If Oster finds in favor of the speeders, the village’s outside counsel James Englert argues that only the drivers who received a notice of liability, requested a hearing and were found liable to pay the fine deserve their money back. Hence he says the village is only liable for $10,728 and has up to 10 years to repay speeders.
Josh Engel, a lawyer for the speeders, told Oster on Thursday that any amount other than the full amount their class of clients paid would be erroneous.
“I am aware of no case where a court has drawn this distinction between saying that the amount of money that someone pays, whatever the overhead the village or municipality or government agency has in operating its unconstitutional scheme you can back that out,” he said.
In case he doesn’t sell the judge on the $10,000 figure, Englert quoted case law that said damages can only be paid out of what is “in the defendant’s possession” — $1.8 million — but Oster questioned him on that theory and how it can be applied to this case.
“If I say they don’t technically have it, they spent it all, there is nothing in their possession, where does language ‘in their possession really cut to,” he asked. “Where is the line of what ‘in their possession” means. Your argument is that means $1.8 (million). That’s okay to say that, but is there a further delineation of what those four words, ‘in the defendant’s possession’ means.”
The plaintiffs had tried to garnish proceeds — $424,196 — from the new manned speed camera program to help pay the eventual judgment because they feared the village would go on a spending spree, just like they did the first time. Oster announced at the start of the hearing the two sides agreed to drop that issue.
After the hearing Englert said the two sides will continue to try and reach a settlement of the case. There was one formal mediation session in October but Englert said the two sides were pretty far apart in their positions.
“We’ll consider everything but it’s up to the (village) council,” he said.
Engel agreed they are willing to talk.
“We’re always hopeful that the village will decide to step up and do what it can to right the wrong here,” Engel said. “Every dollar that they’re spending on appeals is dollars that are not available to pay people back.”
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