[Cite as Riverside v. State, 2014-Ohio-1974.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
CITY OF RIVERSIDE
Plaintiff-Appellant
v.
STATE OF OHIO
Defendant-Appellee
Appellate Case No. 26024
Trial Court Case No. 2013-CV-4691
(Civil Appeal from (Common Pleas Court) ...........
OPINION
Rendered on the 9th day of May, 2014.
...........
DANIEL J. BUCKLEY, Atty. Reg. No. 0003772, ADAM C. SHERMAN, Atty. Reg. No. 0076850, JACOB D. MAHLE, Atty. Reg. No. 0080797, JESSICA K. BAVERMAN, Atty. Reg. No. 0083951, 301 East Fourth Street, Suite 3500, Cincinnati, Ohio 45202, JOHN KULEWICZ, Atty. Reg. No. 0008376, 52 East Gay Street, P.O. Box 108, Columbus, Ohio 43216 Attorneys for Plaintiff-Appellant
RICHARD N. COGLIANESE, Atty. Reg. No. 0066830, ZACHERY KELLER, Atty. Reg. No. 0086930, Assistant Attorneys General, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215 Attorneys for Defendant-Appellee
.............
WELBAUM, J. 2
{¶ 1} Plaintiff-Appellant, City of Riverside (“Riverside”), appeals from a trial court
decision granting a motion to dismiss that was filed by Defendant-Appellee, State of Ohio.
Riverside contends that it complied with standing requirements for bringing its action, and that
the trial court erroneously applied an improper standard in ruling on the motion to dismiss.
{¶ 2} We conclude that the trial court erred in finding that Riverside lacked standing
to bring its action. The allegations in the complaint, taken as true, satisfy the requirements for
third-party standing. Accordingly, the judgment of the trial court will be reversed.
I. Facts and Course of Proceedings
{¶ 3} In August 2013, Riverside filed a complaint for declaratory judgment against
the State of Ohio, alleging that R.C. 718.11(H)(11) violates the Equal Protection Clauses of the
United States and Ohio State constitutions. R.C. 718.11(H) exempts certain individuals who
work on Wright Patterson Air Force Base (“WPAFB”) from municipal taxation.
{¶ 4} In the complaint, Riverside alleged that in 1994, the Village of Riverside had
merged with Mad River Township to create Riverside. As a result of the merger, parts of
WPAFB were physically located within Riverside. These parts included the area of WPAFB
formerly known as Page Manor, the National Museum of the United States Air Force, and a
portion of what is known as “Area B.”
{¶ 5} In 2005, a court decision held that the merger was valid, and that Riverside
could levy its municipal income tax, which was 1.5%, on civilian employees and civilian
contractors working on the parts of WPAFB that were located within Riverside. In April 2007,
Riverside obtained the names and base mail locations of all civilian employees and civilian 3
contractors working at WPAFB, and began attempting to collect the tax. However, the
legislature then enacted R.C. 718.01(F)(11) [now R.C. 718.01(H)(11)], which exempted these
employees and contractors from Riverside’s municipal tax.
{¶ 6} Riverside initially filed a declaratory judgment action against the State of Ohio
in the Franklin County Court of Common Pleas. In that complaint, which was filed in August
2008, Riverside alleged three grounds for invalidating R.C. 718.01(H)(11): (1) that it violated 4
U.S.C. 105 et. seq. (known as the Buck Act); (2) that it violated the Ohio and federal Equal
Protection Clauses; and (3) that it violated the “one-subject rule” of the Ohio Constitution.
Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, 944 N.E.2d 281, ¶ 2 (10th
Dist.2010)(Riverside I). The trial court granted summary judgment to Riverside on the first and
third grounds, and held the statute unconstitutional. However, the court denied summary
judgment to Riverside on the equal protection claim. In this regard, the court of appeals noted
that:
With respect to the city's equal protection argument, however, the [trial]
court concluded that summary judgment was inappropriate. The record contained
insufficient facts to determine whether the city had standing to assert an equal
protection claim. Nevertheless, discussing the city's equal protection argument as
if standing existed, the court also stated, “While * * * in a full hearing with
appropriate evidence being presented, it is possible that the State's argument on
equal protection [asserting a rational basis for the statute] would fail, this court
cannot say that summary judgment should be granted to [the city] on this issue.”
Riverside I at ¶ 5, quoting from the trial court decision. 4
{¶ 7} On appeal, the Tenth District Court of Appeals reversed the trial court’s grant of
summary judgment. The court concluded that R.C. 718.01(H)(11) did not conflict with the
Buck Act, because the Buck Act allowed states to extend taxes to persons residing in or carrying
on business in federal areas. Rather than taxing, however, the State had simply decided not to
exercise its jurisdiction to tax, and had not undermined the Act’s effect. Id. at ¶ 19-33. In
addition, the court of appeals rejected the application of the one-subject rule. The court
reasoned that “provisions in appropriations bills directly related to taxation and revenue
generation have survived one-subject scrutiny[,]” and the restriction on Riverside’s ability to
generate income had “a direct effect on the state’s funding for the city.” Id. at ¶ 44-45.
{¶ 8} The Tenth District Court of Appeals refused to consider the standing issue
because the trial court had not ruled on the matter or on the merits of the equal protection
argument. Accordingly, the court remanded the case to the trial court for further resolution. Id.
at ¶ 58.
{¶ 9} According to the State, Riverside subsequently dismissed the action in Franklin
County without prejudice, and filed a second action in federal district court. Riverside then
stipulated to dismissal of that action due to lack of subject matter jurisdiction. However,
Riverside’s complaint did not make any allegations about the prior actions.
{¶ 10} In the complaint filed in Montgomery County Common Pleas Court in August
2013, Riverside alleged that the action against the State was being brought on behalf of three
groups: (1) Riverside’s taxpaying residents who receive the benefit of city services that are
funded in part by municipal income tax, and are negatively impacted by R.C. 718.01(H)(11)’s
prohibition on collection of municipal tax; (2) individuals working within Riverside’s boundaries 5
on premises other than WPAFB who are subject to Riverside’s income tax; and (3) Ohio citizens
who are federal employees not working at WPAFB and who are subject to the municipal income
tax of the municipality in which they work.
{¶ 11} Paragraph 22 of the complaint discusses Riverside’s standing to assert the right
of these citizens. This paragraph alleges that Riverside had suffered an injury-in-fact by being
prohibited from collecting the tax; that Riverside possesses a sufficiently close relationship to
these Ohio citizens; and that these citizens face hindrances to bringing suit. The hindrances
alleged include: (1) the expense of litigation; (2) lack of incentive due to the high cost of
litigation and the lack of a direct financial stake on the part of each individual plaintiff; and (3)
the threat of sanctions that could be levied against the plaintiffs.
{¶ 12} Riverside asked for a declaration that R.C. 718.01(H)(11) violates the Equal
Protection Clauses of the federal and state constitutions by arbitrarily and capriciously granting
tax exemptions to employees and contractors working at WPAFB, while denying the exemption
to similarly-situated Ohio citizens. Riverside also requested injunctive relief.
{¶ 13} In September 2013, the State filed a motion to dismiss pursuant to Civ.R
12(B)(1) and (6). The State alleged that Riverside was not entitled to bring equal protection
claims against the State, and that Riverside failed to set forth a viable theory of relief on
substantive grounds. In addition, the State alleged that Riverside lacked standing to bring claims
on behalf of the identified Ohio citizens and that the tax exemption satisfied rational basis
scrutiny.
{¶ 14} After reviewing the memoranda filed by the parties, the trial court sustained the
State’s motion to dismiss. The court’s decision was based solely on the conclusion that the 6
hindrances alleged by Riverside failed to constitute sufficient hindrances under relevant legal
authority. Riverside appeals from the judgment dismissing its complaint.
II. Did the Trial Court Err in Dismissing the Complaint?
{¶ 15} Riverside’s sole assignment of error states that:
Where the City of Riverside Alleged Each Element of the Third-Party
Standing Doctrine and Specific Facts in Support of Each Element, the Trial Court
Erred in Dismissing the Complaint.
{¶ 16} Under this assignment of error, Riverside contends that it alleged the
appropriate elements necessary to establish third-party standing in Ohio, and that the trial court
erroneously applied a more stringent standard than notice pleading requires. In response, the
State argues that the allegations in the complaint are limited and vague. The State also argues
that even if the complaint adequately pleads third-party standing, the dismissal was correct in
view of other reasons for dismissal that the State raised in the trial court.
{¶ 17} The State’s motion was made pursuant to Civ.R. 12(B)(1) and (6), which are
based, respectively, on “lack of subject matter jurisdiction” and “failure to state a claim upon
which relief can be granted.” “The standard of review for a dismissal pursuant to Civ.R.
12(B)(1) is whether any cause of action cognizable by the forum has been raised in the
complaint.” State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989).
(Citations omitted.) However, “[t]he trial court is not confined to the allegations of the
complaint when determining its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion
to dismiss, and it may consider material pertinent to such inquiry without converting the motion 7
into one for summary judgment.” Southgate Development Corp. v. Columbia Gas Transmission
Corp., 48 Ohio St.2d 211, 358 N.E.2d 526, 527 (1976), paragraph one of the syllabus. When
deciding if the trial court erred, we consider the matter de novo and apply the same standards as
the trial court. Toliver v. Montgomery Cty. Jobs & Family Servs. Div., 2d Dist. Montgomery
No. 22979, 2009-Ohio-3521, ¶ 24. (Citations omitted.)
{¶ 18} In contrast, the court noted in Bush that:
A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted will only be granted where the party opposing the
motion is unable to prove any set of facts that would entitle him to relief. Korodi
v. Minot (1987), 40 Ohio App.3d 1, 3, 531 N.E.2d 318, 321. Indeed, before a
court may dismiss an action under this rule, “ * * * it must appear beyond doubt
from the complaint that the plaintiff can prove no set of facts entitling him to
recovery.” O'Brien v. University Community Tenants Union (1975), 42 Ohio
St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. To make this determination,
the court is required to interpret all material allegations in the complaint as true
and admitted. Phung v. Waste Management, Inc. (1986), 23 Ohio St.3d 100, 102,
23 OBR 260, 262, 491 N.E.2d 1114, 1116. Bush, 42 Ohio St.3d at 80.
{¶ 19} Because the trial court used only the Civ.R. 12(B)(6) standard, we will do the
same. As was noted, the trial court concluded that the hindrances alleged by Riverside were
insufficient. This particular criterion is based on the test for third-party standing that was
outlined in E. Liverpool v. Columbiana Cty. Budget Comm., 114 Ohio St.3d 133,
2007-Ohio-3759, 870 N.E.2d 705. In that case, the city of East Liverpool brought an action 8
alleging that 2002 Sub.H.B. No. 329 (which related to methods of apportioning county funds
among political subdivisions), violated the constitutional guarantees of uniformity and equal
protection. Id. at ¶ 1-2. In discussing the equal protection challenge, the Supreme Court of
Ohio first noted that political subdivisions ordinarily do not receive “ ‘protection from the Equal
Protection or Due Process Clauses vis-a-vis its creating state.’ ” Id. at ¶ 20, quoting Avon Lake
City School Dist. v. Limbach, 35 Ohio St.3d 118, 122, 518 N.E.2d 1190 (1988). However, in
the specific case at hand, East Liverpool was not asserting equal protection rights for itself; it was
advancing these rights on behalf of its citizens and council members. Id. at ¶ 21.
{¶ 20} The Supreme Court of Ohio noted that political subdivisions generally lack
standing to assert the rights of third parties. Id. Nonetheless, the court elected to follow federal
decisions, which recognize an exception to the general rule “when a claimant (i) suffers its own
injury in fact, (ii) possesses a sufficiently ‘ “close” relationship with the person who possesses
the right,’ and (iii) shows some ‘hindrance’ that stands in the way of the claimant seeking relief.”
E. Liverpool at ¶ 22, quoting Kowalski v. Tesmer, 543 U.S. 125, 129-130, 125 S.Ct. 564, 160
L.Ed.2d 519 (2004).
{¶ 21} Concerning the first factor, the Supreme Court of Ohio observed that:
* * * East Liverpool suffers a direct injury to its own treasury. Indeed,
the equal protection interest of East Liverpool's citizens concerns their interest in
the city's treasury: if East Liverpool is deprived of its voice in determining the
nature of the alternative method of apportionment, the city may have less money
to furnish services to its citizens. The injury claimed by East Liverpool is
intertwined with the injury claimed by its citizens. Id. at ¶ 23. 9
{¶ 22} These comments apply equally to Riverside, because Riverside’s inability to tax
commuters working at WPAFB means that the city may have less money to provide services for
its citizens. Regarding the second branch of the test, the Supreme Court of Ohio concluded that
the city of East Liverpool and its residents had a close relationship in view of the fact that “[t]he
city and its citizens have an interdependent interest in the city's treasury.” E. Liverpool, 114
Ohio St.3d 133, 2007-Ohio-3759, 870 N.E.2d 705, at ¶ 24. Again, these observations would
pertain equally to the situation of Riverside and its citizens.
{¶ 23} Finally, regarding the “hindrance factor,” the Supreme Court of Ohio noted that:
Third, efforts by East Liverpool's citizens to assert their own claims have
been hindered. Certain individual citizen/taxpayers of East Liverpool already
tried to assert an equal protection claim, only to have it denied for lack of
standing. Satow v. Columbiana Cty. Budget Comm., Columbiana App. No.
04-CO-13, 2005-Ohio-5312, 2005 WL 2450165, ¶ 8, 20-22. Specifically, the
Seventh District Court of Appeals in Satow concluded that individual citizens of
East Liverpool “merely allege injuries that harm the public generally and have
failed to adduce personal injuries caused by the statute.” Id. at ¶ 21. Therefore,
we believe that East Liverpool is the appropriate claimant under these
circumstances to assert the equal protection claim on behalf of its citizens. See
Craig v. Boren (1976), 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397. See,
also, Cincinnati City School Dist. v. State Bd. of Edn. (1996), 113 Ohio App.3d
305, 314, 680 N.E.2d 1061 (permitting school district to challenge territory
transfer based on equal protection rights of students); Washington v. Seattle 10
School Dist. No. 1 (1982), 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (school
district successfully challenged state ballot initiative as violating equal protection
rights of students). E. Liverpool at ¶ 25.
{¶ 24} In the case before us, the trial court made the following observations
when it held that Riverside made “insufficient factual allegations to demonstrate
its standing”: * * * Riverside’s broad assertions that the
individuals who possess the relevant rights face hindrances, including the
expenses of litigation and lack of a direct financial stake in the outcome, are
insufficient to show a hindrance that stands in the way of those individuals
seeking relief. Decision, Order and Entry Sustaining Defendant State of Ohio’s
Motion to Dismiss; Entry of Dismissal, Doc. #19, p. 12.
{¶ 25} We disagree with the trial court. We see no difference between the status of
the citizens in E. Liverpool and the status of the citizens of Riverside. In both situations, the
interest of the citizens in the treasury of the city is the same. There is also no indication that the
citizens of Riverside would be any more successful in bringing suit on their own behalf than the
citizens of East Liverpool were. The allegations in the complaint do not indicate that these
citizens suffered any type of personal injury or that the injuries are anything other than the harm
generally suffered by the public.
{¶ 26} Admittedly, the Riverside citizens did not file a complaint and have it dismissed
for lack of standing. However, we do not read E. Liverpool to require such a futile gesture
before a city can file suit on behalf of its citizens. The Supreme Court of Ohio did not state this
type of waste of judicial resources and money would be required. 11
{¶ 27} The cases cited by the Supreme Court of Ohio in connection with the
“hindrance” prong also do not outline such a requirement. For example, in Cincinnati City
School Dist., 113 Ohio App.3d 305, 680 N.E.2d 1061(10th Dist. 1996), the court of appeals
concluded that a school district had standing to assert the equal protection rights of its students.
Id. at 314-316. There is no indication in the case that the students had attempted to file an action
of any kind, or that they had attempted to intervene in the school district’s case.
{¶ 28} We have emphasized that “Ohio is a notice pleading, not a fact pleading, state.”
(Citation omitted.) Springfield v. Palco Invest. Co., Inc., 2013-Ohio-2348, 992 N.E.2d 1194, ¶
33 (2d Dist.) We have also stressed that plaintiffs do not have to prove their cases at the
pleading stage. Id. Accepting the allegations in the complaint as true, as is required for
purposes of Civ.R. 12(B)(6), we conclude that Riverside met the requirements under E.
Liverpool to establish standing on behalf of third-parties. Accordingly, the trial court erred in
holding otherwise.
{¶ 29} The State contends, however, that even if Riverside had standing, the dismissal
should be affirmed on other grounds. First, the State argues that the tax exemption does not
affect the equal protection rights of Riverside residents as a whole, because it does not treat
Riverside residents themselves differently with respect to Riverside’s municipal income tax.
However, that is not the focus of the complaint. As Riverside points out, Riverside residents
who work in other municipalities are required to pay tax to those municipalities, while employees
and contractors who work in Riverside at WPAFB do not have to pay tax to Riverside.
Furthermore, persons who work within Riverside’s boundaries on premises other than WPAFB
are subject to municipal tax, while employees and contractors who work in Riverside at WPAFB 12
are exempt from the tax. Whether such differences constitute a violation of equal protection is a
matter for the merits of the case, not a decision to be made after reviewing the complaint. We
note that the trial court did not address these matters.
{¶ 30} Additionally, the State argues that Riverside failed to plead a proper theory for
declaratory or injunctive relief. In this regard, the State contends that the Declaratory Judgment
Act does not create substantive rights, and that Riverside must identify the source of its
“substantive” right to sue. Although Riverside has already indicated that its claims are being
brought pursuant to the Equal Protection Clauses of the United States and Ohio State
constitutions, the State argues that this is not enough.
{¶ 31} The State first notes that the Fourteenth Amendment of the United States
Constitution does not allow a private right of action. Second, the State argues that the means of
enforcing the Fourteenth Amendment is a claim brought under 42 U.S.C. 1983, but the State is
not a proper defendant for that purpose. Finally, the State maintains that Article I, Section 2 of
the Ohio Constitution (which encompasses Ohio’s version of the Fourteenth Amendment), is not
self-executing and does not provide substantive rights. Again, the State raised these matters in
the trial court, but the court did not consider them when it dismissed the complaint.
Nonetheless, as the State points out, courts “have consistently held that a reviewing court should
not reverse a correct judgment merely because it is based on erroneous reasons.” Stammco,
L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, ¶ 51,
citing Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990).
{¶ 32} As was noted, Riverside’s complaint requested a declaratory judgment and
injunctive relief. The Declaratory Judgment Act is codified in Chapter 2721 of the Ohio 13
Revised Code. R.C. 2721.03 of Chapter 2721 provides that (subject to an exception that is not
relevant):
* * * [A]ny person interested under a deed, will, written contract, or other
writing constituting a contract or any person whose rights, status, or other legal
relations are affected by a constitutional provision, statute, rule as defined in
section 119.01 of the Revised Code, municipal ordinance, township resolution,
contract, or franchise may have determined any question of construction or
validity arising under the instrument, constitutional provision, statute, rule,
ordinance, resolution, contract, or franchise and obtain a declaration of rights,
status, or other legal relations under it.
{¶ 33} Municipal corporations are specifically included as “persons” for purposes of
the Declaratory Judgment Act. R.C. 2721.01. Thus, a municipal corporation may, under the
Act, have questions determined regarding construction or validity arising under a statute.
Likewise, other persons, like the citizens Riverside represents, may have the construction or
validity of statutes determined in a declaratory judgment action. See, e.g., Moore v. Middletown,
133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 10 and 19 (holding that non-resident
property owners had standing to bring a declaratory judgment action seeking a declaration that
the city’s ordinances, which affected the abutting property of a city resident, were “arbitrary,
capricious, and unconstitutional and violate the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States Constitution * * *.”).
{¶ 34} Constitutional challenges, including equal protection claims, have been brought
in numerous other cases. See, e.g., Couchot v. Ohio State Lottery Comm., 71 Ohio App.3d 371, 14
373, 594 N.E.2d 42 (10th Dist.1991) (holding that the common pleas court has jurisdiction over a
case requesting declaratory and injunctive relief, based on claims that a statute, as amended,
which required payment of Ohio taxes by non-residents on lottery proceeds was an
unconstitutional impairment of contract, violated prohibitions against retroactive laws, and
denied the non-resident due process); Andreyko v. Cincinnati, 153 Ohio App.3d 108,
2003-Ohio-2759, 791 N.E.2d 1025, ¶ 1 and 18 (1st Dist.) (holding that the plaintiff had proved
that “creation of two classes of nonuniformed employees seeking prior service credit – one
purchasing credits at a subsidized cost and the other bearing the full cost – violated his
constitutional right to the equal protection of the laws.”); and Tobacco Use Prevention & Control
Found. Bd. of Trustees v. Boyce, 185 Ohio App.3d 707, 2009-Ohio-6993, 925 N.E.2d 641, ¶ 1-13
(10th Dist.), aff’d., 127 Ohio St.3d 511, 2010-Ohio-6207, 941 N.E.2d 745 (a declaratory
judgment action that alleged the unconstitutionality on various grounds of 2008 H.B. No. 544.
This statute, among other things, liquidated a tobacco endowment fund and distributed the
proceeds into the Ohio State treasury.)
{¶ 35} In Moore, the Supreme Court of Ohio stressed that “judges are cautioned to
remember, standing is not a technical rule intended to keep aggrieved parties out of court. ‘
“Rather, it is a practical concept designed to insure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that judicial decisions which may affect the
rights of others are forged in hot controversy, with each view fairly and vigorously represented.”
’ ” Id. at ¶ 47, quoting Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 486, 815
A.2d 1188 (2003) (Other citation omitted.) The court also made the following comments in
Moore, which are relevant to our case: 15
The court of appeals in this case asserted that R.C. 2721.03 merely
represents a legislative grant of jurisdiction to Ohio courts to hear
declaratory-judgment actions and that the statute does not answer the separate
question of whether the plaintiff has standing to sue. Although it is true that R.C.
Chapter 2721 is the legislative source of a cause of action for declaratory relief,
we do not necessarily agree that the statute does not confer standing. Indeed,
standing can be created by legislation. Middletown v. Ferguson, 25 Ohio St.3d
71, 75, 495 N.E.2d 380 (1986). But aside from whether the statute itself confers
standing, our cases make clear that we are generous in considering whether a party
has standing. (Footnote omitted.) Moore at ¶ 48.
{¶ 36} Thus, contrary to the State’s claims, a declaratory judgment action is not merely
a procedural grant of jurisdiction to state courts, but can confer standing as well. In Moore, the
Supreme Court of Ohio went on to observe that:
Our precedent also makes clear that declaratory relief is available to a
plaintiff who can show that (1) a real controversy exists between the parties, (2)
the controversy is justiciable, and (3) speedy relief is necessary to preserve the
rights of the parties. Haig v. Ohio State Bd. of Edn., 62 Ohio St.3d 507, 511, 584
N.E.2d 704 (1992); Burger Brewing Co. v. Ohio Liquor Control Comm., 34 Ohio
St.2d 93, 97, 296 N.E.2d 261 (1973). Courts have the duty to ensure that
plaintiffs plead these elements for purposes of declaratory-judgment actions and
that the complaint sufficiently avers injury, causation, and redressability. Thus,
our generosity is tempered by an insistence on sufficiency in the pleadings. If a 16
party fails to establish any of the necessary showings to bring the claims, the judge
must dismiss the cause. Moore, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d
977, at ¶ 49.
{¶ 37} After reviewing the allegations in the complaint, we conclude that they comply
with the above requirements. It is clear that a real controversy exists, that the controversy is
justiciable, and that speedy relief is necessary to preserve the rights of the parties. Whether
Riverside would ultimately prevail on the merits is not implicated in this analysis, which pertains
only to whether Riverside has standing to bring the action.
{¶ 38} We also agree with Riverside that the State confuses the legal issues. Riverside
is not attempting to bring a private right of action to recover a judgment against the State;
instead, Riverside is attempting to challenge the constitutionality of a particular statute enacted
by the General Assembly. A declaratory judgment action is the proper avenue for such
challenges, and the case law cited by the State is not on point.
{¶ 39} For example, the State cites PDU, Inc. v. City of Cleveland, 8th Dist. Cuyahoga
No. 81944, 2003-Ohio-3671, for the proposition that the Equal Protection Clause in the Ohio
Constitution, Article 1, Section 2, is not self-executing, and does not provide courts with
sufficient guidance to allow enforcement of its terms. From this, the State reasons that
Riverside may not employ a declaratory judgment action because the Equal Protection Clause
does not provide Riverside or its taxpayers with any substantive rights. We disagree. As was
indicated, numerous cases allow actions to be filed to challenge legislation on constitutional
grounds, including the fact that the statute violates the constitutional right of equal protection.
The Declaratory Judgment Act is a proper vehicle for these actions. 17
{¶ 40} In addition, however, PDU, Inc. has no bearing on the current situation. In
PDU, Inc., a nightclub obtained a money judgment against the city of Cleveland because the city
had allegedly violated its constitutional rights by improperly shutting down the nightclub. Id. at
¶ 1-14. On appeal, the Eighth District Court of Appeals reversed the judgment, concluding that
there is no independent private cause of action that is created by Article 1, Section 2, as well as
other sections of the Ohio Constitution, and that there is no statute in Ohio analogous to Section
1983. Id. at ¶ 27. The court of appeals, therefore, determined that no cause of action was stated,
and that the trial court should have granted summary judgment to the city. Id. at ¶ 27-29.
However, this holding is irrelevant for the reasons mentioned, i.e., Riverside is not suing the
State to recover damages in a private cause of action.
{¶ 41} The State’s final argument is that the dismissal was proper because the tax
exemption in R.C. 718.01(H)(11) satisfies rational basis scrutiny. R.C. 718.01(H) provides, in
pertinent part, that:
A municipal corporation shall not tax any of the following:
***
(11) Beginning August 1, 2007, compensation paid to a person employed
within the boundaries of a United States air force base under the jurisdiction of the
United States air force that is used for the housing of members of the United
States air force and is a center for air force operations, unless the person is subject
to taxation because of residence or domicile. If the compensation is subject to
taxation because of residence or domicile, municipal income tax shall be payable
only to the municipal corporation of residence or domicile. 18
{¶ 42} “The Fourteenth Amendment to the United States Constitution requires any
state to afford ‘to any person within its jurisdiction the equal protection of the laws.’ Section 2,
Article I of the Ohio Constitution provides ‘essentially identical’ protection.” Park Corp. v.
Brook Park, 102 Ohio St.3d 166, 2004-Ohio-2237, 807 N.E.2d 913, ¶ 18, quoting Kinney v.
Kaiser Aluminum & Chem. Corp., 41 Ohio St.2d 120, 123, 322 N.E.2d 880 (1975). “The
standard for determining whether a statute or ordinance violates equal protection is essentially
the same under the state and federal Constitutions.” (Citation omitted.) Id.
{¶ 43} This standard provides that courts in most cases will “give a large degree of
deference to legislatures when reviewing a statute on an equal protection basis. A classification
warrants some kind of heightened review only when it jeopardizes exercise of a fundamental
right or categorizes on the basis of an inherently suspect characteristic; otherwise, ‘the Equal
Protection Clause requires only that the classification rationally further a legitimate state
interest.’ ” Id. at ¶ 20, quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d
1 (1992). The criteria for a rational basis inquiry are that:
“ ‘[T]he Equal Protection Clause is satisfied so long as there is a plausible
policy reason for the classification, the legislative facts on which the classification
is apparently based rationally may have been considered to be true by the
governmental decisionmaker, and the relationship of the classification to its goal
is not so attenuated as to render the distinction arbitrary or irrational.’ ” Park
Corp. at ¶ 22, quoting Fitzgerald v. Racing Assn. of Cent. Iowa, 539 U.S. 103,
107, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003), which in turn, quotes Nordlinger,
505 U.S. at 11-12. 19
{¶ 44} The Supreme Court of Ohio also stressed in Park Corp. that “[t]his already
deferential standard ‘is especially deferential’ in the context of classifications arising out of
complex taxation law.” Park Corp. at ¶ 23. (Citation omitted.) This is because “the States
have large leeway in making classifications and drawing lines which in their judgment produce
reasonable systems of taxation.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359,
93 S.Ct. 1001, 35 L.Ed.2d 351 (1973).
{¶ 45} Despite this deferential standard, we decline the State’s invitation to uphold the
dismissal based solely on the content of the complaint. As an initial matter, the trial court has
not yet ruled on the question of whether the law is rationally based. Riverside should also be
given an opportunity to develop a more complete factual record. As one example of how this
has been done, the parties in Park Corp. “agreed to submit the case on briefs and a stipulated
statement of facts.” See Park Corp. v. City of Brook Park, 8th Dist. Cuyahoga No. 79410,
2002-Ohio-2246, ¶ 16, rev’d., 102 Ohio St.3d 166, 2004-Ohio-2237, 807 N.E.2d 913.
Similarly, in a case the State relies on, the trial court decided the constitutional issue only after
the parties had filed competing motions for summary judgment. Pickaway Cty. Skilled Gaming,
L.L.C. v. Cordray, 183 Ohio App.3d 390, 2009-Ohio-3483, 917 N.E.2d 305, ¶ 1, (10th Dist.),
rev’d., 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944.1 Likewise, in Moore, when the
Supreme Court of Ohio reversed the dismissal of the non-resident property owners’
constitutional claims, the court stressed that:
In so holding, we intimate no opinion on the merits of the property
1 We also note that Pickaway involved a declaratory judgment raising constitutional challenges, including equal protection challenges, to amendments to state gambling statutes. Pickaway, 2009-Ohio-3483, at ¶ 10 and 41-52. The State’s citation to this case is inconsistent with its claim that equal protection cannot provide a substantive basis for Riverside’s action. 20
owners’ due process, equal protection, and police-power claims. We simply hold
that the property owners have a right to pursue discovery on those claims. If they
are not able to marshal facts to support their theories, summary judgment – not a
motion to dismiss for failure to state a claim – is an appropriate way to resolve the
declaratory-judgment action in an efficient, fair manner. Moore, 133 Ohio St.3d
55, 2012-Ohio-3897, 975 N.E.2d 977, at ¶ 55.
{¶ 46} In the case before us, a more complete factual record would assist consideration
of the issues. Accordingly, Riverside’s assignment of error has merit and is sustained.
III. Conclusion
{¶ 47} Riverside’s sole assignment of error having been sustained, the judgment of the
trial court is reversed, and this cause will be remanded for further proceedings.
FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Daniel J. Buckley Adam C. Sherman Jacob D. Mahle Jessica K. Baverman John Kulewicz Richard N. Coglianese 21
Zachery Keller Hon. Mary Katherine Huffman