Tuesday, March 27, 2012

Maryland High Court to Hear Speed Camera Case

The Maryland Court of Appeals has agreed to hear an appeal regarding the issue of contingent fee contracts by Montgomery County and several other jurisdictions, which the plaintiff's allege violate state law.


Article 21-809(j) states "If a contractor operates a speed monitoring system on behalf of a local jurisdiction, the contractor's fee may not be contingent on the number of citations issued or paid."  However Montgomery County, as well as the local jurisdictions Rockville and Gaithersburg each signed contracts with speed camera vendor ACS State and Local Solutions (a division of Xerox Corporation) to pay a fee of $16.25 per ticket.  Attorney Timothy Leahy of the law firm Byrd and Byrd, LLC filed suit in 2008 against Montgomery County in the case(filed as 'Baker v Montgomery County Maryland'), alleging the contract violates that provision. 

ACS's own press release defines the contractor's role : "Under the contract, ACS processes violations; generates and mails notices; schedules adjudication and appeals appointments; provides document imaging and correspondence management; provides walk-in customer service; maintains camera equipment; and provides pay-by-web, pay-by-phone, and integrated voice response systems."  Montgomery County claims they perform all of the duties defined for the operator (namely signing the daily setup logs).  However this web site has documented that both Montgomery County and the City of Gaithersburg routinely skipped signing daily setup logs for days at a time, leaving the contractor's automatic calibration systems in control of the devices.

The case was dismissed by the Circuit Court and Special Court of Appeals because the county claims that they, not the county "operate" the cameras.  On advice of the attorney general, Montgomery County amended their contract (after the case was filed) to state that 'the contractor has sole responsibility for operating the speed monitoring systems', and the circuit court ruled that because the contract states that the contractor doesn't operate the devices, the fact that the contractor has substantial control over the system is irrelevant.  The plaintiff's filed for a Writ of Certiorari with the state high court, and on March 16, 2012 the Court of Appeals agreed to hear the appeal which is scheduled for June.

The issue at stake is wider than merely whether the county 'operates' the cameras.  In addition to the issue of whether the contractor "operates" the devices, the high court will decide whether or not to overturn two other decisions made by the Court of Special Appeals "(1) Did CSA err in ruling that any challenge by recipients of speed camera citations must be raised during the District Court trial?" and "(2)Did CSA err in ruling that recipient of a speed camera citation waives all challenges to that citation by paying the fine?"  Because of the lower court ruling on those two issues, no speed camera program in the state can currently be the target of a class action suit for ANY reason.  Even if a speed camera program were found to be systematically violating other provisions of state law, the prior court ruling would mean that each defendant must contest their own $40 citation individually.  Even if a local government knowingly used defective hardware or issued thousands of blatantly false citations, defendants would likely not be permitted to combine their resources into a class action so they could afford expenses such as attorneys and expert witnesses.

While winning an individual case may be a moral victory, economically speaking fighting a single citation usually costs more than the fine even if one wins.  In addition, some district court judges have openly stated that that they will not accept ANY defense against a recorded speed reading.  If the machine cannot be challenged, then arguing factual innocence in district court is hopeless because guilt is assumed.  An individual district court case has no affect on other citations.  As such, so long as a local government is willing to tolerate potential bad press, they could systematically violate ANY provision of state law, or even knowingly use inaccurate or faulty equipment, and never need to worry about more than 1-2% of citations being overturned.  Of particular concern would be speed camera programs run by municipal governments who issue most of their citations to out of town residents (as local residents tend to learn the camera locations early), and as such would not be accountable for questionable practices at ballot box either.  We believe this lack of accountability may be the root cause of many of the photo enforcement abuses we have documented in Maryland.

Chevy Chase Village also originally paid ACS a contingent fee, but renegotiated their contract in 2009 to pay a flat fee.  Baltimore County also signed a flat fee contracts with ACS, proving that alternative arrangements for running a speed camera contract are possible.  However because courts have been upholding the contingent fee arrangements, many local jurisdictions using other vendors also give their contractors a cut of each ticket, including some cases where the vendor is also the device's manufacturer.

The fact that the original intent of state law was to ban per-ticket payments was clearly part of the legislative history.  The fiscal policy notes for HB443(the 2005 legislation which authorized Montgomery County to first use speed cameras) stated "The contractor’s fee for a speed enforcement system may not be contingent on the number of citations issued.", and when comparing the legislation to existing red light camera programs stated "If new speed monitoring systems were implemented in a similar fashion, Montgomery County would be expected to contract for the necessary services, although the vendors would not be paid based on the number of citations."  This clearly indicated the original legislative intent was that there would be no contingent fees paid to contractors.

Legislators also touted the restriction to their constituents, for example State delegates Dana M. Stein(D, Baltimore County) and Pam Beidle (D, Anne Arundal County) both wrote about the restriction in their newsletters in 2008, when statewide speed camera legislation was being discussed: "Finally, the bill prohibits a speed camera contractor’s fee from being linked to the number of citations issued by the device or paid by speeders."  Promises that contractors would not be paid based on the number of tickets were given to motorist groups such as AAA to win their support for speed cameras. 

Shortly before the fact of the county's contingent fee contract was revealed, County Executive Ike Leggett publicly stated in an online town hall meeting in response to a question about why the contractor was getting a 40% cut of the fines, "Under the contract, we pay a flat fee, and the County receives significantly more than 60 percent." --- a statement which was proven to be complete and total lie a few weeks later.  In addition council member Phil Andrews, one of the county council's strongest advocates for speed cameras, stated in these May 2006 county council minutes (page 132, lines 15-16) that "contractors are not paid based on the number of citations, that's built-in", a promise which in fact was not kept by the county council.  As such, the issue is not merely whether the county has complied with the law, but WHETHER IT IS OK FOR OUR ELECTED OFFICIALS TO LIE TO THE PUBLIC ABOUT IT.  And if they lied to us about this, what else have they lied to us about? 

StopBigBrotherMD.org does not consider the issue of contingent fees to be a mere technicality.  Indeed, had it not for the deception demonstrated by Montgomery County officials on this matter, StopBigBrotherMD.org would never have been created in the first place.  The contractors in these programs deploy, maintain, and perform automatic calibration of speed cameras, as well as processing violations from the cameras and scheduling court hearings.  This gives them substantial control over the entire system, and the chain of evidence in court cases.  This year the state legislature also seriously contemplated legislation which would have made matters even worse by removing the requirement that police review citations before they are issued, allowing private contractors to perform this task.  With so much control over the system, a for-profit contractor who has an incentive to issue more tickets could potentially:
The US Public Interest Research Group (US-PIRG), a consumer advocate group (which does not oppose speed cameras) wrote a report in 2011 cautioning on the privatization of law enforcement, specifically noting contract arrangements which give contractors an incentive to issue more tickets.

It will now be up to the state Court of Appeals to decide whether local governments should be allowed to interpret laws out of existence whenever it is expedient to do so, and whether the people have any right to go to the courts to contest the matter if that happens.