Thursday, August 23, 2012

Maryland High Court: The Crown Can Do No Wrong

The Maryland Court of Appeals has reached a decision in the case of Baker v Montgomery County, regarding Montgomery County's Contingent Fee contract (View Ruling).  The state high court ruled that state law does not permit a class action lawsuit against a speed camera program, but declined to rule on the main issue in dispute regarding whether or not the contractor "Operates" the cameras and as such violates the law. The verdict will likely block other class actions filed on any grounds, not merely suits filed on this particular issue.

StopBigBrotherMD.org has reported many times about the lawsuit, which has been ongoing since 2008.  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. The lower court ruled against the plaintiffs, and the appeal was eventually brought to the Court of Appeals.

The primary reason the Court of Appeals ruled that the case could not proceed is that the government had not authorized itself to be sued:  "Maryland Code, Transportation Article, § 21-809 does not provide an implied private cause of action to sue local governments that utilize speed monitoring systems."
They further explain: "A private cause of action in favor of a particular plaintiff or class of plaintiffs does not exist simply because a claim is framed that a statute was violated and a plaintiff or class of plaintiffs was harmed by it." and "the legislative history of § 21-809 does not reveal a legislative intent to create an implied private cause of action"

StopBigBrotherMD's opinion and translation of this is simple: The purpose of the court is to divine legislative intent. And in this case, the court has concluded that the legislature's intent was that once a speed camera program has your money, they never give it back.

The basis of this ruling is essentially the same as the idea of "Sovereign Immunity", that the government cannot be sued unless it authorizes the lawsuit.  This archaic common law concept, harkening back to the days when the word of a Sovereign or King was considered absolute, is sometimes described using the expression "The Crown Can Do No Wrong".  The concept has been frequently criticized by legal scholars as anachronistic, because it treats government entities in a fundamentally different way than private citizens.  The fact is, today people know the government can, and does, sometimes do wrong.  Nevertheless, the court has embraced the idea that the government should not be held to the same standards under the law as individuals, and The People can only sue the government if the government explicitly authorizes it.

We believe that despite this, The People still understand that the mere fact that the government can get away with something does not make its actions either legal or right.

The Court of appeals further stated that paying citations is an "admission of speeding".  This term has a very different connotation that the term "admission of liability" which appears on citations.  It may come as somewhat of a shock to the 1/3rd of ticket recipients who were not the driver of the vehicle that they had admitted to a speeding violation, one which they had in fact not committed, as opposed to merely admitting that they were the owner of the vehicle and therefore "liable" for fine.  In the court's opinion, the fact that motorists who paid had admitted to speeding nullified any right they had to obtain refunds through a class action after the fact.  

In a demonstration of their superhuman powers of adjudication, the justices were able to determine the actual guilt of every one of the hundreds of thousands of ticket recipient who paid the fines to avoid spending more than the value of a ticket contesting it, and they were able to do this without having seen any evidence in the cases whatsoever.  We could refer to one example of drivers who paid a Montgomery County speed camera citation with an erroneous 100mph speed camera reading, they certainly did not seem to do so because they were "admitting speeding".  We might also refer to one of several separate incidents in Baltimore, where citations were issued by the thousands that were enforcing an incorrect speed limit, and where the overwhelming majority of motorists paid the citations without contest anyways, because having received the citations weeks later they were unaware of the error.  We cannot give legal advice, but in our opinion anyone who was not the driver or has any reason to doubt the veracity of their citation should think twice about "admitting to speeding" by paying the fine, since there could be unforeseen consequences of not contesting their citation with every means possible and thereby admitting to a crime they did not commit.

The court was unclear on the primary issue which initiated the action.  The court noted that after complaints were first raised about the contingent fee contract issue, the County amended their contract to state that the county was responsible for "operating" the cameras, without actually altering any of the day to day duties of the contractor:

"We are somewhat dubious whether an arguably self-serving, ipse dixit contract amendment moots Petitioners’ claims necessarily, especially where Respondents admitted during oral argument before this Court that the amendments did not affect substantially or functionally how they and ACS handled the speed monitoring systems before the amendments."  
However the court ultimately chose not to decide that issue: "Accordingly, we shall not address their argument that the local governments' contracts with ACS violate Section 21-809(j)."  The court's decision therefore is not based on any actual facts on the ground.  For example, evidence that we had discovered showing that the county routinely skipped activities which were legally required for the "operator" to perform, was not taken into consideration and is never mentioned in the ruling.

Since the court did not consider any 'facts on the ground', it likewise did not address any of the reasons WHY a contingent fee arrangement might be perceived as a problem.  The contractor has substantial control over the chain of evidence used against defendants in court cases.  The contractor's systems perform the automatic calibration tests on the devices and have some capability to control the devices remotely.  The contractor prints and mails citations, and manages the customer service line, and ... meaning that they have some control over what information is provided to a ticket recipient who might or might not consider contesting the citation.  Given a profit motive, there are numerous ways a contractor could taint the system to maximize the number of paid citations (such as allowing possibly faulty equipment to stay in the field, defining 'self tests' that always pass, making the process of contesting citations less practical for ticket recipients).  None of these issues were discussed in the ruling.

The court asserts that the mechanism for a defendant to contest a citation is to do so individually in district court.  However we have reported that some courts have openly stated that they would consider ANY defense other than who was the driver of the vehicle.  In other examples, the courts and Montgomery County have failed to uphold the right to confront a camera operated or requested.  Under those circumstances an individual ticket recipient would then need to appeal a verdict, paying enormous legal fees, court costs, attorney fees, and expert witness costs, which could easily total many tens of thousands of dollars, in order to counter the virtually unlimited legal resources of the government.  Without the ability to band together with other motorists and pool resources, such a thing would be impossible for most people to do successfully. 

We note that State agencies such as the Attorney General and the SHA have both stated at times that they have no authority to intervene in "local matters", and as such provide NO OVERSIGHT into local speed camera programs.  We have observed a wide variety of abuses and violations of the law.  Indeed, the court may have felt that in order to protect the state, it had no choice but to issue a judgement which would allow them to "keep the loot" no matter how severe a violation of state law has been committed, or even a case of gross misconduct resulting in numerous innocent people getting citations.  Otherwise, ALL the local governments running speed cameras could be liable for damages, because all of them have broken the law in one way or another. 

We have noted in the past how public officials have made reference to the contingent fee arrangement, and made clear it's intent, and before the contingent fee arrangement became publicly known:
  • 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.
  • 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." --- That statement was proven to be complete a BIG FAT LIE just 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".  This is not what happened.
  • 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.   Those promises, used to keep a major interest group silent on the issue, were not kept.  
  • 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."  This clearly shows that legislators had promised their constituents that there would be no contingent fees... period. 
Such promises have been broken with impunity in the past, and StopBigBrotherMD.org is packed with examples of where other requirements of the law have been bent or outright broken. If the word of your elected officials was broken on this matter from the very beginning, then you cannot trust that any other promises regarding the fairness of photo enforcement will be kept.  This ruling will certainly embolden corrupt local governments who have concluded that they can earn more revenue with their programs by reinterpreting the rules placed there to protect your rights out of existence, allowing faulty hardware to be used, or failing to properly maintain equipment.

It was certainly not a good sign when the Court displayed its overall opinion of opponents of speed cameras by beginning the written decision with irrelevant musings about speed camera vandalism:
"It seems that speed cameras are a particularly unpopular law enforcement tool, having provoked some Marylanders to vandalism. "..." Angry drivers are reported to have set fire to, hurled rocks at, and slingshot marbles at the cameras."
The justices pointed out that those who brought the suit were "leaning somewhat more to pacifism" had "sought a less violent resolution of their grievances".  Those of us at StopBigBrotherMD have been opposing speed cameras for years using exclusively lawful means, and we have not and would never condone vandalism, nor to the best of our knowledge would anyone participating in the suit.  We are puzzled that the state's high court would choose this particular example as its way to introduce a decision which permanently closes off one of the few avenues for peacefully resolving The People's grievances with the abuses which have been observed in Maryland's rapidly growing surveillance state.


Additional Info: Complete Court of Appeals Decision
You be the judge: Plaintiff's Court of Appeals Brief
Previous Articles on StopBigBrotherMD