Florida Appeals Court says corporations shouldn't be issuing citations.

At this link Florida Appeals Case you can see a decision, carefully reasoned, supporting the proposition that a for-profit corporation is not the correct entity to issue traffic citations. If your state is like California, this may not matter.

Dear Honorable Mayor and Honorable City Council Members,

I am writing this because I’m unable to attend tonight. I request that if possible, this letter be included along with other written or verbal statements you may receive regarding the CATTS Program.

My opposition to this program stems from the illegal contract in effect between the City of Ventura and Redflex Traffic Systems, INC. In particular, it is Cost Neutral. The term “Cost Neutral” is used herein to describe a contract wherein the municipality undertakes no financial risk while the contractor or vendor makes most or all of the capital investment and undertakes all of the risk. If Justice is blind, the eyes of the vendor are wide open when the question of profit and loss comes up.

Notwithstanding the creative syntax and grammatical gymnastics employed in the current contract, and in the proposed extension to camouflage its illegality, the contract currently violates the intent of CVC 21455.5(h) if not the specific wording thereof. This Contract contains terms that explicitly and directly link the vendor’s compensation to the amount of revenue generated through citations/convictions.

The Council’s legitimate task is to interpret the Law, giving it the meaning intended by the Legislature, if it is vague. Here, the Legislative intent is clear. In fact, when this language was enacted, there was a good deal of public concern about the idea of a profit-motivated contractor being involved in the law enforcement process, especially when the perception was that the private company’s profit was directly tied to the outcome of court cases as it is in the City of Ventura. This concern is all the more reasonable when the evidence collected is digital, being easily manipulated. And, it is further heightened when the vendor, Redflex of Phoenix, Arizona, is being investigated regarding bribery and other illegal activities in more than a dozen states (including California) and when there is a history of evidence falsification by Redflex (with at least one Redflex Notary Public in Arizona found to have falsified information). I am well aware of the changes made at Redflex in this regard. In fact, these changes were made necessary, in my opinion, by the rightful perception of corruption both at Redflex and in certain municipalities.

Regarding the interpretation and enforcement of CVC 21455.5(h), the mandatory prohibition regarding cost neutrality makes it illegal. It has been argued that the word “percentage” does not appear in the Contract. But, regardless of the number of citations issued, the exact amount of money owed to Redflex can be calculated calculating revenue in a given period and deducting City expenses from the total, paying Redflex up to the “fixed fee” specified. It is in fact readily apparent that the term “fixed fee” is more properly “maximum fee.” This might be looked at as a “sliding percentage.” The intent of the Legislature is clearly frustrated.

The enabling provisions of CVC 21455.5(h) are “mandatory” under the law. see People v. McGee 19 Cal. 3d 948.  Indeed, the statutory requirement is for the specific purpose of preventing a company or business with a profit motivation and a direct interest in the outcome of a case from involving itself in the Justice System. If a contract as the one in this case is enforced, and it has been in Ventura County, it stands for the proposition that the parties thereto need not comply with State Law.

Although complying with both the letter and the spirit of State Law would pose additional financial risk to the City of Ventura, it would also protect motorists from the risk, actual and perceived, that a private, for-profit corporation would involve itself in the Justice System at the potential expense of Justice. And, numerous California cities have indeed been able to comply with State Law in this regard, entering into contracts without cost neutrality provisions.

Regardless of the fact that a Police Officer reviews photographic evidence and the fact that the Court makes the ultimate determination regarding driver identity, etc., the Legislature sought to prohibit the sort of contract entered into by the City of Ventura and the Vendor. In fact, this intent can be seen in a recent change in statutory language when the prior words “may not” were replaced with the words “shall not” at CVC 21455.5(h) and elsewhere in the enabling provisions. The final meaning of the words may have changed only slightly but it is reasonable to believe that the Legislature sought to emphasize certain requirements that were/are not being observed. Regardless of the assertions by Redflex that its major concern is safety, it is a publicly held, for-profit Australian corporation, operating in the State of Arizona. It has no statutory duty to uphold the Law as a Peace Officer does. The Peace Officer’s oath to uphold the law and the accompanying statutory duty to do so results in the public trust in our system of justice.

CONCLUSION

If the Contract currently in effect is allowed to remain in place, there is continuing risk of public mistrust which is exactly what the Legislature was trying to avoid with the “cost neutral” contract prohibition at CVC 21455.5(h). Furthermore, the City has no incentive to comply with the Law nor should the Vendor be expected to care about the same. For the above reasons, I request that the Council reject the renewal of the CATTS Program Contract.

While it may be true that most defendants don’t know the contract is illegal, for the ones that do are are separated from their money, regardless of whether they actually violated the law, there is created a perception of unfairness or injustice. If the City of Ventura allows an illegal contract to remain in place and the Police Department participates in the prosecution of these cases, the warning of the court in People v. Goulet is appropriate: "Traffic rules account for most of the contact by average citizens with law enforcement and the courts.  Enforcement of laws which are widely perceived as unreasonable and unfair generates disrespect and even contempt toward those who make and enforce those laws."

Sincerely,

Don Hiebert

1937 Cesar Chavez Dr.

Oxnard, CA 93030

donzoh1@gmail.com

cc: Mayor and Council Members council@cityofventura.net, mike.tracy@cityofventura.net, enasarenko@ci.ventura.ca.us, cheitmann@ci.ventura.ca.us, cmorehouse@ci.ventura.ca.us, jmonahan@ci.ventura.ca.us, cweir@ci.ventura.ca.us, nandrews@ci.ventura.ca.us .

Here is a link to my recent Red Light Camera Case Decision. The Judge ruled primarily on evidence authentication. As I've pointed out previously, the evidence presented in court was "authenticated" by means of a red stamp "true and correct evidence from " either Ventura Police Department or Redflex Traffic Systems. The photos and video from the intersection cameras are properly viewed as secondary evidence which must be authenticated, either with appropriate notations on the documents or by a statement from a witness present that he or she personally made the copies and has personal knowledge that the original documents exist.

Note that the Judge also ruled on an issue of Prosecutorial Authority as the City Attorney tried to serve as a prosecutor while he has never been so authorized by the District Attorney and the City Charter authorizes him to so serve only when the City has decided to prosecute certain misdemeanors. (This was an infraction case.) Nevertheless, he assured the Judge that he's done this dozens of times at the request of a "police officer" and that the DA had abdicated his option to prosecute the instant case. I doubt that the case outcome would have been any different but felt that this issue should be addressed and dealt with.

If you examine documents before or during a trial, and they have red stamps on them without any signature or badge number on them, you should object to the introduction of all such documents and to any testimony from the prosecution based on such documents. If they are excluded, the case is out the window.

Open Letter to Chief Williams, Oxnard Police Dept.(info@oxnardpd.org) and Chief Corney, Ventura Police Dept. (lperry@vpd.org, 911@vpd.org)

Dear Chief Williams and Chief Corney,

I’m writing you about the Red LIght Camera Programs currently in place in your cities. My concern is that both of these programs are illegal within the meaning of California Vehicle Code 21455.5 as they both are “Cost Neutral.” Such contracts have been found to be illegal in several courts. In fact, the “fixed fee” language found in them are attempts to get around the statutory language prohibiting them.

The “fixed fee” language in both contracts is contradicted by the “cost neutrality” clauses in the same contracts which guarantee that the cities will never pay more than the revenue generated in a given time period. In other words, what is termed “fixed fee” is really more properly “maximum fee” or “maximum contingency fee.” For example, if no revenue is generated in a given month, no money will be paid to Redflex, the private contractor providing cameras and services, in that month. Instead, the “fixed fee” deficit amount rolls over to the next month as an amount owing. The amount of money Redflex is paid is directly dependent on the amount of money collected up to a maximum amount. There is nothing “fixed” about the fee since it can vary depending on the amount of revenue generated. The use of this confusing language in the contract might best be called “linguistic gymnastics” and the clear purpose is to violate the intent of the Legislature.

CVC 21455.5(h) (1) provides “A contract between a governmental agency [such as the City of Ventura or the City of Oxnard] and a manufacturer or supplier of automated traffic enforcement equipment shall not include provision for the payment or compensation to the manufacturer or supplier based on the number of citations generated, or as a percentage of the revenue generated, as a result of the use of the equipment authorized under this section.”

A couple of things should be noted regarding the Legislative Intent of this provision. First, when the language was originally enacted, there was significant concern among the legislators and the general public about the idea that a corporation (such as Redflex) would involve itself in the Justice System with a profit motive where the profit realized would be directly related to the revenue generated.Second, in the most recent legislative change, the language was changed from “may not” to “shall not.” While these phrases are both imperatives, this change adds emphasis to the prohibition.

While it can be argued that the cost neutral contracts do not violate the specific wording of the statute, they definitely frustrate its Legislative Intent. This is why a number of cities have either modified their contracts to remove the cost neutral language or they have eliminated the programs altogether. On the question of Legislative Intent, as noted above, several courts have found these sorts of contracts illegal. When a statute is ambiguous (either unclear in its actual language or as here, not specifically addressing a specific contract provision) a court’s task is to give the statute the intended meaning.

The Legislative Intent embodied in the “number of citations” and “percentage of the revenue generated” phrases covers any incentivized contract where a contractor is given a motive to participate improperly in the administration of justice. This could include transmitting evidence where there clearly was not a violation, falsifying or fabricating evidence, etc. (As you may know, Redflex is being investigated in more than a dozen states, including California, regarding bribery and improper payments and gifts to government officials.) Neither the Legislature nor the General Public are comfortable with the idea of a profit motivated corporation being involved in the Justice System while having no duty to uphold the law, such as a public official or police officer does.

One case in particular that relates to this issue is California v. Evelyn McGee. What this case says is that when a statute contains enabling provisions such as the cost neutral prohibition here, and the government violates it, that violation is a bar to prosecution and any sanction against a defendant cannot be upheld. Similarly, the recently decided Gray case, which echoed the earlier McGee case, indicates that the enabling provisions of CVC 21455.5 are mandatory provisions that must be complied with. Similarly, California v. Gray held that a Defendant could raise the failure to abide by enabling provisions as a defense, assuming those provisions were intended to protect that group of persons to which the Defendant belongs.. Hopefully, defendants will start doing this  in Ventura County and the violations will be dismissed.

Additionally, it’s possible that a Class Action Lawsuit will be filed in the future that will require refunds to thousands of motorists. This could be a substantial financial liability. But, the bigger question is whether your Agency should participate in a program that is operating contrary to State Law. My suggestion is that either the contracts should be amended to comply with State Law or the programs should be discontinued. And, in view of your responsibility to follow and enforce the law, I believe one of these two things should be done immediately.

Sincerely,

__________________________ _________________

Don Hiebert Date

Oxnard, CA

donzoh1@gmail.com

cc: Editor, Ventura County Star (jmoore@vcstar.com), Judge Brian Back, Presiding Judge, Ventura County Superior Court (800 S. Victoria Ave., Ventura, CA 93009)

General thoughts on Red Light Cameras

First, they're all about the money, not safety. For example, regarding the program in Ventura, CA, the contractor's procedure manual indicates that all potential violations relating to emergency vehicles in a non-emergency status and those relating to vehicles with protected license plates are not processed. If safety was the motivator, these would be processed just like the others because either of these vehicle types can cause an accident just as easily as the rest of the vehicles.

Second, regardless of the actual motivation, they increase rear end accidents while reducing side impact collisions and doing nothing meaningful to the overall safety equation. Regardless of this, cities that choose to continue using them will conduct "studies" purporting to show improvements in safety.

Third, in California at least, the fine is way too high considering the relative seriousness of the offense.

Fourth, many cities maintain illegal contracts within the meaning of the law (in CA it's CVC 21455.5). They employ tricky contract lingo in order to confuse courts on this question. Fortunately, a number of cities have discontinued their programs altogether because the programs are not profitable or represent too much of a political risk without the illegal Cost Neutral provisions.

Fifth, the majority of the revenue generated is sent out of town, with much of it going to the corporate contractor.

For these reasons, and others, these citations should be fought at every turn. This means filing an Informal Discovery Request. It means requesting a Trial by Declaration. It means disqualifying a Commissioner if you appear in front of one. It means using a 170.6 challenge on the first Judge you appear in front of when legally appropriate. It means challenging all of the prosecution evidence when appropriate. It means appealing your case at least to the appellate division when appropriate. All of this takes time, but not a whole lot of it. And it takes very little money, especially when you consider that you might get by without paying any fine at all. I’ve received three of these. They all resulted in not guilty verdicts...two at Trial by Declaration and one in a Court Trial. The last one took eight months...but the look on the City Attorney’s face (who was apparently trying to prosecute the case with no legal authority) made it all well worth it. Well, he didn’t say he was actually prosecuting, but he was arguing and acting like a prosecutor until the judge agreed with me that he had no legal right to do that.

Red LIght Cameras are receiving less and less public support. Some people believe they do help with safety. If you’re one of those, and you ever get a citation, pay it with a smile on your face. The rest of you should consult www.highwayrobbery.net and www.helpigotaticket.com. If you’re willing to invest your time and effort, you can win your case!

How To Appear in Court, Dress and Attitude

I’d suggest wearing your best. The court will notice and you’ll stand out from those in T-shirts and jeans (or worse). The judge is supposed to decide the case on the law and on the merits but judges are human and your professional appearance will be a plus. Business attire is appropriate, not provocative attire.

Don’t openly or aggressively disagree with the judge. Make the points you think are worth making but don’t argue with the judge. Refer to the judge as "Your Honor" and don't interrupt the judge.

In most cases, you’ll probably not want to testify. You don’t have to. It never hurts to tell the judge you don’t intend to testify and you can still ask questions or object as appropriate. Your decision not to testify can't be held against you.

Know the format of the trial. If the judge is doing things correctly, the officer and you will have a chance to make opening statements, although this may be skipped over. You can request an opening statement to state what you believe the evidence in the case will show. The officer will be allowed to present the prosecution case. Then, you can cross examine or question the officer. You will be given the chance to testify and the officer may ask you questions after that, although this could constitute the practice of law and would be improper legally, unless the officer is duly authorized to prosecute by the District Attorney (See Government Code Section 26500). Because the prosecution has the burden of proof, they might have a chance to rebut your closing. Since traffic cases are less formal legally, the opening and closing arguments are frequently skipped over.

Don’t argue during the time you’re supposed to be asking questions. Ask questions. If the judge tells you to move on or to do something differently, either apologize or thank him/her and modify your approach. If you argue with the judge, you’ll probably be legally wrong and even if you’re not, you’ll probably lose your case.

You should know before going to court what the elements of the offense are. The prosecution must prove these. If the officer finishes presentation of evidence and testimony without doing that, I’d move for dismissal. The elements of the charge are found in the code section you allegedly violated. All of these must be proven.

Be respectful to the officer and any other witnesses. You might think he or she is a liar (and you may or may not be right) but the judge will assume you’re wrong. The judge has the task of assessing witness credibility. You have an incentive to lie (a financial one) while the officer does not. Most judges will attribute more credibility to the officer and less to the defendant, although if you can impeach the officer's credibility, this might change. Impeachment here means proving objectively that what the officer says is wrong or showing that the officer has no recollection of what happened, etc. It does not mean arguing with the officer or simply contradicting what the officer says.

Make sure you’re prepared. You should read case law and statutes relating to your alleged offense. (I use words like alleged offense deliberately.) In my own case, I knew the case law better than the City Attorney did (unless he was lying) and I pretty much proved that to the judge. When the judge asked me about a recently decided case, I said I didn’t agree with the appeals court decision but that the case also didn’t apply here. Then, I explained why. You might think that this is impossible unless you’re a trained lawyer but actually, these cases are frequently written in readable and understandable language. If you look over the case law from highwayrobbery.net you’ll see this. In California v. Evelyn McGee (this case is cited in CA v. Gray) I read the section on mandatory vs. directory statutory requirements several times before understanding it completely.

I know of a case where a City Attorney lied to the judge about a certain case and it’s meaning and application to the case at hand. After I read the case, which I might never have done except for the lie told, I was able to cite it effectively in my own case. In fact, it supported both my case and the earlier case in its correct application.

This post relates to my recent experience in court on a Red Light Camera Citation. I won this case primarily on the question of Evidence Reliability. Apparently, the Police Department and/or the Vendor in the program believe that the following statements are sufficient to authenticate evidence: "TRUE AND CORRECT EVIDENCE FROM XYZ POLICE DEPARTMENT" or "TRUE AND CORRECT EVIDENCE FROM REDFLEX TRAFFIC SYSTEMS."

The problem with this is that first, I'm betting whoever is rubber stamping these documents has never seen the originals, especially if the stamping is being done locally on documents transmitted electronically. In any event, lacking a name, badge number, initials, etc., it's unlikely that any person can say for sure who certified the evidence. Furthermore, if the evidence turns out to be false, no person can be held accountable.

I presented this angle in court along with objections to the Cost Neutral Contract which pays the Vendor based on the amount of revenue collected each month. (Watch out for tricky wording in the Contract like "fixed fee" that is contradicted elsewhere by Cost Neutral Provisions. In the Cost Neutral Contracts, the actual term should be "maximum fee.") Cost Neutrality does not violate the explicit wording of CVC 21455.5 but it violates legislative intent contained in the enabling provisions. Legislative History regarding this statute makes clear that the general public and the Legislature have significant concerns about contracts with financial incentives for companies involved in the administration of justice. If the statute is ambiguous (i.e. does not specifically address the linguistic gymnastics employed in the Contract) then Legislative Intent governs its application. See California v. Evelyn McGee on the government's obligation to follow enabling provisions of statutes. The case is clear that violation of such provisions is a bar to prosecution.

The following are some questions I have thought up:

Evidence Foundation

1. Do you have the original documents here in Court?
2. Why is it that there no badge number, name, or other identifying information is included in the certification?
3. Regarding all Redflex documents and photographic evidence, where are the original documents and evidence kept?
4. Have you ever seen the originals?
5. How did these documents and photographic evidence come into your possession?
6. When you first saw the document, was it already stamped?
7. If you stamped it, and have never seen the originals, how do you know whether it’s a true and correct copy?
8. Move to exclude all Secondary Evidence without signature, name, badge number or other identifying information in the certification statement.

Cost Neutral (illegal) Contract

1. If the contract is legal, and it purports to be certified evidence, move to exclude it if the certification statement is not authenticated.
2. Does the contract between the City of _____________ and Redflex contain a cost neutrality provision?
3. According to the terms used in the contract, does the amount of money paid to the Vendor relate to the amount of money collected each month?