I am compelled to dissent respectfully from the majority in this case.
I dissent from the majority's decision overruling appellants' second assignment of error. The majority states that "the record suggests the service safety director attended city council meetings." Nevertheless, the affidavit of the service safety director does not lay any foundation for his assertions regarding the motivation of council for passing Ordinance No. 90-117. Absent such a foundation, I cannot conclude that these assertions were "made on personal knowledge" as required by Civ.R. 56(E).
I do agree with the majority that the affidavit of the mayor contains a legal conclusion, i.e., that Ordinance No. 90-117 promotes home ownership. As a consequence, I would hold that the trial court erred in denying appellants' motion to strike portions of the affidavits accompanying appellee's motion for summary judgment and sustain the second assignment of error.
Likewise, I would sustain the first assignment of error and hold that Ordinance No. 90-117 violates the Equal Protection Clauses of the Ohio and United States Constitutions.
Under Ordinance No. 90-117, the city does not provide refuse pickup service to residential structures having more than four dwelling units, except multi-family condominium units. Among those excluded from refuse pickup service by the city are apartment buildings having more than four dwelling units.
Correctly, the majority recognizes that the constitutional challenge presented in this case must be evaluated in light of the "rational basis" test in order to determine "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Fed. Communications Comm.v. Beach *Page 665 Communications, Inc. (1993), 508 U.S. 307,113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (citations deleted). Despite the "strong presumption of validity," id. at 2102, and deference accorded legislation under the rational basis test, I would hold that the classification established by Ordinance No. 90-117 is constitutionally flawed.
All of the purported bases for this legislation espoused by appellee fail the rational basis test. For example, although appellee's goal of protecting the environment is laudable, appellee has not demonstrated any rational basis for concluding that requiring apartment buildings having more than four dwelling units to arrange for private refuse collection impacts the environment any differently than municipal collection would.
Likewise, a city may not alleviate the rising costs of garbage collection by creating an arbitrary classification. The record in this appeal reflects that 21 apartment buildings containing 994 units are denied refuse collection under Ordinance No. 90-117. Affidavit of Paul I. McCumbers, Safety Service Director of the City of Berea (McCumbers Affidavit), pars. 6 and 7. Ordinance No. 90-117 does authorize refuse collection for the three condominium complexes in Berea containing 146 units. McCumbers Affidavit, par. 11. The average size of the apartment buildings is slightly more than 47 units. The average size of the condominium complexes is slightly less than 49 units.
Certainly, excluding the 21 apartment buildings would reduce the city's overall cost of refuse collection. Merely reducing total costs to the city does not, however, establish a rational basis for the classification. Rather, the classification discriminates on a basis unrelated to refuse collection, i.e., the classification turns solely on the nature of ownership of the property.
Appellee also argues that Ordinance 90-117 rationally relates to the objective of promoting home ownership. As noted above in the discussion of second assignment of error, the assertion in the mayor's affidavit that the ordinance promotes home ownership is a legal conclusion and should have been stricken by the trial court. Furthermore, this argument by appellee demonstrates the inherent irrationality of Ordinance No. 90-117. That is, if promoting home ownership were a goal of appellee, the city would not provide refuse pickup to any rental units. Under Ordinance No. 90-117, however, buildings with four or fewer dwelling units have the benefit of the city's refuse pickup regardless of the nature of ownership. In any event, if home ownership were the objective, the city would provide refuse pickup exclusively to owner-occupied buildings.
Appellee's argument that Ordinance 90-117 draws a rational distinction between larger and smaller apartments ignores the essential flaw in this legislation. That is, appellee's line-drawing is not limited to the number of units but blurs lines by creating two classes of residential structures having more than four dwelling units. Appellee would withhold a service from apartment dwellers that *Page 666 is provided to condominium dwellers without demonstrating any rational basis pertaining to refuse collection for creating these two classes of residents.
This court's decision in Royal Am. Corp. v. Euclid (Aug. 21. 1975), Cuyahoga App. No. 34018, unreported, certiorari denied (1976), 425 U.S. 966, 96 S.Ct. 1751, 48 L.Ed.2d 210, demonstrates the weakness in appellee's position. In Royal Am., a majority of this court held that a Euclid ordinance restricting municipal refuse collection to single and two-family dwellings contravened the principle of equal protection. The majority in this case dismisses this decision as having no precedential value because the trial court in Royal Am. had not issued findings of fact and conclusions of law despite a timely request. Although the majority correctly recognizes that the absence of findings of fact and conclusions of law did not affect finality until Walkerv. Doup (1988). 36 Ohio St.3d 229, 522 N.E.2d 1072, more than a decade after Royal Am., the majority incorrectly concludes that this court was without jurisdiction to reach the merits in RoyalAm. The majority cites no authority for the retroactive revocation of jurisdiction based upon a change in the law.
Furthermore, in 1975 App.R. 12(A) provided, in part: "All errors assigned and briefed shall be passed upon by the court in writing, stating the reasons for the court's decision as to each such error." In this context, it is difficult to discern how the majority in this case could conclude that the discussion in RoyalAm. of the constitutionality of the Euclid ordinance would constitute obiter dicta. Contrary to the majority's assertion that
"Royal American has no precedential value," Sup.R.Rep.Op. 2(G)(2) provides in part, "each unofficially published opinion or unpublished opinion shall be considered persuasive authority on acourt, including the deciding court, in the judicial district inwhich the opinion was rendered." (Emphasis added.) This court may not, therefore, disregard Royal Am.
Even the dissent in Royal Am. demonstrates the flaws in Ordinance No. 90-117.
[A]partment or condominium living concentrates large amounts of garbage at a single location, a fact which makes the collection of such garbage economically unfeasible for Euclid at this time.
Therefore, it is my conclusion that persons who choose to live in apartment or condominium structures are living in circumstances unlike those who live in single or two-family residential structures. It is therefore not a denial of equal protection of the law to deny municipal refuse collection to apartment and condominium dwellers.
Royal Am., supra, at 2 (Parrino, J., dissenting). of course, this larger-versus-smaller distinction is one of the arguments used by appellees, but Ordinance No. 90-117 strays from merely distinguishing larger and smaller structures. As a consequence, appellee's larger-versus-smaller argument *Page 667 lacks the internal logic of the dissent in Royal Am., because Ordinance No. 90-117 also distinguishes among large structures solely on the basis of ownership.
The majority also ignores the initial challenge to Ordinance No. 90-117. In Gertsma v. Berea, Cuyahoga County Court of Common Pleas Case No. CV-199177, appellant Laurence Gertsma sought a declaratory judgment "that Ordinance No. 90-117 violates his right to equal protection of the law under the United States and Ohio Constitutions." Memorandum of Opinion and Order in Case No. CV-199177 (Jan. 5, 1993), at 1. The court of common pleas held that "Ordinance No. 90-117 is unconstitutional because it violates the Equal Protection Clause of the United States and Ohio Constitutions." Id. at 4. In Gertsma v. Berea (May 12, 1994). Cuyahoga App. No. 65323, unreported, this court held that the court of common pleas lacked jurisdiction because the record did not reflect compliance with R.C. 2721.12 which requires serving the attorney general with declaratory judgment proceedings. This court vacated the trial court's judgment but did not remand the case for further proceedings.
After appellants filed Gertsma v. Berea, Cuyahoga County Court of Common Pleas Case No. CV-303786, from which this appeal arises, the assigned judge transferred the case to the docket of the judge who presided over Case No. CV-199177. Nevertheless, the judge who heard Case No. CV-199177 returned Case No. CV-303786 to the judge originally assigned to hear Case No. CV-303786 because Case No. CV-199177 was decided on the merits.
The text of the memorandum of opinion and order issued by the court of common pleas in Case No. CV-199177 is an exhibit to appellants' motion for summary judgment in Case No. CV-303786. In Case No. CV-199177, the court of common pleas observed that:
the City can demonstrate no rational basis for burdening larger apartment buildings with the cost of private garbage collection, while exempting multi-family condominium units of comparable size. There is no discernible difference in the quantity or quality of waste produced by the inhabitants of these structures, and the accessibility of condominium structures and of greater than four-suite apartment buildings to waste-hauling vehicles is indistinguishable.
Memorandum of Opinion and Order in Case No. CV-199177 (Jan. 5, 1993), at 3.
The court of common pleas in Case No. CV-199177 concluded that the classification in Ordinance No. 90-117 manifested the same constitutional defect as the ordinance challenged in Royal Am.
The classification is based upon the nature of the buildings involved, the volume of garbage produced in each, and the cost of collection of such garbage. The classification does not take cognizance of the fact that people in apartments and people in single- or two-family dwellings produce the same type of refuse. Citizens living in both types of residences require the removal of their garbage and rubbish on a regular basis for health and safety reasons. There is no *Page 668 rational basis for the municipal decision not to collect garbage from inhabitants of apartments on the one hand and to collect it from inhabitants of residential dwellings on the other. Thus, Ordinance 49-1974 contravenes the principle of equal protection. See Yick Wo v. Hopkins (1886), 118 U.S. 356, 373-374, 30 L.Ed. 220, 227.
Royal Am., supra, at 6 (Day, P.J.; Manos, J., concurs) quoted in Memorandum of Opinion and Order in Case No. CV-199177 (Jan. 5, 1993), at 3-4.
As Royal Am. and the history of the controversy over Ordinance No. 90-117 demonstrate, the constitutionality of legislation such as that under review in this case is a very close question. RoyalAm. was decided by a divided panel of this court. Likewise, two members of the court of common pleas have reached contrary conclusions regarding the constitutionality of Ordinance No. 90-117.
Clearly, the deferential standard governing judicial review of this kind of legislation ensures that courts do not substitute their legislative judgment for that of legislators. Despite this deference, however, courts must also ensure that laws provide equal protection to those affected by them.
The trial court in this case observed: "The Equal Protection Clause prevents governments from unreasonably treating similarly situated individuals differently. Railway Express Agency v. NewYork, 336 U.S. 106 (1949); Nordlinger v. Hahn, 505 U.S. 1,112 S. Ct. 2326 (1992)." Ordinance No. 90-117 differentiates between residents of multi-unit condominiums and residents of multi-unit apartments. Although there may be a difference in the nature of ownership of multi-unit condominiums and multi-unit apartment buildings, that circumstance is a difference without a distinction for purposes of refuse collection. That is, regardless of ownership, there has been no demonstration of a distinction between residents of condominiums and residents of apartment buildings as to the need for refuse collection. In my judgment, no rational basis exists for providing municipal refuse collection for the residents of condominiums while excluding residents of apartment buildings with more than four dwelling units. Otherwise, municipalities would have an incentive to reduce expenditures by arbitrarily denying services to some residents. Depriving some residents of municipal services by means of a classification lacking a rational basis for distinguishing among residents and their need for those services contravenes the Equal Protection Clauses of the Ohio and United States Constitutions.
Accordingly, I would: 1) reverse the judgment of the court of common pleas and instruct the court of common pleas to enter declaratory judgment on count I of the complaint holding that Ordinance No. 90-117 violates the Equal Protection Clauses of the Ohio and United States Constitutions; and 2) remand this case to the court of common pleas for consideration of count II of the complaint under *Page 669 which appellants claim they are entitled to damages due to the enactment and enforcement of Ordinance No. 90-117.