Here is the Code... note, no mention of FEE
Action to enjoin the collection of taxes and assessments must be brought against the officer whose duty it is to collect them. Actions to recover taxes and assessments must be brought against the officer who made the collection, or if he is dead, against his personal representative. When they were not collected on the county duplicate, each corporation or board which is entitled to share in the revenue so collected must be joined in the action. If a plaintiff in an action to recover taxes or assessments, or both, alleges and proves that he or the corporation or deceased person whose estate he represents, at the time of paying such taxes or assessments, filed a written protest as to the portion sought to be recovered, specifying the nature of his claim as to the illegality thereof, together with notice of his intention to sue under sections 2723.01 to 2723.05, inclusive, of the Revised Code, such action shall not be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid.
Effective Date: 10-01-1953
Friday, March 27, 2009
Lawsuit Ruling 2/23/2009
IN THE COURT OF COMMON PLEAS OF LUCAS COUNTY, OHIO
Karen Shanahan,
Plaintiff, Case No. CI0200802348
vs. OPINION AND JUDGMENT ENTRY
The City ofToledo, Hon. Charles J. Doneghy
Defendant.
This proposed class-action matter is before the Court on: 1) the motion of the
plaintiff for class certification; and 2) the motion of the plaintiff to stay a decision on class certification and for partial summary judgment. Upon review of the amended pleadings, memoranda and representations of the parties,and applicable law,the Court finds that it, first, should over rule the plaintiffs motion for partial summary judgment, second, should overrule at this juncture the plaintiffs motion for class certification, and, third, should overrule the motion to stay as moot.
I. FACTUAL BACKGROUND The defendant, the City ofToledo ("City"), first by administrative decision and later by action of the City's council, enacted It an additional tax to collect refuse" (the "Tax"). At all times relevant,the plaintiff, Karen Shanahan,was a property owner in the City who was required to and did pay the Tax. (A.CompLparas.4-5,7-8,16.) The plaintiff alleges that the City's enactment of this Tax was and is unlawful and unconstitutional. (A.Compl.para.2.)The plaintiff seeks certification of a proposed class of approximately 100,000 members who are: current and past property owners and tenants who are, were or will be required to pay a tax on their property (owned or leased) for refuse collection without voter approval by referendum and/or without lawful and constitutional action by City council. (A.Compl.paras.710,21-23,35-37.) The plaintiff now asks the Court to stay ruling on her class-certification motion until the Court issues a summary judgment decision addressing whether the Tax is properly classified as a "tax" or instead as a "fee.'
II. DISCUSSION
A. SUMMARY JUDGMENT: "TAX" OR "FEE"
In opposing class certification, the City argues that the plaintiff has failed to comply with the jurisdictional requirements which R.C. 2723.03 places on any plaintiff who seeks to recover payments of, or to enjoin operation of, illegal or unconstitutional "taxes or assessments." In her summary judgment motion, the plaintiff argues that the Tax is, in reality, a fee. Thus,the plaintiff contends that R.C. 2723.03 has no impact on the instant action.
In relevant part, R.C. 2723.03 reads as follows: "* **If a plaintiff in an action to recover taxes or assessments, or both, alleges and proves that he or the corporation or deceased person whose estate he represents, at the time of paying such taxes or assessments, filed a written protest as to the portion sought to be recovered, specifying the nature of his claim as to the illegality thereof, together with notice of his intention to sue under sections 2723.01 to 2723.05, inclusive, of the Revised Code, such action shall no be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid." (Emphasis added.) The Supreme Court of Ohio has ruled that license "fees," even though legally distinguishable from a "tax," fall with in the meaning of words "taxes and assessments" as used in the statute. Paramount Film Distributing Corp. v.Tracy(1963), 75Ohio St.55,56-57, 191N.E.2d839. See, also, Gottlieb
v. S.Euclid, 157OhioApp.3d250,2004-0hio-2705,810N.E.2d970,at'30 (finding R.C.2723.03 applies to license "fees").Accordingly,the Court finds that the plaintiffs motion for partial summary judgment is not well-taken.
B. CLASS CERTIFICATION
Civ.R. 23 governs when a court properly may certify a class. Gottlieb v. S. Euclid, 157 Ohio App.3d250,2004-0hio-2705, 810 N.E.2d970,at ..] O. The rule sets forth the following seven requirements:
"(1) an identifiable class must exist and the definition of the class must be unambiguous; (2)the named representatives must be members of the class; (3)the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5)the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class;and(7)one of the three Civ.R.23(B)requirements must be satisfied." (Emphasis
added.) Id.
In an action for damages, lithe trial court must specifically find, pursuant to Civ.R. 23(8), that questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." (Emphasis added.) Id. The proponent of the class must establish all these factual and legal requirements. Id. at ~ 11. The trial court has broad discretion, but must apply carefully and rigorously the requirements, when determining whether to certify a class. Id.at'9,citing Hamilton v.Ohio Sav. Bank, 82 Ohio St. 3d67, 70,1998-0hio-365, 694 N.E.2d 442.
In this case, the plaintiff asserts that she satisfies all the requirements of Civ.R. 23. The City counters that the plaintiff has failed to establish the requirements of R.C. 2723.03 for challenging the Tax in this case, that she fails to propose a class that is limited to property owners who have satisfied those requirements, and, thus, she is not entitled to class certification at this juncture. The Court agrees.
The court in, Gottlieb v. S. Euclid, 157 Ohio App.3d 250, 2004-0hio-2705, 810
N.E.2d970,ruled that R.C. 2723.03 is the proper vehicle to challenge the collection of "taxes and assessments." Id.at28. In order to maintain a damages action for recovery of surcharges,the statute "requires a plaintiff to allege and prove that he filed a written protest and notice of intention to sue at the time of paying the tax or assessment." (Emphasis added.) Id. If the taxpayer fails to comply with these requirements, courts will bar his her recovery action. Id. And,if the taxpayer does not limit the proposed class to other taxpayers who also have complied with the statute, the court should not certify the class as the class does not meet the numerosity requirement.
Additionally, Ohio courts find that claims for injunctive and/or declaratory relief relating to improper taxes and assessments are unnecessary if a trial court finds that the case not properly maintainable as a class-action for damages. Id. at ....... Ordinarily, Ohio courts require that actions seeking only to enjoin allegedly unlawful or unconstitutional taxes and fees should be brought as individual actions, because class certification is not the "superior method for dealing with such claims. Id.
"[C]ertification of the cause as a class action prior to the determination of the constitutionality of the statute may result in unnecessary discovery procedures and the unjustified and unnecessary expenditure of judicial time and energy needed to determine a class action. ***We must be ever mindful of the policy behind a class action lawsuit, Le., to simplify the resolution of complex litigation,not complicate it unnecessarily." (Citation omitted.) Id.
In the instant case, the Court finds that the plaintiff has provided no evidence that she has complied with R.C. 2723.03. Accordingly, the Court finds that it should not certify even a properly proposed class at this juncture.
JUDGMENT ENTRY
The Court hereby ORDERS that the plaintiffs motion for partial summary judgment is overruled. The Court further ORDERS that the plaintiffs motion to stay ruling on class certification is overruled as moot. The Court further ORDERS that the plaintiffs motion for class certification is overruled. The Court further ORDERS that this case is assigned for pretrial on
pc: Keith J. Wicklund/Scott A. Ciolek
Anthony J. DeGidioKeith J. Winterhalter
Karen Shanahan,
Plaintiff, Case No. CI0200802348
vs. OPINION AND JUDGMENT ENTRY
The City ofToledo, Hon. Charles J. Doneghy
Defendant.
This proposed class-action matter is before the Court on: 1) the motion of the
plaintiff for class certification; and 2) the motion of the plaintiff to stay a decision on class certification and for partial summary judgment. Upon review of the amended pleadings, memoranda and representations of the parties,and applicable law,the Court finds that it, first, should over rule the plaintiffs motion for partial summary judgment, second, should overrule at this juncture the plaintiffs motion for class certification, and, third, should overrule the motion to stay as moot.
I. FACTUAL BACKGROUND The defendant, the City ofToledo ("City"), first by administrative decision and later by action of the City's council, enacted It an additional tax to collect refuse" (the "Tax"). At all times relevant,the plaintiff, Karen Shanahan,was a property owner in the City who was required to and did pay the Tax. (A.CompLparas.4-5,7-8,16.) The plaintiff alleges that the City's enactment of this Tax was and is unlawful and unconstitutional. (A.Compl.para.2.)The plaintiff seeks certification of a proposed class of approximately 100,000 members who are: current and past property owners and tenants who are, were or will be required to pay a tax on their property (owned or leased) for refuse collection without voter approval by referendum and/or without lawful and constitutional action by City council. (A.Compl.paras.710,21-23,35-37.) The plaintiff now asks the Court to stay ruling on her class-certification motion until the Court issues a summary judgment decision addressing whether the Tax is properly classified as a "tax" or instead as a "fee.'
II. DISCUSSION
A. SUMMARY JUDGMENT: "TAX" OR "FEE"
In opposing class certification, the City argues that the plaintiff has failed to comply with the jurisdictional requirements which R.C. 2723.03 places on any plaintiff who seeks to recover payments of, or to enjoin operation of, illegal or unconstitutional "taxes or assessments." In her summary judgment motion, the plaintiff argues that the Tax is, in reality, a fee. Thus,the plaintiff contends that R.C. 2723.03 has no impact on the instant action.
In relevant part, R.C. 2723.03 reads as follows: "* **If a plaintiff in an action to recover taxes or assessments, or both, alleges and proves that he or the corporation or deceased person whose estate he represents, at the time of paying such taxes or assessments, filed a written protest as to the portion sought to be recovered, specifying the nature of his claim as to the illegality thereof, together with notice of his intention to sue under sections 2723.01 to 2723.05, inclusive, of the Revised Code, such action shall no be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid." (Emphasis added.) The Supreme Court of Ohio has ruled that license "fees," even though legally distinguishable from a "tax," fall with in the meaning of words "taxes and assessments" as used in the statute. Paramount Film Distributing Corp. v.Tracy(1963), 75Ohio St.55,56-57, 191N.E.2d839. See, also, Gottlieb
v. S.Euclid, 157OhioApp.3d250,2004-0hio-2705,810N.E.2d970,at'30 (finding R.C.2723.03 applies to license "fees").Accordingly,the Court finds that the plaintiffs motion for partial summary judgment is not well-taken.
B. CLASS CERTIFICATION
Civ.R. 23 governs when a court properly may certify a class. Gottlieb v. S. Euclid, 157 Ohio App.3d250,2004-0hio-2705, 810 N.E.2d970,at ..] O. The rule sets forth the following seven requirements:
"(1) an identifiable class must exist and the definition of the class must be unambiguous; (2)the named representatives must be members of the class; (3)the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5)the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class;and(7)one of the three Civ.R.23(B)requirements must be satisfied." (Emphasis
added.) Id.
In an action for damages, lithe trial court must specifically find, pursuant to Civ.R. 23(8), that questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." (Emphasis added.) Id. The proponent of the class must establish all these factual and legal requirements. Id. at ~ 11. The trial court has broad discretion, but must apply carefully and rigorously the requirements, when determining whether to certify a class. Id.at'9,citing Hamilton v.Ohio Sav. Bank, 82 Ohio St. 3d67, 70,1998-0hio-365, 694 N.E.2d 442.
In this case, the plaintiff asserts that she satisfies all the requirements of Civ.R. 23. The City counters that the plaintiff has failed to establish the requirements of R.C. 2723.03 for challenging the Tax in this case, that she fails to propose a class that is limited to property owners who have satisfied those requirements, and, thus, she is not entitled to class certification at this juncture. The Court agrees.
The court in, Gottlieb v. S. Euclid, 157 Ohio App.3d 250, 2004-0hio-2705, 810
N.E.2d970,ruled that R.C. 2723.03 is the proper vehicle to challenge the collection of "taxes and assessments." Id.at28. In order to maintain a damages action for recovery of surcharges,the statute "requires a plaintiff to allege and prove that he filed a written protest and notice of intention to sue at the time of paying the tax or assessment." (Emphasis added.) Id. If the taxpayer fails to comply with these requirements, courts will bar his her recovery action. Id. And,if the taxpayer does not limit the proposed class to other taxpayers who also have complied with the statute, the court should not certify the class as the class does not meet the numerosity requirement.
Additionally, Ohio courts find that claims for injunctive and/or declaratory relief relating to improper taxes and assessments are unnecessary if a trial court finds that the case not properly maintainable as a class-action for damages. Id. at ....... Ordinarily, Ohio courts require that actions seeking only to enjoin allegedly unlawful or unconstitutional taxes and fees should be brought as individual actions, because class certification is not the "superior method for dealing with such claims. Id.
"[C]ertification of the cause as a class action prior to the determination of the constitutionality of the statute may result in unnecessary discovery procedures and the unjustified and unnecessary expenditure of judicial time and energy needed to determine a class action. ***We must be ever mindful of the policy behind a class action lawsuit, Le., to simplify the resolution of complex litigation,not complicate it unnecessarily." (Citation omitted.) Id.
In the instant case, the Court finds that the plaintiff has provided no evidence that she has complied with R.C. 2723.03. Accordingly, the Court finds that it should not certify even a properly proposed class at this juncture.
JUDGMENT ENTRY
The Court hereby ORDERS that the plaintiffs motion for partial summary judgment is overruled. The Court further ORDERS that the plaintiffs motion to stay ruling on class certification is overruled as moot. The Court further ORDERS that the plaintiffs motion for class certification is overruled. The Court further ORDERS that this case is assigned for pretrial on
pc: Keith J. Wicklund/Scott A. Ciolek
Anthony J. DeGidioKeith J. Winterhalter
Refuse Fee Lawsuit - CALL to ACTION
If you believe the Refuse Fee is not a legal form of revenue for the City or if you want to protest this additional fee, it is requested you file a formal protest when you pay the bill or send it to the City. Join the fight, be included, let your voice be heard. Here is the format for the protest:
Date _________________
Pursuant to Ohio Revised Code § 2723.03, I hereby notify the City of Toledo that I am paying the “refuse fee” under protest. Whether construed as a “tax,” “fee,” or “assessment,” the “refuse fee” is unlawful for the following reasons:
The “refuse fee” essentially functions as a property tax; and
The Ohio Constitution requires a referendum before such an assessment may be levied.
For the reasons stated above, I intend to sue under Revised Code §§ 2723.01-2723.05 for the purpose of recovering this unlawful appropriation in its entirety.
Sincerely,
___________________________
Name
___________________________
___________________________
___________________________
Street Address
Date _________________
Pursuant to Ohio Revised Code § 2723.03, I hereby notify the City of Toledo that I am paying the “refuse fee” under protest. Whether construed as a “tax,” “fee,” or “assessment,” the “refuse fee” is unlawful for the following reasons:
The “refuse fee” essentially functions as a property tax; and
The Ohio Constitution requires a referendum before such an assessment may be levied.
For the reasons stated above, I intend to sue under Revised Code §§ 2723.01-2723.05 for the purpose of recovering this unlawful appropriation in its entirety.
Sincerely,
___________________________
Name
___________________________
___________________________
___________________________
Street Address
Refuse Fee and Court
Another court date today and I wonder if, as before, the attorneys will meet in chamber with the Judge, return to the courtroom and we leave with no action. The request for class action was denied at this point as "moot" and I have no idea what is next. The original attorney on the case, KURT WICKLUND has moved on to another firm and had to remove himself from the case. He spent a tremendous amount of time working on the case and we owe him a debt of gratitude for taking on the case that no one else wanted to touch. SCOTT A CIOLEK continues to carry the torch along with the newest attorney to the case, ANTHONY J DEGIDIO. They have now filed an appeal on the class action decision:
3/24/2009: Title : PLD:DOCKETING STATEMENT, PURSUANT TO APP R 3(G) AND 6TH DIST LOC APP R 3(C)
Today is about:
THE COURT HEREBY ORDERS THAT THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS OVERRULED. THE COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION TO STAY RULING ON CLASS CERTIFICATION IS OVERRULED AS MOOT. COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION FOR CLASS CERTIFICATION IS OVERRULED. FURTHER ORDERED THAT THIS CASE IS SET FOR
A PRETRIAL CONFERENCE ON MARCH 27, 2009 AT 2:00 P.M.
If anyone would like to come and observe the legal system at work, you are welcome.
LUCAS COUNTY COURT OF COMMON PLEAS, JUDGE: CHARLES J. DONEGHY
3/24/2009: Title : PLD:DOCKETING STATEMENT, PURSUANT TO APP R 3(G) AND 6TH DIST LOC APP R 3(C)
Today is about:
THE COURT HEREBY ORDERS THAT THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS OVERRULED. THE COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION TO STAY RULING ON CLASS CERTIFICATION IS OVERRULED AS MOOT. COURT FURTHER ORDERS THAT THE PLAINTIFF'S MOTION FOR CLASS CERTIFICATION IS OVERRULED. FURTHER ORDERED THAT THIS CASE IS SET FOR
A PRETRIAL CONFERENCE ON MARCH 27, 2009 AT 2:00 P.M.
If anyone would like to come and observe the legal system at work, you are welcome.
LUCAS COUNTY COURT OF COMMON PLEAS, JUDGE: CHARLES J. DONEGHY
Refuse Fee Continuing Update
RE: “REFUSE FEE” City of Toledo
963.03. Frequency of collection; garbage and rubbish disposal fee.
(b) After April 30, 2008 for the periodic disposal of garbage and rubbish from any dwelling, restaurant, retail store, apartment house or office building, the property owner shall pay a monthly refuse fee based on the following schedule, provided that where the structure consists of multiple units, the monthly fee shall be per unit:
The City of Toledo passed this ordinance through council as a “FEE” and refused to classify it as a tax which requires passage by vote of the residents in an election. Now in court documents, the City is referring to it as a “TAX” in an attempt to enforce RC2723.3 of the Ohio Revised code. Had the protest been filed, the City could argue it was not allowed as a protest because this is a “FEE” and would not refer to it in court documents as a “TAX”. This is a purposeful misrepresentation of the Ordinance designed to prevent any action by any citizen against the “FEE”.
Rather than determine the merits of the Ordiance and whether it is a legal form of revenue for the City, the courts, attorneys and City Law department prefer to focus on the technicallity of RC2723.3 and whether a protest was required. It is not addressing the issue of the revenue.
As a resident of Toledo, I followed the regulations which offer no requirement to file a protest under the written regulation of RC2723.3 to protest a “FEE”. Though I contend it is a “TAX”, the written ordinace by which I must act states it is a “FEE” and the written Code does not address a fee. Therefore, I refuse to file a formal protest against the City of Toledo in accordance with RC2723.3 which states:
Action to enjoin the collection of taxes and assessments must be brought against the officer whose duty it is to collect them. Actions to recover taxes and assessments must be brought against the officer who made the collection, or if he is dead, against his personal representative. When they were not collected on the county duplicate, each corporation or board which is entitled to share in the revenue so collected must be joined in the action. If a plaintiff in an action to recover taxes or assessments, or both, alleges and proves that he or the corporation or deceased person whose estate he represents, at the time of paying such taxes or assessments, filed a written protest as to the portion sought to be recovered, specifying the nature of his claim as to the illegality thereof, together with notice of his intention to sue under sections 2723.01 to 2723.05, inclusive, of the Revised Code, such action shall not be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid.
Effective Date: 10-01-1953
Now the court is citing a lawsuit from 1963 stating a “licensing fee” fits in the context of RC2723.03 which therefore also regulates “fees”.
The Supreme Court of Ohio has ruled that license "fees," even though legally distinguishable from a"tax," fall within the meaning of words "taxes and assessments" as used in the statute. Paramount Film Distributing Corp. v. Tracy (1963), 75 Ohio St.55,56-57, 191 N.E.2d839.
This is not a “licensing fee”, this a a revenue grab by the City, wrapped in a cloak of a broad reaching “fee”. This regulation does not afford me that privilege against a “FEE”. Further, it is obvious that RC2723.03 exits to make it virtually impossible for a citizen to counter illegal revenues by a municipality of the type passed by the City of Toledo.
963.03. Frequency of collection; garbage and rubbish disposal fee.
(b) After April 30, 2008 for the periodic disposal of garbage and rubbish from any dwelling, restaurant, retail store, apartment house or office building, the property owner shall pay a monthly refuse fee based on the following schedule, provided that where the structure consists of multiple units, the monthly fee shall be per unit:
The City of Toledo passed this ordinance through council as a “FEE” and refused to classify it as a tax which requires passage by vote of the residents in an election. Now in court documents, the City is referring to it as a “TAX” in an attempt to enforce RC2723.3 of the Ohio Revised code. Had the protest been filed, the City could argue it was not allowed as a protest because this is a “FEE” and would not refer to it in court documents as a “TAX”. This is a purposeful misrepresentation of the Ordinance designed to prevent any action by any citizen against the “FEE”.
Rather than determine the merits of the Ordiance and whether it is a legal form of revenue for the City, the courts, attorneys and City Law department prefer to focus on the technicallity of RC2723.3 and whether a protest was required. It is not addressing the issue of the revenue.
As a resident of Toledo, I followed the regulations which offer no requirement to file a protest under the written regulation of RC2723.3 to protest a “FEE”. Though I contend it is a “TAX”, the written ordinace by which I must act states it is a “FEE” and the written Code does not address a fee. Therefore, I refuse to file a formal protest against the City of Toledo in accordance with RC2723.3 which states:
Action to enjoin the collection of taxes and assessments must be brought against the officer whose duty it is to collect them. Actions to recover taxes and assessments must be brought against the officer who made the collection, or if he is dead, against his personal representative. When they were not collected on the county duplicate, each corporation or board which is entitled to share in the revenue so collected must be joined in the action. If a plaintiff in an action to recover taxes or assessments, or both, alleges and proves that he or the corporation or deceased person whose estate he represents, at the time of paying such taxes or assessments, filed a written protest as to the portion sought to be recovered, specifying the nature of his claim as to the illegality thereof, together with notice of his intention to sue under sections 2723.01 to 2723.05, inclusive, of the Revised Code, such action shall not be dismissed on the ground that the taxes or assessments, sought to be recovered, were voluntarily paid.
Effective Date: 10-01-1953
Now the court is citing a lawsuit from 1963 stating a “licensing fee” fits in the context of RC2723.03 which therefore also regulates “fees”.
The Supreme Court of Ohio has ruled that license "fees," even though legally distinguishable from a"tax," fall within the meaning of words "taxes and assessments" as used in the statute. Paramount Film Distributing Corp. v. Tracy (1963), 75 Ohio St.55,56-57, 191 N.E.2d839.
This is not a “licensing fee”, this a a revenue grab by the City, wrapped in a cloak of a broad reaching “fee”. This regulation does not afford me that privilege against a “FEE”. Further, it is obvious that RC2723.03 exits to make it virtually impossible for a citizen to counter illegal revenues by a municipality of the type passed by the City of Toledo.
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