City of Cleveland v. Posner
193 Ohio App. 3d 211
Ohio Ct. App.2011Background
- ATEC photographed Posner’s car at 38 mph in a 25 mph zone on Oct 22, 2008, yielding a 13 mph over limit violation.
- The City mailed a Notice of Liability on Nov 19, 2008, imposing a $100 civil penalty under CCO 413.031.
- Posner contested liability and had an administrative hearing Dec 4, 2008 before a Hearing Examiner in the PVB; evidence included the notice, ATEC photos, and a calibration log.
- Posner denied speeding and challenged CCO 413.031 as unconstitutional on multiple grounds; he also sought discovery of additional evidence.
- The PVB upheld liability; Posner appealed to the Common Pleas Court, which affirmed the PVB on June 3, 2010.
- This appeal raises constitutional challenges as applied, due process concerns over evidence, and whether additional evidence could be admitted under RC 2506.03.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process and evidence admissibility at the admin hearing | Posner contends unauthenticated, hearsay evidence with questionable reliability was admitted. | City argues CCO 413.031(k) allows relaxed evidentiary standards in admin hearings. | Evidence properly admitted; no due process violation found. |
| Right to present additional evidence on appeal under RC 2506.03 | Posner should be able to call witnesses and present unsworn or additional evidence. | RC 2506.03 permits limited additional evidence only under certain defects; transcript sufficiency governs. | Trial court erred in denying right to call/subpoena officer; third assignment sustained; remanded for further proceedings. |
| Constitutionality of CCO 413.031 as applied | Posner argues 413.031 is unconstitutional as applied to him. | City contends constitutionality is preserved as applied; decision limits review to this case. | Not resolved as a facial attack; addressed only to extent applied; remanded for proceedings consistent with ruling on discovery. |
| Nature of CCO 413.031 and due process framework | Posner challenges civil facet and due process protections in an admin speeding scheme. | Court should treat as civil penalty with reduced due process protections. | CCO 413.031 deemed civil in nature; due process analysis applied to as-applied context. |
Key Cases Cited
- Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570 (1992) (defines reliable, probative, substantial evidence standard in admin matters)
- Simon v. Lake Geauga Printing Co., 69 Ohio St.2d 41 (1982) (administrative hearing evidence admissible; hearsay permitted)
- Shields v. Englewood, 172 Ohio App.3d 620 (2007-Ohio-3165) (limits on appellate review of administrative findings)
- Balaban v. Cleveland, N.D. Ohio No. 1:07-CV-1366, 2010 WL 481283 (2010) (CCO 413.031 is civil in nature; facial challenge discussed)
- Dudukovich v. Hous. Auth., 58 Ohio St.2d 202 (1979) (limits deference to agency judgments; deference to administrative record)
- Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705 (1992) (abuse of discretion standard in admin appeals)
- Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570 (1992) (reiterates reliability/probative/substantial framework)
- Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000) (standard for reviewing administrative decisions)