Thursday, June 7, 2012

State High Court Hears Arguments in Speed Camera Case

The Court of Appeals, the highest court in Maryland, heard arguments yesterday regarding Montgomery County's contingent fee contract.  At issue is the fact that Montgomery County pays it's contractor ACS State and Local Solutions $16.25 per ticket despite language in the state law that "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."   Attorney Timothy Leahy from Byrd and Byrd LLC represented the plaintiffs in this case.
Last year the Court of Special Appeals ruled against the plaintiffs, stating that because the county's contract was changed in 2009 to state that ACS is not the 'operator', there is "no reason" to look beyond the language of the contract to determine whether what the contractor does constitutes 'operating' the cameras.  Additionally, the lower court ruled that the only legal way to contest a speed camera citation is to do so individually in district court, and that paying a ticket is an admission of guilt which waives any right to a class action.  In our opinion, this ruling had the effect of shutting off any legal recourse against any speed camera program for any reason, even in the event of blatant misconduct by the agencies issuing the tickets, since motorists cannot individually afford to hire attorneys and expert witnesses to match the resources of governments and well heeled camera companies.  Even if successful, winning in district court on a single ticket has no effect on other tickets issued by the program -- so the local government keeps the revenue from all the other tickets unless EVERY ticket recipient contests it individually.

In March the Court of Appeals agreed to hear the case, and will now determine whether this decision stands.

Contingent fee contracts raise issues for some because it creates an incentive for the contractor to maximize the number of citations issued.  If the contractor has control over the maintenance, calibrations, or placement of cameras, or the processing of violations and evidence, then the potential exists for a contractor to influence the placement of cameras at speed limit boundaries, or to allow citations to be issued and prosecuted based on faulty or insufficient proof of a violation.

The fact that the original intent of state law was to ban per-ticket payments was written into 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."  Thus the original legislative intent was that there would be no contingent fees paid to contractors.

Some legislators also touted the restriction to their constituents in order to justify their support for statewide speed cameras.  Sor 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. 

In 2010 this website that both Montgomery County and Gaithersburg were systematically failing to perform certain duties required of the 'operator' of speed cameras under state law. This makes it clear that who operates the cameras is a 'matter of fact' on the ground, not a 'matter of law' on which physical reality has no bearing.  The fact that both jurisdictions felt free to not perform required system checks left ACS to monitor and control the devices, and if that does not constitute 'operating' then one might as whether any government agency can ignore *any law* for any reason at all using semantics.  And one might worry how the more opportunistic local governments in the state might respond to such a ruling.