Shanahan v. City of Toledo

Appeal Brief Filed

2009-05-05T12:02:00.000-07:00

Monday, May 4, 2009:

Attorneys Scott Ciolek and Anthony DeGidio filed Karen Shanahan's Appeal with 6th District Court of Appeals in Toledo, Ohio.

The Issues raised in the brief include:

I. Whether a “refuse fee” constitutes a “tax or assessment” within the meaning of Ohio Revised Code § 2723.

II. Whether filing a civil complaint is sufficient to meet the notice requirements of R.C. § 2723.01.

III. Whether a notice given by a class representative is sufficient notice for all members of a proposed class action.

To Download a PDF version of the briefing Click Here

Updated Protest Letter

2009-04-16T08:55:00.000-07:00

Given the unclear nature of the protest "requirement", a new broader protest letter is suggested.

Download a PDF version by clicking here.

Or, use the text found below.

NAME : ______________________
ADDRESS: ______________________
______________________
______________________
ACCT # ______________________

ATTN: Department of Public Utilities
City of Toledo
Ohio Building, Suite 100
Toledo, Ohio 43667-0001

Pursuant to Ohio Revised Code § 2723.03, I hereby notify the City of Toledo that I am paying the “refuse fee” under protest. Whether construed as a “tax,” “fee,” or “assessment,” the “refuse fee” is unlawful for the following reasons:

The “refuse fee” essentially functions as a property tax; and

The Ohio Constitution requires a referendum before such an assessment may be levied.

This notice is to preserve any and all rights I may have to pursue the recovery of this unlawful tax, assessment or appropriation. In addition, the undersigned respectfully requests the Law Director of the City of Toledo to file an action to enjoin the levy and collection of the “refuse fee” pursuant to § 733.56 et seq. of the Revised Code.

Therefore, please consider this account in dispute, and place this notice in the applicable file.

Sincerely,

___________________________

Fox News Coverage of Trash Tax Appeal

2009-04-03T11:19:00.001-07:00

APPEAL FILED IN “TRASH FEE” LAWSUIT

2009-04-01T07:10:00.000-07:00

Toledo, Ohio -- On April 10, 2008, Karen Shanahan filed a lawsuit in the Lucas County Court of Common Pleas, challenging the constitutionality of the controversial “refuse fee” collected by the City of Toledo. Ms. Shanahan requested class certification, for the purpose of recovering all “refuse fee” funds on behalf of Toledo taxpayers. In pre-trial motions, the City argued that even if the “trash fee” is unconstitutional, Toledo residents who paid the fee could not recover their money. The City, citing an obscure section of the Ohio Revised Code, claimed that citizens could not file suit to recover unlawful taxes unless every member of the plaintiff’s class “filed a written protest” at “the time of paying such taxes.”

The trial court agreed with the City, allowing Mrs. Shanahan to continue seeking injunctive relief, but preventing Mrs. Shanahan from initiating a class action to recover “trash fees” already collected by the City. On March 23, 2009, Mrs. Shanahan filed a notice of appeal with the Sixth District Court of Appeals, arguing that the City would be unjustly enriched if allowed to retain the proceeds of an unconstitutional fee or tax.

While the appeal is pending, Ms. Shanhan encourages all Toledo residents subject to the “refuse fee” to enclose a written protest notice with every future payment of the “refuse fee.” For Toledo citizens interested in protesting the “refuse fee,” a convenient protest form is available by clicking here .

Is it a Fee or a Tax?

2009-01-27T15:41:00.000-08:00

The case involves illegally collected money by a municipality. However, whether the money collected is determined to be a fee or a tax must be determined before the case can move forward. That's because, the procedural requirements and the legal analysis are different between fees and taxes.

In a motion filed today, the Shanahan Legal Team has asked Judge Charles J. Doneghy to decide whether the money collected by the City of Toledo is a fee or a tax. To view the motion click here.

Anthony DeGidio Joins the Shanahan Legal Team

2009-01-27T15:38:00.000-08:00

Experienced litigator Anthony J. DeGidio has now entered an appearance in this matter on behalf of Karen Shanahan. To visit his website click here.

City of Toledo Claims that Trash Fee is a Tax!

2009-01-27T12:05:00.000-08:00

The City of Toledo now claims that trash fee is a tax in its most recent filing in Shanahan v. City of Toledo. To read the latest submission to the Court click here.

2008-06-23T13:30:00.000-07:00

Class Certification

2008-06-02T16:06:00.000-07:00

Ciolek & Wicklund filed a Motion to Certify Class Action.

Motion To Certify Class

First Amended Complaint

2008-04-10T14:32:00.000-07:00

An amended complaint was filed on April 10th, 2008. (Read First Amended Complaint).

Press Release: 02/28/2008

2008-02-28T09:35:00.000-08:00

On February 28, 2008, Ciolek & Wicklund, Attorneys at Law, filed a complaint challenging the City of Toledo’s refuse fee on behalf of Karen Shanahan and similarly situated property owners in Toledo. Within two weeks from today the City will need to answer that complaint.

A clear explanation of the case is in order to provide the media outlets with an understanding of some of the issues at play in this case.

In effect, the very character and nature of the refuse fee amounts to a property tax. Furthermore, the refuse fee was created by administrative fiat. And, at no point was it approved by City Council or the voters of the City of Toledo. Viewed broadly, the purpose of this case is to establish that the City of Toledo has taxed the property owners outside of its own limitations. Moreover, the City of Toledo has taxed the property owners outside of the limitations set forth in Ohio’s Constitution and the statutes of the State of Ohio. To that end, this case will affect the rights of all current and future property owners in the City of Toledo.

Ironically, the City calls it a “refuse fee,” when in fact it has little-to-nothing to do with refuse. Sections 208-210 of Appendix B of the Rules and Regulations issued by the Director of Public Services {emphasis added}, states that every property owner shall pay $5.50 per Month per Unit. The City uses the water bill as a vehicle to collect this fee. Furthermore, this fee is set without regard to occupancy or to refuse created or to refuse collected or to any other issue related to refuse. The fee is simply based on the number of units. So for example, if a property owner has a triplex or a duplex and is unable to rent these spaces, she still must pay the extra per-unit cost even though no refuse is generated by those units.

Importantly, this $5.50 fee is arbitrary, and if it is unchallenged it may be increased by the Director of Public Services at any time to any amount for any reason. Beyond this, the money taken from the property owners under this fee is not applied directly to refuse related services, rather it is deposited into the City’s General Fund and spent at the will of the Mayor with limited restrictions.

Notably, if the refuse fee is not paid-in-full every month, the City of Toledo under the rule will penalize the property owners in 6 different ways as outlined in the Rules and Regulation cited above.

The City will levy an overdue fee,
The City will cut-off water service,
The City will turn the property owner over to a collections agent,
The City will transfer the debt to another property,
The City will sue the property owner, and
The City will place the amount owed on the Property Tax Bill

As we have seen and heard, there seems to be some confusion about the genesis and promulgation of the refuse fee and the related law suit. To help explain these issues, Kurt J. Wicklund, partner at Ciolek & Wicklund, will be appearing on the Brian Wilson Show on WSPD 1370 AM at 5 pm Tomorrow, Tuesday, March 18, 2008.