[Cite as Fowler v. Ohio Dept. of Public Safety, 2017-Ohio-7038.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Rory Fowler,                                           :

                 Plaintiff-Appellant/                  :
                 Cross-Appellee,
                                                       :               No. 16AP-867
v.                                                                   C.P.C. No. 16CV-3818)
                                                       :
Ohio Department of Public Safety,                                  (REGULAR CALENDAR)
Bureau of Motor Vehicles et al.,                       :

                 Defendants-Appellees/                 :
                 Cross-Appellants.
                                                       :


                                         D E C I S I O N

                                      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 "appellees"). 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
No. 16AP-867                                                                              2


others similarly situated pursuant to a state statute that is unconstitutional.       More
particularly, appellant contends that the 2009 amendment to R.C. 4509.101, which
increases the financial responsibility reinstatement fees, violates Article XII, Section 5a,
Ohio Constitution because it directs the registrar to deposit the additional fee income into
the state treasury to the credit of the indigent defense support fund. According to the
complaint, Article XII, Section 5a, Ohio Constitution prohibits the Treasurer from
expending such fee income for any purpose other than "payment of highway obligations,
costs for construction, reconstruction, maintenance and repair of public highways." The
complaint seeks an order declaring the amendments unconstitutional, enjoining the BMV
from enforcing the amendments and restitution from the Treasurer of the additional fees
paid thereunder. Appellant also requests an order certifying a class consisting of "all
persons who, since January 11, 2010 through present, paid a fee to the Ohio BMV * * *
under the current version of R.C. 4509.101(A)(5)(a)." (Compl. at ¶ 40.)
       {¶ 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 "R.C. § 4509.101 does not violate
Article XII, Section 5a of the Ohio Constitution." (Decision at 6.) Accordingly, the trial
court granted appellees' motion and dismissed appellant's complaint. The trial court did
not reach the issue of class certification.
       {¶ 4} Appellant timely appealed 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:
No. 16AP-867                                                                               3


              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 the 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 use of vehicles on public highways for purposes of
Article XII, Section 5a, Ohio Constitution. We disagree.
       {¶ 9} R.C. 4509.101, as amended by Am.Sub.H.B. No. 1, provides, in relevant part,
as follows:
              (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 penalties:

              ***

              (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
No. 16AP-867                                                                            4


             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 R.C.
4509.101 direct the proceeds as follows:
             (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, and 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 reinstatement fee, and one
             hundred dollars of each six-hundred-dollar reinstatement fee
No. 16AP-867                                                                               5


              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 Article XII, Section 5a, Ohio Constitution because the financial responsibility
reinstatement fee is a fee "relating to registration, operation, or use of vehicles on public
highways." Article XII, Section 5a, Ohio Constitution entitled "[u]se of motor vehicle
license and fuel taxes restricted," provides as follows:
              No moneys derived 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 public 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 Article XII, Section 5a, Ohio Constitution. The dispute
in this case is whether the financial responsibility reinstatement fee is "relating to"
registration, operation, or use of vehicles on public highways for purposes of Article XII,
Section 5a, Ohio Constitution. On this issue, our legal analysis begins and ends with our
application of two decisions of the Supreme Court of Ohio decided just one day apart:
Ohio Trucking Assn. v. Charles, 134 Ohio St.3d 502, 2012-Ohio-5679, and Beaver
Excavating Co. v. Testa, 134 Ohio St.3d 565, 2012-Ohio-5776. In each of these two cases,
the issue for the Supreme Court was whether a certain legislative enactment violated
Article XII, Section 5a, Ohio Constitution.
       {¶ 13} Appellant relies primarily on Beaver Excavating in support of his position.
In Beaver Excavating, the appellants, a group including contractors and county
No. 16AP-867                                                                              6


engineers, brought suit against the Tax Commissioner of Ohio challenging the
constitutionality of the Ohio commercial activity tax ("CAT"), R.C. 5751.01 et seq., as
applied to gross receipts from motor vehicle fuel sales. The county engineers claimed that
they were being illegally deprived of that money because the CAT is not collected and
distributed in a manner consistent with Article XII, Section 5a, Ohio Constitution.
Accordingly, the complaint sought a declaration that the CAT violates Article XII, Section
5a and an injunction prohibiting the tax commissioner from levying, enforcing, or
collecting the CAT as it relates to gross receipts derived from the sales of motor vehicle
fuel.
        {¶ 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 Article XII, Section
5a did not support the contention that the CAT was a tax "relating to" motor vehicle fuel
sales. Beaver Excavating Co. v. Levin, 10th Dist. No. 10AP-581, 2011-Ohio-3649, ¶ 34.
        {¶ 15} The Supreme Court accepted the county engineers' appeal. 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-vehicle 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 source (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, we 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.
No. 16AP-867                                                                                                     7


Id. at ¶ 33.
        {¶ 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 R.C.
4509.05(A), as enacted April 1, 2009. R.C. 4509.05 required the registrar of motor
vehicles, on request of any person, to "search and furnish a certified abstract" of the
number of motor vehicle accidents in which that person has been involved and the
person's record of convictions for violations of the motor vehicle laws. The statute raised
the fee for each abstract from $2 to $5 and required the registrar to divert a portion of the
fee collected to several non-highway purposes.1 In discussing the meaning of the term
"relating to," as used in Article XII, Section 5a, Ohio Constitution, the court in Ohio
Trucking suggested that the appropriate breadth of the term depends on the situation in
which the question arises. The court stated:
                 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 interpreted. 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.

Id. at ¶ 17.
        {¶ 17} The court in Ohio Trucking concluded that the fees charged by the registrar
of motor vehicles 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 Article XII, Section 5a, Ohio Constitution. In reaching this conclusion, the
court reasoned as follows:


1R.C. 4509.05(C) provided in relevant part: "Of each five-dollar fee the registrar collects under this division,
the registrar shall pay two dollars into the state treasury to the credit of the state bureau of motor vehicles
fund * * *, sixty cents into the state treasury to the credit of the trauma and emergency medical services fund
* * *, sixty cents into the state treasury to the credit of the homeland security fund * * *, thirty cents into the
state treasury to the credit of the investigations fund * * *, one dollar and twenty-five cents into the state
treasury to the credit of the emergency management agency service and reimbursement fund * * *, and
twenty-five cents into the state treasury to the credit of the justice program services fund.
No. 16AP-867                                                                             8


               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.

Id. at ¶ 16.
        {¶ 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 R.C. 4509.101. Unlike the CAT at issue in
Beaver Excavating, 2012-Ohio-5776, which was levied on gross receipts from all sales of
motor vehicle fuels, the reinstatement fee required by R.C. 4509.101 does not affect all
Ohio motorists. Rather, as was the case in Ohio Trucking, not every Ohio motorist who
registers a vehicle must pay the financial responsibility reinstatement fee.           The
reinstatement fee is necessary only for those motorists who have incurred the civil penalty
under R.C. 4509.101(A).       All other Ohio drivers merely pay the customary vehicle
registration fee. See R.C. 4503.09 to 4503.181.
        {¶ 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 maintain proof of
financial responsibility under R.C. 4509.44 to 4509.65. R.C. 4509.101(A)(5)(c). Thus, it
is evident that the financial responsibility reinstatement fee relates directly to the
statutory purpose of compelling Ohio motorists to carry vehicle insurance and penalizing
No. 16AP-867                                                                                  9


those who do not, rather than to vehicle registration itself. Although we cannot deny that
there is a relationship between the financial responsibility reinstatement fee and motor
vehicle registration, in light of the Ohio Trucking decision, we find that relationship is too
attenuated to support the conclusion that the statutory allocation of the increased
financial responsibility reinstatement fee violates Article XII, Section 5a, Ohio
Constitution.    Applying the rationale of Ohio Trucking, we find that the financial
responsibility reinstatement fee is less related to the registration, operation, or use of
vehicles than it is to the civil penalty for non-compliance with Ohio's financial
responsibility laws.
       {¶ 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 registration, 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 R.C. 4509.101 has previously paid the required vehicle
registration fee for the registration period. No other registration fee is required of such
motorists during the registration period.        Thus, the additional reinstatement fee is
attributable exclusively to the failure to comply with the mandatory financial
responsibility law and not the generally applicable vehicle registration requirements.
Accordingly, we find that the financial responsibility reinstatement fee is less related to
motor vehicle registration than it is to the civil penalty compelling compliance with Ohio's
financial responsibility law. Therefore, amended R.C. 4509.101(E), which credits the
increase in the financial responsibility reinstatement fee to the indigent defense support
fund, does not offend the spending restrictions in Article XII, Section 5a, Ohio
Constitution.
No. 16AP-867                                                                              10


       {¶ 22} Because we have determined that the 2009 amendments to R.C. 4509.101
made by Am.Sub.H.B. No. 1 do not violate Article XII, Section 5a, Ohio Constitution, we
need not address appellees' alternative argument regarding severability.            For the
foregoing reasons, appellant's assignment of error is overruled.
       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
R.C. 4509.101. App.R. 12(A)(1)(b) and (c) provides that this court shall "[d]etermine the
appeal on its merits on the assignments of error set forth in the briefs * * * [u]nless an
assignment of error is made moot by a ruling on another assignment of error." Here,
appellees' cross-assignment of error regarding standing is rendered moot by our ruling on
appellant's assignment of error. Having overruled appellant's sole assignment of error
and having affirmed the trial court's judgment dismissing appellant's complaint, any error
by the trial court with respect to standing did not prejudice appellees. State ex rel. United
Auto., Aerospace & Agricultural Implement Workers of Am. v. Bur. of Workers' Comp.,
108 Ohio St.3d 432, 2006-Ohio-1327, ¶ 59-60 (because the court of appeals overruled
relator's objections to the magistrate's dismissal of relator's mandamus action, court of
appeals did not err by mooting relator's objections to the magistrate's ruling that relator
did not have standing). Accordingly, we need not pass on the merits of appellees' cross-
assignment of error or appellant's motion to dismiss the cross-appeal.
       {¶ 24} For the foregoing reasons, appellees' cross-appeal and appellant'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.
                                  ________________
