Murray Co. Marina v. Erie Cty. Bd. of Rev. , 123 Ohio App. 3d 166 ( 1997 )

I respectfully dissent from the majority's opinion. Because I believe that appellant was denied due process, the entire proceedings are fundamentally flawed.

The lower court found that appellant had failed to prove that a valuation of zero was appropriate for this property. Instead of dismissing the action on that basis, however, it went on to "independently determine the value" by merely accepting the auditor's valuation as the true value of the property even though there was no evidence supporting its accuracy. We need not even address the issue of whether this action was appropriate, however, because the reason for appellant's failure to present sufficient evidence to support its valuation was that it was denied due process.

Under R.C. 5715.10, the board of revision may call before it any person to testify as to the valuation of real property. R.C. 119.09 gives the administrative agency the authority to issue subpoenas either upon its own request or upon the request of a party receiving notice of the hearing. Furthermore, one Ohio appellate court has held that the board of revision has a duty to issue a subpoena upon a party's request. Ohio State Bd. of Pharmacy v.Poppe (1988), 48 Ohio App.3d 222, 228, 549 N.E.2d 541, 547-548. In the case before us, the board of revision refused to subpoena the auditor to testify even though appellant had requested that the board do so. The auditor admits in his appellate brief that he did not prepare written appraisals for any property in the county and that the final assessment figures shown on the property record card is all the documentation that exists. Therefore, his testimony was necessary to be able to directly challenge his method of calculating the true value of the property.

The auditor argues that the board of revision need call only the auditor to testify when it wishes to change the value of the property, but there is no evidence in the record to support the change. The auditor relies upon Shaker Square Co. v. CuyahogaCty. Bd. of Revision (1960), 170 Ohio St. 369, 374, 11 O.O.2d 75, 77-78, 165 N.E.2d 431, 435. In the Shaker Square case, the board of revision lowered the auditor's assessed value. The Supreme Court of Ohio held that when the Board of Tax Appeals rejected the taxpayer's evidence of value, it should have then allowed additional examination and cross-examination as to the basis for the board of revision's decision before adopting it. I do not believe that the Shaker Square case supports the auditor's view. I interpret the holding in that case to be that when the basis for the valuation figure is not readily apparent in the evidence, the agency must give the taxpayer an opportunity to directly attack it through examination and cross-examination.

The majority and appellees place much emphasis upon the fact that appellant had the initial burden of proving its claim indirectly with its own evidence of value. The majority correctly cites the case law that holds that the burden of proof remains on the taxpayer to prove his right to a reduction and that the taxpayer is not entitled to a reduction solely because conflicting evidence was not presented. However, the majority overlooks the fact that this case does not involve a shifting of burdens of proof, but rather involves an interference with one party's ability to meet its burden of proof. The taxpayer in the case before us may have been able to prove its claim solely through examination of the auditor. There is no legal basis for forcing the taxpayer to find other evidence to prove that he is entitled to a reduction in value.

I also believe that appellant was denied due process with respect to its equal protection claim. Appellant should have been able to examine the auditor to prove that similar marinas in the area were valued differently.

With respect to both claims in this case, appellant was arbitrarily denied access to the key witness in the case.