[Cite as Riverside v. State, 2016-Ohio-2881.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
CITY OF RIVERSIDE :
:
Plaintiff-Appellant : C.A. CASE NO. 26840
:
v. : T.C. NO. 13CV4691
:
STATE OF OHIO : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the ___6th___ day of _____May______, 2016.
...........
DANIEL J. BUCKLEY, Atty. Reg. No. 0003772 and ADAM C. SHERMAN, Atty. Reg. No.
0076850 and JACOB D. MAHLE, Atty. Reg. No. 0080797 and JESSICA K. BAVERMAN,
Atty. Reg. No. 0083951, 301 East Fourth Street, Suite 3500, Great American Tower,
Cincinnati, Ohio 45202
Attorneys for Plaintiff-Appellant
ZACHERY KELLER, Atty. Reg. No. 0086930 and NICOLE M. KOPPITCH, Atty. Reg. No.
0082129 and BRODI J. CONOVER, Atty. Reg. No. 0092082, Assistant Attorneys
General, Constitutional Offices Section, 30 East Broad Street, 16th Floor, Columbus, Ohio
43215
Attorneys for Defendant-Appellee
.............
FROELICH, J.
{¶ 1} The City of Riverside appeals from a judgment of the Montgomery County
Court of Common Pleas, which granted the State’s motion for summary judgment, denied
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Riverside’s motion for summary judgment, and dismissed Riverside’s case. The parties’
disagreement, in general, and their motions for summary judgment, in particular,
concerned the constitutionality of a statute creating an exemption from municipal income
tax, which was enacted in 2007. The dispute related to employees and contractors who
work at Wright Patterson Air Force Base (WPAFB), some parts of which are located in
Riverside.
{¶ 2} As a preliminary matter, we note that the parties and the trial court
consistently refer to the disputed statutory section as R.C. 718.01(H)(11). The current
R.C. 718.01(H), which is in the “Definitions” section of R.C. Chapter 718, Municipal
Income Taxes, states, in its entirety: “ ‘Schedule F’ means internal revenue service
schedule F (form 1040) filed by a taxpayer pursuant to the Internal Revenue Code”; it
does not contain any subsections, not does it specifically address an exception to the
municipal commuter income tax. R.C. 718.01 and other statutes governing income taxes
imposed by municipal corporations were “amend[ed], for the purpose of adopting a new
section number * * *, to enact new sections * * *, and to repeal [former] sections * * *” by
Am.Sub.H.B. 5 in 2014. Although Am.Sub.H.B. 5 does not explicitly state how the
statutes, including R.C. 718.01, were reorganized and renumbered, the provision at issue
in this appeal now appears at R.C. 718.01(C)(13). We will refer to it as such, except
when quoting from the trial court’s decision.
Legislative History and Procedural History
{¶ 3} The trial court’s judgment contains a helpful overview of the history of this
case:
In 1994, the Village of Riverside merged with Mad River Township to
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create the City of Riverside. Prior to the merger, Mad River Township
included portions of WPAFB, and, thus, as a consequence of the merger,
parts of WPAFB are now physically located within Riverside, including the
area of WPAFB formerly known as Page Manor, the National Museum of
the United States Air Force, and part of “Area B.”
Pursuant to Riverside Codified Ordinance 181.03(a)(1)-(5),
Riverside imposes a 1.5% tax on all income earned in Riverside by both
resident and nonresident individuals and businesses. Three years after
the merger, on or around April 1997, Riverside attempted to impose its
income tax on commuter employees and contractors working at WPAFB,
claiming that portions of WPAFB were within Riverside’s boundaries and
specifically requesting that WPAFB withhold municipal income taxes from
the wages of its employees. WPAFB refused to withhold those taxes, and,
on August 28, 1998, Riverside filed a federal lawsuit in federal court against
the United States, the Department of Defense, and WPAFB’s commanding
officer. Riverside voluntarily dismissed that lawsuit approximately three
years later in May 2001, apparently deciding to pursue other ways to tax
WPAFB employees.
In 2003, Riverside became involved in a tax dispute with two private
corporations that performed work at WPAFB. The corporations filed a
lawsuit in this court [the Montgomery County Court of Common Pleas] under
Case No. 2003-CV-3795, seeking to enjoin Riverside from levying taxes
against them. Riverside filed counterclaims seeking payment of municipal
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taxes, and this court granted summary judgment to Riverside, finding that
certain relevant statutes did not require Riverside to obtain approval from
the Secretary of Defense before merging land that included areas of
WPAFB. Following that ruling in favor of Riverside, Riverside obtained the
names and mailing addresses of civilian and contracting employees
working on WPAFB. On or around April 2007, Riverside began contacting
these workers and informing them that, if they worked in the Riverside
portions of WPAFB, they were subject to Riverside’s income tax.
Decision, Order, and Entry (August 19, 2015).
{¶ 4} In June 2007, the Ohio General Assembly passed R.C. 718.01(F)(11),
which was later recodified as R.C. 718.01(H)(11) and then R.C. 718.01(C)(13), with some
minor changes not relevant to this appeal.
{¶ 5} R.C. 718.01(C)(13), the “Definitions” section of R.C. Chapter 718,
Municipal Income Taxes, states that “exempt income” includes:
(13) 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, tax on such income shall be
payable only to the municipal corporation of residence or domicile.
The definition of “municipal taxable income” excludes “exempt income.” R.C.
718.01(A)(1).
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{¶ 6} As a result of R.C. 718.01(C)(13), employees and contractors presently
working at a portion of WPAFB that is within Riverside qualify for an exemption from
paying municipal income tax, unless they also live in Riverside.
The Current Case
{¶ 7} The trial court stated as follows:
On August 8, 2013, Plaintiff, City of Riverside, filed its Complaint for
Declaratory Judgment and Injunctive Relief against Defendant, State of
Ohio, seeking a declaration that R.C. 718.01(H)(11) [now R.C.
718.01(C)(13)] violates the Equal Protection Clause of the United States
Constitution and the Ohio Constitution, and seeking an entry of permanent
injunction prohibiting enforcement of the subject statute. In its Complaint,
Riverside alleged that it began to levy its municipal income tax on civilian
employees and contractors who were employed at Wright Patterson Air
Force Base (WPAFB) and who worked or lived on portions of the WPAFB
located within Riverside’s city limits. The tax was imposed by Riverside
allegedly for the purpose of providing funds for general municipal
operations, maintenance, new equipment, extension and enlargement of
municipal services and facilities, and capital improvements. According to
Riverside, after it began levying the tax, the Ohio General Assembly
enacted R.C. 718.01(F)(11), later codified as R.C. 718.01(H)(11), as an
amendment to the biennial budget bill. Riverside alleged that R.C.
718.01(H)(11) [now R.C. 718.01(C)(13)] discriminatorily prohibits municipal
assessment of income taxes on certain civilian employees and contractors
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who work within Riverside on the grounds of a narrowly-defined type of air
force base, and, thus, is unconstitutional because it violates the Equal
Protection Clauses of both the United States Constitution and the Ohio
Constitution.
Decision, Order, and Entry (August 19, 2015).
{¶ 8} Each of the parties (Riverside and the State of Ohio) filed a motion for
summary judgment on April 15, 2015. On August 19, 2015, the trial court granted the
State’s motion, denied Riverside’s motion, and dismissed the case.
The Arguments on Appeal
{¶ 9} Riverside appeals, raising two assignments of error. The first assignment
addresses three discovery issues on which the trial court ruled before entering summary
judgment, as well as an argument that R.C. 718.01(C)(13) violates the Equal Protection
Clauses. The second assignment asserts that the trial court “appl[ied] the incorrect
summary judgment standard.”
Riverside’s Equal Protection Arguments
{¶ 10} We will begin our analysis with Riverside’s equal protection arguments
under its first assignment of error.
{¶ 11} Riverside contends that the trial court “misapplied rational basis review” in
concluding that the municipal income tax exemption created by R.C. 718.01(C)(13) does
not violate the Equal Protection Clauses of the United States and Ohio Constitutions. It
asserts that there “is no evidence” of a legitimate state interest to which the statute is
rationally related. Riverside claims that three classes of Ohio citizens are adversely
affected by the exemption: 1) Riverside residents, 2) individuals who are not Riverside
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residents but who work within Riverside on premises other than WPAFB (and therefore
pay the commuter income tax), and 3) federal employees who work somewhere in
Riverside other than WPAFB. Riverside’s standing to raise these issues was addressed
in a prior Opinion of this court, Riverside v. Ohio, 2d Dist. Montgomery No. 26024, 2014-
Ohio-1974, and resolved in Riverside’s favor.
{¶ 12} “[S]tatutes are presumed to be constitutional and * * * courts have a duty
to liberally construe statutes in order to save them from constitutional infirmities.”
Pickaway Cty. Skilled Gaming, LLC v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908,
936 N.E.2d 944, ¶ 20, quoting Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122
Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12. The party challenging the
constitutionality of a statute “bears the burden to negate every conceivable basis that
might support the legislation.” Id., citing Columbia Gas Transm. Corp. v. Levin, 117 Ohio
St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91.
{¶ 13} The federal and Ohio equal protection provisions are “functionally
equivalent” and “are to be construed and analyzed identically.” Id. at ¶ 17, citing State
v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 18, and Am. Assn. of
Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60,
717 N.E.2d 286 (1999). Courts apply varying levels of scrutiny to equal protection
challenges depending on the rights at issue and the purportedly discriminatory
classifications created by the law. “[A] statute that does not implicate a fundamental right
or a suspect classification does not violate equal-protection principles if it is rationally
related to a legitimate government interest.” Williams at ¶ 39, citing Eppley at ¶ 15;
Pickaway Cty. Skilled Gaming at ¶ 18.
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{¶ 14} The State and Riverside agree that this case does not involve a
fundamental right or suspect classification, and that rational-basis review applies.
{¶ 15} The rational-basis test involves a two-step analysis. First, a valid state
interest must be identified. Second, the court must determine whether the method or
means by which the State has chosen to advance that interest is rational. Pickaway Cty.
Skilled Gaming at ¶ 19, citing McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-
Ohio-6505, 839 N.E.2d 1, ¶ 9. “ ‘Under the rational-basis standard, a state has no
obligation to produce evidence to sustain the rationality of a statutory classification.’
Columbia Gas Transm. Corp. [at] ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State
Univ. Chapter [at 60]. * * *” Id. at ¶ 20.
{¶ 16} The rational-basis standard requires a high degree of judicial deference to
legislative enactments. Ohio Apt. Assn. v. Levin, 127 Ohio St.3d 76, 2010-Ohio-4414,
936 N.E.2d 919, ¶ 35; Am. Assn. of Univ. Professors at 93. “Moreover, it is well settled
that assessment of taxes is fundamentally a legislative responsibility, and this already
deferential standard is especially deferential in the context of classifications arising out of
complex taxation law.” (Internal citations omitted.) Ohio Apt. Assn. at ¶ 35, citing Park
Corp. v. Brook Park, 102 Ohio St.3d 166, 2004-Ohio-2237, 807 N.E.2d 913, ¶ 23, and
Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). “[I]n
structuring internal taxation schemes ‘the States have large leeway in making
classifications and drawing lines which in their judgment produce reasonable systems of
taxation.’ ” Nordlinger at 11, quoting Williams v. Vermont, 472 U.S. 14, 22, 105 S.Ct.
2465, 86 L.Ed.2d 11 (1985).
{¶ 17} In Regan v. Taxation with Representation of Washington, 461 U.S. 540,
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103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), the United States Supreme Court further
commented on the standard for reviewing equal protection challenges to taxation
schemes:
“The broad discretion as to classification possessed by a legislature in the
field of taxation has long been recognized.... The passage of time has only
served to underscore the wisdom of that recognition of the large area of
discretion which is needed by a legislature in formulating sound tax policies.
Traditionally classification has been a device for fitting tax programs to local
needs and usages in order to achieve an equitable distribution of the tax
burden. It has, because of this, been pointed out that in taxation, even
more than in other fields, legislatures possess the greatest freedom in
classification. Since the members of a legislature necessarily enjoy a
familiarity with local conditions which this Court cannot have, the
presumption of constitutionality can be overcome only by the most explicit
demonstration that a classification is a hostile and oppressive discrimination
against particular persons and classes. The burden is on the one attacking
the legislative arrangement to negative every conceivable basis which
might support it.”
Id. at 547-548, quoting Madden v. Kentucky, 309 U.S. 83, 87-88, 60 S.Ct. 406, 84
L.Ed. 590 (1940).
{¶ 18} The cases relied upon by Riverside do not contradict or undermine the
equal protection analysis described above, and present significantly different facts than
those at issue here. See, e.g., Allegheny Pittsburgh Coal Co. v. Cty. Com’n of Webster
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Cty., W. Va., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989) (finding system of
property tax assessment that resulted in “gross disparity” in valuation of comparable
properties over a lengthy period of time violated the Equal Protection Clause); General
Electric Co. v. DeCourcy, 60 Ohio St.2d 68, 397 N.E.2d 397 (1979) (dealing with
entitlement to interest on, as well as a refund of, real estate taxes wrongly collected).
Another case cited by Riverside, Graf v. Warren, 10 Ohio St.2d 33, 225 N.E.2d 262
(1967), explicitly recognizes the legislature’s latitude in this area:
* * * [T]he General Assembly may not discriminate against members of the
same class by denying some members of the class a tax exemption given
to others. * * * However, the General Assembly has a wide discretion in
finding distinctions that will justify classifications.
(Internal citations omitted.) Id. at 39.
{¶ 19} Because the parties agree, and we find, that this case does not involve a
suspect classification or a fundamental right, the legislature’s enactment of an exemption
to a municipality’s commuter income tax for Air Force base employees and contractors
must be upheld if it is rationally related to a legitimate governmental interest.
{¶ 20} Notably, Ohio does not maintain a comprehensive legislative history of its
statutes. State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 20,
citing State v. Dickinson, 28 Ohio St.2d 65, 67, 275 N.E.2d 599 (1971). Thus, even if
relevant, there is no means to analyze the exact or most-often cited arguments in support
of legislation. Instead, courts rely on the language the legislature chose and Ohio’s long-
established rules of statutory construction. Id. As Justice Holmes opined, “[w]e do not
inquire what the legislature meant; we ask only what the statute means.” Oliver Wendell
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Holmes, The Theory of Legal Interpretation, 12 Harvard L.Rev. 417, 419 (1899). See
also Adams v. Village of Enon, 2d Dist. Clark No. 2012-CA-42, 2012-Ohio-6178, ¶ 48.
Declaratory Judgment and Summary Judgment Standards of Review
{¶ 21} When a declaratory judgment action is resolved on summary judgment, an
appellate court’s review of the trial court’s resolution of the legal issues is de novo.
Troutman v. Estate of Troutman, 189 Ohio App.3d 19, 2010-Ohio-3778, 937 N.E.2d 173,
¶ 15 (2d Dist.). “De novo review means that this court uses the same standard that the
trial court should have used, and we examine the evidence to determine whether as a
matter of law no genuine issues exist for trial.” Brewer v. Cleveland City Schools Bd. of
Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v.
Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). On de novo
review, the trial court’s decision is not granted deference by the reviewing appellate court.
Powell v. Rion, 2012-Ohio-2665, 972 N.E.2d 159, ¶ 6 (2d Dist.); Jackson v. McKinney,
2d Dist. Montgomery No. 26288, 2015-Ohio-1977, ¶ 11.
{¶ 22} Civ. R. 56(C) defines the standard to be applied when determining whether
a summary judgment should be granted. Summary judgment is proper when the trial
court finds: 1) that there is no genuine issue as to any material fact; 2) that the moving
party is entitled to judgment as a matter of law; and 3) that reasonable minds can come
to but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence construed
most strongly in the party’s favor. Civ.R. 56(C); Harless v. Willis Day Warehousing Co.,
54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 23} The initial burden is on the moving party to show that there is no genuine
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issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93, 662 N.E.2d 264
(1996). Once a moving party satisfies its burden, the nonmoving party may not rest upon
the mere allegations or denials of the party’s pleadings; it must rebut the moving party’s
evidence with specific facts showing the existence of a genuine triable issue. Id.; Dotson
v. Freight Rite, Inc., 2d Dist. Montgomery No. 25495, 2013-Ohio-3272, ¶ 41 (citation
omitted).
Statutory Exemption of Certain Employees
{¶ 24} Keeping in mind the very deferential standards applicable to legislative
enactments and to equal protection challenges subject to rational basis review, we turn
to Riverside’s challenge to R.C. 718.01(C)(13).
{¶ 25} As stated above, R.C. 718.01(C)(13) exempts “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,” from being subject to a municipality’s commuter income taxes.
The parties do not dispute that, as of now, WPAFB is the only base to which this
exemption applies. The parties also do not dispute that while part of WPAFB lies within
Riverside, other parts do not.
{¶ 26} The State sets forth four reasons why, in its view, the exemption provided
is not only rational, but strongly justified:
1) The legislature could have reasonably determined that, because WPAFB
provides “the overwhelming majority of local services to Base employees,”
including a police force, fire department, utilities, and road maintenance, the
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collection of municipal taxes by any municipality in which the Base is located
was unnecessary or unwarranted;
2) The legislature could have reasonably determined that internally dividing
WPAFB for local tax purposes created unnecessary and cumbersome
administrative concerns, because employees working on various parts of
the Base would have to be treated differently. The boundaries of Riverside
not only bisect the Base itself, but also some of the buildings on the Base,
such that determinations of which employees or offices are taxable by
Riverside would be difficult;
3) The legislature could have reasonably determined that the tax exemption
protects Ohio’s valuable relationship with WPAFB, which employs
thousands of Ohioans and brings billions of dollars into its economy; and
4) The legislature could have reasonably decided to promote or reward
service to the country by providing a tax break to citizens who work at
WPAFB.
{¶ 27} Riverside asserts that the State does not have a “legitimate” interest in
most of these purported justifications, with the exception of the State’s relationship with
WPAFB. It argues, for example, that the State does not play any role in the provision of
municipal services to WPAFB, and that “rewarding” employees and contractors who work
for the Air Force by providing a municipal tax exemption does not create any direct benefit
(or cost) to the State.
{¶ 28} The State presented an affidavit from Mark L. Mays, Chief of Installation
Management Division, 88 Civil Engineer Group at WPAFB, in support of its contentions
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about the logistical aspects of WPAFB operations. Mays’s responsibilities include
oversight of the provision of the facilities, utilities, and services at the Base,
“environmental concerns,” road maintenance, housing management, and emergency
services. In addition to addressing these issues, Mays’s affidavit identified the
municipalities and counties in which WPAFB would lie if it were not “entirely federal
jurisdiction” and “treated as a federal enclave,” and discussed how the manner in which
the Base and its buildings are positioned indicates that “municipalities had no role in the
construction of the buildings” and that “the only jurisdictional theory in mind * * * was
federal.”
{¶ 29} The trial court found that the enactment of R.C. 718.01(C)(13), and the
benefit it confers on some employees of WPAFB, did not violate principles of equal
protection for several reasons. First, the court rejected Riverside’s argument that the
classification employed by the statute was arbitrary and capricious; it held that the
individuals alleged to have been treated disparately were “not alike in all relevant ways”
and that the implementation of different classifications based on work location was
permissible under the U.S. and Ohio Constitutions. The trial court also rejected
Riverside’s argument that the legislative history of the statute failed to support its
passage; the court noted that “a legislature is not required to articulate its reasons for
enacting a statute, and it is entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually motivated the legislature.”
{¶ 30} Further, the trial court held that the “taxation limitation” or tax exemption for
commuter employees and contractors working at WPAFB “serves vital and valid
governmental interests” in the following respects: 1) it recognizes that WPAFB workers
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receive municipal services from the Base, not Riverside; 2) it prevents complications that
would arise from drawing lines through WPAFB for tax or other purposes; 3) it protects
Ohio’s relationship with WPAFB, which has significant economic value; and 4) it promotes
WPAFB employees’ service to the country.
{¶ 31} With respect to the statute’s rational relationship to a legitimate interest of
the State, the trial court found that there were rational reasons to distinguish between a
commuter working on an air force base “under federal jurisdiction in a federal enclave”
and other commuters, including other federal employees, not working on an air force
base.
{¶ 32} In sum, the trial court concluded that each of the grounds for the statute
suggested by the State was rationally related to a legitimate governmental interest, that
R.C. 718.01(C)(13) did not violate the Equal Protection Clauses of the United States or
Ohio Constitutions, and that no genuine issues of material fact remained to be resolved
in this case.
{¶ 33} After conducting our de novo review of the evidence and the law, we agree
with the trial court’s conclusion that there is no genuine issue as to the constitutionality of
the statutory provision that exempts WPAFB employees and contractors from the
payment of municipal commuter income taxes. Each of the reasons cited by the State
for the enactment of R.C. 718.01(C)(13) is rationally related to a legitimate goal and
supports the conclusion that the tax exemption is a reasonable accommodation –
practically and/or philosophically -- to WPAFB and its employees. The exemption
recognizes and promotes the positive relationship between the State and WPAFB. It
eliminates the administrative burden of requiring WPAFB and/or its contractors to monitor
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the locations of employees, as well as how much time is spent in various locations,
relative to Riverside’s boundaries. It also removes the possibility that employees or
contractors at WPAFB will find certain job assignments more or less desirable because
of the impact of a commuter tax affecting some, but not all, of WPAFB’s workplaces and
offices. Finally, the exemption provides a benefit to employees and contractors who are
serving the country in some capacity, and WPAFB, not the city, provides most of the
municipal services for the Base.
{¶ 34} Each of these reasons is rationally related to a legitimate governmental
purpose and, collectively and individually, these reasons satisfied the rational-basis
analysis test for determining the constitutionality of R.C. 718.01(C)(13). Further, the
“high degree of judicial deference” that we must give to legislative enactments
encompasses giving great deference to the State’s determinations of its own legitimate
interests. The fact that the State may not play a direct role in the benefits or justifications
cited in support of legislation challenged on equal protection grounds does not preclude
a judicial finding that the legislation was rationally related to a legitimate State interest.
Moreover, the State need only set forth one rational basis for its legislative action, and
Riverside concedes that the State has a legitimate interest in promoting good will with
WPAFB.
{¶ 35} The United States and Ohio Supreme Courts have made clear that a party
challenging the constitutionality of a legislative enactment bears the burden of proof.
Thus, Riverside’s argument that the State did not sufficiently justify the legislative action
misstates the burden, even in summary judgment proceedings such as this one. The
State had “no obligation to produce evidence to sustain the rationality” of the statutory
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classification, Columbia Gas. Transm. Corp, 117 Ohio St.3d 122, 2008-Ohio-511, 882
N.E.2d 400, ¶ 91, and Riverside’s arguments are rooted in improper assumptions that it
could require the State to present factual evidence in court justifying the legislature’s
action. The constitutional question is not whether the State legislature’s decision was
perfect or even the best possible method of achieving a goal. Riverside failed to negate
“every conceivable basis” that might support the conclusion that the statute is rationally
related to a legitimate government purpose, Taxation with Representation of Washington,
461 U.S. 540, 547, 103 S.Ct. 1997, 76 L.Ed.2d 129, Columbia Gas Transm, Corp., 117
Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, at ¶ 91, or to create a genuine issue of
material fact as to the constitutionality of the statute such that further proceedings were
warranted.
{¶ 36} The trial court did not err in concluding that there was no genuine issue of
material fact as to the constitutionality of R.C. 718.01(C)(13) which warranted further
proceedings and that the State was entitled to judgment as a matter of law.
Discovery Issues
{¶ 37} Riverside’s first assignment of error also raises three discovery issues
related to its efforts to demonstrate that it was entitled to judgment as a matter of law.
Generally, we find that they are rooted, in part, in Riverside’s belief that it could require
the State to present factual evidence in the trial court justifying the legislature’s action or
that it could explore and/or challenge the legislative rationale for the commuter income
tax exemption through discovery.
{¶ 38} Trial courts have broad discretion in the regulation of discovery, and an
appellate court generally reviews discovery orders under an abuse-of-discretion
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standard. State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register,
116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18; Trick v. Scherker, 2d Dist.
Montgomery No. 26461, 2015-Ohio-2972, ¶ 8. A trial court abuses its discretion when it
acts arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). Absent an abuse of discretion, an appellate court
must affirm a trial court’s disposition of discovery issues. Bd. of Clark Cty. Commrs. v.
Newberry, 2d Dist. Clark No. 2002-CA-15, 2002-Ohio-6087, ¶ 13; Trick at ¶ 8. However,
whether the information sought in discovery is confidential and privileged from disclosure
is a question of law, which is reviewed on appeal de novo. Cruz v. Kettering Health
Network, 2d Dist. Montgomery No. 24465, 2012-Ohio-24, ¶ 22.
Deposing the State’s Representative or Designee
{¶ 39} Riverside claims that the trial court erred in granting the State’s Motion for
a Protective Order preventing Riverside from deposing the State through its
representative or designee. Riverside relied on Civ.R. 30(B)(5) as providing a basis for
the deposition. The State argued that Civ.R. 30(B)(5) does not contemplate a deposition
involving the State and that, even if such a deposition were appropriate in some
circumstances, the topics that Riverside sought to address were “inappropriate.”
{¶ 40} Civ.R. 30(B)(5) states:
A party, in the party’s notice, may name as the deponent a public or private
corporation, a partnership, or an association and designate with reasonable
particularity the matters on which examination is requested. The
organization so named shall choose one or more of its proper employees,
officers, agents, or other persons duly authorized to testify on its behalf.
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The persons so designated shall testify as to matters known or available to
the organization. * * *
{¶ 41} Riverside’s “Notice of Rule 30(B)(5) Deposition of State of Ohio” sought to
depose an employee, officer, or agent of the State (chosen by the State) concerning the
following: 1) the legitimate State interests to which R.C. 718.01(C)(13) is rationally
related; 2) the State interests that R.C. 718.01(C)(13) advances or purports to advance;
3) how the statute advances those interests; 4) the identity of “all bases, installations, or
other properties/entities” affected by the statute; 5) “how municipalities are permitted to
tax federal employees not working at WPAFB for income they earn within the
municipality”; 6) Riverside’s boundaries; 7) the process by which the City of Riverside
was formed; and 8) the “[f]acts and reasoning that support the State’s position that a
portion of WPAFB is not located within the City of Riverside.”
{¶ 42} The trial court found that the State is not “a public or private corporation, a
partnership, or an association” subject to Civ.R. 30(B)(5). It agreed with the reasoning
set forth in Marotto v. The Ohio State University Medical Center, Ct. of Cl. Case No. 2011-
02590, Entry (July 18, 2013), in which the Ohio Court of Claims addressed an identical
argument raised by the Ohio State University Medical Center and granted the hospital’s
motion to strike a Civ.R. 30(B)(5) notice of deposition. The Marotto case was considered
by the Tenth District three times, but the striking of the notice of deposition was not
assigned as an error. See Marotto v. The Ohio State University Medical Center, 10th
Dist. Franklin No. 12AP-27, 2012-Ohio-1078; Marotto v. The Ohio State University
Medical Center, 10th Dist. Franklin No. 12AP-27, 2012-Ohio-6158; Marotto v. The Ohio
State University Medical Center, 2014-Ohio-4549, 21 N.E.3d 643 (10th Dist.).
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{¶ 43} The trial court further found that, even if the State could be subject to such
a deposition, the State had already summarized the rational justification(s) for the law that
it intended to advance and identified the witnesses and materials on which it intended to
rely, such that some of the information sought in the deposition had already been
provided. It further found that the “requested deposition items were not set forth with
sufficient particularity and are overly broad and unduly burdensome.”
{¶ 44} The trial court did not abuse its discretion when it granted the State’s
protective order precluding the deposition. The trial court correctly observed that much
of the subject matter Riverside sought to address in the deposition had already been
provided by other means. Some of the proposed topics related to the State’s legal
theories, which were apparent from documents in the record. Other proposed topics
related to the rationale for the legislation’s enactment, which is a matter unsuited for
discovery, especially since the State may rely on any “conceivable basis” in support of
the constitutionality of a statute. Pickaway Cty. Skilled Gaming, 127 Ohio St. 3d 104,
2010-Ohio-4908, 936 N.E.2d 944, ¶ 20. Further, as referenced above, it is legally
impossible to divine what the legislature considered or its specific bases for legislation.
Under these circumstances, the trial court did not abuse its discretion in granting the
State’s request for a protective order.
{¶ 45} Moreover, Civ.R. 56(F) states:
Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party's opposition, the court
may refuse the application for judgment or may order a continuance to
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permit affidavits to be obtained or discovery to be had or may make such
other order as is just.
Pursuant to this Rule, if, in light of the trial court’s decision to preclude this particular
deposition, Riverside needed additional time to prepare its response to the State’s motion
for summary judgment, it could have filed a motion stating why it could not, at that time,
present sufficient facts justifying its opposition and/or requesting additional time.
Riverside did not do so.
Deposing the State’s Attorney
{¶ 46} Riverside also argues that the trial court improperly quashed its subpoena
of Assistant Attorney General Zachery Keller, who represented the State in these
proceedings. Riverside contends that it was entitled to depose “the individual who
verified the State’s interrogatory responses,” Keller. Specifically, Riverside argues that
Keller was the only person “identified as having knowledge of [the State’s] factual
assertions,” and Keller “made himself into a fact witness” by verifying the State’s
interrogatory responses. The State had sought to quash the subpoena on the grounds
that such a deposition would trigger privilege and work product protections and that the
interrogatories inappropriately focused on legal issues.
{¶ 47} The trial court summarily granted the motion to quash. Because the trial
court’s order prevented the disclosure of alleged privileged or otherwise protected
information (rather than requiring such disclosure), the decision, like most other discovery
orders, was not immediately appealable. See McDade v. Morris, 9th Dist. Summit No.
27454, 2015-Ohio-4670, ¶ 18.
{¶ 48} Riverside’s interrogatories contained questions such as: 1) “Identify each
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person known or reasonably believed to * * * have knowledge of any of the facts or
circumstances regarding the subject matter of Riverside’s complaint to the State’s
Answer”; 2) “State all facts and reasons that support your affirmative defense that ‘R.C.
718.01(H)(11) is rationally related to a legitimate state interest’ ”; 3) “Identify each and
every state interest that the State contends [R.C.] 718.01(H)(11) * * * advances or
purports to advance”; and 4) For each interest identified in [3)], explain in detail how the
State contends Section 718.01(H)(11) advances that state interest.”
{¶ 49} Riverside’s interrogatories were directed to the State of Ohio, rather than
to any particular individual; Assistant Attorney General Keller answered. The trial court
could have reasonably concluded that, to the extent that the interrogatories asked for
factual information, the State had answered. For example, Riverside requested the
identity of persons with “knowledge of any of the facts or circumstances regarding the
subject matter of Riverside’s complaint”; the State responded (in addition to objecting)
that members of the 127th General Assembly, which enacted the tax exemption, “can
reasonably be presumed to have at least some knowledge of the facts and
circumstances” regarding its passage, and that not-yet-identified persons at WPAFB
might also be presumed to have such information.
{¶ 50} With respect to Riverside’s interrogatories about the State’s legal theories
of the case and “affirmative defenses,” the interrogatory responses directed Riverside to
the State’s Motion to Dismiss, its Reply in Support of its Motion to Dismiss, and its
appellate brief in the previous appeal. Additionally, the trial court could have reasonably
concluded that these interrogatories were improper, insofar as they sought information
about legal theories of the case from opposing counsel.
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{¶ 51} The trial court did not abuse its discretion in quashing the subpoena of
Keller.
Motion to Compel Documents
{¶ 52} Finally, Riverside claims that the trial court erred in overruling its motion to
compel documents, specifically certain communications between attorneys of the Air
Force or WPAFB and the State’s attorneys handling this case or other cases involving
Riverside and WPAFB. Four or five memoranda1 and some email exchanges are at
issue.
{¶ 53} The State asserted that these communications were protected by attorney-
client privilege and under the common interest doctrine, because they furthered the
State’s legal analysis and defenses related to this litigation. The State also asserted that
the documents were work product created because of pending litigation. Riverside
argued that there was no attorney-client privilege, common interest privilege, or work
product doctrine protection for these documents, or that the State could not assert these
defenses on behalf of WPAFB and its attorneys. Riverside further argued that privilege
did not apply because the Ohio Attorney General did not represent WPAFB, and WPAFB
waived any privilege that applied to the documents by disclosing them to the Attorney
General.
{¶ 54} The State submitted three affidavits in support of its claim of privilege, in
accordance with Civ.R. 26(B)(6)(a). These affidavits were from attorneys representing
1
The trial court’s judgment refers to six memoranda in the State’s privilege log, and the
affidavit of State’s attorney Brodi Conover identifies five memoranda. One memorandum
was voluntarily disclosed by the Attorney General’s office during the course of these
proceedings.
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the State or WPAFB and stated that the memoranda and emails at issue in the motion to
compel had been exchanged since a summary judgment ruling between the current
parties in a previous case; they further stated that the State’s correspondence and
collaboration with WPAFB was in anticipation of further litigation and for the purpose of
discussing defense strategy. Additionally, some of the documents included “general
background facts regarding Riverside’s efforts to tax Wright Patterson employees,”
discussion of jurisdictional issues, and analysis of whether certain documents were
protected from discovery. Similarly, according to the affidavits, the emails contained
background discussions of how the City of Riverside was formed, its boundaries, its
authority to tax WPAFB employees, and legal strategy. (We note that the emails and
documents in question have not been made part of the record on appeal.)
{¶ 55} After conducting a detailed analysis of the affidavits submitted by the State,
the trial court agreed with Riverside that attorney-client privilege did not apply because
the State did not represent WPAFB. However, it found that the State’s argument that
the documents contained work product was “compelling.” Citing Civ.R. 26(B)(3) and
Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, the court
observed that Riverside was required to show good cause to compel the production of
documents prepared in anticipation of litigation by another party or its representative.
See Civ.R. 26(B)(3). The trial court concluded that Riverside had not shown good cause
to compel the production of the disputed documents in the State’s privilege log, because
it had not shown that the information contained in the documents was at issue in the case,
was otherwise unavailable, and/or that Riverside’s need for the information was
compelling. Thus, the court overruled Riverside’s motion to compel the production of the
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disputed documents. The court expressly did not rule on the State’s asserted “common
interest exception.”
{¶ 56} The trial court did not abuse its discretion in concluding that Riverside had
not shown good cause to compel the production of the documents in question. Although
the court did not rule on the State’s assertion that it and WPAFB had a common interest
in the litigation, Riverside’s assertion that documents prepared by WPAFB “cannot be
considered the ‘work product’ of the State” oversimplifies the issue. Civ.R. 26(B)(3)
mandates that trial preparation materials may be obtained in discovery “only upon a
showing of good cause” by the party seeking the documents. The trial court did not
abuse its discretion in concluding that Riverside had failed to satisfy this requirement.
{¶ 57} Riverside’s first assignment of error is overruled.
Trial Court’s Application of the Summary Judgment Standard
{¶ 58} In its second assignment of error, Riverside claims that the trial court
applied the incorrect standard of summary judgment. Riverside asserts that the trial
court erred in that it did not require the State, as the moving party, to meet its initial burden
of showing there was no genuine issue of material fact for trial. It also claims that the
trial court erroneously applied the “beyond a reasonable doubt” standard, when the
burden shifted to Riverside to show that there was a genuine issue for trial.
{¶ 59} As we discussed above, the initial burden is on the party moving for
summary judgment to show that there is no genuine issue of material fact. Drescher, 75
Ohio St.3d 280, 292-93, 662 N.E.2d 264. Once a moving party satisfies its burden, the
nonmoving party may not rest upon the mere allegations or denials of the party’s
pleadings; it must rebut the moving party’s evidence with specific facts showing the
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existence of a genuine triable issue. Id.; Dotson, 2d Dist. Montgomery No. 25495, 2013-
Ohio-3272, ¶ 41.
{¶ 60} The summary judgment standard, with its focus on the “material facts,” is
arguably somewhat problematic to apply when the issue upon which the court is asked
to render summary judgment is, at its core, a legal issue, as is the case here. The State
set forth several rational bases for the legislature’s conclusion that the enactment of R.C.
718.01(C)(13) served a legitimate government purpose. Pursuant to case law of the
U.S. and Ohio Supreme Courts, which is also cited above, the State had “no obligation to
produce evidence to sustain the rationality of a statutory classification.” Columbia Gas.
Transm. Corp, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91; Taxation With
Representation of Washington, 461 U.S. 540, 547-548, 103 S.Ct. 1997, 76 L.Ed.2d 129.
Moreover, legislation is presumed to be constitutional. Pickaway Cty. Skilled Gaming,
127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 20. The trial court did not err
in concluding that the State “set forth proof that it had valid state interests in legislating
tax exemptions for those who work on a federal air force base, including WPAFB,” thus
shifting the burden to Riverside to establish that there was a triable issue.
{¶ 61} Once the burden shifted, Riverside argued that R.C. 718.01(C)(13) did not
treat all similarly situated individuals in a similar manner, i.e., some commuters to
Riverside must pay its income tax, and non-WPAFB federal employees are required to
pay incomes taxes to municipalities in which they work, while WPAFB federal employees
are exempt. The trial court concluded that Riverside failed to demonstrate that a genuine
issue of material fact existed as to 1) whether the various employees referenced by
Riverside were “not alike in all relevant ways” for purposes of classification and equal
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protection analysis, and 2) whether the legislature’s classification for tax purposes was
“arbitrary and capricious.” It also concluded that there was no genuine issue of material
fact that the classification was reasonably related to the State’s legitimate interests.
These conclusions were legal conclusions, rather than factual ones.
{¶ 62} The trial court concluded that “even construing the evidence in favor of
Riverside, the court finds that Riverside has failed to meet its burden of proving that R.C.
718.01(H)(11) violates the Equal Protection Clauses of the United States Constitution and
Ohio Constitution beyond a reasonable doubt. As a result, no genuine issues of material
fact remain in this case, and the State of Ohio is entitled to judgment as a matter of law.”
The trial court’s use of the phrase “beyond a reasonable doubt” is a central focus of
Riverside’s argument that the court applied an improper standard.
{¶ 63} Although Riverside correctly points out that the “beyond a reasonable
doubt” standard does not generally apply in civil cases, the Ohio Supreme Court has
stated that a lawfully enacted statute “will not be invalidated unless the challenger
establishes that it is unconstitutional beyond a reasonable doubt.” Cleveland v. State,
128 Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d 370, ¶ 6. In this context, the trial court
did not err in concluding that Riverside had failed to rebut the State’s motion that it was
entitled to judgment as a matter of law because there was no genuine issue of material
fact that Riverside could not establish the unconstitutionality of R.C. 718.01(C)(13)
“beyond a reasonable doubt”; its use of this language did not reflect an improper analysis
of the issues presented. Having conducted a de novo review of the issues presented,
we agree with the trial court’s conclusion that the State was entitled to judgment as a
matter of law.
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{¶ 64} The second assignment of error is overruled.
{¶ 65} The judgment of the trial court will be affirmed.
.............
DONOVAN, P.J. and FAIN, J., concur.
Copies mailed to:
Daniel J. Buckley
Adam C. Sherman
Jacob D. Mahle
Jessica K. Baverman
Zachery Keller
Nicole M. Koppitch
Brodi J. Conover
Hon. Mary Katherine Huffman
Riverside v. State
Combined Opinion