Rоry Fowler, Plaintiff-Appellant/ Cross-Appellee, v. Ohio Department of Public Safety, Bureau of Motor Vehicles et al., Defendants-Appellees/ Cross-Appellants.
No. 16AP-867 (C.P.C. No. 16CV-3818)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 1, 2017
2017-Ohio-7038
SADLER, J.; TYACK, P.J., and BRUNNER, J., concur.
(REGULAR CALENDAR)
Rendered on August 1, 2017
On brief: Mayle Ray & Mayle LLC, Andrew R. Mayle, Jeremiah S. Ray, and Ronald J. Mayle, for appellant/cross appellee. Argued: Andrew R. Mayle.
On brief: Michael DeWine, Attorney General, Peter L. Jamison, Hilary R. Damaser, and Zachary C. Schaengold, for appellees/cross-appellants. Argued: Peter L. Jamison.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant/cross-appellee, Rory Fowler, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees/cross appellants, Ohio Department of Public Safety, Bureau of Motor Vehicles (“BMV“), and Ohio Treasurer Josh Mandel (“Treasurer“) (collectively “appеllees“). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant commenced this action against appellees alleging that the BMV wrongfully collected a $100 financial responsibility reinstatement fee from him and
{¶ 3} On May 25, 2016, the BMV filed a motion to dismiss the complaint, pursuant to Civ.R. 12(B)(6), for failure to state a claim on which relief can be granted. On November 16, 2016, the trial court determined that ”
{¶ 4} Appellant timely appealеd to this court from the decision of the trial court. Appellees timely filed a notice of cross-appeal. On January 10, 2017, appellant filed a motion to dismiss the cross-appeal, arguing that App.R. 3(C)(2) does not require or permit a cross-appeal where the cross-appellant merely seeks to defend the underlying judgment on different grounds than were relied on by the trial court.
II. ASSIGNMENTS OF ERROR
{¶ 5} Appellant/cross-appellee assigns the following as trial court error:
The trial court erroneously opined that a fee required to be paid before people may operate or register their vehicles is not a fee “relating to” the registration, operation, or use of vehicles on public highways within the meaning of
Ohio Const. Art. XII, Sec. 5a .
{¶ 6} Appellees/cross-appellants’ sole assignment of error is as follows:
The trial court erred when it determined that it had jurisdiction to review the action before it, when the plaintiff had not shown he had standing.
III. STANDARD OF REVIEW
{¶ 7} “A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147 (1955). Accordingly, the party challenging the constitutionality of a statute bears thе burden of proving that the law is unconstitutional beyond a reasonable doubt. Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872, ¶ 11. The constitutionality of a statute is a question of law, which is reviewed de novo on appeal. In re D.S., 10th Dist. No. 15AP-487, 2016-Ohio-2810, ¶ 9. See also Liposchak v. Bur. of Workers’ Comp., 138 Ohio App.3d 368, 385 (7th Dist.2000), citing Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993).
IV. LEGAL ANALYSIS
A. Appellant‘s Assignment of Error
{¶ 8} In appellant‘s assignment of error, appellant argues that the trial court erred when it determined that the financial responsibility reinstatement fee is not a fee “relating to” the registration, operation, or usе of vehicles on public highways for purposes of
{¶ 9}
(A)(1) No person shall operate * * * a motor vehicle in this state, unless proof of financial responsibility is maintained continuously throughout the registration period with respect to that vehicle.
(2) Whoever violates division (A)(1) of this section shall be subject to the following civil penaltiеs:
* * *
(d) In addition to the suspension of an owner’s license under division (A)(2)(a), (b), or (c) of this section, the suspension of the rights of the owner to register the motor vehicle and the
impoundment of the owner’s certificate of registration and license plates until the owner complies with division (A)(5) of this section. * * *
(5) [T]he registrar shall not restore any operating privileges or registration rights suspended under this section, * * * unless the person, in addition to complying with all other conditions required by law for reinstatement of the operating privileges or registration rights, complies with all of the following:
(a) Pays to the registrar or an eligible deputy registrar a financial responsibility reinstatement fee of one hundred dollars for the first violation of division (A)(1) of this section, three hundred dollars for a second violation of that division, and six hundred dollars for a third or subsequent violation of that division.
(Emphasis added.)
{¶ 10} Prior to the effective date of Am.Sub.H.B. No. 1, October 16, 2009, the financial responsibility reinstatement fees were $75 for the first violation, $250 for a second violation, and $500 for a third or subsequent violation. In addition to raising the financial responsibility reinstatement fees, Am.Sub.H.B. No. 1 amendments to
(E) All fees, except * * * those portions of the financial responsibility reinstatement fees as otherwise specified in this division, collected under this section shall be paid into the state treasury to the credit of the public safety - highway purposes fund * * * used to cover costs incurred by the bureau in the administration of this section and * * * and by any law enforcement agency employing any peace officer who returns any license, certificate of registration, аnd license plates to the registrar pursuant to division (C) of this section.
Of each financial responsibility reinstatement fee the registrar collects pursuant to division (A)(5)(a) of this section or receives from a deputy registrar under division (A)(5)(d) of this section, the registrar shall deposit twenty-five dollars of each one-hundred-dollar reinstatement fee, fifty dollars of each three-hundred-dollar reinstatemеnt fee, and one hundred dollars of each six-hundred-dollar reinstatement fee
into the state treasury to the credit of the indigent defense support fund created by section 120.08 of the Revised Code.
(Emphasis added.)
{¶ 11} In Am.Sub.H.B. No. 1, the General Assembly added the second paragraph of subsection (E), which diverts a portion of the financial responsibility reinstatement fees to the indigent defense support fund. Appellant argues that the diversion of any portion of the financial responsibility reinstatement fees to the indigent defense support fund violates
No moneys dеrived from fees, excises, or license taxes relating to registration, operation, or use of vehicles on public highways, or to fuels used for propelling such vehicles, shall be expended for other than costs of administering such laws, statutory refunds and adjustments provided therein, payment of highway obligations, costs for construction, reconstruction, maintenance and repair of publiс highways and bridges and other statutory highway purposes, expense of state enforcement of traffic laws, and expenditures authorized for hospitalization of indigent persons injured in motor vehicle accidents on the public highways.
{¶ 12} There is no argument in this case that the indigent defense support fund is an authorized expenditure under
{¶ 13} Appellant relies primarily on Beaver Excavating in support of his position. In Beaver Excavating, the appellants, a group including contractors and county
{¶ 14} The trial court granted summary judgment in favor of the tax commissioner, and the county engineers appealed to this court. This court affirmed the judgment of the trial court holding that the background and history of
{¶ 15} The Supreme Court accepted the county engineers’ аppeal. The question to be decided by the court was “whether the CAT is a tax ‘relating to’ motor-vehicle-fuel sales such that it implicates the prohibition in Section 5a on spending revenue for nonhighway purposes.” Id. at ¶ 28. In reversing the judgment of this court, the Supreme Court engaged in the following analysis:
[T]he CAT proceeds bear a logical and close connection to motor-vehiclе fuels. The CAT proceeds are (1) money (2) derived (3) from an excise (4) on motor-vehicle-fuel sales. Although not a transactional tax, the amount of tax one must pay to the state because of the CAT is directly based on motor vehicle-fuel-sales revenue. Objectively, one is hard pressed to deny the close connection between the tax paid (moneys derived) and the sourcе (excise on “fuels used“) of that tax revenue. The close relationship is not severed because the excise is on the revenue derived from the sales of motor vehicle fuel rather than the quantity of such fuel. There is still a close connection to the “fuels used for propelling vehicles” on public highways and the revenue generated to fall within the amendment‘s intended ambit. Consequently, wе conclude that the CAT revenues derived from sales of motor-vehicle fuel relate to motor-vehicle fuel used for propelling vehicles on public highways as contemplated within Section 5a.
{¶ 16} One day earlier, the Supreme Court decided Ohio Trucking. In Ohio Trucking, the appellees, including the Ohio Trucking Association, filed a complaint for injunctive relief and declaratory judgment, challenging the constitutionality of
We decline to define “relating to.” The term is elastic enough for the General Assembly to use in many different situations. When it does, we will do our best to discern how loosely or strictly the term should be intеrpreted. In this case, we are convinced that the money derived from certified abstracts is related to the process of certification, not to the “registration, operation, or use of vehicles on public highways.” Accordingly, we reverse the judgment of the court of appeals, which concluded otherwise.
{¶ 17} The court in Ohio Trucking concluded that the fees charged by the registrar of motor vеhicles for the production of certified abstracts of driving records were not “relating to” the registration, operation, or use of vehicles on public highways within the meaning of
The information maintained by the Bureau of Motor Vehicles is largely available for free pursuant to a public-records request. Based on this, we are persuaded that the fee for a certified abstract is less related to the “registration, operation, or use of vehicles” than to the process of certification. The process of certification is useful, perhaps even necessary, to certain of the plaintiffs, but it is not necessary to the general motoring public. The production of certified abstracts cannot happen without the registration information maintained by the Bureau of Motor Vehicles. But we conclude that the fees for certified abstracts are not related to the registration, operation, or use of vehicles on public highways, because the vast majority of drivers and vehicles on the road are registered, operated, or used without the necessity of a certified abstract. Another way to think about it is that the fee for a certified abstract is not triggered by the registration, operation, or use of a vehicle on the public highways.
{¶ 18} Applying Ohio Trucking herein, we find that the financial responsibility reinstatement fee is directly related to an Ohio driver‘s non-compliance with the mandatory financial responsibility provisions of
{¶ 19} As was the case in Ohio Trucking, an event unrelated to vehicle registration triggers the financial responsibility reinstatement fee. In this case, the lack of vehicle insurance triggers a civil penalty which includes a financial responsibility reinstatement fee. We note that in order to meet the requirements for reinstatement, a motorist who has incurred the civil penalty of suspension must first file and continuously maintаin proof of financial responsibility under
{¶ 20} Appellant contends that the decision in Ohio Trucking is distinguishable because the court based its ruling primarily on the fact that the information in the certified abstract was generally available to the public via a public records request. Because of this fact, appellant argues the court in Ohio Trucking concluded that the fee for a certified abstract is less related to the registrаtion, operation, or use of vehicles than to the process of certification.
{¶ 21} We agree that the Ohio Trucking case arises under different facts than the present case. However, we find that the rationale employed by the court in Ohio Trucking is more suitable to our analysis of the amendment at issue in this case and that we should interpret the term “relating to” more narrowly when it is applied to the increased financial responsibility reinstatement fee. Moreover, any motorist who has incurred the civil penalty of suspension under
{¶ 22} Because we have determined that the 2009 amendments to
B. Appellees’ Cross-Assignment of Error
{¶ 23} In appellees’ cross-assignment of error, they contend that the trial court erred when it determined that appellant had standing to challenge the constitutionality of
{¶ 24} For the foregoing reasons, appellees’ cross-appeal and apрellant‘s motion to dismiss the cross-appeal are moot.
V. CONCLUSION
{¶ 25} Having overruled appellant‘s assignment of error and having determined that the cross-appeal is moot, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, P.J., and BRUNNER, J., concur.