NOT DESIGNATED FOR PUBLICATION
DENNIS R. BAGNERIS, Sr., Judge.
Plaintiffs/appellants, Joseph R. McMahon, III, Darlene Washington Wapegan, Douglas M. Kleeman, et al, appeal the trial court's judgment that granted the motion for summary judgment of defendant, City of New Orleans. The judgment dismissed the plaintiffs' putative class action lawsuit which challenged the legality of the City's Automated Traffic Enforcement System Ordinance. For the reasons that follow, the judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
FACTS/PROCEDURAL HISTORY
In 2007, the City enacted a group of ordinances to permit the use of automated photographic cameras to detect red light and speeding violations at designated locations. The ordinances were codified and promulgated as Section 154-1701 through Section 154-1704 (Article XVII, Automated Traffic Enforcement System; hereinafter, ATES Ordinance or Ordinance). The Ordinance characterized any penalty imposed for a violation as a "civil" penalty. The City's Department of Public Works (DPW) was responsible for the enforcement and administration of the Ordinance. Adjudication of any offenses would use a preponderance of the evidence standard.
The City began enforcement of the Ordinance by having its vendor, American Traffic Solutions (ATS), mail notice of any violation to the registered owner of the vehicle. The Notice of Violation included: (1) a description of the alleged violation, including the date, time, and location; (2) recorded images of the violation; (3) the name and address of the registered owner of the vehicle; (4) the license plate number of the vehicle involved in the violation; (5) the amount of the penalty to be imposed; (6) the date by which the penalty must be paid or challenged; (7) a statement that the recorded image was evidence for use in the proceeding to determine the imposition of the penalty; (8) the manner and time in which to challenge the imposition; and (9) a statement that failure to timely pay the penalty, file a challenge, and/or failure to appear on or before the scheduled hearing date would be considered an admission of liability; moreover, failure to appear would constitute a waiver of the right to appeal. The Notice also advised the vehicle owner that the violation was considered a non-moving infraction and would not be reported to the owner's insurance carrier.
In October 2008, Joseph McMahon, one of the named representatives in the present class action complaint, contested his violation. McMahon's defenses included that (1) the ATES video was introduced in violation of hearsay rules; (2) the video failed to establish the person who had committed the offense; (3) the City had no proof that McMahon committed the violation; (4) no live police officer, traffic official, or any other person testified on the City's behalf or laid a foundation for the admittance of the City's evidence. He later appealed his adverse adjudication to the Civil District Court for the Parish of Orleans. On March 3, 2010, the district court judge granted summary judgment in favor of McMahon. In granting summary judgment, the trial court agreed with McMahon that "there are serious deficiencies in the evidence used by the City to determine the liability of the defendant."1
On the same date as this judgment, McMahon filed his class action complaint. His complaint was based in part on the "serious deficiencies" in the evidence the City used against every recipient of an ATES violation notice.
Later, on October 1, 2010, in response to an ATES lawsuit filed by appellant, Darlene Washington-Wapegan (Washington), another Civil District Court judge entered a preliminary injunction against the enforcement of ATES.2 The district court judge found that the City had no authority under its Home Rule Charter to authorize the DPW to enforce and administer a traffic ordinance. The judge noted that enforcement of traffic ordinances rested exclusively with the City's Police Department.
On October 4, 2010, McMahon filed his amended class action suit that included a challenge to the DPW's alleged illegal enforcement, administration, and collection of fines under the Ordinance.
On October 7, 2010, this Court upheld the preliminary injunction, finding that the City had no authority to place the enforcement of the Ordinance under the DPW.3 The City took writs to the Supreme Court. However, on October 27, 2010, the Supreme Court denied writs.
On or about November 2, 2010, Washington filed her own class action complaint, which also included a challenge to the DPW's illegal enforcement of the Ordinance.
After the Supreme Court denied writ review, the City Council passed an amendment on November 4, 2010, whereby it placed the ATES Ordinance's enforcement and administration under the New Orleans Police Department (NOPD). The Council specified that the amendment would be retroactive.
Douglas M. Kleeman, another named appellant, filed his own class action complaint in 2011. His petition essentially urged the same complaints as McMahon.
Thereafter, the City and the plaintiffs agreed to consolidate the several class action lawsuits under one caption; and on May 11, 2012, the plaintiffs filed a Master Petition. The proposed putative class included everyone who received a notice of a violation under the original or the amended ordinance and the proposed subclass was everyone who had received notice of a violation under the original ordinance. The Master Petition alleged in part that the Ordinance lacked due process safeguards; that the City lacked authority under Title 32, the Louisiana Highway Regulatory Act (LHRA), to enact the Ordinance; that the Ordinance was criminal or quasi-criminal in nature; that it impermissibly created solidary liability between the operator of the vehicle and the owner of the vehicle; and that the City relied on inadmissible evidence to meet is burden of proof. Plaintiffs also contested whether the amended Ordinance that transferred the Ordinance's enforcement from the DPW to NOPD could apply retroactively.
The City moved for summary judgment on July 31, 2012 to dismiss all the challenges to the ATES Ordinance. Upon hearing argument and reviewing posttrial briefs, the trial court issued judgment in favor of the City, dismissing all of plaintiffs' claims. In dismissing plaintiffs' petition, the trial court found that the Ordinance was civil in nature; that it did not conflict with State law; that the amended Ordinance could be applied retroactively because it did not affect any vested property rights; that the Ordinance fulfilled due process considerations regarding booting procedures; and that the Ordinance's hearing procedures complied with Louisiana evidentiary statutes and jurisprudence. It is from this judgment that the plaintiffs filed the present appeal.
STANDARD OF REVIEW
Appellate courts review the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether the summary judgment is appropriate. Reynolds v. Select Properties., Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Smitkno v. Gulf South Shrimp, Inc. 2001-2566 (La. 2012), 94 So.3d 750.
DISCUSSION
Plaintiffs' assignments of error contend that the trial court erred in granting summary judgment relief because (1) the amended Ordinance could not apply retroactively as plaintiffs had filed their actions challenging the DPW's illegal enforcement and adjudication of the Ordinance before its amendment, therefore, plaintiffs' rights had vested; (2) the Ordinance impermissibly conflicted with the State's police power under the LHRA; (3) the evidence used by the City to find a violation contains serious deficiencies that violate Louisiana law; (4) the Ordinance improperly interferes with civil relationships insofar as it creates a form of vicarious liability between the vehicle owner and vehicle operator, in violation of La. Const. Article VI, §9(A)(2); (5) ATES procedures violate due process regarding the preponderance standard of proof used, the selection of City-paid hearing officers who have a financial stake in the outcome, and the lack of proper notice, defined discovery, and proper evidentiary procedures; (6) the ATES booting provisions violate due process; and (7) insufficient discovery had taken place. We find that plaintiffs' assignments of error can be grouped into two categories: whether the City has the authority to enact the ATES Ordinance and whether the Ordinance's enforcement and administration violate Louisiana due process and evidentiary procedures. We shall first consider whether the City has the authority to enact the Ordinance.
City's Authority To Enact ATES Ordinance
Plaintiffs' challenge regarding the City's authority to enact the ATES Ordinance centers on their position that the Ordinance conflicts with the State's police power under the LHRA. Plaintiffs note that the LHRA characterizes red light and speeding violations as criminal misdemeanors. In contrast, plaintiffs maintain that the penal provisions of the Ordinance impose a mixture of criminal, quasi-criminal, and civil penalties. This mixture of punishment allegedly conflicts with the LHRA's enforcement of red light and speeding violations. For purposes of public safety, plaintiffs contend that the LHRA requires uniform statewide enforcement of these violations as criminal misdemeanors. Accordingly, plaintiffs state that the City has no authority to enact the Ordinance without specific enabling legislation.
Based upon our review, we agree with the trial court and recent federal court jurisprudence that the City has the authority to enact the ATES Ordinance and that the Ordinance imposes civil, rather than criminal penalties.4 As noted by the trial court, the City of New Orleans is a home rule charter government. Louisiana Constitution, Art. VI, § 5 authorizes a local government operating under its home rule charter to exercise any power and perform any function necessary, requisite, or proper for the management of its affairs that is not denied by or is inconsistent with the Constitution. Moreover, the Louisiana Supreme Court has recognized that the City, under its home rule charter, has been "delegated the power to regulate traffic on the highways and streets and in the field of public safety..." Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400, 402.
In the present matter, the plaintiffs present no facts or evidence to show that the Ordinance conflicts with the State's police power under the LHRA or that the enactment of the Ordinance exceeds the power the City possesses under the authority of its home rule charter. The Ordinance's announced goal, to promote public safety, is an acknowledged, legitimate, purpose of local government. We find nothing within the statutes cited by plaintiffs or state law that prohibits local government from allowing the use of an automated camera system to enforce municipal traffic regulations. The State Legislature has never adopted legislation prohibiting ATES ordinances. On the other hand, the Legislature has enacted La. R.S. 32:393(1), a statute which prohibits the record of a conviction based solely on traffic camera evidence from being forwarded to the Department of Public Records or made a part of the violator's driving record. We agree with the trial court that the passage of this statute indicates a tacit recognition by the State that local municipalities have the authority to enact ATES-like ordinances. Therefore, we conclude that the City does not require specific enabling legislation to enact the Ordinance. The trial court, as a matter of law, properly granted summary judgment relief on this issue.
Likewise, we also agree with the trial court that the Ordinance is civil in nature. It has long been established that the framework for deciding whether a statutory scheme is civil or criminal is by ascertaining the legislative intent. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed. 164 (2003). Upon reviewing the plain language of the Ordinance, it is undisputed that the legislative intent was to create civil penalties for any violation. The Ordinance references "civil" liability and "civil" penalties throughout its provisions. Actual penalties imposed for violations are monetary sanctions, not physical restraint or criminal punishment. Moreover, the Ordinance provides that notices of violations are not reported to the Department of Public Records or the violator's insurance carrier, penalties that are assessed for criminal stop sign and red light violations under the LHRA.
Having found that the Ordinance is a valid exercise of the City's police power and is civil in nature, we must now consider whether those findings also entitle the City to summary judgment regarding the plaintiffs' due process and evidentiary challenges to the Ordinance's administration and enforcement. As discussed more fully herein below, we find that they do not.
Plaintiffs' Vested Property Rights
In this assignment of error, plaintiffs assert their rights had vested to contest the Ordinance during the period when it was enforced by the Department of Public Works because they filed actions before the City passed the amended Ordinance. Therefore, plaintiffs argue the trial court erred when it found they had no cause of action and in its conclusion that the Amended Ordinance could apply retroactively because the changes in the law were procedural, rather than substantive.
The retroactivity of laws is discussed in L.C.C. art. 6 which states that:
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
This Court further discussed the effects and rights attached to substantive and procedural laws in Smith v. City of New Orleans ex rel. Shires, 2010-1464, p. 8 (La. App. 4 Cir. 7/6/11), 71 So.3d 525, 530-531. The opinion noted that:
For purposes of determining whether to give a legislative's body's enactment retrospective or prospective application, a substantive ordinance is an ordinance that impose new duties, obligations, or responsibilities upon parties, or ordinances that establish new rules, rights, and duties or change existing ones. Jacobs v. City of Bunkie-98-2150, p. 8 (La. 5/18/99), 737 So.2d 14, 20. Interpretative ordinances are those that clarify the meaning of an ordinance and are deemed to relate back to the time that the ordinance was originally enacted. Id. A procedural, remedial, or curative ordinance relates to the form of the proceeding or operation of the ordinance. King v. State ex rel. Louisiana Dept. of Public Safety and Corrections, 98-2910, p. 4 (La. App. 1 Cir. 2/18/00), 754 So.2d 1119, 1122. A procedural ordinance prescribes a method for enforcing a substantive right and relates to the form of the proceeding or the operation of the ordinance. Jacobs, 98-2510, p. 8, 737 So.2d at 20. A remedial ordinance includes one that is designed to correct an existing ordinance. See Blacks Law Dictionary 1296 (7th ed. 1999). A legislative body may cure by subsequent act an irregularity of nonobservance of requirements which it originally might have dispensed with, provided that vested rights have not intervened. Barnett v. State Mineral Board, 193 La. 1055, 1068, 192 So.2d 701, 705 (1939).
The City asserts that the change in the Ordinance that transferred its enforcement from the DPW to the NOPD was strictly procedural in nature. The City cites the trial court's conclusions that the amendment was remedial or procedural because it merely re-assigned responsibility for administering the traffic camera system from the Department of Public Works to the NOPD; and moreover, the amendment made no substantive changes to the Ordinance. The City also notes that the Amended Ordinance expressly provided that it was to apply retroactively. Therefore, the City contends the trial court properly decided that the amendment did not disturb any vested rights as no court had ever recognized that plaintiffs possessed a cause of action to sue for relief regarding civil fines for traffic violations and the legality of the ATES Ordinance.
The City relies on cases such as State v. Clark, 340 So.2d 208 (La. 1976) and Sudwischer v. Estate of Hoffpauir, 705 So.2d 724 (La. 1997) to support their position that the plaintiffs have no vested right to challenge the retroactive application of procedural laws. In Clark, the defendant's challenge to the retroactive application of a change in the Code of Criminal Procedure regarding the trial court's authority to grant directed verdicts in criminal jury trials was dismissed; and in Hoffpauir, the Court held that the plaintiff had no vested right to challenge the retroactive application of a change in the burden of proof standard in filiation matters because the change was procedural.
However, based on our review, neither Clark nor Hoffpauir controls in the present matter. What distinguishes this case from Clark or Hoffpauir is that in those cases, procedural changes were made to laws that were enforced by legal entities with the requisite legal authority. In contrast, in the present matter, a judicial determination was made that the City lacked the authority to have the original ATES Ordinance enforced by the DPW. In granting the preliminary injunction to enjoin enforcement of the Ordinance by the DPW, the trial court repeatedly described the DPW's issuance of tickets based upon the ATES Ordinance as "unlawful" and opined that unlawful conduct cannot be fair. Therefore, notwithstanding whether the plaintiffs can mount successful challenges to the City's underlying authority to enact an ATES ordinance or whether the penalties imposed are civil, we find that the plaintiffs acquired a cause of action to seek redress for the "illegal" enforcement of the Ordinance by the DPW.
Although the changes in the Ordinance may have been remedial or procedural, whether or not the Amended Ordinance can apply retroactively does not end with that determination. We must also ask whether rights had vested. It is undisputed that the plaintiffs filed their DPW actions prior to the enactment of the Amended Ordinance. "When a party acquires a right to assert a cause of action prior to a change in the law, that right is a vested property right which is protected by the guarantee of due process." Bourgeois v. A.P. Green Indus. Inc., 2000-1528 (La. 4/3/00), 783 So.2d 1251, 1259. See also Burmaster v. Plaquemines Parish Government, 2007-2432 (La. 5/21/08), 982 So.2d 795.
This Court finds that plaintiffs acquired their cause of action before the City amended the Ordinance; thus, their rights had vested. The City cannot retroactively divest plaintiffs of that cause of action; hence, the trial court erred in granting summary judgment relief on this issue.
Due Process/Evidentiary Issues
Plaintiffs' other assignments of error maintain that the trial court erred in granting summary judgment because the City relies on evidence fraught with serious evidentiary deficiencies in assessing a violation; and as such, ATES procedures violate due process. Plaintiffs cite in part improper/incompetent affidavits, unauthenticated photographic evidence, and hearsay evidence.
In granting summary judgment relief in the City's favor as to whether ATES hearing procedures contravene established evidentiary statutes and jurisprudence, the trial court reasoned that "administrative bodies are not usually bound by the technical rules of evidence, and that hearsay evidence is admissible and may constitute `competent' evidence in administrative proceedings." This Court acknowledges the City's argument that our jurisprudence allows a more relaxed standard of admissibility in administrative proceedings and that the Ordinance imposes a civil penal scheme; nevertheless, administrative proceedings are not devoid of all evidentiary requirements and parties are entitled to due process protections for civil penalties as the situation demands. Matthews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed 2d 18 (1976). Accordingly, in applying that precept, we must also accredit the findings of the trial court judge that found the evidence relied upon the City to adjudicate a traffic camera violation was legally deficient.
In that matter, the trial court not only dismissed Plaintiff McMahon's individual ATES violation, but also granted summary judgment relief in his favor. In discussing the evidence relied upon by the City to adjudicate violations, the trial court stated:
In the instant case, you do not have a human who has witnessed the violation, but you do have what purports to be an affidiavit. There is a sworn statement. However, there is no affiant. All the affidavit states is that Employee 2009 has probable cause to believe that defendant ran a red light. Who is this Employee 2009? Is he/she/it even a person? This statement would make George Orwell blush.
It seems to the Court, the affidavit complained of is computer-generated. There can be no verification of this statement because a computer cannot testify to what it has seen. It cannot perceive the elements that are being photographed. All it can do is take a photograph. Maybe we can replicate human awareness and behavior, but until then all we have is a camera taking a picture. Additionally, Employee 2009 can be anybody. Conversely, it can be nobody. And most certainly, it does not have the ability to swear that it has seen something. At bear minimum, the employee must be identified by more than a year.5
Our review of the trial court record of the summary judgment proceedings in the instant case shows that the City failed to present any sworn statements or affidavits regarding the ATES affidavit process, the identification of its employees who attest to the violation, or the method used by its employees to verify the reliability of the traffic cameras. Therefore, genuine issues of material fact remain regarding whether the evidentiary procedures relied upon by the City to adjudicate ATES traffic violations afford due process. Accordingly, the trial court erred in granting summary judgment relief as to the plaintiffs' due process and evidentiary claims. We therefore remand these claims to the trial court for a hearing on the merits to determine if the City's ATES procedures prohibit traffic camera recipients from receiving a fair hearing.
Booting Procedures
The plaintiffs also urge that the trial court should not have granted summary judgment relief because the ATES booting provisions do not give adequate notice to the vehicle owner that an action is about to be taken against him. The City counters that the trial court properly granted summary judgment on this issue because it found that the Ordinance provides for an adequate pre-deprivation administrative hearing process. As such, the Ordinance satisfies any due process requirements. However, in light of our finding that genuine issues of material fact remain as to whether the Ordinance's overall hearing procedures afford adequate due process protections, we are also compelled to find that all due process issues, including the Ordinance's booting procedures, are not ripe for summary judgment.
Vicarious Liability
Plaintiffs maintain that the trial court erred in granting summary judgment because genuine issues of fact and law exist as to whether the Ordinance creates impermissible vicarious liability. This argument hinges on plaintiffs' position that the Ordinance imposes a type of vicarious solidary civil liability by its proviso that the owner and the operator, when not the same, shall be solidarily liabile to the City for a violation. Plaintiffs contend this is an impermissible attempt to govern civil relationships, in violation of Article VI, §9 (A)(2) of the Constitution of the State of Louisiana of 1974, which prohibits local governments from enacting ordinances that govern private or civil relationships, except as provided by law.
Our review of the record shows that the trial court did not address whether the Ordinance impermissibly creates vicarious liability between the vehicle owner and the operator in its reasons for granting summary judgment. As the trial court apparently did not grant summary judgment on this issue, it is not germane to our decision as to whether the trial court erred in granting summary judgment. Having already decided that summary judgment relief was not appropriate because genuine issues of material fact and law remain as to whether the Ordinance affords adequate due process protection, we pretermit consideration of the merits of this assignment of error. This issue, along with the plaintiffs' due process and evidentiary challenges, is remanded back to the trial court for consideration.
Conclusion
Wherefore, based on the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings in accordance with this decision.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
