succeed On The Merits

a. The H.B. 62 Contested Provisions Violate the Home Rule

Amendment.

The Contested Provisions of H.B. 62 violate the Home Rule Amendment of the Ohio

Constitution, which states 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.” Ohio Constitution, Section 3, Article

XVIII. A municipal ordinance will not yield to a statewide statute unless, “(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.” Mendenhall v. Akron, 117 Ohio St. 3d 33

(2008) (reordering the sequence of home rule analysis established in Canton v. State, 95 Ohio St.

3d 149 (2002)). To constitute a general law, a statute must:

(1) Be a part of a statewide and comprehensive legislative enactment;

(2) Apply to all parts of the state alike and operate uniformly throughout
the state;
(3) Set forth police, sanitary, or similar regulations, rather than purport only
to grant or limit legislative power of a municipal corporation to set forth
police, sanitary, or similar regulations; and

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 (4) Prescribe a rule of conduct upon citizens generally.

Canton v. State, 95 Ohio St. 3d 149, 153 (2002).

This Court, the Sixth District Court of Appeals, the Ohio Supreme Court, and courts

throughout the state have already held that S.B. 342 violates the Home Rule Amendment of the

Ohio Constitution because it does not satisfy the “general law” factors. Dayton v. State,

Montgomery C.P. No. 2015-cv-1457; Akron v. State, Summit C.P. No. 2015-02-0955; Toledo v.

State, Lucas C.P No. CI0201501828. Similarly, this Court (and other courts) has held that H.B.

64 circumvents precedent that S.B. 342 is unconstitutional in violation of the Home Rule

Amendment and interferes with local authorities’ Home Rule Authority because it does not “set

forth statewide regulations for ‘public health and safety’” and therefore is not a “general law.”

Toledo v. State, Lucas C.P. No. CI0201802922; Akron v. Ohio, Summit C.P. No. 2016-07-3666.

The Contested Provisions of H.B. 62 are no different, and have already been enjoined by

the Lucas County Common Pleas Court, finding that they violate the Home Rule Amendment.

First, H.B. 62 ignores the Ohio Supreme Court’s decision of Dayton v. State and reinstates the

unconstitutional S.B. 342 requirement that a law enforcement officer must be present at every

Photo Enforcement Program device location. Second, by reducing or eliminating local authorities’

Local Government Fund allocations that use Photo Enforcement Programs, H.B. 62 disregards

multiple Ohio court rulings holding that the H.B. 64 provisions which reduced Local Government

Funds for municipalities that operated Photo Enforcement Programs violated the Home Rule

Amendment. Toledo v. State, Lucas C.P. No. CI0201802922; Dayton v. State, Montgomery C.P.

No. 15-CV-1457; Akron v. Ohio, Summit C.P. No. 2016-07-3666. Thus, just as S.B. 342 and H.B.

64 did, these H.B. 62 Contested Provisions serve only to grant or limit Dayton’s legislative

authority to adopt or enforce police regulations and fail to prescribe a rule of conduct upon citizens

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generally. The State cannot compel by budgetary or financial means what it cannot compel

directly. See, e.g., State ex rel. Taylor v. Delaware, 2 Ohio St. 3d 17, 18 (1982).

Third, H.B. 62 also fails to satisfy the “general law” element of home rule analysis with

respect to the provisions that eliminate local authorities’ ability to administratively adjudicate

Photo Enforcement Program violations. H.B. 62 vests “exclusive jurisdiction over every civil

action” concerning traffic violations to municipal and county courts, and requires local authorities

to pay “all applicable court costs and fees” up front and make such costs unrecoverable, rendering

Photo Enforcement Programs uneconomical to operate. R.C. 1901.20(A)(1); R.C. 4511.099(A).

However, according to the Supreme Court, “Ohio municipalities have home-rule authority to

establish administrative proceedings, including administrative hearings, related to civil

enforcement of traffic ordinances[.]” Walker v. Toledo, 143 Ohio St. 3d 420, 421 (2014). In

Mendenhall v. City of Akron, 117 Ohio St. 3d 33 (2008), the Supreme Court held that Akron’s

Photo Enforcement Program, which is “purely civil in nature” and “allows for the administrative

citation of vehicle owners under specific circumstances” – akin to Dayton’s Photo Enforcement

Program – was within the city’s Home Rule authority.

In addition to the Lucas County Common Pleas Court enjoining the Contested Provisions

just weeks ago, the Sixth District recently held that provisions of S.B. 342 that imposed

administrative requirements on municipalities pursuing Photo Enforcement Program violations

violated the third and fourth prongs of Home Rule “general law” test. In particular, the Sixth

District held that R.C. 4511.099(A)-(F), which imposed procedural requirements on how

administrative hearing officers could conduct hearings, take evidence, render decisions, and

consider affirmative defenses (among other requirements) were unconstitutional. Toledo v. State,

2019-Ohio-1681, 2019 Ohio App. LEXIS 1773 (6th Dist. May 3, 2019). The Sixth District held

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that these provisions “limit[] [Toledo’s] municipal power by mandating specific processes and

procedures for the municipality to follow and adhere to when implementing its traffic-camera

law.” Id.

b. The H.B. 62 Contested Provisions Impose Unconstitutional Conditions.

It is unconstitutional, under Ohio law, for the State to punish the exercise of a constitutional

right. See, e.g. State v. Thompson, 33 Ohio St. 3d 1, 4 (1987) (prosecutor’s comments at trial on

the silence of defendant were improper attempt to “penalize a defendant for choosing to exercise

a constitutional right”); State v. Rogers, 32 Ohio St. 3d 70, 71 (1987) (reversible error to allow

testimony regarding defendant’s assertion of right to counsel and right to remain silent as evidence

of defendant’s sanity); State v. Harper, 2012-Ohio-4527, 2012 Ohio App. LEXIS 3988, at *24

(4th Dist. Sept. 27, 2012) (impermissible to “penalize a defendant for choosing to exercise a

constitutional right”); State v. Hall, 179 Ohio App. 3d 727, 2008-Ohio-6228 (10th Dist. 2008)

(vacating a criminal sentence when judge used sentence to penalize defendant for exercising right

against self-incrimination). This is called the “unconstitutional conditions” doctrine.

Accordingly, the State cannot prohibit indirectly, by withholding Dayton’s allocation of

Local Government Funds, conduct that the government could not constitutionally prohibit outright.

See, e.g., Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013) (finding

condition on federal funding violated the First Amendment and could not be sustained). Further,

H.B. 62 penalizes Dayton for exercising its Home Rule authority by requiring Dayton to pay all

court costs and fees associated with Photo Enforcement Program violations up front, with such

costs to be unrecoverable, regardless of the case’s outcome, which financially penalizes local

authorities that operate Photo Enforcement Programs. Ohio law indisputably protects political

subdivisions from constitutional overreaches by the State and allows courts to intervene to protect

- 15 -
municipal rights. See, e.g., Tracy v. Village of Deer Park, 114 Ohio St. 266, 269 (1926) (state law

violated Uniformity Clause in challenge by municipality); Village of Euclid v. Camp Wise Ass’n,

102 Ohio St. 207, 216 (1921) (state law violated Uniformity Clause in challenge by municipality);

Cincinnati Sch. Dist. Bd. of Educ. v. Hamilton Cty. Bd. of Revision, 91 Ohio St. 3d 308, 317 (2001)

(state law violated Retroactivity Clause in challenge by board of education). The Contested

Provisions of H.B. 62 attempt to do indirectly what the State has been enjoined – repeatedly – from

doing directly. Therefore, the H.B. 62 Contested Provisions impose unconstitutional conditions

on local authorities’ Home Rule powers, as recognized by the Ohio Supreme Court in Dayton v.

State, 151 Ohio St. 3d 168 (2017).

c. The H.B. 62 Contested Provisions Violate the Uniformity Clause.

The Contested Provisions of H.B. 62 also violate the Uniformity Clause of the Ohio

Constitution. Section 26, Article II of the Ohio Constitution requires that “all laws, of a general

nature, shall have a uniform application throughout the state.” In other words, a law must have

both “uniform operation as to territory” and “universal operation as to all persons and things in the

same condition or category.” Put-In-Bay Island Taxing District Authority v. Colonial, Inc., 65

Ohio St. 3d 449, 450-51 (1992). The Ohio Supreme Court has established a two-part test for

evaluating laws under the Uniformity Clause: first, determining whether the law “is of a general

nature,” and second, determining whether the law “operates uniformly throughout the state.” Id.

A law is general under the first prong of the Uniformity Clause, “if the subject does or may

exist in, and affect the people of, every county in the state.” In re Holzer Consolidated Health

Systems, 2004-Ohio-5533, ¶ 23, 2004 Ohio App. LEXIS 4954 (10th Dist. Oct. 19, 2004). Plaintiff

concedes that laws relating to the distribution of state tax funds are general. However, the second

- 16 -
prong of the Uniformity Clause test requires “uniform operation throughout the state,” which the

Contested Provisions of H.B. 62 do not satisfy.

In Put-In-Bay, the State enacted a statute authorizing an excise tax on vendors making sales

in the Lake Erie Islands. A taxpayer/vendor challenged the law under the Uniformity Clause on

the grounds that it did not operate uniformly throughout the State. The Ohio Supreme Court agreed

with the taxpayer, and reversed the decision of the lower appellate court, holding that the law at

issue:

[T]argets a limited geographical class of vendors, i.e., those vendors engaged in

making sales within an island taxing district. Thus, this statutory scheme applies
only to a territorially limited class of vendors in Ohio. The statute does not apply
to all Ohio vendors. As such, R.C. 5739.101 et seq., without question, carries with
it all indicia of special legislation, imposing burdens upon particular vendors in a
limited geographical setting while, by application, excepting all other vendors in
the state.

65 Ohio St. 3d at 452; See also State ex rel. Saxbe v. Alexander, 168 Ohio St. 404, syll. 2, (1959)

(state statute providing funding for underground parking that could only apply to a specified area

of Columbus did not have uniform application throughout the State); Brown v. State, 120 Ohio St.

297, 301 (1929) (state law that could only apply to Hamilton County libraries because its terms

applied only to Ohio cities “in the first grade of the first class” did not operate uniformly

throughout the State); Silberman v. Hay, 59 Ohio St. 582, 589-90 (1899) (state law imposing extra

fees and notice requirements on civil parties demanding trial by jury in Cuyahoga County only did

not have uniform application throughout the State).

The most comprehensively articulated test for when classifications between locations or

persons to which a law applies are allowed under the Uniformity Clause was set forth in State ex

rel. Newell v. Brown, which held: (1) the law must operate equally upon the members of the class

to be affected, (2) it must embrace all persons who are or may be in like situations and

- 17 -
circumstances, (3) the designation of the class must be reasonable and not unjust or capricious,

and (4) the designation must be based upon a real distinction. 162 Ohio St. 147, 157 (1954)

(striking down state statute imposing election qualifications in counties above a specified

population); see also Andrews v. State, 104 Ohio St. 384, 387 (1922) (invalidating state law

providing for a bond commissioner in Cuyahoga County only; “A classification must not be

arbitrary, artificial, or evasive, but there must be a real and substantial distinction in the nature of

the class or classes upon which the law operates”).

In this case, the Contested Provisions of H.B. 62 are unreasonable, unjust, and capricious,

and thus are not classifications that the Uniformity Clause permits. They do not apply to

municipalities that apprehend speeders using traditional means, or those that use Photo

Enforcement Programs in the manner prescribed by S.B. 342. Moreover, the law does not affect

the tax revenues of the State. The State’s Local Government Funds are distributed to local

governments in any event. The Contested Provisions of H.B. 62 merely impact the allocation.

Consequently, the H.B. 62 Contested Provisions do not apply uniformly throughout the State.

d. The H.B. 62 Contested Provisions are Unconstitutionally Retroactive.

The Contested Provisions of H.B. 62 should be enjoined for the additional reason that they

are unconstitutionally retroactive. Section 28, Article II of the Ohio Constitution states that “[t]he

General Assembly shall have no power to pass retroactive laws.” Determining whether a law is

unconstitutionally retroactive requires a two-part analysis. First, a court must determine whether

the General Assembly intended the statute to apply retroactively, and second, the court must

determine whether the law is remedial (in which case, retroactivity is allowed) or substantive (in

which case, retroactivity is not allowed). See, e.g., Board of Education of the Cincinnati School

- 18 -
Dist. v. Hamilton County Board of Revision, 91 Ohio St. 3d 308, 315-16 (2001); City of Norton v.

Richards, 2009-Ohio-3868, 2009 Ohio App. LEXIS 3288, *P7 (9th Dist. Aug. 5, 2009).

Here, the Contested Provisions of H.B. 62 expressly have retroactive application, thus

satisfying the first prong of the retroactivity test. Under R.C. 5747.502(B), “on or before the thirty-

first day of July, any local authority that operated, directly or indirectly, a traffic law photo-

monitoring device during the preceding fiscal year shall file a report with the tax commissioner[.]”

As a result, Dayton’s Local Government Funds allocation could be reduced by the amount of civil

fines billed to drivers preceding enactment of H.B. 62. R.C. 5747.502(C). Further, the retroactive

effect of H.B. 62 deprives Dayton of its opportunity to decide if it will continue its Photo

Enforcement Program in light of the impending implementation of the Contested Provisions of

H.B. 62.

Moreover, this provision of H.B. 62 is substantive rather than remedial under established

Ohio Supreme Court precedent, thus satisfying the second prong of the retroactivity test. Because

this Court and others have held that S.B. 342 is unconstitutional, the retroactive provision of H.B.

62 is not merely a revised penalty for conduct already established to be illegal. See Board of

Education of the Cincinnati School District, 92 Ohio St. 3d at 316 (law changing who can file a

complaint to challenge real estate valuation is substantive, and therefore unconstitutionally

retroactive); Toledo City School Dist. Bd. of Educ. v. State Bd. of Educ., 2014-Ohio-3741, 18

N.E.3d 505, *P42 (10th Dist. Aug. 28, 2014) (provisions in budget bill that eliminated local school

districts’ right to receive funding from State were substantive, and therefore unconstitutionally

retroactive).

- 19 -
 e. The H.B. 62 Contested Provisions Violate the Separation of Powers
Doctrine.

The Contested Provisions of H.B. 62 also violate the separation of powers doctrine

because, in enacting this legislation, the General Assembly improperly usurped the authority

of the judicial branch to determine the constitutionality of laws. Under the Ohio Constitution,

judicial power is vested in Ohio courts. Ohio Constitution, Section 1, Article IV. The Constitution

further specifies that, “the general assembly shall [not] … exercise any judicial power not herein

expressly conferred.” Id., Section 32, Article II. “The power and duty of the judiciary to determine

the constitutionality and, therefore the validity of the acts of the other branches of government

have been firmly established as an essential feature of the Ohio system of separation of powers.”

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 462 (1999) (internal

citations and quotations omitted).

In State ex rel. Ohio Academy of Trial Lawyers v. Sheward, the Ohio Supreme Court

declared unconstitutional a state law that attempted to reverse the Ohio Supreme Court’s

invalidation of state tort reform laws. The Ohio Supreme Court accepted the relators’

constitutional challenge against the law and granted writs of prohibition and mandamus, enjoining

its implementation and enforcement. In holding that the new law, which attempted to override the

Supreme Court’s decision, violated the separation of powers doctrine and improperly usurped

judicial powers, the Court stated that the law “intrudes upon judicial power by declaring itself

constitutional, by reenacting legislation struck down as unconstitutional, and by interfering with

this court’s power to regulate court procedure.” Id. at 462. Importantly, the Supreme Court held

that it was constitutionally improper, and a violation of the separation of powers doctrine, for the

other branches of government to circumvent or override the Court’s constitutional determinations:

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 The judicial branch is the final arbiter in interpreting the constitution. Fairness and
judicial economy, as well as the preservation of judicial independence, requires this
court to address this cause which is of the greatest concern to all of the citizens of
Ohio. By doing otherwise, this court would become a willing participant in
divesting the courts of judicial power and a coconspirator in the abdication of
fundamental individual rights and liberties contained in our Constitution.

Id. at 501.

The Contested Provisions of H.B. 62 do exactly what the Ohio Supreme Court condemned

in Sheward. They attempt to end-run the Supreme Court’s (and other courts’) orders holding S.B.

342 and H.B. 64 to be unconstitutional infringements on Home Rule authority. This is expressly

prohibited by Ohio’s three-branch system of constitutional government. As the Ohio Supreme

Court has held, it is both the right and duty of the courts to prevent the other branches of

government from overstepping their constitutional bounds. In a case in which the Ohio Supreme

Court struck down provisions of the Adam Walsh Act that unconstitutionally reclassified sex

offenders that had already been classified by the courts, the Ohio Supreme Court held:

The judiciary has both the power and the solemn duty to determine the
constitutionality and validity of acts by other branches of government and to ensure
that the boundaries between branches remain intact. Jurists have long understood
that they must be wary of any usurpation of the powers conferred on the judiciary
by constitutional mandate and any intrusion upon the courts’ inherent powers. We
therefore just jealously guard the judicial power against encroachment from the
other two branches of government and conscientiously perform our constitutional
duties and continue our most precious legacy.
…
Thus, while we must respect the fact that the authority to legislate is for the General
Assembly alone, we must also ensure that its legislative prerogative is not
unbridled. The General Assembly cannot require the courts to treat as valid laws
those which are unconstitutional. If this could be permitted, the whole power of
the government would at once become absorbed and taken into itself by the
Legislature.

State of Ohio v. Bodyke, 126 Ohio St. 3d 266, 276, 278 (2010) (internal citations and quotation

marks omitted) (emphasis added); see also Cartwright v. The Maryland Ins. Group, 101 Ohio App.

- 21 -
3d 439, 443-44 (9th Dist. 1995) (invalidating state law that attempted to supersede an Ohio

Supreme Court interpretation of statutory anti-stacking insurance law).

The General Assembly’s attempt to circumvent court precedent improperly usurps the

judicial branch’s authority to operate the judicial system without interference from the legislation.

In State ex rel. Johnston v. Taulbee, the Supreme Court held that a statutory scheme that authorized

county commissioners to determine the yearly appropriations of money for the administrative

expenses of the juvenile court violated the separation of powers doctrine. 66 Ohio St. 2d 417, 420

(1981). The Court stated that “the courts possess inherent powers to effectuate an orderly and

efficient administration of justice without being financially or procedurally inhibited by the

General Assembly.” Id. at 420-421.

The H.B. 62 Contested Provisions set a dangerous precedent, and were intentionally

enacted in an attempt to override the pronouncements of this Court and others that S.B. 342 and

H.B. 64 are unconstitutional, as well as interfere with the judicial branch’s authority to operate the

judicial system. By implementing the Contested Provisions of H.B. 62, the legislative and

executive branch have encroached upon the judicial prerogative as well as municipal Home Rule

Authority.

f. The H.B. 62 Contested Provisions Violate the One-Subject Rule.

The Contested Provisions of H.B. 62 also violate the One-Subject Rule of the Ohio

Constitution. Section 15(D), Article II of the Ohio Constitution states, “no bill shall contain more

than one subject, which shall be clearly expressed in its title.” The purpose of the One-Subject

Rule is to prevent legislation from being passed nefariously, without attracting public notice, a

practice known as “logrolling.” A state law violates the One-Subject Rule when the “various

topics contained therein lack a common purpose or relationship so that there is no discernible

- 22 -
practical, rational or legitimate reason for combining the provisions in one Act.” Simmons-Harris

v. Goff, 86 Ohio St. 3d 1, 14 (1999) (quoting Beagle v. Walden, 78 Ohio St. 3d 59, 62 (1997)).

The H.B. 62 Contested Provisions were reinserted during the final day of the transportation bill’s

Conference Committee, after having been stripped by the Senate during the committee process

before Senate passage on March 21, 2019. This is exactly the type of legislation that the One-

Subject Rule was designed to prevent.

In Simmons-Harris v. Goff, the Ohio Supreme Court struck down as unconstitutional a law

with a similar lineage to the H.B. 62 Contested Provisions. At issue in Simmons-Harris was

legislation that set forth and established funding for the School Voucher Program, inserted into the

State budget bill. In concluding that the legislation violated the One-Subject rule, the Court found

it relevant that the School Voucher provisions were part of amendments – “riders” – to the budget

bill: “The danger of riders is particularly evident when a bill as important and likely of passage as

an appropriations bill is at issue.” Id. at 16. The Contested Provisions of H.B. 62 are also riders.

Simmons-Harris, 86 Ohio St. 3d 1 at 16 (“Riders are provisions that are included in a bill that is

‘so certain of adoption that the rider will secure adoption not on its own merits, but on the merits

of the measure to which it is attached’”) (internal citations omitted).

Similarly, in In the Matter of: The Certificate of Need Application of the Holzer

Consolidated Health System v. Department of Health, the Franklin County Court of Appeals struck

down a provision contained in a biannual budget bill governing the relocation of nursing home

beds. 2004-Ohio-5533, 2004 Ohio App. LEXIS 4954, *P37-38 (10th Dist. Oct. 19, 2004). In an

opinion that described facts very similar to this case, the court held,

Section 26 of Am.Sub.S.B. No. 261 is, in essence, a rider attached to an

appropriations bill that contains many unrelated subjects. Section 26 does not share
a common purpose with and has no discernible practical or rational relationship to
the other provisions in the enacted bill. Section 26 is buried among pages of

- 23 -
 provisions that relate to government spending, bears no relation to the topics
preceding and following the provision, and unlike other provisions in the bill, it
bears no relation to the utilization of governmental resources or how budgetary
funds are to be disbursed. Additionally, the record indicates that the section was
inserted into the bill late in the process and for what appear to be tactical reasons.
Thus, Section 26 of Am.Sub.S.B. No. 261 that provides for the relocation of long
term nursing home beds is unconstitutional in that it violates the one-subject
provision of Section 15(D), Article II of the Ohio Constitution.

Id. at *P37. This case is far more clear–cut than either Simmons-Harris or Holzer Consolidated.

The H.B. 62 Contested Provisions were reinserted into the transportation budget bill late in the

process and are unapologetically tactical.

g. The H.B. 62 Contested Provisions Violate the Void for Vagueness

Doctrine.

The Contested Provisions of H.B. 62 are unconstitutionally vague because they do not

provide fair warning of the conduct that is required, specifically whether municipalities must report

civil fines collected from “drivers” or registered “owners” of vehicles. A law is void for vagueness

unless it survives the three-part test set forth in Grayned v. City of Rockford, 408 U.S. 104 (1972).

It must (1) provide fair warning of what conduct is proscribed; (2) preclude arbitrary, capricious,

and discriminatory enforcement; and (3) not impinge on constitutionally protected rights. Id. at

108-109; State v. Collier, 62 Ohio St. 3d 267, 269-70 (1991). The H.B. 62 Contested Provisions

fail this test because they do not provide fair warning. Generally, to provide fair warning, a person

of ordinary intelligence must be able to understand what is required or prohibited under the law.

State v. Anderson, 57 Ohio St. 3d 168, 171 (1991).

Here, R.C. 5747.502(B) of the Contested Provisions of H.B. 62 states that “any local

authority that operated directly or indirectly, a traffic law photo-monitoring device during the

preceding fiscal year shall file a report with the tax commissioner that includes a detailed statement

of the civil fines the local authority has collected from drivers for any violation.” In contrast, other

- 24 -
H.B. 62 Contested Provisions indicate that violations are issued against the “registered owners” of

vehicles. See e.g., R.C. 4511.096(C) (“[T]he local authority or its designee may issue and send by

regular mail a ticket charging the registered owner with the violation.”); R.C. 4511.097(B)

(“[S]end by ordinary mail to any registered owner of the motor vehicle that is the subject of the

traffic law violation.”). Thus, it is unclear whether R.C. 5747.502(B) requires Dayton to report

fines collected from drivers or registered owners and it is improper to require Dayton to risk

noncompliance with H.B. 62 by hazarding a guess. The Contested Provisions of H.B. 62 are void

for vagueness.

2. Dayton Will Suffer Irreparable Harm if an Injunction is Not Issued

A plaintiff’s harm from the denial of a preliminary injunction is irreparable if it is not fully

compensable by monetary damages. TGR Enterprises, Inc. v. Kozhev, 167 Ohio App. 3d 29, 2006-

Ohio-2915, 853 N.E.2d 739 (2006). When constitutional rights are threatened or impaired,

irreparable injury is presumed. Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).

Dayton will suffer irreparable harm if an injunction is not issued because its Home Rule authority

is being attacked by the State.

Because the Local Government Fund reduction purports to be retroactive, Dayton will

suffer immediate irreparable harm in the loss of those Local Government Funds in August for

running its lawful program during the prior fiscal year before H.B. 62 went into effect. The loss of

these Local Government Funds that are used to help Dayton to cover basic services for its citizens

will be especially severe in light of the recent tornadoes that have resulted in millions of dollars of

additional, unanticipated expenses exceeding $5.5 million dollars.

Moreover, Dayton’s Photo Enforcement Program promotes safety on Dayton’s roadways,

including school zones. It also assists Dayton to efficiently allocate its all too scarce law

enforcement resources. The H.B. 62 Contested Provisions put Dayton and other similarly situated

- 25 -
municipalities in a terrible dilemma: Adhere to its unconstitutional provisions and lose all of the

advantages and efficiencies of its Photo Enforcement Program, or fail to comply, and lose an even

greater amount of Local Government Funds. In short, if the H.B. 62 Contested Provisions are

allowed to go into effect, Dayton will most likely be forced to curtail its Photo Enforcement

Program significantly and perhaps entirely. This will involve curtailment of a program that has

been definitively shown to dramatically reduce red light running, speeding, and crashes with

injuries. This is irreparable injury sufficient to warrant a preliminary injunction.

Moreover, there is irreparable injury to the justice system from the Contested Provisions

of H.B. 62. As the Ohio Supreme Court stated in Sheward, a legislative enactment that attempts

to override a court’s declaration that a previous law is unconstitutional “is no ordinary piece of

legislation.” 86 Ohio St. 3d at 492. As in Sheward, in enacting the H.B. 62 Contested Provisions,

the State has “boldly seized the power of constitutional adjudication, appropriated the authority to

establish rules of court and overrule judicial declarations of unconstitutionality[.]” This is a

strident and unforgiveable disregard for the authority of this Court and the authority of the judicial

branch of government.

As the Ohio Supreme Court has held, “[a]n unconstitutional act is not a law; it confers no

rights; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been

passed.” Middletown v. Ferguson, 25 Ohio St. 3d 71, 80 (1986). Therefore, this Court should

have no hesitation in invalidating this law, as it previously did with S.B. 342. This Court, as well

as several other courts in Ohio, held similar provisions in H.B. 64 to be sufficiently damaging to

warrant preliminary injunctive relief. Toledo v. State, Lucas C.P. No. CI-0-2015-01828 (Oct. 7,

2015). The Contested Provisions of H.B. 62 will also irreparably harm Dayton and its citizens,

and therefore, grant of preliminary injunction is justified.

- 26 -
 3. Injunctive Relief Will Not Inflict Greater Injury on Others

Injunctive relief will not inflict any injury on others except those who fail to obey the law.

In fact, issuance of the injunction will increase traffic safety and reduce harm to the public. The

only individuals who, even arguably, can be injured by the granting of this injunction are

automobile owners who run red lights or speed in violation of Dayton R.C.G.O. §70.121. But the

court should not deny an injunction because it will make it harder for the public to disobey traffic

ordinances because individuals have no protected interest in violating the law. See Initiative &

Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006) (a person does not have a legally

protected interest in making his criminal activity harder for the government detect).

Further, the State has not and cannot show any injury to it if the H.B. 62 Contested

Provisions are enjoined. The State enjoys no financial or other benefits from the Contested

Provisions. It collects and disburses the same amount of Local Government Funds in any event.

The enactment of the Contested Provisions of H.B. 62 does not promote safety, tax revenue, or

any other good on behalf of the State. Rather, its sole impact is to restrict municipalities from

acting. Therefore, because injunctive relief will not harm the State or third parties, grant of

preliminary injunction is justified.

4. Granting a Preliminary Injunction is in the Public Interest.

Dayton’s Photo Enforcement Program was enacted to redress the very real danger to the

public from unsafe driving on Dayton’s roadways. Granting the injunction serves the public

interest of allowing Dayton authorities to continue to work to prevent tragedies in a cost effective

way. The public has a strong interest in safety while traveling on public streets. Photo

Enforcement Programs further that interest. Without an injunction, the life of every person who

travels on Dayton’s streets will be adversely impacted from reduced enforcement of Dayton’s

speeding and red light ordinances.

- 27 -
 CONCLUSION

For the foregoing reasons, Plaintiff respectfully request that this Court enjoin the State from

enforcing the Contested Provisions of Amended House Bill 62 until the Court can issue a

permanent decision on the matter.

Respectfully submitted,

BARBARA J. DOSECK
CITY ATTORNEY

S/John C. Musto
John C. Musto (#0071512)
Chief Trial Counsel
Department of Law
101 W. Third St.
P.O. Box 22
Dayton, OH 45401
(937) 333-4116 (telephone)
(937) 333-3628 (fax)
John.Musto@daytonohio.gov

CERTIFICATE OF SERVICE

This is to certify that a true and accurate copy of the foregoing Memorandum in Support

of Motion for Preliminary Injunction was served by ordinary U.S. Mail Service and Email on Halli

Brownfield Watson and Renata Y. Staff, Assistant Attorneys General, Constitutional Offices

Section, 30 East Broad St., 16th Floor, Columbus, Ohio 43215 this 29th day of July, 2019.

_S/John C. Musto_____________________
John C. Musto #0071512
Chief Trial Counsel

- 28 -
 FILED
LUCAS COUNTY

■••
6%)
pn 2; al

PLEAS COURT
!-A•ILIN
tL OUILIIR
CLERK OF COURTS

IN THE COURT OF COMMON PLEAS OF LUCAS COUNTY, OHIO

City of Toledo,
Case No. CIO201802922
Plaintiff,
OPINION AND JUDGMENT ENTRY
VS.

Hon. Myron C. Duhart

State of Ohio,

Defendant.

This is before the court on the motion for preliminary injunction filed by plaintiff, the city

of Toledo ("the city") requesting the court enjoin the enforcement of certain provisions of 2019

Am.H.B. No. 62 (H.B. 62). Upon review of the pleadings, evidence, arguments of the parties,

and applicable law, the court finds the motion well taken.
-

STATEMENT OF FACTS AND PROCEDURAL HISTORY

I. TOLEDO MUNICIPAL CODE 313.12

Toledo Municipal Code 313.12 provides for a "civil enforcement system for red light and

speeding camera system violations" which "imposes monetary liability on the owner of a

vehicle." To administer this system, the city installed red light and speeding camera systems

within the city of Toledo.

 Toledo Municipal Code 313.12 sets up a system whereby a citation for an automated red

light or speeding system violation (a "Notice of Liability") is processed by officials or agents of

the city and then sent to the vehicle's registered owner. The owner is presumed to be operating

the vehicle at the time of the offense; however, the owner can avoid responsibility if he or she

provides an affidavit stating "the name and address of the person or entity who leased, rented, or

otherwise had the care, custody and control of the vehicle at the time of the violation," or

provides a law enforcement incident report stating that the vehicle had been reported as stolen

prior to the time of the violation.

Violations of Toledo Municipal Code 313.12 are noncriminal violations for which a civil

penalty of $120 is assessed. If the vehicle owner wishes to appeal the Notice of Liability, he or

she must file a notice appeal with a hearing officer within 21 days of the date listed on the Notice

of Liability. Appeals are currently "heard through an administrative process established by the

City of Toledo Police Department."

Other cities, including Akron and Dayton, have had similar programs in place. The Ohio

Supreme Court has found that such programs do not exceed an Ohio municipality's home rule

authority provided the municipality does not alter statewide traffic regulations. Mendenhall v.

Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, 1 41.

II. S.B. 342

In 2014, 2014 Am.Sub.S.B. No. 342 ("S.B. 342") was enacted. It took effect on March

23, 2015. S.B. 342 placed restrictions on a municipality's use of traffic law photo-monitoring

devices. Included in these restrictions were (1) the "officer-present provision", which required

that a law enforcement officer be present at the location of every traffic law photo-monitoring

device at all times during the operation of the device (former R.C. 4511.093(B)(1)), (2) the

2
"speeding-leeway provision," which prohibited a local authority from issuing a ticket based upon

a photo-monitoring device unless the vehicle exceeded the posted speed limit by 6 m.p.h. or

more in a school zone, park, or recreation area, or exceeded the posted speed limit by 10 m.p.h.

or more in all other areas (former R.C. 4511.0912), and (3) the "study and notice provisions"

which required local authorities to conduct a safety study prior to placing a photo-monitoring

device, conduct a public information campaign about the use of such devices, notify the public

prior to installing such a device, and then, once a device was installed, observe a 30 day waiting

period prior to issuing a violation (former R.C. 4511.095).

On April 27, 2015, a Lucas County court found that certain provisions set forth in S.B.

342 violate the city of Toledo's constitutional authority under the Home Rule Amendment and

therefore permanently enjoined the state and the Ohio Attorney General from enforcing those

provisions. Toledo v. State, Lucas C.P. No. Cl201501828 (April 27, 2015). The courts in

Dayton v. State, Montgomery C.P No. 2015-CV-1457 and Akron v. State, C.P. No. 2015-02-

9555 also found certain provisions of S.B. 342 to be unconstitutional. The officer-present

provision, the speeding-leeway provision, and the study and notice provisions were later found

unconstitutional by the Ohio Supreme Court for violating the Home Rule Amendment. Dayton

v. State, 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, I 34. After Dayton, in Toledo v.

State, Lucas C.P. No. Cl201501828 (July 9, 2018), the court applied the Supreme Court's

decision in Dayton and again permanently enjoined the enforcement of various provisions set

forth in S.B. 342. This decision was largely affirmed by the Sixth District Court of Appeals.

Toledo v. State, 6th Dist. Lucas No. L-18-1168, 2019-Ohio-1681.

3
 III. H.B. 64

On June 30, 2015, Amended H.B. 64 ("H.B. 64"), the biennial budget bill, was enacted,

with an effective date of September 29, 2015. H.B. 64 enacted R.C. 4511.0915 and R.C.

5747.502, and amended R.C. 5747.50(C)(5). These provisions required each local authority

operating a traffic law photo-monitoring device to either provide a statement confirming that it

had complied with the certain revised code sections, including those S.B. 342 provisions found

to be unconstitutional in Lucas C.P. No. 201501828, or, if the local authority was not in

compliance with those code sections, to file a report detailing the civil fines the local authority

had billed to drivers for any violation of a municipal ordinance recorded on a traffic law photo-

monitoring device. If a locality failed to file the required report (referred to as a "delinquent

subdivision"), payments from the local government fund would cease to that locality, and if the

locality was not complying with the required code sections (referred to as a "noncompliant

subdivision"), the tax commissioner was to reduce the amount of local govenunent funds paid to

the noncompliant subdivision in an amount equal to the gross amount of fines billed.

On October 7, 2015, in Lucas C.P. No. 201501828, the court found that "any actions of

reducing the City's funding for noncompliance with the enjoined statutes would be contempt of

court for failing to follow the April 27, 2015 injunction" and thus enjoined the state from "taking

any action that would result in a reduction of State funding to the City of Toledo as a result of the

City of Toledo's noncompliance with R.C. Sections 4511.093(B)(1) and (3), 4511.095, and

4511.0912." Toledo v. State, Lucas C.P. No. 201501828 (Oct. 7, 2015). Similarly, the

Montgomery County Common Pleas Court also enjoined these provisions. Dayton v. State,

Montgomery C.P. No. 2015-CV-1457 (July 30, 2015).

4
 The October 7, 2015 order in Lucas C.P. No. 201501828 was appealed and ultimately the

Ohio Supreme Court held that the trial court did not have authority to enjoin enforcement of the

spending provisions in H.B. 64 because "no action [had] been filed challenging their

constitutionality and no court [had] found them unconstitutional." Toledo v. State, 154 Ohio

St.3d 41, 2018-Ohio-2358, II 32.

IV. H.B. 62

H.B. 62, the state's two year transportation budget bill, was enacted on April 3, 2019.

The stated purpose of the legislation was to "increase the rate of and modify the distribution of

revenue from motor fuel excise taxes, to make appropriations for programs related to

transportation and public safety for the biennium beginning July 1, 2019, and ending June 30,

2021, and to provide authorization and conditions for the operation of those programs."

Relevant to the instant case, and similar to H.B. 64, H.B. 62 requires any local authority

"that operated, directly or indirectly, a traffic law photo-monitoring device during the preceding

fiscal year" to "file a report with the tax commissioner that includes a detailed statement of the

civil fines the local authority *** collected from drivers for any violation of any local ordinance

or resolution during that period that are based upon evidence recorded by a traffic law photo-

monitoring device." R.C. 5747.502(B). A local authority's payments from the state local

government fund are then reduced in an amount equal to the fines reported. R.C. 5747.502(C).

If the local authority does not file a report as required, all payments of local government funds to

the locality are to cease until a report is filed. R.C. 5747.502(D). An amount equal to the

payments withheld (with the exception of fines incurred in school zones) are then deposited into

an Ohio highway and transportation safety fund and used in the transportation district in which

the local authority is located. R.C. 5747.502(F). An amount equal to payments withheld for

5
violations in school zones are paid to the local authority to be used specifically for school safety

purposes. R.C. 5747.502(C)(4).

In addition to these reporting requirements, H.B. 62 also gives municipal and county

courts "exclusive jurisdiction over every civil action concerning a violation of a state traffic law

or a municipal traffic ordinance." R.C. 1901.20(A)(1), R.C. 1907.02(C). H.B. 62 further

requires that when the local authority mails a ticket charging the registered owner with a

violation, the local authority shall file a certified copy of the ticket with the relevant municipal or

county court and, unless the violation was recorded in a school zone, the local authority shall pay

an advance deposit to the court consisting of all applicable court costs and fees. R.C.

4511.096(C), R.C. 4511.099. This deposit is nonrefundable. R.C. 4511.099(A).

V. CURRENT CASE

The city filed its original complaint in this case on June 28, 2018 seeking injunctive relief

prohibiting the state from enforcing the penalty provisions of H.B. 64 or reducing the city's local

government funds for noncompliance with S.B. 342 as well as a declaratory judgment that the

penalty provisions of H.B. 64 were unconstitutional. The city filed its First Amended Complaint

on August 7, 2018. On December 19, 2018, this court denied a motion by the state seeking to

dismiss the amended complaint.

Then, on May 24, 2019, the city filed Plaintiffs Second Amended and Supplemental

Complaint Seeking Declaratory Judgment, Preliminary and Permanent Injunction (hereinafter

"Second Amended Complaint"). In addition to its previous claims with respect to H.B. 64, the

Second Amended Complaint also challenges certain provisions of H.B. 62 that the city argues

are unconstitutional and seeks injunctive relief prohibiting the state from enforcing "Contested

Provisions" of H.B. 62 or reducing the city's local government funds for noncompliance with

6
S.B. 342, H.B. 64, or H.B. 62 and seeks a declaratory judgment that the contested provisions of

H.B. 62 violate the Ohio Constitution. The contested provisions include the versions of R.C.

1901.20(A)(1), R.C. 1907.02(C), R.C. 4511.093(B)(1) and (3), R.C. 4511.096(C), R.C.

4511.099(A), and R.C. 5747.502 (C), (D), and (F) set forth in H.B. 62. 1

On May 31, 2019, the city filed its motion requesting a preliminary injunction enjoining

the enforcement of certain provisions of H.B. 62. 2

On June 10, 2019, this court held a hearing on the city's motion for preliminary

injunction. At this hearing, the city presented testimony from Melanie Campbell, a budget

commissioner for the city, who testified that the local government fund revenues received by the

city of Toledo for 2018 totaled $7,755,082, that the total revenue received by the city of Toledo

in 2018 for red light and speed cameras was $7,372,166 and that there is an additional

administrative fee paid to the private corporation (Redflex) that operates the camera system.

Additionally, Brian Latta, the chief deputy of the civil division at the clerk's office at the Toledo

Municipal Court testified, inter alia, that the civil division of the Toledo Municipal Court

averages between 18,000 and 23,000 cases a year, and that the addition of 100,000 cases would

"fundamentally *** change the way [they] operate in the civil division" and would cause "a

major strain" on the office's efficiencies and that, as a result, they would have to reconsider

staffing levels. Lastly, Lieutenant Todd Miller of the Toledo Police Department testified that

there were a total of 127,254 traffic camera violations issued in 2018. Miller additionally

explained the manner in which the department handles the automated camera violations and,

when asked what it would do to his staff if he had to send out 100,000 more violations to the

Thiss list s set forth in note 1 of the city's Motion for Preliminary Injunction.
2
Although the city's motion is entitled a motion for preliminary injunction, and its arguments pertain to a
preliminary injunction, in its conclusion the city has requested both a preliminary and permanent injunction. In this
order, this court will limit its analysis to the city's request for a preliminary injunction.

7
court, he stated that he didn't think his staff could handle that, and that they would probably have

to add more people.

APPLICABLE LAW AND ANALYSIS

I. PRELIMINARY INJUNCTION STANDARD

The purpose of a preliminary injunction "is to preserve status quo pending a trial on the

merits." Neal v. Regina Manor, 6th Dist. Lucas No. L-07-1055, 2008-Ohio-257, ¶ 1 1 . To obtain

a preliminary injunction, "the requesting party must show that `(1) there is a substantial

likelihood that the plaintiff will prevail on the merits, (2) the plaintiff will suffer irreparable

injury if the injunction is not granted, (3) no third parties will be unjustifiably harmed if the

injunction is granted, and (4) the public interest will be served by the injunction.' Id., quoting

Island Express Boat Lines, Ltd v. Put-in-Bay Boat Line Co., 6th Dist. Erie No. E-06-002, 2007-

Ohio-1041, ¶ 92. "No one factor is dispositive as the court is to balance the factors and weigh

the equities." Watson v. Caldwell Hotel, LLC, 2017-Ohio-4007, 91 N.E.3d 179, I 34 (7th Dist.).

"For instance, where there is a strong likelihood of success on the merits, preliminary injunctive

relief may be justified even though a plaintiffs case of irreparable injury may be weak.

Conversely, where a party's likelihood of success on the merits is low, there must be a high

likelihood of irreparable harm to justify injunctive relief. '[W]hat plaintiff must show as to the

degree of irreparable harm varies inversely with what plaintiff demonstrates as to its likelihood

of success on the merits." (Citations omitted.) Aids Taskforce of Greater Cleveland v. Ohio

Dept. of Health, 2018-Ohio-2727, 116 N.E.3d 874, 1 23 (8th Dist.).

The court will consider the preliminary injunction elements out of order.

8
 II. IRREPARABLE HARM

Irreparable harm is found "when there is a substantial threat of a material injury which

cannot be adequately compensated through monetary damages." Restivo v. Fifth Third Bank of

Northwestern Ohio, 113 Ohio App.3d 516, 521, 681 N.E.2d 484 (6th Dist. 1996). The state

contends that the new law is "revenue-neutral," and thus, the city will not suffer irreparable

harm. Additionally, the state argues that, even if the city was financially harmed, mere money

damages do not equate to irreparable injury.

The city has presented compelling evidence that the new law would not be "revenue-

neutral." In addition to the loss of the local government funds, the city will be required to pay

filing fees for each citation issued. In 2018, the Toledo Police Department issued 127,254

citations based upon traffic camera evidence. Although it is not clear what the filing fee would

be, the city points to R.C. 1901.26(C), which states that a "municipal court shall collect in all its

divisions except the small claims division the sum of twenty-six dollars as additional filing fees

in each new civil action or proceeding for the charitable public purpose of providing financial

assistance to legal aid societies that operate within the state and to support the office of the state

public defender. *** The filing fees required to be collected under this division shall be in

addition to any other court costs imposed in the action or proceeding ***." Even assuming no

filing fees in addition to this required $26, 3 based upon the 2018 figures, the city would be

obligated to pay $3,308,604 in filing fees. Additionally, the chief deputy of the civil division of

the Toledo Municipal Court testified that the civil division of the municipal court averages

between 18,000 and 23,000 cases a year, and that if another 100,000 cases were added,

municipal court would have to "fundamentally change" the way the civil division is operated,

including a reconsideration of staffing levels. Lieutenant Miller of the Toledo Police Department

3 Mr. Latta testified that the current cost of a civil case in Toledo Municipal Court varies from around $89 to $150.

9
also testified that he would probably have to add personnel to his department to accommodate

the new procedure.

Furthermore, the likely result of the additional cost to the city, and the strain on the

resources of the police department and municipal court, would be the cancellation of the traffic

camera program. On April 27, 2015, a Lucas County Common Pleas court found that the result

of eliminating the traffic camera enforcement program would be "more speeding vehicles on the

City streets, more red light violations, and more accidents with the appendant injuries to

persons." Toledo, Lucas C.P. No. CI-15-1828, p. 14 (Apr. 27, 2015).

Therefore, this court finds that the city will be irreparably harmed by the contested

provisions.

III. POSSIBILITY OF SUBSTANTIAL HARM TO OTHERS

The state argues that the injunction would cause substantial irreparable harm to the state

as "[t]he State is irreparably harmed when its duly enacted laws do not go into effect."

Additionally, the state argues that it would suffer irreparable financial loss as the law was

enacted by representatives of the entire state to determine how money is disbursed and the city

will receive state money contrary to the wishes of the state legislature which the state may not be

able to recoup.

The city counters that the state receives no financial or other benefits from the contested

provisions. The state will collect and disburse the same amount of local government funds, and

H.B. 62 does not promote safety, tax revenue, or any other good on behalf of the state.

This court does not find that the state, or anyone else, will be substantially harmed by the

granting of the injunction.

10
 IV. WILL THE PUBLIC INTEREST BE SERVED

The court further finds that the interest of the public will be served by granting the

injunction. As discussed above, the cost of the contested provisions is likely to result in the end

of the city's traffic camera program. In 2015, a Lucas County Common Pleas court found that

the cameras "result *** in fewer moving violations," and that "[shower moving traffic and fewer

red light violators results in greater safety for fellow drivers and pedestrians alike." Toledo,

Lucas C.P. No. CI-15-1828, p. 14 (Apr. 27, 2015).

V. SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

As it relates to the current motion, in its Second Amended Complaint, the city alleges that

H.B. 62 is unconstitutional as it violates a variety of constitutional provisions, requests a

declaration that the contested provisions of H.B. 62 are unconstitutional or otherwise invalid, and

requests injunctive and declaratory relief "prohibiting the [state] from enforcing *** H.B. 62

Contested Provisions or reducing the Plaintiff's Local Government Funds for noncompliance

with S.B. 342, H.B. 64 or H.B. 62."

To permanently enjoin the enforcement of a statute, a court must first find it

unconstitutional. Toledo, 154 Ohio St.3d 41, 2018-Ohio-2358, at 11 2. The court is required to

start with the presumption that the legislation is valid, and the party challenging the legislation

bears the burden of establishing beyond a reasonable doubt that the legislation is

unconstitutional. Dayton, 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, at ¶ 12, quoting

Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 18.

The state has argued that the contested regulations are within the General Assembly's

constitutional authority to pass laws authorizing the spending of state money and regulating the

jurisdiction of lower courts. However, the state has conceded that "[t]he General Assembly's

11
spending power is limited *** by other constitutional provisions." The city is arguing that the

contested provisions are violating other constitutional provisions.

A. Home Rule Amendment

The city first argues that the contested provisions of H.B. 62 violate the Home Rule

Amendment of the Ohio Constitution, which states that "[m]unicipalities shall have authority 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."

Ohio Constitution, Article XVIII, Section 3. The Ohio Supreme Court has found that "[a]

municipality has the power under home rule to enact civil penalties for the offense of violating a

traffic light or for the offense of speeding *** provided that the municipality does not alter

statewide traffic regulations." Mendenhall, at ¶ 43.

Although the Home Rule Amendment provides independent authority to Ohio's

municipalities regarding local police regulations, "a municipal ordinance must yield to a state

statute if `(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.'"

Dayton, 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, at ¶ 13.

The first element of the Home Rule Amendment analysis is met as Toledo Municipal

Code 313.12 has been found to be an exercise of police power. Toledo, 2019-Ohio-1681, at ¶ 22.

Regarding the second element, the Ohio Supreme Court has set forth a four part test for

determining whether a statute qualifies as a general law in Canton v. State, 95 Ohio St.3d 149,

2002-Ohio-2005, 766 N.E.2d 963. According to Canton, "to constitute a general law for

purposes of home-rule analysis, a statute must (1) be part of a statewide and comprehensive

legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout

12
the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or

limit legislative power of a municipal corporation to set forth police, sanitary, or similar

regulations, and (4) prescribe a rule of conduct upon citizens generally. Id. at 1 21. A statute

must meet all of these requirements to be a general law. Toledo v. State, 2016-Ohio-4906, 56

N.E.3d 997, 1 18 (6th Dist.), citing Canton, at ¶ 21. If a statute does not satisfy the general law

test, "the statute is 'an unconstitutional attempt to limit the legislative home-rule powers' of

municipalities." Dayton, at ¶ 15. The city does not argue that the first and second prongs of the

Canton test have not been met, and thus, this court will proceed to consider the third and fourth

prongs.

With respect to the third prong, this court must consider "whether the statute sets forth

police regulations or whether it merely grants or limits municipalities' legislative power to set

forth police regulations." Dayton, 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, at 1 16.

"In undertaking this analysis, 'a statute which prohibits the exercise by a municipality of its home

rule powers without such statute serving an overriding statewide interest would directly

contravene the constitutional grant of municipal power.'" Id. quoting Canton, at$ 32. Under this

prong, the court must consider each contested provision individually. Id. at $ 20.

The fourth prong of the Canton test requires that the court determine whether the statute

sets forth a rule of conduct upon citizens generally. Toledo, 6th Dist. Lucas No. L-18-1168,

2019-Ohio-1681, at I 32. Under this provision, courts have found provisions "unconstitutional
because they were found to solely and expressly apply 'to municipal legislative bodies." Id. at

1 33, citing Canton, at I 36. As with the third prong, the fourth prong requires that the court
consider each of the challenged provisions. Id. at 1 34.

The court will now consider each contested provision.

13
 1. R. C. 4511.093(B)

The city first contests the constitutionality of R.C. 4511.093(B)(1), which requires that a

law enforcement officer be present at the location of a traffic law photo-monitoring device at all

times during the operation of the device. This provision has previously been found to be

unconstitutional in Dayton, and the state has conceded that "Dayton is controlling as to R.C.

4511.093(B)(1)'s officer presence requirement." Similarly, the city requests an injunction with

respect to R.C. 4511.093(B)(3). This provision has previously been found unconstitutional under

the home rule amendment in Toledo, 6th Dist. Lucas No. L-18-1168, 2019-Ohio-1681, at I 111.

Therefore, it is clear that these provisions are unconstitutional. Although it seems unnecessary,

as there does not appear to be any intent on the part of the legislature to enact or reenact these

portions of R.C. 4511.093, in an abundance of caution, this court will enjoin the enforcement of

them. See Stevens v. Ackman, 91 Ohio St.3d 182, 193-195, 743 N.E.2d 901 (Mar. 28, 2001) and

R.C. 1.54.

2. R.C. 5747.502

Next, the city objects to sections of R.C. 5747.502. R.C. 5747.502(B) requires that local

authorities file annual reports with the state including a detailed statement of the civil fines

collected from drivers who received tickets based upon a traffic law photo-monitoring device.

Based upon this report, R.C. 5747.502(C), requires reduction of a municipality's local

government fund allocations by an amount equal to the fines the city reports, if it files a report,

R.C. 5747.502(D) terminates all payments if a local authority has not filed the report, and R.C.

5747.502(F), creates a Ohio highway and transportation safety fund in the state treasury in which

the tax commissioner is to deposit an amount equal to the amount by which payments to local

14
authorities were reduced or ceased under divisions (C) and (D) for violations other than

violations in a school zone.

The city argues that these provisions violate both the third and fourth prong of the home

rule analysis as they merely limit the city's legislative authority to adopt or enforce police

regulations and fail to prescribe a rule of conduct on citizens generally. In this court's previous

opinion, dated December 19, 2018, with respect to H.B. 64, this court found that similar

provisions had an improper limiting effect. Although, as pointed out by the state, H.B. 62 no

longer requires that the city comply with statutes found to be unconstitutional, the current

regulations still have the effect of coercing the city into discontinuing the photo enforcement

program, and do not serve an overriding state interest. Therefore, at this juncture, and for

purpose of injunctive relief, the court will find the contested provisions of R.C. 5747.502 do not

meet the third prong of the general laws test and, thus, the court will enjoin enforcement of R.C.

5747.502(B), (C), (D), and (F).

3. R.C. 4511.099(A)

The city also contests the constitutionality of R.C. 4511.099(A), which requires local

authorities to provide an advance deposit for the filing of the civil action based upon evidence

recorded by a traffic law photo-monitoring device and further states that the court will retain that

deposit regardless of which party prevails. In light of the evidence that this provision will be

quite costly to the city, the court similarly finds that this code section has the improper limiting

effect of coercing the city into discontinuing its traffic camera program and the state has not

shown an overriding state interest for such a limitation. Therefore, at this juncture, this court

finds R.C. 4511.099(A) is not a general law and will enjoin enforcement of R.C. 4511.099(A) as

amended by H.B. 62.

15
 4. R.C. 4511.096(C), R.C. 1901.20(A)(1), and R.C. 1907.02(C)

The city additionally requests an injunction with respect to R.C. 4511.096(C), which

requires the local authority to file a certified copy of the ticket with the municipal court or county

court with jurisdiction over the civil action, R.C. 1901.20(A)(1), which grants "exclusive

jurisdiction over every civil action concerning a violation of a state traffic law or a municipal

traffic ordinance" to municipal court, and R.C. 1907.02(C), which similarly provides exclusive

jurisdiction to applicable county courts. The Sixth District Court of Appeals has found that

language which regulates the subject-matter jurisdiction of Ohio courts does not violate the

Home Rule Amendment. City of Toledo, 2019-Ohio-1681 at ¶ 86. Also see Cupps v. Toledo,

170 Ohio St. 144, 149-150 163 N.E.2d 384 (1959). Based upon this language, it is not clear that

the city will be successful on arguing a home rule violation of these provisions.

While the court recognizes that it should take caution in issuing a preliminary injunction,

the purpose of an injunction is to preserve the status quo. Neal, 6th Dist. Lucas No. L-07-1055,

2008-Ohio-257, 1111. Issuing an injunction with respect to R.C. 1901.20(A)(1), R.C. 1907.02(C)

and R.C. 4511.096(C) would preserve the status quo. Further, when the court balances the

preliminary injunction factors and weighs the equities, the court finds that it should enjoin R.C.

1901.20(A)(1), R.C. 1907.02(C) and R.C. 4511.096(C) as the evidence has established

significant harm would result from such a change, whereas the court does not find harm resulting

from maintaining the status quo. Therefore, in an abundance of caution, this court will enjoin

enforcement of R.C. 1901.20(A)(1), R.C. 1907.02(C) and R.C. 4511.096(C) as amended in H.B.

62.

16
 B. Additional Arguments

The city has raised additional constitutional arguments. However, the court finds the

above reasoning sufficient to establish the city's entitlement to a preliminary injunction. Thus, at

this point, the court will not consider the city's remaining arguments.

CONCLUSION

After considering the elements required for a preliminary injunction, and after weighing

the equities, this court finds that the city's motion for preliminary injunction should be granted.

17
 JUDGMENT ENTRY

The court hereby ORDERS that the Motion for Preliminary Injunction is hereby

GRANTED.

The court further ORDERS that the state of Ohio is hereby enjoined from enforcing R.C.

1901.20(A)(1), R.C. 1907.02(C), R.C. 4511.093(B)(1) and (3), R.C. 4511.096(C), R.C.

4511.099(A), and R.C. 5747.502 (B), (C), (D), and (F) as set forth in H.B. 62 pending a

resolution of this case on the merits.

Myron C. Duhart, Judge

Distribution: John T. Madigan

Halli Brownfield Watson

18
7/17/2019 Dayton, OH Code of Ordinances

Sec. 70.121. - Civil penalties for tra c law photo-enforcement devices.

(A) Applicability.

(1) Notwithstanding any other provision of the traffic code, the city hereby adopts a civil enforcement
program for red light and speeding violations as outlined in this section. The program imposes monetary
liability on the vehicle owner or designated party, for the motor vehicle operator's failure to comply with
traffic control indications and/or speed limits in the city in accordance with the provisions of this section.

(2) The City of Dayton shall be responsible for administering Hand-Held. Manually-Operated Photo-
Enforcement Devices and the Automated Traffic Control Photographic System (ATCPS), and other Traffic
Law Photo-Enforcement Devices. Specifically, the Dayton Police Department or its designee shall be
empowered to install, operate, and use Traffic Law Photo-Enforcement Devices for enforcement of red
light and speed violations within the City of Dayton.

(3) This section applies to all persons and entities owning or operating a motor vehicle, motorized bicycle, or
trackless trolley on a street or highway within city limits.

(4) Fixed system locations shall have visible postings upon approach that the location is equipped with an
automated traffic control photographic system.

(5) The Dayton Police Department or its designee shall administer the Traffic Law Photo-Enforcement Device
program and shall maintain a list at each Police District of fixed system locations within the city limits.

(6) This section shall not apply if:

(a) A Dayton Police Officer, having personally witnessed a red light or speeding violation, according to §
70.13(b)(3) or § 71.50 of this Code or § 4511.13 or § 4511.21 of the R.C., issues a citation to the
vehicle operator at the time of the violation. However, the recorded image(s) and/or sensor
reading(s) generated by a Hand-Held Manually-Operated Photo-Enforcement Device, ATCPS, or
other Traffic Law Photo-Enforcement Device indicating the violation are admissible as evidence of
the violation giving rise to the citation; or

(b) The violation involves a motor vehicle collision or pedestrian collision; or

(c) An emergency vehicle or public safety vehicle committed the violation while responding to an
emergency or call for emergency services.

(B) Definitions. For purposes of this section, the following words and phrases shall have the meanings indicated.

Automated Traffic Control Photographic System (ATCPS). An automated device with one or more motor vehicle sensors
that produces recorded images of vehicles violating a red signal indication and/or captures recordings of vehicle speed
measurements. An ATCPS may be fixed or mobile.

Days : All references to days shall be calendar days unless otherwise specified.

Designated party. A person identified as the operator of the vehicle at the time of the violation as provided by the owner
pursuant to subsection (E)(1)(b)(i), (E)(1)(b)(ii), (E)(1)(c), (E)(1)(d), or as determined by the Hearing Officer based upon evidence
received pursuant to subsection (F)(3)(c).

Hand-held, manually-operated photo-enforcement device. A mobile device with one or more sensors that produces
and/or records photographic and/or video images of a motor vehicle and its speed and is manually operated by a police
officer.

Hearing officer. An independent third party, not employed by the Dayton Police Department or its designee who is
appointed by the Mayor to conduct administrative review hearings for notices of liability issued according to this section.

1/6
7/17/2019 Dayton, OH Code of Ordinances

In operation. Operating in good working condition.

Notice of liability. A citation issued for a traffic violation pursuant to this section, alleging the owner or designated party's
civil liability.

Owner. The person or entity identified by the Ohio Bureau of Motor Vehicles, or registered with any other state vehicle
registration office, as the registered owner of a vehicle.

Recorded images. Any of the following images recorded by a Traffic Law Photo-Enforcement Device showing a traffic law
violation, containing the date and time of the violation, and showing the letters and numerals on the license plate of the
vehicle involved:

(a) Two or more photographs; or

(b) Two or more microphotographs; or

(c) Two or more electronic images; or

(d) Two or more digital images; or

(e) Videotape; or

(f) Any other medium.

Sensor. A roadway sensor, laser, radar, or other method used to detect violations of this section.

System location. The approach to an intersection or area of roadway toward which a Traffic Law Photo-Enforcement
Device is directed and is in operation to monitor offenses under this section. A system location may be fixed or mobile.

Traffic law photo-enforcement device. Hand-Held, Manually-Operated Photo-Enforcement Devices, Automated Traffic
Control Photographic Systems, and any other electronic device, system, or technology equipped with a photographic, video,
or digital camera and one or more sensors that detect motor vehicles violating red light indications and/or capture speed
measurements and produce recorded images indicating violations of traffic laws.

Vehicle. Any motor vehicle, motorized bicycle, or trackless trolley.

(C) Violation.

(1) The owner of a vehicle, or the designated party operating such vehicle, shall be liable for a civil penalty
imposed pursuant to this section if the vehicle operator causes the vehicle to cross a marked stop line or
intersection plane at a system location in violation of § 70.13 of this Code or § 4511.13 and § 4511.132 of
the R.C.

(2) The owner of a vehicle, or the designated party operating such vehicle, shall be liable for a civil penalty
imposed pursuant to this section if the vehicle operator causes the vehicle to travel through a system
location at a speed in excess of the posted speed limit or the limit established according to § 71.50 of this
Code or § 4511.21 of the R.C.

(3) A certified copy of the notice of liability alleging the violation of this section, sworn to or affirmed by a
duly authorized police officer of the City of Dayton, with the recorded images captured by a Traffic Law
Photo-Enforcement Device shall be prima facie evidence of the facts contained therein and shall be
admissible in a proceeding alleging a violation under this section.

(4) The fact that a person or entity is the registered owner of the vehicle is prima facie evidence that that
person or entity is the person who was operating the vehicle at the time of the traffic violation.

(5) Notwithstanding subsections (C)(3) and (4), an owner is not responsible for a violation under this section

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if, within 30 days of the issue date listed on the Notice of Liability, the owner furnishes an affidavit as
specified in subsection (E)(1)(b)(i) or (ii) to the Dayton Police Department in the form established by
Dayton Police Department and the following conditions are met:

(a) If the registered owner submits an affidavit as specified in subsection (E)(1)(b)(i) of this section, the
designated party either accepts liability for the violation by paying the civil penalty, fails to request
an administrative hearing within 30 days, or is determined liable in an administrative hearing;

(b) If the registered owner submits an affidavit as specified in subsection (E)(1)(b)(ii) of this section, the
affidavit is supported by a stolen vehicle or stolen license plate report as required in that
subsection.

(D) Notice of Liability.

(1) The Dayton Police Department or its designee shall process the notice of liability and shall serve the
notice of liability by ordinary mail to the owner's address provided on the vehicle's registration on file
with the Ohio Bureau of Motor Vehicles or other state vehicle registration office. The notice of liability
shall include:

(a) The name and address of the owner;

(b) The letters and numerals appearing on the license plate issued to the motor vehicle;

(c) The violation charged, and if the violation is for excessive speed, the recorded speed and lawful
speed limit;

(d) The system location;

(e) The date and time of the violation;

(f) A copy of the recorded image(s);

(g) The amount of the civil penalty imposed, the date by which the civil penalty is required to be paid,
and the address to which the payment is to be sent;

(h) A statement signed, including electronically signed, by a Dayton Police Officer indicating that, based
on inspection of the recorded images and/or sensor readings, the motor vehicle was involved in a
traffic law violation of subsection (C)(1) or (C)(2) of this section, and a statement indicating that the
recorded images and/or sensor readings are prima facie evidence of that violation;

(i) Information advising the person or entity alleged to be liable of the options prescribed in
subsection (E) of this section, specifically to include the time, place, and manner in which an
administrative review hearing may be initiated and the procedure for disclaiming liability by
submitting an affidavit as prescribed in that subsection; and

(j) A warning that failure to exercise one of the options prescribed in subsection (E) is deemed to be an
admission of liability and waiver of the opportunity to contest the violation.

(2) At its discretion, the Dayton Police Department or its designee may serve by ordinary mail a warning
notice in lieu of a notice of liability under this section.

(3) Except as provided in subsection (E)(2), a Notice of Liability issued under this section shall be mailed no
later than 30 days after the alleged violation.

(4) Except as provided under subsection (E)(2) of this section, the Dayton Police Department or its designee
may not mail a notice of liability to a person who is not the owner of the vehicle.

(E) Resolving a Notice of Liability.

(1) A person or entity who receives a Notice of Liability for a civil violation sent in compliance with subsection
(D) of this section shall elect to do one of the following:

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(a) In accordance with the instructions on the Notice of Liability, pay the civil penalty, thereby failing to
contest the liability and waiving the opportunity to contest the violation;

(b) Within 30 days after the issue date listed on the Notice of Liability, furnish the Dayton Police
Department, or its designee, with either of the following affidavits in the form established by the
Dayton Police Department:

(i) An affidavit executed by the owner stating that another person was operating the vehicle of
the registered owner at the time of the violation, identifying that person as a designated party
who may be held liable for the violation, and containing at a minimum the name and address
of the designated party;

(ii) An affidavit executed by the owner stating that at the time of the violation, the vehicle or its
license plates issued to the vehicle were stolen and therefore were in the care, custody, or
control of some person or entity to whom the owner did not grant permission to use the
vehicle. In order to demonstrate that the vehicle or the license plates were stolen prior to the
traffic law violation and therefore not in the care, custody, or control of the owner at the time
of the violation, the owner shall submit proof that a report about the stolen vehicle or license
plates was filed with the appropriate law enforcement agency prior to the violation or within
48 hours after the violation occurred.

(c) If the registered owner is a motor vehicle leasing dealer or a motor vehicle renting dealer, notify the
Dayton Police Department or its designee in writing of the name and address of the lessee or renter
of the motor vehicle at the time of the traffic law violation within 30 days after the issue date listed
on the Notice of Liability; or

(d) If the vehicle is a commercial vehicle and the owner is a corporate entity, furnish the Dayton Police
Department with an affidavit, sworn to or affirmed by an agent of the corporate entity, that
provides the name and address of the employee who was operating the motor vehicle at the time
of the alleged violation and who is the designated party within 30 days after the issue date listed on
the Notice of Liability; or

(e) Contest the Notice of Liability by filing a written request for an administrative review hearing. The
person or entity contesting a Notice of Liability shall file the written request with the Dayton Police
Department, or its designee, not later than 30 days after the issue date listed on the Notice of
Liability. The failure to file a written request for an administrative review hearing within this time
period shall constitute a waiver of the right to contest the notice of liability and is deemed to
constitute an admission of liability.

(2) If the Dayton Police Department, or its designee, receives information, pursuant to subsections (E)(1)(b)(i),
(E)(1)(b)(ii), (E)(1)(c), or (E)(1)(d) or evidence provided by the Hearing Officer in accordance with subsection
(F)(3)(c), identifying a designated party who was operating the vehicle at the time the violation occurred,
then the Dayton Police Department may proceed to send a Notice of Liability that conforms with
subsection (D) of this section to the designated party. Dayton Police Department, or its designee, shall
send the Notice of Liability to the designated party not later than 21 Days after receipt of the affidavit or
notice.

(F) Administrative Review Hearings.

(1) A Hearing Officer shall hear the administrative review of a Notice of Liability. A hearing shall be held no
sooner than 21 but not later than 45 days after the request for hearing is filed. The Hearing Officer may
extend the time period by which a hearing must be conducted upon a request for additional time by the

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person or entity who requested the hearing.

(2) All hearings are open to the public. The docket shall be posted in a conspicuous place near the entrance
to the hearing room, identifying, by respondent, the hearings scheduled for that day and the time of each
hearing. Multiple hearings may be scheduled for the same time to allow for occurrences such as
nonappearances or admissions of liability.

(3) The Hearing Officer shall determine whether a preponderance of evidence establishes that the violation
alleged in the Notice of Liability did in fact occur and that the person or entity requesting the review is
liable.

(a) A certified copy of the notice of liability alleging the violation of this section occurred, sworn to or
affirmed by a duly authorized Police Officer of the City of Dayton, with the recorded image(s) and/or
sensor reading(s) recorded by the Hand-Held, Manually-Operated Photo-Enforcement Device,
ATCPS, or other Traffic Law Photo-Enforcement Device shall be prima facie evidence of the facts
contained therein and shall be admissible in a proceeding alleging a violation under this section.

(b) If the Hearing Officer finds by a preponderance of the evidence that the alleged traffic law violation
did in fact occur and that the person or entity named in the Notice of Liability is liable, the Hearing
Officer shall issue a written decision imposing liability for the violation upon the person or entity
and submit it to the Dayton Police Department or its designee.

(c) If the Hearing Officer finds by a preponderance of the evidence that the alleged traffic violation did
in fact occur but the person or entity requesting administrative review of the Notice of Liability is
not liable, the Hearing Officer shall, in writing, issue a decision finding the person or entity not
liable. If the Hearing Officer finds that the person or entity named in the notice of liability was not
operating the vehicle at the time of the violation and receives evidence identifying the person
driving the vehicle at the time of the violation, the Hearing Officer shall provide to the Dayton Police
Department or its designee a copy of any evidence substantiating who was operating the vehicle at
the time of the violation within five days.

(d) If the person who requested the administrative review hearing or a representative of the entity that
requested the hearing fails to appear at the hearing, the Hearing Officer shall determine that the
person or entity is liable for the violation. In such a case, the Hearing Officer shall issue a written
decision imposing liability for the violation upon the individual or entity and submit it to the Dayton
Police Department, or its designee, and the person or entity named in the Notice of Liability.

(e) The Hearing Officer shall render a decision on the day a hearing takes place. A person or entity that
is found liable by the Hearing Officer must pay the Notice of Liability in full within 72 hours of the
Hearing Officer's decision. Failure to pay the Notice of Liability within 72 hours of the Hearing
Officer's decision will result in a $25.00 late fee being assessed in addition to the civil penalty.

(4) In determining whether the person or entity named in the Notice of Liability is liable, the Hearing Officer
may consider any evidence, to include the following affirmative defenses:

(a) For a traffic signal violation, the driver of the vehicle passed through an intersection in order to yield
the right-of-way to an emergency vehicle in accordance with R.C. § 4511.45, or to a funeral
procession in accordance with § 71.13 of this Code.

(b) That at the time of the violation, the vehicle or its license plates issued to the vehicle were stolen
and therefore were in the care, custody, or control of some person or entity to whom the owner did
not grant permission to use the vehicle. In order to demonstrate that the vehicle or the license
plates were stolen prior to the traffic law violation and therefore not in the care, custody, or control

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of the owner at the time of the violation, the owner shall submit proof that a report about the
stolen vehicle or license plates was filed with the appropriate law enforcement agency prior to the
violation or within 48 hours after the violation occurred.

(c) Evidence, other than that adduced pursuant to subsection (F)(4)(b) of this section, that the owner or
person named in the Notice of Liability was not operating the vehicle at the time of the violation.

(d) That this section is unenforceable because at the time and place of the alleged violation, the traffic
control signal or speed sensor were not operating properly, or the recorded images are not
adequately legible to establish a violation of subsection (C)(1) or (2) or the letters and numerals
appearing on the license plate.

(5) A person or entity may appeal the written decision rendered by a Hearing Officer under this section to
the Dayton Municipal Court.

(G) Civil Penalties.

(1) A civil penalty under this section shall not exceed $250.00 per violation. Persons who choose to pay the
civil penalty without appearing before a Hearing Officer may do so in the manner indicated on the Notice
of Liability.

(2) A violation for which a civil penalty is imposed under this section is not a moving violation for the
purpose of assessing points under R.C. § 4510.036(C)(13) for minor misdemeanor moving traffic offenses.
A violation under this section shall not be recorded on the driving record of the owner or operator of the
vehicle and shall not be reported to the Bureau of Motor Vehicles.

(3) If within 30 Days of the issue date listed on the Notice of Liability, the owner, or designated party, fails to
resolve the Notice of Liability in accordance with subsection (E), a $25.00 late fee will be assessed in
addition to the original civil penalty.

(H) Collection of Civil Penalty. If the civil penalty is not paid, the civil penalty imposed under the provisions of this
section shall be collectible, together with any interest and penalties thereon, by civil suit.

(Ord. 30114-02, passed 6-12-02; Am. Ord. 30965-10, passed 2-17-10; Am. Ord. 31083-11, 6-29-11; Am. Ord. 31352-14, passed
12-10-14; Am. Ord. 31561-17; passed 5-10-17)

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Exhibit C