     Case: 11-30711     Document: 00511882439         Page: 1     Date Filed: 06/11/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 11, 2012

                                       No. 11-30711                        Lyle W. Cayce
                                                                                Clerk

EVELYN ALEXIS BEVIS, Individually and on behalf of a class of persons
similarly situated; SCOTT I. ZATZKIS; JULIETTE M. NEVES; DAVID D.
KERVIN, JR.; CHRISTINA H. COBLE,


                                                  Plaintiffs-Appellants
v.

CITY OF NEW ORLEANS, through its administration and its counsel;
AMERICAN TRAFFIC SOLUTIONS, INC.,


                                                  Defendants-Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-4161


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiffs-Appellants (“Plaintiffs”) appeal the district court’s judgment
dismissing their constitutional challenge to Defendant-Appellee City of New
Orleans’ “Automated Traffic Enforcement System Ordinance” (“the Ordinance”).


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-30711

The Ordinance permits the city to use automated cameras to detect speeding
violations and cars entering an intersection against a red light. The Plaintiffs
contend on appeal that the district court erred in concluding that the Ordinance
(1) is civil in nature, (2) affords constitutionally adequate due process, and (3)
does not violate the Constitution’s Ex Post Facto Clause. We AFFIRM.
                            I. Standard of Review
      We review a district court’s dismissal for failure to state a claim de novo.
Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008). We
“accept[] all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff,” id. (internal quotation marks and citation omitted), but “we are
not bound to accept as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944 (1986). Although the
plaintiff’s factual allegations need not be detailed, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007), he must go beyond legal “labels
and conclusions” and relate the “circumstances, occurrences, and events” he
believes support his claim. Id. at 555, 556 n.3, 1965 & n.3 (internal quotation
marks and citation omitted).
                                II. Background
      The City engaged a private contractor, Defendant-Appellee American
Traffic Solutions (“ATS”) to install and maintain the cameras. ATS staff view
the footage and forward potential violations to the New Orleans Police
Department, whose officers then decide whether to issue a citation to the
vehicle’s owner. The Ordinance states that “[t]he imposition of a civil penalty
. . . is an alternative method of detecting and deterring red-light violations and
speeding.” Accordingly, no fine may be imposed if at the time of the violation the
operator of the vehicle was pulled over and either arrested or issued a traffic
ticket. Also, no fine may be imposed on the vehicle’s owner if the vehicle was
reported stolen and had not been recovered at the time the violation occurred.

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                                   No. 11-30711

If the police decide to issue a citation, a notice is sent to the vehicle’s registered
owner charging that the violation occurred and stating the amount of the fine.
The fine is $105 for entering an intersection against a red light, and $300 for
overtaking a school bus while it’s stop signals are active. For speeding, the fine
is between $45 and $205, depending on the excess speed. The fine can also
include up to $80 in enforcement costs.
      The notice relates the date, time, and location of the violation, and it
includes images from the video recording of the violation, and a website address
where the full video can be viewed. The notice also explains procedures for
contesting the fine, and procedures for payment by mail, telephone, or through
the website. The owner may contest the violation by appearing before an
administrative officer on or before a hearing date stated in the notice. If the
hearing date passes and the owner has failed to either pay the fine or to appear
and contest liability, then $75 is added to the fine and the City may initiate
collection efforts. The notice is presumed to have been received by the owner five
days after it was sent, but it is an affirmative defense if “[t]he person who
received the notice of violation was not the owner of the motor vehicle at the
time of the violation . . . .”
      An administrative officer employed by the city presides at the hearing,
where the owner may “respond and present evidence on all issues of fact
involved and argument on all issues of law involved.” The owner may request
that witnesses be subpoenaed, and examine witnesses who testify. No mens rea
is required for liability. Owner and operator are jointly and severally liable for
the fine, except that it is an affirmative defense if the operator was driving the
vehicle without the owner’s consent. A non-operating owner who is held liable
may recover the amount of the fine from the operator. The owner may seek
judicial review of an adverse decision by filing a petition in the Orleans Parish
Civil District Court within 30 days.

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                                       No. 11-30711

      An earlier version of the ordinance delegated the initial enforcement
decision to the contractor, but that arrangement violated the City’s Home Rule
Charter, and a state court enjoined the law’s enforcement until the current
ordinance was passed. The current ordinance is retroactive to the date of the
original law’s passage.
                                     III. Discussion
      Plaintiffs contend that the district court erred in concluding that the
Ordinance imposes civil rather than criminal penalties. That determination
requires courts to look initially to the legislature’s intention. Hudson v. United
States, 522 U.S. 93, 99, 118 S. Ct. 488, 493 (1997). The Ordinance repeatedly
describes the fine as a civil penalty. However, a penalty can be criminal in
nature, notwithstanding the legislature’s intention, if the statutory scheme is
sufficiently punitive in purpose or effect.             Id.    The Supreme Court has
articulated seven factors that serve as “useful guideposts” for that
determination.1 Id. The only factor favoring Plaintiffs’ position is the fact that
some of the conduct that violates the ordinance would also be punishable as a
crime, if done with the requisite mental state. That is not enough to overcome
legislative intent. United States v. Ward, 448 U.S. 242, 249-50, 100 S. Ct. 2636,
2642 (1980). We agree with the district court that the Ordinance imposes a civil
penalty.      That conclusion disposes of the Plaintiffs’ contention that the


      1
          The factors are:

     (1) Whether the sanction involves an affirmative disability or restraint; (2) whether
     it has historically been regarded as a punishment (3) whether it comes into play
     only on a finding of scienter; (4) whether its operation will promote the traditional
     aims of punishment-retribution and deterrence; (5) whether the behavior to which
     it applies is already a crime; (6) whether an alternative purpose to which it may
     rationally be connected is assignable for it; and (7) whether it appears excessive
     in relation to the alternative purpose assigned.

Hudson, 522 U.S. at 99-100, 118 S. Ct. at 493 (internal quotation marks and citation
removed).

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                                       No. 11-30711

Ordinance violates the Ex Post Facto Clause, U.S. CONST. art. I, § 10, cl. 1, which
applies only to criminal sanctions. Smith v. Doe, 538 U.S. 84, 105-06, 123 S. Ct.
1140, 1154 (2003).
       We next consider Plaintiffs’ contention that the Ordinance does not supply
constitutionally adequate process.             The constitutional adequacy of the
Ordinance’s procedures is assessed by balancing the private and governmental
interests concerned. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893,
902-03 (1976). We consider, first, “the private interest that will be affected by
the official action.” Id. at 335, 96 S. Ct. at 903. In this case, the maximum fine
is the relatively minor amount of $380, or $455 if the payment is overdue. Next,
we consider “the risk of an erroneous deprivation” under the procedures
provided. Id. Plaintiffs do not challenge any specific aspect of the procedures
governing the administrative hearing the Ordinance provides. They contend
that the hearing officer is not neutral, but a presiding official’s being an
employee of the municipal executive does not alone offend due process.2
Plaintiffs also argue that requiring a driver to file a civil action in order to
challenge the outcome of the initial hearing deprives them of due process
because of the expense of initiating the civil action.                However, unless a
fundamental interest is at stake, the due process clause allows states to restrict
access to judicial review of civil administrative proceedings. See M.L.B. v. S.L.J.,
519 U.S. 102, 113, 117 S. Ct. 555, 562 (1996). No fundamental interest is
involved here.3

       2
         See SDJ, Inc. v. City of Hous., 837 F.2d 1268, 1278 (5th Cir. 1988) (ordinance giving
police chief power to determine whether to issue license to sexually oriented businesses does
not offend due process because ordinance allowed judicial review and there was no evidence
that the police chief was “inherently not neutral”).
       3
        See Ortwein v. Schwab, 410 U.S. 656, 659-60 93 S. Ct. 1172, 1174-75 (1973) (no due-
process right to waiver of fees for judicial review of administrative welfare-benefits
determination, because right to increased welfare payments not a fundamental interest);
Seoane v. Ortho Pharm., Inc., 660 F.2d 146, 151 (5th Cir. 1981) (right to recover for injuries

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                                        No. 11-30711

       Finally, the private interests and risk of error are balanced against “the
Government’s interest, including the function involved and the fiscal and
administrative burdens that . . . additional or substitute procedural
requirement[s] would entail.” Mathews, 424 U.S. at 335, 96 S. Ct. at 903. The
City’s interest is to reduce the risk of road accidents. Though only a fraction of
traffic violations cause an accident, the costs of even a low-speed collision can be
severe, particularly if a pedestrian is struck. The features of the Ordinance’s
adjudicatory scheme raised in this appeal fall comfortably within the “great
leeway” given to governments in “protect[ing] public health and safety.”4 See
Mackey, 443 U.S. at 17, 99 S. Ct. at 2620.
       AFFIRMED.




caused by medical malpractice not a fundamental interest).
       4
          We express no opinion regarding the due process adequacy of features of the
Ordinance’s procedures that the plaintiffs did not specifically raise in their appellate briefing
(e.g., the Ordinance’s distribution of burdens of proof and the potential liability for allowing
another person to drive one’s vehicle).

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