CITY OF CLEVELAND, Appellee, v. POSNER, Appellant, 188 Ohio App. 3d 421

Mary J. Boyle, Presiding Judge. {¶ 1} Defendant-appellant, Jeffrey Posner, appeals from a judgment of the Cuyahoga County Common Pleas Court affirming an administrative decision of the Cleveland Municipal Court’s Parking Violations Bureau, Photo Safety Division. The administrative hearing officer found Posner liable for a speeding violation pursuant to Cleveland Codified Ordinance (“C.C.O.”) 413.031, which sets forth the automated-traffic-camera enforcement system of plaintiff-appellee, the city of Cleveland (“the city”).

He raises three assignments of error for our review: {¶ 2} “[1] The court below erred in failing to address appellant’s arguments. {¶ 3} “[2] The procedure utilized below allowed conviction upon insufficient and improperly allowed evidence. {¶ 4} “[3] The procedure below violated appellant’s due process rights by providing for conviction upon improperly allowed evidence without the right to confront actual witnesses and compel appearance and testimony.” {¶ 5} Although Posner raises three assignments of error, he presents only one argument, stating that his “assignments of error are somewhat related, as the evidentiary issues implicate due process rights, and will be argued together.” {¶ 6} App.R. 16(A)(7), however, requires “[a]n argument containing the contention of the appellant with respect to each assignment of error.” While appellate courts may jointly consider two or more assignments of error, the parties do not have the same option in presenting their arguments.

See, e.g., In re Jack Fish & Sons Co., Inc., 159 Ohio App.3d 649, 2005-Ohio-545, 825 N.E.2d 171. Appellate courts may disregard any assignments of error that an appellant fails to separately argue. See App.R. 12(A)(2). Thus, we would be within our discretion to simply disregard all of Posner’s assignments of error and summarily affirm the trial court. See Jack Fish; Park v. Ambrose (1993), 85 Ohio App.3d 179, 186, 619 N.E.2d 469; State v. Caldwell (1992), 79 Ohio App.3d 667, 677, 607 N.E.2d 1096, at fn. 3. {¶ 7} Nonetheless, we will address Posner’s sole argument on appeal.

As Posner indicates, all of his assignments of error address evidentiary issues infringing on his due-process rights. Essentially, Posner argues that the common pleas court erred by not considering his constitutional due-process challenge — based on evidentiary issues — to the city’s automated-traffic-camera enforcement system. {¶ 8} Finding merit to his appeal, we reverse and remand. Standard of Review {¶ 9} In Henley v.

Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 735 N.E.2d 433, the Ohio Supreme Court distinguished the standard of review to be applied by common pleas courts and appellate courts in R.C.

Chapter 2506 administrative appeals. The court stated: {¶ 10} “The common pleas court considers the ‘whole record,’ including any new or additional evidence admitted under R.C. 2506.03, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. * * * {¶ 11} “The standard of review to be applied by the court of appeals in an R.C. 2506.04 appeal is ‘more limited in scope.’ * * * Kisil v.

Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 465 N.E.2d 848. ‘This statute grants a more limited power to the court of appeals to review the judgment of the common pleas court only on “questions of law,” which does not include the same extensive power to weigh “the preponderance of substantial, reliable and probative evidence,” as is granted to the common pleas court.’ Id. at fn. 4. ‘It is incumbent on the trial court to examine the evidence.

Such is not the charge of the appellate court. * * * The fact that the court of appeals, or this court, might have arrived at a different conclusion than the administrative agency is immaterial. Appellate courts must not substitute their judgment for those of an administrative agency or a trial court absent the approved criteria for doing so.’ Lorain City School Dist. Bd. of Edn. v. State Emp.

Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267.” (Emphasis deleted.) Henley, 90 Ohio St.3d at 147, 735 N.E.2d 433. {¶ 12} Thus, this court will review the judgment of the trial court only to determine whether the lower court abused its discretion in finding that the administrative order was supported by reliable, probative, and substantial evidence. See Wolstein v. Pepper Pike City Council, 156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75. Constitutional Challenge: Facial v. As Applied {¶ 13} Posner raised several evidentiary, due-process issues to the common pleas court.

He argued that the hearing officer’s decision was unlawful and unconstitutional because the procedure and admission of evidence violated his due-process rights and could not be used as a basis for a valid decision.

He further argued that he was entitled to evidentiary and due-process safeguards and that the evidence used against him was unsworn, unscientific, and unsubstantiated, and was not authenticated. {¶ 14} The common pleas court determined that Posner’s arguments were “principally based on claims that the underlying ordinance is invalid, unlawful, and unconstitutional.” It refused to address his constitutional arguments because “the validity of the underlying ordinance is not for this court to determine.” It further stated, “The scope of this court’s review is limited to the validity of the hearing officer’s decision.” The common pleas court then affirmed the decision of the administrative hearing officer, finding that it was not unconstitutional, illegal, arbitrary, capricious, or unreasonable and was supported by substantial, reliable, and probative evidence. {¶ 15} The city contends that the trial court had no jurisdiction to address Posner’s constitutional claims.

Specifically, the city argues that the trial court correctly determined that Posner challenged the constitutionality of C.C.O. 413.031 only on its face. But Posner maintains that he raised both a facial challenge to C.C.O. 413.031 and an “as applied” challenge. Thus, Posner argues that the trial court erred by not considering his evidentiary, due-process arguments, as applied to his case. {¶ 16} A statute’s constitutionality can be challenged on its face or on the particular set of facts to which the statute has been applied. Harold v.

Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph four of the syllabus. When a statute is challenged on its face, the challenger must demonstrate that no set of circumstances exists under which the statute would be valid. Id., citing United States v. Salerno (1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. The fact that the statute could operate unconstitutionally under some given set of facts or circumstances is insufficient to render it wholly invalid.

Id. “Conversely, when a statute is challenged as applied, the challenger must establish by clear and convincing evidence an existing set of facts that renders the statute invalid when applied to those facts.” Smith v. Jones, 175 Ohio App.3d 705, 2007-Ohio-6708, 889 N.E.2d 141, ¶ 14, citing Harold, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, at ¶ 38. {¶ 17} This court has previously found that “[a] facial constitutional challenge to a[n] * * * ordinance is improper in the context of an administrative appeal.” Cappas & Karas Invest., Inc. v. Cleveland Bd. of Zoning Appeals, 8th Dist.

No. 85124, 2005-Ohio-2735, 2005 WL 1303346, ¶ 12, citing Martin v. Independence Bd. of Zoning Appeals, 8th Dist. No. 81340, 2003-Ohio-2736, 2003 WL 21234910. “[T]he proper vehicle for challenging the constitutionality of an ordinance on its face is a declaratory judgment action.” Id. But it is well established that in an administrative appeal, appellants can challenge the constitutionality of an ordinance as applied to them case. Wilt v. Turner, 8th Dist. No. 92707, 2009-Ohio-3904, 2009 WL 2403567, citing Grossman v.

Cleveland Hts. (1997), 120 Ohio App.3d 435, 441, 698 N.E.2d 76. {¶ 18} After reviewing the record in the case sub judice, it is clear that Posner raised “as applied” challenges, as well as facial challenges, to the constitutionality of C.C.O. 413.031. Throughout his brief to the common pleas court, he argued that C.C.O. 413.031 was unconstitutional on its face and as applied to his case. He raised several specific arguments challenging the evidence used against him.

Although the common pleas court had no jurisdiction to determine a facial challenge to the ordinance, it should have addressed Posner’s “as applied” arguments. {¶ 19} We therefore reverse the decision of the trial court and remand the cause with instructions to address Posner’s constitutional due-process challenges to C.C.O. 413.031 “as applied” to his case. Judgment reversed and cause remanded. Sweeney, J., concurs. Jones, J., dissents.