Case Document 15-7 Filed 08/28/13 Page 1 of 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JOHN POWELL . CIVIL ACTION NO. 13-235 VERSUS JUDGE JANE TRICHE MILAZZO THE CITY OF NEW ORLEANS AND MAGISTRATE JUDGE SALLY AMERICAN TRAFFIC SOLUTIONS, SHUSHAN INC. AMERICAN TRAFFIC SOLUTIONS, MEMORANDUM IN SUPPORT OF RULE 12(Bl(6) MOTION TO DISMISS STATEMENT OF THE CASE Plaintiff, John Powell, purports to assert claims against the City of New Orleans (the ??City?) and American Traf?c Solutions, Inc. concerning the City?s Automated Traf?c Enforcement System Ordinance (the Ordinance?), City 0rd. 154-1701-1704. In an apparent attempt to collaterally attack Plaintiff?s violations of the ATES Ordinance (which Plaintiff never contested), Plaintiff now seeks to challenge the overall validity of the ATES Ordinance. In particular, Plaintiff alleges the ATES Ordinance is unconstitutional because it (1) presumes the vehicle owner is guilty and places the burden of proving innocence on the vehicle owner; (2) violates the right against self-incrimination; (3) is vague and ambiguous; and (4) places enforcement in the hands of In short, Plaintiff?s claims should be dismissed with prejudice because the ATES Ordinance is clearly constitutional. Plaintiff further purports to assert claims under Louisiana state law.2 Plaintiff?s state law claims also fail and should also be dismissed, with prejudice, for failure to state a claim. Petition in X. 2 Petition 1ls PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 2 of 36 In the alternative, even if the Court were to ?nd that Plaintiff has suf?ciently alleged a cause of action with regard to the overall validity of the ATES Ordinance (which ATS disputes), ATS cannot be held liable for the alleged constitutional and legal flaws in the ATES Ordinance.3 I. I The ATES Ordinance The primary goal of the ATES Ordinance is to create safer City streets by protecting the public from crashes and injuries caused by drivers who run red lights and speed. The ATES Ordinance allows for automation of traffic signal and speed limit violations.4 In particular, the ATES Ordinance provides for a system that employs a combination of digital and video cameras and detection equipment at a given signal approach or span of roadway as an alternative method of detecting and deterring red-light violations and speeding.5 The ATES Ordinance provides for only civil penalties for speeding or running a red light within the City.6 The City contracted with ATS to assist in the performance of certain support services associated with the ATES Ordinance.7 Pursuant to its contract with the City, ATS performs administrative tasks, such as operating the automated digital traf?c cameras, reporting alleged violations to the City for review, delivering the Notice of Violation and other notices to the vehicle owner, and collecting the civil penalty.8 3 The City has also filed a motion to dismiss. ATS expressly incorporates by reference as if fully set forth herein'the arguments and authorities set forth in the motion to dismiss and supporting memorandum ?led by the City. 4 See City 0rd. 154?1701-1704. The ATES Ordinance was amended to also allow for automation of school bus stop sign violations. City Ord. However, that violation is not relevant to this case. Plaintiff?s Petition only concerns traffic signal and speed limit violations. (See Petition) 5 See City 0rd. 1154?1701?1704. 6 See City 0rd. 154-1703, 7 The contract between the City and ATS is attached to motion as Exhibit 8 Exh. A. In paragraphs and VI of the Petition, Plaintiff purports to quote provisionsof the contract between the City and ATS. However, none of the provisions are contained in the contract between the City and ATS. See Exh. A. It appears as though Plaintiff is citing provisions of a contract involving Red?ex, a company that performs simiiar support services in connection with automated traffic enforcement systems in other jurisdictions. (See Petition VI) PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 3 of 36 11. Other Louisiana Litigation Numerous other lawsuits have been ?led in Louisiana (and other states) that are nearly identical to the instant case, and those courts that have reached the merits of the plaintiffs? claims have uniformly rejected plaintiffs? claims.9 In BeviS v. City of New Orleans, plaintiffs challenged the City of New Orleans ATES Ordinance, the very ordinance being challenged in this case. The plaintiffs in Bevts alleged that the ATES Ordinance was unconstitutional on its face because it violates the (1) doctrine of separation of powers; (2) Fourth, Fifth, Eighth and Fourteenth Amendments of the United States Constitution; (3) Interstate Commerce Clause; and (4) Ex Post Facto Clause. Plaintiffs further purported to assert a litany of claims under Louisiana state law. The City and ATS subsequently filed motions to dismiss for failure to state a claim. The Honorable Judge Ivan Lemelle granted the motions to dismiss and dismissed all of the plaintiffs? federal claims.10 On appeal, the Fifth Circuit af?rmed this Court?s dismissal of plaintiffs? federal claims.11 In Sevin v. Parish of Je??erson, plaintiffs challenged the Jefferson Parish Automated Traffic Signal Enforcement Ordinance Ordinance?). The plaintiffs in Sevin alleged that the ATSE Ordinance violated the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.? The plaintiffs further alleged that the ATSE Ordinance violated Louisiana 9 See Bevis v. City ofNew Orleans, 686 F.3d 277 (5th Cir. 2012); Bevis v. City ofNew Orleans, 2011 WL 2899120 (ED. La. July 18, 2011) (Lemelle, Sevin v. Parish ofJe?erson, 621 .Supp.2d 372 (ED. La. 2009) (Vance, Ware v. Lafayette City-Parish Consolidated Government (?Ware 2009 WL 5876275 (W.D. La. Jan. 6, 2009); Ware v. Lafayette City?Parish Consolidated Government ?Ware Suit No. 2009?0437 (La. 15th JDC 7/27/09) (Everett, .). The decision of the court in Ware 1! is attached to motion as Exhibit ?0 Bevis, 2011 WL 2899120. Bevis, 686 F.3d 277. 42 Sewn, 621 F.Supp.2d at 376. PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 4 of 36 procedural due process and Louisiana substantive law.13 The defendants subsequently ?led motions to dismiss for failure to state a claim or, in the alternative, motions for summary judgment.'4 The Honorable Judge Sarah Vance granted defendants? motion for summary judgment and dismissed all of plaintiffs? federal claims. 15 In Ware v. Lafayette City-Parish Consolidated Government (?Ware 2009 WL 5876275, plaintiffs challenged the Safelight and Safespeed Ordinances enacted by the Lafayette City-Parish Consolidated Government (?Lafayette?). The plaintiffs asserted federal causes of action based on alleged violations of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as causes of action based on Louisiana state law. In response, defendants ?led motions to dismiss plaintiffs? claims. The Magistrate Judge issued a report recommending that all of the plaintiffs? federal claims be dismissed with prejudice. In support of his recommendation, the Magistrate Judge concluded that the Lafayette Safelight and Safespeed Ordinances do not violate the Fifth or Sixth Amendments of the United States Constitution and the Ordinances satisfy the requirements of both procedural and substantive due process.16 LEGAL ANALYSIS I. A Complaint Must Be Dismissed When It Fails to State a Claim Upon Which Relief Can Be Granted. Pursuant to Rule l2(b)(6) of the Federal Rules of Civil Procedure, this Court must dismiss a complaint that fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the Court should View all material allegations in the complaint ?3 1d. at 377. ?Id. at 376. ?5 Sevin, 621 F.Supp.2d 372. ?6 Ware 1, 2099 WL 5876275; see Ware Exh. B, pp. 1?4 (granting defendants? motion for summary judgment in part, and concluding that the Ordinances? procedures for the imposition of a civil penalty satisfy the requirements of procedural due process). PD. 100522102 Case Document 15-7 Filed 08/28/13 Page 5 of 36 as true.17 However, ?conclusory allegations or legal conclusions masquerading as factual conclusions will not suf?ce to prevent a motion to dismiss.MS A court should not maintain a complaint that fails to set forth a plausible basis concerning all the material elements necessary to sustain recovery under some viable legal theory.? Dismissal should be granted ?if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief.?20 When deciding a motion to dismiss, the Court is allowed to consider matters of which judicial notice may be taken.21 The Court may also consider documents that are referred to in the plaintiff?s complaint and are central to the plaintiff?s claims.22 Thus, ATS attaches those documents referred to in Plaintiff 3 Petition and that are central to Plaintiff 3 claims. II. The ATES Ordinance Is Civil in Nature. Although Plaintiff does not speci?cally allege in his complaint that the ATES Ordinance is criminal in nature, many of Plaintiff?s claims are based on the assumption that the ATES Ordinance is criminal. However, Plaintiff is wrong. The ATES Ordinance establishes a civil, non-punitive regulatory scheme, and does not impose criminal penalties. Indeed, in Bevis, the Fifth Circuit held that the ATES Ordinance is civil in nature.23 The Fifth Circuit?s decision in Bevis is directly on point on this issue and constitutes binding precedent. According to the Supreme Court in Hudson v. United States, 522 US. 93 (1997), courts are to apply a two-prong, multi-factor test when determining whether a penalty is criminal or 1: See In re Inc, 313 F.3d 257, 261 (5th Cir. 2002). 1d. ?9 BellAtlarltic Corp. v. Twombly, 550 U.S. 544 (2007). 20 See Lefall v. Dallas Indep. Sch. Dist, 28 F.3d 521, 524 (5th Cir. 1994). 2? us. ex. Rel. Willard v. Humarla Health Plan ofTexas, Inc., 336 F.3d 375 (5th Cir. 2003 22 See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000). 23 Bevis, 686 F.3d at 280. PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 6 of 36 civil in nature. First, the court must determine whether the legislature, ?in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the 9?24 other. If the legislature intended a civil penalty, courts must then determine whether the ?statutory scheme [is] so punitive in either purpose or effect . . . as to transform what was clearly intended as a civil remedy into a criminal penalty . . . .?25 Hudson instructed courts to consider the factors listed in Kennedy v. Mendoza?Martinez, 372 US. 144 (1963), including: (1) Whether the sanction involves an af?rmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a ?nding of scienrer; (4) whether its operation will promote the traditional aims of punishment retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.26 ?[O]nly the clearest proof will suf?ce to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty . . . 3?27 The primary goal of the ATES Ordinance is to promote public safety.28 Through the ATES Ordinance, the City seeks to decrease the number of drivers who run red lights and speed in an effort to create safer streets in the City by reducing crashes and injuries. The ATES Ordinance is rationally connected to advancing this purpose by allowing for automation of traf?c signal and speed limit violations, and as a result freeing police officers to address criminal activity such as robbery and physical assault. 2? Hudson, 522 US. at 99. 251d. at 99. 26 1d. at 99400 (citation and internal quotations omitted). 27 Hudson, 522 US. at 100 (internal quotations omitted); see also Kansas 12. Hendricks, 521 us. 346, 361 (1997). 28 See Shavitz v. City oingh Point, 270 F.Supp.2d 702, 715 (MD. N.C. 2003). PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 7 of 36 Section 154-1703 of the ATES Ordinance is titled ?Imposition of civil penalty for violations,? and clearly states that ?the owner of the vehicle is liable for a civil penalty.?29 The ATES Ordinance further states that ?[t]he imposition of a civil penalty under this article shall not be considered a criminal conviction.?30 In fact, there are approximately 22 references to ?civil penalty? throughout the ATES Ordinance.31 Moreover, the Violation is a ?non moving infraction? for which points will be assessed and the infraction will not be reported to? the vehicle owner?s insurance company.32 The ATES Ordinance provides for only a relatively modest civil penalty for speeding or running a red light within the City.33 In particular, the initial civil penalty for running a red light is only $135, and the initial civil penalty for speeding ranges from $75 to $235.34 A civil penalty- is assessed against the vehicle owner pursuant to the ATES Ordinance without regard to the vehicle owner?s knowledge or state of mind?5 Applying the two-prong, multi?factor test set forth by the Supreme Court in Hudson, the Fifth Circuit in Bevis v. City of New Orleans, af?rmed the decision of this Court and held that the ATES Ordinance is civil in natured6 As aptly stated by the Fifth Circuit, the ATES ?Ordinance repeatedly describes the ?ne as a civil penalty.?37 Notably, the Fifth Circuit found that only the ?fth Mendoza-Martinez factor weighs in plaintiffs? favor in determining whether the ATES 2'9 Emphasis added. 30 City 0rd. 154-1704(a) (emphasis added). 3? See City 0rd. 15447014704. 32 See Exh. C. The Notices of Violation issued to Plaintiff under the ATES Ordinance are attached to motion as Exhibit 33 City 0rd. Exh. C. 3? Exh. C. 35 City 0rd. 154-1701-1704. 36 Bevis, 686 F.3d at 280. 37 Id PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 8 of 36 Ordinance is civil or criminal in nature, and that is ?not enough to overcome legislative intent? to impose only a civil penalty.38 The only Louisiana state case that has directly addressed the issue of whether the ATES Ordinance is criminal or civil in nature speci?cally found that the ATES Ordinance is not a ?criminal violation.?39 In addition, courts evaluating automated traf?c control ordinances similar to the ATES Ordinance have also found the proceedings to be civil in nature.40 I Simply, the ATES Ordinance is civil in nature. Thus, this inevitable conclusion disposes of many of Plaintiff 3 claims. Plaintiff?s Allegations Fail to State a Claim Under 42 U.S.C. 1983. Although Plaintiff does not identify the federal statute(s) upon which he bases his claims, 42 U.S.C. 1983 provides Plaintiff the right to sue when his rights arising under the United States Constitution have been violated.41 Accordingly, a Section 1983 plaintiff must demonstrate he has been deprived of a right secured by the Constitution or laws of this nation.42 Plaintiff fails to state a claim against Defendants under Section 1983. 33 151.; see also Bevis, 2011 WL 2899120, *3 plain language of the ATES Ordinance shows the City?s intent to impose a ?civil penalty,? and ?Plaintiffs have failed to demonstrate a plausible factual basis for overcoming the heavy burden of ?transforming? the nature of the ATES Ordinance and penalty from civil to criminal?); see also Sevin, 621 F.Supp.2d at 378 (citing the City ATES Ordinance as an ordinance which clearly states that it is intended to be civil). 39 Albe v. City of New Orleans and American Tra?ic Solutions, Inc, No. 08?12542, in the Civil District Court, Parish of Orleans. Excerpts from the transcript of the April 8, 2010 hearing on the parties? motions for partial summary judgment in Albe are attached to motion as Exhibit See Exh. I), p. 21. 4? See, Mills v. City ofSpringfield, Ma, 2010 WL 3526208 (W.D. Mo. Sept. 3, 2010); Kilper v. City ofAmotd, Mo, 2009 WL 2208404, *13?19 (ED. Mo. July 23, 2009); Ware 1, 2009 WL 5876275, Ware Exh. B, p. 1; Idris v. City of Chicago, 2008 WL 182248, *6 (ND. 111. Jan. 16, 2008); Mendenhall v. City ofAkron, 2008 WL 7484179, *2-6 (ND. Ohio Dec. 9, 2008); Shavitz v. City oth'gh Point, 270 F.Supp.2d 702, 712-17 (MD. NC. 2003). 4' 42 U.S.C. 1983. 42 West v. Atkins, 487 us. 42, 48 (1988). PD. 100522102 Case Document 15-7 Filed 08/28/13 Page 9 of 36 A. The ATES Ordinance Is Presumed to be Constitutional and Plaintiff Has the Heavy Burden of Proving its Unconstitutionality. The ATES Ordinance is presumed to be constitutional.43 During a facial constitutional challenge, the proper inquiry is whether the mere enactment of the statute affects a constitutional deprivation.44 Plaintiff must carry the dif?cult burden of proving the ATES Ordinance is unconstitutional on its face. To evaluate such a challenge, the court ?must . . . consider any limiting construction that a state court or enforcement agency has proffered.?45 Under Supreme Court and Fifth Circuit precedent, the relevant question for a court I assessing a facial challenge is whether the plaintiff can demonstrate that the statute is ?unconstitutional in all of its applications,? or, in other words, whether ?no set of circumstances exists under which the Act would be valid.?46 ?The fact that [a statute] might operate unconstitutionally under some conceivable set of circumstances is insuf?cient to render it wholly invalid . . . 3?47 Here, Plaintiff has not (nor can he) demonstrate that the ATES Ordinance is unconstitutional in any of its applications. B. The Guarantees of the Fifth Amendment Do Not Apply to the ATES Ordinance. Plaintiff alleges that the ATES Ordinance violates his right against self-incrimination.48 Plaintiffs claim is based on the incorrect assumption that the ATES Ordinance is criminal in 43 See Walters v. Nat?l ASS ?n of Radiation Survivors, 468 U.S. 1323 (1984); McDonald v. Board of Election Comm ?rs, 394 U.S. 802, 809 (1969); U.S. v. Lopez, 2 F.3d 1342, 1364 (5th Cir. 1993); Ala. State Fed?n ofTeachers, AFL-CIO v. James, 656 F.2d 193, 195 (5th Cir. 1981). ?4 See Brockett v. Spokane Arcades, Inn, 472 U.S. 491, 501-02 (1985). 45 See Ho?man Estates v. ltpside, Hoffman Estates, 455 U.S. 489, 494 n.5 (1982). 46 Wash. State Grange v. Wash. State Republican Party, 128 1184, 1190 (2008); see also Hers/7 v. United States ex rel. Mukasey, 553 F.3d 743, 762 n.23 (5th Cir. 2008); Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006); United States v. Robinson, 367 F.3d 278, 290 (5th Cir. 2004). 47 United States v. Salerno, 481 U.S. 739, 745 (1987). 48 Petition 11 X. Case Document 15-7 Filed 08/28/13 Page 10 of 36 nature. As shown above, the ATES Ordinance is civil in nature, and not criminal.49 The protections of the Fifth Amendment against self-incrimination only apply in criminal proceedings. Thus, any rights afforded by the Fifth Amendment, such as the right against self- incrimination, do not apply to the ATES Ordinance?O As stated by the United States Supreme Court in Baxter v. Palmigiano, ?the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment does not preclude the inference where the privilege is claimed by a party to a civil cause.?51 Indeed, in Ware 1, the Magistrate Judge rejected an identical claim made by the plaintiffs, recognizing that ?the Fifth Amendment right to remain Silent and protection against self-incrimination are not violated in the context of civil proceedings established by the challenged Ordinances.?52 Furthermore, even if the Fifth Amendment did apply?which it does not?the ATES Ordinance does not violate the Amendment. In particular, to the extent Plaintiff is arguing that the ATES Ordinance compels Plaintiff to incriminate himself, the ATES Ordinance does no such thing. The Supreme Court has interpreted the Self~lncrimination Clause to ?protect[] an accused only from being compelled to testify against himself, or otherwise provide the State with 3553 evidence of a testimonial or communicative nature. In Sevin, Judge Vance found that, even assuming that the Jefferson ATSE Ordinance is criminal in nature, it does not violate the Self- Bevis, 686 F.3d at 280; Bevis, 2011 WL 2899120, 50 See Baxter v. Palmigz'ano, 425 US. 308, 318 (1976); Kent v. US, 157 F.2d 1, 2 (5th Cir. 1946) (?provision ofthe Fifth Amendment: ?nor shall be compelled in any criminal case to be a witness against himself has no application . . [t]his is not a criminal case but a civil case, and no one seeks to compel Kent to testify?). 51 Baxter, 425 us. at 318. 52 Ware 1, 2009 WL 5876275, 53 Schmerber v. California, 384 us. 757, 761 (1966) (emphasis added). -10- 1311100522102 Case Document 15-7 Filed 08/28/13 Page 11 of 36 Incrimination Clause because it ?does not compel the defendant to testify . . . .?54 According to Judge Vance, the ATSE Ordinance ?simply provides that a defendant who alleges that he was not the driver ?has the responsibility? to present a sworn statement [that someone else was driving the vehicle at the time the violation occurred], which [merely] indicates that it is the defendant?s burden to come forward with such evidence.?55 Similarly, in Ware 1, the Magistrate Judge concluded that the Lafayette Safespeed and Safelight Ordinances, which contain language similar to that found in the City ATES Ordinance, ?do not compel testimony at all.?56 Similar to the ordinances in Sevin and Ware 1, the ATES Ordinance does not compel a vehicle owner to testify against himself. The ATES Ordinance provides a vehicle owner with six af?rmative defenses to the imposition of a civil penalty, including submitting evidence that the vehicle was being operated by a person other than the owner of the vehicle without the consent of the owner.57 Notably, nowhere in the ATES Ordinance is the vehicle owner required to testify to prove any of the af?rmative defenses. Indeed, the ATES Ordinance provides no restrictions whatsoever on the manner in which a vehicle owner may prove an af?rmative defense. A vehicle owner has many avenues to prove an af?rmative defense which do not involve taking the stand to testify against himself, including presenting the sworn statement of another witness, or, in the case of a plaintiff who alleges that the vehicle was being operated by another person without his consent, the sworn statement of the actual driver or a copy of the police report in which the vehicle owner reported the vehicle missing or stolen. 54 Sevin, 621 F.Supp.2d at 382 (emphasis added). 55 1d. 56 Ware 1, 2009 WL 5876275, 57 City Ord. -11- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 12 of 36 Accordingly, even assuming the Self-Incrimination Clause of the Fifth Amendment applies to the ATES Ordinance, Plaintiff?s self-incrimination claim is implausible as a matter of law and must be dismissed, with prejudice. C. The ATES Ordinance Is Not Unconstitutionally Vague. Plaintiff next alleges that the ATES Ordinance violates the ?right to due process by its vagueness and ambiguity.?58 Plaintiff fails to state a plausible claim for relief with regard to his vagueness challenge to the ATES Ordinance. ?It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.?59 statute is unconstitutionally vague if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.?60 ?The void-for-vagueness doctrine has been primarily employed to strike down criminal laws.?61 ?In the civil context, the statute must be so vague and inde?nite as really to be no rule. at all.??52 In determining whether a statute is unconstitutionally vague, courts look to whether the statute ?provide[s] de?nite standards for those who apply them.?63 Such standards may be found on the face of a statute or in other authority that has defined the terms.64 is not a test for the 58 Petition X. 59 Grayned v. Ciry ofRockford 408 US. 104, 108 (1972). 60 Graeme Resources, Ltd. v. Parish ofJe?erson, 234 F.3d 192, 217 (5th Cir.2000) (citation and internal quotations omitted). 5? Id. (citing Okpalobi v. Foster, 190 F.3d 337,358 11. 10 (5th Cir.1999)). 62Id. (citation and internal quotations omitted); see also Fernandes v. Limmer, 663 F.2d 619, 636 (5th Cir.1981) (?We can never expect mathematical certainty from our language. The minimal ambiguity presented in [the challenged statutes] is well within constitutional limits.? (citation and internal quotations omitted)). 53 Beckerman v. Tupelo, 664 F.2d 502, 511 (5th Cir.l98 1). 64 See, 93., a Entm?t v. City ofJackson, 152 F.3d 362, 368 (5th Cir.1998) (rejecting a void-for?vagueness challenge by noting that the language at issue-?serious literary, artistic, scienti?c, or political value??has been interpreted by many courts since it was introduced by the Supreme Court in its test for ?obscenity?). -12- 1223100522102 Case Document 15-7 Filed 08/28/13 Page 13 of 36 constitutionality of a statute that it be so unambiguous that all judges will read the statute in only one way.?65 Even in the context of civil statutes that are penal in nature, ?neither absolute uniformity of interpretation, nor total absence of ambiguity is semantically or practically achievable, or, it necessarily follows[,] constitutionally required.?66 ?[V]arying interpretations by laymen, lawyers, and judges does not mean the statute is unconstitutionally vague.?67 ATS is hard pressed to discern the factual basis of Plaintiff?s vagueness claim. Nowhere in the Petition does Plaintiff substantiate this claim. Contrary to the bare allegation in Plaintiff?s Petition, the language of the ATES Ordinance is clear and unambiguous in both its meaning and its application. In particular, the language of the ATES Ordinance is suf?ciently clear to put a person on notice of what the ordinance governs and at whom it is directed. The title of the ATES Ordinance, ?Automated Traf?c Enforcement System,? reveals that it is designed for automation of traf?c signal and speed limit Violations.68 In addition, the ATES Ordinance makes clear that it imposes liability on ?vehicle owners? who are captured by the automated traf?c enforcement system running a red light or speeding within the City.69 Further, as discussed in Section 11 above, the ATES Ordinance clearly provides only for a civil penalty for speeding or running a red light within the City. Simply, the terms of the ATES Ordinance are not so inde?nite that 65 Franklin v. First Money, Inc, 427 F.Supp. 66, 69?70 (ED. La. 1976). 661d. at 69?70 (rejecting a vagueness challenge to a penalty provision of the Truth?in?Lending Act). 67 Galjour v. Gen. Am. Tank Car Corp, 764 F.Supp. 1093, 1098 (ED. La. 1991) (rejecting a vagueness challenge to a Louisiana exemplary damages statute). 68 See City Ord. 15447014704. 69 See City Ord. 154-1701-1704. -13- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 14 of 36 men of common intelligence must necessarily guess at their meaning and differ as to their application.70 In sum, Plaintiff's void-for-vagueness claim fails because the ATES Ordinance is suf?ciently clear; it means what it says. Thus, this Court should dismiss Plaintiff?s alleged void? for-vagueness claim as a matter of law. D. The ATES Ordinance Satisfies the Guarantees of Procedural Due Process. Procedural due process requires some kind of hearing and notice thereof. In Mathews v. Eldridge, 424 U.S. 319 (1976), the U.S. Supreme Court set forth the following three factors to determine the speci?c process that is due: (1) the private interest that will be affected by the of?cial aetion; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government?s interest, including the function involved and the ?scal and administrative burdens that the additional or substitute procedural requirements would entail.71 The ATES Ordinance clearly satis?es the requirements of procedural due process. The notices sent to the vehicle owner and the administrative procedures provided under the ATES Ordinance satisfy procedural due process. First, the private interest involved is small because a violation of the ATES Ordinance carries only a civil penalty of $135 for running a red light, and from $75 to $235 for speeding.72 Moreover, a violation of the ATES Ordinance is a 7? See Connally v. Gen. Coast. Ca, 269 U.S. 385, 391 (1926). 71 Mathews, 424 U.S. at 335. 72 See Exh. C. -14? PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 15 of 36 non-moving violation for which no points are assessed.73 The violation is not reported to the vehicle owner?s insurance company.? Second, the administrative procedures provided in the ATES Ordinance afford adequate safeguards against the risk of an erroneous deprivation. Under the ATES Ordinance, after an of?cer determines that a violation has occurred, the registered owner of the vehicle is sent a Notice of Violation by ?rst?class mail, containing detailed information concerning the violation.75 The Notice of Violation provides the owner of the vehicle with detailed information concerning the violation, including the date, time and location of the violation, along with a copy of the recorded images of the vehicle, as well as the website address where the vehicle owner can review the pictures and video online.76 The Notice of Violation also includes the amount of the civil penalty, a payment voucher for payment by mail, a phone number for payment by phone, a website address for electronic payment, and the date by which the civil penalty must be paid.77 A vehicle owner maycontest the imposition of the civil penalty by appearing before the administrative adjudication bureau on or before the hearing date indicated in the Notice of Violation.78 The administrative hearing is conducted by the parking adjudication bureau pursuant to the procedures applicable to parking violations, which are governed by the Louisiana Administrative Procedures Act, La. R.S. 492951, et seq. 79 During the administrative hearing, a vehicle owner is afforded the opportunity ?to respond and present evidence on all issues of fact involved and argument on all issues of law involved? and to conduct any ?cross?examination as 73 See Bxh. C. 74 See Exh. C. 75 City 0rd. 1544701; Exh. Exh. A, p.9. 7? City 0rd. 154-1701; Exh. C. 77 City Ord.? 154-1701; Exh. c. 73 City 0rd. Exh. C. 79 City 0rd. 154-696, -15- so. 100522102 Case Document 15-7 Filed 08/28/13 Page 16 of 36 may be required for a full and true disclosure of the facts.?80 In addition, the vehicle owner may obtain subpoenas to compel the testimony of any witness at the hearing.81 To the extentthe vehicle owner is dissatis?ed with the decision of the hearing of?cer, he/she can seek further review of the decision by appealing the decision to the traf?c court within 30 days after the decision of the hearing of?cer.82 Lastly, the City?s interest in creating safer streets by protecting the public from drivers who run red lights and speed is significant.83 In Bevz's, the Fifth Circuit concluded that the ATES Ordinance procedures challenged by Plaintiffs on appeal ?fall comfortably within the great leeway given to governments in protecting public health and safety.?84 In addition, ordinances and statutes with procedures similar to those provided in the City ATES Ordinance have been found to comport with procedural due process.85 In sum, Plaintiff was presented with a constitutionally suf?cient administrative scheme to challenge the traf?c violations. Plaintiff has failed to state a Section 1983 claim on the basis of a procedural due process violation. 8? See La. R.S. City Ord. 31 See City 0rd. 82 City Ord. 154-17020?. 83 See Mackey v. 443 U.S. 1, 17 (1979) (describing interest in protecting public from drivers who run red light and speed as ?paramount?); Dixon v. Love, 431 U.S. 105, 114 (1977) (discussing ?the important public interest in safety on the roads and highways?). 84 Bevis, 686 F.3d at 281 (citation and internal quotations omitted); see also Bevis, 2011 WL 2899120, *4 (concluding that ?[o]verall, Plaintiffs fail to state a factually plausible due process claim?). 85 See, Mendenhall v. City ofAkron, 2010 WL 1172474 (6th Cir. Mar. 29, 2010); Ware 1, 2009 WL 5876275, Idrz's, 2008 WL 182248, Shavirz, 270 F.Supp.2d at 712?17; Sevin, 621 F.Supp.2d at 385-86; Ware Exh. B, p. 5; Agomo v. District ofColumbia, 916 A.2d 181, 191 n.7 (11C. 2007). -15- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 17 of 36 i. ATS ?s performance of certain support services associated with the ATES Ordinance does not violate procedural due process. In his Petition, Plaintiff alleges the ATES Ordinance violates due process ?by placing enforcement in the hands of a private, non?governmental entity with a ?nancial interest in the outcome of each alleged violation?? This claim lacks merit as a matter of law. The ATES Ordinance provides that the ?New Orleans Police Department is responsible for the enforcement and administration of? the ATES Ordinance and the ?city and the department may enforce and administer? the ATES Ordinance ?through one or more contractors selected in accordance with applicable law.?87 Pursuant to its contract with the City, ATS assists the City in the enforcement and administration of the ATES Ordinance by performing tasks such as operating the automated digital traf?c cameras, reporting alleged violations to the City for review, delivering the Notice of Violation and other notices to the vehicle owner for those violations approved by the City, and collecting the civil penalty.88 In Sevin, plaintiffs claimed the Jefferson Parish ATSE Ordinance violated due process because ?Red?ex, the operator of the camera systems and the principal ?witness? in the criminal prosecutions, has a ?nancial stake in the outcome of the proceedings.?89 Judge Vance rejected plaintiffs? claim because the ?principle barring interested persons from making decisions applies only when the allegedly biased decisionmaker is sitting in a judicial capacity? and ?Redflex does not participate in the ATSE process in a judicial capacity.?9? 86 Petition 1] X1. *7 City 0rd. 154-1701. 3* Exh. A. 3" Sevirt, 621 F.Supp.2d at 384. 90 Id. at 384-85 (emphasis added). -17- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 18 of 36 Similarly, in Ware 1, the Magistrate Judge rejected plaintiffs? contention that the Lafayette Safespeed and Safelight Ordinances violated their procedural due process rights because ?Red?ex is not a neutral and detached decision maker (because Red?ex derives a ?nancial interest from the ?nes paid)?? In rejecting plaintiffs? contention, the Magistrate Judge stated, in pertinent part: Red?ex is not the judge, adjudicator or ?nal decision maker. To the contrary, Redflex plays no adjudicatory role whatsoever; Redflex does not determine liability. When a hearing is requested, the determination of liability is made at a hearing before an unbiased administrative hearing of?cer. Red?ex merely gathers the information upon which liability may be determined and issues a Notice which contemplates an adjudication of liability by a third party hearing of?cer, and, in doing so, performs a limited investigative and administrative function. Such non-adjudicatory, limited investigative and administrative functions do not impugn the fairness of the subsequent adversary hearing and as such do not violate the plaintiff 3 right to Procedural Due Process.92 Likewise, in Agomo 12. District of Columbia, 916 A.2d 181 (DC. 2007), the court rejected a similar claim plaintiffs raised. The District of Columbia (the ?District?) Automated Traf?c Enforcement System speci?cally authorized the mayor to enter into an agreement with a private entity to perform tasks associated with the use of the ATE System. The plaintiffs maintained that the District?s compensation arrangement with a private corporation, Automated Computer Systems, Inc. violated due process by creating an adjudicatory tribunal that was tainted by ?nancial considerations. The plaintiffs further argued that the District?s ?nancial obligation to ACS imperiled the fundamental fairness of the adjudicatory process by creating a 9? Ware 1,2009 WL 5876275, *10. 92 Ware 1, 2009 WL 5876275, *10 (citations omitted) (emphasis added); see also Ware 1, 2009 WL 5876275, (noting that ?Red?ex makes no determination of liability, and does not deprive anyone of their property?). -18- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 19 of 36 ?nancial incentive for the District to enter determinations of liability in order to generate enough revenue to ful?ll the contract guaranteed to the private company. The court concluded that ACS performed no adjudicatory functions, and thus had no effect on the adjudicatory process: ACS issues the notice of infraction, which indeed states that the owner of the vehicle is ?liable?; however, in doing so ACS has not performed any adjudicatory function. It is by operation of the statutory scheme that liability is imposed, not by the act of ACS issuing the citation. ACS merely makes factual determinations about violations of speed or red-yellow light laws, and those determinations are reviewed by an MPD [?Metropoiitan Police Department?] of?cer who decides whether a ticket should be issued. Once ACS makes that factual determination . . . the predicate has been established, and by operation of the statute, vicarious liability is imposed unless the factual predicate is rebutted.? As these cases demonstrate, ATS performs no adjudicatory function. It is the ATES Ordinance that imposes liability upon vehicle owners, and not ATS. The ATES Ordinance clearly delineates the actions that constitute a violation and the procedures to be followed when a camera or recording system captures a violation.94 ATS merely administers the provisions of the ATES Ordinance by reviewing the recorded images and making a preliminary determination about possible violations based on the provisions of the ATES Ordinance and pursuant to the directions of the City as delineated in the contract.95 Notably, before ATS may send out a Notice of Violation, the City has to first review the information concerning the alleged violation and approve the violation.96 93 Agomo, 916 A.2d at 196. 94 City 0rd. 154.1701-1704. 95 Exh. A. 96 Exh. A, p. 9. PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 20 of 36 Moreover, the ATES Ordinance provides that vehicle owners may contest the imposition of a civil penalty by requesting an administrative hearing.97 The administrative hearings are conducted by hearing of?cers who are residents of the Parish of Orleans and attorneys admitted to practice law in Louisiana for at least four (4) years.98 ATS (has no adjudicatory role whatsoever in the administrative hearing. The hearing officer is the only person who makes a determination concerning whether alvehicle owner who contests the imposition of the civil penalty is liable for such penalty.99 In this regard, role is to simply implement the City?s decisions and related directions.?0 In sum, ATS does not make determinations of liability, and thus, any ?nancial compensation received by ATS has no effect on the adjudicatory process and other procedures provided in the ATES ii. The rebuttahle presumption that the driver of the vehicle was operating the vehicle with the consent of the owner of the vehicle does not violate procedural due process. Plaintiff?s Petition also asserts that the ATES Ordinance violates the United States 53102 AS an Constitution by ?reversing the burden of proof and creating a presumption of guilt. initial matter, to the extent Plaintiff is suggesting the ATES Ordinance assumes the vehicle owner is the person who actually ran the red light or sped, Plaintiff is wrong. The actual operator 97 City 0rd. 98 City 0rd. 154-684. 99 City Ord. 154-685, 154?689, ?00 Exh. A, p. 9. 101 Any civil penalty collected by ATS pursuant to the ATES Ordinance is transferred to the City. (Exh. A, p. 11) Petition 11 X. To the extent Plaintiff is claiming that the ATES Ordinance violates the presumption of innocence, the presumption of innocence does not apply in civil proceedings. See Agomo, 916 A.2d at 193?94 (presumption of innocence applicable in criminal proceedings is inapplicable to District ATE System that imposes only civil penalty); Ware 1, 2009 WL 5876275, *9 (recognizing that ?the presumption of innocence does not apply in a civil proceeding to enforce civil sanctions?); see also Liliehthal?s Tobacco v. US, 97 US. 237, 267 (1877) (?presumption of innocence as probative evidence is not applicable in civil cases?). -20- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 21 of 36 of the vehicle at the time of the violation is largely immaterial under the ATES Ordinance.103 Instead, the ATES Ordinance imposes vicarious liability on the vehicle owner by holding the vehicle owner liable for violations committed by another person if the person was operating the vehicle with the owner?s consent. 104 The purpose of imposing liability on the vehicle owner for a violation of the ATES Ordinance is ?to place the liability upon the person in a position immediately to allow or prevent the use of the vehicle and to do so by giving a lawful and effective consent or prohibition to its operations by ?The public has a right to expect that a vehicle owner who voluntarily surrenders control of his vehicle to another is in the best position both to know the identity and competence of the person to whom he entrusts the vehicle.?106 The rebuttable presumption that the driver of the vehicle was operating the vehicle with the consent of the owner of the vehicle comports with procedural due process. The Supreme Court has held systems of vicarious liability that impose civil liability are not contrary to the notions of due process.107 In essence, the ATES Ordinance creates a rebuttable presumption that the vehicle was operated by a person with the consent of the owner. In order to avoid the imposition of vicarious liability, the owner of the vehicle must simply come forward with evidence that the ?vehicle was being operated by a person other than the owner of 103 See City 0rd. 154?17010). m4 See City Ord. 154-17010). The ATES Ordinance holds the owner of the vehicle solidarily liable with the operator of the vehicle for a violation of the ATES Ordinance. City Ord. However, the City ATES Ordinance provides that when an owner of the vehicle pays any ?ne, costs, or administrative fees pursuant to the ATES Ordinance, the owner ?shail have the right to recover the same from the operator.? Id. 105 See Agomo, 916 A.2d at 192 (citations omitted). 1% Id. at 194 (citation omitted). 107 See Louis Pizits Dry Goods Co. v. Yeldell, 274 US. 112, 15 (1927) extension of the doctrine of liability without fault to new situations to attain a permissible legislative objective is not so novel in the law or so shocking to reason or to conscience as to afford in itself any ground for the contention that it denies due process of law?); Van Oster v. Kansas, 272 U.S. 465, 467 (1926) (?It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 22 of 36 the vehicle without the consent of the owner, express or implied.?108 It is well-settled that rebuttable presumptions such as this satisfy the requirements of procedural due process. In order for a legislative presumption of one fact from evidence of another to comport with due process of the law, ?a legislative presumption of one fact from evidence of another may not constitute a denial of due process only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.?10g Moreover, there is no ground for holding that due process of law has been denied a legislative provision, not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue . . . In Agomo, the statute at issue created a rebuttable presumption that the car used in the infraction was in the custody, care, or control of the registered owner. The plaintiffs maintained this rebuttable presumption violated due process by impermissibly shifting the burden of proof. The court found that the presumption of liability did not violate due process: It is entirely rational to presume that a vehicle is in the custody, care, or control of its registered owner. Moreover, the Supreme Court has stated that a presumption is valid as long as it does not preclude a defense, and it is clear the instant statute provides ample leeway for the defendant to rebut the presumption by identifying a third-party driver. ?1 Moreover, in Ware 1, the Magistrate Judge found that the rebuttable presumption in the Lafayette Safespeed and Safelight Ordinances that a vehicle?s registered owner is the violator City 0rd. Mobile, Jackson a Kansas City RR. Co. v. Tumzpseed, 219 U.S. 35, 43 (1910). 110 Id. ?1 Id. at 194 (citations omitted). -22- 1211100522102 Case Document 15-7 Filed 08/28/13 Page 23 of 36 ?provide[s] no basis for a procedural due process clairn.??2 According to the Magistrate Judge, is entirely rational to presume that a vehicle is being driven by its registered owner or a third person to whom the owner has intrusted the vehicle and for whom the owner may be responsible.?113 In addition, like the City ATES Ordinance, the Safespeed and Safelight Ordinances ?provide a registered owner ample opportunity to identify a third party driver for whom he or she is not responsible.?114 It is entirely rational to presume a vehicle is being driven with the consent of its owner. In addition, the ATES Ordinance provides the vehicle owner with an af?rmative defense to rebut this presumption. Accordingly, the rebuttable presumption in the ATES Ordinance comports with due process, and Plaintiff?s claim should be dismissed with prejudice.115 IV. Plaintiff?s Allegations Fail to State a Claim Under Louisiana Law. Plaintiff 3 remaining claims against Defendants are based on state law and fail to state a claim under Louisiana law. Plaintiff alleges the ATES Ordinance violates the Louisiana Constitution. Plaintiff further alleges that the ATES Ordinance (1) is preempted by and con?icts with the Louisiana Highway Regulatory Act (the La. R.S. 32:1, et seq, and La. R.S. 151571.11; and (2) exceeds the City?s power to act.116 Plaintiff?s state law claims are nonsensical and should be dismissed, with prejudice. ?2 Ware 1, 2009 WL 5876275, 113 ?See id. ?5 In the Petition, Plaintiff also complains that the ATES Ordinance charges ?the maximum number of persons with violation.? (Petition 1i X) ATS is not sure what relevancy, if any, this has to Plaintiff?s claims. Nothing in the United States Constitution prohibits the City from issuing a Notice of Violation to every vehicle owner it determines has run a red light or sped in violation of the ATES Ordinance. "6 Petition it IX. -23.. PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 24 of 36 A. Plaintiff?s State Constitutional Claims Fail as a Matter of Law. Plaintiff alleges the same constitutional claims under the Louisiana Constitution as he purports to allege under the US. Constitution. Plaintiff?s state constitutional claims fail for the same reasons as those discussed above in disposing of Plaintiff?s federal constitutional claims.H7 ATS will not belabor these issues by reiterating its arguments with regard to Plaintiffs constitutional claims. B. The City Has Plenary Power To Adopt the ATES Ordinance Pursuant To Its Home Rule Charter. In paragraph IX of the Petition, Plaintiff challenges the ATES Ordinance on the grounds that it ?exceeds the scope of local power authorized by?state law.? However, the City possesses the power to adopt the ATES Ordinance pursuant to its home rule powers. i. The authority of Home Rule Charter municipalities Unlike the federal constitution, Louisiana?s constitutional provisions are not grants of power, but instead are limitations on the otherwise plenary power of the people.118 The fundamental principles with respect to the authority of municipal governments are found in Article VI of the Louisiana Constitution of 1974.?9 In general, ?a municipal authority governed by a home rule charter possesses powers, in affairs of local concern within its jurisdiction, that are as broad as those of the state, except when limited by the Constitution, laws permitted by the Constitution, or its own home rule charter.?120 ?7 See State ex rel. Olivieri v. State, 2000~0172 (La. 2/21/01), 779 Sold 735, 744; Fields v. State ofLouisiana Through the Dep ?t of Public Safety and Corrections, 1998-0611 (La. 7/8/ 1998), 714 So.2d 1244, 1250. ?3 Frame/7 v. City ofNew Orleans, 2008?0076 (La. 7/1/08), 988 So.2d 225, 234. ?9 See La. Const. art. VI 4-5; Fransen, 988 So.2d at 234. 120 Civil Service Commission of the City of New Orleans v. The City of New Orleans, 02-1812 (La. 9/9/03), 854 So.2d 322, 330 (citation omitted). -24- PD. 100522102 Case Document 15-7 Filed 08/28/13 Page 25 of 36 Article VI creates a dichotomy between a municipality with a pre-1974 Home Rule Charter and a municipality with a post?1974 Home Rule Charter.121 The Supreme Court of Louisiana has held on several occasions that the powers of a pre-1974 Home Rule Charter municipality are more extensive than those of a post-1974 Home Rule Charter municipality.122 In particular, the Supreme Court has stated that a municipality which had a home rule charter prior to the adoption of the 1974 Constitution ?potentially enjoys the power to initiate legislation to a greater degree than other local governmental subdivisions.?123 A municipality that has a pre- 1974 Home Rule Charter also has the power of immunity from control by the state legislature.124 As the Supreme Court noted in City of New Orleans v. Board of Comm ?rs of the New Orleans Levee Dist, 640 So.2d 237, Article VI, Section 4 limits the power of a pre?l974 Home Rule Charter government only insofar as that power would be ?inconsistent with this constitution.?125 Notably, home rule abilities and immunities are to be ?broadly construed? and any claimed 126 exception to them must be given ?careful scrutiny? by the courts. ii. The City?s enactment of the AT ES Ordinance falls within its broad power to act. In 1954, the City adopted a Home Rule Charter pursuant to Article XIV, Section 22 of the Louisiana Constitution of 1921. As a result, it is well?settled that the City has a pre?1974 Home Rule Charterf-27 121 Compare La. Const. art. VI, {3 4 with La. Const. art. VI, 122 See City of New Orleans v. Board of Comm ?rs of the New Orleans Levee Dist, 93-0690 (La. 7/5/94), 640 So.2d 237, 244. 123 I 124 ransen, 988 So.2d at 235; City of New Orleans v. Board of Comm ?rs, 640 So.2d at 242-43. 125 See La. Const. art. V1, 126 City of New Orleans v. Board of Comm 640 So.2d at 244. 127 Fransen, 988 So.2d at 235; Police Association ofNew Orleans v. Cizy ofNew Orleans, 94?1073 (La. 1/17/95), 649 So.2d 951. -25- 1313100522102 Case Document 15-7 Filed 08/28/13 Page 26 of 36 Section 2?101 of the City?s Home Rule Charter sets forth certain powers of the City as follows: (1) The City shall retain, to the same extent as if herein repeated, all rights, powers, privileges and authority that it has or could claim under the law of this State at the time of the adoption hereof, except as herein expressly modi?ed. (4) The City, in addition to the rights, powers, privileges and authority expressly conferred upon it by this Charter, shall have the right, power, privilege and authority to adopt and enforce local police, sanitary and similar regulations and to do and perform all of the acts pertaining to its local affairs, property and government which are necessary or proper in the legitimate exercise of its corporate powers and municipal functions. (6) The rights, powers, privileges and authority of the City of New Orleans under this Charter shall be construed liberally in order to establish the broadest measure of local self- government in any and all matters not prohibited or reserved to the state by the Louisiana Constitution. The Louisiana Supreme Court has recognized that the City under its Home Rule Charter ?was delegated all of the police power necessary for the protection of life, safety, health, and morals of the citizens as well as to promote public convenience and the general prosperity . . . In Everhardr v. City of New Orleans, 217 So.2d 400, the Supreme Court addressed the issue of whether a City ordinance requiring all to wear helmets While operating within the City limits was constitutional. In rejecting the plaintiffs? challenges to the ordinance, the Supreme Court found that ?the power to regulate traf?c on the highways and ?28 Everhardt v. City ofNew Orleans, 217 So.2d 400, 402 (La. 1969). -25.. PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 27 of 36 streets? comes under the police power delegated to the City in its Home Rule Charter and ?in the ?eld of public safety the . . . [City] should have more latitude in regulating individual conduct.?129 Like the ordinance at issue in Everhardt, the City?s adoption of the ATES Ordinance falls squarely within the powers of the City under its Home Rule Charter. In particular, the use of automated cameras to detect red-light violations and speeding comes under the City?s power to regulate traf?c on the highways and streets within the City limits. Indeed, at least one Louisiana court has already rejected the very contention raised by the Plaintiff in the instant case. In Ware Judge Everett held that Lafayette?s enactment of the SafeSpeed and SafeLight Ordinances was within its power to act.130 In so holding, the court recognized that Lafayette ?operates under a Home Rule Charter and has broad power to act.?131 Like Lafayette, the City has broad power to act under its Home Rule Charter and its enactment of the ATES Ordinance falls within this broad power. Accordingly, Plaintiff 5 claim should be dismissed with prejudice. C. The ATES Ordinance Is Not Preempted by Louisiana Law. Plaintiff next challenges the ATES Ordinance on the grounds that it is preempted by and con?icts with Louisiana law. However, Plaintiffs claims in this regard fail as a matter of law. The ATES Ordinance creates an entirely different, non-con?icting, civil offense for red light and speeding infractions. ?29 Id. at 402. 13? Ware 11, Exh. B, p. 1. 131 Ware II, Exh. p. l. 3 -27- Case Document 15-7 Filed 08/28/13 Page 28 of 36 In Palermo Land Co. v. Planning Commission of Calcasieu Parish, 561 So.2d 482 (1990), the Louisiana Supreme Court recognized the following formulation to determine the existence of preemption of local police powers: Local power is not preempted unless it was the clear and manifest purpose of the legislature to do so, or the exercise of dual authority is repugnant to a legislative objective; if there is no express provision mandating preemption, the courts will determine the legislative intent by examiningthe pervasiveness of the state regulatory scheme, the need for state uniformity, and the danger of - con?ict between the enforcement of local laws and the administration of the state program. 132 i. he ATES Ordinance is not preempted by the LHRA. Applying the test enunciated by the Louisiana Supreme Court in Palermo Land Company, the LHRA does not preempt the ATES Ordinance. There is no express provision in the LHRA mandating that state regulation of traf?c offenses preempts local regulatiOn. Indeed, the provisions of the LHRA itself indicate that the State Legislature did not intend to preempt local regulation of traffic offenses. In particular, the LHRA provides, in pertinent part: Local municipal authorities also may adopt ordinances regulating traf?c on state maintained highways within their corporate limits, so long as such ordinances do not establish regulations different from, or in addition to, the provisions of this Chapter and the regulations of the department and the commissioner adopted pursuant thereto. In addition, local municipal authorities may adopt ordinances which supplement the provisions of this Chapter and regulations of the department and commissioner adopted pursuant thereto . . . .133 Palermo Land Ca, 561 So.2d at 497. 133 La. R.S. -28- PD. 100522102 Case Document 15-7 Filed 08/28/13 Page 29 of 36 Accordingly, any preemption argument depends upon the existence of an implied legislative intent to preempt the regulation of traf?c offenses at issue in this case. An implied legislative intent to preempt the regulation of speeding and running a red light cannot be gleaned from the LHRA. First, the LHRA is not pervasive, as it does not purport to govern civil traf?c offenses. If a driver violates the provisions of the LHRA by running a red light or speeding, he is subject to only criminal penalties.134 La. R.S. 32:57, which governs the penalties generally applicable to violations of the LHRA, is silent on the realm of civil enforcement of such violations. Second, the ATES Ordinance does not affect the uniform application of the state?s traf?c laws. In particular, the ATES Ordinance does not change the ability of police of?cers to cite offenders for traf?c violations or change the methods by which criminal traf?c citations are adjudicated. To the contrary, pursuant to the ATES Ordinance, a person who runs a red light or speeds and is observed by a police of?cer remains subject to the criminal penalties provided in the LHRA.135 Only when no police of?cer is present and the automated camera captures a red light or speeding violation does the ATES Ordinance apply, not to invoke criminal traf?c laws, but to impose a civil penalty on a vehicle?s owner.136 The ATES Ordinance does not replace the state traf?c laws as established in the LHRA, and speci?cally provides the contrary: A civil penalty may not be imposed under this article upon the owner of a motor vehicle, if the operator of the vehicle was arrested or was issued a speeding citation and notice to appear by a law or public safety of?cer as a violation of La. R.S. 32:232, even if such violation was captured by the automated traffic enforcement system.137 13? See La. R.S. 32:57. 135 City Ord. ?36 City 0rd. City Ord. lS4-1704(b) (emphasis added). -29, PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 30 of 36 The LHRA always prevails over the ATES Ordinance. In the rare instance that the operator of a vehicle is ticketed by a police of?cer and the violation is also captured by a traf?c camera, the owner of the vehicle is not liable for a civil penalty under the ATES Ordinance. Finally, there is no con?ict between the ATES Ordinance and the LHRA. The LHRA specifically states that the penalties imposed by a municipal ordinance ?need not necessarily be consistent with the penalties provided by Section 57 of this Title.?138 The ATES Ordinance creates an entirely different civil offense for running a red light and speeding, and does not con?ict with the provisions of the LHRA. Indeed, Judge Everett arrived at this very conclusion in Ware stating that ?the city ordinances are not in con?ict with state law, but are additional legislation assessing civil penalties which are consistent with state law.?139 The decision of the Ohio Supreme Court in Mendenhall v. City ofAkron, 881 255 (Oh. Jan. 31, 2008), is similar to the preemption claim raised by the Plaintiff here. In Mendenhall, the City of Akron adopted an ordinance authorizing the use of cameras in mobile units to identify speed-limit violators in school zones. Shortly after the institution of the automated enforcement system, two lawsuits were ?led challenging the ordinance on grounds that the ordinance exceeded Akron?s home rule authority and also violated due process. After recognizing that the state statute and ordinance targeted the same" conduct, i.e. control of vehicle speed, and that the ordinance did not change the existing state speed limits, the court concluded that the ordinance did not directly con?ict with the state statute: ?When a 138 La. as. 139 Ware 11, Exh. B, p. 1. PD. 100522102 Case Document 15-7 Filed 08/28/13 Page 31 of 36 municipal ordinance does nothing more than prohibit the same conduct prohibited by state statute, there is no con?ict between the two??40 The court then proceeded to analyze whether there was a ?con?ict by implication? between the ordinance and state statute. When assessing whether a con?ict by implication exists, the court first examines whether the lawmakers indicated that the statute was to control a subject exclusively. In this regard, the court found that, ?although the General Assembly has enacted a detailed statute governing criminal enforcement of speeding regulations, it has not acted in the realm of civil Lastly, the court addressed the parties? argument that the civil enforcement of violations identi?ed by the automated system decriminalizes behavior that is criminal under state law, and thus, is in con?ict with state law. Although the court acknowledged that ?a municipal ordinance is in con?ict with state law when there is a signi?cant discrepancy between the punishments imposed for that behavior,? such ordinance is not in con?ict with the state statute when it simply imposes a lesser penalty and does not change the character of an offense. ?42 Like Mendenhall and Ware H, the City ATES Ordinance is not in con?ict with the LHRA. The ATES Ordinance prohibits conduct identical to that prohibited by the LHRA, :26. running a red light and speeding.143 Notably, the ATES Ordinance does not change the substance of the LHRA by, for instance, adjusting the speed limits established by state law. The ATES Ordinance only provides for a lesser punishment for running a red light or speeding than that ?40 Mendenhall, 881 at 263. 14] Id. at 263 (emphasis added). ?42 Id. at 264. ?43 See City 0rd. 15447014704. -31- PD. 100522102 Case Document 15-7 Filed 08/28/13 Page 32 of 36 provided in the LHRA.144 In particular, the ATES Ordinance provides for only a civil penalty for running a red light or speeding, and not a criminal penalty.145 The LHRA provides that a municipal authority may impose penalties different than those provided by the LHRA.146 Moreover, it is well settled that when a municipal ordinance does nothing more than impose a lesser punishment for the same conduct prohibited by a state statute, the ordinance is permissible.147 Indeed, although there are decisions invalidating ordinances because they provide a greater penalty than the state statute punishing the same crime, municipal ordinances imposing a lesser punishment than the state statute have been sustained.148 In sum, the ATES Ordinance creates an entirely different, non-con?icting, civil offense for red light and speeding infractions. The LHRA remains in full force and effect and supersedes the ATES Ordinance in the rare instances in which an of?cer observes a driver run a red light or speed and subsequently issues a citation.149 As stated in the ATES Ordinance, the ATES Ordinance is simply an ?alternative method of detecting and deterring red light violations??50 The LHRA and the ATES Ordinance are not in con?ict and can certainly be read in harmony. ii. La. RS. applies to criminal ?nes and forfeitures, and not the civil penalty under the ATES Ordinance. Plaintiff maintains that the ATES ordinance conflicts with La. R.S. 151571.11. However, Plaintiff?s argument is insupportable, as La. R.S. 15571.11 applies to criminal ?nes and forfeitures, and not the civil penalty under the ATES Ordinance. See id. 14? City Ord. '45 See La. R.S. ?47 See City ofBaton Rouge v. Williams, 95?0308 (La. 10/16/95), 661 s6.2d 445, 450; State v. Suire, 319 So.2d 347, 350 (La. 1975); 01). Ali?y Gen. ofLa., No. 95-58 (Mar. 14, 1995). ?43 See Williams, 661 So.2d at 450; Suire, 319 s6.2d at 350; 0p. Att?y Gen. ofLa., No. 99?176 (July 9, 1999). 149 City otd. 154170405). 15? City 0rd. 154470405). -32- 143100522102 Case Document 15-7 Filed 08/28/13 Page 33 of 36 La. R.S. 15:571.11 is a provision in the Louisiana Code of Criminal Procedure (the ?Code?), La. R.S. 15:1, et seq, and is found in the part of the Code governing the ?Diminution and Commutation of Sentence for Good Behavior.? Section 571.11 is titled ?Disposition of ?nes and forfeitures,? and it is apparent from reading the statute that it is intended to apply to fines and forfeitures collected in connection with criminal proceedings. Specifically, included within Section 571 . 11 is a requirement that ?nes and forfeitures . . . imposed in criminal cases and prosecutions by the Courts of Orleans Parish . . . be paid to the criminal sheriff of Orleans Parish who shall deposit same in a special account, and shall thereafter be divided equally between the district attorney of Orleans Parish and the criminal district court of Orleans Parish in two special accounts, one account to be administered by the judges of the criminal district court of Orleans parish, and the other account to be administered by the district attorney of Orleans Parish to be used in defraying the expenses of the criminal courts of the parish, extraditions, and such other expenses pertaining to the operation of the criminal court of Orleans parish and the of?ce of the district attorney of Orleans Parish.151 The fallacy is immediately evident, as La. R.S. 151571.11 makes clear that it applies to criminal ?nes and forfeitures, and not penalties assessed in connection with civil proceedings. As shown throughout this memorandum, the ATES Ordinance imposes only a civil penalty, and thus La. R.S. 15:571.11 is not applicable. Accordingly, Plaintiffs contention that the ATES Ordinance con?icts with Section 571.11 is meritless, and this claim should be dismissed, with prejudice. ?51 La. R.S. 15571.1 (emphasis added). -33- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 34 of 36 V. ATS Cannot Be Held Liable for Alleged Constitutional and Legal Flaws in the ATES Ordinance. In the alternative, even if the Court were to ?nd Plaintiff has suf?ciently alleged a cause of action with regard to the validity of the ATES Ordinance under the United States Constitution and/or Louisiana law which ATS disputes any cause of action lies against the City. ATS is not liable for the alleged constitutional and legal flaws in the ATES Ordinance. ATS has no duty whatsoever to supervise the actions of the City and ensure that the City enacts proper ordinances, including the ATES Ordinance. Indeed, any such theory directly con?icts with the City?s Home Rule Charter, which vests the City?s Department of Law with that responsibility.152 The contract between the City and ATS imposes no obligation on ATS to ensure that the City passes a proper ordinance establishing the automated safety camera program.153 The ATES Ordinance was enacted by the City Council over two months before the City issued its invitation to bid on the automated safety camera program and over six months before ATS entered into the contract with the City.154 Accordingly, ATS clearly had no duty to ensure the City enact a proper ordinance. Indeed, the ATES Ordinance had been enacted well before ATS entered into the contract with the City. Further, the contract provides that ?operations will comply with Section 154-1701 through 154?1705 of the Code of the City of New Orleans.?155 Sections 154-1701 through 154? 1704 are the provisions of the ATES Ordinance. At all times, ATS has simply complied with the ATES Ordinance as enacted by the City. ATS was merely ful?lling its obligations under the ?52 See City Charter 4-401. ?53 Exh. A. 154866 Exh. A. The City Council passed the ATES Ordinance on February I, 2007, which was rati?ed by Mayor Nagin on February 22, 2007. ?55 Exh. A, p. i2. -34- Case Document 15-7 Filed 08/28/13 Page 35 of 36 contract with the City to ?comply with? the ATES Ordinance when performing all administrative tasks concerning the automated safety camera program. Notably, none of the sections of the ATES Ordinance impose any obligation on ATS to ensure the City enact the proper ordinance establishing the automated safety camera program. The City is in the best position to ensure that the ordinances the City enacts are in compliance with the law. Indeed, in Washington-Wapegan, the court ruled that plaintiffs could not assert similar causes of action against Simply, if plaintiff has any cause of action, the cause of action is against the City, not ATS. Plaintiff?s allegations make clear that his dispute is really with the City. There is no duty on the part of ATS to supervise the actions of the City and ensure that the City enact proper ordinance, including the ATES Ordinance. Thus, Plaintiffs claims against ATS should be dismissed as a matter of law. CONCLUSION For the foregoing reasons, motion to dismiss should be granted in its entirety, dismissing Plaintiffs Petition, with prejudice. '56 The May 26, 2011 Judgment of the court in Washington-Wapegan granting Peremptory Exception of No Cause of Action is attached to motion as Exhibit See also McMahon v. Cizy of New Orleans, Case No. 10?2196, in the Civil District Court for the Parish of Orleans (granting Peremptory Exception of No Cause of Action on the ground that ATS cannot be held liable for the alleged constitutional and legal ?aws in the ATES Ordinance). The May 12, 2011 Consent Judgment of the court in McMahon granting Peremptory Exception of No Cause of Action is attached to motion as Exhibit -35- PD.10052210.2 Case Document 15-7 Filed 08/28/13 Page 36 of 36 Respectfully submitted, PHELPS DUNBAR LLP BY: . Allg? C. Miller, Bar Roll 26423 Suite 200, Canal Place 365 Canal Street New Orleans, Louisiana 70130-6534 Telephone: (504) 566-131 1 Telecopier: (504) 568-9130 Email: millera@phelps.com -AND- Jessica Coco Huffman, Bar Roll No. 30445 11 City Plaza 400 Convention Street - Suite 1100 Baton Rouge, Louisiana 70802-5618 P.O. Box 4412 Baton Rouge, Louisiana 7 0821-4412 Telephone: (225) 346-0285 Telecopier: (225) 381-9197 Email: huffmanj@phelps.com ATTORNEYS FOR AMERICAN TRAFFIC SOLUTIONS, INC. CERTIFICATE OF SERVICE I do hereby certify that on August 28, 2013, a copy of the foregoing pleading was ?led electronically with the Clerk of Court using the system. Notice of this ?ling will be sent to plaintiff and counsel for the City of New Orleans by operation of the Court's electronic ?ling system. -36- PD.10052210.2