6th Court of Appeals rules on Shanahan’s Trash “fee/tax” accelerated appeal
PDF of the decision by the Ohio Court of Appeals, 6th Appellate District, the basics:
The trial court rejected appellant’s argument, ruling that, in Ohio law, a “fee,” although legally distinguishable from a tax, is encompassed in the words “taxes or assessments” found in R.C. 2723.03. Consequently, the court denied appellant’s motion for a partial summary judgment, declaring the refuse assessment within the operation of the statute. Absent evidence that appellant complied with the statute, the court concluded, it would be improper to certify a class which she is not demonstrably qualified to represent.
Appellant’s remaining assignments of error are related. The court concluded that the protest and notice requirements of R.C. 2723.03 are applicable in this matter. There was no evidence before the court that appellant had satisfied those requirements. Since satisfaction of those requirements would be necessary to represent any class seeking to recover the refuse fee, the court refused to certify a class.
Even though appellant’s complaint and original pleadings specifically sought to characterize the refuse fee as a “tax” she now argues at length that she is outside the requirements of R.C. Chapter 2723, because the monies she seeks to recover are not “taxes or assessments,” but “fees.” The trial court rejected this assertion, concluding that, although legally distinguishable from taxes, “fees” are within the meaning of the words “taxes and assessments” as used in R.C. 2723.03.“A fee is a charge imposed by a government in return for a service it provides; a fee is not a tax.” State ex rel. Petroleum Board v. Withrow (1991),
Both the regulation and the ordinance refer to the refuse fees as taxes. Indeed, until it became inconvenient, appellant referred to the refuse fees as taxes. As the trial court noted, license “fees” have been previously held to be within the ambit of R.C. 2723.03. Paramount Film Distributing, supra, at 56-57; Gottlieb v. S. Euclid, 157 Ohio App.3d 250, 2004-Ohio-2705,
Given the breadth of interpretation that the statute is afforded, the apparent initial consensus that the fees were taxes and prior decisions that license fees were encompassed within R.C. 2723.03, we must concur with the trial court that the “fees” of which appellant complains are also within the statute.
Accordingly, the trial court did not err in applying R.C. 2723.03 in this matter and appellant’s first assignment of error is not well-taken. Since a class representative must be a member of the class and appellant has not established that she is one of those who satisfied R.C. Chapter 2723, the trial court did not err in certifying her requested class. As a result, appellant’s third assignment of error is not well-taken.
On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed.
What will happen next? I’ll leave that up to those of you who are lawyers to speculate…
Looks like the court only denied Shanahan’s efforts to certify a class – on highly technical grounds at that. Thus there will be no “class action” aspect to the lawsuit. However, the court did not comment on the “merits” of her lawsuit. It thus seems that Shanahan is free to pursue her claims as an individual.
November 14th, 2009 at 9:03 pmBased on that portion of the opinion that is posted, the significant of this ruling is that a potential plaintiff must have complied with the protest and notice requirements of R.C. 2723.03. I assume virtually no one has complied with these requirements and therefore, it will be difficult to maintain a class action at this time.
November 15th, 2009 at 8:04 amI’ve read the opinion and what struck me was how mistakes by a lawyer can really hurt a client. The Court took two “shots” at arguments made by Ms. Shanahan’s attorneys.
First, the Court stated that “even though the Appellant’s complaint and original pleadings specifically sought to characterize the refuse fee as a tax” she now argues at length that it is a fee. The Court also stated that “until it became inconvenient, the Appellant referred to the refuse fee as a tax.
These two comments are, in my experience, a serious slap in the face to her attorneys. I think that because of their “flips” the attorneys lost credibility with the Court and this really hurt the case. You don’t see this kind of criticism very often in a Court of Appeals’ opinion.
She might have lost anyway, but it’s a good example how a poor decision by the attorneys can really hurt a case.
November 15th, 2009 at 8:28 amWell, I’m one of the people who’ve sent objections to the city over the ‘fee’ and I hope there are others who would have complied with the protest and notice requirements…A form for the purpose is published on Karen’s website and I know of at least 5 other people who’ve used it and sent it in.
But that aside, the bigger problem in this is not Karen’s attorney(s) – but the city.
When she filed the lawsuit claiming the ‘fee’ was a ‘tax,’ the city argued that it wasn’t a tax. The next step then, was to fight on the basis of the rules regarding fees. When Shanahan’s attorney(s) did that, the city came back and argued that those rules don’t apply because the dollar amount charged is really a ‘tax.’
The city has argued against Karen in one instance by saying it’s a fee – and then when against her in another instance by saying it’s a tax.
It can’t be both – either it’s a fee and they needed to follow certain rules to implement it; or it’s a tax and they needed to follow different rules to implement it.
The city can’t pick and choose which rules they want to follow based upon which claims are being made in a lawsuit.
While this looks like a slap at Karen’s attorney(s), I think it’s deeper. I think that, while not ruling on the merits of Karen’s case but only on the class-action status, they’ve may have given credence to the original claim.
But not being an attorney, I’m sure just about anything can happen….
November 15th, 2009 at 8:52 amThe fact that the City’s attorneys may have also been inconsistent yet were not criticized proves my point. It really makes a difference who your attorneys are.
After law school, I was a judicial law clerk in another state for two years. In my experience, these kinds of comments are rare. Shows that this Court may have had similar experiences in other cases with these attornys.
Maggie-you may be right about the eventual outcome of this case. As an attorney and former judicial employee, I found the comments of the Court a lot more interestig.
November 15th, 2009 at 12:07 pmI’m with Jenny. God love Scott Ciolek, but he’s developing a reputation as a crank who represents cranks. Such remarks from the appellate court about attorneys’ incompetence indeed are rare (although with the arrival of Cosme they will now also be hypocritical).
For those interested in seeing more Sixth District opinions slamming attorneys for their incompetence, search for these three Skow classics. First there’s one where he takes Anthony Calamunci to task, referring to his written work as “legalistic flapdoodle.” Second, he maligns a former prosecutor for suggesting that the presence of a road atlas in a car is a red flag for bad behavior and constitutes probable cause for a warrantless search. “Someone better contact Rand McNally.” Third, he excoriates attorney (and Mark Davis campaign operative) Bob Scott by name for his deficient representation of a criminal defendant, stating that calling Scott’s representation “ineffective” assumes, wrongly, that he rendered any assistance at all.
November 15th, 2009 at 12:32 pmAs for Maggie, you’d probably be better off just tending to your own legal affairs and refraining from money laundering.Sujay, your last paragraph speaks volumes about your own character…you have indeed exposed yourself. It isn’t pretty.
November 15th, 2009 at 12:57 pmOh! Sujay! Damn!
As far as Judge Skow is concerned I never really held him in high regard, despite some interesting pts Sujay made. (#6) Skow was a lapdog for a certain man with the initials J.R. if you know what I mean!
November 15th, 2009 at 1:03 pmI would have removed that last paragraph, it isn’t necessary, unfortunately now to do that I’d have to remove other comments. That had nothing to do with this and Maggie’s ability to comment here on this issue has nothing to do with Sujay’s personal observation. I’ve opted to strike it, to make my point.
November 15th, 2009 at 1:38 pmA check of online court records regarding Mr. Ciolek’s co-counsel in this case is very interesting. See who he has represented in the past and you will have a better understanding of these attorneys.
November 15th, 2009 at 2:52 pmJenny – I have heard of Scott’s co-counsel only from this case. What’s his story?
Chad (#8 ): Not sure about Skow ever being the Blade’s stooge. He routinely referred to the paper as a fishwrapper and ripped JR a new one many times in the 90s for, for example, his preoccupation with Melissa Anne Herstrum and his nonstop efforts to get Judge Lanzinger voted out of office. The Blade even acknowledged Skow’s disdain for them in 1993, when one of its editorials urged Skow to run for mayor even though, as they put it, he was no fan of the paper.
Tom (#7) and Lisa Renee (#9) As for my stricken paragraph, I concede. G. Gordon Liddy, Oliver North and Chuck Colson were all convicted felons (North’s conviction was later reversed not on actual innocence, but on a technicality) but they too remain credible enough to blog and have radio shows. I guess.
November 15th, 2009 at 10:17 pmIt also goes without saying that no matter what a person has done, they don’t lose the right to ask questions or to expect equal/fair treatment from government…
I’ll let Jenny answer, though I have an idea what she’s referencing, or who she’s referencing…
November 15th, 2009 at 10:22 pmYes, convicted felons certainly have the right to offer any comments or questons they want, it’s just that their credibility will forever be suspect.
November 15th, 2009 at 10:33 pmThe same could be said for those who decide to be anonymous, since they are not putting themselves up to the same public scrutiny, the motivation for their commentary is also at times suspect. Those who do dare to use their own names unfortunately at times are the target, which in this case? Maggie’s past has nothing to do with the issue nor her ability to comment on this particular lawsuit.
Hopefully we can now return to the actual topic…
November 15th, 2009 at 10:49 pmSujay I was too young to remember any of that. I just remember he always got cases that were filed against the blade and always seemed to rule in their favor. However, it does not mean those lawsuits had any merit.
I am glad Skow stood up for Judge Lanzinger. Their obsession with that case was ridiculous! It was a tough case, and let’s face it how many times does a judge reject a plea deal? Less then 1%?
I never knew they thought Skow should run for mayor!!! Wow!
November 16th, 2009 at 11:19 amSujay, North’s conviction being overturned was not a technicality. His rights were violated. He had a plea deal in exchange for his testimony and the prosecutor chose to ignore it.
Just keeping the points honest here. Not trying to get off topic Lisa.
November 16th, 2009 at 2:16 pmLisa (#14) – Anonymous though most of us commenters are, at least we’re not convicted felons. Felons, especially convicted money launderers who in this post ell others how to properly .. uh … raise money, have no cred on the topic. Anonymous posters are simply …. anonymous and don’t lack cred simply for being anynomous. Different issue.
Mikey (#16) – Correct. North’s conivction was overturned because the prosecutor went back on the deal, NOT BECAUSE OF ACTUAL INNOCENCE on North’s part. Why else enter the plea to begin with?
Chad (#15) – I think that Skow ruled in the Blade’s favor in various lawsuits, like he did in the Jim Godbey case, because the Blade was actually right – and because he stood strongly for the First Amendment rights of any entity, even the Blade’s. He also was a big supporter of open govenrnment and a broad reading of Ohio’s open meetings and public records laws. And the Blade, like them or not, stands head and shoulders above other Ohio newspapers on those issues. It’s a shame that his replacement, Keila Cosme, probably couldn’t name the five rights guaranteed under the First Amendment (speech, religion, assembly, press, right to petition government), but that’s for a different post …
November 16th, 2009 at 9:35 pmSujay, if you are anonymous, no one has a clue as to if you are felon or not.
November 16th, 2009 at 9:36 pmThe other attorney has represented Stainbrook on numerous occasions.
November 18th, 2009 at 6:56 pmLisaRenee – I’m not.
November 18th, 2009 at 9:32 pmWell Sujay, now its on the internet so it must be true. Just promise me I never voted for you.
November 18th, 2009 at 10:44 pmWhen I questioned the “refuse fee”, the City was very careful to define it as a fee and not an assessment nor a tax. If a tax, the city is required to put it on the ballot as a levy for additional taxes and if approved by the voters, they would be required to go back to the voters to increase the tax.
After several weeks of studying the “fee” and several more weeks of searching for an attorney who was willing to “fight city hall”, Kurt Wicklund agreed with my conclusion that it was not legal. However, we had the dilemma of how to proceed. Since the ordinance reference a “fee” the lawsuit was filed against the city ordinance regarding the “fee”. The court has to decide if this is a fee or a tax since it is legal to pass an ordinance for a fee, but not for a tax. How could we file a lawsuit against the city for a “tax” which does not appear in the Municipal Code? It had to be filed as against the “fee” and have the courts decide, fee or tax.
R.C. § 2723.01 requires each person protesting an assessment must file a protest or a tax… it does not state the protest must be filed against a fee. However, we believe filing a civil complaint in court meets the requirement regardless of what the City called it.
I’m distressed by the negative comments regarding Attorney Ciolek and the actions taken. The is a complicated case which does not have clearly defined parameters or history to follow, nor any clear cut cases to research. The attorneys working on this case have a huge battle being waged on our behalf and if any attorney out there has case law that could help the case, please offer it. I reached out to a number of attorneys, legal agencies, activists groups, professors and law schools and all I received were “lots of luck” until Wicklund and Ciolek took up the challenge.
Attorney Ciolek has taken on a number of cases against a city administration which rules by punitive, unreasonable action, cases that no one else would touch, and he has received more rulings in his favor than against him. He is deliberate, thoughtful and thorough. I challenge any attorney out in blogland to offer assistance in the case, which has profound impact on every community in Ohio. The power of this “fee” is huge as can readily be seen by a call to raise the “fee” to $16.00 per month. When we elect our leaders we elect with the hope they will comply with the law. I say they have not and it is costing us millions of dollars a year in illegally gained taxes.
Please visit the following blogs for more information: http://trashtax.blogspot.com/ and
November 19th, 2009 at 10:26 pmhttp://shanahanselect.blogspot.com/. As the courts denied class action, I suggest you file your protest today and let the attorneys know by emailing: Trashtax@gmail.com to ensure there is a record you filed. To date we have 75 who have let us know they filed. That leaves 89,925 to go.
I want to also thank Maggie for all her help and support on the issue of the trash tax, it had been going on now for 2 very stressful years. Had Maggie not offered her support 2 years ago, there would not be a case, she gave the referral which ultimately connected the lawsuit, the attorneys and me. No one else would touch it. It takes strength, knowledge, determination and believe to do this. Each of you should give it a try sometime… and stay with it year after year.
November 19th, 2009 at 10:31 pm