Appeal Brief Filed

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

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

APPEAL FILED IN “TRASH FEE” LAWSUIT

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?

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

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!

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.