Baker v. Montgomery County

• Decision Date: 27 October 2011
• Docket Number: 2010.,Sept. Term,No. 1038,1038
• Citation: 30 A.3d 267,201 Md.App. 642
• Parties: Matthew C. BAKER, et al.v.MONTGOMERY COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

201 Md.App. 642

30 A.3d 267

Matthew C. BAKER, et al.

v.MONTGOMERY COUNTY, Maryland, et al.

No. 1038

Sept. Term

2010.

Court of Special Appeals of Maryland.

Oct. 27, 2011.

Stephen H. Ring, Gaithersburg, MD (William F. Askinazi, Germantown, MD and Toby N. Byrd, Timothy P. Leahy, Joshua Winger, Byrd & Byrd, Bowie, MD), on the brief, for appellant.Charles L. Frederick, Rockville, MD & Kevin Karpinski, Baltimore, MD (Marc P. Hansen, Co. Atty., Patricia P. Via, Division Chief, Rockville, MD and Sandra D. Lee, Karpinski, Colaresi & Karp, PA, Baltimore, MD), on the brief, for appellee.Panel: ZARNOCH, GRAEFF and WATTS, JJ.WATTS, J.

This appeal arises from the Circuit Court for Montgomery County's grant of summary judgment in favor of Montgomery County (the “ County”), the Mayor and Council of Rockville (“Rockville”), the City of Gaithersburg (“Gaithersburg”), and Chevy Chase Village (“Chevy Chase”), appellees,¹ against Matthew C. Baker; Thomas J. Wheatley; Aristone L. Pereira, Jr.; Johnny R. Garza; Kenneth K. Sleeman; David A. Schiller; Walter McKee; Janet Marburger; and those similarly situated, collectively referred to as appellants. The lawsuit in this matter was initiated by appellants, all of whom received speeding citations resulting from photographs taken by speed monitoring systems located in appellees' respective jurisdictions. Appellants claim that appellees violated Md. Ann.Code. Transportation Article (“T.A.”) § 21–809 by entering into contracts in which contingent fees were paid to ACS State & Local Solutions Inc., (“ACS”), the contractor who allegedly operated appellees' speed monitoring systems, and as such, the fines were unlawful.

Appellants raised the following issues, which we have rephrased and reordered ² as follows:

I. Does a private cause of action exist for appellants to challenge appellees' alleged misapplication of T.A. § 21–809?

II. Does T.A. § 21–809 apply equally to the County and the Municipalities?

III. Were the contracts between appellees and ACS in violation of T.A. § 21–809?

IV. Did appellants waive the right to challenge T.A. § 21–809 by paying the $40 citation fines?

V. Does the Local Government Torts Claims Act (“LGTCA”) notice requirement apply in this case and, if so, did appellants comply?

We answer the first question in the negative and, as such, we need not address the other issues raised by appellants. We shall, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, the Maryland General Assembly passed House Bill (“H.B.”) 443 and enacted T.A. § 21–809, granting Montgomery County authority to place speed cameras throughout the County and impose a civil penalty not to exceed $40.00 in the event of a violation of the subtitle. T.A. § 21–809 (2006) ³ provides:

(a) Definitions.—(1) In this section the following words have the meanings indicated.

(2) “Local police department” means:

(i) The Montgomery County Department of Police; and

(ii) The police department of any municipal corporation in Montgomery County.

(3)(i) “Owner” means the registered owner of a motor vehicle or a lessee of a motor vehicle under a lease of 6 months or more.

(ii) “Owner” does not include:

1. A motor vehicle rental or leasing company; or

2. A holder of a special registration plate issued under Title 13, Subtitle 9, Part III of this article.

(4) “Recorded image” means an image recorded by a speed monitoring system:

(i) On:

1. A photograph;

2. A microphotograph;

3. An electronic image;

4. Videotape; or

5. Any other medium; and

(ii) Showing:

1. The rear of a motor vehicle;

2. At least two time-stamped images of the motor vehicle that include the same stationary object near the motor vehicle; and

3. On at least one image or portion of tape, clearly identifying the registration plate number of the motor vehicle.

(5) “Speed monitoring system” means a device with one or more motor vehicle sensors producing recorded images of motor vehicles traveling at speeds at least 10 miles per hour above the posted speed limit.

(6) “Speed monitoring system operator” means an individual who operates a speed monitoring system.

(b) In general.—(1) This section applies to a violation of this subtitle that occurs in Montgomery County recorded by a speed monitoring system that meets the requirements of this subsection and has been placed:

(i) On a highway in a residential district as defined in § 21–101 of this title:

1. With a maximum posted speed limit of 35 miles per hour; and

2. That has a speed limit that was established using generally accepted traffic engineering practices; or

(ii) In a school zone established under Section 21–803.1 of this subtitle.

(2)(i) A speed monitoring system operator shall complete training by a manufacturer of speed monitoring systems in the procedures for setting up and operating the speed monitoring system.

(ii) The manufacturer shall issue a signed certificate to the speed monitoring system operator upon completion of the training.

(iii) The certificate of training shall be admitted as evidence in any court proceeding for a violation of this section.

(3) A speed monitoring system operator shall fill out and sign a daily set-up log for a speed monitoring system that:

(i) States that the speed monitoring system operator successfully performed the manufacturer-specified self-test of the speed monitoring system prior to producing a recorded image;

(ii) Shall be kept on file; and

(iii) Shall be admitted as evidence in any court proceeding for a violation of this section.

(4)(i) A speed monitoring system shall undergo an annual calibration check performed by an independent calibration laboratory.

(ii) The independent calibration laboratory shall issue a signed certificate of calibration after the annual calibration check, which:

1. Shall be kept on file; and

2. Shall be admitted as evidence in any court proceeding for a violation of this section.

(c) Civil penalty.—(1) Unless the driver of the motor vehicle received a citation from a police officer at the time of the violation, the owner or, in accordance with subsection (f)(4) of this section, the driver of a motor vehicle is subject to a civil penalty if the motor vehicle is recorded by a speed monitoring system while being operated in violation of this subtitle.

(2) A civil penalty under this subsection may not exceed $40.

(3) For purposes of this section, the District Court shall prescribe:

(i) A uniform citation form consistent with subsection (d)(1) of this section and § 7–302 of the Courts Article; and

(ii) A civil penalty, which shall be indicated on the citation, to be paid by persons who choose to prepay the civil penalty without appearing in District Court.

(d) Citation.—(1) Subject to the provisions of paragraphs (2) through (4) of this subsection, the local police department shall mail to the owner, liable under subsection (c) of this section, a citation that shall include:

(i) The name and address of the registered owner of the vehicle;

(ii) The registration number of the motor vehicle involved in the violation;

(iii) The violation charged;

(iv) The location where the violation occurred;

(v) The date and time of the violation;

(vi) A copy of the recorded image;

(vii) The amount of the civil penalty imposed and the date by which the civil penalty should be paid;

(viii) A signed statement by a duly authorized agent of the local police department that, based on inspection of recorded images, the motor vehicle was being operated in violation of this subtitle;

(ix) A statement that recorded images are evidence of a violation of this subtitle;

(x) Information advising the person alleged to be liable under this section of the manner and time in which liability as alleged in the citation may be contested in the District Court; and

(xi) Information advising the person alleged to be liable under this section that failure to pay the civil penalty or to contest liability in a timely manner:

1. Is an admission of liability;

2. May result in the refusal by the Administration to register the motor vehicle; and

3. May result in the suspension of the motor vehicle registration.

(2) The local police department may mail a warning notice instead of a citation to the owner liable under subsection (c) of this section.

(3) Except as provided in subsection (f)(4) of this section, the local police department may not mail a citation to a person who is not an owner.

(4) Except as provided in subsection (f)(4) of this section, a citation issued under this section shall be mailed no later than 2 weeks after the alleged violation if the vehicle is registered in this State, and 30 days after the alleged violation if the vehicle is registered in another state.

(5) A person who receives a citation under paragraph (1) of this subsection may:

(i) Pay the civil penalty, in accordance with instructions on the citation, directly to the Montgomery County Department of Finance; or (ii) Elect to stand trial in the District Court for the alleged violation.

(e) Evidence.—(1) A certificate alleging that the violation of this subtitle occurred and the requirements under subsection (b) of this section have been satisfied, sworn to, or affirmed by a duly authorized agent of the local police department, based on inspection of recorded images produced by speed monitoring system, shall be evidence of the facts contained in the certificate and shall be admissible in a proceeding alleging a violation under this section without the presence or testimony of the speed monitoring system operator who performed the requirements under subsection (b) of this section.

(2) If a person who received a citation under subsection (d) of this section desires the speed monitoring system operator to be present and testify at trial, the person shall notify the court and the State in writing no later than 20 days before trial.

(3) Adjudication of liability shall be based on a preponderance of evidence.

(f) Defenses.—(1) The District Court may consider in defense of a...