IN THE COURT OF COMMON PLEAS

                                                SUMMIT COUNTY, OHIO

 

 

KELLY MENDENHALL,                                        )           Case No.:  CV 2005-12-7513

430 Woodland Ave.                                                  )

Akron, Ohio  44302,                                                 )

Individually, and as a Class Representative                 )

For All Persons Similarly Situated,                             )           JUDGE: MURPHY

                                                                                 )

            Plaintiff,                                                         )

                                                                                 )

vs.                                                                             )

                                                                                 )           COMPLAINT AND CLASS ACTION

THE CITY OF AKRON,                                         )           COMPLAINT FOR DECLARATORY

c/o Mayor Donald Plusquellic                                    )           JUDGMENT, INJUNCTION AND

166 South High Street                                               )           MONEY JUDGMENT

Akron, Ohio  44308,                                                 )

                                                                                 )

            Defendants.                                                   )

_________________________________________          )

 

 

            This is a Class Action Complaint seeking a Declaratory Judgment, an Injunction and Money Judgment on behalf of the Class Representative Plaintiff and all persons similarly situated against the City of Akron and the Akron City Council to declare Akron City Code § 79.01, which authorizes the city’s use of automated mobile speed enforcement systems on the City’s streets, unconstitutional and invalid; to enjoin use of the automated mobile speed enforcement systems; and to return fines paid to the City as a result of its use of the automated mobile speed enforcement systems.

 

INDIVIDUAL CLAIMS

1.         Plaintiff Kelly Mendenhall is a City of Akron resident and taxpayer.

2.         Defendant Nestor Traffic Systems, Inc., is a Rhode Island corporation doing business within the State of Ohio.

3.         In November 2005, Plaintiff Mendenhall received a “speed violation citation” from the City of Akron, alleging that she owed a penalty because a vehicle registered in her name had previously been photographed allegedly exceeding the posted speed limit on Copley Road in the City of Akron. 

4.         The law upon which the City of Akron relies for its purported authority to assess such penalties, Akron City Code § 79.01, was enacted by Defendants Sommerville, Otterman, Conti, Williams, Horrigan, Finley, Greene, Shealey, Albanese, Merlitti, Keith, Freeman and Moneypenny (the “Council Defendants”) as Ordinance 461-2005 on or about September 12, 2005, and the Akron Police Department began implementing the ordinance on or about October 31, 2005.  A copy of Akron City Code § 79.01 (hereinafter “the Code”) is attached hereto and incorporated herein.

5.         This law cannot be enforced against the Plaintiff because the ordinance is invalid in its entirety for, inter alia, the following reasons:

a)         Persons who wish to contest their citations are limited to a single hearing that is not subject to any prescribed rules of procedure or evidence, and is not heard by an impartial tribunal, but is decided by an as-yet-unnamed appointee of Mayor Donald Plusquellic, whose decision is final and – under the terms of the Code – not subject to judicial review or further appeal, all of which violate the due process rights guaranteed by the Ohio and United States Constitutions;

b)         The Code violates Ohio Constitution Article XVIII, §3, which prohibits municipal corporations from enacting ordinances contrary to the general laws of the State of Ohio, in that the Code violates R.C. § 4511.07, which does not authorize local authorities to enact their own laws regarding the speed of vehicles on streets and highways except for in public parks, and which restricts the authority of local governments to enact ordinances treating existing criminal traffic offenses as noncriminal to only cases involving parking violations;

c)         The Code in its present form violates the public policy of the State of Ohio and the intent of the Ohio General Assembly regarding due process, as implied by R.C. §§ 4521.02 through 4532.08, which require that a municipal corporation enacting laws for enforce parking violations as noncriminal offenses must first establish a regulatory scheme that includes a hearing governed by designated rules of evidence and procedure, sets forth specific qualifications for hearing officers, and provides a mechanism for judicial review; and

d)         The Code in its present form forces individuals challenging citations to waive their rights under the Fifth Amendment to the United States Constitution in order to defend themselves.

 

CLASS ACTION CLAIM

6.         Plaintiff also brings this action on behalf of all persons who, on and/or after October 31, 2005, received a "Speed Violation Citation" from the City of Akron claiming that they must pay a penalty because vehicles registered or leased to them had been photographed while allegedly exceeding posted speed limits.

7.         For the same reasons set forth in their individual claims, Plaintiff asserts that the Code is invalid and unenforceable against all members of the class of persons set forth above.

8.         Upon information and belief, Defendant Nestor Traffic Systems, Inc., has contracted with the City to provide equipment, personnel and services in connection with the installation, maintenance and operation of the automated mobile speed enforcement systems during a 90-day trial period beginning on or about October 31, 2005.

9.         Upon information and belief, the City of Akron, in concert with Defendant Nestor Traffic Systems, Inc., has issued more than 3,000 citations worth more than $500,000 since the trial period began.

10.       Upon information and belief, some of the money has been paid to or is in the custody of defendant Nestor Traffic Systems, Inc.

11.       Certification of a class action is necessary and appropriate because:

a)         the class is so numerous, and so likely to include vehicle owners who are not residents of the local area, that joinder of all members is impracticable;

b)         there are questions of law and fact common to the class as a whole;

c)         the claims of the representative Plaintiff are typical of the claims of the class;

d)         the representative Plaintiff will fairly and adequately protect the interests of the class;

e)         the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for the defendants;

f)          the City of Akron and Nestor Traffic Systems, Inc., have acted on grounds generally applicable to the class, thereby making final injunctive relief or corresponding declaratory relief with respect to the class as a whole appropriate; and

g)         questions of law or fact common to the members of the class predominate over questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

 

WHEREFORE, Plaintiff prays as follows:

o                   For a judgment declaring Akron City Code § 79.01 unconstitutional and/or invalid under Ohio and federal law, and therefore totally void and unenforceable;

o                   For a permanent injunction prohibiting continued enforcement of the Code as to members of the class against whom proceedings are still pending;

o                   For an order requiring restitution from the defendants of all civil fines they have collected under the automated mobile speed enforcement system; and

o                   For such further relief as is necessary and/or appropriate.

 

 

 

 

                                                                                             Respectfully submitted,

 

 

 

                                                                                             ___________________________________

                                                                                             WARNER MENDENHALL, #0070165

                                                                                             JACQUENETTE S. CORGAN, #0072778

                                                                                             190 North Union Street, Suite 201

                                                                                             Akron, OH  44304

                                                                                             (330) 535-9160; fax (330) 762-9743

                                                                                             warnermendenhall@hotmail.com

                                                                                             j.corgan@justice.com

 

                                                                                             COUNSEL FOR REPRESENTATIVE

                                                                                             PLAINTIFF AND THE CLASS

 

 

 

 

JURY DEMAND

 

     The Plaintiff hereby requests a trial by jury for all legal issues presented.

 

 

 

                                                                                             ____________________________________

                                                                                 Warner Mendenhall, #0070165