With one insistent exception, Florida Supreme Court justices on Thursday were mostly skeptical about the legality of city ordinances that permitted red-light traffic cameras in what they termed a “parallel” system to state law, which forbade such devices before 2010.
The opinion, to be issued next year, has a direct bearing on Palm Coast’s red-light camera system as it ran between 2008 and 2010, before a state law made all such systems across the state uniform. Red-light camera systems in place since 2010, including Palm Coast’s, are not necessarily affected by the Supreme Court case, although Thursday’s questions opened a few lines of argument–especially about due process–that have a small chance of touching on existing law.
The Supreme Court is hearing the appeal of two lower-court decisions, one of which declared pre-2010 cameras illegal because “pre-empted” by state law, the other one declaring them legal, because the state has carved out exceptions for cities to keep their streets safe. (The Third District Court of Appeal upheld Aventura’s ordinance. The Fifth District Court of Appeal ruled against Orlando’s ordinance.)
Aside from Justice Barbara Pariente on one occasion referring to the sizeable money at stake, none of the justices referred to the financial windfall of the lucrative systems, nor to the consequences of cities having to repay motorists, should the court declare the pre-2010 cameras illegal. That’s one of the chief concerns for cities like Palm Coast, which is facing a lawsuit of its own over the cameras. American Traffic Solutions, the Arizona-based private company that runs Palm Coast’s system, settled its part of the lawsuit, reimbursing motorists who applied to have some money returned to them. Palm Coast chose not to settle and wait for the outcome of the case before the Supreme Court.
Through 66 minutes of oral arguments over two red-light camera cases before them, Justices Charles Canady and Fred Lewis, occasionally joined by Justice James Perry, drilled holes in contentions by lawyers representing the cities of Aventura and Orlando that state law never “preempted” local governments from creating a parallel system of traffic regulation and enforcement. Only Justice Barbara Pariente seemed willing to give home rule the benefit of the doubt as she repeatedly came to the cities’ defense. But even Pariente was perturbed, as were the other justices, by the potential harshness of local penalties—some of which could lead to the loss of a business, a lien on a property or the loss of a driver’s license.
The lawyers for Orlando and Aventura contended that the penalties were not comparable to those provided under state law in case of red-light infractions, and therefore could not be deemed harsher. None of the justices, including Pariente, bought that line of argument. “If we find that there are penalties that are more severe, isn’t that a reason to invalidate the ordinances?” Pariente asked near the end of the arguments.
Audio: The Full Arguments Before the Court[media id=353 width=350 height=250]
But that’s the only point Pariente conceded to the opponents of red-light cameras. She did not consider it the Legislature’s intent before 2010 to prevent cities from having cameras, however. “Certainly they expressed an intent to have uniform traffic rules, laws, but then they say—but municipalities can do this in these areas,” Pariente said, citing the 23 exceptions the Legislature carved out, granting cities authority to exercise their own rules. One of those exceptions (Chapter 316.008(1)(w)) includes “Regulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties and providing for the construction and maintenance of such streets and highways.”
That’s the key segment of law Orlando and Aventura are relying on in defense of their argument for the cameras. “If we have to discuss this to figure it out, why wouldn’t we give the benefit to the municipalities in light of their home rule power?” Pariente said.
Andrew Harris, the attorney arguing against Aventura, said the law had to expressly permit traffic cameras that result in the issuance of citations, which he said the law does not. Worse, the local governments imposed harsher penalties than state law allows when issuing traffic tickets, which, Harris said, the Supreme Court itself ruled was impermissible in the context of another case.
“That was the only thing they said was inappropriate,” Pariente said, referring to that case, again suggesting that penalties aside, she does not find the devices themselves in conflict with law. That, of course, would not help cities like Palm Coast should they have to refund penalties deemed harsher than allowable—even if their traffic cameras were ruled in and of themselves legal.
Harris maintained that the heart of the matter was the conflict between the local ordinances and the law, which should invalidate the local ordinances.
It was at that point that Canady intervened for the first time, explicitly giving Harris a lifeline when he cited another section of law which explicitly prohibits adding “fees, fines, surcharges or costs” to traffic tickets allowable by law. “Why isn’t that part of the analysis?” Canady asked.
Harris did not immediately recognize the lifeline, sticking to his prepared argument that the city’s “process leading to the fees” was the problem. In one of the few light-hearted moments of the hour, Justice Lewis intervened to nudge Harris about Canady’s intent: “It’s a friendly question,” Lewis said. “I don’t think you want to argue with him.”
Harris back-stepped. “That is precisely the issue,” he said. “But I wanted to focus in on the process getting to the penalties as well.”
Canady cut in again, his tone betraying impatience with Harris’s focus. “This seems to me to be pretty clear, and what we have here are additional penalties that are imposed, and it says that the section which is headed ‘preemption of additional fees, fines, surcharges and costs,.’ If that’s not express preemption, I don’t know what would be.”
“I certainly agree with that, you honor,” Harris finally conceded, to his own point.
“I thought you might,” Canady said.
“And I thank you for the friendly question,” Harris said. Still, he returned to the original 1971 law the Legislature passed, imposing its uniform traffic laws, “and in the staff analysis was a reference to the hodgepodge of local ordinances. That’s exactly what we have here,” he said, with different penalties from town to town. “In Orlando for example, you can actually lose the right to have a business, or lose the right to have a permit. Not in Aventura. In Aventura, it’s just a lien on your property.”
Jason Weisser, who represents Michael Udowychenko, the Orlando driver, recognized that the argument had shifted from how the lawyers had framed it to how the justices were now framing it, broadening the reach of their analysis. He immediately took on Pariente’s points. Their brief duel was revealing:
Pariente: How is it that supplementary enforcement of those that would run red lights in municipalities, how is that against public policy in the state of Florida?
Weisser: Because the entire concept behind the Uniform Traffic Code is the uniformity throughout the state, so that if a driver is traveling from Tallahassee to Monroe County, the laws will be the same, the application will be the same.
Pariente: You know you can’t run a red light in the state of Florida.
Weisser: And that’s when we get to the conflict issue, your honor. Even assuming arguendo that the municipality under the home rule had the authority to enact their ordinance, it can’t conflict with the state law, and the ways that it did is, Number 1 it turned this into a vicarious offense. Anywhere else, in the erst of the state, if somebody blows through a red light, the driver is responsible. Your ordinances from the defendants establish now it’s going to be the owner. Secondly, it is a criminal violation, and in the ordinances, they have some quasi due process protection as opposed to the statute which requires proof beyond, to the exclusion of a reasonable doubt.
He didn’t get to Number three: Pariente and Wesser talked about whether the local penalties were criminal or not, and which was harsher. That prompted a question from Justice Perry that opened yet another new avenue in the direction of the case, as the justices might see it.
“They can have the cameras, but they can’t do the punishment?” Perry asked. “I mean, the statute clearly says that the municipalities are not required to regulate the movements, not necessarily the monitoring. They can redirect things, traffic etc., that’s what [the law] seems to indicate, but if they just took the picture and could identify the person driving, and later give them, punish them under the uniform code, would that be OK?”
“They have the right to use the cameras, but they have to comply with the rest of the statute,” Weisser said.
“So that would take care of the safety concerns, would it not?” Perry said.
“If these were legitimate safety concerns,” Weisser said, “all they have to do is make the yellow lights longer and it would obviate the need for this issue, and we wouldn’t even be here.”
The argument was diffuse then, and got even more diffuse as Weisser raised matter of due process, the reasonable doubt standard, the disparity in penalties. “So when we take this in its collective, the ordinance in question is violating the general law, and the home rule power will always be subservient to the general law,” Weisser concluded.
Edward Guedes, the attorney for Aventura, also recognized that by the time he was up, the case was “going to cover farther afield” than he’d intended. Lewis barely let Guedes develop his point before describing Aventura’s ordinance “really directly collides head-on with so many provisions of the other state statutes dealing with traffic control.” It was under Lewis’s questioning that Guedes framed the local governments’ systems as “this parallel system” that could exist alongside state law without either supplanting it or triggering pre-emption or conflict.
Canady countered: “I don’t understand how this is not about as clear as it could be a statement, that the state is not allowing the imposition of additional” costs, he said, though in some cases the state may do just that—as with the imposition of handicap restrictions. But those must be specified, Canady said. “There is no such specification” in the state law that refers to monitoring devices.
“The fact that things don’t match doesn’t mean that they’re in conflict,” Gueddes said, straining to separate local governments’ “parallel” systems as creations essentially independent of state law. “This court’s jurisprudence, there is no question about this, is that conflict arises when compliance with one violates the other,” Gueddes said. “That does not arise from a non-matching parallel system.”
Yet Gueddes conceded one point: that if there is to be a conflict, it is limited to the level of penalties imposed. “Therefore, if this court were to completely disagree with us, that we’re free and clear to create this parallel system that we created, the pre-emption and the conflict arising from a greater penalty, or different penalty, only invalidates the penalty.”
“What’s left without the penalty?” Canady asked.
“Enforcement,” Gueddes said. “You still can cite the person, you can bring them in for a hearing, the penalty can be made consistent with the state statute.”
“That would be not consistent with my understanding of the pre-emption law,” Canady said, the amounts being irrelevant when the procedures must also be complied with. “I don’t think it makes a difference under this provision what the amount of the fine is if it’s being done as something that’s additional to what is the process that is allowed under chapter 318.” By then, Canady was repeating Harris’s very point—the point Harris had focused on before Canady began supporting his argument.
But Gueddes returned to the difference in systems: Aventura’s ordinance imposed different fines, but no points on drivers’ licenses. “All those things that are imposed by state law aren’t in ours, so how do you compare the two?” Gueddes said. “Can you necessarily say that one is greater than the other? And I would suggest that to resolve that conflict, in light of broad municipal home rule authorities, you should side in favor—respectfully—of the city.”
Going last, David King, the attorney representing Orlando, argued that the Legislature had not “occupied the field” of traffic regulation as cities were occupying it—with cameras. “The local government has the power to do this,” he said, interpreting the law as giving “a huge delegation of local power to the municipalities.” King’s argument, heavier on rhetoric than reasoning, was the last strongly tethered to actual case law. He made broad claims that touched on disparate cases going back to the 1940s and distantly related ordinances, concluding that “if you don’t buy the parallel system, then you don’t buy our case. That’s very clear. I understand that. But just because it’s different doesn’t mean it’s conflict.”
In a final rejoinder, Harris, rejecting the notion of a “parallel” system, said cities don’t even have the “power to create the parallel system.” He continued: “They don’t get that power. There is superiority here at the Legislature.”
Pariente, referring to the 2010 law that standardized red-light cameras, said the Legislature “grandfathered in” existing system, and may have “made a statement” against those pre-existing systems had it felt the need to. Instead, it left them in place, reflecting perhaps their legitimacy: Pariente was not asserting that as a certainty, but as a possibility. Harris said the 2010 law did not address what the 1971 law had intended. It merely reflected the exploding litigation that red light cameras had set off across the state. The Legislature, recognizing the enormous sums of money at stake, stepped in to protect municipalities, and standardized the red-light cameras with the Mark Wandall Act of 2010.
All justices were present except for Peggy Quince, who will nevertheless participate in the deliberations and decision on the question. The court will issue a ruling later this year.