Circuit judge rules Baltimore Co. speed camera contract is illegal

Ruling could help others challenge citations in court

By Luke Broadwater and Scott Calvert, The Baltimore Sun

9:25 PM EST, March 5, 2013

A Circuit Court judge has ruled that Baltimore County’s contract with its speed camera vendor is illegal, because it pays the company a cut of each citation issued — a ruling that could help others challenge their citations in court.

While Judge Susan Souder’s ruling dismissed only a single speed camera ticket, the opinion is believed to be the first time a judge has ruled against the legality of the so-called “bounty system,” one of the most controversial elements of the law.

The ruling could help other motorists fight speed camera tickets, even though it has no direct effect on other cases, said John A. Lynch Jr., a professor and associate dean at the University of Baltimore School of Law.

“It’s not binding precedent,” he said. But other judges might treat it as a “persuasive precedent,” he said, adding, “Sometimes there is a herd mentality with judges. They hear this judge did it and … they might see this is a good thing to do.”

In a Feb. 21 ruling that tossed out Stanley H. Katz’s ticket, Souder wrote, “The fees paid to ACS Xerox on a per-citation basis violate” Maryland law.

On Tuesday, Katz, an Owings Mills lawyer, distributed copies of the ruling to a General Assembly committee considering a flurry of proposals concerning speed cameras statewide. Those proposals came after a Baltimore Sun investigation that found numerous examples of cameras issuing erroneous tickets and jurisdictions skirting the intent of state law.

“Money is being funneled through the District Court improperly,” Katz said before testifying. “Where does that leave us? It’s a legal mess. I’m asking for Baltimore County to shut down the program. It’s illegal.”

State Del. James Malone, chairman of the house’s transportation committee, said he planned to speak with Souder to discuss the matter. Souder declined to comment Tuesday.

Baltimore County defended its program, saying the payments specified in the contract are legal.

“We believe that all of the testimony in this case made it very clear that the program in Baltimore County is operated by the Baltimore County Police Department,” county spokeswoman Ellen Kobler said. “That issue has never been in question. Beyond that we have no comment.”

A spokesman for Xerox State & Local Solutions, formerly known as ACS, referred questions to Baltimore County.

Maryland law says that “if a contractor operates a speed camera system on behalf of a local jurisdiction, the contractor’s fee may not be contingent on the number of citations issued or paid.” But several jurisdictions, including Baltimore County and Baltimore City, pay their vendors a cut of each ticket, arguing that the jurisdiction, not the company, operates the cameras.

The pay-by-the-citation model sparked a long-running legal fight that began in 2008 when ticket recipients sued Montgomery County and several municipalities in the county. It ended in August with the state’s highest court, the Maryland Court of Appeals, ruling against the plaintiffs on the grounds that the legislature did not give anyone the right to sue.

But the court did not decide the crux of the case: whether and under what circumstances governments can pay contractors based on the number of tickets the cameras generate.

The defense in the Montgomery County case turned in part on the meaning of the word “operates.” The governments argued that they operate the programs, while the contractor — Xerox — provides equipment and vehicles.

In Baltimore County, Xerox receives about $19 from every $40 ticket.

Gov. Martin O’Malley has said that state law bars speed camera contractors from being paid based on the number of citations issued or paid. And Sen. James N. Robey, a Howard County Democrat who sponsored the speed camera law, said the aim of the legislative provision was to guard against “abuse of the motoring public” by removing a profit motive for contractors to process questionable tickets.

Katz was cited March 9 for going 47 mph in a 30 mph zone on Old Court Road in Milford Mill. After unsuccessfully challenging the ticket in District Court, he took the rare step of appealing to Circuit Court. Last month Souder oversaw a trial that lasted several hours and included a number of witnesses.

Katz’s law partner, James K. MacAlister, pointed out to the judge that an attachment to Baltimore County’s contract with Xerox says the company, not the county, operates the cameras: “The contractor will operate 22 active speed cameras and 15 active red light cameras at all times.”

“I submit to you this contract, the day it was signed, violates the bounty provision because in this contract the contractor is paid by citation,” MacAlister said.

County lawyer Jordan V. Watts Jr. said the use of the term “operate” in the contract was “a poor choice of words” and emphasized that county police carry out daily steps needed for the cameras to issue citations.

He called as a witness Ryan Nicolas, Xerox’s director of photo enforcement in Maryland. Nicolas described the steps Xerox performs for the county: It reviews each potential citation, gets name and address information from the Motor Vehicle Administration and conducts a secondary review. Then the Police Department does a final review before Xerox mails a ticket to the motorist.

In addition, Nicolas testified, “We furnish, install and maintain the systems that are deployed in the camera.”

But Nicolas said the company does not operate the county’s program.

“Who is the operator of the Baltimore County speed monitoring system?” Watts asked him.

“Baltimore County,” Nicolas responded.

Souder wrote in her ruling: “The State admits that Baltimore County entered into a contract with ACS Xerox requiring ACS Xerox to ‘operate’ 22 active speed cameras. The testimony of the witnesses confirmed that ACS Xerox is involved in the operation of the speed cameras.”

She also drew a distinction from the Montgomery County case, saying that Katz was simply challenging his citation, not seeking a broader remedy.

Ragina Averella, AAA Mid-Atlantic’s government and media affairs manager, said she knew of no other judicial rulings that a bounty system was illegal.

Katz was one of several speed camera critics and proponents to testify Tuesday in Annapolis on six different bills, including legislation aimed at reforming speed camera laws, forcing contractors to pay penalties for erroneous tickets, and banning the devices.

Averella testified in favor of bills that require daily calibration of the cameras and video recordings as evidence to prove that a motorist was actually speeding. Averella brought a poster of an erroneous ticket issued to a AAA Mid-Atlantic driver. In it, the driver is seen slowing to a stop at a red light in the 2900 block of Orleans Street in 2011. But the ticket accuses the driver of traveling 57 mph in a 25 mph zone.

“It’s incredible to think that a motorist can be cited for speeding while standing completely still, but unfortunately it’s happened,” she said. “Legislators know that this is a big problem, and motorists are now looking to them to fix it.”

The city’s Department of Transportation “has and continues to take erroneous citations seriously,” said Adrienne Barnes, an agency spokesman. “Sadly, thousands of motorists continue to speed and we have an obligation to make our roads safe.”

Averella, who serves on a task force charged with studying the city’s speed and red-light camera program, said AAA Mid-Atlantic wants localities to discard the so-called “bounty system” and provide better oversight, among other reforms.

“Currently, most Maryland jurisdictions, including Baltimore City, Baltimore County and Howard County are paying the vendors who operate their automated systems on a per-ticket basis. This is in direct conflict with existing law,” she said.

Del. Michael D. Smigiel Sr., an Eastern Shore Republican, testified in favor of his bill to repeal all speed camera legislation. He said the way counties have abused the bounty system is evidence that the system needs to be scrapped.

“We specifically said we’re not going to allow this to happen, and it happened,” he said.

But Jacqueline Goodall, the mayor of Forest Heights in Prince George’s County, testified that the legislature shouldn’t throw out all speed camera programs because some jurisdictions played fast and loose with the law.

“We should penalize those jurisdictions for breaking the law,” she said.

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