Athens v. Testa , 119 N.E.3d 469 ( 2019 )

[Cite as Athens v. Testa, 2019-Ohio-277.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Athens et al., :
Plaintiffs-Appellants, : Nos. 18AP-144
and
v. : 18AP-189
(C.P.C. No. 17CV-10258)
Joseph A. Testa, Tax Commissioner :
of the State of Ohio, (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on January 29, 2019
On brief: Frost Brown Todd LLC, Eugene L. Hollins,
Stephen J. Smith, Frank J. Reed, Jr., Yazan S. Ashrawi, and
Thaddeus M. Boggs, for appellants. Argued: Thaddeus M.
Boggs.
On brief: Walter Haverfield LLP, Darrell A. Clay, and
Brendan D. Healy, for appellants. Argued: Darrell A. Clay.
On brief: Brennan, Manna, & Diamond, LLC, Jeffrey C.
Miller, Martin J. Pangrace, Victoria L. Ferrise, Bryan E.
Meek, and Jacob A. Bruner, for appellees.
Argued: Jeffrey C. Miller.
On brief: Zaino Hall & Farrin LLC, Richard C. Farrin, and
Thomas M. Zaino, for Amici Curiae.
APPEALS from the Franklin County Court of Common Pleas.
Nos. 18AP-144 and 18AP-189 2
KLATT, P.J.
{¶ 1} Plaintiffs-appellants, two different coalitions of Ohio municipal corporations,
appeal a judgment of the Franklin County Court of Common Pleas in favor of defendants-
appellees, Tax Commissioner Joseph A. Testa and the state of Ohio (together, "the State").
For the following reasons, we affirm that judgment.
{¶ 2} Many Ohio municipal corporations impose a tax on income earned within
their boundaries. When applied to businesses, that tax is known as the municipal net profit
tax. This case focuses on the constitutionality of the General Assembly's efforts to
streamline aspects of the various municipalities' income tax systems and centralize the
collection and administration of the net profit tax.
{¶ 3} Two recent enactments are at issue in this case. First, in 2014, the 130th
General Assembly enacted Sub.H.B. No. 5 (hereinafter, "H.B. 5") to establish more
uniformity in the way Ohio municipalities administer their income tax systems. As
amended by H.B. 5, R.C. 715.013(B) permits municipal corporations to levy an income tax
"in accordance with Chapter 718 of the Revised Code." Accord R.C. 718.04(A) ("A
municipal corporation may levy a tax on income and a withholding tax if such taxes are
levied in accordance with the provisions and limitations specified in [R.C. Chapter 718].").
In relevant part, the provisions adopted in H.B. 5 require that municipal corporations:
 Maintain a local board of tax review with the composition, powers, and
procedures set forth in R.C. 718.11;
 Charge interest on untimely or partial income tax payments at the rate
specified in R.C. 718.27(A) and (C)(1);
 Charge a penalty at the rate specified if a taxpayer makes an untimely or
partial income tax payment or a taxpayer fails to timely file a return (R.C.
718.27(C)(2));
 Ensure that any rules adopted to administer a municipal income tax do not
conflict with any provision of R.C. Chapter 718 (R.C. 718.30); and
 Not pay a person hired or retained to examine or inspect a taxpayer's books
on a contingency basis (R.C. 718.31).
Nos. 18AP-144 and 18AP-189 3
Additionally, H.B. 5 sets forth standards a municipal tax administrator may consider when
deciding whether to accept a compromise or payment-over-time agreement to resolve a
claim for unpaid income taxes. R.C. 718.28(C).
{¶ 4} In 2017, the 132d General Assembly enacted Am.Sub.H.B. No. 49
(hereinafter, "H.B. 49"), the biennial budget bill for fiscal years 2018 and 2019. H.B. 49
adopted new sections R.C. 718.80 through 718.95. These sections provide business
taxpayers with the opportunity to opt for the State to collect and administer the taxpayer's
municipal net profit taxes.
{¶ 5} Prior to the advent of H.B. 49, each municipality that imposed a net profit tax
controlled the collection and administration of that tax, resulting in significant compliance
costs for business taxpayers that operated in multiple municipalities. Those taxpayers may
now register to file a single return and pay all net profit taxes through the State's centralized
system. If a business taxpayer does not opt into the state system, it remains subject to the
rules and procedures of the municipalities in which it owes net profit taxes.
{¶ 6} Under the new provisions, the tax commissioner is the sole administrator of
all municipal net profit taxes owed by taxpayers who choose to file with the State. R.C.
718.80(A)(1). Consequently, the tax commissioner collects the taxes and estimated tax
payments, audits taxpayers, makes assessments against taxpayers for delinquent or
incorrect returns or payments, and issues refunds of overpaid taxes. R.C. 718.85(A)(1)
(requiring submission of annual net-profit-tax returns and taxes to the tax commissioner);
R.C. 718.88(C) (requiring submission of declarations of estimated net profit taxes and
estimated net-profit-tax payments to the tax commissioner); R.C. 718.90 (authorizing the
tax commissioner to make assessments and pursue collection of unpaid assessments); R.C.
718.91 (authorizing the tax commissioner to issue refunds); R.C. 718.93 (authorizing the
tax commissioner to examine a taxpayer's records to verify the accuracy of a return or to
ascertain the amount of net profit tax due).
{¶ 7} Each month, the tax commissioner must certify to the director of budget and
management the amount of net-profit-tax revenue due to each municipal corporation. R.C.
718.83(A). The director of budget and management must then distribute the certified
amount to each municipal corporation. Id. However, the State retains one-half percent of
Nos. 18AP-144 and 18AP-189 4
all net profit taxes paid to the tax commissioner as a fee for the collection and
administration services the commissioner provides. R.C. 718.85(B).
{¶ 8} To enable the tax commissioner to administer the disparate net profit taxes
of each municipality, all municipalities with an income tax must certify to the tax
commissioner the rate of the tax, as well as any increase in that rate. R.C. 718.80(C)(1)(a)
and (b). Additionally, within 90 days of receiving notice that a taxpayer has opted to file
with the State, a municipality must report to the tax commissioner specified information
about the taxpayer, including whether the taxpayer is entitled to any net operating loss
carryforward or tax credits. R.C. 718.80(C)(2). If a municipal corporation fails to timely
provide any of the required information, the tax commissioner may penalize it by
withholding 50 percent of the net-profit-tax revenue due to it. R.C. 718.80(C)(3).
{¶ 9} When a business taxpayer conducts operations both inside and outside a
taxing municipality, the business only owes tax on the net profit apportioned to the
municipality. For all municipal net profit taxpayers, a three-factor test based on a business'
payroll, sales, and property determines the portion of a business' net profits attributable to
a particular municipality. R.C. 718.02(A) (setting forth the three factors applicable to
business taxpayers not electing to file with the State); R.C. 718.82(A) (setting forth identical
factors for apportioning net profit for business taxpayers electing to file with the State). If
a taxpayer opts into the State's centralized system, the tax commissioner may approve an
alternative apportionment if the three factors do not fairly represent the extent of a
taxpayer's business activity in a municipal corporation. R.C. 718.82(B).
{¶ 10} In addition to permitting the State to collect and administer net profit taxes,
H.B. 49 also eliminated the "throwback rule." Under that rule, a business taxpayer's net
profit in a particular municipality included gross receipts from sales of goods shipped from
the municipality to purchasers outside the municipality if the taxpayer had not solicited
sales at the location of the delivery. Former 718.02(D)(1)(c). In other words, in certain
circumstances, gross receipts from sales to customers outside a municipal corporation were
"thrown back" to the municipal corporation and counted as taxable net profit. Due to the
amendments made in H.B. 49, municipalities are no longer permitted to tax such net profit.
{¶ 11} Finally, in uncodified Section 803.100(B), H.B. 49 required each municipal
corporation to adopt, by ordinance or resolution, the provisions of R.C. 718.80 through
Nos. 18AP-144 and 18AP-189 5
718.95 by January 31, 2018. This requirement corresponds with the mandate of R.C.
718.04(A), which obligates municipal corporations to levy income taxes "in accordance with
the provisions and limitations specified in [R.C. Chapter 718]."
{¶ 12} On November 16, 2017, a coalition of Ohio municipalities (collectively, "the
Athens plaintiffs") filed an action for declaratory judgment and injunctive relief against the
State.1 In short, the Athens plaintiffs challenged the constitutionality of the provisions of
H.B. 5 and H.B. 49 set forth above. The Athens plaintiffs sought a declaratory judgment
stating: (1) the challenged provisions of H.B. 5 violate the Ohio Constitution's Home Rule
Amendment; (2) the challenged provisions of H.B. 49 violate the Ohio Constitution's Home
Rule Amendment; (3) H.B. 49 violates the Ohio Constitution's One-Subject Rule; (4) the
challenged provisions of H.B. 49 unconstitutionally impair contractual obligations in
violation of Article II, Section 28 of the Ohio Constitution; (5) the challenged provisions of
H.B. 49 effect a conversion of the Athens plaintiffs' property; (6) the challenged provisions
of H.B. 49 effect a taking of property without just compensation in violation of Article I,
Section 19 of the Ohio Constitution; and (7) the challenged provisions of H.B. 49 effect a
deprivation of property without remedy by due course of law in violation of Article I, Section
16 of the Ohio Constitution. The Athens plaintiffs also sought preliminary and permanent
injunctions enjoining the State from taking any action to enforce the challenged provisions
of H.B. 5 and H.B. 49.
{¶ 13} With the agreement of all parties, the trial court entered an order temporarily
staying the mandate of uncodified Section 803.100(B) of H.B. 49. Under the terms of the
stay, municipalities did not have to adopt the provisions of R.C. 718.80 through 718.95 until
February 24, 2018 or until further order of the court. In the same order, the trial court set
a briefing schedule for the Athens plaintiffs' anticipated motion for a preliminary
injunction. The trial court also scheduled a preliminary injunction hearing for February 12
and 13, 2018.
{¶ 14} Before briefing of the preliminary injunction motion concluded, a second
coalition of Ohio municipalities (collectively, "the Elyria plaintiffs") moved to intervene in
1 The Athens plaintiffs consist of 163 Ohio municipalities, including Cleveland, Columbus, Cincinnati,
Akron, and Dayton.
Nos. 18AP-144 and 18AP-189 6
the Athens plaintiffs' action.2 The Elyria plaintiffs had filed an action for declaratory
judgment and injunctive relief in the Lorain County Court of Common Pleas on
December 12, 2017. In their complaint, the Elyria plaintiffs had asked the trial court to
(1) declare that the challenged provisions of H.B. 49 violate the Home Rule Amendment of
the Ohio Constitution and (2) enjoin the implementation, application, and effectiveness of
the challenged provisions of H.B. 49.
{¶ 15} Rather than answering the Elyria plaintiffs' complaint, the State moved to
transfer the action to the Franklin County Court of Common Pleas. When the Lorain
County court granted that motion, the Elyria plaintiffs decided to move to intervene in the
Athens plaintiffs' action so they could participate in the upcoming preliminary injunction
hearing. The trial court granted the Elyria plaintiffs' motion.
{¶ 16} At the preliminary injunction hearing, the Athens and Elyria plaintiffs and
the State presented witnesses and documentary evidence. The trial court, however, never
explicitly ruled on the motion for preliminary injunction. Instead, in a judgment issued
February 21, 2018, the trial court concluded that it could resolve the actions before it on
their merits because the outcome of those actions hinged on legal determinations, i.e.,
whether the challenged provisions of H.B. 5 and H.B. 49 were facially unconstitutional. The
trial court found: (1) the challenged provisions of H.B. 5 and H.B. 49 were constitutional
under the Home Rule Amendment, (2) H.B. 49 did not violate the One-Subject Rule, and
(3) the Athens plaintiffs' remaining legal challenges to H.B. 49 all failed. The trial court
also dissolved the stay of the municipalities' obligation under uncodified Section 803.100
of H.B. 49 to adopt the provisions of R.C. 718.80 through 718.95.
{¶ 17} The Athens plaintiffs now appeal the February 21, 2018 judgment and assign
the following errors:
1. The trial court erred in granting judgment to the
Defendant[s]-Appellees.
2. The trial court erred in denying Plaintiff[s]-Appellants'
request for preliminary injunction.
2The Elyria plaintiffs consist of 29 municipalities, which, with one exception, are located in northeastern
Ohio.
Nos. 18AP-144 and 18AP-189 7
{¶ 18} The Elyria plaintiffs also appeal the February 21, 2018 judgment, and they
assign as error:
[1.] The trial court acted in derogation of Civ.R. 65(B)(2) when,
in addressing Plaintiffs' Motion for Preliminary Injunction, it
dismissed Plaintiffs' Complaint without first issuing an order
consolidating the trial on the merits with the preliminary
injunction hearing.
[2.] The trial court erred in finding that H.B. 49's amendments
to Chapter 718 of the Ohio Revised Code did not violate
Plaintiffs' Home Rule Authority under Article XVIII, Section 3
of the Ohio Constitution.
{¶ 19} We will begin our review with the Elyria plaintiffs' first assignment of error.
By that assignment of error, the Elyria plaintiffs argue that the trial court erred in
dismissing their complaint without first consolidating the preliminary injunction hearing
with a trial on the merits.
{¶ 20} Initially, the Elyria plaintiffs misapprehend the nature of the trial court's
February 21, 2018 judgment. That judgment did not dismiss the Elyria plaintiffs' action; it
entered a judgment on the merits in the State's favor. We thus interpret the Elyria plaintiffs'
first assignment of error as challenging the February 21, 2018 judgment as a premature
resolution of the merits of their action. While we agree that the trial court erred as argued,
we do not find that the error warrants a reversal of the February 21, 2018 judgment.
{¶ 21} Generally, a trial court may not dispose of a case on the merits following a
hearing for a preliminary injunction without first consolidating that hearing with a trial on
the merits or otherwise giving notice, either before or during the hearing, that the court
intends to consider the merits. Cairelli v. Brunner, 10th Dist. No. 15AP-854, 2016-Ohio-
5535, ¶ 24; Ohio Serv. Group, Inc. v. Integrated & Open Sys., LLC, 10th Dist. No. 06AP-
433, 2006-Ohio-6738, ¶ 10; Seasonings Etcetera, Inc. v. Nay, 10th Dist. No. 92AP-1056
(Feb. 23, 1993). This prohibition arises from Civ.R. 65(B), which states, "Before or after the
commencement of the hearing of an application for a preliminary injunction, the court may
order the trial of the action on the merits to be advanced and consolidated with the hearing
of the application." Allowing discretionary consolidation saves time and expense for the
court and the litigants. Cairelli at ¶ 26; Ohio Serv. Group at ¶ 10. However, to ensure the
parties a full and fair opportunity to litigate, the trial court must provide the parties with a
Nos. 18AP-144 and 18AP-189 8
clear and unambiguous notice of the court's intent to consolidate in enough time to allow
the parties to prepare and present their cases at the hearing. Cairelli at ¶ 24; Ohio Serv.
Group at ¶ 10.
{¶ 22} Here, the trial court gave no advance notice that it intended to forgo deciding
the preliminary injunction motion and, instead, issue a judgment on the merits. The trial
court, therefore, erred. However, not all error results in a reversal of a trial court's
judgment. In order to secure a reversal, an appellant " 'must not only show some error but
must also show that that error was prejudicial to him.' " Hampel v. Food Ingredients
Specialties, Inc., 89 Ohio St. 3d 169, 185 (2000), quoting Smith v. Flesher, 12 Ohio St. 2d
107, 110 (1967); accord Theobald v. Univ. of Cincinnati, 160 Ohio App. 3d 342, 2005-Ohio-
1510, ¶ 17 (10th Dist.) ("A reviewing court will not disturb a judgment unless the error
contained within is materially prejudicial to the complaining party."). Thus, in applying
Fed.R.Civ.P. 65, federal courts of appeals have refused to reverse absent a showing that "the
procedures followed resulted in prejudice, i.e., that the lack of notice caused the
complaining party to withhold certain proof which would show his entitlement to relief on
the merits." Eli Lilly & Co. v. Generix Drug Sales, Inc., 460 F.2d 1096, 1106 (5th Cir.1972);
accord Johnson v. White, 528 F.2d 1228, 1231 (2d Cir.1975) (holding that, to obtain a
reversal due to a trial court's belated disclosure of its intent to consolidate, "a party must
show, not only surprise but 'prejudice' in the sense of having other material evidence to
introduce").3
{¶ 23} Relying on Ohio Service Group, the Elyria plaintiffs argue that mere failure
to provide notice constitutes prejudicial error. This argument misreads Ohio Service
Group. In that case, the appellant's counsel told the trial court during the preliminary
injunction hearing that he needed to conduct further discovery when the trial court
suggested that it might "go ahead and resolve" the "whole thing." Id. at ¶ 17. In response,
the trial court agreed to only rule on injunctive relief so the appellant would have an
opportunity to gather and present additional evidence. Despite the trial court's agreement
to defer deciding the case on its merits, the trial court subsequently entered a final judgment
against the appellant. On appeal, we held that "under the facts and circumstances of this
3Federal law does not control interpretation of the Ohio Rules of Civil Procedure, but it can be instructive
where the federal and Ohio rules are similar. First Bank v. Mascrete, Inc., 79 Ohio St. 3d 503, 508 (1997).
Here, we draw on federal law because Fed.R.Civ.P. 65(a)(2) and Ohio Civ.R. 65(B) are substantially similar.
Nos. 18AP-144 and 18AP-189 9
case, the court's failure to provide [ ] notice before disposing of the merits of the case * * *,
constitute[d] prejudicial error." (Emphasis added.) Id. at ¶ 12.
{¶ 24} Based on the circumstances present in Ohio Service Group, the error—the
lack of notice—gave rise to prejudice because it deprived the appellant of the promised
opportunity to present additional evidence following discovery. In other words, the
appellant was prejudiced because it lost the ability to fully and fairly litigate its case prior
to final judgment. Contrary to the Elyria plaintiffs' contention, we did not conclude that
lack of notice results in prejudice in all cases.
{¶ 25} Nevertheless, we recognize that, like the appellant in Ohio Service Group, the
Elyria plaintiffs were denied the opportunity to conduct discovery. While that caused
prejudice to the appellant in Ohio Service Group, the circumstances are different in this
case. Unlike the appellant in Ohio Service Group, the Elyria plaintiffs do not pursue relief
dependent on facts.
{¶ 26} In their complaint, the Elyria plaintiffs asked for a declaratory judgment
stating that the challenged provisions of H.B. 49 violate the Home Rule Amendment of the
Ohio Constitution. A party seeking constitutional review of a statute may either pursue a
facial challenge to the statute or challenge the statute as applied to a specific set of facts.
Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, ¶ 26. A facial
challenge contends that the statute may not be enforced under any circumstances, while an
as-applied challenge asserts that the statute is unconstitutional only in a particular
circumstance. Wymsylo v. Bartec, Inc., 132 Ohio St. 3d 167, 2012-Ohio-2187, ¶ 21. The
Elyria plaintiffs, who assert that H.B. 49 is unconstitutional under all circumstances, raise
a facial challenge. The resolution of such a challenge does not require any reference to
extrinsic facts. Id.; Reading v. Pub. Util. Comm., 109 Ohio St. 3d 193, 2006-Ohio-2181, ¶ 15.
Consequently, the Elyria plaintiffs' inability to conduct discovery did not prejudice it.
Indeed, when pressed on this point during oral argument, the Elyria plaintiffs' counsel
could not articulate any relevant evidence he would have sought in discovery or produced
during the hearing if the trial court had provided proper notice.
{¶ 27} Without a showing of prejudice, the Elyria plaintiffs are not entitled to a
reversal. Accordingly, we overrule the Elyria plaintiffs' first assignment of error.
Nos. 18AP-144 and 18AP-189 10
{¶ 28} We next turn to the Athens plaintiffs' first assignment of error. The Athens
plaintiffs' first assignment of error overlaps with the Elyria plaintiffs' second assignment of
error to the extent that both argue that H.B. 49 violates the Home Rule Amendment of the
Ohio Constitution. We, however, will begin our analysis with an argument that only the
Athens plaintiffs assert: H.B. 49 also violates the One-Subject Rule of the Ohio
Constitution.
{¶ 29} Legislative enactments are entitled to a strong presumption of
constitutionality. Arbino at ¶ 25; Reading at ¶ 25. A party only rebuts that presumption by
establishing beyond a reasonable doubt that the enactment is unconstitutional. Dayton v.
State, 151 Ohio St. 3d 168, 2017-Ohio-6909, ¶ 12; State v. Mole, 149 Ohio St. 3d 215, 2016-
Ohio-5124, ¶ 11. Thus, courts resolve any doubts regarding the constitutional validity of a
legislative enactment in favor of the statute. State v. Mason, 153 Ohio St. 3d 476, 2018-
Ohio-1462, ¶ 5. The constitutionality of an enactment is a question of law, which appellate
courts review de novo. Crutchfield Corp. v. Testa, 151 Ohio St. 3d 278, 2016-Ohio-7760,
¶ 16; Fowler v. Ohio Dept. of Pub. Safety, 10th Dist. No. 16AP-867, 2017-Ohio-7038, ¶ 7.
{¶ 30} Pursuant to Article II, Section 15(D) of the Ohio Constitution, "[n]o bill shall
contain more than one subject, which shall be clearly expressed in its title." The purpose of
this provision, called the One-Subject Rule, is to prevent "logrolling," "the practice by which
several matters are consolidated in a single bill for the purpose of obtaining passage for
proposals which would never achieve a majority if voted on separately." Hoover v. Bd. of
Cty. Comms., 19 Ohio St. 3d 1, 6 (1985). The One-Subject Rule precludes logrolling by
prohibiting enactments dealing with more than one subject on the theory that the best
explanation for such enactments is a tactical one, i.e., logrolling. State ex rel. Dix v. Celeste,
11 Ohio St. 3d 141, 143 (1984).
{¶ 31} The One-Subject Rule is a mandatory provision because contravening it
invalidates an enactment. In re Nowak, 104 Ohio St. 3d 466, 2004-Ohio-6777, ¶ 53-54.
However, the Ohio judiciary's role in the enforcement of the One-Subject Rule remains
limited. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St. 3d 315, 2016-Ohio-
478, ¶ 16. Ohio courts must accord "the General Assembly 'great latitude in enacting
comprehensive legislation by not construing the one-subject provision so as to
unnecessarily restrict the scope and operation of laws, or to multiply their number
Nos. 18AP-144 and 18AP-189 11
excessively, or to prevent legislation from embracing in one act all matters properly
connected with one general subject.' " State ex rel. Ohio Civ. Serv. Emps. Assn. v. State
Emp. Relations Bd., 104 Ohio St. 3d 122, 2004-Ohio-6363, ¶ 27, quoting Dix at 145.
{¶ 32} Given the wide latitude owed to the General Assembly, courts liberally
construe the term "subject" for purposes of the rule. Ohio Civ. Serv. Emps. Assn. at ¶ 16.
Thus, "[t]he mere fact that a bill embraces more than one topic is not fatal as long as a
common purpose or relationship exists between the topics." Id. at ¶ 17; accord Dix at 146
(holding that "the one-subject provision is not directed at plurality but at disunity in subject
matter"). Additionally, only "a manifestly gross and fraudulent violation" of the One-
Subject Rule will invalidate a statute. Dix at paragraph one of the syllabus; accord Nowak
at paragraph one of the syllabus (approving the manifestly-gross-and-fraudulent-violation
standard, but modifying Dix to the extent that Dix held the One-Subject Rule was directory,
not mandatory). This standard recognizes that:
there are rational and practical reasons for the combination of
topics on certain subjects. It acknowledges that the
combination of provisions on a large number of topics, as long
as they are germane to a single subject, may not be for purposes
of logrolling but for the purposes of bringing greater order and
cohesion to the law or of coordinating an improvement of the
law's substance.
Dix at 145. Consequently, if there exists any "practical, rational or legitimate reason for
combining provisions in one act," no violation of the One-Subject Rule occurs. Ohio Civ.
Serv. Emps. Assn. at ¶ 17. Determining whether a bill complies with the One-Subject Rule
"is dependent primarily, if not exclusively, on a case-by-case, semantic and contextual
analysis." Dix at 145.
{¶ 33} The analysis of an appropriations bill, such as H.B. 49, under the One-Subject
Rule presents a court with a difficult challenge. Ohio Civ. Serv. Emps. Assn. at ¶ 18.
Appropriations bills, which fund the state's programs and departments, necessarily address
a wide range of topics. Id. These bills, however, are bound by a single subject: the
balancing of state expenditures against state revenues to ensure operation of state
programs. Id. at ¶ 23; accord State ex rel. Ohio Roundtable v. Taft, 10th Dist. No. 02AP-
911, 2003-Ohio-3340, ¶ 48 ("[B]udget bills by their nature will contain a multiplicity of
Nos. 18AP-144 and 18AP-189 12
items united by the common subject of appropriations for the operation of governmental
services in the state of Ohio.").
{¶ 34} The Athens plaintiffs argue that the challenged provisions, R.C. 718.80
through 718.95, do not share a common purpose or relationship with the other provisions
of H.B. 49 because they do not require any state expenditure of funds to ensure their
implementation. The Athens plaintiffs are incorrect. Municipal income tax administration
is a line item in the Department of Taxation's budget. In uncodified Section 409.10 of H.B.
49, the General Assembly appropriated to the municipal-income-tax-administration fund
$2.4 million in fiscal year 2018 and $5.15 million in fiscal year 2019. Previously, the money
in the municipal-income-tax-administration fund solely paid the costs of administering the
municipal income tax on electric-light and local-exchange-telephone companies. Ohio
Legislative Service Commission, Analysis of Enacted Budget, Department of Taxation, at 15
(Aug. 2017), available at
https://www.lsc.ohio.gov/documents/budget/132/MainOperating/greenbook/TAX.PDF
(accessed Jan. 25, 2019). Compared with the amount allocated to that fund for fiscal year
2017, the 2018-2019 budget "provide[d] an additional $2.25 million in FY 2018 and $5.0
million in FY 2019 for the Department's administrative costs from the expected additional
workload" occasioned by R.C. 718.80 through 718.95. Id. at 4. Thus, contrary to the Athens
plaintiffs' assertions, the General Assembly did not intend the State's retention of one-half
percent of the net profit taxes collected to cover all the expected costs. Enactment of R.C.
718.80 through 718.95 required expenditure of State funds, which was accounted for in the
state budget.
{¶ 35} While the appropriation of funds relates to the single subject of an
appropriations bill, mere impact on the state budget does not ensure the challenged
provisions of an appropriations bill will survive review under the One-Subject Rule. See
State ex rel. Ohio Civ. Serv. Emps. Assn., 104 Ohio St. 3d 122, 2004-Ohio-6363, at ¶ 33
(rejecting the proposition that "a provision that impacts the state budget, even if only
slightly, may be lawfully included in an appropriations bill merely because other provisions
in the bill also impact the budget"). Here, however, the provisions at issue not only require
an expenditure, they also relate to government revenue, the other main concern of an
appropriations bill. While the revenues at issue stem from municipal—not state—tax, we
Nos. 18AP-144 and 18AP-189 13
cannot ignore the interconnected nature of the municipal and state fiscal systems. Given
this connection, there is a practical, rational, and legitimate reason to include the
challenged provisions in H.B. 49. Therefore, we conclude that the insertion of new sections
R.C. 718.80 through 718.95 in H.B. 49 is not a manifestly gross and fraudulent violation of
the One-Subject Rule.
{¶ 36} We next turn to an argument contained in the Athens plaintiffs' first
assignment of error and the Elyria plaintiffs' second assignment of error; namely, that the
challenged provisions of H.B. 49 violate the Home Rule Amendment of the Ohio
Constitution. Plaintiffs argue that the Home Rule Amendment empowers municipalities to
collect and administer municipal taxes and R.C. 718.80 through 718.95 unconstitutionally
infringes upon these powers of local self-government.
{¶ 37} Pursuant to Article XVIII, Section 3 of the Ohio Constitution,
"[m]unicipalities shall have authority to exercise all powers of local self-government and to
adopt and enforce within their limits such local police, sanitary and other similar
regulations, as are not in conflict with general laws." Importantly, this provision, called the
Home Rule Amendment, endows municipal corporations with two types of power: (1) all
powers of local self-government, and (2) the power to adopt and enforce police regulations
that are not in conflict with general state laws.4 In this case, we focus on the power granted
to municipalities to exercise local self-government because that power includes the
authority to tax. See New York Frozen Foods, Inc. v. Bedford Heights Income Tax Bd. of
Rev., 150 Ohio St. 3d 386, 2016-Ohio-7582, ¶ 29; Cincinnati Bell Tel. Co. v. Cincinnati, 81
Ohio St. 3d 599, 602 (1998).
{¶ 38} The Home Rule Amendment became part of the Ohio Constitution when
voters approved the language proposed by the 1912 Ohio Constitutional Convention. Prior
to the passage of the Home Rule Amendment, the Ohio Constitution did not invest any
power in the municipalities and, instead, municipal power derived from enactments of the
General Assembly. Cincinnati Bell Tel. Co. at 605. Consequently,
4 Notably, the words "as are not in conflict with general laws" restrict a municipality's exercise of the second
power, but not the first. In re Complaint of Reynoldsburg, 134 Ohio St. 3d 29, 2012-Ohio-5270, ¶ 21; accord
Reading, 109 Ohio St. 3d 193, 2006-Ohio-2181, at ¶ 32 (holding that "the requirement in Section 3, Article
XVIII that municipal regulations must not conflict with general laws is not intended as a restriction on the
substantive powers of local self-government").
Nos. 18AP-144 and 18AP-189 14
municipalities of the state, especially the larger ones, were
continually at the door of Ohio's General Assembly asking for
additional political power for municipalities, or modifications
in some form of previous delegations of such power. Such
power, being legislative only, could be withdrawn from the
municipalities, or amended, at any session of the Legislature.
Municipalities were, therefore, largely a political football for
each succeeding Legislature, and there was neither stability of
law, touching municipal power, nor sufficient elasticity of law
to meet changed and changing municipal conditions. To the
sovereign people of Ohio the municipalities appealed in the
constitution convention of 1912, and the Eighteenth
Amendment, then known as the "Home Rule" Amendment,
was for the first time adopted as a part of the Constitution of
Ohio, wherein the sovereign people of the state expressly
delegated to the sovereign people of the municipalities of the
state full and complete political power in all matters of "local
self-government."
Perrysburg v. Ridgway, 108 Ohio St. 245, 255 (1923). Therefore, since the adoption of the
Home Rule Amendment, all municipalities derive the power of local self-government
directly from the Ohio Constitution. Id. at paragraph one of the syllabus; accord Gesler v.
Worthington Income Tax Bd. of Appeals, 138 Ohio St. 3d 76, 2013-Ohio-4986, ¶ 17
("Municipal power over matters of local self-government is derived from the
Constitution.").
{¶ 39} Because the municipal power of local self-government originates in the Ohio
Constitution, "the General Assembly has authority to enact such laws to be applicable in
cities 'only where and to the extent that such laws will not restrict the exercise by such cities
of their powers of local self-government.' " State Personnel Bd. of Rev. v. Bay Village Civ.
Serv. Comm., 28 Ohio St. 3d 214, 218 (1986), quoting State ex rel. Canada v. Phillips, 168
Ohio St. 191, 195 (1958); accord Canton v. Whitman, 44 Ohio St. 3d 62, 66 (1975) (holding
that "the state may not restrict the exercise of the powers of self-government within a city").
" 'If all powers of municipal self-government must be subject to general laws, then clearly
cities do not have home rule; they have only such powers of local self-government as the
legislature of the state allows to them, and cities of Ohio will still remain under the
domination of the state legislature.' " Ohio Assn. of Pub. School Emps. v. Twinsburg, 36
Nos. 18AP-144 and 18AP-189 15
Ohio St. 3d 180, 182 (1988), quoting Fitzgerald v. Cleveland, 88 Ohio St. 338, 380 (1913)
(Wilkin, J., concurring).
{¶ 40} However, there are exceptions to the prohibition against state interference
with municipal local self-government. At the same time the Ohio Constitution endowed
municipalities with broad powers of local self-government, it also restricted some of those
powers. Cincinnati Bell Tel. Co. at 605; accord Dies Elec. Co. v. Akron, 62 Ohio St. 2d 322,
325 (1980), quoting State ex rel. Gordon v. Rhodes, 156 Ohio St. 81, 88 (1951) ("[T]he
powers granted under Section 3 of Article XVIII are subject to other 'restrictions or
limitations contained in any other provision in the Constitution.' "); Whitman at 65
(holding that the Home Rule Amendment "grant[ed] municipalities sovereignty in matters
of local self-government, limited only by other constitutional provisions"). Regarding the
municipal power to tax, two different constitutional provisions provide the General
Assembly with the ability to curb the municipalities' authority. New York Frozen Foods,
Inc. at ¶ 29; Cincinnati Bell Tel. Co. at 602, 605. First, Article XIII, Section 6 states that
"[t]he general assembly shall provide for the organization of cities, and incorporated
villages, by general laws, and restrict their power of taxation * * * so as to prevent the abuse
of such power." Second, Article XVIII, Section 13 provides that "[l]aws may be passed to
limit the power of municipalities to levy taxes * * * for local purposes."
{¶ 41} With the authority granted by these two constitutional provisions, the
General Assembly may enact legislation designed to limit municipalities' exercise of local
self-government in matters of taxation. State ex rel. Dayton v. Bish, 104 Ohio St. 206, 215
(1922) (holding that "in matters of taxation," the Ohio Constitution has "subjected the
municipalities of this state to the absolute control of the general assembly"); State ex rel.
Toledo v. Cooper, 97 Ohio St. 86 (1917), paragraph two of the syllabus ("The power of all
municipalities to levy taxes may be limited or restricted by general laws. Such limitations
or restrictions are warranted by Section 6, Article XIII * * * and by Section 13, Article XVIII
* * *."). However, when determining the constitutionality of such legislation, courts must
interpret "the specific limiting power of the General Assembly so that it does not engulf the
general power of taxation delegated to the municipalities." Cincinnati Bell Tel. Co. at 606-
07.
Nos. 18AP-144 and 18AP-189 16
{¶ 42} The trial court determined that Section 13 of Article XVIII empowered the
General Assembly to enact R.C. 718.80 through 718.95. Plaintiffs argue that the trial court
erroneously construed Article XVIII, Section 13 by interpreting the word "levy" too broadly.
According to plaintiffs, "to levy" solely means "to impose." In R.C. 718.80 through 718.95,
the State does not preclude municipalities from imposing the net profit tax but, instead,
limits their ability to collect and administer that tax for all taxpayers. Thus, plaintiffs argue
that the power to limit taxation granted in Article XVIII, Section 13 does not permit the
enactment of R.C. 718.80 through 718.95. Plaintiffs contend that the General Assembly has
overstepped the confines of its authority under Article XVIII, Section 13 and invaded an
area of local self-government allocated to the municipalities.
{¶ 43} Addressing this argument requires this court to construe the meaning of the
word "levy." Generally, in construing the Ohio Constitution, courts apply the same rules of
construction that they apply in construing statutes. Toledo City School Dist. Bd. of Edn. v.
State Bd. of Edn., 146 Ohio St. 3d 356, 2016-Ohio-2806, ¶ 16; Wilson v. Kasich, 134 Ohio
St.3d 221, 2012-Ohio-5367, ¶ 13. In endeavoring to determine the intent of the drafters,
courts first examine the language of the provision itself. Toledo City School Dist. Bd. of
Edn. at ¶ 16; Wilson at ¶ 13. If a word is not defined in the Constitution, courts imbue that
word with its common, ordinary meaning. Toledo City School Dist. Bd. of Edn. at ¶ 16;
State ex rel. King v. Summit Cty. Council, 99 Ohio St. 3d 172, 2003-Ohio-3050, ¶ 35.
{¶ 44} Like the Home Rule Amendment, Section 13 of Article XVIII was drafted by
the delegates of the 1912 Constitutional Convention and subsequently approved by voters.
We thus turn to dictionaries published in the early twentieth century to determine the
common, ordinary meaning of "levy," a word not defined in the Constitution. At the time
Article XVIII, Section 13 was written, the definition of "levy" included "[t]o raise or collect
by assessment; as, to levy taxes, toll, tribute, or contributions." (Emphasis sic.) Webster's
Unabridged Dictionary 768 (1911). Alternatively, "to levy" meant "[t]o impose or assess (a
tax) on property and collect it under authority of law." 1 Funk & Wagnalls' Standard
Dictionary of the English Language 1024 (1906).
{¶ 45} From these definitions, we deduce that the General Assembly's authority over
municipalities' power to levy taxes extends beyond limiting the imposition of taxes. By
granting the General Assembly the authority to limit municipalities' power to levy taxes,
Nos. 18AP-144 and 18AP-189 17
Article XVIII, Section 13 endows the General Assembly with the capability to circumscribe
the imposition, raising, and collection of a municipal tax.
{¶ 46} Additionally, the history of Article XVIII, Section 13 extinguishes any doubt
that the drafters interpreted "levy" more expansively than plaintiffs do. The delegates of
the 1912 Constitutional Convention assigned the task of drafting home-rule related
provisions to the committee on municipal government. During a meeting of all delegates,
George W. Knight, a member of that committee, introduced the provision that became
Article XVIII, Section 13 and answered questions about it. At that time, the proposed
provision read, "The general assembly shall have authority to limit the power of
municipalities to levy taxes * * * for local purposes." 2 Proceedings and Debates of the
Constitutional Convention of the State of Ohio, 1451 (1912), available at
www.supremecourt.ohio.gov/LegalResources/LawLibrary/resources/day64.pdf (accessed
Jan. 25, 2019). Knight and Hiram D. Peck, a delegate from Hamilton County, engaged in
the following colloquy:
MR. PECK: * * * You leave to [the General Assembly] the
power to limit, which might apply to the amount and not to the
mode of collecting [tax].
MR. KNIGHT: It was not so intended and I doubt if the
language would bear that interpretation.
MR. PECK: I think it would be bad to confer local self-
government of that sort.
MR. KNIGHT: In the machinery for collecting taxes?
MR. PECK: Yes * * *. The machinery for collecting taxes in this
state is very perfect and so admitted by everybody.
MR. KNIGHT: And the committee is of the opinion that [the
proposed provision] do[es] not interfere with it.
Id. Based upon this exchange, we conclude that the drafters of Article XVIII, Section 13
contemplated that it gave the General Assembly the authority to control "the machinery"
for collecting municipal taxes, not just the imposition of such taxes.
{¶ 47} Finally, in the sole decision addressing the meaning of "levy" as used in
Section 13 of Article XVIII, the First District Court of Appeals concluded that Section 13
Nos. 18AP-144 and 18AP-189 18
gives the General Assembly the absolute authority to limit the power of municipalities to
impose, collect, and administer municipal taxes. Cincinnati Imaging Venture v.
Cincinnati, 116 Ohio App. 3d 1 (1st Dist.1996), syllabus. In Cincinnati Imaging Venture,
the appellants challenged the constitutionality of a state statute requiring municipalities to
pay interest on a municipal income tax refund. The appellants argued that the state statute
transcended the authority reserved to the General Assembly under Section 13 of Article
XVIII, asserting that "while Section 13, Article XVIII permits the General Assembly to limit
the levy of taxes by municipalities, it does not allow the General Assembly to interfere with
local administration and regulation of lawfully levied taxes." Id. at 3. According to the
appellants, the imposition of interest on overpaid taxes was "a matter of the administrative
and regulatory authority reserved to the city." Id.
{¶ 48} After reviewing the text of Article XVIII, Section 13, the court of appeals
concluded that "[i]t is difficult to interpret this language, granting to the General Assembly
the absolute right to limit the power of municipalities to impose taxes, as allowing these
same municipalities the unfettered right to regulate the levy and collection of those taxes."
Id. at 4. Thus, the court found the challenged administrative measure a constitutional
limitation on the municipality's taxing authority.
{¶ 49} In arguing that "levy" does not include collection or administration, the
Athens plaintiffs point this court to State ex rel. Keller v. Forney, 108 Ohio St. 463 (1923).
In that case, the Supreme Court of Ohio interpreted the phrase "laws providing for tax
levies" as it appears in Article II, Section 1d of the Ohio Constitution. Not only does Keller
focus on a different constitutional provision, its analysis turns on the word "providing" not
"levies." Consequently, we find Keller of no consequence to the resolution of this case.
{¶ 50} Based on the common meaning of "levy," the drafters' interpretation of
Article XVIII, Section 13, and relevant precedent, we conclude that Article XVIII, Section
13 permits the General Assembly to enact legislation limiting municipalities' power to
impose, collect, and administer taxes. Thus, because the provisions of R.C. 718.80 through
718.95 limit municipalities' ability to collect and administer net profit taxes, those
provisions do not violate the Home Rule Amendment.
{¶ 51} The Athens plaintiffs also attack uncodified Section 803.100(B) of H.B. 49,
which provides that "[i]n accordance with division (A) of section 718.04 of the Revised
Nos. 18AP-144 and 18AP-189 19
Code, each municipal corporation shall adopt, by ordinance or resolution, the provisions of
sections 718.80 [through] * * * 718.95 of the Revised Code on or before January 31, 2018."
The Athens plaintiffs contend that uncodified Section 803.100(B) is an unconstitutional
attempt to dictate municipalities' legislative function, which is a power of local self-
government. We reject this argument. Because Article XVIII, Section 13 permits the
General Assembly to limit the municipalities' power to levy taxes, the General Assembly can
require municipalities to enact legislation that accomplishes that aim. Therefore,
uncodified Section 803.100(B) is a constitutional exercise of the General Assembly's
authority under Article XVIII, Section 13.
{¶ 52} Finally, we turn to plaintiffs' specific challenge to the constitutionality of R.C.
718.80(C)(3) and 718.85(B) under the Home Rule Amendment. R.C. 718.80(C)(3)
authorizes the tax commissioner to withhold 50 percent of the net-profit-tax revenues due
to a municipality if the municipality does not timely submit specified information to the tax
commissioner. R.C. 718.85(B) directs the treasurer to retain one-half percent of the net
profit taxes paid to the State as a fee for the collection and administration services provided.
Plaintiffs argue that these provisions unconstitutionally empower the State to confiscate
municipal funds. We disagree. Both provisions at issue are part of a broader statutory
scheme to collect and administer net profit taxes, and both provisions enable and advance
the collection and administration of net profit taxes. Consequently, as integral components
of a statutory scheme constitutionally enacted to limit the power of municipalities to collect
and administer taxes, R.C. 718.80(C)(3) and 718.85(B) are also constitutional under Article
XVIII, Section 13 of the Ohio Constitution.
{¶ 53} Having dealt with the constitutionality of H.B. 49 under the Home Rule
Amendment, we now consider the constitutionality of H.B. 5 under the same amendment.
The Athens plaintiffs raise one argument regarding H.B. 5: it unconstitutionally eliminated
municipal taxing authority. This argument arises from the amendments to R.C. 715.013,
which now reads:
(A) Except as otherwise expressly authorized by the Revised
Code, no municipal corporation shall levy a tax that is the same
or similar to a tax levied under Chapter 322., 3734., 3769.,
4123., 4141., 4301., 4303., 4305., 4307., 4309., 5707., 5725.,
5726., 5727., 5728., 5729., 5731., 5735., 5736., 5737., 5739.,
5741., 5743., 5747., 5749., or 5751. of the Revised Code.
Nos. 18AP-144 and 18AP-189 20
(B) This section does not prohibit a municipal corporation
from levying an income tax or withholding tax in accordance
with Chapter 718. of the Revised Code, or a tax on any of the
following:
(1) Amounts received for admission to any place;
(2) The income of an electric company or combined company,
as defined in section 5727.01 of the Revised Code;
(3) On and after January 1, 2004, the income of a telephone
company, as defined in section 5727.01 of the Revised Code.
{¶ 54} A plain reading of this section reveals that it does not prohibit municipal
corporations from levying taxes. It does restrict municipalities' ability to tax income by
requiring municipalities to levy that tax in accordance with the limitations in R.C. Chapter
718. See also R.C. 718.04(A) ("Notwithstanding division (A) of section 715.013 of the
Revised Code, a municipal corporation may levy a tax on income and a withholding tax if
such taxes are levied in accordance with the provisions and limitations specified in [R.C.
Chapter 718]."). However, as we concluded above, the General Assembly may
constitutionally limit municipalities' power to levy taxes. While H.B. 5 increases regulation
of the municipal power of taxation, it does not eliminate that power as the Athens plaintiffs
claim. Accordingly, the General Assembly did not violate the Home Rule Amendment in
enacting H.B. 5.
{¶ 55} We next turn to the Athens plaintiffs' arguments that the challenged
provisions of H.B. 49 violate other provisions of the Ohio Constitution. First, the Athens
plaintiffs argue that the challenged provisions of H.B. 49 unconstitutionally impair the
contracts many municipalities have executed with third-party tax administrators. Under
these sorts of contracts, a municipality hires an entity, such as the Regional Income Tax
Agency ("RITA") or another municipality, to collect and administer the municipality's
income tax. The Athens plaintiffs contend that the State's implementation of a centralized
system for the collection and administration of net profit taxes will cause the contracting
municipalities to lose the benefits of their bargains with third-party tax administrators.
{¶ 56} Pursuant to Article II, Section 28 of the Ohio Constitution, "[t]he general
assembly shall have no power to pass * * * laws impairing the obligation of contracts." To
determine whether a statute violates Article II, Section 28, a court must first consider
Nos. 18AP-144 and 18AP-189 21
whether a state law has, in fact, substantially impaired a contractual relationship. Doe v.
Ronan, 127 Ohio St. 3d 188, 2010-Ohio-5072, ¶ 16; Util. Serv. Partners, Inc. v. Pub. Util.
Comm., 124 Ohio St. 3d 284, 2009-Ohio-6764, ¶ 37. A party's failure to produce a contract
or a detailed description of the terms of a contract defeats a court's ability to adjudge
impairment. Util. Serv. Partners, Inc. at ¶ 38-40. "Without evidence of the 'obligation of
contracts,' it is impossible to determine whether they have been 'impaired.' " Id. at ¶ 39.
{¶ 57} Here, the record contains neither the contracts at issue nor a detailed
description of those contracts' terms. Accordingly, the Athens plaintiffs have not proven a
violation of Article II, Section 28 of the Ohio Constitution.
{¶ 58} The Athens plaintiffs also argue that the challenged provisions of H.B. 49
deprive municipalities of property without remedy by due course of law in violation of
Article I, Section 16 of the Ohio Constitution. For the most part, the resolution of this
argument turns upon whether the Athens plaintiffs have standing to assert it. " 'Standing'
is defined at its most basic as '[a] party's right to make a legal claim or seek judicial
enforcement of a duty or right.' " Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio
St.3d 375, 2007-Ohio-5024, ¶ 27, quoting Black's Law Dictionary 1442 (8th Ed.2004). If
a party lacks standing, a court will not decide the merits of its dispute. Util. Serv. Partners,
Inc. at ¶ 49.
{¶ 59} Here, the Athens plaintiffs do not claim to have due-course rights but,
instead, assert standing based on their citizens' due-course rights. Courts view such third-
party standing unfavorably. Id. However, a party may litigate using third-party standing
if it: (1) suffers its own injury in fact, (2) possesses a sufficiently close relationship with the
person who possesses the right, and (3) shows some hinderance that stands in the way of
its seeking relief. E. Liverpool v. Columbiana Cty. Budget Comm., 114 Ohio St. 3d 133,
2007-Ohio-3759, ¶ 22.
{¶ 60} The Athens plaintiffs stumble on the first element of the test. An injury in
fact is " 'an invasion of a legally protected interest that is concrete and particularized, as
well as actual or imminent, not hypothetical or conjectural.' " Cramer v. Javid, 10th Dist.
No. 10AP-199, 2010-Ohio-5967, ¶ 11, quoting Bourke v. Carnahan, 163 Ohio App. 3d 818,
2005-Ohio-5422, ¶ 10 (10th Dist.). A threatened injury can qualify as an injury in fact for
standing purposes. Hamilton v. Ohio Dept. of Health, 10th Dist. No. 14AP-1035, 2015-
Nos. 18AP-144 and 18AP-189 22
Ohio-4041, ¶ 19. However, the " 'threatened injury must be certainly impending to
constitute injury in fact' and [ ] '[a]llegations of possible future injury' are not sufficient."
(Emphasis sic.) Clapper v. Amnesty Internatl. USA, 568 U.S. 398, 409 (2013), quoting
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
{¶ 61} In the case at bar, the Athens plaintiffs contend that the challenged provisions
of H.B. 49 threaten injury to municipal treasuries for two reasons. First, the Athens
plaintiffs fear that the tax commissioner will approve refunds or alternative
apportionments that they themselves would not approve, thus decreasing the revenue they
would otherwise derive from net profit taxes. While the Athens plaintiffs have identified
possible future injury, they have not shown that that injury is certainly impending. At this
point, the alleged injury is merely speculative. Consequently, the Athens plaintiffs have not
established an injury in fact and, thus, cannot rely on third-party standing to pursue their
due-course-of-law challenge to the refund and apportionment provisions of H.B. 49.
{¶ 62} Second, the Athens plaintiffs complain that the State will deprive them of
revenue by appropriating one-half percent of the net-profit-tax revenues the State collects.
Unlike the first alleged injury, the State's retention of funds is certainly impending, so the
municipalities have demonstrated an injury in fact on that basis. However, the Athens
plaintiffs have no need to establish third-party standing. By their due-course challenge to
the half-percent fee, the Athens plaintiffs want to be accorded a meaningful opportunity to
be heard regarding their deprivation of property. This litigation is the Athens plaintiffs'
meaningful opportunity. Through this lawsuit, the Athens plaintiffs have challenged the
legality of the half-percent fee and sought relief from it by due course of law. Thus,
regarding the half-percent fee, the Athens plaintiffs have received the protection of Article
I, Section 16 of the Ohio Constitution, regardless of whether they have any direct claim to
that protection.
{¶ 63} In the Athens plaintiffs' final constitutional argument, they contend that the
challenged provisions of H.B. 49 will effect an unconstitutional taking under Article I,
Section 19 of the Ohio Constitution. However, the Athens plaintiffs' takings argument
consists of only a bald statement that an unconstitutional taking will occur. The Athens
plaintiffs, therefore, have failed to satisfy their burden to affirmatively demonstrate error.
See State ex rel. Petro v. Gold, 166 Ohio App. 3d 371, 2006-Ohio-943, ¶ 94 (10th Dist.)
Nos. 18AP-144 and 18AP-189 23
("[T]he burden of affirmatively demonstrating error on appeal rests with the party asserting
error. * * * It is [ ] not appropriate for this court to construct the legal arguments in support
of an appellant's appeal."). Consequently, we reject the Athens plaintiffs' takings challenge.
{¶ 64} In their last claim, the Athens plaintiffs maintain that the challenged
provisions of H.B. 49 convert municipal net-profit-tax revenues for use by the State.
"[C]onversion is the wrongful exercise of dominion over property to the exclusion of the
rights of the owner, or withholding it from his possession under a claim inconsistent with
his rights." Joyce v. Gen. Motors Corp., 49 Ohio St. 3d 93, 96 (1990). Because Article XVIII,
Section 13 of the Ohio Constitution authorizes the State to collect and administer municipal
net profit taxes, the implementation of the challenged provisions does not result in
conversion of municipal property. In short, the State's limited exercise of control over net-
profit-tax revenues is neither wrongful nor violative of any property rights municipalities
may have.
{¶ 65} As a final matter, we acknowledge the numerous policy arguments made by
the parties and the amici curiae in their briefs. Each side tries to convince us of the
rightness of their position in the policy debate over the State's forays into the collection and
administration of municipal taxes. The judiciary, however, does not appraise legislative
choices. " '[A] court has nothing to do with the policy or wisdom of a statute. * * * When
the validity of a statute is challenged on constitutional grounds, the sole function of the
court is to determine whether it transcends the limits of legislative power.' " State ex rel.
Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St. 3d 568, 2006-Ohio-
5512, ¶ 20, quoting State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn., 139
Ohio St. 427, 438 (1942). We, therefore, will not address any of the parties' policy
arguments.
{¶ 66} In conclusion, we find the challenged provisions of H.B. 49 and H.B. 5
constitutional. Accordingly, we overrule the Athens plaintiffs' first assignment of error and
the Elyria plaintiffs' second assignment of error.
{¶ 67} In their second assignment of error, the Athens plaintiffs argue that we
should reverse the denial of their motion for a preliminary injunction if we decide to
remand this case to the trial court. Because a remand is not necessary, the Athens plaintiffs'
second assignment of error is moot.
Nos. 18AP-144 and 18AP-189 24
{¶ 68} For the foregoing reasons, we overrule the Elyria plaintiffs' first and second
assignments of error. We also overrule the Athens plaintiffs' first assignment of error. Our
resolution of the Athens plaintiffs' first assignment of error renders their second
assignment of error moot, so we do not decide it. We affirm the judgment of the Franklin
County Court of Common Pleas.
Judgment affirmed.
SADLER, J., concurs.
TYACK, J., dissents.
TYACK, J., dissenting.
{¶ 69} I feel that much of what the legislature did with respect to the collection of
income taxes levied by municipal corporations makes sense. The parts of the legislation
with which I disagree are the charging municipalities of one-half percent of all net profit
taxes and allowing the state to keep as much as one-half of those taxes. No matter how you
spin it or attempt to gloss over it, the state of Ohio is charging municipalities a tax. I do not
believe the state of Ohio can legally tax municipalities. Nor do I believe the state of Ohio
can legally seize and keep 50 percent of the net-profit tax due to a municipality, whether
you call it a penalty or call it something else. I note that the state of Ohio now apparently
has the sole power to decide if it can keep half of the tax revenue due to a city or
municipality. An Ohio statute, passed by the Ohio legislature and signed by an Ohio
governor, supposedly gives the state of Ohio the power to take large sums of income tax
monies due cities and municipalities irrespective of local codes and ordinances. Apparently
the legislature and the trial court feel that Home Rule does not apply in tax matters. I fear
the majority of this court reinforces that feeling.
{¶ 70} The Supreme Court of Ohio has ignored the One-Subject Rule repeatedly,
especially when laws are enacted at the end of a legislative session, commonly called a Lame
Duck Session. The same is true when state budgets are being enacted. I doubt that the
Supreme Court of Ohio will begin to enforce the One-Subject Rule any time soon, but I am
willing to be proven wrong on that issue.
{¶ 71} In short, the cities and municipalities are right to contest this legislative
action to allow the state to seize and keep large sums of local tax dollars. I am especially
Nos. 18AP-144 and 18AP-189 25
not impressed by the attempt to avoid the clear requirements of the Home Rule
Amendment.
{¶ 72} I dissent.