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ORDINANCE NO. 1752
AN ORDINANCE OF THE CITY OF BOZEMAN, MONTANA,
PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED
BY REVISING CHAPTER 10 PROVIDING FOR THE ADDITION OF
AUTOMATED TRAFFIC SIGNAL CAMERA ENFORCEMENT,
WHEREAS, when a motor vehicle which proceeds into an intersection at a time when the
traffic-control signal governing that vehicle's lane and direction of travel is emitting a steady red
signal causes damage to the traveling public by endangering motor vehicle operators and
pedestrians, decreasing the efficiency of traffic control and traffic flow efforts, and by increasing
the number of serious accidents to which public safety agencies must respond at the expense of,
and injury to, the taxpayers.
WHEREAS, the City desires to engage in using services from a specialized contractor to
install, operate, and maintain cameras at identified signalized intersection approaches, to include
processing of instances when a vehicle proceeds into and through the intersection after the signal
emits a red "stop" signal.
WHEREAS, the most feasible manner to address violations captured by these cameras is
to allow these unsafe actions to be considered a civil "municipal infraction", rather than criminal
violation.
NOW, THEREFORE, BE IT ORDAINED by the City Commission of the city of
Bozeman, Montana:
Section 1
That Title 10 of the Bozeman Municipal Code shall be amended by adding Chapter 10.10, and
Sections 10.10.310 through 10.10.380 and shall read as follows:
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Chapter 10.10
AUTOMATED TRAFFIC SIGNAL CAMERA ENFORCEMENT
Sections:
10.10.310 Definitions
10.10.320 Traffic Control Signal Legend
10.10.330 Imposition of Civil Penalty for Municipal Infraction
10.10.340 Enforcement Procedures
10.10.350 Civil Action Hearing
10.10.360 Order
10.10.370 Effect of Liability
10.10.380 Traffic Safety Fund
10.10.310 Definitions.
In this section:
1) Action —A special proceeding of a civil nature.
2) Approach — One specific location of an intersection where a photographic
Traffic Signal Enforcement System will be used to monitor when drivers of
vehicles fail to obey red "stop" signals.
3) Authorized emergency vehicle - a vehicle of a governmental or volunteer
fire agency, emergency vehicles of municipal departments or public utilities
that are designated or authorized as emergency vehicles, ambulance or a
vehicle used in the service of any law enforcement agency.
4) Department-the Police Department of the City of Bozeman, Montana.
5) Hitzhway - the entire width between the boundary lines of every publicly
maintained way when any part of the publicly maintained way is open to the
use of the public for purposes of vehicular travel.
6) Intersection - the area embraced within the prolongation or connection of
the lateral curb lines or if there are no curb lines then the lateral boundary
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lines of the roadways of two highways that join one another at or
approximately at right angles or the area within which vehicles traveling
upon different highways joining at any other angle may come in conflict.
7) Motor Vehicle - a vehicle propelled by its own power and designed or used
to transport persons or property upon the highways of the State; and a
quadricycle if it equipped for use on the highways of the State.
8) Municipal Infraction - a non-criminal violation of Section 10.10.320
Traffic Control Signal Legend punishable by a civil penalty.
9) Owner, - the owner of a motor vehicle as shown on the motor vehicle
registration records of the Motor Vehicle Division, Montana Department of
Justice (MTDMV-DOJ) or the analogous department or agency of another
state.
10) Photographic Traffic Signal Enforcement System - a system that:
a) is a device with one or more motor vehicle sensors working in
conjunction with a red light signal to produce recorded images and
recorded video of motor vehicles entering an intersection against a
red signal indication in violation of Section 10.10.320 of this
Chapter; and
b) at least three of the recorded images consisting of:
i) A first image that will clearly show the system location
including all pertinent lanes of traffic, the traffic control
signal, pertinent traffic control signs and the offending
vehicle prior to entering the intersection with its front tires
before the stop mark line while the red phase of the traffic
control signal is clearly illuminated and visible.
ii) A second image that will clearly show the progression of the
violation and system location including all pertinent lanes of
traffic, the traffic control signal, pertinent traffic control
signs and the offending vehicle after entering the
intersection while the red phase of the traffic control signal
is clearly illuminated and visible
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iii) A third image that will clearly show a close-up or zoomed
image of the license plate attached to the rear of the motor
vehicle.
c) the recorded video consists of:
i) an approximate twelve second recorded video of the system
location and each municipal infraction that occurs clearly
showing the full movement of the offending vehicle thru the
infraction that was captured in the still images.
9) Recorded Image - an image recorded by a photographic traffic monitoring
system automatically recorded on a photograph or digital image.
11) Recorded Video -video footage recorded by a photographic traffic
monitoring system automatically recorded in a digital manner.
12) Stop Mark Line—Painted line on an intersection approach indicating to
driver's the final location to stop for a red traffic signal.
12) System Location - the approach to an intersection toward which a
photographic traffic monitoring system is directed and in operation.
13) Traffic-Control Signal - a device, whether manually, electrically, or
mechanically operated, by which traffic is alternately directed to stop,
reduce speed or proceed through an intersection.
10.10.320 Traffic Control Signal Legend
Except for lane use control signals and special pedestrian control signals carrying a legend,
whenever traffic is controlled by traffic control signals exhibiting different colored lights
or colored lighted arrows successively one at a time or in combination, only the colors
green, red, and yellow may be used. The lights indicate and apply to drivers of vehicles as
follows:
1) GREEN SIGNAL
a) Vehicular traffic facing a circular green signal may proceed straight through
or turn left or right unless a traffic control device at the approach of an
intersection prohibits either turn. However, vehicular traffic, including
vehicles turning right or left, must yield the right-of-way to other vehicles
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or pedestrians lawfully within the intersection at the time the signal is
exhibited.
b) Vehicular traffic facing a green arrow signal shown alone or in combination
with another indication may cautiously enter the approach of an intersection
only to make either the movement indicated by the arrow or another
movement permitted by another indication shown simultaneously.
Vehicular traffic executing the movements permitted by this subsection
must yield the right-of-way to pedestrians lawfully within an adjacent
crosswalk and to other traffic lawfully using the intersection.
2) YELLOW SIGNAL
a) Vehicular traffic facing a steady circular yellow or yellow arrow signal is
warned that the traffic movement permitted by the related green signal is
being terminated or that a red signal will be exhibited immediately
thereafter. Vehicular traffic may not enter the intersection when the red
signal is exhibited after the yellow signal.
3) RED SIGNAL
a) Vehicular traffic facing a steady circular red signal must stop at a marked
stop bar. If there is not a marked stop bar,vehicular traffic must stop before
entering the crosswalk on the near side of the intersection. If there is not a
marked crosswalk, vehicular traffic must stop before entering the
intersection and, except as provided in subsection (3)(c), must remain
standing until an indication to proceed is shown.
b) Vehicular traffic facing a steady red arrow signal may not enter the
intersection to make the movement indicated by the arrow and must stop at
a marked stop line unless the traffic is entering the intersection to make a
movement indicated by another signal. If there is not a marked stop line,
vehicular traffic must stop before entering the crosswalk on the near side of
the intersection. If there is not a marked crosswalk, vehicular traffic must
stop before entering the intersection and must remain standing until an
indication is shown that permits movement.
c) Except when a traffic control device is in place that prohibits a turn,
vehicular traffic facing a steady circular red signal may cautiously enter the
intersection to turn right after stopping as required under subsection
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4) Failure to comply with Provisions listed in Section 10.10.320 shall be considered a
Municipal Infraction as defined in Section 10.10.310 of this Chapter.
10.10.330 Imposition of Civil Penalty for Municipal Infraction
1) Except as provided in Section 10.10.350 below, the owner of a motor vehicle, who was
the owner of that vehicle at the date and time of the violation, is accountable for a
municipal infraction occurring involving the owner's vehicle and is liable for a civil
penalty of not less than One Hundred Thirty-Five ($135), nor more than Three
Hundred Dollars ($300), if the motor vehicle proceeds into an intersection at a System
Location at a time when the traffic control signal for that motor vehicle's lane and
direction of travel is emitting a steady red signal or in violation of Section 10.10.320 of
this chapter.
10.10.340 Enforcement procedures
1) The Department may enforce and administer this ordinance, or any parts thereof, through
one or more contractors. The actions which can be used to enforce the issuing of a
municipal infraction, payment of the civil penalty and related fees may consist of, but are
not limited to, reporting the debt to collection agencies/credit reporting agencies, and/or
initiating civil actions for collection.
2) In order to impose a civil penalty under this article,the Department itself, or through one or
more contractors, shall mail by depositing in the U.S. mail with sufficient postage a notice
of municipal infraction to the owner of the motor vehicle liable for the civil penalty not
later than the 30`h day after the date the violation is alleged to have occurred to:
a) the owner's address as shown on the registration records of the
MTDMV-DOJ; or
b) if the vehicle is registered in another state,the owner's address as shown on
the motor vehicle registration records of the department or agency of the other state
analogous to the MTDMV-DOJ.
c) A notice of Municipal Infraction issued under this article shall contain the
following:
(1) a description of the Municipal Infraction alleged;
(2) the license number and issuing state of the motor vehicle involved in
the Municipal Infraction;
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(3) the name and address of owner of the motor vehicle involved in the
Municipal Infraction;
(4) the date, time and location of the Municipal Infraction;
(5) a copy of a recorded image of the vehicle involved in the Municipal
Infraction;
(6) notice of internet web access and password to view recorded video
of the Municipal Infraction;
(7) the amount of the civil penalty to be imposed for the Municipal
Infraction;
(8) the date by which the civil penalty must be paid;
(9) a statement that the person named in the notice of Municipal
Infraction may pay the civil penalty in lieu of appearing at an
administrative adjudication hearing;
(10) information that informs the person named in the notice of
Municipal Infraction:
i) of the right to contest the imposition of the civil penalty in an
civil action hearing;
ii) of the manner and time in which to contest the imposition of
the civil penalty; and
iii) that failure to pay the civil penalty or to contest liability is an
admission of liability; and
(11) a statement that a recorded image and recorded video is evidence in
a proceeding for the imposition of a civil penalty;
(12) that payment in full is due no later than on the 2001 day after the date
of the notice, unless the Municipal Infraction is contested in
accordance with Section 10.10.350;
(13) any other information deemed necessary by the department.
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3) A notice of Municipal Infraction under this article is presumed to have been received on the
5th day after the date the notice of Municipal Infraction is mailed.
4) In lieu of issuing a notice of Municipal Infraction, the Department may mail a warning
notice to the owner.
5) This ordinance does not abrogate or impair enforcement of existing traffic laws by a police
officer for a violation committed in the officer's presence. Specifically, if a police officer
personally and contemporaneously observes a traffic violation, the police officer may stop
the vehicle and issue a citation under state law or the Bozeman Traffic Code in the usual
manner.
6) In lieu of mailing the notice of Municipal Infraction, the Department may cause to be
personally served upon the owner of the motor vehicle liable for the civil penalty or the
person nominated by the vehicle owner as the party responsible for the Municipal
Infraction notice of the Municipal Infraction. Personal service may be performed by any
person over the age of 18 years. The process server shall complete a return of service for
each notice of Municipal Infraction served indicating the date, time, location and name of
the person served. All costs of personal service shall be recoverable upon conviction of
the Municipal Infraction. Personal service may be made within or without the state of
Montana.
10.10.350 Civil Action Hearing
1) A person who receives notice of violation may contest the imposition of the civil penalty
by requesting in writing a civil action hearing of the civil penalty. Such a written request
for a civil action hearing must be post-marked and mailed within twenty(20)days after the
receipt of the notice of Municipal Infraction,which must be received by the Department no
later than the 20`h day after the date on the notice of Municipal Infraction. Upon receipt of
a timely request,the Department shall notify the person of the date,time and location of the
civil action hearing. The civil action hearing shall be held before a City of Bozeman
Municipal Court Judge, or designee.
2) Failure to pay a civil penalty or to contest liability in within timelines established by this
chapter is an admission of liability in the full amount of the civil penalty assessed in the
notice of Municipal Infraction,and is a waiver of the right to contest or appeal the notice of
Municipal Infraction.
3) The civil penalty shall not be assessed if, after a hearing, the Municipal Court Judge, or
designee, enters a finding of no liability.
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4) In a civil action hearing,the issues must be proved at the hearing by a preponderance of the
evidence. The reliability of the photographic traffic signal enforcement system used to
produce the recorded image or recorded video of the violation may be attested to in a civil
action hearing by affidavit of an officer or employee of this City or the entity with which
the City contracts to install or operate the system and who is responsible for inspecting and
maintaining the system. An affidavit of an officer or employee of the City that alleges a
violation based on an inspection of the pertinent recorded image and recorded video, is
admissible in a proceeding under this chapter and is evidence of the facts contained in the
affidavit.
5) A person who is found liable after a civil action hearing or who requests a civil action
hearing and thereafter fails to appear at the time and place of the hearing may be held
liable for actual hearing costs in accordance with Montana Code Annotated 25-10-201
together with all actual costs of service of the notice of the Municipal Infraction either by
mail or personally. A person who is found liable for a civil penalty after a civil action
hearing,or who fails to appear, shall pay the civil penalty together with hearing and service
costs within 15 days of the hearing.
6) If at the time of the Municipal Infraction, the motor vehicle was in the care, custody or
control of another person,the owner may either accept responsibility or identify the driver
so the contractor can send a Notice of Municipal Infraction to the driver. If the owner
claims that another person was driving the vehicle at the time of the Municipal Infraction,
the owner must so indicate on the certificate and identify the person who was driving the
vehicle. The owner must provide a photocopy of the current driver's license of the
nominated person with the certificate. The owner must also provide a full name, current
address and phone number of the nominated person. The department may send,or cause a
contractor to send, a new Municipal Infraction Notice to the nominee. The effective date
of the Notice of Municipal Infraction sent to the nominee is the day notice is issued to the
nominee as indicated on the face of the new Municipal Infraction Notice. If the nominee
appeals denying he or she was the driver or defaults, the City may proceed against the
registered owner by issuing a subsequent Municipal Infraction Notice to the owner with the
effective date being the date so indicated on the face of the subsequent Municipal
Infraction Notice. If the City cannot assert jurisdiction over the nominee, the owner is
responsible, subject to the remaining defenses available in this article. Any owner who
admits a certificate does so under penalty of perjury or any other applicable penalties if any
information contained therein is knowingly false. Without limitation on the foregoing,
nomination may be used when:
a) The owner is the United States of America, State of Montana, County of
Gallatin, City of Bozeman or other governmental entity that owns a vehicle that
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was being driven by a natural person who was the employee, contractor or
agent of the governmental entity at the time of the alleged Municipal Infraction.
Said entities must nominate and identify the driver.
b) The owner is a place of business, corporation or other non-natural entity that
owns a vehicle that was being driven by a natural person who was the
employee, contractor or agent of the business, corporation or other non-natural
entity at the tune of the alleged Municipal Infraction. Said entities must
nominate and identify the driver.
c) The owner is an automobile rental business, automobile dealership or other
business entity that, in the ordinary course of business, leases vehicles to others
and the lessee was driving the vehicle at the time of the alleged Municipal
Infraction. Said entities must nominate and identify the driver.
d) The owner was not driving the vehicle at the time of the Municipal Infraction.
To assert the defense mentioned in this paragraph, the registered owner must
identify the actual driver and comply with the nomination provision above to
assert this defense.
7) It shall be an affirmative defense to the imposition of civil liability under this chapter,to be
proven by a preponderance of the evidence, that:
a) the traffic-control signal was not in proper position and sufficiently legible to an
ordinarily observant person,
b) the operator of the motor vehicle was acting in compliance with the lawful order or
direction of a police officer;
c) the operator of the motor vehicle violated the instructions of the traffic-control
signal so as to yield the right-of-way to an immediately approaching authorized
emergency vehicle or as part of a funeral procession;
d) the motor vehicle was being operated as an authorized emergency vehicle and that
the operator was acting in compliance with state statutes in operation thereof;
e) the motor vehicle was a stolen vehicle and being operated by a person other than the
owner of the vehicle without the effective consent of the owner,
(1) To demonstrate that the motor vehicle was stolen before the violation
occurred and was not under the control or possession of the owner at the
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time of the Municipal Infraction, the owner must submit proof that a report
concerning the stolen motor vehicle was filed with a law enforcement
agency.
f) the license plate depicted in the recorded image of the violation was a stolen plate
and being displayed on the motor vehicle other than the motor vehicle for which the
plate had been issued; or
(1) To demonstrate that the motor vehicle registration plates were stolen before
the violation occurred and the plates were not under the control or
possession of the owner at the time of the Municipal Infraction, the owner
must submit proof that a report concerning the stolen motor vehicle
registration plates was filed with a law enforcement agency.
10.10.360 Order
1) The Municipal Court Judge at any administrative adjudication hearing under this
article shall issue an order stating:
a) whether the person charged with the Municipal Infraction is liable for the
Municipal Infraction; and
b) if liable, the amount of any civil penalty, late penalty, and actual civil action
hearing costs assessed against the person. Upon full satisfaction of penalties
and costs, the department shall file a notice of full satisfaction with the
Municipal Court.
2) The orders issued under subsection (a) may be filed with the Department. The
Department shall keep the orders in a separate index and file. The orders may be
recorded using electronic or magnetic means.
10.10.370 Effect of Liability
I) The imposition of civil penalty under this article is not a criminal conviction for any
purpose, and is not reflected on the owner Is permanent driving record.
2) A civil penalty may not be imposed under this article on the owner of a motor vehicle if
the operator of the vehicle was arrested or was issued a criminal citation and notice to
appear by a law enforcement officer for the same violation.
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3) An owner who fails to pay the civil penalty or to contest liability for the penalty, in
accordance with timelines established in this chapter, is considered to admit liability
for the full amount of the civil penalty stated in the Municipal Infraction Notice mailed
to the person.
4) The City Attorney, or designee, is authorized to file suit to enforce collection of a civil
penalty imposed under this article. In addition to the amount of the civil penalty
collected, reasonable attorney's fees and court costs incurred in enforcing the
collection shall be recoverable in that action.
10.10,380 Traffic Safety Fund
The penalties, fines, and fees collected from the imposition of civil liability under this
article shall be deposited into a separate,traffic and pedestrian safety fund account hereby
established. Funds deposited into this account shall be expended first for the costs of the
system (payment to the contractor/vendor of the system, public relations, and general
implementation and operational costs associated with the program). Remaining funds
may be used in all areas of the city, not limited to specific intersections with red light
camera enforcement, for the following, including, but not limited to: equipment or
programs to enhance traffic and pedestrian safety, traffic related law enforcement, driver
education, and/or intersection safety improvements.
Section 2
Repealer
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of
the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force
and effect.
Section 3
Saviny,s Provision
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance.
Section 4
Severability
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That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 5
Effective Date
This ordinance shall be in full force and effect thirty(3) days after final adoption.
PASSED by the City Commission of the City of Bozeman, Montana on first reading at a
regular session thereof held on the 15th day of December 2008.
KAARN JACOBSON, Mayor
ATTEST:
STACY ULMEN
City Clerk
PASSED, ADOPTED AND APPROVED by the City Commission of the City of
Bozeman, Montana on second reading at a regular session thereof held on the 5'h day of January
2009. The effective date of this ordinance is February 5, 2009.
KAARN JACOBSON, Mayor
ATTEST:
STACY ULMEN
City Clerk
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APPROVED AS TO FORM:
J. ROBERT PLANALP
Interim City Attorney
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C,.ANDREWADAMEK BROWNING, KALECZYC,
CHAD E.ADAMS J.DANIEL EWETT
DANIEL J.AUERBACH BERRY AND HGVEN, P.C. IEYT K JLWETT
tiTANLEY T.KALEuZY(.
KDABERLY A.BE'ATTY TILI
IDM ATTORNEYS AT LAW I(A'nu.L'KIN
TROY L.BENIC IN
ON CATHEREA.LAL'ciHNERER
SARA S.BERI.
JFS4[E 4 LUTHER
LEO BERRY DAVID M.MCLEAN
BRAND-BOYAR MARK R.TAYLOR
LARLO CANTO' W.JOHN TIET[
MARK D.ETC CART Mailing Address Street Address CHAD R VANISKO
OLIVER H.UOE POST OFFICE BOX 1697 139 NORTH LAST CHANCE GULCH STEVEN T.WADE
ERICA R.GRINDE HELENA,MONTANA 59624 HELENA,MON'TANA 59601 LEGS,WARD
AIMEE URMOIJEZ TELEPHONE(406)443.6820 TELEFAX(406)443-6883 RYAN C.WILLMORE
bkbh@bkbh.com www.bkbh.com
R.STE•PHEN BROWN[Nu Tt fi.d
November 5, 2008
Molly Edwards
Redflex Traffic Systems
23751 N. 23rd Ave.
Pheonix,AZ 85085
RE: Legality of Red Light Camera Systems in Montana
Dear Molly:
We have been requested by Redflex Traffic Systems to express the following opinions in
connection with the proposed installation and operation of photographic traffic enforcement
devices, commonly known as "red light camera systems": (1) Does a Montana municipality
have the authority to implement and operate red light camera systems?; and (2) If municipalities
have this authority, does the installation and operation of a red light camera system violate the
Montana Constitution or any state statutes?
In such capacity, we have examined the following documents: the Montana Constitution;
the Montana Code Annotated; the Annotations to the Montana Code Annotated; we have done a
search for and have reviewed Montana court opinions and Montana Attorney General's opinions;
and cases from other states analyzing the legality of red light traffic systems in their jurisdictions.
However, we have not examined any proposed Bozeman city ordinance; Bozeman's self-
governing charter; any agreements between the state and a municipality; or any existing
municipal ordinances. We have otherwise undertaken no independent review or investigation of
the factual basis for this advice. We express no opinion as to the laws of any jurisdiction other
than the State of Montana.
Although the specific issue has never been analyzed by a Montana court, a review of
related cases and Attorney General's opinions supports the position that such a system would be
MS AWO>thCe
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Molly Edwards
RE: Legality of Red Light Camera Systems in Montana
November 5,2008
Page 2
allowed. See infra discussions of City of Missoula v. Shea, 202 Mont. 286, 661 P.2d 410 (1983);
45 Mont. Op. Atty. Gen. No. 7 (1993).1
Although not binding on Montana courts, other jurisdictions have had the opportunity to
rule on the validity of red light camera systems. Ohio upheld the use of a camera operated traffic
system which issued civil citations for speeding and running red lights. See State ex rel. Scott v.
City of Cleveland, 859 N.E.2d 923 (Ohio 2006); Mendenhall v. City of Akron, 881 N.E.2d 255
(Ohio 2008). Michigan has ruled that ordinances implementing red light traffic systems which
issue criminal penalties are invalid as they are inconsistent with the uniformity requirements of
state law and as such are preempted by state law. See State v. Kuhlman, 729 N.W.2d 577 (Mich.
2007).
SHORT ANSWER
Yes, Montana municipalities, both general power and self-governing forms of
government, have the authority under the Montana constitutional and statutory scheme to enact
ordinances providing for the implementation and operation of red light camera systems. The
exercise of this authority by local governments neither violates the Montana Constitution nor
Montana Statutes (Montana Code Annotated). A municipality's enactment of ordinances
providing for the installation and implementation of red light camera systems does not violate an
individual's right to privacy nor does it violate due process if the legislative intent of the
ordinance clearly shows the intent to impose absolute liability on the registered owner for red
light violations. Local governments are granted the authority to regulate traffic at a local level so
long as the regulation is consistent with state statutes. Careful drafting of municipal ordinances
implementing and operating a red light camera system would be required. Once the ordinances
are correctly drafted, the red light camera system should be in conformity with Montana law.
ANALYSIS
I. Montana municipalities have the general authority to implement and operate a
red light camera system.
In Montana, a municipality's authority to act is granted by the Montana Constitution and
statutes enacted by the Legislature. Under Montana law, Montana cities and towns may either
have self-governing powers or general powers. A municipality with self-governing powers is
considered a Home Rule city and has all powers not expressly denied it by the laws of the state.
A municipality with general powers is considered to have all the powers granted to it through the
Constitution and laws of the state. The Montana Constitution provides citizens of municipalities
the option to elect to be self-governing, meaning that the "adopti[on of] a self-government
charter [allows the municipality to] exercise any power not prohibited by this constitution, law,
or charter." Mont. Const. Art. XI, §§ 5, 6. Self-governing local governments have the authority
to exercise all powers not expressly prohibited by the State Constitution or laws, as well as all
In Montana,Attorney General opinions have force and the effect of law unless and until overturned by a court of
law or the Montana Legislature.
40 1 227/3 63 0.001
Molly Edwards
RE: Legality of Red Light Camera Systems in Montana
November 5,2008
Page 3
the powers of general power local governments. Mont. Code Ann. § 7-1-103. "The powers and
authority of a local government unit with self-government powers are to be liberally construed,
and every reasonable doubt as to the existence of a local government power or authority shall be
resolved in favor of the existence of that power or authority." 41 Mont. Op. Atty. Gen. No. 47
(1986) (City of Helena has authority to enact a mandatory seat belt ordinance).
Currently, there are 32 self-governing Montana municipalities, including: Billings,
Bozeman, Butte-Silver Bow, Great Falls, Helena, Lewistown, Missoula, and Whitefish. The
only Class I cities in Montana that are not self-governing are Kalispell and Havre. See Local
Government Center "Montana Local Government Profiles Fiscal Year 2006" available at
http://www.montana.edu/wwwlgc/publications/data/profiles.pdf. However, even if a
municipality has not elected to adopt a self-governing charter, its powers are to be construed
broadly and include"the powers of a municipal corporation and legislative, administrative, and
other powers provided or implied by law." Mont. Const. Art. XI, § 4.
Because self-governing municipalities are considered by statute to have all the same
powers as general power municipalities, both forms of government have legislative power to
enact resolutions and ordinances that "(1) preserve peace and order and secure freedom from
dangerous or noxious activities; [and] (2) secure and promote the general public health and
welfare." Mont Code Ann. §§ 7-1-4123; 7-1-103. Title 7 of the Montana Code Annotated
governs local governments and further enumerates powers available to general power cities such
as the ability to contract with other entities and to "execute documents necessary to receive . . .
services, or other advantages from . . . any other source." Id. at § 7-1-4124. Municipalities also
have the power to enact ordinances necessary for the government or management of the
municipality so long as such ordinances do not violate the laws and Constitutions of the United
States or Montana. Id. at § 7-5-4101.
In addition to the above general grants of legislative authority to enact ordinances for the
operation of cities and towns, local governments are granted the authority to enact local
ordinances specifically to regulate traffic through traffic control devices. Id. at § 61-12-101.
Municipalities "in their respective jurisdictions shall place and maintain such traffic control
devices upon highways under their jurisdiction"to implement local traffic regulation ordinances.
Id. at § 61-8-206. Local authorities are not prevented by chapters 8 and 9 of Title 61, "with
respect to sidewalks, streets, and highways under their jurisdiction" from "regulating the traffic
by means of police officers or traffic control devices; [and] enacting as ordinances any provision
of chapter 8 or 9 and any other law regulating traffic, pedestrians, vehicles, and operators of
vehicles that are not in conflict with state law or federal regulations and enforcing the
ordinances." Id. at§ 61-12-101.
The above grants of legislative authority from the Montana Constitution and statutes
allow both general power and self-governing local governments to implement and operate a red
light camera system under the general police powers. A red light camera system would secure
the general health and welfare when preserving the public order by controlling dangerous
activities of some motorists, specifically those who disobey traffic signals and run red lights. Id.
at § 7-1-4123. As a practical matter, a municipality would have the authority to enter into
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contracts or other documents with a company for the purchase and installation of red light
cameras. See id. at§ 7-1-4124.
II. A red light camera system, as implemented, should not be in violation of the
Montana Constitution.
The Montana Constitution does not contain any provisions which explicitly prohibit the
use of red light camera systems. As discussed above, the Montana Constitution provides local
governments the option to be self-governing, as well as providing that the powers of a general
power municipality be construed broadly. Mont. Const. Art. XI, §§ 4, 5, 6. According to these
constitutional provisions, a local government would have the authority under the general police
powers to enact ordinances which implement the use of a red light camera system to control
traffic. A municipality's exercise of authority does not itself violate the Constitution, however,
such action by a municipality may be challenged under certain constitutional provisions.
Right to Privacy
An argument could be made that the use of a red light traffic system would infringe upon
an individual's right to privacy, which is explicitly protected by the Montana Constitution.
Mont. Const. Art. 11, § 10. Government interference with an individual's right to privacy must
withstand strict scrutiny to be valid. Id. To withstand strict scrutiny, the government ordinance
would have to be narrowly tailored to further a compelling state interest. State v. Mount, 2003
MT 275, �,¶ 98-99, 317 Mont, 481, 78 P.3d 829. However before a court would reach the strict
scrutiny analysis, the individual claiming the right must prove that he has a reasonable
expectation of privacy in the object the government is alleged to have interfered with. State v.
Goetz, 2008 MT 296,¶21, 345 Mont, 421, 191 P.3d 489.
In challenging a municipal ordinance operating a red light camera system, the petitioner
would have to allege his expectation of privacy was violated when the camera photographed his
license plate which was then used to ascertain the vehicle owner's identity through vehicle
registration and issue the owner a citation. The Montana Supreme Court has consistently held
that an individual does not have an "expectation of privacy in the license plate that she
knowingly expose[s] to the public." State v. Thomas, 2008 MT 206, ¶ 13, 344 Mont. 150, 186
P.3d 864 (citing State v. Bullock, 272 Mont. 361, 375, 901 P.2d 61, 70 (1995) (citing Katz v.
U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 511 (1967))). The rationale behind this holding is that
Montana law requires the registration of motor vehicles and the conspicuous display of a license
plate for legal operation. The effect of this statutory requirement is to render the information
displayed on the license plate public information, and one cannot maintain a reasonable
expectation of privacy in public information. Mont. Code Ann. § 61-3-301.
Because an individual does not have a reasonable expectation of privacy in the
information displayed on a license plate, a challenge to a municipal ordinance providing for the
operation of a red light camera system would fail. A red light camera system should not violate
Montana's Constitutional right to privacy.
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Due Process
A due process challenge to an ordinance operating a red light camera system is also
foreseeable. The Montana Constitution provides that"no person shall be deprived of life, liberty
or property without due process of law." Mont. Const.Art. II, § 17. A red light camera system's
violation of due process could be alleged because a camera would photograph the license plate of
a vehicle that failed to stop at a red light. The information on the license plate would then be
used to ascertain the identity of the registered owner of the vehicle. The registered owner of the
vehicle would then be issued the citation, regardless of whether the owner was the individual
actually driving the vehicle at the time of the traffic violation.
City of Missoula v. Shea(1983)
A city parking ordinance imposing a criminal penalty for parking violations, presumed
that the registered owner of a vehicle was the individual who illegally parked the vehicle for
purposes of issuing the citation was challenged as a violation of due process in City of Missoula
v. Shea. 202 Mont. 286, 661 P.2d 410 (1983). In Shea, the presumption that the registered
vehicle owner is prima facie liable for an illegally parked vehicle was held invalid because it
unconstitutionally denied the defendant due process by shifting the burden of proof to the
defendant and contradicting the presumption of innocence. Id. at 294, 661 P.2d at 414.
However, after holding the prima facie presumption violated due process, the Shea Court then
held that "a city has authority to adopt a vicarious liability parking ordinance," and such
ordinance would not violate due process. Id. at 296, 661 P.2d at 415.
The Court reached this conclusion after analyzing Montana statutes which impose
vicarious liability in certain criminal offenses, and statutes which contemplate absolute liability
for certain criminal offenses. Id. at 295-96, 661 P.2d at 414-15; see also Mont. Code Ann. §§
45-2-301-302; 45-2-104. Under Montana's statutory scheme an individual can be held
vicariously responsible for the actions of another when, as provided by the statute defining the
offense, he is legally accountable for such actions. Mont. Code Ann. §§ 45-2-301-302. Once
concluding that an individual may be vicariously liable for the criminal actions of another, the
Court concluded that such liability can be, and historically has been, imposed in the realm of
traffic regulation without violating due process. Shea, 202 Mont. at 415, 661 P.2d at 296. The
court then went on to discuss absolute liability for criminal actions. Id. When lacking the
requisite mental state to commit a crime, an individual may still be found guilty"if the offense is
punishable by a fine not exceeding $500 and the statute defining the offense clearly indicates a
legislative purpose to impose absolute liability for the conduct described." Mont. Code Ann. §
45-1-104.
1993 Attorney General Opinion
Ten years after the Shea decision was issued, the Montana Attorney General ("A.G.")
was asked to issue a formal opinion concerning the ability of a city to use photographic radar
devices to regulate speeding infractions. In this opinion the A.G. decided whether the City of
Billings was precluded by statute from enacting an ordinance for the installation and operation of
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a photographic radar system which would "provid[e] for either accountability on the part of the
registered owner for illegal speeding by any person operating the vehicle with the owner's
permission or for a permissive inference that the registered owner was the speeding violator." 45
Mont. Op. Atty. Gen. No. 7, 1 (1993). The enactment of the ordinance was found to be a valid
exercise of power, following the Shea rationale. In Montana, courts are not bound by decisions
of the Attorney General, but such decisions are "controlling unless overruled by a state district
court or the supreme court." Mont. Code Ann. § 2-15-501; see also State v. Thibert, 1998 MT
207, ¶ 12, 290 Mont. 408, 965 P.2d 251; Orr v. State, 2004 MT 391, ¶ 120, 106 P.3d 100
(Attorney General opinions are not binding on the Montana Supreme Court, but they will be
upheld so long as not palpably erroneous and acquiesced to by the Legislature.)
In analyzing the question, the A.G. noted Montana's statutory authority for criminal
vicarious and absolute liability arising out of statutory accountability. Id. Next, the A.G. set out
a three part analysis used when determining whether a self-governing municipality is authorized
to exercise power:
(1) consult the charter and consider constitutional ramifications; (2) determine
whether the exercise is prohibited under various provisions of [the Montana
Code] specifically applicable to self-government units; and (3) decide whether it
is inconsistent with state provisions in an area affirmatively subjected to state
control as defined by section 7-1-113.
Id. at 2 (citations omitted). The A.G.'s analysis of step one determined that no prohibitions of
authority to enact ordinances existed in the self-government charter.2 Id.
Step two of the analysis considered statutory provisions granting authority to self-
governing cities and the authority of local governments to regulate traffic and speed of motor
vehicles. Id.; see also Mont. Code Ann. §§ 7-1-111; 7-5-4101; 7-14-4102-4103; 61-8-303; 61-
8-711. In this analysis, the A.G. cited the Shea decision for the "recognition that the type of
accountability at issue [(vicarious accountability)] ha[d] been historically accepted in regard to
traffic regulations[, and that] Montana law provides for the criminal responsibility of one person
for the criminal act of another." 45 Mont. Op. Atty. Gen. No. 7 at 3 (citing Shea, 202 Mont. at
295-97, 661 P.2d at 414-15; Mont. Code Ann. §§ 45-2-301-302).
The third part of the analysis concerned whether the ordinance would be consistent with
state statutes, and was not enacted in an area preempted by state law. Self-governing
municipalities are allowed "to enact any ordinance unless the ordinance (1) is inconsistent with
state law or regulation and (2) concerns an area affirmatively subject by law to state control."
Mont. Code Ann. § 7-1-113. An area of law is "affirmatively subject to state control if a state
agency or officer is directed to establish administrative rules governing the matter or if
enforcement of the standards or requirements established by statute is vested in a state officer or
agency." Id. No state officer or agency had been vested with the exclusive power to regulate
The executive branch does not have jurisdiction to rule on issues of constitutionality. Constitutional issues are
reserved for the courts to decide. 45 Mont.Op.Atty.Gen.No.7 at 2.
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traffic in cities and towns, and the proposed Billings ordinance was consistent with state statutes
governing speed. 45 Mont. Op. Atty. Gen. No. 7 at 3. Based upon the analysis that the proposed
ordinance did not meet the three part test and the Shea rationale, the A.G. held that the ordinance
was a valid exercise of Billings' power. Id. at 4.
Conclusion of Constitutionality
The Montana Constitution does not prohibit local governments from installing and
operating red light camera systems. The operation of such a system would not violate a citizen's
right to privacy by using the license plate number to identify the registered owner.
Following the Court's reasoning in Shea and the A.G.'s reasoning in its opinion, a
municipality would not violate due process requirements by implementing a red light camera
system through the enactment of ordinances, so long as the ordinances are carefully drafted. As
discussed above, an individual can be vicariously liable for the criminal acts of another, and an
individual can be absolutely liable for his own criminal acts, even when lacking the requisite
mental state. See supra discussion of Shea and Mont. Code Ann. §§ 45-301-302; 45-1-104. A
municipality is authorized to enact ordinances governing the management of the local
government. Mont. Code Ann. § 7-5-4101. Local governments also have the power to adopt
ordinances which regulate traffic through traffic control devices, so long as the ordinances are
consistent with state statutes. Id. at § 61-12-101. Municipalities are also granted authority to
install traffic devices on roads within their jurisdiction to implement local traffic regulation
ordinances. Id. at § 61-8-206. In Montana, no state agency has been given exclusive authority to
regulate traffic through administrative rules, making traffic regulation an area not affirmatively
subjected by law to state control. See Mont. Code Ann. § 7-1-113.
The enactment of an ordinance implementing and operating a red light camera system
should be found to be a reasonable exercise of a municipality's police power and would not
violate due process if it clearly indicates a legislative intent to impose absolute liability arising
from the ownership of the vehicle, is punishable only by a fine, and is consistent with state
statutes regulating traffic. See Shea, 202 Mont. at 297, 661 P.2d at 451; Mont. Code Ann. §§ 45-
2-104; 7-1-113; 45 Mont. Op.Atty. Gen, No. 7.
The intended legislative purpose of the ordinance, imposing absolute liability for running
red lights on the registered vehicle owner, would have to be clear. The ordinance itself must be
consistent with state statutes, meaning that its standards cannot be "lower or less stringent than
those imposed by state law or regulation." Mont. Code Ann. § 7-1-113. Further, the criminal
penalty must only be monetary in nature, and such fine cannot exceed $500. Although the
enactment of a red light camera system ordinance should be constitutional if the penalty is
criminal in nature, as discussed infra, it may be advisable to assess a civil penalty rather than a
criminal penalty to avoid possible due process challenges because due process requirements for
civil infractions are not as stringent as due process requirements for criminal violations. For
example, the burden of proof for a civil infraction(preponderance of the evidence) is lower than
that for a criminal infraction (beyond a reasonable doubt). If a civil penalty is assessed, the
amount of the fine will most likely depend on the nature of the powers of the local government.
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In practice, general power municipalities view the maximum fines provided for in state statute as
controlling, but self-governing municipalities may have more leeway in ascertaining the amount
of the fine.
III. As implemented, a red light camera system should not be in violation of the
Montana Code.
Statutory Authority to Regulate Traffic
The Montana Code Annotated does not contain a provision that explicitly prohibits the
implementation and operation of a red light camera system. As previously discussed, Montana
municipalities have the general authority to enact ordinances regulating traffic. The Montana
Legislature enumerated the powers of municipalities in Title 7 of the Montana Code Annotated.
One such power granted to municipalities is the authority to regulate motor vehicles through
local ordinances. Mont. Code Ann. at § 7-14-4103. Montana Code Annotated Title 61 contains
the statutes governing motor vehicles. These statutes call for consistency in traffic provisions
while also allowing for some flexibility in traffic regulation at the local level so long as the
enacted ordinances and regulations do not conflict with Title 61 of the Code. Id. § 61-8-103.
Title 61, chapter 12 expressly states that local governments are not prevented from acting
"within the reasonable exercise of the police power"by"regulating traffic by means of. . . traffic
control devices;" or "designating any intersection . . . as a stop intersection;" or enacting
ordinances to regulate traffic and vehicle operators that do not conflict with state law. Id. at §
61-12-101. These statutes provide express authority for local governments to enact ordinances to
regulate traffic.
A municipality may enforce state and local traffic regulations through the placement of
traffic control devices upon roadways within its jurisdiction. Id. at § 61-8-206. These traffic
control devices must conform to the Montana Department of Transportation's ("MDOT")
manual for a uniform system of traffic control devices, and the municipality must receive
permission from the MDOT to place and maintain such devices. Id. at §§ 61-8-202-203. The
Montana Traffic Engineering Manual, available for review, does not prohibit the use of red light
camera systems as part of a traffic control system, but the Manual also does not expressly
authorize the use of such camera system. See Montana Traffic Engineering Manual, available at
http://www.mdt.mt.gov/other/traffic/extemal/pdf/preface.pdf
The State of Montana maintains jurisdiction and right of way over state highways that
pass through municipalities, and as such, a city may not place a red light camera on a stop light
on a state highway without prior State authorization. The State retains exclusive control to place
signs and other traffic control devices upon state highways, and when state highways run through
a municipality, the city and the state will enter construction or maintenance agreements stating
that the city is not authorized to erect any traffic control devices along these stretches of highway
that may interrupt the flow of traffic. See id. at Title 60, chapters 1 and 2. Because in practice
the State has been very protective of its jurisdiction and right of way through municipalities,
direct authorization from the State would be required before a red light camera could be installed
on a stop light on a state highway.
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Civil v. Criminal Penalty
It is illegal for a driver to fail to stop at a red light, and such violation may be issued a
citation, either criminal or civil in nature. Title 61 of the Montana Code states that failing to stop
at a stop sign or a red light results in a misdemeanor violation, punishable by a fine. Id. at §§ 61-
8-104 (violation of ch. 8 is a misdemeanor punishable by § 61-8-711); 61-8-207(3)(a) (vehicles
must stop at red lights); 61-8-344 (vehicles must stop at stop signs); 61-8-711 (listing of fines).
See supra, the discussion of City of Missoula v. Shea and Attorney General opinion number 7
and allowable criminal penalties for illegally parking a vehicle or driving at an excessive speed.
In addition to the ability to impose a criminal penalty upon an individual for the violation
of a traffic ordinance, a municipality has the authority to punish a municipal infraction. A
municipal infraction is "a civil offense punishable by a civil penalty of not more than $300 for
each violation or if the infraction is a repeat offense, a civil penalty not to exceed $500 for each
repeat violation." Id. at § 7-1-4150. A municipal infraction may be designated by ordinance as a
violation of a municipal ordinance. Id. In addition, a violation of a state law that is a criminal
offense but punishable only by a fine may be designated by a municipality as a municipal
infraction by municipal ordinance. Id. Civil citations may be issued to individuals who commit
municipal infractions. "The citation may be served by personal service, by certified mail
addressed to the defendant at the defendant's last known mailing address, return receipt
requested, or by publication, as provided in Rule 4D(5), M.R.Civ.P." Id. This statute does not
require that a police officer be physically present to witness the infraction and issue the citation.
The Montana Supreme Court discussed the civil penalties versus criminal penalties
briefly in State ex rel Majerus v. Carter. 214 Mont. 272, 693 P.2d 501 (1984). In this case a
motorist appealed an order from a lower court determining that he was a habitual traffic offender.
The motorist argued that his due process rights were violated if no postdispositional hearing was
offered after his driver's license was revoked, if he was not advised every time he received a
ticket that habitual traffic offender points result from conviction, and that he was not advised of
his right to counsel before prior traffic convictions. Id. at 275, 693 P.2d at 503. The Montana
Supreme Court rejected his claims because they were irrelevant—the motorists' claims raised
"issues relevant to criminal cases but irrelevant here [in a civil appeal.]" Id. at 276, 693 P.2d at
503. The Majerus Court also noted that "[w]hile it appear[ed] that criminal due process
standards were satisfied, the standards to be met are for civil, not criminal, state actions." Id. In
deciding the standards to be met for civil rather than criminal due process the Court said "The
question is how much process is due. The answer is not as much as in a criminal case," and
sufficient procedures in one case may not suffice in the next. Id. at 276, 693 P.2d at 504. The
Court's decision denied all of the motorist's claims, stating that in all cases his rights to civil due
process were met. In conclusion, the Court stated that persons with valid Montana driver's
licenses have a duty to become informed of the state's traffic laws and in the context of tickets,
that"the `amount' of due process should not be based on the distinction between criminal or civil
or between right or privilege. The analysis should be how important is the property interest in a
diver's license." Id. at 280-81, 693 P.2d at 506. In the context of red light traffic systems, the
analysis would be how important is the property interest in a monetary fine.
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Conclusion
Pursuant to this statutory scheme, a municipality may, by ordinance state that failure to
stop at a red light shall be a municipal infraction punishable by a fine. Under state statutes,
failing to stop at a red light is a criminal misdemeanor punishable only by a fine. An ordinance
could be enacted stating that the criminal offense of failing to stop at a red light is a municipal
infraction, making the penalty a civil fine. See Mont. Code Ann. § 7-1-4150. Additional
analysis of the amount of the fine may be warranted as a city develops its ordinances. The
statutes regarding minor first-time traffic violations provide for a cap on fines at $100 while
statutes regarding municipal infractions have a cap of $300. Civil citations for violations of
municipal offenses may be mailed to the defendant. Under this type of an ordinance, an
individual who runs a red light would be caught by the red light camera; the tape would be
reviewed by a police officer who could then issue a civil citation by mailing it to the defendant.
A police officer would not have to be physically present to witness the violation and issue the
citation. As noted by the Montana Supreme Court in Majerus the imposition of a civil penalty
gives rise to lesser due process concerns than with a criminal penalty. Civil penalties concern
due process with respect to loss of property, rather than in a criminal context where there is the
possibility of losing one's liberty by a potential jail term.
Another option available to a local government would be to model its ordinance on those
in the above-cited Ohio cases where, if a police officer is physically present to witness the
violation and issue the citation, the penalty would be criminal under the state statutes, but if the
violation is caught by the camera system, the penalty is civil. See State ex rel. Scott V. City of
Cleveland, 859 N.E.2d 923 (Ohio 2006); Mendenhall v. City of Akron, 881 N.E.2d 255 (Ohio
2008). Given the authority to enact local ordinances regulating traffic, and careful drafting of
such ordinances, a municipality would not be in violation of Montana statutes governing motor
vehicles by installing and operating a red light traffic control system.
Regardless of whether the penalty is going to be civil or criminal, as long as the
ordinance imposes vicarious liability on the registered owner for his own violations as well as
the violations of others driving his vehicle, some amount of due process in a way of appealing or
challenging the citation needs to be afforded. If the penalty is civil, a lesser level of due process
would be able to be afforded. As Montana law currently stands, the installation and operation of
a red light camera system would be authorized and not in violation of the Montana Constitution
or statutes. However, a legal analysis of the language and operation of the actual ordinance that
is to be adopted would be required to confirm its legality.
The law covered by the opinions expressed herein is limited to the law of the State of
Montana, as interpreted by us on this date. The receiver of this opinion, or any person or entity
entitled to rely on the opinion herein, should be aware that the Montana Supreme Court has the
ability to overturn or alter longstanding judicial precedent.
This opinion is provided to Redflex Traffic Systems, its lawful successors, assigns and
participants solely in connection with the above matter. This opinion may not be relied upon for
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any other purpose whatsoever or relied upon by any other person without in each instance our
prior written consent. This opinion is expressed as of the date hereof and shall not be deemed to
have been updated to any date upon which such other party may rely hereon. Further, we do not
undertake to advise any party of matters which occur subsequent to the date hereof and which
may affect the opinions expressed herein.
Sincerely,
BROWNING, KALECZYC, BERRY& HOVEN, P.C.
By -
S ey T. Kaleczyc
ven T. Wade
Jessie L. Luther
i
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