Oct 142013
 

Owen Courreges

Update, Oct. 25: Subsequent to writing this piece, I was notified by the mayor’s office the woman in the WWL story upon which this piece was based had rented the car she was ticketed for, and that she was thus still responsible for the ticket. While that information does change the story, it still presents some issues about the camera system, which are addressed in a postscript below.

Those traffic cameras certainly are insidious.  It was once assumed that you could avoid getting a red-light camera ticket, at the very least, by simply not owning a car.  That commonsense presumption has now been proven false.

This past week, our partners at WWL-TV reported on the woeful tale of one Linda Bordelon.   To recap, Ms. Bordelon sold her car this past March and now doesn’t drive.  Thus, when she received a red-light camera ticket in June, she was taken aback.

“I get this thing in the mail saying that in June 2013 I ran a traffic light, and I said, how can that be?” Bordelon asked rhetorically. “The license plate listed was not the license plate of the car I sold.”

Not only did the vehicle being ticketed not belong to Bordelon, but it wasn’t a vehicle she had ever owned.  Due to some factor, whether identity theft or a clerical error, Bordelon’s name popped up in connection with this car.

Bordelon apparently challenged the ticket with the New Orleans Administrative Hearing Center (AHC), which is supposed to provide a neutral, objective hearing officer to review camera tickets based on procedural and evidentiary procedures provided for under the Administrative Procedures Act (APA).  Challenges can be made in-person or in writing.

The result?  Bordelon was found to be “responsible.”

I could have predicted this outcome.  The AHC was created for the sole purpose of upholding tickets and discouraging people from mounting challenges.  If you go in person, the AHC normally forces you to wait for hours to see a hearing officer, and instead of following the APA and reaching an objective determination, that hearing officer is a pathetic hack who fails to create a proper record and assumes facts for which no evidence is provided.  In other words, it’s a kangaroo court.

If you make a challenge to the AHC in writing (as you would do based on an obvious defect, like not owning a car), the result is the same, except the AHC likely feels more comfortable in disregarding any defenses you may assert because your statements are not made under oath.

As WWLTV reported, in order to challenge the ticket Bordelon must pay a $50 non-refundable fee for an appeal to Traffic Court, meaning she cannot get her costs back even if the city openly admits error.

The lack of a refundable fee is bad enough, but it doesn’t stop there.  The appeal to Traffic Court is de novo, meaning that the city gets a chance to admit new evidence and doesn’t merely have to rest on the record from the AHC (which is great for the city, because the AHC’s records would never pass constitutional standards).

Thankfully, WWLTV spoke with a spokesperson for the city, who said that he didn’t know how this happened, but would look into Bordelon’s case.  Reviewing Bordelon’s case was, of course, the job of the AHC.

There is a reason why cases like Bordelon’s arise, and it’s a simple one:  The traffic cameras are all about money.

Because the traffic cameras are about money, the city decided to ticket the owners of vehicles instead of the drivers.  Indeed, they made no attempt to position cameras to where the driver would be photographed (something that is, in fact, done in other jurisdictions).  As the law is written, the identity of the driver of a ticketed vehicle is mostly irrelevant: the owner is jointly liable for fines.

Because the traffic cameras are about money, the city also opted to make them difficult to challenge.  Every dollar spent on due process is a dollar less of “profit” on the camera scheme.  Accordingly, the city assigned camera tickets to the AHC, a rubber-stamp.

Originally, AHC determinations could only be challenged via appeals on the record under the APA in Civil District Court, but Mayor Landrieu recently moved these appeals to Traffic Court.  Landrieu claimed that he was moving the appeals to Traffic Court to allow citizens to avoid high filing fees in Civil District Court, yet he made the appeal fee non-refundable and made the appeals de novo in order in ensure that citizens would still not receive due process.

Due process is expensive, and the camera scheme won’t foot the bill for it.  That’s the bottom line.

I know there are still some misguided citizens out there who believe that traffic cameras are a boon to traffic safety, and that the only people who need to worry about them are scofflaws.  Hopefully, Bordelon’s bizarre experience will serve as a wake-up call to these crones so obsessed with punishing petty traffic violations that they turned a blind eye to obvious abuses by the city and its private contractor, American Traffic Solutions.

Folks, this is what a happened here:  A person who doesn’t even own a car was cited for running a red light.  When she complained, the city failed to investigate her claims, held her responsible anyway, and demanded that she pay up or fork over a $50 non-refundable fee – a fee that would actually give the city a second chance to make its case.

This is Orwellian.  Our city is running an extortion scheme that would make Carlos Marcello proud, and it is clear that no way exists to avoid becoming a victim.

Postscript, Oct. 23:

Based on the information sent to us and WWL by the mayor’s office, it appears that Ms. Bordelon had rented a car, and that the rental car company received the citation and responded by submitting an affidavit attesting that the vehicle was in Ms. Bordelon’s custody at the time the citation was issued. The city then sent the citation to Ms. Bordelon, but failed to notify her of the existence of the affidavit. Ms. Bordelon apparently forgot about renting the vehicle and challenged the citation in writing, simply saying: “I do not own this car! I do not own any car.”

The Administrative Hearing Center subsequently held a hearing and, after admitting the affidavit, held Ms. Bordelon “Responsible.” The city then mailed its determination to Ms. Bordelon, which stated that she was held “Responsible” and, “Reason: No Defense.” The determination failed to disclose that the city had decided against her on the basis of an affidavit from the rental car company.

Ms. Bordelon has since been contacted and has confirmed that she did rent the car in question.

Although more facts have come to light in this story, they still reveal critical flaws and illegalities in the city’s adjudication of traffic camera citations. The city failed to notify Ms. Bordelon that she was being accused as the driver of a rental car based on an affidavit submitted by a third-party. Before the city submitted the third-party affidavit into evidence, it was obligated to share it with Ms. Bordelon. The city also should have notified Ms. Bordelon of the reason for its determination, rather than simply saying that she had “No Defense.”

While my column was based on a story that has now been shown to be incomplete, my central point holds that the city’s adjudication process for camera tickets is not consistent with due process. Had the city acted appropriately, Mr. Bordelon would have received proper notice and WWL’s story would never have aired.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

  23 Responses to “Owen Courreges: In traffic-camera court, even those without cars are guilty”

  1. I’m not sure if I accept the facts of this case as reported by the ticketee, but , even if true, it would be only one of the countless computer errors that appear nowadays. (“Bank error in your favor, collect ten million dollars”) The non-refundable fifty dollar fee to appeal is truly obnoxious, and that should be changed immediately.

    • Deux,

      First of all, I’m assuming WWL reasonably vetted this story.

      Secondly, Bordelon did challenge the citation already and the city held her responsible anyway. The $50 fee is for the appeal to Traffic Court. The problem here is that the Administrative Hearing Center doesn’t provide any kind of meaningful review of these citations, which is illegal since they are obligated to be neutral and follow the Administrative Procedures Act.

      Forget about the $50 fee. If the AHC did its job, it wouldn’t be obnoxious to charge for an appeal since the ticketed party would already have received a reasonably fair hearing, and any appeal would only involve the evidence already submitted (so the city couldn’t get a second bite at the apple). Now, I would argue that the appellate fee should still be refundable, but it wouldn’t be obnoxious to have a fee for an appeal if the AHC wasn’t a corrupt rubber-stamp for the city.

      • Owen: Please publish the name of the hearing officer so that others know who did this.

      • Don’t assume anything Owen. WWL did not offer any explanation of why the city held her responsible on the administrative level. I have heard of some success at the administrative level, and I don’t know about the “rubber stamp, let alone “corrupt” accusation. If you have evidence of corruption, you really should report it. Otherwise, don’t throw out accusations you can’t back up. Most people are in fact guilty, as per the photo, but hope for some luck up the line. I think any non-refundable appeal fee is wrong even if there is meaningful administrative review. If you win your appeal, the fee should be returned.

        • Deux,

          Unless you challenge the citation, you don’t get a finding from the AHC. I’m comfortable assuming that they rejected her defense out of hand and failed to investigate. I’ve never heard of the AHC actually double-checking records or anything of that sort.

          As for the reports of corruption in the AHC, I’ve outlined this multiple times in previous columns. I’ve defended multiple citations there and personally experienced how the AHC doesn’t make the slightest pretense of following the APA. Here are a few of those:

          http://uptownmessenger.com/2011/04/owen-courreges-if-kafka-was-a-meter-maid/

          http://uptownmessenger.com/2012/01/owen-courreges-the-inner-workings-of-the-speed-traps/

          http://uptownmessenger.com/2012/05/owen-courreges-highway-robbery/

          I have heard rare instances where a hearing officer will reverse a ticket, but that’s normally where their own evidence actually contradicts the citation — and those cases should never come before the AHC to begin with because a police officer is supposed to review them. However, as noted in the columns above, officers are not offering any meaningful review either. I can only imagine how many people simply pay the ticket in those cases rather than spend hours waiting to be heard by a hearing officer.

          I’m glad that you agree that the fee for an appeal should be refundable, but don’t you even question the mentality of a city that would make such a fee non-refundable? And what’s the deal with making the appeal de novo, so that the city can submit new evidence (two bites at the apple)? I have a great deal of experience in this system and I know how it operates. It doesn’t surprise me at all.

          • Incompetence is not corruption.

          • Deux,

            This isn’t mere incompetence. My columns make that pretty darn clear. It would be too much of a coincidence that this supposed “incompetence” happens to all be directed at the benefit of the city, i.e. towards upholding tickets. Also, the hearing officers are (as I understand it) contract attorneys and have a basic knowledge of the law in this area.

          • Well, you forced me to read those old columns, and I don’t see any evidence of corruption. A hanging judge may be headed for Hell, but most would not call him corrupt. As a writer and as a lawyer, you need to find the right words. Perhaps that’s the reason you keep losing those cases. I trust you realize you’ve drifted into even more serious doo doo with your accusations against these attorneys. I’m sure it is your ethical duty to report their corrupt behavior to the Bar.

    • This story is exactly as Ms Bordelon states, she is a long time friend and honest as the blue sky.

    • Judging by his or her reaction, ‘Deux Amours’ must own stock in American Traffic Solutions.

  2. Before the cameras, I used to get caught in speed traps all of the time, and it would ruin my day. Now there aren’t anymore speed traps and just cameras. I just get a ticket in the mail every couple of months. Much better

    • Because you can’t keep you foot of the gas, and prefer your own convenience to justice … pretty much guarantees that any decent person should have a ‘convenient’ metal lapse and not hit the brakes when you are in the cross-walk. What a pathetic waste of oxygen you are. F’ing worthless !!

  3. Hey…. don’t disparage our friend Carlos Marcello…. he comes in handy when we need kneecaps broken…. LOL

  4. rmccormack,

    I’m going by the WWL report, and I didn’t see the name of the hearing officer visible in form with the finding of “responsible” against Bordelon.

  5. Thank you for a well written and pointed article. High time we unveil the trolls that created and then hide behind this scam on our population!!

  6. No stock, but I do like the cameras. I do feel they act as a restraint on aggressive drivers. I know it has made me more careful. I like the revenue part too, It may be just another sin tax, but who better to pay. Most of my reply to Owen is really just a protest of the shrill and strident tone that I find inappropriate for our civilized neighborhood.

    • Deux,

      If you want to hear “shrill,” I suggest you argue cases at the Administrative Hearing Center. And there is nothing civilized about a system that violates due process rights.

      Whether the cameras are a restraint on aggressive drivers is debatable at best. On the other hand, we know for a fact that the cameras have created a wide variety of abuses:

      We know that the NOPD doesn’t properly review these tickets — even clearly misidentified vehicles have slipped by.

      We know that NOPD officers violated internal policies to cash in by creating subcontractors to review the tickets.

      We know that American Traffic Solutions has improperly programmed cameras to ticket for school zone violations outside of school zone hours.

      We know that the city put a camera in a school zone for a school that had already moved to another location, which is illegal, as tickets may only be validly written when the school for which the zone is created is in session.

      We know that the Administrative Hearing Center does not follow the Administrative Procedures Act, and in turn the Code of Evidence, in conducting its hearings.

      We know that Mayor Landrieu, responding to cries that the Administrative Hearing Center was not giving fair hearings, moved the appeal process to traffic court, but then made the appeals de novo and imposed a non-refundable fee.

      Do you really need more proof that the cameras are bad for the city, and the city’s only focus is revenue? This is not a “sin tax.” This is a moving violation, and people are entitled to due process before being fined. The city does not want to provide due process because this is a cash cow for them. The moment it becomes unprofitable for the city, you can bet that the cameras will disappear.

  7. Deux,

    Ok, I’ll explain slowly.

    The Administrative Hearing Center reviews tickets on behalf of the city. It hires contract attorneys to serve as hearing officers. The hearing officers are required by law to be neutral and to follow the Administrative Procedures Act regarding, among other things, the admission of evidence.

    In practice, as shown from multiple instances in my columns, the city’s hearing officers twist the law in the city’s favor to uphold citations, and they completely ignore the code of evidence. The obvious goal of this is to maintain a source a revenue for the city.

    If the city creates a kangaroo court to protect a revenue stream, that’s corruption. It the dishonest use of power for financial gain by the city. Your notion that hearing officer’s are simply the equivalent of “hanging judges” and that they don’t actually care about the revenue stream doesn’t even pass the smell test, especially given the ample evidence of abuses within the automated traffic enforcement system.

    With respect to your argument that it is my duty to report this to the bar, my argument is that the corruption rests with the city. The problem is both institutional and political and not the type of thing the LSBA Disciplinary Board would confront. I simply know of no precedent for an ethics complaint under these or similar circumstances.

  8. One of the advantages of speed, red-light and inspection sticker traps manned by real police officers (the only advantage, really, but a big one) is that they could get a lot of bad guys off the street through warrant checks at the time of the stops. That is gone with these cameras. And of course, due process is out the window, as you point out. And the other factor is that there has been more than one kickback scheme (disguised as a sales commission) to prominent political operatives associated with the contracting of cameras in various jurisdictions.

  9. Perhaps an editor’s note should be added to this column, given that it turns out the woman was actually driving the car:
    http://www.wwltv.com/news/New-Orleans-woman-received-photo-traffic-ticket-but-doesnt-own-a-car-227329121.html

  10. CORRECTION: Subsequent to writing this piece, I was notified by the mayor’s office that the WWL story upon which this piece was based included factual inaccuracies. WWL has since posted a correction.

    It appears that Ms. Bordelon had rented a car, and that the rental car company received the citation and responded by submitting an affidavit attesting that the vehicle was in Ms. Bordelon’s custody at the time the citation was issued. The city then sent the citation to Ms. Bordelon, but failed to notify her of the existence of the affidavit. Ms. Bordelon apparently forgot about renting the vehicle and challenged the citation in writing, simply saying: “I do not own this car! I do not own any car.”

    The Administrative Hearing Center subsequently held a hearing and, after admitting the affidavit, held Ms. Bordelon “Responsible.” The city then mailed its determination to Ms. Bordelon, which stated that she was held “Responsible” and, “Reason: No Defense.” The determination failed to disclose that the city had decided against her on the basis of an affidavit from the rental car company.

    Ms. Borden has since been contacted and has confirmed that she did rent the car in question.

    Although the facts in this story have changed, they still reveal critical flaws and illegalities in the city’s adjudication of traffic camera citations. The city failed to notify Ms. Bordelon that she was being accused as the driver of a rental car based on an affidavit submitted by a third-party. Before the city submitted the third-party affidavit into evidence, it was obligated to share it with Ms. Bordelon. The city also should have notified Ms. Bordelon of the reason for its determination, rather than simply saying that she had “No Defense.”

    While my column was based on WWL’s reporting that has now been shown to be inaccurate, my central point holds that the city’s adjudication process for camera tickets is not consistent with due process. Had the city acted appropriately, Mr. Bordelon would have received proper notice and WWL’s story would never have aired.

  11. “the city decided to ticket the owners of vehicles instead of the drivers.” Under practically any circumstance, the owner of the car gets the ticket regardless of who’s driving. Even if the vehicle (or license plate) is stolen. The only exception to this rule is apparently rental car companies. Would really like to see some transparency for where all the fine revenue goes. I wonder if even 50% of it remains in the city’s hands.

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