Lead Opinion
{¶ 1} Defendant-appellant, Jeffrey Posner, appeals from a judgment of the Cuyahoga County Common Pleas Court affirming an administrative decision of the Cleveland Municipal Court’s Parking Violations Bureau, Photo Safety Division. The administrative hearing officer found Posner liable for a speeding violation pursuant to Cleveland Codified Ordinance (“C.C.O.”) 413.031, which sets
{¶ 2} “[1] The court below erred in failing to address appellant’s arguments.
{¶ 3} “[2] The procedure utilized below allowed conviction upon insufficient and improperly allowed evidence.
{¶ 4} “[3] The procedure below violated appellant’s due process rights by providing for conviction upon improperly allowed evidence without the right to confront actual witnesses and compel appearance and testimony.”
{¶ 5} Although Posner raises three assignments of error, he presents only one argument, stating that his “assignments of error are somewhat related, as the evidentiary issues implicate due process rights, аnd will be argued together.”
{¶ 6} App.R. 16(A)(7), however, requires “[a]n argument containing the contention of the appellant with respect to each assignment of error.” While appellate courts may jointly consider two or more assignments of error, the parties do not have the same option in presenting their arguments. See, e.g., In re Jack Fish & Sons Co., Inc.,
{¶ 7} Nоnetheless, we will address Posner’s sole argument on appeal. As Posner indicates, all of his assignments of error address evidentiary issues infringing on his due-process rights. Essentially, Posner argues that the common pleas court erred by not considering his constitutional due-process challenge — based on evidentiary issues — to the city’s automated-traffic-camera enforcement system.
{¶ 8} Finding merit to his appeal, we reverse and remand.
Standard of Review
{¶ 9} In Henley v. Youngstown Bd. of Zoning Appeals (2000),
{¶ 10} “Thе common pleas court considers the ‘whole record,’ including any new or additional evidence admitted under R.C. 2506.03, and determines*425 whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. * * *
{¶ 11} “The standard of review to be applied by the сourt of appeals in an R.C. 2506.04 appeal is ‘more limited in scope.’ * * * Kisil v. Sandusky (1984),12 Ohio St.3d 30 , 34, 12 OBR 26,465 N.E.2d 848 . ‘This statute grants a more limited power to the court of appeals to review the judgment of the common pleas court only on “questions of law,” which does not include the same extensive power to weigh “the preponderance of substantial, reliable and probative evidence,” as is granted to the common pleas court.’ Id. at fn. 4. ‘It is incumbent on the trial court to examine the evidence. Such is not the charge of the appellate court. * * * The fact that the court оf appeals, or this court, might have arrived at a different conclusion than the administrative agency is immaterial. Appellate courts must not substitute their judgment for those of an administrative agеncy or a trial court absent the approved criteria for doing so.’ Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988),40 Ohio St.3d 257 , 261,533 N.E.2d 264 , 267.” (Emphasis deleted.) Henley,90 Ohio St.3d at 147 ,735 N.E.2d 433 .
{¶ 12} Thus, this court will review the judgment of the trial court only to determine whether the lower court abused its discretion in finding that the administrative order was supported by reliable, probative, and substantial evidence. See Wolstein v. Pepper Pike City Council,
Constitutional Challenge: Facial v. As Applied
{¶ 13} Posner raised several evidentiary, due-process issuеs to the common pleas court. He argued that the hearing officer’s decision was unlawful and unconstitutional because the procedure and admission of evidence violated his duе-process rights and could not be used as a basis for a valid decision. He further argued that he was entitled to evidentiary and due-process safeguards and that the evidence used against him was unsworn, unscientific, and unsubstantiated, and was not authenticated.
{¶ 14} The common pleas court determined that Posner’s arguments were “principally based on claims that the underlying ordinance is invalid, unlawful, and unconstitutional.” It refused to address his constitutional arguments because “the validity of the underlying ordinance is not for this court to determine.” It further stated, “The scope of this court’s review is limited to the validity of the hearing officer’s decision.” The common pleas court then affirmed the decision of the administrative hearing officer, finding that it was not unconstitutional, illegal,
{¶ 15} The city contends that the trial court had no jurisdiction to address Posner’s constitutionаl claims. Specifically, the city argues that the trial court correctly determined that Posner challenged the constitutionality of C.C.O. 413.031 only on its face. But Posner maintains that he raised both a facial challenge to C.C.O. 413.031 and an “as applied” challenge. Thus, Posner argues that the trial court erred by not considering his evidentiary, due-process arguments, as applied to his casе.
{¶ 16} A statute’s constitutionality can be challenged on its face or on the particular set of facts to which the statute has been applied. Harold v. Collier,
{¶ 17} This court has previously found that “[a] facial constitutional challenge to a[n] * * * оrdinance is improper in the context of an administrative appeal.” Cappas & Karas Invest., Inc. v. Cleveland Bd. of Zoning Appeals, 8th Dist. No. 85124,
{¶ 18} After reviewing the record in the case sub judice, it is clear that Posner raised “as applied” challenges, as well as facial challenges, to the constitutionality of C.C.O. 413.031. Throughout his brief to thе common pleas court, he argued that C.C.O. 413.031 was unconstitutional on its face and as applied to his case. He raised several specific arguments challenging the evidence usеd against him.
{¶ 19} We therefore reverse the decision of the trial court and remand the cause with instructions to address Posner’s constitutional due-process challenges to C.C.O. 413.031 “as applied” to his case.
Judgment reversed and cause remanded.
Dissenting Opinion
dissenting.
{¶ 20} Rеspectfully, I dissent, and would affirm the judgment of the trial court. First, I agree with the majority’s conclusion that because Posner failed to separately argue his assignments of error pursuant to App.R. 12(A)(2), wе are within our discretion to disregard all of his assignments of error and summarily affirm the trial court.
{¶ 21} Posner claims that the city’s ordinance is unconstitutional because it violated his due-process rights. C.C.O. 413.031, the ordinance at issue, was enacted to establish “a civil enforcement system for red light and speeding offenders photographed by means of an ‘automated traffic enforcement сamera system.’ ” C.C.O. 413.031(a).
{¶ 22} It is well settled that municipal ordinances are presumed to be constitutional. Hudson v. Albrecht, Inc. (1984),
{¶ 23} In Grossman,
{¶ 25} Although the majority has decided to reverse the judgment, finding that the trial court erred when it failed to cоnsider Posner’s “as applied” constitutional challenge, I would find that Posner failed to present any evidence to the trial court, let alone demonstrate, that C.C.O. 413.031, as applied to him, is unconstitutional; thus, any error the trial court made was harmless.