Citizen’s Advisory regarding Refuse fee lawsuit and class action.
May 24, 2010
There are two issues regarding the refuse fee and this Citizen’s Advisory is an alert to all residents of Toledo who pay the fee. It is to address the request for class action, which was denied once, but will be heard again by the Common Pleas Court. Would you want to be included if the “fee” is determined to be illegal?
Let me start with some numbers:
• $28,000,000 – revenue received or projected from the Trash Tax in 3.5 years
• 100,000 –approximate number of residences being bill quarterly for the Trash tax.
• 122 – number or residents identified who protested the fee to the Department of Public Utilities.
• 50 – number of protest letters the City can find.
• 1 – number of persons included at this point by Common Pleas Court in the class action.
Let’s say a robber robbed a bank and got away to ½ a million dollars. As he flees the scene, a local citizen stops the thief who is then arrested and the money is recovered. Now the citizen had a checking account with the bank with $500 in it, and the courts tell him, you get your money back because you caught the thief, but the other 5000 investors whose money was stolen… they don’t get their money back because they didn’t catch the thief, in fact, the thief gets to keep the rest money.
Preposterous, ridiculous, you say!
Well, it’s happening with the request for class action in this lawsuit.
The original decision by the court was that only those who file a formal protest could be included.
In essence we did that on behalf of everyone when we filed the lawsuit 2 years ago. It was to serve as the official protest against the tax and read as follows (CASE: G-4801-CI-200802348-000):
1. This class action seeks … compensatory damages, …. a preliminary and permanent injunction, …. for unjust enrichment due to Defendant’s wrongful taxation of Plaintiff and Plaintiff’s class by administratively approving an additional tax to collect refuse without the approval of Toledo City Council and without the approval of voters by referendum as this is a tax on property owners.
8. On information and belief, Plaintiffs’ class includes over 100,000 housing units, but this class is limited only to those who pay this tax.
9. This action is properly maintained as a class action because in all pertinent aspects the Plaintiff and all other similarly situated individuals have predominately identical claims.
10. This tax is not completely identical for all members of the Plaintiffs’ class because some individuals own multiple unit apartment buildings, and some individuals receive a discount for recycling.
11. Each member of the Plaintiffs’ class is required to pay this tax or face the following penalties by the city: (1) terminate water service; (2) forward the account to an outside collection agency; (3) transfer the delinquency to any other property owned by the account holder; (4) bring an action at law for collection; (5) or place a lien on the property.
What constitutes class action? As defined by © 1999 Timothy E. Eble: Standards For Class Certification Under the Ohio Rules of Civil Procedure: A Concise Summary
• Ohio Rule of Civil Procedure 23(a) contains five explicit requirements that must each be satisfied when seeking class certification.
• First, the plaintiff must establish that an identifiable class actually exists
• Second, the named representatives must be members of that class
• Thereafter, the plaintiff must demonstrate:
a) the class is so numerous that joinder of all members is impracticable;The City has already demonstrated they are unable to record and maintain protests submitted by concerned residents. When I asked for copies of protests received in an open records request, they sent 54 protests letters; of those 9 matched emails received stating a protest was filed; however, there were no letters for an additional 68 protesters who notified us they had filed.
b) there are questions of law or fact common to the class;
c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
d) the representative parties will fairly and adequately protect the interests of the class;
e) Common questions predominate over questions effecting only individual members; and, that a class action is superior to other available methods of resolving the claims.
One must conclude it is obvious that class action is necessary to ensure everyone is included according to point
a): the class is so numerous that joinder of all members is impracticableIf the City cannot account for 68 protest letters we know exist, how many more were submitted that just disappeared? How would the city manage 100,000 protests?
We residents of Toledo must stand up and make our will known, class action is essential to ensure the city does not profit from this illegal tax. They must be held accountable.
As the thief who robs a bank, we would never allow him to keep his booty, so likewise we must demand the same decision for a government who blatantly disregarded the Ohio Revised Code when it legislated this tax.
I suggest further that every resident of Ohio should watch the case and brace themselves if the courts do not rule in favor of residents of Toledo, for as Toledo goes, so likewise will other desperate governments of Ohio as this is easy revenue with no limits.
Take action now, quickly and with conviction as the Courts are soon to rule on class action. I suggest you call the Common Pleas Court and ask that every resident be included in the class action.
Common Pleas Phone # is: 419-213-4484
CASE: G -4801 -CI -200802348-000
For questions contact:
Scott Ciolek, Attorney, 419-491-7270