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Sixth Circuit: Red Light Camera Ordinance Not A Taking

By Robert Thomas

<blockquote>As we have <a href="http://www.inversecondemnation.com/inversecondemnation/2010/08/north-dakota-sct-govt-seizure-a-function-of-police-and-tax-power-not-eminent-domain.html" target="_self">noted previously</a>, we love creative lawyering. But sometimes ... well, just check this case out for an unusual approach to "takings" claims.<br /></blockquote> <blockquote>In <em><span class="asset asset-generic at-xid-6a00d83451707369e2013489b71d80970c"><a href="http://www.inversecondemnation.com/files/10a0350p-06.pdf">McCarthy v. City of Cleveland</a></span></em>, No. 09-4149 (Nov. 9, 2010), the U.S. Court of Appeals for the Sixth Circuit dismissed a claim that the city's red light and traffic camera ordinance effected a taking of property because it imposed liability on the owner of the vehicle. The plaintiffs leased their cars and received traffic citations <em>which they did not contest</em>.</blockquote> <blockquote>The plaintiffs filed federal takings claim in Ohio state court (as required by <em>Williamson County</em>), but the city (as allowed by <em>International College of Surgeons</em>) removed the case to federal district court. Long story short: the district court dismissed, the Sixth Circuit affirmed:</blockquote> <blockquote> <blockquote>These two examples, in which the Supreme Court found a <em>per se</em> taking of funds, explain why the Cleveland traffic ordinance challenged here does not effect a taking. In each case, the state law at issue operated to seize a sum of money from a specific fund. <em>See id</em>. at 223-24 (lawyers' trust accounts); <em>Webb's Fabulous Pharms</em>., 449 U.S. at 163-64 (funds held by the Florida courts in an interpleader account). The statutes found to effect takings did not, as the Cleveland ordinance does, merely impose an obligation on a party to pay money on the happening of a contingency. Cleveland did not seize funds from Plaintiffs' bank accounts. <em>Cf. Brown</em>, 538 U.S. at 224-25 (noting that the financial institutions were required by law to pay the interest earned directly to the state). Instead, Plaintiffs, on receiving the traffic citations, paid the money demanded without protest or appeal.</blockquote> </blockquote> <blockquote>Slip op. at 6.</blockquote> <blockquote>We're not sure the Sixth Circuit needed to go through this analysis (although the opinion's discussion of the plurality opinions in <em>Eastern Enterprises v. Apfel</em>, 524 U.S. 498 (1998) on pages 6-7 of the slip opinion is worth reading). After all, the plaintiffs paid without objection, which means to us that having failed to do so, it should have been <a href="http://www.youtube.com/watch?v=dsx2vdn7gpY" target="_self">game over</a> on that basis alone.</blockquote> <blockquote>The Sixth Circuit also whacked the raised-too-late due process claim, but reversed the District Court's judgment on the supplemental state law claims. Because the Ohio Constitution's takings clause "affords greater protection than the federal Takings Clause," slip op. at 9, the District Court should not have assumed that the resolution of the federal takings claim against the plaintiffs also resolved the state law issues the same way. Remanded, with a note that the District Court could either continue to exercise supplemental jurisdiction, or could remand the case back to Ohio state court.</blockquote> <blockquote>Any guesses what the District Judge will do?<br /></blockquote>

Full post as published by inversecondemnation on December 15, 2010 (boomark / email).